ALJ properly discounted claimant’s credibility based on her 8 own admissions and inconsistency between her testimony and descriptions of her 9 activities and abilities
How later courts described this case
- ALJ properly discounted claimant’s credibility based on her 8 own admissions and inconsistency between her testimony and descriptions of her 9 activities and abilities
- disability opinion “premised to a large extent 24 1 upon the claimant’s own accounts of his symptoms and limitations may be disregarded 2 where those complaints have been properly discounted” (quotations omitted)
- finding ALJ had properly disregarded a treating physician’s opinion by 21 setting forth specific and legitimate reasons for rejecting the physician’s opinion that 22 were supported by the entire record
- “Although lack of 4 medical evidence cannot form the sole basis for discounting pain testimony, it is a factor 5 that the ALJ can consider in his credibility analysis.”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
11 BRIAN J. M., an Individual, Case No.: 2:18-05955 ADS
12 Plaintiff,
13 v. MEMORANDUM OPINION AND ORDER
14 ANDREW M. SAUL1, Commissioner of
Social Security,
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Defendant.
16
17 I. INTRODUCTION
18 Plaintiff Brian J. M.2 (“Plaintiff”) challenges the Defendant Commissioner of
19 Social Security’s (hereinafter “Commissioner” or “Defendant”) denial of his application
20 for supplemental security income (“SSI”). Plaintiff contends that the Administrative
21
22
1 On June 17, 2019, Saul became the Commissioner of Social Security. Thus, he is
automatically substituted as the defendant under Federal Rule of Civil Procedure 25(d).
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2 Plaintiff’s name has been partially redacted in compliance with Federal Rule of Civil
Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court
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Administration and Case Management of the Judicial Conference of the United States.
1 Law Judge (“ALJ”) improperly evaluated his subjective statements, as well as a medical
2 opinion. For the reasons stated below, the decision of the Commissioner is affirmed,
3 and this matter is dismissed with prejudice.3
4 II. FACTS RELEVANT TO THE APPEAL
5 A review of the entire record reflects certain uncontested facts relevant to this
6 appeal. Prior to filing his application for social security benefits, Plaintiff last worked on
7 November 12, 2014, his alleged disability onset date. (Administrative Record “AR” 138,
8 172). He alleged disability based on “chf” – congestive heart failure. (AR 162).
9 Plaintiff testified that he had triple-bypass heart surgery in 2007. (AR 38, 53).
10 Plaintiff stated he had this procedure done three times because two failed. (AR 38, 48).
11 Plaintiff spent some time in prison, and after he was released, he worked for two
12 telemarketing companies in 2014. (AR 35-36).
13 In November 2014, Plaintiff noticed he was growing very tired and weak, and
14 couldn’t finish the workday. (AR 37-38). Plaintiff stated that he therefore quit his job.
15 (AR 37). Plaintiff then he had a heart attack in December 2014, was hospitalized for
16 three or four days and had a stent placed in his heart. (AR 37-38, 53). In 2016, Plaintiff
17 had an angioplasty done. (AR 39).
18 In addition to his heart condition, Plaintiff testified that he has “frozen shoulder”
19 from diabetes. (AR 39, 44-45). Plaintiff also stated he has Meniere’s disease from a
20 recurring inner ear infection, and arthritis in his knees. (AR 49-50, 52).
21
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3 The parties filed consents to proceed before the undersigned United States Magistrate
Judge, pursuant to 28 U.S.C. § 636(c), including for entry of final Judgment.
24
[Docket(“Dkt.”) Nos. 12, 14].
1 Plaintiff hasn’t worked since he left his employer in November 2014, except doing
2 odd jobs here and there. (AR 38). Plaintiff testified that he can’t go back to
3 telemarketing because of “simple fatigue” caused by a combination of his medication,
4 heart disease, and sleep apnea. (AR 40, 50). Plaintiff stated he is unable to complete an
5 eight-hour shift because, after a couple of hours, he’s “just done.” (AR 40, 43).
6 Plaintiff testified he can stand for five or 10 minutes, and walk two or three
7 blocks, before needing to sit. (AR 50-51). He spends most of his time sitting, and he can
8 do that for “long periods of time.” (AR 51). Plaintiff stated he can lift 20 or 30 pounds
9 and that he can walk maybe two flights of stairs before his chest tightens. (AR 41-42,
10 51). Plaintiff can bend over, but not too much otherwise he becomes dizzy. (AR 51).
