“the ALJ may consider 28 1 inconsistencies either in the claimant’s testimony or between the testimony and the 2 claimant’s conduct”
How later courts described this case
- “the ALJ may consider 28 1 inconsistencies either in the claimant’s testimony or between the testimony and the 2 claimant’s conduct”
- while an ALJ may not rely solely on personal 8 observations to discount a claimant’s testimony, the ALJ may use those observations 9 in context with other indicators of the claimant's credibility in evaluating testimony
- claimant’s testimony 23 properly discounted when the claimant used a cane, but “two doctors had specifically 24 noted that the [claimant] did not need such a device”
- “Although lack of medical evidence cannot form the sole 20 basis for discounting pain testimony, it is a factor that the ALJ can consider in his 21 credibility analysis.”
Written by the judges who cited it.
The opinion
1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
11 JOHN JOSEPH W.,1 Case No. 2:18-cv-06439-AFM
12 Plaintiff,
MEMORANDUM OPINION AND
13 v.
ORDER AFFIRMING DECISION
14 ANDREW M. SAUL, OF THE COMMISSIONER
15 Commissioner of Social Security,
16 Defendant.
17
Plaintiff filed this action seeking review of the Commissioner’s final decision
18
denying his application for supplemental security income. In accordance with the
19
Court’s case management order, the parties have filed briefs addressing the merits of
20
the disputed issues. The matter is now ready for decision.
21
BACKGROUND
22
On August 11, 2015, Plaintiff applied for supplemental security income,
23
alleging disability since January 2007. Plaintiff’s application was denied.
24
(Administrative Record [“AR”] 120-129.) A hearing took place on June 8, 2017
25
26
1 Plaintiff’s name has been partially redacted in accordance with Federal Rule of Civil Procedure
27 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case
Management of the Judicial Conference of the United States.
28
1 before an Administrative Law Judge (“ALJ”). Plaintiff, who was represented by
2 counsel, and a vocational expert (“VE”) testified at the hearing. (AR 81-119.)
3 In a decision dated June 28, 2017, the ALJ found that Plaintiff suffered from
4 the following severe impairments: osteoarthritis of the right knee; degenerative disc
5 disease of the lumbar spine; heel spurs; obesity; and shoulder impingement. (AR 17.)
6 The ALJ concluded that Plaintiff’s impairments did not meet or equal any listed
7 impairment. Further, the ALJ determined that Plaintiff retained the residual
8 functional capacity (“RFC”) to perform sedentary work with the following
9 restrictions: occasional climbing of ramps and stairs; occasional balancing, stooping,
10 crouching, and crawling; occasional overhead reaching; no climbing ladders, ropes
11 or scaffolds; and no kneeling. The ALJ also found that Plaintiff required a cane for
12 ambulation. (AR 17.) Relying on the testimony of the VE, the ALJ concluded that
13 Plaintiff could perform work existing in significant numbers in the national economy.
14 (AR 21.) Accordingly, the ALJ concluded that Plaintiff was not disabled. (AR 21.)
15 The Appeals Council subsequently denied Plaintiff’s request for review (AR
16 1-9), rendering the ALJ’s decision the final decision of the Commissioner.
17 DISPUTED ISSUES
18 1. Whether the ALJ erred in finding Plaintiff’s impairments did not meet or
19 equal Listing 1.02.
20 2. Whether the ALJ properly evaluated the opinions of Plaintiff’s treating
21 physician, Fernando Gonzales, M.D. and treating nurse practitioner Deborah
22 Briones.
23 3. Whether the ALJ properly rejected Plaintiff’s subjective complaints.
24 STANDARD OF REVIEW
25 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to
26 determine whether the Commissioner’s findings are supported by substantial
27 evidence and whether the proper legal standards were applied. See Treichler v.
28 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). Substantial
1 evidence means “more than a mere scintilla” but less than a preponderance. See
2 Richardson v. Perales, 402 U.S. 389, 401 (1971); Lingenfelter v. Astrue, 504 F.3d
3 1028, 1035 (9th Cir. 2007). Substantial evidence is “such relevant evidence as a
4 reasonable mind might accept as adequate to support a conclusion.” Richardson, 402
5 U.S. at 401. This Court must review the record as a whole, weighing both the
6 evidence that supports and the evidence that detracts from the Commissioner’s
7 conclusion. Lingenfelter, 504 F.3d at 1035. Where evidence is susceptible of more
8 than one rational interpretation, the Commissioner’s decision must be upheld. See
9 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007).
10 DISCUSSION
11 I. Relevant Medical Evidence
12 Montes Medical Group
13 Plaintiff was treated at Montes Medical Group from October 2014 to January
14 2015. (AR 367-403.) At his initial appointment, Plaintiff was diagnosed with pain in
15 shoulder and knee joints, psoriasis, cervicalgia, and morbid obesity. (AR 380-381.)
16 X-rays taken in October 2014 revealed acromioclavicular separation of the left
17 shoulder compatible with complete tear of the acromioclavicular ligament; multi-
18 level degenerative change of the lower thoracic and lower lumbar spine; and
19 moderate right knee joint osteoarthritis. (AR 374-375, 401-403.) At various times,
20 Plaintiff was diagnosed with lumbago, low back pain, epicondylitis (tennis elbow),
21 morbid obesity, joint pain, and major depressive disorder. He was provided with
22 prescription medication and referred to physical therapy. (See, e.g., AR 370-378.)
