Gillette v. Astrue, No. 3:2008cv02377 - Document 17 (N.D. Cal. 2008)

Court Description: ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT by Judge William Alsup [denying 14 Motion for Summary Judgment; granting 15 Motion for Summary Judgment]. (whasec, COURT STAFF) (Filed on 12/22/2008)
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Gillette v. Astrue Doc. 17 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 11 For the Northern District of California United States District Court 10 12 13 14 15 No. C 08-02377 WHA RONALD E. GILLETTE, Plaintiff, v. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT MICHAEL J. AS TRUE, Commissioner of Social Security, Defendant. 16 / 17 INTRODUCTION 18 19 In this social security action, plaintiff appeals his denial of disability benefits. 20 This order finds that the administrative law judge exercised proper discretion in weighing the 21 testimony on record and that his conclusion was supported by substantial evidence. 22 Accordingly, plaintiff’s motion for summary judgment is DENIED and defendant’s cross-motion 23 for summary judgment is GRANTED. STATEMENT 24 25 1. 26 On April 19, 2005, plaintiff Ronald Gillette applied for disability insurance benefits 27 PROCEDURAL HISTORY. and on May 17, he applied for supplemental security income. He alleged that he was unable to 28 1 work for a closed period of disability from April 20041 to January 2006 due to prostate cancer, 2 a pinched nerve in the neck, and musculoskeletal problems (AR 42). Plaintiff was insured 3 through December 31, 1997. His application was denied both initially and upon reconsideration 4 (id. at 35, 42). An administrative hearing was timely requested (id. at 16). 5 On May 24, 2007, plaintiff had a hearing before administrative law judge 6 F. Neil Aschemeyer (id. 380–405). The ALJ rendered a decision on June 27 finding that 7 plaintiff was not disabled (id. at 19). Plaintiff requested administrative review (id. at 11). 8 The Appeals Council denied the request (id. at 4). Plaintiff filed an action before this Court 9 on March 27, 2008, seeking judicial review pursuant to 42 U.S.C. 405(g). The parties now For the Northern District of California United States District Court 10 make cross-motions for summary judgment. TESTIMONY AT THE ADMINISTRATIVE HEARING. 11 2. 12 At the hearing before the ALJ, plaintiff testified that when he applied for social security 13 benefits in April 2005 he couldn’t work because he “just didn’t have the energy,” he “didn’t 14 feel good,” and he was “listless.” He attributed his fatigue to radiation treatment that he had 15 received in 2004 for his prostate cancer. “They said it could last up to 18 months, sometimes 16 23 months depending on the person’s ability to recover from the radiation.” He also testified 17 that he had a “lot of burning and a lot of discomfort” in his abdomen “right around where” he 18 had the radiation treatment. Plaintiff testified that he “didn’t have the energy . . . to perform the 19 old duties.” “I couldn’t perform the old duties that I use to, you know, the old work I use to do 20 anyway.” Plaintiff was diagnosed with prostate cancer while he was incarcerated. His first 21 22 radiation treatment was in July 2004. He spent five months in the radiation treatment center 23 or in the hospital. His radiation treatment lasted six weeks. Plaintiff was released from prison 24 on April 15, 2005. 25 26 27 1 28 Plaintiff initially claimed his disability period began May 1, 1994, but he later amended that date. Plaintiff was actually only eligible for disability benefits after April 15, 2005, when he was released from prison. 2 1 2 returned to work in January 2006. He stated that he felt that he could continue to work and 3 that in the future he would be able to do so. For the Northern District of California 4 United States District Court Plaintiff testified that his condition and symptoms started to slowly improve when he Plaintiff also testified that he had pain in his lower back and a pinched nerve in his 5 neck. He stated that his pinched nerve made most of his left thumb numb. He said that those 6 symptoms had “been ongoing for quite a few years” and that they had “always” caused him 7 problems. In addition, plaintiff testified that he broke his shoulder three weeks before the 8 hearing. Prior to that, his shoulder was dislocated and it “kept falling out of socket,” preventing 9 plaintiff from doing work that he use to do. He said that he had problems with both shoulders, 10 but his left shoulder was the worst. When asked whether he still had the same neck pain and 11 shoulder pain that was present three to five years ago, plaintiff stated that he did. 12 Plaintiff testified that his shoulder problems limited him to lifting no more than five to 13 ten pounds. He said that he didn’t think that there was any job he could have done from the 14 time he was released from prison to the time he began working again. He also said that he 15 could perform some duties, such as “cleaning up,” with “some pain involved.” He testified 16 that he worked as a substance abuse counselor, the same job he had since January 2006 when 17 he resumed working. 18 Plaintiff summarized that his biggest health problem was the combination of the 19 radiation side effects and the shoulder, back, and neck pains. He testified that his cancer 20 was in remission. 