11 Plaintiff also stated he can stoop, but it is a problem because of the arthritis in his knees.
12 (AR 52).
13 As part of his daily activities, Plaintiff can dress and bathe himself, prepare his
14 own meals, and get around using mass transit. (AR 34). Plaintiff stated he walks
15 through his neighborhood and picks up cans and bottles for income. (AR 52). Plaintiff
16 is a recovering alcoholic, so he does a lot of work for Alcoholics Anonymous, including
17 counsels, speaks, sponsors, and takes part in recovery meetings. (AR 45-46). According
18 to Plaintiff, there is “no question” that his drinking “probably was a big contributing
19 factor” in the early onset of his congestive heart disease. (AR 47).
20 Plaintiff testified that, currently, his doctor advises him to stay on his medication
21 and exercise as much as he can and stated that his doctor is happy with where he’s at
22 right now. (AR 40).
23 On December 7, 2015, Plaintiff’s treating physician, Imanuel Khalili, M.D.,
24 completed a three-page “MEDICAL OPINION RE: ABILITY TO DO WORK-RELATED
1 ACTIVITIES (PHYSICAL)” form provided by the law firm representing Plaintiff. (AR
2 327-29). On the form, Dr. Khalili checked boxes indicating Plaintiff was extremely
3 limited, including that he could lift a maximum of 10 pounds occasionally, and less than
4 10 pounds frequently. (AR 327). Additionally, Plaintiff could stand and walk less than
5 two hours, and sit about four hours, in an eight-hour workday. (Id.). Plaintiff would
6 also need to change position after sitting for 90 minutes or standing for 10 minutes.
7 (Id.). The doctor indicated that Plaintiff must never stoop, bend, or climb ladders, and
8 that he can only occasionally crouch or climb stairs. (AR 328). Additionally, Plaintiff
9 has limitations handling, pushing, and pulling. (Id.). Plaintiff must avoid temperature
10 extremes, respiratory irritants, hazards, and concentrated exposure to wetness and
11 humidity. (AR 329). The doctor further explained that Plaintiff’s “[h]eart condition
12 prohibits physical exertion on any type [of physical function],” and “causes an inability
13 to engage in activities for sustained periods.” (AR 328-29). Dr. Khalili opined that
14 Plaintiff would need to be absent from work more than three times a month. (AR 329).
15 III. PROCEEDINGS BELOW
16 A. Procedural History
17 Plaintiff filed his application for SSI on November 12, 2014, alleging disability
18 beginning that day. (AR 13, 71, 138). Plaintiff’s claim was denied initially on May 28,
19 2015. (AR 71). A hearing was held before ALJ Richard T. Breen on February 14, 2017.
20 (AR 26-60). Plaintiff, represented by counsel, appeared and testified at the hearing, as
21 did a vocational expert, June Hagen. (Id.)
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1 On June 16, 2017, the ALJ found that Plaintiff was “not disabled” within the
2 meaning of the Social Security Act.4 (AR 13-21). The ALJ’s decision became the
3 Commissioner’s final decision when the Appeals Council denied Plaintiff’s request for
4 review on May 22, 2018. (AR 1-6). Plaintiff then filed this action in District Court on
5 July 9, 2018, challenging the ALJ’s decision. [Dkt. No. 1].
6 B. Summary of ALJ Decision After Hearing
7 In the decision (AR 13-21), the ALJ followed the required five-step sequential
8 evaluation process to assess whether Plaintiff was disabled under the Social Security
9 Act.5 20 C.F.R. § 416.920(a). At step one, the ALJ found that Plaintiff had not been
10 engaged in substantial gainful activity since November 12, 2014, the alleged onset and
11 application filing date. (AR 15). At step two, the ALJ found that Plaintiff had the
12 following severe impairments: (a) coronary artery disease, status-post triple bypass
13 grafting in 2007, and multiple angioplasties with stent placements; (b) hypertension;
14 (c) asthma; (d) obesity; and (e) right shoulder capsulitis. (AR 15-16).
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4 Persons are “disabled” for purposes of receiving Social Security benefits if they are
unable to engage in any substantial gainful activity owing to a physical or mental
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impairment expected to result in death, or which has lasted or is expected to last for a
continuous period of at least 12 months. 42 U.S.C. §423(d)(1)(A).