23 Rio Hondo Medical Group
24 Plaintiff received treatment from the Rio Hondo Medical Group from May
25 2015 to February 2016. (AR 411-458, 475-533.) In May 2015, Dr. Gonzales
26 diagnosed Plaintiff with morbid obesity; chronic lumbosacral discogenic disease; and
27 bilateral osteoarthritis in his knees, worse on the right. (AR 509-511.) Plaintiff’s
28 prescription medications included Ibuprofen, Naproxen, and Hydrocodone-
1 Acetaminophen, among others. (AR 510.) In June 2015, Plaintiff was referred to a
2 radiologist for his spine, knees, and shoulders. He was also referred for pain
3 management based upon sciatica pain. (AR 512-513.)
4 Treatment notes from a follow-up in July 2015 revealed reduced truncal range
5 of motion due to back pain, moderate tenderness on palpation over paraspinal
6 muscles, and positive straight leg raise bilaterally. (AR 515-516.) X-rays from
7 July 15, 2015 revealed findings similar to those taken in 2014 – that is, separation of
8 the acromioclavicular joint in the left shoulder; osteoarthritic changes in the right
9 knee; and multilevel degenerative changes of the lumbar spine. (AR 426, 518.)
10 An MRI of Plaintiff’s lumbar spine was conducted in August 2015. It revealed
11 straightening of the lumbar lordosis, minimal retrolisthesis of L5 on S1, endplate
12 marrow changes, 2.5 mm broad-based disc bulge and bilateral facet hypertrophy with
13 mild bilateral foraminal narrowing at levels L3-4, L4-5, and disc desiccation. (AR
14 537-538.)
15 Examination in September 2015 revealed left lower leg radiculopathy, but no
16 edema. Plaintiff was referred to a spinal orthopedist or neurosurgeon for evaluation.
17 (AR 522-523.) A November 2015 examination revealed right lower extremity
18 radiculopathy, but no edema. Plaintiff’s pain medications were refilled, and he was
19 referred to pain management for evaluation of epidural treatment. (AR 524-525.)
20 In December 2015, Plaintiff complained of right heel pain and was referred to
21 a radiologist for possible heel spur. He was also referred to an orthopedic surgeon
22 due to signs of arthritis on both knees. (AR 526-527.)
23 After an examination in January 2016, the following treatment note was made:
24 Referral for DME: #1) walker to assist in ambulation due to chronic low
25 back pain and chronic right knee pain; #2) lumbosacral orthotic due to
26 multilevel disc disease and facet arthropathy of the lumbosacral spine.
27 (AR 530.) Plaintiff received a referral to Life Medical Home Care Devices for a
28 heavy duty walker. The note states that Plaintiff “will be needing a Heavy duty
1 Walker DX Multi Level Disc Disease and knee pain.” (AR 484.) Trazodone was
2 added to Plaintiff’s prescription medications. (AR 530.)
3 Plaintiff’s last office visit to Rio Hondo Medical Group was in February 2016.
4 Treatment notes reflect diagnoses of multilevel degenerative disc disease of the
5 lumbosacral spine, retrolisthesis of L5 on S1; major depressive disorder, mild;
6 generalized anxiety disorder; obesity; hyperlipidemia; chronic low back pain; and
7 impaired glucose tolerance. Plaintiff’s medications were refilled, and he was advised
8 to follow a calorie-controlled diet. (AR 532-533.)
9 Dr. Gonzales completed a Physical Residual Functional Capacity
10 Questionnaire2 in which he indicated that he saw Plaintiff monthly. He diagnosed
11 Plaintiff with multilevel degenerative disc disease, bulging disc, chronic low back
12 pain with radiculopathy radiating to lower extremities, osteoarthritis of his right knee,
13 and right knee pain. (AR 554.) In Dr. Gonzales’s opinion, Plaintiff was able to sit
14 continuously for 2 hours for a total of 2 hours in an eight-hour workday; stand
15 continuously for 15 minutes; and stand/walk for a total of less than 2 hours in an
16 eight-hour workday. In addition, he opined that Plaintiff would need unscheduled
17 breaks every hour; needed to use a walker or cane to engage in occasional
18 standing/walking; and was able to occasionally lift and carry less than 10 pounds, but
19 never carry more. As for the clinical findings and objective signs supporting his
20 opinion, Dr. Gonzales identified the August 2015 MRI showing “minimal
21 retrolisthesis,” degenerative changes, and disc bulge. (AR 555-556.)
22 Nurse practitioner Deborah S. Briones, who also treated Plaintiff at Rio Hondo
23 Medical Group, completed Physical Residual Functional Capacity Questionnaire.
24 Her opinions were essentially the same as those of Dr. Gonzales. In addition to
25 identifying the August 2015 MRI of Plaintiff’s back as support for her opinion, nurse
26
27 2 As Plaintiff concedes, and as discussed further below, the date on which the questionnaire was
completed is not clear from the record. (See ECF No. 21 at 9.)
28
1 practitioner Briones identified the July 2015 x-ray showing osteoarthritis of the right
2 knee. (AR 545-547.)
3 Consultative orthopedic examination
4 H. Harlan Bleeker, M.D., conducted an orthopedic examination of Plaintiff on
5 October 22, 2015. Clinical findings included positive straight-leg raising, limited
6 range of motion of both the cervical and lumbar spine, and an acromioclavicular
7 separation of the left shoulder. Dr. Bleeker’s report indicates that Plaintiff provided
8 him with an MRI showing arthritis of the right knee and an MRI showing
9 degenerative disc disease at L4-5 and L5-S1. (AR 462-464.) He diagnosed Plaintiff
10 with psoriatic polyarthritis, third degree acromioclavicular separation of the left
11 shoulder, degenerative disc disease, and degenerative arthritis of the cervical spine.
