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Cheryl J. Peterson v. Michael J. Astrue


December 17, 2010


The opinion of the court was delivered by: Honorable Oswald Parada United States Magistrate Judge


The Court*fn1 now rules as follows with respect to the disputed issues listed in the Joint Stipulation ("JS").*fn2


As reflected in the Joint Stipulation, the disputed issues which Plaintiff raises as the grounds for reversal and/or remand are as follows:

(1) Whether the Administrative Law Judge ("ALJ") properly evaluated Plaintiff's subjective complaints of pain; and

(2) Whether the ALJ properly considered Plaintiff's treating physician's opinion.

(JS at 4.)


Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether the Commissioner's findings are supported by substantial evidence and whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means "more than a mere scintilla" but less than a preponderance. Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971); Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401 (citation omitted). The Court must review the record as a whole and consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986). Where evidence is susceptible of more than one rational interpretation, the Commissioner's decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984).


A. The ALJ's Findings.

The ALJ found that Plaintiff has the severe impairments of arthritis of the left hip, right shoulder, and left knee; and left bunion and hammer toes with potential for surgical intervention. (Administrative Record ("AR") at 55.) He also found that Plaintiff has the residual functional capacity to perform a narrowed range of sedentary work, with the following limitations: Plaintiff is able to lift and/or carry twenty pounds occasionally and ten pounds frequently; she can stand and/or walk for fifteen to thirty minutes at one time with the use of a cane as needed, and can carry on this way for one hour out of an eight-hour period; she can sit for seven hours with normal breaks, such as every two hours; she cannot walk on uneven surfaces, climb stairs or ladders, work at heights, or balance; she cannot work above shoulder level on the right due to arthroscopic surgery on the right shoulder and decompression in September 2007; she cannot operate foot pedals on the left side due to her left lower extremity impairments; she can occasionally bend and stoop; she can perform simple, repetitive tasks; she must be able to lie down during the lunch break and would miss work two days a month. (Id. at 56-57.) Relying on the testimony of a vocational expert ("VE"), the ALJ concluded that Plaintiff was capable of performing work as a small items assembler (such as hospital products or eyeglasses), and charge account clerk. (Id. at 62.)

B. The ALJ's Credibility Determination.

Plaintiff contends that the ALJ failed to articulate sufficient reason for rejecting her subjective complaints of impairment. (JS at 4-12.) Specifically, at the hearing, Plaintiff testified about the nature and extent of her condition. She testified that: she suffers from pain and swelling in the hips, shoulder, left knee, and left foot (AR at 13-14); her foot and knee pain are the most severe, and the pain is the biggest obstacle to working (id. at 26-27); her foot pain is a 9.5 out of 10, and she could not do a sitting job due to pain (id. at 30); she has problems with weight bearing, and although she has pain when sitting, it is worse standing (id. at 22); she cannot be on her feet two hours a day, sit for more than fifteen to thirty minutes at a time, and needs to lie down during the day (id. at 24, 58); she takes Narco and Ibuprofen, and utilized Vicodin in the past, the pain is a 9 out of 10 before medication (id. at 24-25); and she wakes up three to four times a night due to pain, and spends the majority of her day lying down (id. at 36). (Id. at 58.)

In his decision, the ALJ discounted Plaintiff's credibility as follows:

After considering the evidence of record, the undersigned finds that the claimant's medically determinable impairments could reasonably be expected to produce the alleged symptoms, but that the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible. The consultative examiner found symptom magnification and poor effort on the claimant's part. Mood lability appeared volitional and exaggerated at the psychiatric consultative examination. Also, at the psychiatric consultative examination, she denied a history of alcohol abuse; yet, records from her treating physician clearly show that she did have a problem with alcohol and had been an alcoholic. In addition, at the hearing, the claimant testified that she stopped drinking on her own. If the claimant was not truthful in certain aspects of her claim, then it is reasonable to conclude that she was not truthful in her testimony and exaggerated her pain and symptoms. As discussed below, two doctors, including the claimant's own treating physician, Dr. Birkenstein, were not comfortable filling out disability papers for the claimant. (Id. (citations omitted).) Thus, the ALJ discredited Plaintiff's testimony based on the consultative examiner's findings, the psychiatric examiner's findings, Plaintiff's conflicting and inconsistent statements regarding her alcohol abuse, and statements by her treating physicians regarding filling out disability papers.