21 In addition, plaintiff testified about a visit to Dr. Badrinath Konety in October of 2006. 22 Plaintiff saw the doctor for erectile dysfunction. He also told the doctor about his fatigue and 23 other symptoms. Plaintiff also discussed his physical problems, other than the erectile 24 dysfunction, with Dr. Daniels and Dr. Mack Roach. He saw Dr. Daniels about six weeks prior 25 to the hearing. Plaintiff testified that the doctor did not prescribe any new medications for him, 26 but that he wanted plaintiff to do therapy for his back and shoulders. Plaintiff testified that he 27 had been “more or less” stable since his radiation therapy. 28 3 For the Northern District of California United States District Court 1 Plaintiff also testified about his past employment as a garden worker. His title was 2 “supervisor.” He had a crew of about twelve teenagers. They did landscaping projects, pulled 3 weeds, and cleaned up. He was a “working supervisor.” When asked whether he performed 4 “the full range of activities that the people that you supervised performed,” he answered that he 5 “demonstrated what I wanted done and they did the rest of the work themselves.” He also said 6 that he was not responsible for hiring and firing. He testified that this was the only work in the 7 past that he had performed in fifteen years. 8 3. 9 The medical evidence was summarized in the ALJ’s decision (id. at 16–18). This order MEDICAL EVIDENCE. 10 will also briefly review both plaintiff’s self-reported symptoms and the findings of each 11 physician who examined him. 12 Plaintiff received treatment while he was incarcerated from 1997 to 2005, primarily at 13 the Taft Correctional Institute by multiple doctors. Upon his release, plaintiff was primarily 14 treated at the UCSF Medical Center, also by multiple doctors. 15 In 2000, plaintiff was diagnosed with degenerative spondylosis at C5-C6 and C6-C7 16 (id. at 264). Later that year, Dr. Ronald Wilson noted that plaintiff had a history of neck pain 17 with tingling in the second, third, and fourth finger tips of his left hand. He also wrote that 18 plaintiff was “26% disabled after injuring his neck at work on the street. He also sustained a 19 neck injury in a motor vehicle accident some years ago. He has few symptoms except the 20 tingling in his hands. He is well otherwise” (id. at 203). The disability comment appears to 21 refer to plaintiff self-reporting that he was “28% state disability before incarceration” (id. at 22 205). Indeed, Dr. Wilson noted later in his comments that plaintiff “looks well, no apparent 23 disability” (id. at 204). A physician assistant noted “MDS issued [unintelligible] heavy lifting 24 over 10 lbs (indefinite) as agreed by Dr. Wilson” (id. at 196). Plaintiff interprets this to mean 25 that Dr. Wilson restricted plaintiff from lifting over 10 lbs. indefinitely. Defendant does not 26 contest this interpretation. 27 28 In August 2001, plaintiff saw Dr. V. Chakmakian. Plaintiff reported problems with two discs in his neck and a pinched nerve. He also reported that his right knee “goes out.” He made 4 1 a request for a lower bunk. The doctor’s notes indicated that “patient stated problems since 2 1994.” He also stated that “lower bunk will improve situation” (id. at 182). Dr. Steven 3 Sonnabend diagnosed plaintiff with mild AC-joint degenerative disc disease (id. at 263). For the Northern District of California United States District Court 4 In 2002, plaintiff reported a rotator cuff injury and a pinched nerve between his fourth 5 and fifth vertebrae. He was not cleared for kitchen or barber shop duty (id. at 164). Dr. Robert 6 Spack noted that plaintiff had a pinched nerve in the left side of his neck and that a finger on 7 his left hand had become numb. The doctor also noted that plaintiff had pain at level 7 on a 8 10-point scale and that the pain woke him up at nights (id. at 156). 9 In 2003, Dr. Ndukwe Odeluga found that plaintiff had a reduced range of motion in his 10 shoulders and that a December 2001 MRI indicated that he had “degenerative spondylosis and 11 mild foraminal at C6-7.” He also made a notation, which is mostly unintelligible, about 12 plaintiff’s “lateral index finger.” He prescribed Naprosin (id. at 140). 13 In 2004, plaintiff was instructed to avoid heavy lifting. Plaintiff claims that 14 Dr. Jonathon Akkano gave the instruction, but the record is not clear as to which doctor 15 did (id. at 129). Later that year, plaintiff was diagnosed with prostate cancer (id. at 124). 16 He underwent radiation treatment. Plaintiff was given a “care level 4” on an intake screening 17 questionnaire that contained “initial orders.” “Care level 4” indicated that the inmate “requires 18 subacute/long-term inpatient care, medically complex patient.” The form was stamped by a 19 physician assistant (id. at 116). Plaintiff’s medical records noted that he had aggravated pain 20 with heavy lifting. Plaintiff claims the observation was made by Dr. Akkano, but the record is 21 not clear who made the observation (id. at 108). In July, plaintiff complained of numbness in 22 his left hand in the first and third digits (id. at 105). In October, plaintiff reported that he had a 23 seizure disorder. No further explanation was given (id. at 94). In November, Dr. Akkano 24 noted that plaintiff still had pain in his neck and left shoulder and that he had occasional 25 numbness in his left hand (id. at 155). 