(SS) McCarthy v. Commissioner of Social Security, No. 1:2009cv01967 - Document 22 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS regarding Plaintiff's Social Security Complaint 2 recommending that Plaintiff's appeal from the administrative decision of the Commissioner of Social Security be DENIED and that JUDGMENT be entered for Defenda nt Michael J. Astrue and against Plaintiff Pamela Nicole McCarthy. Matter referred to Judge O'Neill; Objections to F&R due within 14 days after being served with this Findings and Recommendation; signed by Magistrate Judge Sheila K. Oberto on 2/16/2011. (Timken, A)
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(SS) McCarthy v. Commissioner of Social Security Doc. 22 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 PAMELA NICOLE McCARTHY, 11 12 13 14 15 16 17 ) ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) ) Defendant. ) ) _____________________________________ ) 1:09-cv-1967 LJO SKO FINDINGS AND RECOMMENDATIONS REGARDING PLAINTIFF’S SOCIAL SECURITY COMPLAINT (Doc. 2) OBJECTIONS DUE 14 DAYS 18 19 INTRODUCTION 20 Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security (the 21 “Commissioner” or “Defendant”) denying her application for Supplemental Security Income (“SSI”) 22 pursuant to Title XVI of the Social Security Act. 42 U.S.C. §§ 405(g), 1383(c)(3). The matter is 23 currently before the Court on the parties’ briefs, which were submitted, without oral argument, to 24 the Honorable Sheila K. Oberto, United States Magistrate Judge. 25 FACTUAL BACKGROUND 26 Plaintiff was born in 1960 and has a high-school education but no past relevant work. 27 (Administrative Record (“AR”) 18.) On February 23, 2007, Plaintiff filed an application for SSI, 28 alleging disability beginning on November 15, 2006, due to back problems. (AR 86-93, 100, 105.) Dockets.Justia.com 1 A. Medical Evidence 2 1. 3 On February 1, 2003, magnetic resonance imaging (“MRI”) of Plaintiff’s lumbar spine 4 revealed desiccation of the L4-5 disc “associated with a broad base bulge resulting in mild to 5 moderate canal stenosis.” (AR 270.) On March 18, 2003, Plaintiff underwent back surgery to treat 6 a herniated disc at L5-S1. (AR 264.) MRI of Plaintiff’s lumbar spine on that date revealed 7 unremarkable alignment and no fracture. (AR 266.) University Medical Center 8 On February 2, 2004, MRI of Plaintiff’s lumbar spine revealed “[i]nterval resection of L5-S1 9 disc herniation. No evidence of residual/recurrent disc herniation. Mild bulging discs at L4-L5 and 10 L5-S1 without frank central spinal stenosis.” (AR 244.) 11 2. 12 On June 17, 2007, Juliane Tran, M.D., performed a consultative orthopedic examination of 13 Plaintiff. (AR 139-42.) Dr. Tran noted Plaintiff’s complaints of neck pain with radicular symptoms 14 of the left upper extremities and Plaintiff’s subjective complaints of back pain with a history of 15 lumbar diskectomy. (AR 142.) Dr. Tran further noted that the “examination has multiple 16 abnormalities, out of proportion to the physical findings.” (AR 142.) Dr. Tran could not “evaluate 17 many aspects of [Plaintiff’s] range of motion or even strength testing” because “[Plaintiff’s] effort 18 on examination [was] minimal.” (AR 142.) Therefore, Dr. Tran could not assess Plaintiff’s 19 functional restrictions and opined that Plaintiff “probably should have a psychiatric evaluation.” 20 (AR 142.) Dr. Tran 21 3. 22 On December 13, 2004, Daniel Brubaker, D.O., noted that Plaintiff complained of headaches 23 on her left side with numbness. (AR 160.) Dr. Brubaker further noted that Plaintiff was “having a 24 lot of pain resulting from her significant other dying. She is having a lot of back pain. She is dealing 25 with things OK. She is doing OK.” (AR 160.) Dr. Brubaker 26 27 28 2 1 On February 13, 2008, Dr. Brubaker completed a medical source statement regarding 2 Plaintiff’s ability to perform work-related physical activities. (AR 128-33.) Dr. Brubaker opined 3 that Plaintiff could (1) occasionally lift and carry less than five pounds and (2) sit and stand for 30 4 to 60 minutes and walk for one hour total in an eight-hour work day. (AR 128.) Although Plaintiff 5 did not require the use of a cane to ambulate, Dr. Brubaker opined that she “should use one.” (AR 6 129.) Dr. Brubaker stated that “lumbar disc causes severe back pain” and that “cervical discs cause 7 weakness.” (AR 130.) Dr. Brubaker further stated that Plaintiff’s limitations were first present in 8 September 2006. (AR 133.) 