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5 The ALJ follows a five-step sequential evaluation process to assess whether a claimant
is disabled: Step one: Is the claimant engaging in substantial gainful activity? If so, the
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claimant is found not disabled. If not, proceed to step two. Step two: Does the claimant
have a “severe” impairment? If so, proceed to step three. If not, then a finding of not
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disabled is appropriate. Step three: Does the claimant’s impairment or combination of
impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1?
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If so, the claimant is automatically determined disabled. If not, proceed to step four.
Step four: Is the claimant capable of performing his past work? If so, the claimant is not
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disabled. If not, proceed to step five. Step five: Does the claimant have the residual
functional capacity to perform any other work? If so, the claimant is not disabled. If
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not, the claimant is disabled. Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995).
1 At step three, the ALJ found that Plaintiff “does not have an impairment or
2 combination of impairments that meets or medically equals the severity of one of the
3 listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d),
4 416.925[,] and 416.926).” (AR 16). The ALJ then found that Plaintiff had the Residual
5 Functional Capacity (“RFC”)6 “to perform sedentary work as defined in 20 CFR
6 416.967(a)7 except:
7 lifting up to 5 pounds frequently and up to 10 pounds occasionally, sitting
up to 6 hours total in an 8-hour workday, and standing/walking up to 2
8 hours total in an 8-hour workday, with the following restrictions: he can
only occasionally operate hand controls with his bilateral hands; he can
9 only occasionally use his bilateral upper extremities for reaching; he must
avoid concentrated exposure to moving mechanical parts; [and] he must
10 avoid concentrated exposure to respiratory irritants and temperature
extremes.
11
(AR 16).
12
At step four, based on Plaintiff’s RFC and the vocational expert’s testimony, the
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ALJ found that Plaintiff could perform his past relevant work as a telephone solicitor
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and the “composite job” of telephone solicitor/appointment clerk. (AR 20). The ALJ
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noted that “[t]his work does not require the performance of work-related activities
16
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18 6 An RFC is what a claimant can still do despite existing exertional and nonexertional
limitations. See 20 C.F.R. § 416.945(a)(1).
19 7 “Sedentary work” is defined as
lifting no more than 10 pounds at a time and occasionally lifting or
20 carrying articles like docket files, ledgers, and small tools. Although a
sedentary job is defined as one which involves sitting, a certain amount of
21 walking and standing is often necessary in carrying out job duties. Jobs
are sedentary if walking and standing are required occasionally and other
22 sedentary criteria are met.
20 C.F.R. § 416.967(a); see also Casey H. v. Berryhill, 2018 WL 5629303, at *3 n.3 (C.D.
23 Cal. Oct. 29, 2018).
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1 precluded by [Plaintiff]’s [RFC] . . .” (Id.) The ALJ did not proceed to step five. (Id.).
2 Accordingly, the ALJ determined that Plaintiff had not been under a disability, as
3 defined in the Social Security Act, since the application was filed on November 12, 2014.
4 (Id.).
5 IV. ANALYSIS
6 A. Issues on Appeal
7 Plaintiff raises two issues for review, whether the ALJ properly: (1) evaluated his
8 subjective testimony and complaints; and (2) analyzed the medical opinion of a treating
9 physician. [Dkt. No. 22 (Joint Stipulation), 2]8. Specifically, Plaintiff contends ALJ
10 improperly discounted his statements regarding the nature and severity of his
11 conditions. [Id., pp. 9-12, 17]. In addition, Plaintiff contends that the ALJ failed to
12 provide legally sufficient reasons for rejecting the opinion of his primary care provider,
13 Dr. Imanuel Khalili. [Id., pp. 3-5, 9].
14 B. Standard of Review
15 A United States District Court may review the Commissioner’s decision to deny
16 benefits pursuant to 42 U.S.C. § 405(g). The District Court is not a trier of the facts but
17 is confined to ascertaining by the record before it if the Commissioner’s decision is
18 based upon substantial evidence. Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014)
19 (District Court’s review is limited to only grounds relied upon by ALJ) (citing Connett v.
20 Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)). A court must affirm an ALJ’s findings of
21 fact if they are supported by substantial evidence and if the proper legal standards were
22
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8 The Court addresses the claims in a different order than presented by the parties to
track the ALJ’s decision and provide background and context to Plaintiff’s claim of
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disability.
1 applied. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001). An ALJ can satisfy
2 the substantial evidence requirement “by setting out a detailed and thorough summary
3 of the facts and conflicting clinical evidence, stating his interpretation thereof, and
4 making findings.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citation
5 omitted).