26 In January 2006, plaintiff underwent a physical therapy screening evaluation. 27 He reported that he had constant pain at an intensity of level 4 on a 10-point scale. He also 28 reported that the pain was worst in the morning with an intensity of 8. Plaintiff was enrolled 5 1 in a spine class and he was given a home exercise program. The evaluation stated that plaintiff 2 had “good” potential for rehabilitation (id. 317–18). Also, Dr. Gary Fleischner found that 3 plaintiff had myofascial pain syndrome of the left upper buttock, “mechanical stress.” He gave 4 plaintiff an injection which made him feel better. The doctor also noted plaintiff’s back and 5 shoulder pain, noting the pain was worse overhead. The doctor suggested shoulder injections 6 and ordered an MRI C-spine (id. at 308–09). In April, an MRI revealed no evidence of 7 metastatic disease or no significant degenerative change or finding suggestive of metastatic 8 disease within the lumbar spine (id. at 361). For the Northern District of California United States District Court 9 In June, Dr. Shane Burch found “no indication of metastatic disease of spine.” He also 10 noted that plaintiff “does continue with the left-sided thumb and forefinger numbness, as 11 well as some mild weakness in the wrist flexor and extensor which would go along with the 12 findings seen on cervical MRI with foraminal narrowing at C5-C6 and C6-C7” (id. at 372). 13 Also, Dr. Roach found that plaintiff was “status post radiotherapy for presumed early 14 prostate cancer, however a less than optimal PSA [prostate-specific antigen] response.” 15 He recommended to repeat PSA and return for follow-up in three months (id. at 297). 16 Dr. Daniels referred plaintiff to a spine clinic (id. at 356). In October, Dr. Daniels noted 17 that plaintiff had back pain and that he needed to visit the spine clinic. He also noted that 18 plaintiff needed to see the oncology department (id. at 371). In October, Dr. Konety 19 diagnosed plaintiff with erectile dysfunction (id. at 349–50). In December, Dr. Daniels 20 noted that plaintiff had “recent exposure to TB.” The doctor’s notes also indicated that he 21 was “off work [unintelligible] cleared.” Plaintiff asserts that the note said “off work till 22 cleared.” Defendant does not dispute this interpretation. No further explanation was given 23 (id. at 342). 24 In February 2007, plaintiff reported to Dr. Daniels that he was easily fatigued after 25 walking one block. Dr. Daniels prescribed rest and that plaintiff should be “off work rest of 26 week” (id. at 330–31). The doctor treated plaintiff for pneumonia in May (id. at 324). An x-ray 27 of his left humerus that month showed “spurring of the humeral head” and a “suggestion of 28 narrowing of glenohumeral joint.” The radiologist also noted that there was “no evidence for 6 1 shoulder dislocation” (id. at 321). Dr. Daniels prescribed Ambien for plaintiff (id. at 345). 2 He also prescribe Marinol (id. at 351). For the Northern District of California United States District Court 3 ANALYSIS 4 1. LEGAL STANDARD. 5 A decision denying disability benefits must be upheld if it is supported by substantial 6 evidence and free of legal error. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 7 Substantial evidence is “more than a scintilla,” but “less than a preponderance.” Smolen v. 8 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). It means “such relevant evidence as a reasonable 9 mind might accept as adequate to support a conclusion.” Ibid. The Court must “review the 10 administrative record as a whole, weighing both the evidence that supports and that which 11 detracts from the ALJ’s conclusion.” Andrews, 53 F.3d at 1039. “The ALJ is responsible for 12 determining credibility, resolving conflicts in medical testimony, and for resolving 13 ambiguities;” thus, where the evidence is susceptible to more than one rational interpretation, 14 the decision of the ALJ must be upheld. Ibid. 15 An ALJ evaluates disability claims using a five-step inquiry. 20 C.F.R. 404.1520. 16 In the first four steps, the burden of proof lies with the claimant. Andrews, 53 F.3d at 1040. 17 Based upon the claimant’s proffered proof, the ALJ must determine: (i) whether the claimant 18 is working; (ii) the medical severity and duration of the claimant’s impairment; (iii) whether 19 the disability meets any of those listed in Appendix 1, Subpart P, Regulations No. 4; and 20 (iv) whether the claimant is capable of performing his or her previous job. 20 C.F.R. 21 404.1520(a)(4)(i)–(iv). In step five, “the burden shifts to the Secretary to show that the 22 claimant can engage in other types of substantial gainful work that exists in the national 23 economy.” Andrews, 53 F.3d at 1040. This last step involves a determination of whether 24 the claimant is capable of making an adjustment to other work. 20 C.F.R. 404.1520(a)(4)(v). 25 If the ALJ chooses to use a vocational expert to make this determination, hypothetical 26 questions asked “must ‘set out all of the claimant’s impairments.’” Lewis v. Apfel, 236 F.3d 27 503, 517 (9th Cir. 2001) (internal citation omitted). 