concluding that the 23 claimant was entitled to benefits based on constant leg and back pain despite the claimant’s 24 ability to cook meals and wash dishes
How later courts described this case
- concluding that the 23 claimant was entitled to benefits based on constant leg and back pain despite the claimant’s 24 ability to cook meals and wash dishes
- rejecting treating physician’s conclusory, minimally supported opinion
- "it flies in the face of the patent purposes of the Social Security Act to deny 7 benefits to someone who is too poor to seek treatment."
- holding that the opinions 10 of non-examining professionals constitute substantial evidence when the opinions are consistent 11 with independent clinical findings or other evidence in the record
Written by the judges who cited it.
The opinion
1
2
3
4
5
6
7
8 IN THE UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11 ENRIQUE TORRES, No. 2:19-CV-1246-DMC
12 Plaintiff,
13 v. MEMORANDUM OPINION AND ORDER
14 COMMISSIONER OF SOCIAL
SECURITY,
15
Defendant.
16
17
18 Plaintiff, who is proceeding with retained counsel, brings this action for judicial
19 review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g).
20 Pursuant to the written consent of all parties, see ECF Nos. 3 and 8, this case is before the
21 undersigned as the presiding judge for all purposes, including entry of final judgment, see 28
22 U.S.C. § 636(c). Pending before the court are the parties’ briefs on the merits. See ECF Nos. 16
23 and 20.
24 The Court reviews the Commissioner’s final decision to determine whether it is:
25 (1)based on proper legal standards; and (2) supported by substantial evidence in the record as a
26 whole. See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “Substantial evidence” is
27 more than a mere scintilla, but less than a preponderance. See Saelee v. Chater, 94 F.3d 520, 521
28 (9th Cir. 1996). It is “. . . such evidence as a reasonable mind might accept as adequate to support
1 a conclusion.” Richardson v. Perales, 402 U.S. 389, 402 (1971). The record as a whole,
2 including both the evidence that supports and detracts from the Commissioner’s conclusion, must
3 be considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986); Jones
4 v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The Court may not affirm the Commissioner’s
5 decision simply by isolating a specific quantum of supporting evidence. See Hammock v.
6 Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative
7 findings, or if there is conflicting evidence supporting a particular finding, the finding of the
8 Commissioner is conclusive. See Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987).
9 Therefore, where the evidence is susceptible to more than one rational interpretation, one of
10 which supports the Commissioner’s decision, the decision must be affirmed, see Thomas v.
11 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal
12 standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th
13 Cir. 1988).
14 For the reasons discussed below, the Commissioner’s final decision is affirmed.
15
16 I. THE DISABILITY EVALUATION PROCESS
17 To achieve uniformity of decisions, the Commissioner employs a five-step
18 sequential evaluation process to determine whether a claimant is disabled. See 20 C.F.R.
19 §§ 404.1520 (a)-(f) and 416.920(a)-(f). The sequential evaluation proceeds as follows:
20 Step 1 Determination whether the claimant is engaged in
substantial gainful activity; if so, the claimant is presumed
21 not disabled and the claim is denied;
22 Step 2 If the claimant is not engaged in substantial gainful activity,
determination whether the claimant has a severe
23 impairment; if not, the claimant is presumed not disabled
and the claim is denied;
24
Step 3 If the claimant has one or more severe impairments,
25 determination whether any such severe impairment meets
or medically equals an impairment listed in the regulations;
26 if the claimant has such an impairment, the claimant is
presumed disabled and the claim is granted;
27
28 / / /
1 Step 4 If the claimant’s impairment is not listed in the regulations,
determination whether the impairment prevents the
2 claimant from performing past work in light of the
claimant’s residual functional capacity; if not, the claimant
3 is presumed not disabled and the claim is denied;
4 Step 5 If the impairment prevents the claimant from performing
past work, determination whether, in light of the claimant’s
5 residual functional capacity, the claimant can engage in
other types of substantial gainful work that exist in the
6 national economy; if so, the claimant is not disabled and
the claim is denied.
7
See 20 C.F.R. §§ 404.1520 (a)-(f) and 416.920(a)-(f).
8
9 To qualify for benefits, the claimant must establish the inability to engage in
10 substantial gainful activity due to a medically determinable physical or mental impairment which
11 has lasted, or can be expected to last, a continuous period of not less than 12 months. See 42
12 U.S.C. § 1382c(a)(3)(A). The claimant must provide evidence of a physical or mental
13 impairment of such severity the claimant is unable to engage in previous work and cannot,
14 considering the claimant’s age, education, and work experience, engage in any other kind of
15 substantial gainful work which exists in the national economy. See Quang Van Han v. Bower,
16 882 F.2d 1453, 1456 (9th Cir. 1989). The claimant has the initial burden of proving the existence
17 of a disability. See Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990).
18 The claimant establishes a prima facie case by showing that a physical or mental
19 impairment prevents the claimant from engaging in previous work. See Gallant v. Heckler, 753
20 F.2d 1450, 1452 (9th Cir. 1984); 20 C.F.R. §§ 404.1520(f) and 416.920(f). If the claimant
21 establishes a prima facie case, the burden then shifts to the Commissioner to show the claimant
22 can perform other work existing in the national economy. See Burkhart v. Bowen, 856 F.2d
23 1335, 1340 (9th Cir. 1988); Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); Hammock
24 v. Bowen, 867 F.2d 1209, 1212-1213 (9th Cir. 1989).
25 / / /
26 / / /
27 / / /
28 / / /
1 II. THE COMMISSIONER’S FINDINGS
2 Plaintiff applied for social security benefits on November 1, 2012. See CAR 20.1
3 In the application, plaintiff claims disability began on November 15, 2007. See id. Plaintiff’s
4 claim was initially denied. Following denial of reconsideration, plaintiff requested an
5 administrative hearing, which was held on September 26, 2014, before Administrative Law Judge
6 (ALJ) Odell Grooms. In a December 5, 2014, decision, the ALJ concluded plaintiff is not
7 disabled based on the following relevant findings:
8 1. The claimant has the following impairment(s): neck, back, and
knee pain secondary to a strain; adjustment disorder; and
9 polysubstance abuse disorder in longstanding remission; and
10 2. The claimant’s impairments are not severe because they have not
significantly limited the ability to perform basic work activities for
11 at least 12 consecutive months;
12 See id. at 22-30.
13 After the Appeals Council declined review on May 5, 2016, plaintiff sought
14 judicial review by the District Court, Torres v. Commissioner of Social Security, E. Dist. Cal.
