# David Lee Clancy v. Nancy A. Berryhill

> District Court, C.D. California · March 12, 2020

URL: https://www.frixlaw.com/law-library/cases/10037285

## Case

- **Court:** District Court, C.D. California
- **Decided:** March 12, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA-SOUTHERN DIVISION
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DAVID LEE CLANCY, ) Case No. SACV 19-00462-AS
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Plaintiff, ) MEMORANDUM OPINION
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v. )
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ANDREW M. SAUL, Commissioner )
16 of the Social Security )
Administration,1 )
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Defendant. )
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For the reasons discussed below, IT IS HEREBY ORDERED that,
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pursuant to Sentence Four of 42 U.S.C. § 405(g), the Commissioner’s
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decision is affirmed.
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PROCEEDINGS
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On March 8, 2019, David Lee Clancy (“Plaintiff”) filed a Complaint
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seeking review of the denial of his application for disability benefits
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28 1 Andrew M. Saul, the Commissioner of the Social Security
Administration, is substituted for his predecessor. See 42 U.S.C. §
405(g); Fed.R.Civ.P. 25(d).
1 by the Social Security Administration. (Dkt. No. 1). The parties have
2 consented to proceed before the undersigned United States Magistrate
3 Judge. (Dkt. Nos. 11-12). On September 4, 2019, Defendant filed an
4 Answer along with the Administrative Record (“AR”). (Dkt. Nos. 11-12).
5 On December 4, 2019, the parties filed a Joint Stipulation (“Joint
6 Stip.”) setting forth their respective positions regarding Plaintiff’s
7 claims. (Dkt. No. 20).
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9 The Court has taken this matter under submission without oral
10 argument. See C.D. Cal. L.R. 7-15.
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BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION
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14 On October 23, 2014, Plaintiff, formerly employed as a warehouse
15 worker for Nike, Inc., Menlo Worldwide and 3M Dental (see AR 40-45,
16 217-22), filed an application for Disability Insurance Benefits alleging
17 a disability onset date of August 20, 2014.2 (See AR 175-78).
18 Plaintiff’s application was denied, initially on September 4, 2015, and,
19 on reconsideration on January 6, 2016. (See AR 102-06, 108-12).
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21 On January 19, 2018, Plaintiff, represented by counsel, testified
22 at a hearing before Administrative Law Judge Susanne M. Cichanowicz
23 (“ALJ”). The ALJ also heard testimony from vocational expert Alan
24 Boroskin (“VE”). (See AR 35-73). On March 6, 2018, the ALJ issued a
25 decision denying Plaintiff’s request for benefits. (See AR 15-26).
26 Applying the five-step sequential process, the ALJ found at step one
27 that Plaintiff had not engaged in substantial gainful activity since May
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2 The Administrative Law Judge’s decision states May 28, 2013 as
the onset date of disability.
1 28, 2013. (AR 17). At step two, the ALJ determined that Plaintiff had
2 the following severe impairments: degenerative disc disease, adhesive
3 capsulitis of the left shoulder, and diabetes mellitus. (AR 17-18).3
4 At step three, the ALJ determined that Plaintiff did not have an
5 impairment or combination of impairments that met or medically equaled
6 the severity of any of the listed impairments in the regulations. (AR
7 19).
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9 The ALJ then found that Plaintiff had the residual functional
10 capacity (“RFC”)4 to perform light work5 with the following limitations:
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12 [Plaintiff] can lift and/or carry 20 pounds occasionally and
13 10 pounds frequently; can stand and/or walk for 6 hours out of
14 an 8-hour workday with regular breaks; can sit for 6 hours out
15 of an 8-hour workday with regular breaks; cannot climb
16 ladders, ropes, or scaffolds; can occasionally balance, kneel,
17 stoop, crouch, and crawl; can frequently reach below shoulder
18 level with the bilateral upper extremity; can occasionally
19 tolerate exposure to uneven terrain and hazards, such as
20 unprotected heights and moving mechanical parts; and avoid
21 exposure to extreme cold, humidity and wetness.
22 (AR 19-34)
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24 3 The ALJ found that Plaintiff’s other impairments --
hypertension, obesity, and depression -- were nonsevere. (AR 18-19).
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4 A Residual Functional Capacity is what a claimant can still do
26 despite existing exertional and nonexertional limitations. See 20
C.F.R. § 404.1545(a)(1).
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5 “Light work involves lifting no more than 20 pounds at a time
28 with frequent lifting or carrying of objects weighing up to 10 pounds.”