12 (AR 465.) In Dr. Bleeker’s opinion, Plaintiff requires the use of a cane to ambulate
13 both short and long distances. Further, Plaintiff cannot kneel, squat or climb; can lift
14 20 pounds occasionally and 10 pounds frequently; can only occasionally reach
15 overhead with either upper extremity; can sit 6-8 hours; and can stand and/or walk
16 up to 2 hours. (AR 465.)
17 Consultative psychiatric examination
18 Gul Ebrahim, M.D., performed a psychiatric examination in October 2015.
19 Plaintiff reported feelings of depression and anxiety. Dr. Ebrahim noted that
20 Plaintiff’s gait was normal. Plaintiff’s affect was anxious, but otherwise his mental
21 status examination was normal – for example, he maintained eye contact, his speech
22 was normal, he was alert and oriented in all spheres, and his mood was relaxed.
23 Plaintiff’s thought processes were linear and goal directed. He was able to recall 3 of
24 3 items immediately and 2 items after five minutes. His insight and judgment were
25 intact. His fund of knowledge and abstract thinking were adequate. He was able to
26 do serial seven with some pause and use of his fingers. (AR 470-473.)
27 Dr. Ebrahim diagnosed Plaintiff with “mood disorder due to general medical
28 condition.” In Dr. Ebrahim’s opinion, Plaintiff had no limitations on his ability to
1 relate and interact with co-workers, colleagues, and supervisors; and no limitation on
2 his ability to understand and carry out simple instructions. He opined that Plaintiff’s
3 ability to maintain focus and concentration required to do work related activities,
4 ability understand and carry out complex or detailed instructions, and ability to cope
5 with work places stress were mildly limited. (AR 473-474.)
6 Other treatment records
7 Plaintiff suffered an injury to his right knee in the summer or fall of 2016. (AR
8 93.) An October 18, 2016 MRI revealed a complete ACL tear, likely chronic given
9 no significant joint effusion; tear of the posterior horn of the lateral meniscus and
10 subtle tear of the anterior horn of the lateral meniscus; small joint effusion; and mild
11 to moderate lateral and mild medial joint space narrowing. (AR 535-536.)
12 A note from Long Beach Advanced Orthopaedics Medical Center indicates
13 that Plaintiff received treatment on June 7, 2017 for his right knee. The remarks
14 indicate that Plaintiff has “right knee arthritis with ACL tear and lateral meniscus tear
15 and needs surgery.” (AR 557.)
16 April 2017 imaging of Plaintiff’s heals revealed bilateral calcaneal bone spurs.
17 (AR 548.)
18 II. Whether the ALJ properly discounted the opinions of Dr. Gonzales and
19 nurse practitioner Briones
20 a. The ALJ’s decision
21 In assessing Plaintiff’s RFC, the ALJ discussed the foregoing medical
22 evidence and opinions. (AR 18-20.) The ALJ assigned significant weight to the
23 opinion of Dr. Bleeker. As to the opinion of Dr. Gonzales, the ALJ stated the
24 following:
25 Less weight was given to the Medical Source Statement
26 completed by someone at Rio Honda [sic] Medical Group. It appears
27 this assessment was left incomplete as there is no signature page and no
28 verification as to who completed this assessment. However, they found
1 the claimant to be limited to “less than sedentary” work such that the
2 claimant would be limited to standing/walking for less than 2 hours and
3 sitting for about 2 hours in an 8-hour day. They noted the claimant
4 requires a cane or walker and that he would have to take an unexpected
5 break every hour for 4-10 minutes. The undersigned finds these
6 limitations to be excessive given that the claimant’s MRI findings
7 merely showed “minimal retrolisthesis” and some degenerative
8 changes. Moreover, it is unclear whether this assessment was completed
9 by an accepted medical source under the Social Security guidelines.
10 Further, they have not provided sufficient justification for their extreme
11 limitations.
12 (AR 19, citing AR 554-556.)
13 The ALJ also gave nurse practitioner Briones’s opinion little weight. He noted
14 that she was not an accepted medical source and explained that her opinion lacked
15 justification for the same reason that Dr. Gonzales’s opinion lacked justification –
16 namely, the absence of objective clinical evidence to support it. (AR 19-20.)
17 b. Analysis
18 Where, as here, “the record contains conflicting medical evidence, the ALJ is
19 charged with determining credibility and resolving the conflict.” Chaudhry v. Astrue,
20 688 F.3d 661, 671 (9th Cir. 2012) (quoting Benton v. Barnhart, 331 F.3d 1030, 1040
21 (9th Cir. 2003)). If a treating physician’s opinion is contradicted by another doctor’s
22 opinion, an ALJ may only reject it by providing specific and legitimate reasons that
23 are supported by substantial evidence. Hill v. Astrue, 698 F.3d 1153, 1159-1160 (9th
24 Cir. 2012); Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). Although
25 treating physician opinions are entitled to special consideration, an “ALJ need not
26 accept the opinion of any physician, including a treating physician, if that opinion is
27 brief, conclusory, and inadequately supported by clinical findings.” Bray v. Comm’r
28
1 of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009) (citation and alteration
2 omitted).
