“If the ALJ wishes to disregard 17 | the opinion of the treating physician, he or she must make findings setting forth 18 | specific, legitimate reasons for doing so that are based on substantial evidence in 19 | the record.” (citation omitted)
How later courts described this case
- “If the ALJ wishes to disregard 17 | the opinion of the treating physician, he or she must make findings setting forth 18 | specific, legitimate reasons for doing so that are based on substantial evidence in 19 | the record.” (citation omitted)
- noting that in Valencia, “the least demanding aspect” of the past 20 job was something the claimant did less than half the time, and ALJ erred in 21 equating that one task with a full time job
- holding that ALJ erred in classifying the claimant’s prior 10 work as a “tomato sorter” involving only light exertion because the claimant was 11 actually an “agricultural laborer” who mostly performed other, medium exertion 12 tasks
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 | KHATCHIK H., Case No. 2:19-cv-04843- KES
12 Plaintiff,
MEMORANDUM OPINION AND
ORDER
14 | ANDREW M. SAUL, Commissioner
5 of Social Security,'
16 Defendant.
17
18 I.
19 PROCEDURAL BACKGROUND
20 Plaintiff Khatchik H. (“Plaintiff”) applied for Title II Social Security
21 | disability insurance benefits on July 28, 2015, alleging a disability onset date of
22 | December 31, 2011, with a date last insured (“LDI’) of December 31, 2016.”
23 | Administrative Record (“AR”) 22, 174-75. On September 26, 2017, and March 9,
24
25 ' Andrew Saul is now the Commissioner of Social Security and is
automatically substituted as a party pursuant to Fed. R. Civ. P. 25(d).
27 Despite an alleged onset date of 2011, Plaintiff’s earliest medical records
08 date from July 2013 (see AR 239). AR 44 (discussing lack of earlier records).
1 2018, an Administrative Law Judge (“ALJ”) conducted hearings at which Plaintiff,
2 who was represented by a non-attorney representative, appeared and testified, as
3 did a vocational expert (“VE”). AR 68-74, 37-67, 135. On March 27, 2018, the
4 ALJ from the second hearing issued an unfavorable decision. AR 22-36. The ALJ
5 found that Plaintiff suffered from medically determinable severe impairments
6 consisting of “degenerative joint disease of the shoulders and cervical spine; type
7 II diabetes mellitus with peripheral neuropathy; degenerative joint disease of the
8 lumbar spine, and carpal tunnel syndrome” (“CTS”). AR 24. Despite these
9 impairments, the ALJ found that Plaintiff had the residual functional capacity
10 (“RFC”) to perform “light” work with limitations to (1) “occasional” postural
11 activities and working at heights, and (2) “frequent” reaching, handling, and
12 fingering with both upper extremities. AR 25. In the social security context,
13 “occasional” means up to 1/3 of the workday, while “frequent” means up to 2/3 of
14 the workday. See Social Security Ruling (“SSR”) 83-10, 1983 WL 31251, at *5-6
15 (Jan. 1, 1983).
16 Based on this RFC and the VE’s testimony, the ALJ found that Plaintiff
17 could perform his past relevant work as a warehouse manager as that job is
18 generally performed. AR 32, citing Dictionary of Occupational Titles (“DOT”)
19 184.167-114. The ALJ concluded that Plaintiff was not disabled. Id.
20 II.
21 ISSUES PRESENTED
22 Issue One: Whether the ALJ gave clear and convincing reasons for
23 discounting Plaintiff’s subjective symptom testimony. (Dkt. 20, Joint Stipulation
24 [“JS”] at 3-4.)
25 Issue Two: Whether the ALJ erred by (1) giving “little weight” to the
26 medical source statement (“MSS”) at AR 431-34; (2) giving “great weight” to the
27 consultative examiner, Dr. Afra, and/or (3) giving “partial weight” to the state
28 medical consultant, Dr. Bessent. (JS at 3, 17.)
] Issue Three-A: Whether the ALJ’s RFC determination is supported by
2 || substantial evidence. (Id. at 3.) Plaintiff contends that he should be limited to
3 | occasional (not frequent) reaching with no overhead reaching. (Id. at 3, 27.)
4 Issue Three-B: Whether the ALJ erred by characterizing Plaintiffs past
5 | relevant work as that of a “warehouse manager.” (Id. at 3, 28.)
6 II.
7 SUMMARY OF RELEVANT EVIDENCE
8 A. Plaintiff’s Testimony.
9 Plaintiff applied for disability benefits claiming diabetes-related numbness
10 | in his fingers, pain affecting his back, right leg, neck, arms, and shoulders, and
11 | swelling in his legs, among other conditions. AR 190.
12 Plaintiff testified that he and his brother used to own and operate an auto
13 | parts business where he lifted “a lot of heavy stuff,” until he had a heart attack and
14 | later hurt his back and shoulders. AR 45-46, 48, 52. He described an incident
15 | when he tried to lift something heavy that “we sold” from a shelf, causing him to
16 | fall and be taken to Olive View UCLA Medical Center (“Olive View”). AR 46-47.
17 | Plaintiff testified that he tried to apply for disability benefits after the initial
18 | accident, but a “guy” in Van Nuys discouraged him, telling him that it was “too
19 | late.’ AR 50-51. Plaintiff also described a second, similar incident in 2015,
20 | stating at one point that it occurred at his “son’s house.” AR 49. The ALJ noted
21 | that he had reported to doctors that the 2015 incident was a work injury, and
22 | Plaintiff explained that he told doctors that his 2015 accident was a work injury
23 | because his pain started at work in 2011.° Id. He testified that after the 2015
24 | incident, he could not lift “both hands up, especially the right one,” and he started
>In September 2017, Plaintiff told Olive View’s Dr. Stephanie Wang that he
26 | “suffered a work injury 2 yrs ago,” after which he had “persistent bilateral shoulder
27 | pain with limited” range of motion. AR 636; see also AR 647 (attributing shoulder
08 pain to “work injury 2015”).
1 to receive periodic shoulder injections for pain relief. AR 47.
2 When asked why he stopped working in December 2011, Plaintiff testified
3 that he suffered a heart attack in approximately 2008. AR 52-53. When he “got
4 sick” and “couldn’t work,” his brother “didn’t take care of the business,” so they
5 “end[ed] up closing the place” after 27 years in business. AR 52.