20 C.F.R. § 404.1567(b).
1 At step four, the ALJ found that Plaintiff was able to perform past
2 relevant work as a warehouse lead and as a dental machine operator, as
3 actually performed and generally performed, considering Plaintiff’s age,
4 education, work experience and RFC (AR 24), and therefore found that
5 Plaintiff was not disabled within the meaning of the Social Security
6 Act. (AR 26). Alternatively, at step five, the ALJ determined, based
7 on Plaintiff’s age, education, experience, RFC, and the VE’s testimony,
8 that there are jobs that exist in significant numbers in the national
9 economy that Plaintiff can also perform (AR 24-26). Accordingly, the
10 ALJ found that Plaintiff had not been under a disability as defined in
11 the Social Security Act from the alleged disability onset date to the
12 date of the decision. (AR 26).
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14 The Appeals Council denied Plaintiff’s request for review on
15 January 14, 2019. (See AR 1-4). Plaintiff now seeks judicial review of
16 the ALJ’s decision, which stands as the final decision of the
17 Commissioner. See 42 U.S.C. §§ 405(g), 1383(c).
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STANDARD OF REVIEW
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This Court reviews the Commissioner’s decision to determine if it
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is free of legal error and supported by substantial evidence. See
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Brewes v. Comm’r, 682 F.3d 1157, 1161 (9th Cir. 2012). “Substantial
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evidence” is more than a mere scintilla, but less than a preponderance.
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Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). “It means such
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relevant evidence as a reasonable mind might accept as adequate to
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support a conclusion.” Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir.
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1 2017). To determine whether substantial evidence supports a finding,
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“a court must consider the record as a whole, weighing both evidence
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that supports and evidence that detracts from the [Commissioner’s]
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conclusion.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir.
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2001)(internal quotation omitted). As a result, “[i]f the evidence can
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support either affirming or reversing the ALJ’s conclusion, [a court]
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may not substitute [its] judgment for that of the ALJ.” Robbins v. Soc.
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Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006).6
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PLAINTIFF’S CONTENTIONS
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Plaintiff contends that the ALJ erred in failing to properly: (1)
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evaluate the opinions of Plaintiff’s treating physician, the examining
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physician, and/or the reviewing physician; and (2) evaluate Plaintiff’s
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subjective symptom testimony. (See Joint Stip. at 2-5, 11-14, 19).
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DISCUSSION
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After consideration of the record as a whole, the Court finds that
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the Commissioner’s findings are supported by substantial evidence and
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are free from legal error.
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//
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//
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//
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6 The harmless error rule applies to the review of
27 administrative decisions regarding disability. See McLeod v. Astrue,
640 F.3d 881, 886-88 (9th Cir. 2011); Burch v. Barnhart, 400 F.3d 676,
28 679 (9th Cir. 2005)(An ALJ’s decision will not be reversed for errors
that are harmless).
1 A. The ALJ Did Not Err in Assessing the Opinion of Dr. Shamlou,
2 Plaintiff’s Treating Physician7
3
4 Plaintiff asserts that the ALJ failed to properly reject the
5 opinion of his treating physician, Dr. Shamlou. (See Joint Stip. at 2-
6 5, 11-12). Defendant asserts that the ALJ properly rejected Dr.
7 Shamlou’s opinion. (See Joint Stip. at 5-11).
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9 1. Legal Standard
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11 An ALJ must take into account all medical opinions of record. 20
12 C.F.R. § 404.1527(b).8 “Generally, a treating physician’s opinion
13 carries more weight than an examining physician’s, and an examining
14 physician’s opinion carries more weight than a reviewing physician’s.”
15 Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); see also
16 Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). The medical
17 opinion of a treating physician is given “controlling weight” so long
18 as it “is well-supported by medically acceptable clinical and laboratory
19 diagnostic techniques and is not inconsistent with the other substantial
20 evidence in [the claimant’s] case record.” 20 C.F.R. § 404.1527(c)(2).
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22 7 Since Plaintiff has focused solely on the ALJ’s rejection of
the opinion of Plaintiff’s treating physician, the Court will not
23 address Plaintiff’s claim concerning the ALJ’s rejection of the opinions
of the examining physician and/or the reviewing physician.
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8 Since Plaintiff filed his application before March 27, 2017,
25 20 C.F.R. § 404.1527 applies. For an application filed on or after
March 27, 2017, 20 C.F.R. § 404.1520c would apply. 20 C.F.R. §
26 404.1520c changed how the Social Security Administration considers
medical opinions and prior administrative medical findings, eliminated
27 the use of the term “treating source,” and eliminated deference to
treating source medical opinions. See 20 C.F.R. § 404.1520c(a); L.R. v.
28 Saul, 2020 WL 264583, at *3 n. 5 (C.D. Cal. Jan. 17, 2020); see also 81
Fed. Reg. 62560, at 62573-74 (Sept. 9, 2016).
1 “When a treating doctor’s opinion is not controlling, it is weighted
2 according to factors such as the length of the treatment relationship
3 and the frequency of examination, the nature and extent of the treatment
4 relationship, supportability, and consistency of the record.” Revels
5 v. Berryhill, 874 F.3d at 654; see also 20 C.F.R. § 404.1527(c)(2)-(6).