28 7 1 2 completely and accurately represent a claimant’s limitations” and the claimant can “perform 3 the full range of jobs in a general category.” Tackett v. Apfel, 1810 F.3d 1094, 1101 (9th Cir. 4 1999) (emphasis in original). Although “the fact that a non-exertional limitation is alleged does 5 not automatically preclude application of the grids,” the ALJ must first determine whether the 6 “claimant’s non-exertional limitations significantly limit the range of work permitted by his 7 exertional limitations.” Id. at 1102. 8 For the Northern District of California 9 United States District Court The use of the Medical-Vocational Guidelines at step five is proper “where they Plaintiff contends that he was wrongly denied benefits because the ALJ (i) failed to properly weigh all medical opinions; (ii) failed to properly credit plaintiff’s subjective 10 complaints; (iii) improperly assessed his residual functional capacity; (iv) improperly concluded 11 that he could do his past relevant work; and (v) improperly used grids at step five to find that 12 plaintiff was not disabled. 13 2. 14 In his decision, the ALJ found at step one of the sequential evaluation process that THE ALJ’S FIVE-STEP ANALYSIS. 15 plaintiff did not engage in substantial gainful activity during the alleged closed period of 16 disability. In January 2006, plaintiff returned to work as a substance abuse counselor (AR 18). 17 At step two, the ALJ found that the medical evidence established that the claimant had severe 18 chronic neck, back, and joint pain probably due to degenerative arthritis, and the evidence also 19 established that he was “status post radiation therapy for prostate cancer” (ibid.). At step three, 20 the ALJ found that plaintiff did not have an impairment or combination of impairments listed in 21 or medically equal to one listed in the Social Security regulations. At step four, the ALJ 22 determined that plaintiff had the residual functional capacity to perform light to medium work 23 not requiring bending or stooping repeatedly, which would not have precluded him from doing 24 past relevant work as he performed it (id. at 19). Even though plaintiff’s claim failed at step 25 four, the ALJ found in the alternative that, at step five, plaintiff was also capable of performing 26 other jobs which existed in significant number in the national economy within the framework 27 of Social Security regulations and consistent with testimony from a vocational expert (ibid.). 28 8 For the Northern District of California United States District Court 1 Accordingly, the ALJ concluded that plaintiff was not under a disability as defined in the 2 Social Security Act during the alleged period of disability (ibid.). THE ALJ PROPERLY WEIGHED ALL MEDICAL OPINIONS. 3 3. 4 The ALJ properly gave more weight to the opinions of Dr. Pon, a consultative medical 5 examiner, and Dr. Van Der Reis, a testifying medical expert, than to the opinion of plaintiff’s 6 treating physician. “Where the opinion of the claimant’s treating physician is contradicted, 7 and the opinion of a nontreating source is based on independent clinical findings that differ 8 from those of the treating physician, the opinion of the nontreating source may itself be 9 substantial evidence; it is then solely the province of the ALJ to resolve the conflict.” 10 Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). The opinion of Dr. Daniels, plaintiff’s 11 treating physician, was contradicted by the opinion of Dr. Pon. Dr. Pon’s opinion was based on 12 independent clinical findings that differed from the treating physician. Dr. Pon conducted a 13 physical examination of plaintiff on August 12, 2005, and he reviewed plaintiff’s medical 14 records. Dr. Pon found that plaintiff 15 should be able to stand and/or walk for a total of 6 hours during an 8-hour workday. He should be able to sit for a total of 6 hours during an 8-hour work day. Stooping should be limited to occasionally. There is no restriction in climbing stairs, ladders, or crawling. There is no restriction in performing pushing and pulling right arm/hand control. In spite of his complaint of left shoulder pain, he should still be able to perform pushing left arm/hand control on a frequent basis. There is no restriction in performing bilateral pushing leg/foot control. He should be able to lift and carry frequently 25 lbs. and occasionally 50 lbs. There is no limitation in reaching using his right shoulder. Reaching using his left shoulder should be limited to occasionally. There were some symptomatic limitations in active ROM of his left shoulder as described. There is no limitation in his ability to perform gross and fine manipulative tasks with both hands. 16 17 18 19 20 21 22 23 24 25 (AR 272). Dr. Daniels, on the other hand, indicated in an evaluation form on October 26, 2005, that plaintiff had the following limitations: 26 • Occasionally lift/carry less than 10 lbs. 27 • Standing/walking less than 2 hours in an 8-hour workday. 28 • Must periodically alternate sitting and standing to relieve pain or discomfort. 9 For the Northern District of California United States District Court 1 • Limited pushing and pulling in upper extremities. 2 • Occasionally climbing, balancing, kneeling, and crouching. 3 • Never crawling or stooping. 4 • Limited reaching in all directions (including overhead). 5 • Limited handling (gross manipulation). 6 • Limited feeling (skin receptors). 