6 “[T]he Commissioner’s decision cannot be affirmed simply by isolating a specific
7 quantum of supporting evidence. Rather, a court must consider the record as a whole,
8 weighing both evidence that supports and evidence that detracts from the Secretary’s
9 conclusion.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (citations and
10 internal quotation marks omitted). “‘Where evidence is susceptible to more than one
11 rational interpretation,’ the ALJ’s decision should be upheld.” Ryan v. Comm’r of Soc.
12 Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (citing Burch v. Barnhart, 400 F.3d 676, 679
13 (9th Cir. 2005)); see Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (“If
14 the evidence can support either affirming or reversing the ALJ’s conclusion, we may not
15 substitute our judgment for that of the ALJ.”). However, the Court may review only “the
16 reasons provided by the ALJ in the disability determination and may not affirm the ALJ
17 on a ground upon which he did not rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir.
18 2007) (citation omitted).
19 Lastly, even if an ALJ errs, the decision will be affirmed where such error is
20 harmless, that is, if it is “inconsequential to the ultimate nondisability determination,”
21 or if “the agency’s path may reasonably be discerned, even if the agency explains its
22 decision with less than ideal clarity.” Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th
23 Cir. 2015) (citation omitted); Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012).
24
1 C. Whether the ALJ Properly Evaluated Plaintiff’s Testimony
2 Plaintiff asserts that the ALJ improperly rejected his subjective testimony by
3 relying solely on its inconsistency with the objective evidence. Defendant contends that
4 the ALJ appropriately found Plaintiff’s testimony not fully supported by the record and
5 Plaintiff’s prior statements about his improved condition.
6 1. Legal Standard for Evaluating Claimant’s Testimony
7 A claimant carries the burden of producing objective medical evidence of his or
8 her impairments and showing that the impairments could reasonably be expected to
9 produce some degree of the alleged symptoms. Benton ex rel. Benton v. Barnhart, 331
10 F.3d 1030, 1040 (9th Cir. 2003). Once the claimant meets that burden, medical
11 findings are not required to support the alleged severity of pain. Bunnell v. Sullivan,
12 947 F.2d 341, 345 (9th Cir. 1991) (en banc); see also Light v. Soc. Sec. Admin., 119 F.3d
13 789, 792 (9th Cir. 1997) (“claimant need not present clinical or diagnostic evidence to
14 support the severity of his pain”) (citation omitted)). Defendant does not contest that
15 Plaintiff carried his burden of producing objective medical evidence of his impairments
16 and showing that the impairments could reasonably be expected to produce some
17 degree of the alleged symptoms. [Dkt. No. 22, pp. 13-14].
18 Once a claimant has met the burden of producing objective medical evidence, an
19 ALJ can reject the claimant’s subjective complaint “only upon (1) finding evidence of
20 malingering, or (2) expressing clear and convincing reasons for doing so.” Benton, 331
21 F.3d at 1040. To discredit a claimant's symptom testimony when the claimant has
22 provided objective medical evidence of the impairments which might reasonably
23 produce the symptoms or pain alleged and there is no evidence of malingering, the ALJ
24 “may reject the claimant’s testimony about the severity of those symptoms only by
1 providing specific, clear and convincing reasons for doing so.” Brown-Hunter, 806 F.3d
2 at 489 (“we require the ALJ to specify which testimony she finds not credible, and then
3 provide clear and convincing reasons, supported by evidence in the record, to support
4 that credibility determination”); Laborin v. Berryhill, 867 F.3d 1151, 1155 (9th Cir. 2017).
5 The ALJ may consider at least the following factors when weighing the claimant’s
6 credibility: (1) his or her reputation for truthfulness; (2) inconsistencies either in the
7 claimant’s testimony or between the claimant’s testimony and his or her conduct; (3) his
8 or her daily activities; (4) his or her work record; and (5) testimony from physicians and
9 third parties concerning the nature, severity, and effect of the symptoms of which she
10 complains. Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2001) (citing Light, 119
11 F.3d at 792). “If the ALJ’s credibility finding is supported by substantial evidence in the
12 record, [the court] may not engage in second-guessing.” Id. at 959 (citing Morgan v.