6
7 If a treating or examining doctor’s opinion is not contradicted by
8 another doctor, the ALJ can reject the opinion only for “clear and
9 convincing reasons.” Carmickle v. Commissioner, 533 F.3d 1155, 1164
10 (9th Cir 2008); Lester, 81 F.3d at 830. If the treating or examining
11 doctor’s opinion is contradicted by another doctor, the ALJ must provide
12 “specific and legitimate reasons” that are supported by substantial
13 evidence in the record for rejecting the opinion. Orn v. Astrue, 495
14 F.3d 625, 632 (9th Cir. 2007); Reddick v. Chater, 157 F.3d 715, 725 (9th
15 Cir. 1998); Lester, supra. “The ALJ can meet this burden by setting out
16 a detailed and thorough summary of the facts and conflicting clinical
17 evidence, stating his interpretation thereof, and making findings.”
18 Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017)(citation
19 omitted). Finally, an ALJ may reject an opinion of any physician that
20 is conclusory, brief, and unsupported by clinical findings. Bayliss v.
21 Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2015); Thomas v. Barnhart, 278
22 F.3d 947, 957 (9th Cir. 2002); Tonapetyan v. Halter, 242 F.3d 1144, 1149
23 (9th Cir. 2001).
24 //
25 //
26 //
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1 2. Dr. Shamlou
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Dr. Kouroush Shamlou, an orthopedic surgeon at RMS Medical Group,
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treated Plaintiff on four occasions from October 10, 2014 to March 18,
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2016. (See AR 352-53, 420-428).
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On September 11, 2015, Dr. Shamlou completed a Private Progress
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Report following his evaluation of Plaintiff, in which he opined, inter
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alia, that Plaintiff’s “condition is permanent and given his current
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condition, requiring to take multiple narcotic medications, which
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interfere with his level of comprehension and function, he is not able
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to return back to work.” (See AR 352-53, 422-23). On March 18, 2016,
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Dr. Shamlou completed a Physical Residual Functional Capacity
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Questionnaire (“Questionnaire”), in which he diagnosed Plaintiff with
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“failed back syndrome with Arachnoiditis”, with a poor prognosis, noting
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that Plaintiff’s symptoms included severe lower back pain with bilateral
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leg pain, stiffness, and weakness. (See AR 415-19). Dr. Shamlou
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identified a healed scar and reduced range of motion of the lumbar spine
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as the clinical findings and objective signs supporting his diagnosis,
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reported that narcotic drugs caused Plaintiff to experience drowsiness
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and dizziness and concluded that Plaintiff’s impairments lasted or can
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be expected to last at least 12 months, and that emotional factors,
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specifically, stress, contributed to the severity of Plaintiff’s
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symptoms and functional limitations. (AR 415-16).
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The Questionnaire completed by Dr. Shamlou reported that Plaintiff
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would experience the following functional work limitations if he was
28 placed in a competitive work environment: Plaintiff can walk one block
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1 without rest or severe pain; Plaintiff can sit at one time for 30
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minutes before needing to get up; Plaintiff can stand at one time for
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20 minutes before needing to sit down or walk around; Plaintiff can sit
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and stand/walk about 2 hours in an 8-hour workday and must be permitted
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to (a) shift positions at will from sitting, standing or walking; (b)
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walk every 5 minutes for 5 to 6 minutes; and (c) take unscheduled breaks
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3 to 4 times per day for 15 minutes. (AR 416-17). Dr. Shamlou reported
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that Plaintiff can (a) rarely (1 percent to 5 percent of an 8-hour
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workday) lift and carry 10 pounds or less, and can never lift 20 pounds
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or more; (b) frequently (34 percent to 66 percent of an 8-hour workday)
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look down, turn his head right or left, look up, and hold his head in
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a static position; and (c) rarely twist, stoop (bend) and climb stairs,
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and can never crouch/squat and climb ladders. (AR 417-18). Dr. Shamlou
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concluded that Plaintiff’s symptoms frequently interfere with the
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attention and concentration needed to perform even simple work tasks,
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his impairments are likely to produce “good days” and “bad days,” and
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that his impairments or treatment likely will cause him to be absent
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from work for an average of more than four days per month. (AR 416-18).
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3. The ALJ’s Findings
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The ALJ gave “little weight” to Dr. Shamlou’s opinion, finding it
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to be unsupported by the objective medical evidence and inconsistent
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with Plaintiff’s activities of daily living. (AR 23).