6 Since he stopped working, he has been bored because he “can’t do
7 anything,” so he often sits and watches TV and talks to family members. AR 50.
8 His doctors told him to walk, but when he walks, his ankles swell, so his son got
9 him a “small machine” that he can pedal “like bicycling” while sitting. AR 55. He
10 did not testify how often he uses the machine.
11 He went to a chiropractor who did spinal manipulations that felt “very
12 good,” but he discontinued chiropractic treatments; his son was paying for them,
13 and he did not want to burden his son. AR 55. He also tried acupuncture, but that
14 did not relieve his pain. AR 55-56.
15 Regarding CTS, he testified that his hands started to “get swollen at night,”
16 but his doctors gave him a “special brace” to wear and that “kind of helped.” AR
17 47.
18 Plaintiff also completed an Exertion Questionnaire in September 2015. At
19 that time, he claimed pain in his back, shoulders, fingers, and right leg. AR 197.
20 His pain medications were naproxen and ibuprofen. AR 193, 199. He stated, “I’m
21 home a lot and mostly pass my time watching TV. I’ll read, lay on the couch, go
22 outside for a breath of fresh air, chat with my family, and just pass the day
23 accordingly.” AR 197. His walking was limited to 8 minutes due to shortness of
24 breath and back pain. Id. He could climb stairs and lift small items (like a grocery
25 bag or pot of food) weighing 10-12 pounds. AR 198. He went grocery shopping
26 periodically, and he could take out the trash, wash dishes, make the bed, and drive
27 a car. Id.
28 In October 2017, he told medical providers that he “spends time at home
1 | reading and watching TV. Is a support for his wife with MS.* ... Would like to
2 | be more active. Enjoys going to church once every 2-3 weeks.” AR 646. He
3 || helped his wife with personal care, including using the bathroom. AR 653.
4 B. Summary of Treating Records through December 2016 LDI.
5 Plaintiff's medical records provide additional evidence about his activities
6 | and physical condition. In July 2013, Plaintiff went to Olive View reporting that
7 | he “was cleaning out his garage several days ago and was really sweaty from the
8 | work he was doing in combination of the heat and felt an itch” in his left scrotum
9 | which he scratched, then noticed swelling and suspected an infection. AR 239. He
10 | reported pain in the affected area at a level 2/10 and “denie[d] pain elsewhere.”
11 | AR 239, 242. A physical examination noted no other abnormalities. AR 240. He
12 | was discharged with a “steady gait.” AR 244.
13 In November 2013, he was not on any pain medication and was counselled
14 | to exercise for diabetes management. AR 249-50. He told his doctors that he was
15 | feeling sad after the “loss of his business.” AR 250; AR 260 (noting business
16 | closed, causing Plaintiff to lose health insurance).
17 In March 2014, Plaintiff was treated for the flu. AR 252-53. He was still
18 | not taking any pain medication. AR 255, 259. He blamed recent “family troubles”
19 | for not “keeping up with his exercise or diet.” AR 259. He did not complain of
20 | muscle aches. AR 261.
21 On March 27, 2014, he told Olive View that he had “new right lower back
22 | pain” that “started 6 weeks ago while turning to the side.” AR 262. He described
23 | the pain as “similar” to pain he experienced “6 years ago” (1.e., about 2008) when
24 | he was told he had a “spasm of the sciatic nerve.” Id. A straight-leg raising test
25 || was negative, and Olive View opined that his pain was “likely sciatica.” AR 263.
26
7 4 Per his IFP application, Plaintiff’s wife receives social security disability
08 benefits. (Dkt. 4 at 3.)
1 Plaintiff was prescribed ibuprofen for 10 days. Id.
2 In September 2014, Plaintiff presented at Olive View complaining of neck
3 pain caused by a new pillow. AR 265-66. He denied upper or lower extremity
4 weakness and back pain. AR 266. He had 5/5 motor strength in his upper
5 extremities with no loss of sensation. AR 267. His neck pain was improving since
6 he stopped using the pillow. AR 268-69. After taking Motrin, his neck pain was at
7 level 2/10, and he was discharged with a “steady gait.” AR 269-70. His neck pain
8 resolved within a few days. AR 275.
9 At a visit for diabetes management in May 2015, Plaintiff did not complain
10 of any pain, and he was not taking pain medication. AR 309. He exhibited “no
11 evidence of neuropathy” and “no LE [lower extremity] edema.” Id.
12 On July 8, 2015, Plaintiff complained of back and shoulder pain for the last
13 two months “aggravated by lifting heavy object over his head.” AR 292, 311. He
14 denied neck pain. Id. An x-ray of his right shoulder revealed no fracture but
15 “minimal” osteoarthrosis and tendinosis “which may or may not be symptomatic in
16 this patient.” AR 299, 316. The medical staff assessed bilateral shoulder pain,
17 referred him to rheumatology, and prescribed Naproxen for 2 weeks. AR 292.
18 There are no records of a subsequent appointment with a rheumatologist.
19 In September 2015, Plaintiff complained of “numbness/tingling shooting
20 down his left arm when he is trying to sleep.” AR 345. At that time, however, he
21 had no lower extremity edema and “full strength and full sensation.” Id. This
22 record says nothing about Plaintiff being unable to lift either arm overhead.
23 On November 4, 2015, Plaintiff presented at Olive View complaining of
24 shoulder pain, but he “denied any injury.” AR 343. A lumbar spinal x-ray
25 revealed “only mild osteoarthorisis.” Id.; AR 326 (x-ray report). Staff observed
26 that he had full range of motion but “pain on overhead motion” with both
27 shoulders. AR 344. Plaintiff was “started on Naproxen which helped” and
28 scheduled for a follow-up visit in January. AR 343.