9 10 4. Dr. Abejie On December 31, 2008, an MRI of Plaintiff’s lumbar spine ordered by Dr. Abejie revealed 11 no disc herniation or spinal canal stenosis and only some degenerative changes. (AR 183.) 12 Plaintiff’s cervical spine showed mild spinal canal stenosis at C6-C7. (AR 185.) 13 5. 14 On March 5, 2009, Thomas O’Laughlin, M.D., completed an initial physical medicine Dr. O’Laughlin 15 consultation with and evaluation of Plaintiff. (AR 276-78.) Dr. O’Laughlin reported as follows: 16 18 [Plaintiff] has neck and lower back pain. She had recent MRIs of her neck and back down [sic] in December 2008. We were able to look at the disc. . . . She also gets some left shoulder pain. This MRI did not reveal a lot of arthritis or other symptoms to suggest the etiologies within the shoulder itself[;] although this is possible, it may well be coming from the neck. 19 (AR 276.) Dr. O’Laughlin noted that Plaintiff “would like to be on SSI. Currently the patient [had] 20 a lawyer that [was] working along with her.” (AR 276.) The doctor further observed that Plaintiff’s 21 left hand appeared “to be more less [sic] swollen than the right.” (AR 277.) Dr. O’Laughlin found 22 that Plaintiff had “good dorsiflexion and plantar flexion at the ankles bilaterally.” (AR 278.) “Dr. 23 O’Laughlin assessed Plaintiff with, inter alia, “depression.” (AR 278.) 17 24 On April 7, 2009, Scott Catone, a physician’s assistant, completed a medical source statement 25 regarding Plaintiff’s ability to do work-related physical activities. (AR 279-85.) Plaintiff could 26 occasionally lift up to 10 pounds. (AR 279.) Plaintiff could sit, stand, and walk for one hour each 27 28 3 1 without interruption. (AR 280.) Regarding Plaintiff’s activities that she could perform in an eight- 2 hour day, Mr. Patone indicated, “Bed, alternates reclines [sic], walking, sitting, and standing.” (AR 3 280.) Plaintiff could not walk a block at a reasonable pace on rough or uneven surfaces. (AR 284.) 4 B. Administrative Hearing 5 The Commissioner denied Plaintiff’s application initially and again on reconsideration; 6 consequently, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). (AR 42- 7 66.) On April 17, 2009, ALJ Christopher Larsen held a hearing where Plaintiff and a vocational 8 expert testified. (AR 20-41.) 9 1. Plaintiff’s Testimony 10 The ALJ summarized Plaintiff’s testimony in his decision as follows: 11 [Plaintiff] testified she has extreme pain in the back and neck, and a swollen left hand. She underwent lower lumbar surgery in March, 2003, which she stated was not successful. Pain in her low back reportedly travels to her legs, arms, and hand. Her neck pain is constant, burning, and sharp. Her left arm is constantly swollen and the more she does, the more pain she feels. She takes Norco and morphine, which make her sleepy and impair[s] her concentration. She sees Dr. O’Laughlin and physician assistant Mr. Catone once every two months. [Plaintiff] testified she is private pay because she does not have any insurance. She testified Dr. Brubaker recommended a surgery that does not exist yet. She lies down 50% of the time and can only lie on her sides, but not on her back. She also uses a heating pad a couple of times a day. Allegedly, she can only lift a gallon of milk, using both hands, and struggles to do it. She can only stand and sit 10 to 15 minutes each for a total of 16 times a day and walk 1/4 mile. [Plaintiff] did not know if she could reach with her left arm. She lives with her mother in a mobile home and does not do any household chores. She can prepare simple meals. During the day she paces, sits, visits people when they come over, goes outside, goes grocery shopping once a week, and can drive to doctors’ appointments. Her income is general relief and food stamps. 