3 Here, Dr. Gonzales’s opinion was, in part, controverted by the opinion of
4 Dr. Bleeker. Accordingly, the ALJ was required to provide specific and legitimate
5 reasons supported by substantial evidence in the record for rejecting it. Orn, 495 F.3d
6 at 632. As set forth above, the ALJ provided two reasons for rejecting Dr. Gonzales’s
7 opinion. First, the ALJ stated that it was not clear that the opinion was from an
8 accepted medical source under the Social Security guidelines. This conclusion was
9 based upon the ALJ’s finding that there was “no signature page and no verification
10 as to who completed this assessment.” (AR 19.) Contrary to the ALJ’s statement,
11 however, Dr. Gonzales’s signature is found on the last page of the Functional
12 Capacity Questionnaire. (AR 556.) Thus, the ALJ’s statement is not supported by
13 substantial evidence, and the lack of verification is not a proper reason for rejecting
14 Dr. Gonzales’s opinion.3
15 Nevertheless, the ALJ also analyzed the questionnaire as if it had been
16 prepared by a treating physician and provided a reason for discounting it.
17 Specifically, the ALJ found that the limitations were excessive because they were not
18 supported by clinical findings. The ALJ observed that Dr. Gonzales’s opinion about
19 Plaintiff’s limitations was based upon Plaintiff’s MRI results, but those results
20 “merely showed minimal retrolisthesis and some degenerative changes.” (AR 19,
21 citing AR 554.)
22 An ALJ may properly reject a treating physician’s opinion that is conclusory
23 or unsupported by clinical findings. See Chaudhry, 688 F.3d at 671; Batson v.
24 Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). Here, the ALJ
25
26 3 Further, to the extent that ALJ was concerned about the identity of the source of the opinion, he
should have contacted the medical source to determine if the necessary information was readily
27 available. See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005) (“An ALJ is required to
recontact a doctor if the doctor’s report is ambiguous or insufficient for the ALJ to make a disability
28
1 pointed out the absence of significant clinical findings supporting Dr. Gonzales’s
2 opinion. As the ALJ noted, the MRI findings showed minimal retrolisthesis of L5 on
3 S1, a disc bulge with mild bilateral foraminal narrowing, and disc desiccation. (AR
4 537-538.) Further, the ALJ pointed out that Dr. Bleeker examined Plaintiff and
5 reviewed the MRI and concluded that Plaintiff was able to sit for 6 to 8 hours and
6 stand/walk for two hours in an eight-hour workday. (AR 19; see AR 464-465.)
7 Accordingly, the ALJ could properly rely on a lack of objective clinical support in
8 rejecting Dr. Gonzales’s opinion. See Charles B. v. Berryhill, 2019 WL 1014781, at
9 *6 (C.D. Cal. Mar. 4, 2019) (ALJ properly rejected treating physician opinion for
10 lack of objective support where MRI showed small disc bulges, mild to moderate
11 foraminal stenosis, but no central canal stenosis or root impingement); Gonzalez v.
12 Astrue, 2013 WL 394415, at *7-8 (E.D. Cal. Jan. 30, 2013) (ALJ properly rejected
13 treating physician opinion for lack of objective support where MRI and CT scans
14 revealed “mild stenosis”); Coelho v. Astrue, 2011 WL 3501734, at *6 (N.D. Cal.
15 Aug. 10, 2011) (ALJ met his burden of providing a specific, legitimate reason to
16 reject the treating physicians’ opinions for lack of supporting objective evidence
17 where evidence of cervical spine condition included an MRI showing stenosis, disc
18 narrowing, desiccation, and posterior disc bulging, but normal cord signal), aff’d,
19 Coelho v. Colvin, 525 F. App’x 637 (9th Cir. 2013).
20 Plaintiff contends that in weighing Dr. Gonzales’s opinion, the ALJ failed to
21 discuss the October 2016 MRI showing an ACL tear and a meniscus tear in his right
22 knee. (ECF No. 21 at 9-10.) Dr. Gonzales, however, did not purport to base his
23 opinion regarding Plaintiff’s extreme limitations on the October 2016 MRI findings.
24 In fact, it appears that Dr. Gonzales’s opinion was rendered in January 2016, months
25 before Plaintiff’s injury to his right knee occurred and before the MRI findings. (See
26 AR 530 (treatment note dated January 21, 2016, stating: “Physical residual functional
27 capacity questionnaire will be completed and signed and patient can pick up
28 tomorrow.”); ECF No. 21 at 9 (“it appears that at the time Dr. Gonzales completed
1 the assessment he did not have the updated MRI of the knees available”).)4 Thus,
2 Dr. Gonzales could not have based his opinion on either that MRI or the injuries
3 Plaintiff suffered after slipping and falling at Bob’s Big Boy.
4 Plaintiff argues that “[t]he day that a patient undergoes an MRI is not always
5 the day that the impairment first existed.” (ECF No. 21 at 9). Although not entirely
6 clear, Plaintiff essentially argues that Dr. Gonzales could have based his opinion on
7 the tears to Plaintiff’s ACL and meniscus even without the MRI results. Whether or
8 not this might be true in some cases, here, there are several problems with Plaintiff’s
9 argument. First, Plaintiff testified that his knee injury was the result of a slip and fall
10 that occurred in summer or fall of 2016 (AR 13), and therefore, this particular knee
11 impairment did not exist at the time Dr. Gonzales rendered his opinion. Second,
12 nothing in the record suggests that Dr. Gonzales suspected the existence of, or
13 diagnosed Plaintiff with, torn ligaments in his right knee. Perhaps most importantly,
14 even if Dr. Gonzales suspected that Plaintiff suffered from a tear of his ACL or
15 meniscus, it remains true that his opinion fails to identify any clinical evidence