7 (id. at 302–05). It was within the province of the ALJ to resolve the conflicting opinions and 8 find that Dr. Pon’s opinion provided substantial evidence. Dr. Pon’s opinion was based on 9 medical findings from his independent examination and review of medical records. 10 Dr. Daniels’ opinion, as discussed in more detail below, did not provide any medical findings 11 to support his opinion. 12 Furthermore, Dr. Pon’s opinion was supported by the testimony of Dr. Van Der Reis, 13 whose opinion may also serve as substantial evidence. “Opinions of a nonexamining, testifying 14 medical advisor may serve as substantial evidence when they are supported by other evidence 15 in the record and are consistent with it. The ALJ can meet this burden by setting out a detailed 16 and thorough summary of the facts and conflicting clinical evidence, stating his interpretation 17 thereof, and making findings.” Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595, 18 600 (9th Cir. 1999). The ALJ, here, set forth such a summary and evaluation and, accordingly, 19 made his findings (id. at 16–19). The ALJ has met his burden. 20 21 A. The Opinion of Dr. Daniels. Plaintiff contends that the ALJ erred in according no weight to the opinion of 22 Dr. Daniels, a treating physician. Dr. Daniels indicted in an evaluation form that plaintiff 23 had extensive limitations (id. at 17, 302–05). Dr. Daniels, however, did not provide any 24 medical findings to support his conclusions even though the form specifically called for such 25 findings at least four times. Instead, Dr. Daniels merely checked boxes that indicated plaintiff’s 26 alleged limitations. The ALJ properly gave no weight to his opinion. “The ALJ need not 27 accept the opinion of any physician, including a treating physician, if that opinion is brief, 28 conclusory, and inadequately supported by clinical findings.” Thomas v. BARNHART, 278 F.3d 10 1 947, 957 (9th Cir. 2002). The ALJ rejected the doctor’s opinion on the ground that it was “not 2 supported by any objective medical findings and is thus not accorded any significant probative 3 weight” (id. at 17). Rejection of the opinion was proper because it was not linked to objective 4 medical findings, and the ALJ properly set forth a valid reason for doing so. For the Northern District of California United States District Court 5 Plaintiff contends that the opinion of Dr. Daniels as to the severity of plaintiff’s 6 impairments should have been given controlling weight under Section 416.927(d)(2), which 7 generally gives controlling weight to treating sources. A treating sources opinion will get 8 controlling weight, however, “when it is well-supported by medically acceptable clinical and 9 laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in 10 your case record.” 20 C.F.R. 416.927(d)(2). No support was given for Dr. Daniels’ opinion 11 and, therefore, it cannot be given controlling weight. 12 Plaintiff next argues that the ALJ erred by not considering factors enumerated in 13 Section 416.927(d)(2) to determine what weight to give Dr. Daniel’s opinion if not controlling 14 weight. Those factors include (i) length of the treatment relationship and the frequency of 15 examination; (ii) nature and extent of the treatment relationship; (iii) amount of medical 16 evidence and findings presented to support the opinion; and (iv) consistency with the record as 17 a whole. Plaintiff argues that under these factors it was error for the ALJ to give the opinion 18 of Dr. Daniels no weight. The only factor plaintiff takes issue with is (iv). Plaintiff contends 19 that the ALJ did not evaluate Dr. Daniels’ opinion against the record as a whole. That is not 20 correct. The ALJ stated that “Dr. Pon’s evaluation is supported by detailed clinical findings 21 and is thus not found to be rebutted by . . . an October 2005 residual functional capacity 22 assessment by Dr. Daniels of the UCSF Medical Center which described severe physical 23 restrictions but which is not supported by any objective medical findings and is thus not 24 accorded any significant probative weight” (id. at 17). Clearly, the ALJ did consider 25 Dr. Daniel’s opinion against the record. 26 Plaintiff, however, takes issue with the ALJ’s conclusion that Dr. Daniel’s opinion 27 was not supported by “any objective medical findings.” Plaintiff in his reply brief points to 28 several documents in the record which discuss his radiation treatment, urological treatment, 11 1 and his back, neck, and shoulder pains. These records, plaintiff argues, provided “objective 2 medical findings” to support Dr. Daniels’ opinion. Notably, none of these records expressly 3 links plaintiff’s medical condition or treatment with his alleged physical limitations. 4 These records, therefore, cannot provide objective medical support for Dr. Daniels’ opinion. 