12 13 14 15 16 17 18 19 20 (AR 15.) 21 2. 22 A hypothetical person of Plaintiff’s age, education, and work experience could not perform 23 work in the national economy if such a person could perform work at the light exertional level but 24 could reach only occasionally with the left dominant arm. (AR 39.) Further, a hypothetical person 25 of Plaintiff’s age, education, and work experience could not perform any work if such a person could 26 only occasionally lift up to 10 pounds and in an eight-hour day, stand and walk for a total of two Vocational Expert Testimony 27 28 4 1 hours and sit for a total of two hours. (AR 39.) The vocational expert’s testimony was consistent 2 with the Dictionary of Occupational Titles.1 (AR 40.) 3 C. ALJ’s Decision 4 On June 29, 2009, the ALJ issued a decision finding Plaintiff not disabled since the 5 application date of February 23, 2007. (AR 9-19.) Specifically, the ALJ found that Plaintiff (1) had 6 not engaged in substantial gainful activity since February 23, 2007; (2) had an impairment or a 7 combination of impairments that is considered “severe” based on the requirements in the Code of 8 Federal Regulations; (3) did not have an impairment or combination of impairments that meets or 9 equals one of the impairments set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1; and (4) could 10 perform jobs that existed in significant numbers in the national economy. (AR 14-18.) The ALJ 11 found that Plaintiff had the residual functional capacity (“RFC”) to perform the full range of light 12 work.2 (AR 18.) 13 Regarding Plaintiff’s credibility, the ALJ found that, “[a]fter carefully considering the 14 evidence, . . . [Plaintiff’s] medically-determinable impairments can reasonably be expected to 15 produce her alleged symptoms, but her statements about the intensity, persistence, and limiting 16 effects of those symptoms are not credible to the extent they are inconsistent with [the ALJ’s] 17 evaluation of [Plaintiff’s] residual functional capacity.” (AR 15.) The ALJ found that “[t]he 18 objective medical evidence does not support [Plaintiff’s] subjective complaints.” (AR 16.) The ALJ 19 further found that, “[t]o the extent [Plaintiff’s] symptoms vary from examination to examination, 20 they are less reliable in determining her residual functional capacity.” (AR 17.) 21 The ALJ discounted Dr. Brubaker’s opinion as follows: 22 Dr. Brubaker’s opinion is troubling to me for three reasons. First, the objective medical evidence supporting it is at least equivocal. . . . Dr. Brubaker does not 23 24 25 1 The Social Security Administration has taken administrative notice of the Dictionary of Occupational Titles, which is published by the Department of Labor and gives detailed physical requirements for a variety of jobs. Massachi v. Astrue, 486 F.3d 1149, 1152 n.8 (9th Cir. 2007); see also 20 C.F.R. § 416.966(d)(1). 26 2 27 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds.” 20 C.F.R. § 416.967(b). 28 5 1 specify any particular medical or clinical findings on the form, other than what is essentially a recitation of [Plaintiff’s] subjective complaints. . . . Second, in a December 13, 2004, note, Dr. Brubaker observes [Plaintiff] is “having a lot of pain resulting from her significant other dying.” This suggests to me Dr. Brubaker is using a fairly broad definition of “pain.” Third, I cannot tell from Dr. Brubaker’s records whether [Plaintiff] whether gave more effort in his exam than she did during consultative evaluator Dr. Tran’s examination. One detail I find troubling is that Dr. O’Laughlin, on March 5, 2009, reports [Plaintiff] has “good dorsiflexion and plantar flexion at the ankles bilaterally.” When she saw Dr. Tran, [Plaintiff] refused to move her left ankle at all, saying she could not. 2 3 4 5 6 7 (AR 17.) 8 Plaintiff sought review of this decision before the Appeals Council, which denied review on 9 September 11, 2009. (AR 1-4.) Therefore, the ALJ’s decision became the final decision of the 10 Commissioner. 20 C.F.R. § 416.1481. 