15 case no. 2:16-CV-1574-EFB. On September 25, 2017, the court issued a decision remanding for
16 further proceedings. See CAR 450-58. The court concluded the ALJ’s finding that plaintiff does
17 not have severe impairments could not be sustained because the ALJ failed to provide legally
18 sufficient reasons to tacitly reject the opinions of Dr. Schwartz. See id.
19 On remand, a second hearing was held on April 19, 2018, before the same ALJ.
20 On June 10, 2018, the ALJ issued a second hearing decision finding plaintiff not disabled based
21 on the following findings:
22 1. The claimant has the following severe impairment(s): lumbar
degenerative disc disease; osteoarthritis of the lower lumbar spine;
23 bilateral hip degenerative changes; status post inguinal hernia
repair; and probable bilateral carpal tunnel syndrome;
24
2. The claimant does not have an impairment or combination of
25 impairments that meets or medically equals an impairment listed in
the regulations;
26
27
1 Citations are the to the Certified Administrative Record (CAR) lodged on October
28 22, 2019. See ECF No. 10.
1 3. The claimant has the following residual functional capacity: the
claimant can perform medium work; the claimant can frequently
2 stoop, kneel, crouch, and crawl; the claimant can frequently handle
with the bilateral upper extremities;
3
4. Considering the claimant’s age, education, work experience,
4 residual functional capacity, and vocational expert testimony, there
are jobs that exist in significant numbers in the national economy
5 that the claimant can perform.
6 See id. at 345-56.
7 After the Appeals Council declined review of the second hearing decision on June 10, 2018, this
8 second action for judicial review followed.
9
10 III. DISCUSSION
11 In his motion for summary judgment, plaintiff argues: (1) the ALJ’s residual
12 functional capacity assessment is flawed because the ALJ rejected every opinion offered by an
13 examining doctor; (2) the ALJ failed to develop the record; and (3) the ALJ failed to properly
14 assess plaintiff’s credibility.
15 A. Medical Opinions
16 “The ALJ must consider all medical opinion evidence.” Tommasetti v. Astrue,
17 533 F.3d 1035, 1041 (9th Cir. 2008) (citing 20 C.F.R. § 404.1527(b)). The ALJ errs by not
18 explicitly rejecting a medical opinion. See Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir.
19 2014). The ALJ also errs by failing to set forth sufficient reasons for crediting one medical
20 opinion over another. See id.
21 Under the regulations, only “licensed physicians and certain qualified specialists”
22 are considered acceptable medical sources. 20 C.F.R. § 404.1513(a); see also Molina v. Astrue,
23 674 F.3d 1104, 1111 (9th Cir. 2012). Where the acceptable medical source opinion is based on
24 an examination, the “. . . physician’s opinion alone constitutes substantial evidence, because it
25 rests on his own independent examination of the claimant.” Tonapetyan v. Halter, 242 F.3d 1144,
26 1149 (9th Cir. 2001). The opinions of non-examining professionals may also constitute
27 substantial evidence when the opinions are consistent with independent clinical findings or other
28 evidence in the record. See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). Social
1 workers are not considered an acceptable medical source. See Turner v. Comm’r of Soc. Sec.
2 Admin., 613 F.3d 1217, 1223-24 (9th Cir. 2010). Nurse practitioners and physician assistants
3 also are not acceptable medical sources. See Dale v. Colvin, 823 F.3d 941, 943 (9th Cir. 2016).
4 Opinions from “other sources” such as nurse practitioners, physician assistants, and social
5 workers may be discounted provided the ALJ provides reasons germane to each source for doing
6 so. See Popa v. Berryhill, 872 F.3d 901, 906 (9th Cir. 2017), but see Revels v. Berryhill, 874
7 F.3d 648, 655 (9th Cir. 2017) (quoting 20 C.F.R. § 404.1527(f)(1) and describing circumstance
8 when opinions from “other sources” may be considered acceptable medical opinions).
9 The weight given to medical opinions depends in part on whether they are
10 proffered by treating, examining, or non-examining professionals. See Lester v. Chater, 81 F.3d
11 821, 830-31 (9th Cir. 1995). Ordinarily, more weight is given to the opinion of a treating
12 professional, who has a greater opportunity to know and observe the patient as an individual, than
13 the opinion of a non-treating professional. See id.; Smolen v. Chater, 80 F.3d 1273, 1285 (9th
14 Cir. 1996); Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987). The least weight is given to the
15 opinion of a non-examining professional. See Pitzer v. Sullivan, 908 F.2d 502, 506 & n.4 (9th
16 Cir. 1990).
17 In addition to considering its source, to evaluate whether the Commissioner
18 properly rejected a medical opinion the court considers whether: (1) contradictory opinions are in
19 the record; and (2) clinical findings support the opinions. The Commissioner may reject an
20 uncontradicted opinion of a treating or examining medical professional only for “clear and
21 convincing” reasons supported by substantial evidence in the record. See Lester, 81 F.3d at 831.
22 While a treating professional’s opinion generally is accorded superior weight, if it is contradicted
23 by an examining professional’s opinion which is supported by different independent clinical
24 findings, the Commissioner may resolve the conflict. See Andrews v. Shalala, 53 F.3d 1035,
25 1041 (9th Cir. 1995).