16 supporting such a diagnosis. In sum, the ALJ did not err in concluding that
17 Dr. Gonzales’s opinion lacked objective evidence to support it.
18 The ALJ also did not err in discounting the limitations opined by nurse
19 practitioner Briones. Because nurse practitioner Briones is considered an “other
20 source,” her opinion was not entitled to the same deference as the opinion of a
21 licensed physician. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citing 20
22 C.F.R. §§ 404.1513(d), 404.1527 & SSR 06–03p). An ALJ may discount testimony
23 from “other sources” so long as the ALJ “gives reasons germane to each witness for
24 doing so.” Molina, 674 F.3d at 1111 (citing Turner v. Comm’r of Soc. Sec., 613 F.3d
25
26 4 The Court notes that the Court Transcript Index designates Dr. Gonzales’s questionnaire (Exhibit
C12F) as “Physical RFC Assessment, dated 05/31/2017, from Rio Hondo Medical Group” and
27 Briones’s questionnaire (Exhibit C9F) as “dated 02/06/2017.” (ECF No. 17-2 at 3.) These dates,
however, are not based upon a date provided by the sources, but appear to be based upon the date
28
1 1217, 1224 (9th Cir. 2010) (quoting Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir.
2 2001)). The ALJ’s reason that nurse practitioner Briones’s opinion was unsupported
3 by medical evidence fulfilled this requirement. See Wilfred-Pickett v. Berryhill, 719
4 F. App’x 576, 579 (9th Cir. 2017); Chaudhry, 688 F.3d at 671.
5 Finally, as the Commissioner correctly points out, Dr. Bleeker’s opinion,
6 which was rendered after personally examining Plaintiff, constitutes substantial
7 evidence supporting the ALJ’s RFC assessment. See Tonapetyan v. Halter, 242 F.3d
8 1144, 1149 (9th Cir. 2001).
9 III. Whether the ALJ provided legally sufficient reasons supporting his
10 credibility determination
11 a. Plaintiff’s subjective complaints
12 Plaintiff completed a pain questionnaire in which he stated that his pain began
13 in 1993 and had gradually become worse. The pain occurs all the time and is brought
14 on by “living, breathing, 24-hours a day.” Plaintiff takes Vicodin for the pain. He
15 takes one at night to sleep and during the day he tries to take just half of a pill. It
16 relieves the pain “some.” (AR 255.) He indicated that his medication did not cause
17 side effects. (AR 256.)
18 At the hearing, Plaintiff testified that he suffered from memory problems and
19 was “real hazy with dates.” (AR 88.) According to Plaintiff, his memory problems
20 were caused by concussions he sustained as a result of “everything from high school
21 football to doing professional rodeo when I was a kid.” Plaintiff said that he had
22 complained to his doctor about his memory problem but was told there was nothing
23 they could do about it. He had never had any scan or MRI bases upon his memory
24 trouble. (AR 88-89.)
25 With respect to his back impairment, Plaintiff testified that he wears a back
26 brace and takes pain medication. Because of Plaintiff’s back impairment, he was
27 unable to walk, sit, or drive for long. (AR 90-92.)
28
1 With regard to his knee, Plaintiff testified that it had been injured since high
2 school football and had gotten worse over time. Plaintiff explained that he suffered a
3 “slip and fall” in summer or fall of 2016, and he believed that was when he tore his
4 ACL. (AR 93.) In response to the ALJ’s inquiry about how the injury occurred,
5 Plaintiff explained that he was at a Bob’s Big Boy restaurant with a friend and when
6 they were leaving, Plaintiff went to the restroom. Plaintiff was walking to the sink
7 when his right leg slipped. He tried to catch himself by getting to the wall, but his leg
8 became pinned behind him. As it turned out, there was a sprinkler leaking from the
9 roof. (AR 93.) Plaintiff was able to remember where he parked even though the
10 incident happened approximately a year earlier. (AR 110.) He explained that his
11 memory was “not too bad with like a year ago or so,” but his memory faltered “further
12 than that.” (AR 110.)
13 At the time of the incident, Plaintiff was walking without his walker. Plaintiff
14 did not have his cane with him either. (AR 93.) According to Plaintiff, he did not yet
15 own his walker at the time of the accident. (AR 95.)
16 Plaintiff explained that he used a cane “here and there, mostly for my back.”
17 (AR 95.) Plaintiff said that he can walk with nothing at all “just within my room.”
18 But to move through the house, he uses a cane. He then added that sometimes “I’ll
19 try to do it with a cane, but mostly I’ll do it with the walker.” (AR 96.)
20 Regarding his daily activities, Plaintiff testified that he is able to drive. He
21 drives his mother to go shopping, and he would “maybe go inside a little bit and come
22 back and sit in the truck.” (AR 98; see also AR 256-257.) Plaintiff reads history books
23 and spends a couple of hours a night reading. (AR 98, 101.) Plaintiff walks up and
24 down his “long driveway” for exercise. He goes outside to watch the animals, sitting
25 and walking. He spends time in the garage working on a model train. (AR 101.)
26 Plaintiff uses the computer, researching “stuff,” reading things, watching YouTube
27 videos about history. (AR 108.) Plaintiff feeds some of his animals, which entailed
28 throwing chicken scratch or opening a can of cat food. (AR 108.)