11 D. Plaintiff’s Appeal 12 On November 16, 2009, Plaintiff filed a complaint before this Court seeking review of the 13 ALJ’s decision. Plaintiff contends that the ALJ failed to evaluate properly the opinion evidence and 14 failed to assess properly Plaintiff’s credibility. 15 SCOPE OF REVIEW 16 The ALJ’s decision denying benefits “will be disturbed only if that decision is not supported 17 by substantial evidence or it is based upon legal error.” Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 18 1999). In reviewing the Commissioner’s decision, the Court may not substitute its judgment for that 19 of the Commissioner. Macri v. Chater, 93 F.3d 540, 543 (9th Cir. 1996). Instead, the Court must 20 determine whether the Commissioner applied the proper legal standards and whether substantial 21 evidence exists in the record to support the Commissioner’s findings. See Lewis v. Astrue, 498 F.3d 22 909, 911 (9th Cir. 2007). 23 “Substantial evidence is more than a mere scintilla but less than a preponderance.” Ryan v. 24 Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). “Substantial evidence” means “such 25 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 26 Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. of N.Y. v. NLRB, 305 27 28 6 1 U.S. 197, 229 (1938)). The Court “must consider the entire record as a whole, weighing both the 2 evidence that supports and the evidence that detracts from the Commissioner’s conclusion, and may 3 not affirm simply by isolating a specific quantum of supporting evidence.” Lingenfelter v. Astrue, 4 504 F.3d 1028, 1035 (9th Cir. 2007) (citation and internal quotation marks omitted). 5 APPLICABLE LAW 6 An individual is considered disabled for purposes of disability benefits if he is unable to 7 engage in any substantial, gainful activity by reason of any medically determinable physical or 8 mental impairment that can be expected to result in death or that has lasted, or can be expected to 9 last, for a continuous period of not less than twelve months. 42 U.S.C. §§ 423(d)(1)(A), 10 1382c(a)(3)(A); see also Barnhart v. Thomas, 540 U.S. 20, 23 (2003). The impairment or 11 impairments must result from anatomical, physiological, or psychological abnormalities that are 12 demonstrable by medically accepted clinical and laboratory diagnostic techniques and must be of 13 such severity that the claimant is not only unable to do his previous work, but cannot, considering 14 his age, education, and work experience, engage in any other kind of substantial, gainful work that 15 exists in the national economy. 42 U.S.C. §§ 423(d)(2)-(3), 1382c(a)(3)(B), (D). 16 The regulations provide that the ALJ must undertake a specific five-step sequential analysis 17 in the process of evaluating a disability. In the First Step, the ALJ must determine whether the 18 claimant is currently engaged in substantial gainful activity. 20 C.F.R. §§ 404.1520(b), 416.920(b). 19 If not, in the Second Step, the ALJ must determine whether the claimant has a severe impairment 20 or a combination of impairments significantly limiting him from performing basic work activities. 21 Id. §§ 404.1520(c), 416.920(c). If so, in the Third Step, the ALJ must determine whether the 22 claimant has a severe impairment or combination of impairments that meets or equals the 23 requirements of the Listing of Impairments (“Listing”), 20 C.F.R. 404, Subpart P, App. 1. Id. 24 §§ 404.1520(d), 416.920(d). If not, in the Fourth Step, the ALJ must determine whether the claimant 25 26 27 28 7 1 has sufficient RFC3 despite the impairment or various limitations to perform his past work. Id. 2 §§ 404.1520(f), 416.920(f). If not, in Step Five, the burden shifts to the Commissioner to show that 3 the claimant can perform other work that exists in significant numbers in the national economy. Id. 4 §§ 404.1520(g), 416.920(g). If a claimant is found to be disabled or not disabled at any step in the 5 sequence, there is no need to consider subsequent steps. Tackett v. Apfel, 180 F.3d 1094, 1098-99 6 (9th Cir. 1999); 20 C.F.R. §§ 404.1520, 416.920. 