26 / / /
27 / / /
28 / / /
1 A contradicted opinion of a treating or examining professional may be rejected
2 only for “specific and legitimate” reasons supported by substantial evidence. See Lester, 81 F.3d
3 at 830. This test is met if the Commissioner sets out a detailed and thorough summary of the
4 facts and conflicting clinical evidence, states her interpretation of the evidence, and makes a
5 finding. See Magallanes v. Bowen, 881 F.2d 747, 751-55 (9th Cir. 1989). Absent specific and
6 legitimate reasons, the Commissioner must defer to the opinion of a treating or examining
7 professional. See Lester, 81 F.3d at 830-31. The opinion of a non-examining professional,
8 without other evidence, is insufficient to reject the opinion of a treating or examining
9 professional. See id. at 831. In any event, the Commissioner need not give weight to any
10 conclusory opinion supported by minimal clinical findings. See Meanel v. Apfel, 172 F.3d 1111,
11 1113 (9th Cir. 1999) (rejecting treating physician’s conclusory, minimally supported opinion); see
12 also Magallanes, 881 F.2d at 751.
13 At Step 4 of the sequential evaluation, the ALJ considered the medical opinions of
14 record. See CAR 352-53. Specifically, the ALJ discussed opinions provided by: (1) agency
15 examining physician, Dr. Bermudez; (2) agency examining physician, Dr. Schwartz; (3) treating
16 chiropractor, Dr. Elder; and (4) agency reviewing physicians, Drs. Whaley and Sheehy. See id.
17 The ALJ rejected the agency reviewing doctors’ opinion that plaintiff has no severe physical
18 impairments or limitations. See id. at 353. The ALJ also rejected the opinions offered by
19 plaintiff’s treating chiropractor because it was based on only one treatment visit. See id. at 352-
20 53. The ALJ rejected Dr. Schwartz’ opinion, finding it unsupported by objective findings. See
21 id. at 352. Finally, the ALJ gave Dr. Bermudez’ opinion “partial weight.” Id.
22 According to plaintiff: “the ALJ rejected every examining opinion in the record
23 and acted as his own medical expert warranting remand.” ECF No. 16, pg. 14. Plaintiff adds:
24 “Rather than properly evaluating the two sole opinions in the record, the ALJ acted as his own
25 physician and adopted a residual functional capacity not opined by any examining or
26 nonexamining physician in the record.” Id. at 17.
27 / / /
28 / / /
1 At the outset, the Court notes that plaintiff is in error in stating the ALJ rejected
2 every examining opinion. While the ALJ did not fully adopt any of the opinions rendered by the
3 examining and non-examining professionals, the ALJ did give “partial weight” to the opinion of
4 Dr. Bermudez’ opinion, who examined plaintiff. The Court also rejects plaintiff’s suggestion that
5 the record contains “two sole opinions.” As outlined above, the ALJ considered medical opinions
6 from five sources – Drs. Schwartz and Bermudez, Dr. Elder, and two non-examining doctors.
7 The hearing decision reflects that the ALJ considered all of these opinions. Finally, the Court
8 rejects plaintiff’s suggestion the ALJ may not rely solely on opinions provided by non-examining
9 or non-treating professionals. See Thomas v. Barnhart, 278 F.3d at 957 (holding that the opinions
10 of non-examining professionals constitute substantial evidence when the opinions are consistent
11 with independent clinical findings or other evidence in the record).
12 The gravamen of plaintiff’s argument is that the ALJ acted as his own medical
13 expert “[r]ather than properly evaluating” the opinions offered by what plaintiff mischaracterizes
14 as the “two sole sources” of examining opinions – Drs. Bermudez and Schwartz.
15 As to Dr. Bermudez, the ALJ stated:
16 . . .After evaluating the claimant in 2012, Dr. Rita Bermudez, the State
Agency consultative examiner, opined (2F/5):
17
“Mr. Torres has a history of back pain that is primarily noted with
18 bending, prolonged weight bearing and lifting. He also has right
groin pain with lifting. He would improve if he could have his
19 right inguinal hernia repaired. However, he has no health
insurance for this. Sitting should be limited to 5 hours
20 intermittently in an 8-hour day. He needs a cushioned chair in
order to avoid pain over the tailbone. Walking and standing are
21 restricted to 3 hours in an 8-hour day. He should avoid cold
environments. He can reach, handle, finger and feel with
22 restrictions limiting prolonged repetitive forceful pushing and
pulling to less than 50 pounds and on an occasional basis. Driving
23 should be limited to 4 hours intermittently in an 8-hour day. He
can lift up to 30 pounds occasionally and 15 pounds frequently.
24 He should avoid climbing stairs, ladders or scaffolds. He can
operate foot controls. Bending, squatting and kneeling are limited
25 to occasional.”
26 I gave that opinion only partial weight noting that Dr. Bermudez found the
claimant to have 5/5 strength, normal ranges of motion, normal reflexes,
27 and normal sensation in all extremities (2F). During exams, the claimant
was able to climb on and off the exam table without difficulty and moved
28 from sit to supine and back without difficulty (2F, 5F). He was able to
1 walk without difficulty, do a full squat, sit comfortable during exams, and
stand on his toes and heels (2F, 5F).
2
CAR 352.
3
4 Plaintiff argues:
5 In this case, Dr. Rita Bermudez, performed a consultative
examination at the request of the Department of Rehabilitation on
6 September 18, 2012, and found Torres capable of, what appears to be a
“sedentary” to “light” range of work. AR 318. Social Security Ruling 83-
7 10. Dr. Bermudez limited Torres sitting to five hours intermittently a day
with a cushioned seat, walking and standing to three hours in a day, lifting
8 up to 30 pounds occasionally and 15 frequently, with no ladders and
scaffolds and occasional bending, squatting and kneeling. AR 318.
9 The ALJ rejected Dr. Bermudez’ examining opinion stating that
Torres had 5/5 strength, normal ranges of motion normal reflexes and
10 normal sensation in all extremities and was able to climb on and off the
exam table without difficulty in both Dr. Bermudez exam and Dr.
11 Schwartz. AR 352. The ALJ’s rationale is without merit. The fact that Mr.
Torres can get on and off of an examination table and does not have
12 reduced strength does not discredit Dr. Bermudez’ well educated and
medically reasoned opinion nor the objective findings that the ALJ
13 ignored.