5 Also, plaintiff cites to medical records that post-dated the doctor’s opinion and, therefore, 6 could not have provided objective medical support. For the Northern District of California United States District Court 7 Plaintiff next argues that the ALJ was under a duty to contact Dr. Daniels to get further 8 explanation of his opinion per Section 404.1512(e)(1). Despite plaintiff’s argument to the 9 contrary, that section does not set forth an absolute requirement for an ALJ to contact a treating 10 source. “An ALJ is required to recontact a doctor only if the doctor’s report is ambiguous or 11 insufficient for the ALJ to make a disability determination.” Bayliss v. BARNHART, 427 F.3d 12 1211, 1217 (9th Cir. 2005). If there was support in the record for the ALJ to make a 13 determination regarding the plaintiff’s disability, the ALJ did not have a duty to recontact 14 plaintiff’s doctor. Ibid. There was such support in the record. As discussed earlier, the ALJ 15 relied on the findings of Dr. Pon. He also relied on the testimony of medical expert Dr. Van 16 Der Reis and that of vocational expert Ms. Rynd. 17 B. The Physical Therapist’s Opinion and the Opinions Of Physician Assistants Ted Deleon and Tiffany Williams. 18 Plaintiff contends that it was error of the ALJ to accord little if any weight to the 19 opinions of a physical therapist and two physician assistants. Section 404.1513(d) provides 20 that an ALJ may use evidence from physician assistants and therapists to show the severity of 21 a claimant’s impairment. The ALJ was not required to evaluate such records. It was proper 22 for the ALJ to not specifically address those records. In June and July 2004, physician assistant 23 Tiffany Williams indicated that plaintiff had “no complaints.” She did, however, indicate 24 that plaintiff had numbness in his left hand. But this does not appear to be an “opinion” of the 25 physician assistant, but rather a notation of plaintiff’s self-reported symptoms (id. at 105). 26 As for Ted Deleon’s notes, they pre-dated the plaintiff’s alleged disability period by almost 27 four years, and they also consisted of self-reported symptoms, not opinion (id. at 205). 28 12 1 2 screening evaluation. The evaluation was conducted on January 3, 2006, after plaintiff’s 3 alleged disability period. It, too, contained self-reported symptoms. Although the evaluation 4 stated that plaintiff’s rehabilitation potential was “good,” which might have had some probative 5 value, the ALJ was not required to discuss every piece of evidence in the record. It is only 6 necessary for the ALJ to discuss why significant probative evidence had been rejected. 7 Vincent v. Heckler, 739 F. 2d 1393, 1394–95 (9th Cir. 1984). In light of all the other evidence 8 in the record, the evaluation and the notations from the physical therapist and the physician 9 assistants were not significant probative evidence, and it was not error for the ALJ to not 10 discuss them. 11 For the Northern District of California United States District Court It was also proper for the ALJ to not specifically address the physical therapist’s C. The Opinion of Dr. John Tysell. 12 Plaintiff contends that the ALJ erred by not providing specific reasons for granting no 13 weight to the opinion of Dr. John Tysell. Dr. Tysell provided a form assessment of plaintiff’s 14 physical residual functional capacity on September 9, 2005, as a state agency medical 15 consultant. The ALJ found that the opinion of Dr. Pon was not rebutted by the opinion of 16 non-examining state agency medical consultants (AR 18). The two opinions differ slightly in 17 regard to plaintiff’s limitations in his upper extremities. Dr. Tysell’s opinion indicated that 18 plaintiff had push and pull limitations in his upper extremities and that he had limited reaching, 19 including overhead. Dr. Pon’s opinion stated that “[i]n spite of complaint of left shoulder pain, 20 he should still be able to perform pushing and pulling left arm/hand control on a frequent basis. 21 Reaching using his left shoulder should be limited to occasionally” (id. at 272). Dr. Pon’s 22 opinion is not inconsistent with Dr. Tysell’s. They are substantially similar in all other regards, 23 including plaintiff’s limitations on lifting, sitting, and standing. The ALJ was not required to 24 elaborate on its conclusion that Dr. Pon’s opinion was not rebutted by Tysell’s because Tysell’s 25 opinion largely hurts plaintiff’s case, rather than helps it. Section 416.927(d) does not require 26 more. 27 28 13 1 For the Northern District of California United States District Court 2 D. Other Medical Opinions. Plaintiff contends that the ALJ ignored and gave no weight to the medical diagnoses by 3 Dr. Pham, Dr. Odeluga, Dr. Spack, Dr. Akanno, and Dr. Nguyen. Plaintiff argues that this 4 constitutes legal error and requires remand. Plaintiff is incorrect that the ALJ ignored these 5 diagnoses and did not factor them into his decision. The ALJ clearly reviewed all of plaintiff’s 6 medical records from his time in prison. The ALJ found that the prison medical records 7 described “ongoing care for a variety of relatively minor complaints” (id. at 16). The ALJ also 8 noted plaintiff’s radiation treatment and subsequent recovery. The ALJ cited to exhibits 1F 9 and 2F in his evaluation of the evidence, which included the opinions and diagnoses of the 10 above-mentioned doctors. Plaintiff’s argument has no merit. The ALJ did not ignore this 11 evidence. 