7 8 DISCUSSION A. Plaintiff’s Credibility 9 The ALJ found that Plaintiff’s “medically-determinable impairments can reasonably be 10 expected to produce her alleged symptoms, but her statements about the intensity, persistence, and 11 limiting effects of those symptoms are not credible to the extent they are inconsistent with [the 12 ALJ’s] evaluation of [Plaintiff’s] residual functional capacity.” (AR 15.) First, the ALJ found that 13 Plaintiff “gave such poor effort before consultative examiner Dr. Tran that neither Dr. Tran nor the 14 state-agency doctors would hazard a guess as to her actual residual functional capacity. Dr. Tran 15 noted ‘multiple abnormalities, out of proportion to the physical findings.’” (AR 16 (internal citations 16 omitted).) Second, the ALJ found that the objective medical evidence did not support Plaintiff’s 17 subjective complaints. (AR 16.) Third, the ALJ found that the variation in Plaintiff’s statement 18 regarding the need for surgery, “like the variation in her symptoms at different examinations, 19 highlights the problems with [Plaintiff’s] credibility.” (AR 18.) 20 Plaintiff contends that these foregoing reasons are not legally sufficient to reject her 21 testimony. According to the Commissioner, however, the ALJ gave valid reasons for finding 22 Plaintiff not entirely credible. 23 24 3 27 RFC is an assessment of an individual’s ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis of 8 hours a day, for 5 days a week, or an equivalent work schedule. Social Security Ruling 96-8p. The RFC assessment considers only functional limitations and restrictions that result from an individual’s medically determinable impairment or combination of impairments. Id. “In determining a claimant’s RFC, an ALJ must consider all relevant evidence in the record including, inter alia, medical records, lay evidence, and ‘the effects of symptoms, including pain, that are reasonably attributed to a medically determinable impairment.’” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006). 28 8 25 26 1 1. 2 In evaluating the credibility of a claimant’s testimony regarding subjective complaints, an 3 ALJ must engage in a two-step analysis. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). 4 First, the ALJ must determine whether the claimant has presented objective medical evidence of an 5 underlying impairment that could reasonably be expected to produce the pain or other symptoms 6 alleged. Id. The claimant is not required to show that her impairment “could reasonably be expected 7 to cause the severity of the symptom she has alleged; she need only show that it could reasonably 8 have caused some degree of the symptom.” Id. (quoting Lingenfelter, 504 F.3d at 1036). If the 9 claimant meets the first test and there is no evidence of malingering, the ALJ can only reject the 10 claimant’s testimony about the severity of the symptoms if she gives “specific, clear and convincing 11 reasons” for the rejection. Id. As the Ninth Circuit has explained: 12 Legal Standard 15 The ALJ may consider many factors in weighing a claimant’s credibility, including (1) ordinary techniques of credibility evaluation, such as the claimant’s reputation for lying, prior inconsistent statements concerning the symptoms, and other testimony by the claimant that appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and (3) the claimant’s daily activities. If the ALJ’s finding is supported by substantial evidence, the court may not engage in second-guessing. 16 Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (citations and internal quotation marks 17 omitted); see also Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1226-27 (9th Cir. 2009); 18 20 C.F.R. §§ 404.1529, 416.929. Other factors the ALJ may consider include a claimant’s work 19 record and testimony from physicians and third parties concerning the nature, severity, and effect of 20 the symptoms of which he complains. Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). 13 14 21 2. 