Dr. Bermudez also noted positive Phalen’s sign bilaterally in his
14 wrists, mild tenderness in the cervical muscles but trigger points in the
right trapezius, mild crepitus in the neck, the lumbar spine was tender with
15 a palpable lump on the right groin, increased pain with range of motion of
the back, and crepitus in his knees in a squat. AR 315-317. Dr. Bermudez
16 diagnosed Torres with mechanical low back pain, right inguinal hernia,
frequent headaches due to myofascial pain syndrome, probably bilateral
17 degenerative joint disease of the knees, probably bilateral carpal tunnel
syndrome, and coccydynia. AR 318.
18 The Commissioner cannot simply ignore those portions of an
opinion that do not fit the predetermined conclusion. does not have to
19 discuss all of the evidence presented to her. The Commissioner has
isolated a specific quantum of evidence and has ignored other relevant
20 evidence to support of his determination warranting reversal. Gallant v.
Heckler, 753 F.2d 1450, 1455 (9th Cir. 1984). See also, Vincent on Behalf
21 of Vincent v. Heckler, 739F.2d 1393, 194-95 (9th Cir. 1984) (the
Commissioner must explain why “significant probative evidence has been
22 rejected.”) It is the objective findings that the ALJ ignored that gave
weight to the more limited opinion offered by Dr. Bermudez.
23
ECF No. 16, pgs. 14-15.
24
25 As to Dr. Schwartz, the ALJ stated:
26 When evaluated afterward, Dr. Jonathan Schwartz, the State Agency
consultative examiner, opined that the claimant could lift 20 pounds
27 occasionally and 10 pounds frequently; stand/walk for 6 hours; frequently
kneel/crouch/crawl and had no added limitations (5F). After considering
28 this opinion, I found it to be based largely on the claimant’s subjective
1 reports and not supported by the objective medical evidence, which
showed normal strength in all extremities, normal gait/sensation, and
2 normal senses/reflexes.
3 Id.
4 According to plaintiff:
5 Likewise, the ALJ rejected the agencies own consultative
examiner, Dr. Jonathan Schwartz, who opined Torres was limited to light
6 exertional work, slightly less limited than Dr. Bermudez, the ALJ states he
finds “it to be based largely on the claimants subjective reports and not
7 supported by the objective medical evidence which showed normal
strength in all extremities normal gait/station and normal senses/reflexes.”
8 AR 352. Again, the ALJ is looking only to the normal strength senses and
reflexes and ignoring the swelling in the anterior groin (the hernia), and
9 crepitus of the right knee or the x-rays of the lumbar spine showing
anterior wedging deformity of the L1 vertebra, posterior subluxation at
10 L3-L4, and degenerative disc disease L3-L4 through L5-S1 and x-ray of
the left knee showing a subchondral cyst. AR 326-329. Again, the ALJ is
11 looking to only what he wishes to see in Dr. Schwartz report and the
longitudinal record. The ALJ ignores the objective evidence of the open
12 right inguinal hernia repair with mesh performed on December 11, 2013,
that precluded his ability to lift or climb ladders because of the hernia. AR
13 599-601. Dr. Schwartz’ opinion was just 9 months before the hernia was
repaired and hernias are aggravated by lifting. It is not only a reduced
14 range of motion, strength or sensation that warrants limitation. In addition,
subsequent x-rays showed “advanced osteoarthritis of the lower lumbar
15 spine” and chronic anterior wedging “most advanced in the lumbar spine,
characterized by intervertebral disc space narrowing, osteophyte
16 formation, vacuum disc phenomenon, and facet arthropathy.” (Emphasis
Added) AR 611. An MRI dated April 11, 2018, showed mild to moderate
17 degenerative changes at both hips and a small fat containing left inguinal
hernia. AR 606. This was after the hernia had already been repaired.
18
ECF No. 16, pg. 16.
19
20 Here, the ALJ partially accepted Dr. Bermudez’ opinion and rejected Dr.
21 Schwartz’ opinion, finding them inconsistent with the doctors’ own observations on
22 examination. The Court disagrees with plaintiff that the ALJ acted as his own medical
23 expert. To the contrary, the opinions offered by Drs. Bermudez and Schwartz were
24 contradicted by those offered by other medical professionals. Specifically, the agency
25 reviewing doctors both found that plaintiff has no severe impairments at all. The ALJ is
26 permitted to resolve such a conflict and did so by rejecting the agency reviewing doctors’
27 opinions, rejecting Dr. Schwartz’ opinion, and partially accepting Dr. Bermudez’
28 opinion. Moreover, the ALJ did so by relying on a valid reason – objective findings on
1 examination that are inconsistent with the level of limitation opined.
2 B. Duty to Develop the Record
3 The ALJ has an independent duty to fully and fairly develop the record and assure
4 the claimant’s interests are considered. See Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir.
5 2001). When the claimant is not represented by counsel, this duty requires the ALJ to be
6 especially diligent in seeking all relevant facts. See id. This requires the ALJ to “scrupulously
7 and conscientiously probe into, inquire of, and explore for all the relevant facts.” Cox v.
8 Califano, 587 F.2d 988, 991 (9th Cir. 1978). Ambiguous evidence or the ALJ’s own finding that
9 the record is inadequate triggers this duty. See Tonapetyan, 242 F.3d at 1150. The ALJ may
10 discharge the duty to develop the record by subpoenaing the claimant’s physicians, submitting
11 questions to the claimant’s physicians, continuing the hearing, or keeping the record open after
12 the hearing to allow for supplementation of the record. See id. (citing Tidwell v. Apfel, 161 F.3d
13 599, 602 (9th Cir. 1998)).
14 Plaintiff appears to argue that the ALJ failed to discharge the Commissioner’s duty
15 to develop the record. According to plaintiff:
16 If the ALJ did not believe the consultative examinations were
sufficient, the ALJ could have subpoenaed the physicians; submitted
17 questions to physicians; continued the hearing; or kept the record open.
Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir. 1998). The ALJ could have
18 ordered a consultative examination. 20 C.F.R. §§ 404.1517; 416.917. The
ALJ could have adduced testimony from a medical expert at the hearing.
19 20 C.F.R. §§ 404.936(c)(2); 416.1436(c)(2). See Tonapetyan v. Halter,
242 F.3d 1144, 1150 (9th Cir. 2001) (“The ALJ may discharge this duty
20 [to develop the record] in several ways, including: subpoenaing the
claimant's physicians, submitting questions to the claimant's physicians,
21 continuing the hearing, or keeping the record open after the hearing to
allow supplementation of the record”). The ALJ did none of these things.