1 Plaintiff estimated that he can stand for about a half hour at a time and is able
2 to sit for about the same length of time. (AR 100, 257.) However, doing so would
3 cause him significant pain and stiffness. (AR 104.) Plaintiff tries to take his pain
4 medication (Vicodin) only before bed. He explained that he is in pain all day. He
5 does not take the pain medication during the day because “it doesn’t help. It’s more
6 of like a glorified sleep aid.” (AR 104-105.)
7 b. Relevant law
8 Where, as here, a claimant has presented objective medical evidence of an
9 underlying impairment which could reasonably be expected to produce the pain or
10 other symptoms alleged, and there is no evidence of malingering, an ALJ can reject
11 the claimant’s testimony about the severity of symptoms “only by offering specific,
12 clear and convincing reasons for doing so.” Trevizo v. Berryhill, 871 F.3d 664, 678
13 (9th Cir. 2017) (quoting Garrison v. Colvin, 759 F.3d 995, 1014-1015 (9th Cir.
14 2014)). The ALJ’s findings “must be sufficiently specific to allow a reviewing court
15 to conclude the adjudicator rejected the claimant’s testimony on permissible grounds
16 and did not arbitrarily discredit a claimant’s testimony regarding pain.” Brown-
17 Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (quoting Bunnell v. Sullivan, 947
18 F.2d 341, 345-346 (9th Cir. 1991) (en banc)).
19 Factors an ALJ may consider when making such a determination include
20 ordinary techniques of credibility evaluation, including internal contradictions in the
21 claimant’s statements and testimony as well as conflicts between the claimant’s
22 testimony and the claimant’s conduct – such as daily activities, work record, or an
23 unexplained failure to pursue or follow treatment. See Ghanim v. Colvin, 763 F.3d
24 1154, 1163 (9th Cir. 2014); Molina, 674 F.3d at 1112. In addition, although an ALJ
25 may not disregard a claimant’s testimony solely because it is not substantiated by
26 objective medical evidence, the lack of medical evidence is a factor that the ALJ can
27 consider in making a credibility assessment. Burch v. Barnhart, 400 F.3d 676, 680-
28 681 (9th Cir. 2005).
1 Assessment of credibility is a function left solely to the Commissioner. Greger
2 v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006). Thus, so long as the ALJ’s
3 interpretation of the claimant’s testimony is reasonable and is supported by
4 substantial evidence, the Court may not substitute its own judgment. See Ghanim,
5 763 F.3d at 1163.
6 c. Analysis
7 The ALJ provided the following reasons for discounting Plaintiff’s subjective
8 complaints: (1) it was inconsistent with the medical evidence; (2) it was inconsistent
9 with other evidence in the record; and (3) it was inconsistent with Plaintiff’s daily
10 activities. (AR 20.)
11 Inconsistent with the medical evidence
12 As set forth in detail above, the ALJ discussed the medical evidence in the
13 record, including the diagnostic tests and clinical observations by Plaintiff’s treating
14 sources and the consultative examining physicians. With regard to Plaintiff’s
15 physical impairments, the ALJ noted that diagnostic results showing joint space
16 narrowing and osteoarthritis in the right knee, degenerative disc disease of the spine
17 with some disc bulges, and acromioclavicular joint separation of the left shoulder.
18 (AR 18-19.) Based upon this evidence, the ALJ concluded that Plaintiff’s physical
19 impairments imposed significant restrictions on his functional abilities, thereby
20 limiting him to a restricted range of sedentary exertional work. At the same time, the
21 ALJ pointed to the absence, or minimal nature, of objective findings supporting
22 Plaintiff’s allegations of extreme disabling pain and limitations. For example, the
23 ALJ pointed to evidence that Plaintiff retained normal motor strength, the absence of
24 radicular pain, no significant loss of movement or function, normal reflexes and
25 sensation in the upper extremities, and the absence of objective evidence indicating
26 that Plaintiff’s obesity resulted in additional functional limitations. The ALJ could
27 properly consider this lack of objective evidence in assessing the credibility of
28 Plaintiff’s allegations of disabling pain. See SSR 16-3p (“The intensity, persistence,
1 and limiting effects of many symptoms can be clinically observed and recorded in
2 the medical evidence. Examples such as reduced joint motion, muscle spasm, sensory
3 deficit, and motor disruption illustrate findings that may result from, or be associated
4 with, the symptom of pain.”).
5 Regarding Plaintiff’s alleged mental impairments of memory loss and anxiety,
6 the ALJ pointed to Dr. Ebrahim’s psychiatric examination results, which were
7 essentially unremarkable, as well as Dr. Ebrahim’s opinion that Plaintiff suffered no
8 limitations, or at most mild limitations, in mental functioning. (AR 16.)
9 Plaintiff notes that the ALJ failed to consider the MRI showing tears to his
10 ACL and meniscus. (ECF No. 21 at 9.) While true, the MRI does not undermine the
11 ALJ’s conclusion. That is, in consideration of Plaintiff’s impairments as well as
12 subjective complaints, the ALJ restricted him to performing a limited range of
13 sedentary work. No physician opined that Plaintiff’s 2016 knee injury resulted in
14 functional limitations greater than those the ALJ assessed, or that those limitations
15 were expected to persist for longer than 12 months.5
16 In sum, the ALJ’s summary of the evidence was accurate. So long as it was
17 not the sole basis for his credibility determination, the ALJ was entitled to rely upon
18 the lack of objective medical evidence to discredit Plaintiff’s subjective complaints.