22 In this case, the ALJ found that Plaintiff’s medically determinable impairments could 23 reasonably be expected to produce the alleged symptoms. Therefore, absent affirmative evidence 24 of malingering, the ALJ’s reasons for rejecting Plaintiff’s testimony must be clear and convincing. 25 As discussed further below, the Court finds that the ALJ gave clear and convincing reasons 26 supported by the record to discount Plaintiff’s credibility. Analysis 27 28 9 1 First, the ALJ found that the objective medical evidence in the record did not fully support 2 Plaintiff’s subjective complaints. Although the inconsistency of objective findings with subjective 3 claims may not be the sole reason for rejecting subjective complaints of pain, Light, 119 F.3d at 792, 4 it is one factor which may be considered with others. Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 5 2004); Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999). Here, for 6 example, the ALJ found that the MRI of Plaintiff’s lumbar spine showed only degenerative changes 7 and that the MRI of Plaintiff’s cervical spine showed only mild spinal canal stenosis. (AR 16.) 8 Further, the ALJ noted Plaintiff’s “variations in her symptoms at various examination” that 9 highlighted problems with her credibility, noting Plaintiff’s lack of effort at Dr. Tran’s examination. 10 (AR 17, 18.) An ALJ’s consideration of a claimant’s tendency to exaggerate and “poor effort” 11 during a consultative examination has been found to support discrediting the claimant’s testimony. 12 Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). Given the evidence in the record, the 13 ALJ could reasonably infer that Plaintiff’s complaints were not as severe as she presented. 14 Tommasetti, 533 F.3d at 1041 (ALJ may draw reasonable inferences from the record). 15 In sum, questions of credibility and resolutions of conflicts in the testimony are functions 16 solely of the Commissioner. Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006). If, as here, the 17 ALJ’s interpretation of the claimant’s testimony is reasonable and is supported by substantial 18 evidence, it is not the Court’s role to “second-guess” it. Rollins v. Massanari, 261 F.3d 853, 857 19 (9th Cir. 2001). The ALJ cited clear and convincing reasons for rejecting Plaintiff’s subjective 20 complaints regarding the intensity, duration, and limiting effects of his symptoms. See Batson v. 21 Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1196-97 (9th Cir. 2004) (claimant’s contradictory 22 testimony unsupported by objective medical evidence constituted substantial evidence in support of 23 ALJ’s negative credibility determination). Moreover, the ALJ’s reasons were properly supported 24 by the record and sufficiently specific to allow this Court to conclude that the ALJ rejected Plaintiff’s 25 testimony on permissible grounds and did not arbitrarily discredit Plaintiff’s testimony. 26 27 28 10 1 B. The ALJ’s Consideration of Dr. Brubaker’s Opinion 2 The ALJ discounted Dr. Brubaker’s opinion on a medical source statement regarding 3 Plaintiff’s physical ability to perform work-related activities. Plaintiff contends that the ALJ failed 4 to evaluate properly Dr. Brubaker’s opinion. 5 1. 6 The medical opinions of three types of medical sources are recognized in Social Security 7 cases: “(1) those who treat the claimant (treating physicians); (2) those who examine but do not treat 8 the claimant (examining physicians); and (3) those who neither examine nor treat the claimant (non- 9 examining physicians).” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Generally, a treating 10 physician’s opinion should be accorded more weight than opinions of doctors who did not treat the 11 claimant, and an examining physician’s opinion is entitled to greater weight than a non-examining 12 physician’s opinion. Id. Where a treating or examining physician’s opinion is uncontradicted by 13 another doctor, the Commissioner must provide “clear and convincing” reasons for rejecting the 14 treating physician’s ultimate conclusions. Id. If the treating or examining doctor’s medical opinion 15 is contradicted by another doctor, the Commissioner must provide “specific and legitimate” reasons 16 for rejecting that medical opinion, and those reasons must be supported by substantial evidence in 17 the record. Id. at 830-31; accord Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 692 (9th Cir. 18 2009). The ALJ can meet this burden by setting out a detailed and thorough summary of the facts 19 and conflicting clinical evidence, stating his interpretation thereof, and making findings. 