22
ECF No. 16, pg. 18.
23
24 Plaintiff’s argument is unpersuasive because it is based on a premise that is not
25 supported by the hearing decision. Plaintiff speculates “if” the ALJ did not find the opinions of
26 Drs. Bermudez and Schwartz “sufficient,” the ALJ should have developed the record further. A
27 review of the hearing decision, however, reflects that the ALJ did not find the doctors’ opinions
28 insufficient. Nor did the ALJ specifically find the evidence to be inadequate.
1 Further, the Court finds that the evidence is not ambiguous. While the various
2 opinions are contradictory and, thus, subject to the ALJ’s interpretation to resolve the conflict,
3 none of the opinions themselves are ambiguous or otherwise unclear. Each of the doctors
4 rendered clear and concise opinions. Simply because various opinions present a conflict does not
5 mean any particular opinion is ambiguous such as would trigger the Commissioner’s duty to
6 develop the record.
7 C. Credibility
8 The Commissioner determines whether a disability applicant is credible, and the
9 court defers to the Commissioner’s discretion if the Commissioner used the proper process and
10 provided proper reasons. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996). An explicit
11 credibility finding must be supported by specific, cogent reasons. See Rashad v. Sullivan, 903
12 F.2d 1229, 1231 (9th Cir. 1990). General findings are insufficient. See Lester v. Chater, 81 F.3d
13 821, 834 (9th Cir. 1995). Rather, the Commissioner must identify what testimony is not credible
14 and what evidence undermines the testimony. See id. Moreover, unless there is affirmative
15 evidence in the record of malingering, the Commissioner’s reasons for rejecting testimony as not
16 credible must be “clear and convincing.” See id.; see also Carmickle v. Commissioner, 533 F.3d
17 1155, 1160 (9th Cir. 2008) (citing Lingenfelter v Astrue, 504 F.3d 1028, 1936 (9th Cir. 2007),
18 and Gregor v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006)).
19 If there is objective medical evidence of an underlying impairment, the
20 Commissioner may not discredit a claimant’s testimony as to the severity of symptoms merely
21 because they are unsupported by objective medical evidence. See Bunnell v. Sullivan, 947 F.2d
22 341, 347-48 (9th Cir. 1991) (en banc). As the Ninth Circuit explained in Smolen v. Chater:
23 The claimant need not produce objective medical evidence of the
[symptom] itself, or the severity thereof. Nor must the claimant produce
24 objective medical evidence of the causal relationship between the
medically determinable impairment and the symptom. By requiring that
25 the medical impairment “could reasonably be expected to produce” pain or
another symptom, the Cotton test requires only that the causal relationship
26 be a reasonable inference, not a medically proven phenomenon.
27 80 F.3d 1273, 1282 (9th Cir. 1996) (referring to the test established in
Cotton v. Bowen, 799 F.2d 1403 (9th Cir. 1986)).
28
1 The Commissioner may, however, consider the nature of the symptoms alleged,
2 including aggravating factors, medication, treatment, and functional restrictions. See Bunnell,
3 947 F.2d at 345-47. In weighing credibility, the Commissioner may also consider: (1) the
4 claimant’s reputation for truthfulness, prior inconsistent statements, or other inconsistent
5 testimony; (2) unexplained or inadequately explained failure to seek treatment or to follow a
6 prescribed course of treatment; (3) the claimant’s daily activities; (4) work records; and (5)
7 physician and third-party testimony about the nature, severity, and effect of symptoms. See
8 Smolen, 80 F.3d at 1284 (citations omitted). It is also appropriate to consider whether the
9 claimant cooperated during physical examinations or provided conflicting statements concerning
10 drug and/or alcohol use. See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). If the
11 claimant testifies as to symptoms greater than would normally be produced by a given
12 impairment, the ALJ may disbelieve that testimony provided specific findings are made. See
13 Carmickle, 533 F.3d at 1161 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)).
14 Regarding reliance on a claimant’s daily activities to find testimony of disabling
15 pain not credible, the Social Security Act does not require that disability claimants be utterly
16 incapacitated. See Fair v. Bowen, 885 F.2d 597, 602 (9th Cir. 1989). The Ninth Circuit has
17 repeatedly held that the “. . . mere fact that a plaintiff has carried out certain daily activities . . .
18 does not . . .[necessarily] detract from her credibility as to her overall disability.” See Orn v.
19 Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (quoting Vertigan v. Heller, 260 F.3d 1044, 1050 (9th
20 Cir. 2001)); see also Howard v. Heckler, 782 F.2d 1484, 1488 (9th Cir. 1986) (observing that a
21 claim of pain-induced disability is not necessarily gainsaid by a capacity to engage in periodic
22 restricted travel); Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (concluding that the
23 claimant was entitled to benefits based on constant leg and back pain despite the claimant’s
24 ability to cook meals and wash dishes); Fair, 885 F.2d at 603 (observing that “many home
25 activities are not easily transferable to what may be the more grueling environment of the
26 workplace, where it might be impossible to periodically rest or take medication”). Daily
27 activities must be such that they show that the claimant is “. . .able to spend a substantial part of
28 his day engaged in pursuits involving the performance of physical functions that are transferable
1 to a work setting.” Fair, 885 F.2d at 603. The ALJ must make specific findings in this regard
2 before relying on daily activities to find a claimant’s pain testimony not credible. See Burch v.
3 Barnhart, 400 F.3d 676, 681 (9th Cir. 2005).
4 At Step 4, the ALJ evaluated the credibility of plaintiff’s statements and testimony.
5 See ECF No. 351-54. The ALJ summarized plaintiff’s statements and testimony as follows:
6 The claimant alleges that he is unable to work due to a bad back,
depression, anxiety, learning difficulty, difficulties with spelling and
7 reading, bad knees, arm/elbow numbness, mood swings, anger issues,
appetite loss, and a hernia (2E). During the hearing held in September
8 2014, the claimant testified that he could walk 2 blocks, sit for 1 hour,
stand for 3 hours, and had no problems using his hands or reaching. He
9 testified that he went out to eat and for movies, and that he was able to
cook, clean, do laundry, and grocery shopping.