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Since Dr. Shamlou’s opinion about Plaintiff’s limitations with
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respect to his ability to sit, stand and/or walk, crouch, squat, stoop,
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1 climb stairs and climb ladders, and lift and carry was contradicted by
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the opinions of other physicians,9 the “specific and legitimate”
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standard applies to the ALJ’s rejection of Dr. Shamlou’s opinion in
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these areas. See Trevizo, 875 F.3d at 675. However, because Dr.
5
Shamlou’s opinion about Plaintiff’s ability to sit and stand at one
6
time, and twist, and his need to shift positions at will, walk every 5
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minutes for 5 to 6 minutes, have unscheduled breaks, and be absent from
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work was not contradicted by the opinions of other physicians, the
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“clear and convincing” standard applies to the ALJ’s rejection of Dr.
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Shamlou’s opinion in these areas. See id.
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The ALJ properly determined that Dr. Shamlou’s opinion was
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“inadequately supported by the objective medical evidence.” See
14
Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)(the ALJ must
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“set[] out a detailed and thorough summary of the facts and conflicting
16
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9 The ALJ gave “significant weight” to the July 21, 2015 opinion
18 of consultative examining physician, Ibrahim Yashuti, an orthopedic
surgeon, who opined that Plaintiff can sit for 6 hours a day, stand and
19 walk for 2 hours at a time for a total of 6 hours a day, occasionally
squat and crouch, and walk on uneven ground, and can occasionally lift
20 25 pounds and frequently lift 10 pounds. (See AR 22-23; 332-39).
21 The ALJ also gave “significant weight” to the August 2, 2015
opinion of State Agency physician, David Braverman, M.D., and the
22 December 15, 2015 opinion of State Agency physician R. Dwyer, who both
found, inter alia, that Plaintiff can sit about 6 hours in an 8-hour
23 workday, stand and/or walk about 6 hours in an 8-hour workday, lift
and/or carry 10 pounds frequently and 25 pounds occasionally, can stoop,
24 crouch, and climb ladders/ropes/scaffolds occasionally, and can climb
ramps/stairs on an unlimited basis. (See AR 22-23, 82-83, 95-98).
25
26
27
28
10
1
clinical evidence, stating his interpretation thereof, and making
2
findings”; citation omitted).
3
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Reports of Plaintiff’s office visits and treatment include
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notations reflecting that Plaintiff’s low back pain was controlled with
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medication. On August 20, 2014, Dr. Albert Lai at the Centers of
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Rehabilitation and Pain Medicine (“CRPM”) noted that (a) Plaintiff
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reported that prior prescribed medications (Tylenol #3 and Naproxyn)
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relieved short-term pain but were less effective now and that such
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medications did not cause side effects, and (b) Plaintiff was prescribed
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new pain medications (Tramadol 50 mg, Flexeril 10 mg, Neurontin 300 mg
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and Naprosyn 500 mg). (See AR 291-95). On September 17, 2014, Dr. Lai
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noted that, “Pain level has decreased since last visit” and “According
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to patient medications are helping. Patient reports no side effects.
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The patient states he is taking his medications as prescribed. With the
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current medication regime, his pain symptoms are adequately managed.”
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(See AR 291-95). On October 10, 2014, Dr. Shamlou’s Initial Report
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noted that, “[Plaintiff] does take multiple medications for pain, which
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controls it to some extent.” (AR 426-28). On October 15, 2014, Dr.
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Shane Daniels at CRPM reported that, “Pain level has decreased since
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last visit. The patient is taking his medications as prescribed. He
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states that medications are helping.” (AR 275-79).
23
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Medical records in 2015 also noted that Plaintiff did not report
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any side effects from his medications and the current medication regime
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was adequately managing his symptoms. See AR 407-12 (Dr. Lai, Office
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Visit dated June 16, 2015; AR 395-400 (Dr. Lee at CRPM, Office Visit
28
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1 dated July 14, 2015); AR 382-87 (Dr. Lee, Office Visit dated September
2 8, 2015); AR 370-75 (Dr. Lee, Office Visit dated October 20, 2015), and
3 AR 360-69 (Dr. Lee, Office Visit dated November 17, 2015).
4
5 The ALJ noted that Plaintiff had been noncompliant with prescribed
6 medications. (AR 22). See AR 304-05 (Luis Villa, M.D., Pavilion Family
7 Physicians, Office Visit dated June 16, 2014: “Aggravating factors
8 include suboptimal compliance. . . . Unfortunately, [he] has not seen
9 Endocrinologist since last November and he is out of his meds also,” and
10 “I once again addressed his noncompliance and his need to take
11 accountability of his actions[.]”); and AR 361, 371, 383, 396, 408 (Dr.