19 See Burch, 400 F.3d at 681 (“Although lack of medical evidence cannot form the sole
20 basis for discounting pain testimony, it is a factor that the ALJ can consider in his
21 credibility analysis.”); Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001)
22 (“While subjective pain testimony cannot be rejected on the sole ground that it is not
23 fully corroborated by objective medical evidence, the medical evidence is still a
24 relevant factor in determining the severity of the claimant’s pain and its disabling
25 effects.”); Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999)
26 (conflicts between a claimant’s testimony and the objective medical evidence in the
27 record can undermine a claimant’s credibility).
28
1 Inconsistent with other evidence
2 The ALJ observed that, contrary to Plaintiff’s allegation of memory problems,
3 he demonstrated excellent recall of events during his testimony and was able to
4 remember the details of where he parked over a year earlier. (AR 20.) The ALJ could
5 properly rely, in part, upon observations that Plaintiff’s conduct at the hearing was
6 inconsistent with alleged impaired memory. This was not an improper consideration.
7 See Orn, 495 F.3d at 639-640 (while an ALJ may not rely solely on personal
8 observations to discount a claimant’s testimony, the ALJ may use those observations
9 in context with other indicators of the claimant's credibility in evaluating testimony);
10 Lindsay v. Berryhill, 2018 WL 3487167, at *4 (C.D. Cal. July 18, 2018) (ALJ
11 properly relied upon observations that claimant’s conduct at the hearing was
12 inconsistent with alleged impaired concentration or social function); Estrada v.
13 Colvin, 2016 WL 1181505, at *10 (E.D. Cal. Mar. 28, 2016) (ALJ was entitled to
14 consider observations that claimant was able to participate in the hearing without
15 distraction, which contradicted hearing testimony regarding maintaining
16 concentration).
17 In addition, the ALJ noted that contrary to Plaintiff’s claim that he required a
18 walker to ambulate, the record demonstrated occasions when Plaintiff did not use a
19 walker or a cane. (AR 20.) In fact, as noted above, Plaintiff used neither a walker nor
20 a cane in the summer or fall of 2016 when he went to Bob’s Big Boy. The ALJ could
21 properly rely on such inconsistencies in assessing Plaintiff’s credibility. See, e.g.,
22 Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999) (claimant’s testimony
23 properly discounted when the claimant used a cane, but “two doctors had specifically
24 noted that the [claimant] did not need such a device”); Savage v. Berryhill, 2017 WL
25 3981410, at *5 (E.D. Cal. Sept. 11, 2017) (ALJ properly considered inconsistency
26 between claimant’s allegation that she required a cane but that she only used the cane
27 “off and on”); see also Molina, 674 F.3d at 1112 (“the ALJ may consider
28
1 inconsistencies either in the claimant’s testimony or between the testimony and the
2 claimant’s conduct”).
3 Daily activities
4 The ALJ noted that Plaintiff’s daily activities include “sitting around”
5 watching TV, going for short walks, feeding his chickens, taking his mother
6 shopping, and reading books, sometimes for two hours. He found these activities
7 inconsistent with Plaintiff’s allegations of disabling pain and symptoms. (AR 20.)
8 The functional abilities necessary to perform Plaintiff’s admitted daily
9 activities are inconsistent with some of Plaintiff’s allegations of disabling limitations.
10 See Turner, 613 F.3d at 1225 (even where daily activities suggest some difficulty
11 functioning, they are still grounds for discrediting claimant’s testimony where they
12 contradict allegations of totally debilitating impairment); Burch, 400 F.3d at 681
13 (activities such as caring for personal needs, cooking, cleaning and shopping were
14 reasonable basis to discount claimant’s credibility). Although the evidence of
15 Plaintiff’s daily activities could also be interpreted more favorable to Plaintiff, the
16 ALJ’s interpretation was rational, and the Court “must uphold the ALJ’s decision
17 where the evidence is susceptible to more than one rational interpretation.” Burch,
18 400 F.3d at 681 (quoting Magallanes, 881 F.2d at 750); see generally Batson, 359
19 F.3d at 1196 (“When evidence reasonably supports either confirming or reversing
20 the ALJ’s decision, we may not substitute our judgment for that of the ALJ.”).
21 Moreover, even if Plaintiff’s daily activities were not a clear and convincing
22 reason for rejecting his subjective complaints, any error would be harmless in light
23 of the other legally sufficient reasons for the ALJ’s determination. See Molina, 674
24 F.3d at 1115 (where one or more reasons supporting ALJ’s credibility analysis are
25 invalid, error is harmless if ALJ provided other valid reasons supported by the
26 record); Batson, 359 F.3d at 1197 (even if the record did not support one of the ALJ’s
27 stated reasons for disbelieving a claimant’s testimony, the error was harmless where
28 ALJ provided other valid bases for credibility determination).
1 IV. Whether the ALJ erred in determining that Plaintiff’s impairments did
2 not meet or equal Listing 1.02
3 Plaintiff contends that the ALJ erred in finding that his impairments did not
4 meet or equal section 1.02A of the Listing of Impairments, 20 C.F.R. Pt. 404, Subpt.