10
CAR 351.
11
The ALJ found plaintiff’s allegations partially credible: “These statements have
12
been found to affect the claimant’s ability to work only to the extent they can reasonably be
13
accepted as consistent with the objective medical and other evidence.” Id. The ALJ added:
14
The evidence shows that the claimant has exertional and postural
15 limitations due to lumbar degenerative disc disease, osteoarthritis of the
lumbar spine, bilateral hip degenerative changes, an status post inguinal
16 hernia repair. The record shows that the claimant’s back pain significantly
pre-dates his amended onset date. When treated in 2011, he was
17 undergoing chiropractic care for chronic low back pain and was noted to
have spinal pain “over the past 20 years” (1F/3). This would indicate that
18 he has managed to work and engage in substantial gainful activity for
years despite his back pain. Lumbar x-rays done in 2013, showed
19 degenerative disc disease at L3/4 through L5/S1, a wedge deformity of L1
that was likely developmental, and posterior subluxation at L3/4 (5F, 7F).
20 Straight leg raising test were [sic] negative (5F). August 2015 lumbar x-
rays revealed no acute fracture of the lumbar spine and advanced
21 osteoarthritis of the lower lumbar spine (Ex. 11F/1). The claimant
complained of pain and received Naproxen for pain. He was discharged
22 with instructions to follow-up with his PCP (Ex. 11F/5-6). It was not until
2018 when MRI testing showed the claimant has mild to moderate
23 degenerative changes in his hips (9F). During his consultative exams, the
claimant was also noted to have swelling due to an inguinal hernia (2F,
24 5F). He later underwent surgery to repair the hernia in December 2013
(8F). Later MRI testing showed a status post right inguinal hernia repair
25 and a small fat containing left inguinal hernia, but there is otherwise no
mention of problems or treatments for this condition (7F, 8F).
26
The claimant also has manipulative limitations due to “probable bilateral
27 carpal tunnel syndrome” (2F). The record shows that the claimant was
diagnosed with this condition in 2012, when he had positive Phalen’s (2F).
28 Despite that, Tinel’s testing was negative and there was no tenderness over
1 the wrists or digits (2F). His grip strength is 45/42 pounds on the right and
63/60 pounds on the left (2F). When reevaluated in 2013, there was no
2 mention of carpal tunnel syndrome, he had 5/5 grip strength, normal
reflexes, and normal sensation in the upper extremities (5F). In light of
3 the claimant’s complaints and reports about carpal tunnel syndrome, one
would have expected to see some EMG/NCS studies or further objective
4 testing for this condition.
5 CAR 351-52.
6 After considering the medical opinion evidence, the ALJ provided the following
7 analysis of the credibility of plaintiff’s statements and testimony in light of the record:
8 When making this assessment, I noted several inconsistencies regarding
the claimant’s allegations and the evidence. Overall, the claimant has not
9 generally received the type of medical treatment one would expect for a
totally disabled individual. While the claimant testified that his conditions
10 have worsened significantly, there is little objective support for those
allegations. There is very little treatment history in the file since the
11 original hearing. What treatments there are, are essentially routine and/or
conservative in nature. The claimant did undergo surgery for his hernia,
12 and it appears that the surgery was generally successful in relieving the
symptoms as there are few reports of problems/symptoms afterward.
13 While the claimant reported chronic pain when treated in 2015, his exams
were generally unremarkable at times (7F). While he has some pain and
14 range of motion deficits during exams, claimant’s strength, range of
motion, gait/station, neurological exams, and reflexes are also repeatedly
15 found to be within normal limits (2F, 5F, 7F).
16 Functionally, the claimant’s activities are generally consistent with a
medium exertional level. There are also several inconsistencies in the
17 claimant’s allegations. While the claimant initially reported that he has
not worked since November 2007, he was self-employed after that time
18 (2E, 15D). When treated in 2011, he listed self-employment as his current
or last work and his earnings records show self-employment income after
19 that time (1F). He reported that he was a mechanic and described it as
being very heavy work (1F). His hobbies include restoring old cars (5F).
20 At times, he reports he is able to life 25 pounds, walk for 30 to 60 minutes,
and sit for an hour (2F). The record notes that the claimant is able to do
21 laundry, wash dishes, vacuum, sweep, rake leaves, and do yard work (6E,
8E). In 2013, he reported that he drove, grocery shopped, cooked, and had
22 no problems with caring for his personal needs or managing his finances
(8E).
23
CAR 353-54.
24
25 The ALJ concluded: “[W]hile the record clearly shows that the claimant has some work related
26 limitations, it fails to establish that these limitations would preclude the ability to perform
27 substantial gainful activity. . . .” Id. at 354.
28 / / /
1 According to plaintiff: “The ALJ failed to assess Torres’ testimony consistent with
2 light work.” ECF No. 16, pg. 19. Plaintiff argues:
3 The ALJ rejected Torres’ testimony stating that Torres has not
generally received the type of medical treatment one would expect for a
4 totally disabled individual noting very little treatment. AR 353. Torres
testified that he had no insurance and was unable to obtain care. AR 62,
5 368. The record consistently noted the same. AR 296, 307, 318, 491, 592,
593, 596. The ALJ’s discrediting of Torres for an inability to afford care is
6 without merit. Gamble v. Chater 68 F.3d 319, 321 (9th Cir. 1995) ("it flies
in the face of the patent purposes of the Social Security Act to deny
7 benefits to someone who is too poor to seek treatment.") The ALJ’s failure
to address this issue warrants reversal.
8 The ALJ further reasons that there is little objective support. AR
353. The ALJ notes that while Enriquez has some pain and range of
9 motion deficits during exams, his strength ranges of motion gait/station
neurological exams and reflexes are also repeatedly found to be within
10 normal limits. AR 353. Again, the fact that one’s motion, gait and
neurological exam is not dire, may be indicative that the condition is not
11 of listing level severity, it is not evidence that Torres is not as limited as he
states nor does it discount the opinions of the doctors in this record. Dr.