12 Lai, Office Visits dated June 16, 2015, July 14, 2015, September 8,
13 2015, October 20, 2015 and November 17, 2015: “The patient admits to not
14 taking his medications as prescribed.”).10
15
16 The ALJ found that Dr. Shamlou’s opinion was based on minimal
17 clinical findings -- “healed scar” and “reduced range of motion of
18 lumbar spine” -- as indicated by Dr. Shamlou in the Questionnaire. (AR
19 23, citing AR 415 [identifying the clinical findings and objective signs
20 as “healed scar” and “reduced range of motion of lumbar spine”]). See
21 Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002)(“The ALJ need not
22 accept the opinion of any physician including the treating physician,
23 if that opinion is brief, conclusory and inadequately supported by
24
25 10 While some medical records contain conflicting information,
the ALJ was entitled to resolve such conflicts. See Tommasetti v.
26 Astrue, 533 F.3d 1035, 1041-42 (9th Cir. 2008)(“The ALJ is responsible
for determining credibility, resolving conflicts in medical testimony,
27 and for resolving ambiguities.”; citation omitted); Morgan v. Comm’r of
Soc. Sec., 169 F.3d 595, 603 (9th Cir. 1999)(“The ALJ is responsible for
28 resolving conflicts in medical testimony, and resolving ambiguity.”).
12
1 clinical findings.”); Ford v. Saul, 2020 WL 829864, *8 (9th Cir.
2 2020)(“An ALJ is not required to take medical opinions at face value,
3 but may take into account the quality of the explanation when
4 determining how much weight to give a medical opinion.”); see also 20
5 C.F.R. § 404.1527(d)(3) (“The more a medical source presents relevant
6 evidence to support a medical opinion, particularly medical signs and
7 laboratory findings, the more weight we will give that medical opinion.
8 The better an explanation a source provides for a medical opinion, the
9 more weight we will give that medical opinion.”).
10
11 The ALJ also properly found that Dr. Shamlou’s opinion regarding
12 Plaintiff’s functional limitations was “inconsistent” with Plaintiff’s
13 self-reported activities of daily living, which included personal care
14 tasks, preparing simple meals, doing light household chores, driving a
15 car, shopping in stores, coaching his children’s sports activities, and
16 taking his children to and from school. (AR 23). In an adult function
17 report dated April 10, 2015, Plaintiff stated that he prepares simple
18 meals two to three times a week, does light household chores, including
19 light cleaning, folding towels and blankets, and throwing away trash
20 (four to five times a week), and drives his car to take his children to
21 and from school. (AR 225-28). At the hearing on January 19, 2018,
22 Plaintiff testified that he drives his three children to school in the
23 morning, and spends the day “laying down” until he has to pick them up
24 from school at 3:00 p.m. (AR 48-54). See Ford v. Saul, 2020 WL 829864,
25 *8 (“A conflict between a treating physician’s opinion and a claimant’s
26 activity level is a specific and legitimate reason for rejecting the
27 opinion.”); Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir.
28 2001)(upholding ALJ’s rejection of treating physician’s opinion where
13
1 the doctor’s extreme restrictions were inconsistent with the level of
2 the claimant’s activity).
3
4 The ALJ provided clear and convincing and/or specific and
5 legitimate reasons, supported by substantial evidence in the record, for
6 rejecting Dr. Shamlou’s opinion.
7
8 B. The ALJ Provided Clear and Convincing Reasons for Rejecting
9 Plaintiff’s Subjective Symptom Testimony
10
11 Plaintiff asserts that the ALJ did not provide clear and convincing
12 reasons for rejecting Plaintiff’s testimony about his symptoms and
13 limitations. (See Joint Stip. at 12-14, 19). Defendant asserts that
14 the ALJ provided proper reasons for finding Plaintiff’s subjective
15 symptom testimony not fully credible. (See Joint Stip. at 14-19).
16
17 1. Legal Standard
18
19 When assessing a claimant’s credibility regarding subjective pain
20 or intensity of symptoms, the ALJ must engage in a two-step analysis.
21 Trevizo, 871 F.3d at 678. First, the ALJ must determine if there is
22 medical evidence of an impairment that could reasonably produce the
23 symptoms alleged. Id. (citing Garrison v. Colvin, 759 F.3d 995, 1014-15
24 (9th Cir. 2014)). “In this analysis, the claimant is not required to
25 show that her impairment could reasonably be expected to cause the
26 severity of the symptom she has alleged; she need only show that it
27 could reasonably have caused some degree of the symptom.” Id. (emphasis
28 in original)(citation omitted). “Nor must a claimant produce objective
14
1 medical evidence of the pain or fatigue itself, or the severity
2 thereof.” Id. (citation omitted).