13 Comm’r Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999)).
14 2. The ALJ provided Clear and Convincing Reasons Supported by
Substantial Evidence
15
16 Having carefully reviewed the record, the Court finds that the ALJ provided
17 specific clear and convincing reasons for discounting Plaintiff’s subjective complaints.9
18 The ALJ found that Plaintiff’s subjective complaints were not entirely consistent with
19 the medical evidence and other evidence in the record, and Plaintiff’s prior statements
20 admitting improvement. (AR 17-19). The ALJ properly relied on those factors for the
21 following reasons.
22
9 The ALJ did not make a finding of malingering in his opinion. (AR 13-21). Thus, in
23
discounting Plaintiff’s subjective complaints, the ALJ was required to articulate specific,
clear and convincing reasons. See Benton, 331 F.3d at 1040; Brown-Hunter, 806 F.3d at
24
489.
1 First, although a lack of, or inconsistency with, objective medical evidence cannot
2 be the sole reason for discounting a claimant’s testimony, it can be one of several factors
3 used in evaluating subjective complaints. See Burch, 400 F.3d at 681 (“Although lack of
4 medical evidence cannot form the sole basis for discounting pain testimony, it is a factor
5 that the ALJ can consider in his credibility analysis.”); Rollins v. Massanari, 261 F.3d
6 853, 857 (9th Cir. 2001). The objective medical evidence of record included the
7 following: (1) while Plaintiff underwent a coronary artery stenting procedure in
8 December 2014, his January and September 2015 echocardiogram showed that his left
9 ventricular ejection fraction was within normal range and without segmental wall
10 motion abnormalities (AR 848); (2) while Plaintiff developed chest pain during his
11 January 2016 exercise nuclear stress test, the pain resolved with rest and the nuclear
12 images were negative for ischemia and his left ventricular ejection fraction was 48% (AR
13 848); (3) Plaintiff’s April 2015 consultative examination “did not demonstrate any
14 clinical abnormalities” (AR 18), including that (a) Plaintiff’s chest showed “no evidence
15 of tenderness” or “kyphosis” (AR 320); (b) he used “no accessory muscles” while
16 breathing and had “normal inspiration, expiration and excursion” (AR 320); (c) his
17 lungs had “bilaterally symmetric breath sounds, clear to auscultation and percussion”
18 (AR 320); (d) there was no evidence of “wheezing, rhonchi or rales”; (e) the expiratory
19 phase was within normal limits (AR 321); (f) Plaintiff’s cardiovascular system showed
20 “no evidence of heaves or thrills”; (g) there was “no evidence of murmurs, rubs, gallops
21 or thrills”; and (h) he had “regular rate and rhythm with normal S1 and S2” (AR 321);
22 (i) although Plaintiff also alleged he was unable to work because of “frozen shoulder,”
23 examination of his shoulders was normal (AR 321); and (4) Plaintiff’s physical
24 examinations in 2015 and 2016 revealed a normal cardiovascular system,
1 pulmonary/chest examination, and musculoskeletal system (AR 797, 800, 803, 807,
2 810, 814, 819, 822, 826, 828, 833, 837, 844).
3 Second, the ALJ detailed a litany of statements Plaintiff made to medical
4 professionals indicating improvement of his condition. (AR 18). Plaintiff fails to
5 acknowledge this part of the ALJ’s decision or refute any of the statements he made.
6 [Dkt. No. 22 (Joint Stipulation), 9-12, 17]. Accordingly, Plaintiff has not properly
7 challenged the ALJ’s determination before the Court. See Greger v. Barnhart, 464 F.3d
8 968, 973 (9th Cir. 2006) (claimant waived issues not raised before the district court);
9 Owens v. Colvin, 2014 WL 5602884, at *4 (C.D. Cal. Nov. 4, 2014) (claimant’s failure to
10 discuss, or even acknowledge, ALJ’s reliance on certain reasons in credibility
11 determination waived any challenge to those aspects of ALJ’s finding); [Dkt. No. 11, p. 5
12 (“Any issue not raised in the joint submission may be deemed waived.”)].