1 Just a few days later, Plaintiff underwent a consultative examination with
2 Dr. Afra on November 12, 2015. AR 319. Dr. Afra did not review Plaintiff’s
3 medical records other than the x-ray of Plaintiff’s lumbar spine taken at Olive
4 View days earlier. AR 319, 324. Plaintiff complained of pain affecting his neck,
5 shoulders, arms, hands, lower back, and right leg, and swelling in his legs. AR
6 320. Dr. Afra, however, observed no lower extremity edema. AR 322. Plaintiff
7 had a full range of motion in his neck and shoulders but with tenderness and some
8 pain. Id. He had a slightly reduced range of motion in his dorsolumbar area, but a
9 straight-leg raising test was negative. AR 323. His motor strength was 5/5 with
10 “normal muscle bulk and tone.” Id. Plaintiff could walk “without difficulties,”
11 including walking on his toes and heels. AR 324. Dr. Afra opined that Plaintiff
12 could do light work with “frequent” fine and gross use of his hands. AR 324-25.
13 In March 2016, Plaintiff’s doctors recommended an injection to address his
14 shoulder pain, but the procedure was postponed while he finished antibiotics to
15 treat an infection. AR 334. His doctors attributed his shoulder pain “likely 2/2
16 [secondary to] previous rotator cuff injury.” AR 336. Plaintiff told his doctors he
17 had attended physical therapy, but they had no “notes in computer.” AR 337. At
18 that time, Plaintiff had no lower extremity edema. Id.
19 Also in March 2016, Plaintiff complained of wrist pain and was diagnosed
20 with CTS that Plaintiff claimed was “debilitating, not allowing patient to work”
21 (although he had “tried ice only”). AR 337. Plaintiff received wrist braces and
22 counselling “about good ergonomics when using computer.” AR 335, 337.
23 In April 2016, Plaintiff received his first right-shoulder injection. AR 331,
24 527. He had decreased range of motion in his right shoulder pre-injection, but
25 after a partial treatment, he reported “no pain and had improvement in ROM.” Id.
26 In May 2016, Plaintiff reported trouble lifting his right arm overhead to
27 wash his hair. AR 519. He felt that shoulder injections “helped somewhat” and he
28 wanted to continue them. Id. He was counseled to continue physical therapy and
1 | take Tylenol for pain. AR 520.
2 On August 23, 2016, Plaintiff reported sharp left wrist pain (AR 514), but by
3 | August 30, his wrist pain was “much better ... almost resolved.” AR 509. He had
4 | a full range of motion in his elbows and wrists. Id. Wrist x-rays showed “mild
5 | generalized osteoarthritis.” AR 512.
6 In October 2016, Olive View described Plaintiff as suffering “chronic r[ight]
7 | shoulder pain (negative XR [x-rays]) s/p [status post] rotator cuff injury at work.”
8 | AR 501. On exam, Plaintiff could not “lift his right shoulder above horizontal.”
9 | Id.
10 In November 2016, Plaintiff underwent testing to assess his shoulder pain.
11 | AR 491. The findings included “moderate osteoarthritis.” Id. X-rays of his right
12 | shoulder were taken and compared to 2015 films, revealing “unchanged”
13 | conditions. AR 496. X-rays of his left shoulder showed no significant joint
14 | narrowing. AR 498. A physical exam revealed full range of motion for his left
15 | shoulder with “slight limitation” on the right. AR 499.
16 In December 2016, Plaintiff’s doctors again saw “no swelling, no edema;”
17 | he was “using all extremities.” AR 487.
18 While being evaluated for sleep apnea in November 2017, Plaintiff denied
19 | musculoskeletal pain and edema and displayed a “stable gait.” AR 649.
20 IV.
21 DISCUSSION
22 A. ISSUE One: Plaintiff’s Subjective Symptom Testimony.
23 1. Rules Governing Subjective Symptom Testimony Analysis.
24 It is the ALJ’s role to evaluate the claimant’s testimony regarding subjective
25 | pain or symptoms. See Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012).
26 | “[T]he ALJ is not required to believe every allegation of disabling pain, or else
27 | disability benefits would be available for the asking, a result plainly contrary to 42
28 | U.S.C. § 423(d)(5)(A).” Id. at 1112. An ALJ’s assessment of symptom severity is
1 entitled to “great weight.” Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989).
2 If an individual alleges impairment-related symptoms, the ALJ must
3 evaluate those symptoms using a two-step process. First, “the ALJ must determine
4 whether the claimant has presented objective medical evidence of an underlying
5 impairment ‘which could reasonably be expected to produce the pain or other
6 symptoms alleged.’” Treichler v. Comm’r of SSA, 775 F.3d 1090, 1102 (9th Cir.
7 2014) (citation omitted). Second, if the claimant meets the first test, the ALJ may
8 discredit the claimant’s subjective symptom testimony only upon making specific
9 findings that support the conclusion. Berry v. Astrue, 622 F.3d 1228, 1234 (9th
10 Cir. 2010). Absent a finding or affirmative evidence of malingering, the ALJ must
11 provide “clear and convincing” reasons for rejecting the claimant’s testimony.
12 Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996). If the ALJ’s findings are
13 supported by substantial evidence in the record, courts may not engage in second-
14 guessing. Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002).
15 2. Summary of the ALJ’s Analysis.
16 The ALJ found that the evidence of record “suggests the claimant’s actual
17 ability to perform basic work functions is far greater than alleged.” AR 26. The
18 ALJ gave at least the following reasons for discounting Plaintiff’s subjective
19 symptom testimony: (1) lack of supporting objective evidence (AR 26);
20 (2) Plaintiff’s inconsistent statements about the timing and origin of his injuries
21 (AR 26-27); (3) the lack of treatment records between December 2011 and July
22 2015 for pain (AR 26-28); (4) conservative pain treatment after July 2015 (AR 28-
23 32); (5) evidence that Plaintiff engaged in activities inconsistent with his claimed
24 limitations (id.); and (6) medical records during his period of claimed disability in
25 which Plaintiff denied pain (AR 28-29).
26 3. Substantial Evidence Supports the ALJ’s Analysis.
27 a. Reason One: Lack of Supporting Objective Evidence.
28 “Although lack of medical evidence cannot form the sole basis for
1 discounting pain testimony,” ALJs may consider that factor in their analysis.
2 Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005).
3 All the pre-LDI x-rays of Plaintiff’s shoulders, neck, and spine failed to
4 reveal any physical abnormalities consistent with disabling levels of pain. AR 326,
5 343, 491-99.