3
4 If the claimant satisfies this first step, and there is no evidence
5 of malingering, the ALJ must provide specific, clear and convincing
6
reasons for rejecting the claimant’s testimony about the symptom
7
severity. Id. (citation omitted); see also Robbins v. Soc. Sec. Admin.,
8
466 F.3d 880, 883 (9th Cir. 2006)(“[U]nless an ALJ makes a finding of
9
malingering based on affirmative evidence thereof, he or she may only
10
find an applicant not credible by making specific findings as to
11
credibility and stating clear and convincing reasons for each.”); Smolen
12
v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996)(“[T]he ALJ may reject the
13
claimant’s testimony regarding the severity of her symptoms only if he
14
makes specific findings stating clear and convincing reasons for doing
15
so.”). “This is not an easy requirement to meet: The clear and
16
convincing standard is the most demanding required in Social Security
17
18 cases.” Garrison, 759 F.3d at 1015 (citation omitted).
19
20 Where, as here, the ALJ finds that a claimant suffers from a
21 medically determinable physical or mental impairment that could
22 reasonably be expected to produce his alleged symptoms, the ALJ must
23 evaluate “the intensity and persistence of those symptoms to determine
24 the extent to which the symptoms limit an individual’s ability to
25 perform work-related activities for an adult.” Soc. Sec. Ruling (“SSR”)
26 16-3p, 2017 WL 5180304, at *3.11 SSR 16–3p eliminated the term
27 11 SSR 16-3p, which superseded SSR 96-7p, is applicable to this
case, because SSR 16-3p, which became effective on March 28, 2016, was
28 (continued...)
15
1 “credibility” from the Agency’s sub-regulatory policy. However, the
2 Ninth Circuit Court of Appeals has noted that SSR 16–3p:
3 makes clear what [the Ninth Circuit’s] precedent already
required: that assessments of an individual’s testimony by an
4 ALJ are designed to “evaluate the intensity and persistence of
symptoms after the ALJ finds that the individual has a
5 medically determinable impairment(s) that could reasonably be
expected to produce those symptoms,” and not to delve into
6 wide-ranging scrutiny of the claimant’s character and apparent
truthfulness.
7
Trevizo, 871 F.3d at 678 n.5 (quoting SSR 16–3p)(alterations omitted).
8
9 In discrediting the claimant’s subjective symptom testimony, the
10
ALJ may consider: “ordinary techniques of credibility evaluation, such
11
as . . . prior inconsistent statements concerning the symptoms, and
12
other testimony by the claimant that appears less than candid;
13
unexplained or inadequately explained failure to seek treatment or to
14
follow a prescribed course of treatment; and the claimant’s daily
15
activities.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014)
16
(citation omitted). Inconsistencies between a claimant’s testimony and
17
conduct, or internal contradictions in the claimant’s testimony, also
18
may be relevant. Burrell v. Colvin, 775 F.3d 1133, 1137 (9th Cir.
19
2014). In addition, the ALJ may consider the observations of treating
20
and examining physicians regarding, among other matters, the functional
21
22 restrictions caused by the claimant’s symptoms. Smolen, 80 F.3d at
23 1284; accord Burrell, 775 F.3d at 1137. However, it is improper for an
24 ALJ to reject subjective testimony based “solely” on its inconsistencies
25
26
11 (...continued)
27 in effect at the time of the Appeal Council’s January 14, 2019 denial of
Plaintiff's request for review. 20 C.F.R. § 416.929, the regulation on
28 evaluating a claimant’s symptoms, including pain, has not changed.
16
1 with the objective medical evidence presented. Bray v. Comm’r of Soc.
2 Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009)(citation omitted).
3
4
The ALJ must make a credibility determination with findings that
5
are “sufficiently specific to permit the court to conclude that the ALJ
6
did not arbitrarily discredit claimant’s testimony.” Tommasetti v.
7
Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008)(citation omitted); see
8
Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015)(“A finding
9
that a claimant’s testimony is not credible must be sufficiently
10
specific to allow a reviewing court to conclude the adjudicator rejected
11
the claimant’s testimony on permissible grounds and did not arbitrarily
12
discredit a claimant’s testimony regarding pain;” citation omitted).
13
Although an ALJ’s interpretation of a claimant’s testimony may not be
14
15 the only reasonable one, if it is supported by substantial evidence, “it
16 is not [the court’s] role to second-guess it.” Rollins v. Massanari,
17 261 F.3d 853, 857 (9th Cir. 2001).
18
19 2. Plaintiff’s Subjective Statements and Testimony
20
21 Plaintiff submitted an Adult Function Report, dated April 10, 2015,
22 in which he stated that his ability to work was limited by his inability
23
to lift more than a few pounds occasionally, walk more than 15 to 20
24
minutes, sit or stand for a few minutes without having to change
25
positions or take breaks, and to reach and bend more, as well as the
26
constant pain, numbness and tingling in his leg, groin and hand. (AR
27
28
17
1 224).12 His daily activities include taking his children to school and
2 spending the day at home changing positions (sitting, standing or lying
3
down), before sometimes picking up his children from school. His
4
conditions affect his sleep, ability to dress himself, and bathe. He
5
can take care of his personal needs and grooming, prepare simple meals,
6
and do light cleaning, such as folding towels and blankets and throwing
7
trash away, maybe four to five times a week (which takes him 10 to 15
8
minutes). He goes outside two to three times a day, driving a car, and
9
shops in stores or by mail for living necessities, once or twice a week
10
(which takes him approximately 15 to 20 minutes). His hobbies include
11
watching sports, watching and coaching his children’s sporting events
12
and watching television. He spends time with other people five times a
13
week and attends his children’s sporting practices five times a week.