13 Even if the Court were not to find waiver, the ALJ’s reasoning is amply supported
14 by the record. For example: (1) in September 2015 Plaintiff reported to his cardiologist
15 that his chest pain had resolved, he was physically active, and he was walking daily (AR
16 18, 776); (2) in December 2015, Plaintiff reported “feel[ing] good with no new
17 complaints” to his treating physician, Dr. Khalili (AR 821); (3) in January 2016, Plaintiff
18 again reported “feel[ing] good” and denied “chest pain, SOB [shortness of breath] and
19 palpitation” (AR 818); (4) in April 2016, Plaintiff reported “his exercise tolerance much
20 improved after angio and can walk 8 blocks with no chest pain or SOB” (AR 18, 806);
21 (5) Plaintiff continued to report feeling “good” to Dr. Khalili in June, July, August, and
22 October of 2016 (AR 794, 796, 799, 802); (6) in July 2016, Plaintiff told Dr. Khalili that
23 he felt “very good with no complaints, and he had “never been so good before” (AR 18,
24 799); (7) in January 2017 Plaintiff denied chest pain, had no shortness of breath, and
1 “exercises without any distress” (AR 787). Indeed, even at the February 2017 hearing,
2 Plaintiff admitted that his current doctor advises him to exercise as much he can, and
3 that he is “happy” with where Plaintiff is at right now. (AR 40). The ALJ thus properly
4 relied on this reason in assessing Plaintiff’s subjective complains. See Lindquist v.
5 Colvin, 588 F. App’x 544, 547 (9th Cir. 2014) (ALJ properly discounted claimant’s
6 testimony in part because symptoms were controlled); Colter v. Colvin, 554 F. App’x
7 594, 596 (9th Cir. 2014) (ALJ properly discounted claimant’s credibility based on her
8 own admissions and inconsistency between her testimony and descriptions of her
9 activities and abilities).
10 Based on these clear, convincing and specific reasons for discounting Plaintiff’s
11 subjective complaints and the substantial evidence to support his determination, the
12 Court concludes that the ALJ did not commit error in assessing Plaintiff’s testimony.
13 D. Whether The ALJ Properly Evaluated A Treating Physician
14 Opinion
15 Plaintiff contends that the ALJ improperly rejected the opinion of Dr. Kahlili, and
16 more weight should have been assigned to it because he was a treating physician.
17 Defendant contends that the ALJ properly assessed the opinion.
18 1. Standard for Weighing Medical Opinions
19 The ALJ must consider all medical opinion evidence. 20 C.F. R. § 416.927(b).
20 “As a general rule, more weight should be given to the opinion of a treating source than
21 to the opinion of doctors who do not treat the claimant.” Lester, 81 F.3d at 830 (citing
22 Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987)). Where the treating doctor’s
23 opinion is not contradicted by another doctor, it may only be rejected for “clear and
24 convincing” reasons. Id. (citing Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005)).
1 “If a treating or examining doctor’s opinion is contradicted by another doctor’s opinion,
2 an ALJ may only reject it by providing specific and legitimate reasons that are supported
3 by substantial evidence.” Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (quoting
4 Bayliss, 427 F.3d at 1216). In Trevizo, the Ninth Circuit addressed the factors to be
5 considered in assessing a treating physician’s opinion.
6 The medical opinion of a claimant’s treating physician is given
“controlling weight” so long as it “is well-supported by medically
7 acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence in [the
8 claimant’s] case record.” 20 C.F.R. § 404.1527(c)(2). When a
treating physician’s opinion is not controlling, it is weighted
9 according to factors such as the length of the treatment
relationship and the frequency of examination, the nature and
10 extent of the treatment relationship, supportability, consistency
with the record, and specialization of the physician. Id.
11 § 404.1527(c)(2)-(6).”
12 871 F.3d at 675.
13 “Substantial evidence” means more than a mere scintilla, but less than a
14 preponderance; it is such relevant evidence as a reasonable person might accept as
15 adequate to support a conclusion.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir.
16 2007) (citing Robbins, 466 F.3d at 882). “The ALJ can meet this burden by setting out a
17 detailed and thorough summary of the facts and conflicting clinical evidence, stating his
18 interpretation thereof, and making findings.” Magallanes v. Bowen, 881 F.2d 747, 751
19 (9th Cir. 1989) (citation omitted); see also Tommasetti v. Astrue, 533 F.3d 1035, 1041
20 (9th Cir. 2008) (finding ALJ had properly disregarded a treating physician’s opinion by
21 setting forth specific and legitimate reasons for rejecting the physician’s opinion that
22 were supported by the entire record).
23
24
1 2. The ALJ Gave Specific and Legitimate Reasons, Supported by
Substantial Evidence, for Assigning Less Weight to the Treating
2 Physician Opinion
3 Preliminarily, the Court notes the ALJ did not reject Dr. Khalili’s opinion in its
4 entirety. The ALJ declined to give it controlling weight and instead assigned “little”
5 weight. (AR 19). By providing a detailed summary of the opinion and assigning “little”
6 weight, the ALJ necessarily gave consideration and credited aspects of that opinion.