6 b. Reason Two: Plaintiff’s Statements About the Timing and
7 Origin of his Injuries.
8 The ALJ asked Plaintiff if he had a “work injury in 2015.” AR 45. Plaintiff
9 replied, “Little bit, maybe, yeah, 2014, ‘15, yes.” Id. The ALJ then noted that
10 there were “two references” and asked Plaintiff to explain the source of his
11 limitations. Id. Plaintiff launched into a description of his “auto parts business,”
12 explaining how “auto parts” include “a lot of heavy and bigger stuff,” such that he
13 hurt his back and shoulders lifting such items. AR 45-46. When pressed for
14 details about exactly what he was doing when he got hurt, Plaintiff explained that
15 he was “lifting” something “we sold … from the shelf,” at which point his “hands
16 went backward” and he fell. AR 46. The ALJ then asked, “So, you’re alleging
17 that you were disabled since 2011?” Id. Plaintiff replied, “Yes, I was working and
18 I got hurt, but got more hurt in 2015.” Id. The ALJ then asked him about the 2015
19 injury, and Plaintiff stated that he fell again in around July 2015 and a couple days
20 later went to the emergency room at Olive View. AR 48. He was not working at
21 the time of this 2015 injury; he instead was at his son’s house, climbed on a step
22 ladder, tried to lift a box, and “both of [his]hands went backwards and [he] fell.”
23 AR 49.
24 The ALJ first noted, accurately, that the record supports the notion that
25 Plaintiff stopped working in 2011 because his business closed, not because of a
26 disabling work injury.5 Plaintiff produced no treating records for a fall from a
27
5 Per earnings reports, Plaintiff worked for Beverly German Auto Parts, Inc.
28 AR 180. He earned $50,000 or more in 2008 and 2009, but he earned only
1 ladder in 2011, and he never told any treating source that the history of his back
2 and shoulder pain involved a 2011 work injury.6 Instead, he told them that he had
3 suffered a work injury in 2015. AR 501, 636, 647. Indeed, in his July 2015 trip to
4 Olive View, he stated that his shoulder pain had started two months earlier.7 See
5 AR 292, 311.
6 Plaintiff also claimed that “everything started[ed] to go downhill” and he
7 “couldn’t work” after he “had a heart attack” in 2008.8 See AR 27 (citing hearing
8 testimony). Yet notes from a November 2015 examination state that in 2008,
9 Plaintiff “presented to the hospital because of chest pain” and “was told that he
10 may have had a heart attack in the past,” but he was not admitted to the hospital for
11 a heart attack. AR 320-21 (emphasis added). The ALJ noted that there were no
12 medical records of evidence for Plaintiff’s alleged heart attack. See AR 27.
13 Considering all of Plaintiff’s statements together with the lack of treating records
14 for any 2011 injury, Plaintiff’s failure to pursue benefits in 2011, and Plaintiff’s
15 statements to multiple doctors that he suffered a work injury in 2015, the ALJ
16 reasonably concluded that Plaintiff made inconsistent statements about the timing
17
$10,000 in 2010 and $5,000 in 2011. The corporation declared bankruptcy in
18 February 2013. CDCA case no. 2:13-bk-14408-RN. Thus, the business appears to
have been suffering as early as 2010, at least a year before Plaintiff claims that he
19
became disabled.
20
6 Plaintiff did claim in his August 2015 disability report that he had stopped
21
working on December 31, 2011, because of his “conditions.” AR 190. This is not
22 outweighed by the other evidence in the record that a physical impairment was not
why Plaintiff stopped working.
23
7 Notably, Plaintiff’s medical records from two months earlier do not
24
mention back or shoulder pain. Instead, at his May 11, 2015 Olive View
25 appointment, Plaintiff did not tell he doctors that he was experiencing pain, and he
was not taking any prescription pain medication. AR 309-10.
26
27 8 That Plaintiff did not list this heart attack as his date of disability is
irrelevant. He clearly tied his later disability to the alleged 2008 heart attack.
28
1 and origin of his back and shoulder pain, casting doubt on the veracity of his claim
2 to have been suffering from disabling pain since December 2011.9
3 c. Reason Three: Lack of Treatment Records.
4 The ALJ is permitted to consider lack of treatment in his credibility
5 determination. Burch, 400 F.3d at 681.
6 While Plaintiff claims a disability onset date of December 31, 2011, the ALJ
7 noted that he produced no treating records between 2011 and July 2013. AR 27.
8 When the record started in July 2013, Plaintiff did not have any back or neck pain.
9 Rather, he was cleaning out his garage and denied pain anywhere except for his
10 groin area where he had a skin infection. Id., citing AR 239, 242. As late as May
11 2015, he was not complaining of pain and was not taking any pain medication. AR
12 28, citing AR 309. This supports the ALJ’s conclusion that Plaintiff’s medical
13 history is inconsistent with his claim to have been suffering from disabling pain
14 since he stopped working in December 2011.
15 d. Reason Four: Conservative Treatment.
16 A conservative course of treatment can provide reason to discount a
17 plaintiff’s subjective opinion testimony about the severity of an impairment. Parra
18 v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007).
19 Per the AR, Plaintiff was not receiving any treatment for back and shoulder
20 pain before July 2015. The ALJ summarized Plaintiff’s medical records from late
21
22 9 Plaintiff cites to the second hearing where his representative stated that,
23 based on Plaintiff’s 2015 injury, Plaintiff was “open to an amendment, if that is
something you might want to consider.” AR 66. Plaintiff states that the ALJ
24
therefore should have at least found him disabled after 2015. (See JS at 6-7.) The
25 issue raised on appeal is whether the ALJ permissibly discounted Plaintiff’s
subjective symptom testimony. Along with other clear and convincing reasons, the
26
ALJ permissibly considered, as part of the totality of how to weigh Plaintiff’s
27 allegations, that Plaintiff’s statements about the origins of his injuries were
inconsistent.
28
1 2015 and early 2016 and concluded that after receiving injections and physical
2 therapy, he was “doing well” and “feeling better.” AR 29, citing AR 331. His
3 doctors recommended that he continue with that treatment and take Tylenol as
4 needed. AR 30, citing AR 520. Even in 2017, Plaintiff’s treating sources advised
5 him to continue with injections and physical therapy, taking ibuprofen as needed.