14
15 (AR 225-29).
16
17 At the January 19, 2018 administrative hearing, Plaintiff testified
18 that his back pain, which radiates from his lower back through his left
19 leg and calf and affects his groin area, is constant, “running” and
20 “hot,” and has worsened since his surgery on December 7, 2017. He
21 takes Norco and a muscle relaxer for his pain and the medications
22 sometimes, but not always, help him sleep through the night. Although
23
the medications alleviate his symptoms, he cannot take them as required
24
because he is responsible for getting his children to school and his
25
26 12 In an undated Disability Report - Appeal, Plaintiff stated he
takes the following prescribed medications: Flexeril, a muscle relaxer,
27 which causes dizziness; Gabapentin, a pain/nerve medicine, which causes
cotton mouth; Naproxen, a pain medicine, which causes no side effects;
28 and Tramadol, a pain medicine, which causes dizziness. (AR 238).
18
1 doctors have told him he cannot drive when he takes the medications.
2 (AR 46-48, 50, 54-55, 57, 63). Because of his pain, he cannot stand or
3
sit for a prolonged period. He can stand for 5 to 10 minutes before he
4
has to sit, he can sit upright for about 15 minutes before he has to
5
change positions, he always leans to the right side when he sits, and
6
lying in a fetal position on a futon relieves the pressure. (AR 53-58).
7
His diabetes causes neuropathy, a tingling, non-constant pain sensation
8
in his right leg. (AR 46-48, 54).
9
10
Plaintiff relayed that his daily activities involve making sure his
11
children are getting ready for school and driving them to school, which
12
takes five minutes but nonetheless is painful. As soon as he gets home
13
at around 8:15 a.m., he takes his medications and then lies down on the
14
15 futon (he estimates being on the futon approximately 10 hours a day).
16 He makes lunch and eats it on the kitchen counter. At 2:45 p.m., he
17 drives to school to pick up his children. When he returns home, he
18 makes sure his children are doing their homework. He does not have to
19 feed his children (his mother-in-law does the feeding), and he does not
20 do any cooking. His wife drives his oldest child to water polo; about
21 a year and a half earlier, he had stopped watching his son play because
22 the cold caused him pain. When asked whether he does laundry, he stated
23
that the day before the hearing he had tried to do a small load of
24
laundry but experienced pain by walking downstairs, putting the clothes
25
into the side of the machine (which required stooping and bending) and
26
walking upstairs and was unable to finish the load. He is able to
27
carry, with difficulty, seven or eight pounds (a gallon of milk). He
28
19
1 does grocery shopping once or twice a week, which takes him about
2 fifteen to twenty minutes. It takes him one or two days to clean the
3
house because of his pain and his need to rest and take medications.
4
(AR 48-52, 60-62).
5
6
3. The ALJ’s Credibility Findings
7
8
After summarizing Plaintiff’s hearing testimony and the medical
9
evidence in the record (see AR 20), the ALJ found that Plaintiff’s
10
testimony about the intensity, persistence and limiting effects of his
11
pain and symptoms was inconsistent with his activities of daily living,
12
non-compliance with medications and the objective medical evidence. (AR
13
23-24). The ALJ observed that the physical and mental abilities and the
14
15 social interactions required for Plaintiff to perform normal activities
16 of daily living, such as personal care tasks, preparing simple meals,
17 doing light household chores, driving a car, shopping in stores,
18 watching sports, and coaching children sports, are the same as those
19 necessary for obtaining and maintaining employment. Therefore, the ALJ
20 found Plaintiff’s ability to participate in such activities to be
21 inconsistent with his statements concerning the alleged intensity,
22 persistence, and limiting effects of symptoms. (AR 21-22).
23
24
The ALJ also found that Plaintiff’s failure to follow treatment
25
recommendations by not taking pain and insulin as prescribed (see AR
26
304, 361, 386), demonstrated a possible unwillingness to do what was
27
necessary to improve his condition and may be an indication that his
28
symptoms are not as severe as he purports. (AR 21-22).