12 Schwartz and Dr. Bermudez both noted some objective findings ignored
by the ALJ, and, in their professional opinion, limited Torres to, at the
13 very least, light exertional work. AR 318, 327. The ALJ also fails to note
the effects of the hernia before and after repair. It is not only a reduced
14 range of motion, strength or sensation that warrants limitation. Torres
record contains x-rays showing “advanced osteoarthritis of the lower
15 lumbar spine” and chronic anterior wedging “most advanced in the lumbar
spine, characterized by intervertebral disc space narrowing, osteophyte
16 formation, vacuum disc phenomenon, and facet arthropathy.” (Emphasis
Added) AR 611. An MRI dated April 11, 2018, showed mild to moderate
17 degenerative changes at both hips and a small fat containing left inguinal
hernia. AR 606. This was after the hernia had already been repaired. The
18 record is not inconsistent with Torres testimony of greater limitations or,
more importantly, the light range of work at the very least. The record
19 indicates that he can no longer do his past work due to his injuries
repeatedly. AR 303, 306, 594, 599. It is without reason that the ALJ
20 rejects Torres testimony based upon the medical record when both
physician’s opinion are more consistent with Torres’ testimony than the
21 findings of the ALJ.
The ALJ lastly reasons that Torres activities are generally
22 consistent with a medium exertional level. AR 353. The ALJ reasons that
while Torres initially reported that he had not worked since November 15,
23 2007, he was self-employed after that time. AR 353. On Torres
application, he listed his onset date as November 15, 2007. AR 178.
24 Consistently, his earning record shows that his last year of substantial
gainful activity with earnings of $28,228.24 was in 2007. AR 195. Torres
25 earnings thereafter were $1,414.00 in 2008, $1,669.50 in 2010, and $2,815
in 2012. AR 195. He filed his application in 2012. AR 178. The remand
26 record showed an additional $1,516.00 in 2013. None of these earnings are
even close to substantial gainful activity. 20 C.F.R. 404.1574; POMS DI
27 10501.015. A willingness to try to engage in rehabilitative activity and a
release by one's doctor to engage in such an attempt is clearly not
28 probative of a present ability to engage in such activity. The distinction
1 between attempt and ability is recognized by both the statute, 42 U.S.C. §
422(c), and the regulations, 20 C.F.R. § 404.1536(a), which provide that
2 work performed by a disabled worker during a trial period shall not be
considered as evidence of whether that worker's disability ceased during
3 such period. Social Security Ruling 84-25. See also Cox v. Califano, 587
F.2d 988 (9th Cir. 1978).
4 The ALJ also states that when treated in 2011, Torres listed self-
employment as his current or last work and his earnings records show self-
5 employment income after that time. The income post 2007 is noted above;
however, at Exhibit 1F, the EDD application for state disability in 2011
6 and 2007 both list the onset date as 2007. AR 311-313. The form requires
a return to work date; however, that is not a medical opinion. AR 313. The
7 other reports therein indicate that he “was working but ever since 2007 he
has been unable to work.” AR 303, 306.
8 The ALJ states that he reported that he was a mechanic and
described it as being very heavy work. AR 354. This is true before 2007 as
9 he was a mechanic on large laundry machines. The ALJ further cites the
consultative examiner statement that his hobby is restoring old cars. AR
10 324. The statement in isolation has no evidentiary value. We do not know
what he is doing regarding restoration at all. The ALJ did not inquire at
11 all. The ALJ asked:
12 Q I m talking more in terms of fun things. What have you
13 stopped doing that’s enjoyable hobbies interests activities?
14 A Mostly my hobby was just to be restoring old cars so I
can’t really.
15
(Emphasis Added). AR 56. The ALJ asked no more. Mrs. Torres stated he
16 used work on cars for a hobby but does no longer. AR 231. This is
insufficient rationale to reject Torres testimony.
17 Once the ALJ perceives a discrepancy, the ALJ should explain the
significance of the discrepancy. See Shah v. INS, 220 F.3d 1062, 1068 (9th
18 Cir. 2000). Once a perceived inconsistency between the written record and
the oral testimony arises, the ALJ must confront the claimant with the
19 inconsistency and if an explanation is made address that explanation. See
Soto-Olarte v. Holder, 555 F.3d 1089, 1092 (9th Cir. 2009). “It’s true that
20 an adverse credibility finding must be based on more than an innocent
mistake, but [t]he concern underlying each of our decisions in this arena
21 has been to avoid premising an adverse credibility finding on an
applicant’s failure to remember non-material, trivial details…” Kaur v.
22 Gonzales, 418 F.3d 1061, 1064 (9th Cir. 2005). There is no deceit
involved. See Singh v. Holder, 643 F.3d 1178, 1181 (9th Cir. 2011).
23 The fact that Torres can take his grandchild to school or do a few
chores around the house “able to do laundry, wash dishes, vacuum, sweep,
24 rake leaves and do yard work” is not equivalent to performing the medium
range of work eight hours a day, five days a week. AR 354. The ALJ cites
25 the function reports but therein it indicates that he had to take breaks and
does not finish the task. AR 233, 239, 245. None of the activities reflected
26 in the record would exceed the limitations identified by Torres or be
equivalent to medium work activity on a full-time consistent basis.
27 Remember that this case is about the inability to perform his past work
and Torres is entitled to disability at light exertional work. 20 C.F.R. Pt.
28 404, Subpt. P, App. 2, Rule 202.02.
1 “‘Disability does not mean that a claimant must vegetate in a dark
room excluded from all forms of human and social activity.’” Cooper v.
2 Bowen, 815 F.2d 557, 561 (9th Cir.1987) (quoting Smith v. Califano, 637
F.2d 968, 971 (3rd Cir.1981)). See also Fair v. Bowen, 885 F.2d at 603
3 (noting that “many home activities are not easily transferable to what may
be the more grueling environment of the workplace”) cited by Vertigan v.