12 Furthermore, “[a]n ALJ need not give controlling weight to the opinion of a treating 13 physician. Although a treating physician’s opinion is generally afforded the greatest weight in 14 disability cases, it is not binding on an ALJ with respect to the existence of an impairment or 15 the ultimate determination of disability. The ALJ may disregard the treating physician’s 16 opinion whether or not that opinion is contradicted.” Batson v. Commissioner of Social Security 17 Administration, 359 F.3d 1190, 1194–95 (9th Cir. 2004). The ALJ, here, gave minimal weight 18 to plaintiff’s treating physicians while he was in prison because he was treated for “relatively 19 minor complaints,” and he had recovered from treatment. The ALJ did not err by doing so. 20 Id. at 1195. Rogers v. Commissioner of Social Sec., 486 F.3d 234, 243 (6th Cir. 2007), cited by 21 plaintiff, is not to the contrary. 22 Plaintiff’s argument that the ALJ improperly failed to consider the opinions of 23 Dr. Burch and Dr. Konety is equally unavailing. Plaintiff argues that those opinions provided 24 the “objective medical evidence” to support Dr. Daniels’ opinion that plaintiff had extreme 25 limitations in 2005, and, therefore, they should have been discussed by the ALJ. The ALJ was 26 not required to discuss every piece of evidence in the record. It is only necessary for the ALJ to 27 discuss why significant probative evidence had been rejected. Vincent, 739 F. 2d at 1394–95. 28 Plaintiff asserts that Dr. Burch’s opinion of June 5, 2006, “gives retrospective support” to 14 1 Dr. Daniels’ opinion that plaintiff had limited lifting abilities. While the opinion noted that 2 plaintiff had “mild weakness” in his “wrist extensors and flexors of the left hand which 3 would go along with the findings seen on cervical MRI with foraminal narrowing at C5-C6 4 and C6-C7,” there is no attempt to link this finding to plaintiff’s past alleged limitations, as 5 opined by Dr. Daniels. Thus, the opinion is not “significant probative evidence” that the ALJ 6 needed to discuss. For the Northern District of California United States District Court 7 Similarly, the opinion of Dr. Konety lacked significant probative value. Plaintiff 8 attempts to link Dr. Konety’s diagnosis of erectile dysfunction and reduction in control over 9 the release of urine to his alleged fatigue. But, Dr. Konety’s opinion does not make this link, 10 and there’s nothing that plaintiff points to in the record which would require the ALJ to make 11 this link either. Plaintiff also attempts to link a 2007 diagnosis of pneumonia to his alleged 12 fatigue during his disability period. The ALJ addressed the pneumonia diagnosis in his 13 evaluation and apparently found it insubstantial. There’s no reason to disturb that finding. 14 4. 15 The ALJ found that “the alleged ‘disabling’ severity of the claimant’s subjective THE ALJ PROPERLY WEIGHED PLAINTIFF’S SUBJECTIVE COMPLAINTS. 16 complaints [was] not related to the objective medical and other evidence.” Plaintiff contends 17 that this discounting of his subjective complaints was improper. In deciding whether to accept 18 a claimant’s subjective complaints, the ALJ must assess whether: (i) the claimant produced 19 objective medical evidence of impairments and (ii) such impairments could reasonably be 20 expected to produce some degree of symptom. Smolen, 80 F.3d at 1281–82 (emphasis in 21 original). The claimant need not produce objective medical evidence of the pain itself, or the 22 severity of it. Id. at 1282. If the claimant produces objective medical evidence and there is no 23 evidence of malingering, the ALJ can reject claimant’s testimony about the severity of his 24 symptoms only by offering specific, clear, and convincing reasons for doing so. Id. at 1281. 25 The ALJ may not reject subjective symptom testimony simply because there is no showing that 26 the impairment can reasonably produce the degree of symptom alleged by the claimant. Ibid. 27 Here, plaintiff provided objective medical evidence of his impairments concerning his 28 neck, shoulders, and back. The next question is whether the impairments could reasonably be 15 1 expected to produce some degree of symptom. The ALJ himself acknowledged that plaintiff 2 had “severe chronic neck, back, and joint pains probably due to degenerative arthritis, and 3 status post radiation therapy for prostate cancer” (AR 18). Clearly, plaintiff’s impairment as 4 to his neck and back could reasonably be expected to produce some degree of symptom. 5 Likewise, plaintiff’s shoulder impairment meets the second part of the test. His medical 6 records indicated long-term shoulder problems dating back to at least 2001 (id. at 263). 7 This impairment could reasonably be expected to produce some degree of symptom. For the Northern District of California United States District Court 8 Plaintiff’s testimony concerning his fatigue, however, is a different matter. He provided 9 records concerning his prostate cancer and radiation treatment. But those records indicated 10 that he had recovered without incident since the treatment. Plaintiff points to no records that 11 indicate objective medical evidence of an impairment due to fatigue. In fact, plaintiff testified 12 that he had been “more or less” stable since he had the radiation treatment (id. at 395). 13 Plaintiff argues that his treatment for erectile dysfunction and reduced loss of urination control 14 provided the necessary evidence. But, none of those records make a link between the treatment 15 and plaintiff’s alleged fatigue. It was proper, therefore, for the ALJ to not give weight to 16 plaintiff’s subjective complaints of fatigue without further explanation. 