6 AR 31, citing 647. Plaintiff was never referred for a surgical evaluation. AR 31.
7 He also never received EMG testing to confirm his CTS diagnosis. AR 32. As
8 late as November 2017, Plaintiff denied swelling and musculoskeletal pain. AR
9 649.
10 This evidence supports the ALJ’s conclusion that the treatment Plaintiff
11 received even after July 2015 was far more conservative than one would expect for
12 a person with the extreme functional impairments claimed by Plaintiff, i.e., he
13 cannot walk more than 8 minutes, he cannot lift more than 12 pounds, and he
14 “can’t do anything,” so he spends most of his typical day watching television. AR
15 50, 197-98.
16 e. Reason Five: Inconsistent Activities.
17 The ALJ identifies three activities Plaintiff performed during his period of
18 claimed disability as inconsistent with his claimed limitations: (1) cleaning out his
19 garage in 2013 (AR 27, citing AR 239); (2) lifting a heavy box overhead in July
20 2015 (AR 26-27, citing AR 292); and (3) assisting his wife, including to use the
21 bathroom (AR 31, citing AR 646, 653).
22 Plaintiff argues that since these were not his “daily” activities, they are
23 irrelevant. (JS at 6.) This argument misses the point. Doing such strenuous
24 activities even once after December 31, 2011, evidences greater exertional abilities
25 than those claimed by Plaintiff. Moreover, Plaintiff’s need to provide physical
26 assistance to his disabled wife would appear to be a regular activity, not an isolated
27 one.
28 Plaintiff also argues that his ability to do periodic vigorous activities is not
1 proof that he could do his past relevant work. (JS at 6.) Again, the ALJ cited these
2 activities as inconsistent with Plaintiff’s claimed limitations, not as evidence of his
3 RFC. The ALJ assessed an RFC for “light” work, which is less demanding than
4 lifting heavy boxes, moving items around to clean out a garage, or being a home
5 health aide. See DOT 354.377-014 (classifying home health aide as medium
6 work).
7 f. Reason Six: Plaintiff’s Inconsistent Statements About Pain.
8 The ALJ noted that when Plaintiff applied for disability benefits in July
9 2015, Plaintiff claimed disabling pain affecting his back, right leg, shoulder, neck,
10 and arms along with leg swelling. AR 26, citing AR 190. The ALJ then cites his
11 treating records from July 2013 through July 2015. Those records do not contain
12 any complaints of chronic pain. They discuss (1) a March 2014 incident of sciatica
13 with a negative straight-leg raising test (AR 262-63) and (2) neck pain attributed to
14 using a new pillow that quickly resolved (AR 265-70).
15 The ALJ noted that while in July 2015 and afterwards, Plaintiff told his
16 doctors that he was suffering shoulder pain, physical examinations from this time
17 period revealed unimpaired motor strength and normal muscle tone, full range of
18 motion, although with some tenderness, and reports of improvement from
19 injections. AR 322-23, 331, 344-45, 487, 519, 527, 649. The ALJ noted that in
20 May 2017, Plaintiff told his doctors he “felt well,” and in November 2017, he
21 denied pain. AR 30, citing AR 461, 649.
22 Similarly, while Plaintiff claimed disability on the basis of swelling affecting
23 his legs (AR 26, citing AR 190) and testified that his walking was limited due to
24 ankle swelling (AR 55), no medical source ever observed swelling or edema
25 affecting Plaintiff’s lower extremities. AR 30, citing AR 435-36; see also AR 309,
26 337, 345, 487. The ALJ noted that instead Plaintiff was consistently observed to
27 have a steady gait (AR 244, 649) with normal muscle strength and tone (AR 266-
28 67, 323, 345, 441).
] Claimants cannot describe their pain to their treating doctors as mild while
2 | describing it as far worse to the SSA to try to qualify for disability benefits. The
3 || above-cited evidence supports the ALJ’s finding that Plaintiff was exaggerating the
4 | degree of his shoulder pain and its resulting functional limitations.
5 B. ISSUE TWO: Medical Opinion Evidence.
6 1. Summary of the Relevant Law.
7 ‘As a general rule, more weight should be given to the opinion of a treating
8 | source than to the opinion of doctors who do not treat the claimant.” Turner v.
9 | Comm’r of SSA, 613 F.3d 1217, 1222 (9th Cir. 2010) (citation omitted). This rule,
10 | however, is not absolute. “Where... anontreating source’s opinion contradicts
11 | that of the treating physician but is not based on independent clinical findings, or
12 | rests on clinical findings also considered by the treating physician, the opinion of
13 | the treating physician may be rejected only if the ALJ gives specific, legitimate
14 | reasons for doing so that are based on substantial evidence in the record.”
15 | Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (citation omitted); see also
16 | Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (“If the ALJ wishes to disregard
17 | the opinion of the treating physician, he or she must make findings setting forth
18 | specific, legitimate reasons for doing so that are based on substantial evidence in
19 | the record.” (citation omitted)).
20 2. Medical Source Statement at AR 431-34.
21 a. Summary of Opinions.
22 The September 7, 2017 MSS is signed by an illegible medical source with
23 | no identification of his/her employer. AR 434. It follows a title page in the AR
24 | stating, “Records From: Dr. Joey Tu, Olive View.” AR 430. According to the
25 | MSS, Plaintiff is limited to lifting less than 10 pounds, but his ability to stand and
26 | walk are unaffected by his impairments. AR 431. The MSS limited Plaintiffs use
27 | of his upper extremities, explaining as follows:
28 Work injury in 2015 lifting heavy object. Suspect rotator cuff injury
15
1 bilaterally as patient with very limited range of motion of upper
2 extremity; unable to lift arms above 90°. Strength flexion/extension
3 also impaired by pain. Working with physical therapy to improve
4 mobility.
5 AR 432. The MSS goes on to find Plaintiff’s reaching and handling “limited” but
6 his fingering “unlimited.” AR 433. When asked, however, how often Plaintiff
7 could perform these activities, the source checked “constantly” for reaching and
8 handling. Id. The source opined that Plaintiff’s ability to maintain concentration
9 was compromised by pain. Id. Finally, the source wrote, “Unable to fully use his
10 arms. Cannot operate machinery at this time.” AR 434.