4 Halter, 260 F.3d 1044, 1049 (9th Cir. 1991). Simply put, evidence that a
claimant can participate in basic human function “is not determinative of
5 disability.” Magallanes v. Bowen, 881 F.2d 747, 756 (9th Cir.1989). See
also Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th Cir. 1990) (ALJ erred
6 in failing to make a "finding to the effect that the ability to perform those
daily activities translated into the ability to perform appropriate work"). In
7 this case, the ALJ did not rely on either of the permissible methods upon
which an ALJ may rely on the performance of activities of daily living.
8 The ALJ merely relied on the performance of the activities themselves,
which is not enough.
9
ECF No. 16, pgs. 20-24.
10
11 Here, the ALJ cited four reasons for rejecting plaintiff’s statements and testimony
12 as not fully credible. First, the ALJ noted a lack of aggressive medical treatment despite
13 allegedly disabling symptoms. Second, the ALJ cited plaintiff’s work history after the alleged
14 onset date. Third, the ALJ determined there was “little objective support” for plaintiff’s
15 allegations of worsening symptoms. Fourth, the ALJ found plaintiff’s reported daily activities to
16 be inconsistent with allegations of disabling symptoms. The Court discusses each in turn.
17 1. Lack of Aggressive Treatment
18 The ALJ found: “Overall, the claimant has not generally received the type of
19 medical treatment one would expect for a totally disabled individual.” CAR 353. According to
20 plaintiff, who states “he had no insurance,” the ALJ erred by discrediting his testimony for “an
21 inability to afford care.” ECF No. 16, pg. 20. The Court disagrees with Plaintiff’s
22 characterization. The ALJ did not, contrary to plaintiff’s suggestion, find plaintiff’s testimony
23 and statements not credible due to a complete lack of treatment explained by a lack of insurance.
24 Here, the ALJ determined that what treatment plaintiff did seek and receive was conservative in
25 nature. Specifically, the ALJ stated: “What treatments there are, are essentially routine and/or
26 conservative in nature.” CAR 353. Plaintiff points to no evidence in the record to show
27 otherwise.
28 / / /
1 2. Work History
2 The ALJ noted:
3 . . .While the claimant initially reported that he has not worked since
November 2007, he was self-employed after that time (2E, 15D). When
4 treated in 2011, he listed self-employment as his current or last work and
his earnings records show self-employment income after that time (1F).
5 He reported that he was a mechanic and described it as being very heavy
work (1F). . . .
6
CAR 353.
7
8 Plaintiff argues the ALJ erred by citing plaintiff’s work history because hist post-onset-date
9 earning were not at the substantial gainful level and his state unemployment file indicates plaintiff
10 reported “. . .ever since 2007 he has been unable to work.” ECF No. 16, pg. 22 (referencing CAR
11 303 and 306).
12 Plaintiff’s argument is not persuasive. Plaintiff has alleged he became unable to
13 work due to disability in November 2007. As plaintiff acknowledges in his brief: “Torres
14 earnings thereafter were $1,414.00 in 2008, $1,669.50 in 2010, and $2,815 in 2012.” Id.
15 (referring to CAR 195). Despite not being at the substantial gainful level, plaintiff’s ability to
16 work at any earning level after the alleged onset date of disability undermines his credibility.
17 Moreover, plaintiff’s credibility is further undermined because, despite admitting to earnings
18 from work in 2008, 2010, and 2012, plaintiff reported to the state unemployment agency that he
19 has been unable to work since 2007. On this record, the Court finds the ALJ did not err by citing
20 plaintiff’s work history.
21 3. Worsening Symptoms
22 According to the ALJ: “While the claimant testified that his conditions have
23 worsened significantly, there is little objective support for those allegations.” CAR 353. From
24 this, plaintiff concludes “[t]he ALJ further reasons that there is little objective support.” ECF No.
25 ///
26 ///
27 ///
28
1 16, pg. 22. Plaintiff argues such a finding is contradicted by the evidence. Plaintiff’s argument is
2 unpersuasive because it overstates the ALJ’s finding. The ALJ did not, as plaintiff suggests, state
3 that plaintiff’s testimony in total was generally unsupported by objective evidence. Rather, the
4 ALJ concluded that plaintiff’s specific allegation of worsening symptoms was unsupported. In
5 particular, the ALJ noted that, despite plaintiff’s allegation of symptoms which were disabling in
6 2007 and became worse over time, his treatment was conservative and almost non-existent since
7 the original administrative hearing in September 2014. See CAR 353.
8 4. Daily Activities
9 Finally, the ALJ found plaintiff’s reported daily activities are inconsistent with
10 allegations of totally disabling symptoms. Plaintiff contends the ALJ erred by relying on his
11 daily activities without making specific findings as to whether such activities show an ability to
12 engage in work-related tasks on a full-time competitive basis. While the Court agrees with
13 plaintiff that the ALJ did not make specific findings in this regard, and that the record shows his
14 daily activities are somewhat limited, the Court does not agree that the ALJ erred. Specific
15 findings about whether a claimant’s daily activities indicate an ability to engage in full-time work
16 are required when daily activities are the sole factor cited by the ALJ. Where, as here, other
17 factors, discussed above, undermine a claimant’s credibility, specific findings regarding daily
18 activities are not necessary. Put another way, even if the ALJ did err by not providing specific
19 ///
20 ///
21 ///
22 ///
23 ///
24 ///
25 ///
26 ///
27 ///
28
wOAOe 2 LDV VELOSO PI er AY st VI
1 | findings regarding daily activities, any error would be harmless because the overall credibility
2 | analysis remains nonetheless supported by proper reasoning and substantial evidence.
3
4 IV. CONCLUSION
5 Based on the foregoing, the court concludes that the Commissioner’s final decision
6 | is based on substantial evidence and proper legal analysis. Accordingly, IT IS HEREBY
7 | ORDERED that:
8 1. Plaintiff's motion for summary judgment, ECF No. 16, is denied;
9 2. Defendant’s motion for summary judgment, ECF No. 20, is granted;
10 3. The Commissioner’s final decision is affirmed; and
11 4. The Clerk of the Court is directed to enter judgment and close this file.
12
13 | Dated: September 30, 2020 Ssvcqo_
DENNIS M. COTA
15 UNITED STATES MAGISTRATE JUDGE
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