20 Tommasetti, 533 F.3d at 1041. Legal Standard 21 2. 22 The ALJ discounted Dr. Brubaker’s opinion because it did “not specify any particular 23 medical or clinical findings on the form, other than what is essentially a recitation of [Plaintiff’s] 24 subjective complaints.” (AR 17.) The lack of findings in Dr. Brubaker’s opinion other than that 25 “lumbar disc causes severe back pain” and “cervical discs cause weakness” (AR 130) was a specific 26 and legitimate reason to discredit his opinion, as an ALJ may discount a treating physician’s opinion Analysis 27 28 11 1 on the grounds that the opinion was based on a claimant’s subjective complaints and was 2 unsupported by objective medical findings. Batson, 359 F.3d at 1195. In any event, contrary to Dr. 3 Brubaker’s opinion, an MRI of Plaintiff’s lumbar spine in December 2008 revealed no disc 4 herniation or spinal canal stenosis and only some degenerative changes; an MRI of Plaintiff’s 5 cervical spine showed mild spinal canal stenosis at C6-C7 (AR 183). See Burch v. Barnhart, 400 6 F.3d 676, 681 (9th Cir. 2005) (determining that, in discounting claimant’s pain testimony, ALJ 7 appropriately considered objective medical findings, including MRI and X-rays showing only mild 8 degenerative disease and no disc herniation or nerve root impingement); Crawford v. Comm’r of Soc. 9 Sec., 363 F.3d 1155, 1159 (11th Cir. 2004) (per curiam) (MRI revealing very minimal degenerative 10 disc disease, no bulge or protrusion, and no canal stenosis or nerve root impingement is inconsistent 11 with finding total and permanent disability); cf. Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000) 12 (claimant’s “pain can be directly attributed to an objective finding–a diagnosis of persistent nerve 13 root irritation and more recently, to a recurrent herniated disc”). 14 Moreover, because of Plaintiff’s inconsistent results on examination, the ALJ could not tell 15 whether Plaintiff gave more effort during Dr. Brubaker’s examination than she did for Dr. Tran, 16 which, as noted above, was a clear and convincing reason to discount Plaintiff’s credibility. See Fair 17 v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989) (disregarding treating physician’s opinion because it 18 was premised on plaintiff’s subjective complaints, which the ALJ had already discounted). In short, 19 the ALJ gave specific and legitimate reasons, supported by substantial evidence in the record, to 20 discount Dr. Brubaker's opinion. The Court should, therefore, affirm the Commissioner’s decision 21 and deny Plaintiff’s appeal. 22 RECOMMENDATION 23 Based on the foregoing, the Court finds that the ALJ’s decision is supported by substantial 24 evidence and is based on proper legal standards. Accordingly, the Court RECOMMENDS that 25 Plaintiff’s appeal from the administrative decision of the Commissioner of Social Security be 26 27 28 12 1 DENIED and that JUDGMENT be entered for Defendant Michael J. Astrue and against Plaintiff 2 Pamela Nicole McCarthy. 3 This Findings and Recommendation will be submitted to the Honorable Lawrence J. O’Neill 4 pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen (14) days after being 5 served with this Findings and Recommendation, the parties may file written objections with the 6 court. 7 Recommendation.” The parties are advised that failure to file objections within the specified time 8 may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th 9 Cir.1991). The document should be captioned “Objections to Magistrate Judge's Findings and 10 11 IT IS SO ORDERED. 12 Dated: ie14hj February 16, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13
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