11 b. The ALJ’s Analysis.
12 The ALJ gave this MSS “little weight.” AR 31. The ALJ explained (1) the
13 author’s identity is unknown, precluding consideration of factors such as the length
14 of the treating relationship (if any) and specialization of the source (if any);
15 (2) there is no clinical support for “the extensive postural limitations, particularly
16 when the form states at the same time that the claimant has no sitting, standing, or
17 walking limitations”; (3) functional limitations described are inconsistent with
18 Plaintiff’s reported activities, including driving and lifting; and (4) the author fails
19 to consider the improvement Plaintiff achieved with injections. Id.
20 Reason One: Plaintiff argues that the author must be Dr. Stephanie Wang of
21 Olive View, because on September 7, 2017 (the same date as the MSS), she saw
22 Plaintiff and noted “p/w [presents with] for disability form fill-out.” AR 441. She
23 noted “s/p [status post] rotator cuff injury at work” referring to a “work injury
24 2015.” Id. She also noted, “Disability form filled for 6 months but as patient has
25 not had an MRI showing rotator cuff injury, his disability may get rejected again.
26 Previous shoulder x-rays unremarkable. MRI b/l shoulders ordered.” Id. She
27 conducted a physical examination and noted that Plaintiff reported pain with
28 shoulder movement, but she saw no swelling or muscle atrophy, and he was
1 “nontender on palpation.” Id.
2 The Court agrees that Dr. Wang probably wrote the MSS. The fact that she
3 worked at Olive View, however, does not demonstrate that she had a long-standing
4 treating relationship with Plaintiff. Plaintiff fails to cite any Olive View records
5 signed by Dr. Wang other than the September 7, 2017 records. That record says,
6 “Has PCP [primary care physician] appt 10/27,” indicating that Dr. Wang was not
7 Plaintiff’s PCP.10 Olive View’s records appear to be signed by many different
8 doctors. Ultimately, while the MSS can be identified as coming from Dr. Wang,
9 the ALJ did not err by failing to consider it as the opinion of a long-time treating
10 physician.
11 Reasons Two and Three: Per the MSS, Plaintiff can “never” balance, crawl,
12 or stoop, and only occasionally climb stairs, kneel, or crouch. AR 432. Nothing in
13 the statement (or Dr. Wang’s one treating record at AR 441) discusses any
14 impairments affecting Plaintiff’s legs or knees, the body parts most involved with
15 climbing, kneeling, and crouching. As an explanation of these opinions, Dr. Wang
16 stated, “Climbing, kneeling / crouching limited by fatigue likely secondary to
17 deconditioning.” Id. Even Plaintiff concedes that these opinions appear to be an
18 error. (JS at 19.)
19 The ALJ correctly pointed out that the same medical source statement
20 assessed no limits on standing and walking, activities equally likely to cause
21 fatigue to someone deconditioned by a sedentary lifestyle. AR 31, citing AR 431.
22 The ALJ further stated that “claims of fatigue and deconditioning are refuted by
23 the record, which consistently show the claimant capable of performing daily
24 activities independently ….” Id. Indeed, Dr. Wang did not record observations of
25 extreme deconditioning. AR 441 (noting no obvious muscle atrophy). In October
26
27 10 On October 27, 2017, Plaintiff met with Dr. Bennett-Schickedanz. AR
646.
28
1 2017 (about 1 month after the statement’s date), Plaintiff’s activities included
2 going to church and helping his disabled wife. AR 646, 653. In September 2015
3 (just months after his July 2015 injury), Plaintiff reported that he could lift objects
4 weighing up to 12 pounds (AR 198), which is inconsistent with Dr. Wang’s
5 opinion that he could only lift less than 10 pounds (AR 431). Plaintiff reported
6 that he could drive (which necessarily involves getting in and out of a car) and
7 complete 20-minute shopping trips. AR 198. The ALJ reasonably found these
8 activities inconsistent with the opinion that Plaintiff could “never” stoop or crawl
9 due to fatigue. Driving is also inconsistent with the opinion that Plaintiff “cannot
10 operate machinery.” AR 434.
11 Reason Four: After meeting with Dr. Wang on September 7, on September
12 20, 2017, Plaintiff had an MRI of his left and right shoulders to determine if he had
13 suffered a torn rotator cuff. AR 636-39. The MRI of his left shoulder showed
14 tendonitis and degenerative joint changes. AR 637. The MRI of his right shoulder
15 showed similar results. AR 639. After reviewing the MRI, Olive View
16 recommended that he try glucosamine-chondroitin. AR 653. In October 2017, Dr.
17 Bennett-Schickedanz recommended that he continue with injections, physical
18 therapy, and ibuprofen to treat his shoulder pain. AR 647. Less than one month
19 later, Plaintiff denied musculoskeletal pain. AR 649.
20 This evidence supports the ALJ’s conclusion that on September 7, 2017, Dr.
21 Wang lacked sufficient information to provide reliable opinions about the
22 functional limitations attributable to Plaintiff’s shoulder pain before Plaintiff’s
23 LDI. Dr. Wang suspected a rotator cuff tear (AR 432), but the subsequent MRIs
24 did not confirm that suspicion; they showed degenerative changes and thus shed
25 little light on Plaintiff’s condition in 2016 or before. Moreover, whatever the cause
26 of Plaintiff’s pain when he saw Dr. Wang, he denied musculoskeletal pain by
27 November 2017. AR 649.
28 In sum, Plaintiff has failed to demonstrate legal error in the ALJ’s decision
1 to give the extreme and contradictory opinions in the MSS little weight.
2 3. Dr. Afra’s Opinions.
3 Plaintiff underwent a consultative examination with Dr. Afra on November
4 12, 2015. AR 319. After conducting a physical examination and administering
5 various tests, Dr. Afra opined that Plaintiff could do light work with frequent fine
6 and gross use of his hands. AR 324-25. The ALJ gave “great weight” to Dr.
7 Afra’s opinion as consistent with the objective findings in Plaintiff’s treating
8 records and his reported activities. AR 29.