7 (AR 19). Indeed, the ALJ limited Plaintiff’s RFC to sedentary work, restricted his
8 handling and reaching, and precluded him from concentrated exposure to respiratory
9 irritants and temperature extremes, which at least partially reflected portions of the
10 treating opinion. (AR 16).
11 To the extent the ALJ did not fully adopt the limitations in the opinion, he
12 complied with Magallanes and provided specific and legitimate reasons for doing so that
13 are supported by the record.
14 First, the ALJ mentioned that Dr. Khalili’s progress notes offered little, if any,
15 clinical signs that would support the extreme limitations he assessed. (AR 19). This
16 reason is supported by the record. For example, Dr. Khalili’s progress notes regularly
17 showed normal cardiovascular examination findings, such as normal heart rate, regular
18 rhythm, and normal heart sounds. (AR 797, 800, 803, 807, 810, 814, 819, 822, 826,
19 828, 833, 837, 844). Further, pulmonary and chest examinations were similarly
20 normal, revealing normal breath sounds, no respiratory distress, no wheezes, and no
21 tenderness. (Id.) Moreover, as Defendant points out, the progress note Dr. Khalili
22 completed on December 7, 2015—the same day he indicated he “signed for [Plaintiff]”
23 his “paper for disability” (AR 824)—shows that Plaintiff reported “feel[ing] good with no
24 new complaints.” [Dkt. No. 22, p. 7]; (AR 821). Plaintiff’s physical examination that day
1 also showed normal physical and mental findings. (AR 822). Further, as discussed
2 above, Plaintiff made several comments to Dr. Khalili during other visits about his
3 improved condition. The ALJ properly relied on the lack of support for Dr. Khalili’s
4 opinion in his own progress notes. See Wilhelm v. Comm’r Soc. Sec. Admin., 597 F.
5 App’x 425, 425 (9th Cir. 2015) (ALJ properly rejected doctor’s opinion because it
6 contradicted her own treatment notes); Shavin v. Comm’r Soc. Sec. Admin., 488 F.
7 App’x 223, 224 (9th Cir. 2012) (ALJ may reject physician’s opinion by “noting legitimate
8 inconsistencies and ambiguities in the doctor’s analysis or conflicting lab test results,
9 reports, or testimony” (internal citation omitted)).
10 Second, and relatedly, the ALJ found that the basis for Dr. Khalili’s opinion was
11 unclear. (AR 19). The form opinion completed by Dr. Khalili requested, for each
12 activity assessed, the doctor to “[i]dentify the particular medical findings (e.g., physical
13 examination findings, x-ray findings, laboratory test results, history, symptoms
14 (including pain), etc.) which support your opinion regarding limitations.” (AR 327).
15 Yet, in the blanks on the form, Dr. Khalili simply listed his diagnosis of coronary artery
16 disease and osteoarthritis, and Plaintiff’s subjective complaints, which the ALJ
17 discounted as previously explained. (AR 328-29). No other medical “findings” were
18 identified in the form opinion, even though they were requested. As such, in deciding to
19 assign Dr. Khalili’s opinion less weight, the ALJ properly relied on the lack of a clear
20 basis for the opinion. See, e.g., Bray v. Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1228
21 (9th Cir. 2009) (citation omitted) (“The ALJ need not accept the opinion of any
22 physician . . . if that opinion is brief, conclusory, and inadequately supported by clinical
23 findings.”); Morgan, 169 F.3d at 602 (disability opinion “premised to a large extent
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1 upon the claimant’s own accounts of his symptoms and limitations may be disregarded
2 where those complaints have been properly discounted” (quotations omitted)).
3 Accordingly, the Court concludes that the ALJ provided “specific and legitimate”
4 reasons based on substantial evidence for him assigning little weight to Plaintiff’s
5 treating physician’s opinion.
6 V. CONCLUSION
7 For the reasons stated above, the decision of the Social Security Commissioner is
8 AFFIRMED, and the action is DISMISSED with prejudice. Judgment shall be entered
9 accordingly.
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11 DATE: March 18, 2020
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/s/ Autumn D. Spaeth
13 THE HONORABLE AUTUMN D. SPAETH
United States Magistrate Judge
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