17 Further explanation, however, of the ALJ’s decision to not give weight to plaintiff’s 18 complaints about his inability to lift more than five to ten pounds merited greater attention. 19 Plaintiff contends that the ALJ provided no reasons for rejecting plaintiff’s testimony. 20 Plaintiff is incorrect. The ALJ stated in his findings that his conclusion was “pursuant” to 21 his evaluation of the evidence. The evaluation clearly and fully explained the ALJ’s reasons 22 for giving greater weight to the opinions of Dr. Pon and Dr. Van Der Reis as to plaintiff’s 23 alleged disabling symptoms. As was discussed earlier, the ALJ properly gave their opinions 24 greater weight. The ALJ’s discounting of plaintiff’s subjective complaints concerning his 25 neck, shoulder, and back pains was not improper. 26 5. THE ALJ PROPERLY ASSESSED PLAINTIFF’S RESIDUAL FUNCTIONAL CAPACITY. 27 The ALJ found that plaintiff had a residual functional capacity to perform light to 28 medium work not requiring bending or stooping repeatedly. Plaintiff contends that the ALJ 16 1 erred in making this finding because he did not conduct a function-by-function analysis as per 2 SSR 96-8p, which states that “the RFC assessment must first identify the individual’s functional 3 limitations or restrictions and assess his or her work-related abilities on a function-by-function 4 basis.” A function-by-function analysis, however is not required in every case. “Preparing a 5 function-by-function analysis for medical conditions or impairments that the ALJ found neither 6 credible nor supported by the record is unnecessary.” Bayliss, 427 F.3d at 1217. The ALJ 7 made his RFC assessment based on the assessments of Dr. Pon and Dr. Van Der Reis which, 8 as previously discussed, were properly found as substantial evidence. He also based his RFC 9 assessment on the testimony of Ms. Rynd, the vocational expert. The ALJ properly assessed For the Northern District of California United States District Court 10 plaintiff’s residual functional capacity. THE ALJ’S STEP-FOUR DETERMINATION WAS PROPER. 11 6. 12 Plaintiff contends that the ALJ erred in his step-four determination for two reasons. 13 First, plaintiff asserts that the ALJ did not determine whether plaintiff could work on a regular 14 and continuing basis. Second, plaintiff asserts that the ALJ did not determine the functional 15 demands of plaintiff’s past job or an equivalent job. The ALJ found that plaintiff “was not 16 precluded by medically determinable impairments from doing past relevant work as he 17 performed it” (AR 19). This was not erroneous. The ALJ clearly set forth his reasons for his 18 step-four determination. The ALJ cited to the medical opinions of Dr. Pon, Dr. Van Der Reis, 19 to the testimony of Ms. Rynd, and to plaintiff’s medical record. His step-four analysis was 20 supported by substantial evidence. Ms. Rynd testified that plaintiff could perform his past 21 work as a supervising garden worker (id. at 402). Nothing in the record indicates that she 22 meant anything other than plaintiff could perform the work on a regular and consistent basis. 23 Also, plaintiff described his past work, setting forth the functional demands. This was clearly 24 part of the record on which the ALJ relied in making his step-four determination. 25 Also, the ALJ properly limited the vocational expert’s testimony to answering 26 hypotheticals that were only based on a light-to-medium work load. Plaintiff’s representative 27 attempted to ask the vocational expert two hypotheticals, one based on an “occasional reaching” 28 limitation, the other on a “sedentary” level of work activity. The ALJ cut off the questions, 17 1 stating that he wasn’t going to permit the questions because the evidence already established 2 that plaintiff could do light-to-medium work (id. at 404). Because the finding of plaintiff’s 3 ability to do light-to-medium work was supported by substantial evidence in the record, the 4 restrictions on the hypotheticals were proper. Magallanes v. Bowen, 881 F.2d 747, 756–57 5 (9th Cir. 1989). 6 7. 7 8 For the Northern District of California United States District Court 9 THE ALJ PROPERLY USED GRIDS AT STEP FIVE AS AN ALTERNATIVE GROUND TO DENY BENEFITS TO FIND THAT PLAINTIFF WAS NOT DISABLED. Even though the ALJ found that plaintiff was able to perform his past work, the ALJ found on an alternative ground that plaintiff was not disabled because he was able to 10 perform other jobs which existed in significant number in the national economy under the 11 Medical-Vocational Guidelines (“grids”). Plaintiff contends that this finding was erroneous 12 because the ALJ applied grids even though he had colorable non-exertional impairments, 13 precluding the use of grids. Plaintiff asserts that his loss of urine control is a “nonexertional” 14 impairment. He did not make this argument to the ALJ. Also, plaintiff cites no authority for 15 this proposition. Even if loss of urine control was a nonexertional impairment, the ALJ’s use 16 of grids would not have been improper. SSR 83-12. 17 18 CONCLUSION For the foregoing reasons, plaintiff’s motion for summary judgment is DENIED and 19 defendant’s cross-motion for summary judgment is GRANTED. Plaintiff’s motion for attorneys 20 fees is also DENIED. Judgment will be entered accordingly. 21 22 IT IS SO ORDERED. 23 24 Dated: December 19, 2008. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 25 26 27 28 18