9 Plaintiff alleges that this was legal error because (1) Dr. Afra only saw
10 Plaintiff once and did not review his medical records; and (2) Dr. Afra failed to
11 “include any discussion of a limitation to his shoulders” despite observing that
12 Plaintiff reported pain and had “limited range of motion of the shoulders on
13 examination.” (JS at 20-21.)
14 While Dr. Afra did not review Plaintiff’s medical records (AR 319), Dr.
15 Afra examined Plaintiff in November 2015. Plaintiff fails to identify any records
16 pre-dating November 2015 that would have informed Dr. Afra’s evaluation beyond
17 the medical history that Plaintiff provided. Notably, Dr. Afra did not record
18 Plaintiff telling her that his back and shoulder pain started after a fall from a ladder
19 or lifting something heavy, either in 2011 or 2015. AR 319-20.
20 Dr. Afra did not assess Plaintiff as having a limited range of shoulder
21 motion. Instead, Dr. Afra observed, “Range of motion of both shoulders was slow
22 and painful, but full range of motion was able to be achieved.” AR 322. This
23 observation was identical to that of the Olive View staff days earlier. AR 344
24 (noting full range of motion but “pain on overhead motion” with both shoulders);
25 see also AR 520 (in May 2016, “patient reports improved symptoms after shoulder
26 injections”), AR 499 (full range of motion for left shoulder in November 2016;
27 “slight limitation” for right shoulder), and AR 487 (“using all extremities” in
28 December 2016). While Dr. Afra did not expressly limit Plaintiff’s use of his
1 shoulders to frequent, she did limit gross and fine use of his hands to frequent (AR
2 325), and it would be difficult to use one’s shoulders more than one’s hands in a
3 work setting. Thus, Plaintiff has failed to identify any significant inconsistency
4 within Dr. Afra’s report, and the medical evidence (summarized above) supports
5 the ALJ’s finding that Dr. Afra’s opinions were entitled to great weight for being
6 consistent with Plaintiff’s treating records.
7 4. Dr. Bessent.
8 In February 2018, medical consultant Dr. Bessent reviewed all of Plaintiff’s
9 records and offered opinions about Plaintiff’s pre-LDI functional limitations. Dr.
10 Bessent found Dr. Wang’s MSS “not persuasive,” because it post-dated Plaintiff’s
11 LDI and reflected a worsening of symptoms at that time. AR 626. Per Dr.
12 Bessent, Plaintiff could frequently lift, push, or pull 10 pounds, engage in most
13 postural activities “occasionally,” and only do “occasional” reaching and “fine
14 manipulation of hands.” AR 628-30. Dr. Bessent did not identify any particular
15 clinical findings from the treating records as supporting his opinions. Id.
16 The ALJ gave Dr. Bessent’s opinions “partial” weight. AR 32. The ALJ
17 found that his assessed limitations were inconsistent with Plaintiff’s “conservative
18 treatment without EMG testing” and “consultative examination findings of normal
19 range of motion in upper extremities.” AR 32. The ALJ assessed an RFC for
20 “frequent reaching, fingering, [and] handling,” rather than occasional. AR 25.
21 Plaintiff first argues that Dr. Bessent’s opinions are not reliable. (JS at 22.)
22 Plaintiff then argues that the ALJ “does not appear to reject his finding with regard
23 to reaching,” and therefore was required to incorporate it into the RFC. (Id.) In
24 fact, the ALJ did explain why she rejected a limitation to “occasional” shoulder use
25 and instead assessed “frequent” shoulder use: the findings of Dr. Afra, a doctor
26 who actually examined Plaintiff and observed him use his shoulders. AR 32. As
27 summarized above, Dr. Afra found that Plaintiff could achieve a full range of
28 shoulder motion, albeit with pain, and she therefore limited him to “frequent” use
1 | of his hands for gross manipulative movements. AR 322, 325 (limiting Plaintiff’
2 | “gross movements” with his hands bilaterally to frequent). The ALJ reasonably
3 || rejected Dr. Bessent’s “occasional” shoulder use opinion in favor of Dr. Afra’s
4 | “frequent” gross manipulative movement opinion.
5 C. ISSUE THREE-A: The ALJ’s RFC Determination.
6 Plaintiff argues that the ALJ failed to give legally sufficient reasons for
7 | rejecting Dr. Wang’s MSS and Dr. Bessent’s opinions, obligating the ALJ to adopt
8 | those opinions in the RFC analysis. (JS at 28.) For the reasons discussed above,
9 | the ALJ erred in assessing neither the MSS nor Dr. Bessent’s opinions, so
10 | Plaintiff's arguments for Issue Three-A fail.
11 D. ISSUE THREE-B: Plaintiff’s Past Relevant Work.
12 1. Summary of Relevant Administrative Proceedings.
13 In a work history report, Plaintiff identified his past relevant work as an
14 | “auto parts distributor.” AR 191. He did this job from 2000-2011. Id. His job
15 | duties were to “drive around and distribute various automotive mechanical parts
16 | including batteries, engine parts, alternators, axles, radiators, engine blocks, and
17 | more.” AR 192. He indicated that he spent about 4 hours/day sitting, 3 hours/day
18 | walking, and 1 hour/day standing. Id. He denied being a “supervisor” or “lead
19 | worker,” using machines, or writing reports; he left blank the question “Did you
20 | hire and fire employees?” Id.
21 At the hearing, he explained that he and his brother owned a business selling
22 | auto parts, and his job duties included lifting and loading parts from a warehouse.
23 | AR 51-52. His brother ran the financial side of the business. AR 57. The business
24 | employed drivers and a receptionist. AR 59. Plaintiff had to “prepare the orders”
25 | by helping gather up purchased parts, load them into delivery vehicles, and instruct
26 | the drivers where to go. AR 56. This involved pulling parts for each order and
27 | placing them on the counter so that the drivers would not steal other parts. AR 60.
28 | His job duties also included interviewing and hiring drivers, scheduling their
21
1 routes, counting inventory, using a computer to keep track of sales, and handling
2 customer complaints. AR 61-62.