5 P, App. 1. (ECF No. 21 at 4-7.) Plaintiff bears the burden of showing that he has an
6 impairment that meets or equals the criteria of a listed impairment. Burch, 400 F.3d
7 at 683. To “meet” a listed impairment, a claimant must establish that his condition
8 satisfies each element of the listed impairment in question. See Sullivan v. Zebley,
9 493 U.S. 521, 530 (1990); Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999). To
10 “equal” a listed impairment, a claimant “must establish symptoms, signs, and
11 laboratory findings” at least equal in severity and duration to all of the criteria for the
12 most similar listed impairment. Tackett, 180 F.3d at 1099-1100 (quoting 20 C.F.R.
13 404.1526); see Sullivan, 493 U.S. at 531.
14 To be considered presumptively disabled under Listing 1.02A, a claimant must
15 demonstrate that (1) he has major dysfunction of a major peripheral weight-bearing
16 joint (i.e., hip, knee, or ankle) characterized by gross anatomical deformity and
17 chronic joint pain and stiffness, with signs of limitation of motion or other abnormal
18 motion of the affected joint; (2) medical imaging reflects narrowing, destruction, or
19 ankylosis of the affected joint; and (3) the dysfunction results in an “inability to
20 ambulate effectively, as defined in [Listing 1.00(B)(2)(b)(2)].” 20 C.F.R. Pt. 404,
21 Subpt. P, App. 1, §§ 1.02, 1.02A. Listing 1.00B2b defines “inability to ambulate
22 effectively” as an “extreme limitation of the ability to walk,” and provides a non-
23 exhaustive list of examples, including “the inability to walk without the use of a
24 walker, two crutches or two canes,” “the inability to walk a block at a reasonable
25 pace on rough or uneven surfaces,” and “the inability to carry out routine ambulatory
26 activities, such as shopping and banking.” 20 C.F.R. Pt. 404, Subpt. P, App. 1,
27 §§ 1.02A, 1.00B2b.
28
1 The ALJ determined that there was insufficient evidence that Plaintiff’s
2 impairments met or equaled Listing 1.02. As the ALJ explained:
3 Specifically, while there is mention of the use of a walker, claimant does
4 not medically need the walker. Rather, he testified he can ambulate short
5 distances in his home without a walker. In addition, he testified he
6 usually uses a cane inside home as a walker is too bulky. In fact, he
7 stated that he only used a walker after his knee injury in October 2016.
8 He was ambulating without a cane prior to that date.
9 (AR 17.)
10 Plaintiff contends that the ALJ’s determination is not supported by substantial
11 evidence because it is based upon a misstatement of Plaintiff’s testimony regarding
12 whether he used the walker inside his house. Alternatively, Plaintiff contends that
13 even if he did not use the walker inside his house, he still meets the listing because
14 he satisfies the definition of being unable to ambulate effectively. (ECF No. 21 at 5-
15 6.) Plaintiff’s contentions lack merit.
16 As set forth above, the record lacks medical evidence demonstrating that
17 Plaintiff’s impairments result in the extreme limitation on walking required by
18 Listing 1.02A. Even Dr. Gonzales, who prescribed the walker to assist with
19 ambulation, did not opine that Plaintiff was unable to ambulate without a walker.
20 Instead, he stated Plaintiff needed a cane or walker. (AR 556.)
21 The crux of Plaintiff’s argument is that the ALJ should have believed his self-
22 reports that he is incapable of walking without a walker. But neither Plaintiff’s self-
23 reported limitations nor his intermittent use of a walker after his knee injury in 2016
24 constitutes objective medical evidence of an inability to ambulate effectively. See
25 Graham v. Colvin, 2014 WL 1328521, at *6 (W.D. Wash. Mar. 31, 2014) (no error
26 in finding claimant did not meet Listing 1.04 where there was no objective evidence
27 of inability to ambulate effectively); Veniale v. Colvin, 2014 WL 1246135, at *2
28 (C.D. Cal. Mar. 24, 2014) (affirming ALJ’s finding that claimant was not disabled
1 |) under Listing 1.02A where the ALJ found there was no medical evidence “to
2 || establish that [claimant’s] knee osteoarthritis was sufficiently serious to require the
3 || use of a wheelchair or any other assistive device”); Perez v. Astrue, 831 F. Supp. 2d
4 || 1168, 1176 (C.D. Cal. 2011) (claimant failed to show she was unable to ambulate
5 || effectively where no physician provided an RFC assessment precluding walking, and
6 || where physician concluded claimant could walk four hours in an eight-hour day);
7 || Hamilton v. Astrue, 2010 WL 3748744, at *7 (C.D. Cal. Sept. 22, 2010) (“Plaintiffs
8 || self-reports of symptoms and functional limitations based on hip and joint pain
9 || cannot suffice to raise the severity of her related impairment to that of Listing
10 |} 1.02A.”).
11 Finally, substantial evidence supports the ALJ’s determination that Plaintiff
12 || was able to ambulate effectively. The record shows, and Plaintiff testified, that he
13 || continued to walk with a cane after he was prescribed a walker in January 2016 and
14 || even after his October 2016 knee injury. (See AR 39 (Plaintiff's testimony), 74
15 || (treatment note from June 2017, stating that Plaintiff “‘ambulates with a single-point
16 || cane. Prior to this fall, he did not need any assistive devices.”), 532 (treatment note
17 || from February 2016, stating that Plaintiff “using cane to ambulate’’).)
18 ORDER
13 IT IS THEREFORE ORDERED that Judgment be entered affirming the
20 || decision of the Commissioner and dismissing this action with prejudice.
21
22 || DATED: 8/14/2019
ALEXANDER F. MacKINNON
UNITED STATES MAGISTRATE JUDGE
26
27
28
21