1 After addressing the opinion of Plaintiff’s treating physician (Dr.
2 Shamlou), as well as testimony by Plaintiff’s wife (see AR 23), the ALJ
3
concluded that:
4
5
Overall, the evidence as a whole does not support a
6
conclusion that the claimant experiences work-related
7
functional limitations exceeding those reflected in the above
8
residual functional capacity [assessment]. The claimant’s
9
subjective complaints are not fully consistent with the
10
medical evidence and the objective medical evidence does not
11
support the alleged severity of symptoms. Accordingly, the
12
undersigned finds that the above residual functional capacity
13
assessment is the most that the claimant could do on a regular
14
15 and continuing basis despite the claimant’s impairment-related
16 limitations.
17 (AR 24).
18
19 4. Analysis
20
21 The ALJ properly determined that Plaintiff’s alleged limitations
22 were inconsistent with his ability to perform his activities of daily
23
living, including personal care tasks, (see AR 225), preparing simple
24
meals (AR 226), doing light household chores, such as light cleaning,
25
folding towels and blankets, and throwing away trash (AR 226), driving
26
his car to take his children to and from school and to shop (AR 50, 53,
27
59, 227) and coaching his children’s sporting events (AR 228).
28
Plaintiff’s ability to engage in such activities rendered Plaintiff’s
1 testimony that he spent approximately 10 hours a day resting in a fetal
2 position on a futon unbelievable. (AR 58-59). See Ghanim, 763 F.3d at
3
1165 (“Engaging in daily activities that are incompatible with the
4
severity of symptoms alleged can support an adverse credibility
5
determination.”); Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012)
6
(“[T]he ALJ may discredit a claimant’s testimony when the claimant
7
reports participation in everyday activities indicating capacities that
8
are transferable to a work setting;” “Even where those activities
9
suggest some difficulty functioning, they may be grounds for
10
discrediting the claimant’s testimony to the extent that they contradict
11
claims of a totally debilitating impairment.”); and Morgan v. Comm’r of
12
Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999)(“If a claimant is
13
able to spend a substantial part of his day engaged in pursuits
14
15 involving the performance of physical functions that are transferable to
16 a work setting, a specific finding as to this fact may be sufficient to
17 discredit a claimant's allegations.”). See also Burch v. Barnhart, 400
18 F.3d 676, 680-81 (9th Cir. 2005)(claimant’s allegations of disability
19 properly discredited where claimant was able to care for her own
20 personal needs, cook, clean, shop, interact with her nephew and
21 boyfriend, and manage finances).
22
23
The ALJ also properly found that Plaintiff’s testimony about the
24
limiting effects of his symptoms was undermined by Plaintiff’s failure
25
to follow a prescribed course of treatment, as shown by Plaintiff’s
26
noncompliance with prescribed medications (see AR 304-05, 361, 371, 383,
27
396, and 408). See Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)(an
28
ALJ may discredit claimant’s testimony based on the unexplained, or
1 inadequately explained, failure to follow a prescribed course of
2 treatment). Although Plaintiff challenges the ALJ’s interpretation of
3
the evidence of Plaintiff’s noncompliance (see Joint Stip. at 13), the
4
Court will not second-guess the ALJ’s reasonable interpretation. See
5
Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001).
6
7
The ALJ was entitled to, and properly found that Plaintiff’s
8
testimony about the intensity, persistence and limiting effects of his
9
symptoms was not supported by the objective medical evidence (see AR
10
20). See Burch, 400 F.3d at 681 (“Although lack of medical evidence
11
cannot form the sole basis for discounting pain testimony, it is a
12
factor that the ALJ can consider in his credibility analysis.”);
13
Rollins, supra (“While subjective pain testimony cannot be rejected on
14
15 the sole ground that it is not fully corroborated by objective medical
16 evidence, the medical evidence is still a relevant factor in determining
17 the severity of the claimant’s pain and its disabling effects.”); SSR
18 16-3p, *5 (“objective medical evidence is a useful indicator to help
19 make reasonable conclusions about the intensity and persistence of
20 symptoms, including the effects those symptoms may have on the ability
21 to perform work-related activities”). As discussed in detail above,
22 numerous medical reports reflect that Plaintiff’s back pain was
23
adequately managed by Plaintiff’s prescribed medications, for which
24
Plaintiff reported no side effects. As the Court cannot conclude that
25
the ALJ’s interpretation of the medical record was irrational, the ALJ’s
26
decision must be upheld.
27
28
1 The ALJ’s reasons for discounting Plaintiff’s testimony about the
2 limiting effects of his pain and symptoms -- inconsistency with
3
activities of daily living, failure to follow a prescribed course of
4
treatment, and the lack of support in the medical record -- were
5
specific, clear and convincing, reasons.
6
7
ORDER
8
9
For the foregoing reasons, the decision of the Commissioner is
10
AFFIRMED.
11
LET JUDGMENT BE ENTERED ACCORDINGLY.
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13
DATED: March 12, 2020
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15
/s/
16 ALKA SAGAR
UNITED STATES MAGISTRATE JUDGE
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10037285. Public record. Not legal advice.