3 Based on his work history report, the VE initially characterized Plaintiff’s
4 past relevant work as that of a “parts clerk,” DOT 322.367-042, a heavy, semi-
5 skilled job. AR 58. After hearing Plaintiff’s expanded testimony about his
6 administrative job duties, however, the VE opined that some of Plaintiff’s duties
7 were consistent with those of a “warehouse manager.” AR 62. The ALJ then
8 asked Plaintiff, “How much time per week do you think that you spent doing the
9 warehouse manager kind of duties and how much time do you think you spent
10 doing the parts clerk duties?” AR 63. Plaintiff responded, “Parts clerk maybe
11 10%, the rest is all warehouse,” confirming that 90% of the time, he performed
12 “warehouse manager stuff.” Id. (emphasis added).
13 Based on this testimony, the VE then characterized Plaintiff past relevant
14 work as “mainly the warehouse manager” job, DOT 184.167-114. Id. The VE and
15 ALJ considered whether Plaintiff’s past relevant work was a composite “medium”
16 job and concluded that it was not, because medium work requires lifting 50 pounds
17 or more 1/3 of the time, and Plaintiff estimated that the parts clerk portion of his
18 job duties was only 1/10 of his time.11 AR 64. After this discussion, the VE
19 testified that the “most appropriate” classification for Plaintiff’s past relevant work
20 was that of warehouse manager. Id. The VE opined that a person with Plaintiff’s
21 RFC could work as a warehouse manager as that job is generally performed. Id.
22 63-64.
23 The ALJ relied on this testimony to find that Plaintiff could do his past
24
25 11 Earlier in the hearing, Plaintiff claimed that he spent more than 50% of the
day lifting more than 50 pounds. AR 59. However, this directly conflicts both
26
with his testimony later in the hearing and with his work history report. See AR
27 192 (writing that he “frequently” lifted 25 pounds during the workday and spent 4
out of 8 hours sitting and 3 out of 8 hours walking).
28
1 relevant work as a warehouse manager. AR 32. According to the DOT, that job
2 involves verifying incoming and outgoing shipments, establishing operational
3 procedures, preparing orders, keeping inventory current, hiring warehouse
4 personnel, and maintaining documentation. DOT 184.167-114. The job requires
5 light exertion and “frequent” reaching, handling, and fingering. Id.
6 2. Analysis of Claimed Error.
7 First, Plaintiff argues that the ALJ and VE erred by relying on his testimony
8 that only 10% of his job involved parts clerk duties while 90% involved warehouse
9 manager duties. (JS at 29.) According to Plaintiff, he did not understand what
10 duties fell under each job title. (Id.)
11 Plaintiff fails to demonstrate legal error. In the context of the questioning
12 and the ALJ’s discussion with the VE, the ALJ’s meaning was clear. Id. Neither
13 Plaintiff nor his representative asked any questions or otherwise indicated
14 confusion. Indeed, Plaintiff stated that he was a “parts clerk maybe 10%,” with the
15 rest “all warehouse,” the ALJ asked, “Okay, all warehouse the manager stuff?”
16 AR 63 (emphasis added). Plaintiff replied, “Yes.” Thus, Plaintiff confirmed that
17 90% of his duties were of the managerial type, as opposed to “lifting and carrying
18 the parts.” Id. Plaintiff’s answer was consistent with the fact that he and his
19 brother owned the business (AR 452); he told employees “where to go, what to do”
20 (AR 56); he received a salary of $53,000 a year, as opposed to the $9-$10 an hour
21 that the drivers received (AR 60); he hired and interviewed drivers (AR 61); he
22 scheduled drivers for different routes, did inventory, and used a computer to keep
23 track of sales (AR 62); he handled customer complaints whenever there was a
24 problem (id.); and he spent half of his working hours sitting (AR 192).
25 Second, Plaintiff argues that the ALJ had a duty to further develop the
26 record concerning the nature of Plaintiff’s past relevant work. (JS at 29.) Again,
27 Plaintiff fails to demonstrate legal error. Plaintiff provided a work history report
28 and several pages of hearing testimony about his past relevant work. AR 192,
1 51-52, 56-63. The VE and the ALJ were entitled to rely on Plaintiff’s testimony.
2 The fact that Plaintiff provided some inconsistent information does not
3 demonstrate that the ALJ failed to discharge her duty to develop the record, or that
4 the ALJ was not entitled to rely on Plaintiff’s most recent testimony at the hearing
5 elicited by the ALJ’s questions.
6 Third, Plaintiff argues that substantial evidence does not support the ALJ’s
7 finding that his past relevant work was that of warehouse manager, rather than a
8 composite job. (JS at 30-31.) Plaintiff cites Valencia v. Heckler, 751 F.2d 1082,
9 1086 (9th Cir. 1985) (holding that ALJ erred in classifying the claimant’s prior
10 work as a “tomato sorter” involving only light exertion because the claimant was
11 actually an “agricultural laborer” who mostly performed other, medium exertion
12 tasks). (See JS at 31.) This case is distinguishable from Valencia, under Stacy v.
13 Colvin, 825 F.3d 563 (9th Cir. 2016), because the ALJ did not simply “isolate” the
14 “least demanding function” of plaintiff’s past relevant work and then find a light
15 job that included that function. “Rather, the ALJ confronted a situation where the
16 plaintiff actually performed [his past relevant work] at a more demanding level
17 than compared with industry standards.” Coehoorn v. Berryhill, No. ED CV
18 16-373-KS, 2017 WL 1407636, at *8 (C.D. Cal. Apr. 19, 2017); see also Stacy,
19 825 F.3d at 569 (noting that in Valencia, “the least demanding aspect” of the past
20 job was something the claimant did less than half the time, and ALJ erred in
21 equating that one task with a full time job). Indeed, “Valencia and its progeny do
22 not apply in cases such as this one where (1) the ‘least demanding function’ is a
23 task that the claimant actually performed most of the time; and (2) the DOT
24 defines the claimant’s past job as requiring only that least demanding function.”
25 Stacy, 825 F.3d at 570.
26 ///
27 ///
28 ///
1 IV.
2 CONCLUSION
3 For the reasons stated above, IT IS ORDERED that judgment shall be
4 | entered AFFIRMING the decision of the Commissioner.
Tou €. Sesto
6 | DATED: March 26, 2020 Mrs 6.
7 KAREN E. SCOTT
3 United States Magistrate Judge
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