An ALJ's assessment of pain severity and claimant credibility is entitled to "great weight." Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1986). An ALJ's credibility finding must be properly supported by the record and sufficiently specific to ensure a reviewing court that the ALJ did not arbitrarily reject a claimant's subjective testimony. Bunnell v. Sullivan, 947 F.2d 341, 345-47 (9th Cir. 1991). When, as here, an ALJ's disbelief of a claimant's testimony is a critical factor in a decision to deny benefits, the ALJ must make explicit credibility findings. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990); Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981); see also Albalos v. Sullivan, 907 F.2d 871, 874 (9th Cir. 1990) (an implicit finding that claimant was not credible is insufficient).

Under the "Cotton test," where the claimant has produced objective medical evidence of an impairment which could reasonably be expected to produce some degree of pain and/or other symptoms, and the record is devoid of any affirmative evidence of malingering,*fn3 the ALJ may reject the claimant's testimony regarding the severity of the claimant's pain and/or other symptoms only if the ALJ makes specific findings stating clear and convincing reasons for doing so. See Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986); see also Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993); Bunnell, 947 F.2d at 343.

To determine whether a claimant's testimony regarding the severity of her symptoms is credible, the ALJ may consider, inter alia, the following evidence: (1) ordinary techniques of credibility evaluation, such as the claimant's reputation for lying, prior inconsistent statements concerning the symptoms, and other testimony by the claimant that appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; (3) the claimant's daily activities; and (4) testimony from physicians and third parties concerning the nature, severity, and effect of the claimant's symptoms. Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002); see also Smolen, 80 F.3d at 1284. The Social Security Rulings ("SSR") further provide that an individual may be less credible for failing to follow prescribed treatment without cause. SSR 96-7p.

In this case, there is no debate that the objective medical evidence provides indication of an impairment that could reasonably be expected to produce some degree of pain and/or other symptoms. In discounting Plaintiff's credibility, the ALJ relied in part on the consultative examiner's findings that although Plaintiff's examination revealed an antalgic gait, there seemed to be "a fairly large subjective component," and Plaintiff exhibited "poor effort" when rotating her right shoulder. (AR at 60 (citing id. at 309, 310).) Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993) (consultative examiner noted that claimant's complaints of pain were "mildly amplified"); Thomas, 278 F.3d at 959 (claimant's failure to give a sufficient effort during physical capacity evaluations supported ALJ's credibility determination). Elsewhere in his decision, the ALJ noted that the consultative examiner also indicated that although Plaintiff limped, she did not need an assistive device to walk,*fn4 and that although she complained of pain in the left knee, left foot, and right hip, she was receiving no ongoing treatment. (AR at 60 (citing id. at 307.) In fact, he notes that on September 25, 2006, one year after her hip surgery, she reported to Dr. Mayo that she had occasional right hip pain but overall was "very pleased" with the results of her hip replacement. (Id. at 59.) Her primary complaints at that time were a painful left foot/toe and right shoulder pain. (Id.) Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999) (ALJ may properly rely on conflict between claimant's testimony of subjective complaints and objective medical evidence in the record).

The ALJ also noted the psychiatric consultative examiner's finding that Plaintiff's "[m]ood lability appeared volitional and exaggerated" at that examination. (AR at 58.) In her report, the clinical psychologist noted that Plaintiff's mood was "somewhat exaggerated and histrionic," and that Plaintiff became hyperemotional during the examination;*fn5 however when the consultative examining psychologist explained that Plaintiff was there for an intake interview, Plaintiff's "crying immediately ceased and she became very logical and matter-of-fact." (Id. at 344.) The consultative examiner diagnosed Plaintiff with histrionic personality disorder. (Id. at 346.) This diagnosis is made if the individual "displays rapidly shifting and shallow expression of emotions" and "shows self-dramatization, theatrically, and exaggerated expression of emotion." Diagnostic and Statistical Manual of Mental Disorders-DSM-IV-TR 714 (Am. Psych. Ass'n ed., 4th ed. 2000). An individual with this disorder often seems to turn on and off her emotions too quickly to be deeply felt. Id. at 711.

Plaintiff contends that the ALJ improperly used a genuine symptom of Plaintiff's diagnosis of histrionic personality disorder, i.e., her mood lability, to reject her pain testimony. (JS at 9.) However, an ALJ's consideration of a claimant's tendency to exaggerate and "poor effort" during a consultative examination, have been found to support discrediting the claimant's testimony. Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). Moreover, the Court agrees with the Commissioner that even if a tendency to exaggerate can be attributed to the histrionic personality disorder, the effect remains the same -- Plaintiff has a tendency to exaggerate her physical complaints. Thus, given the additional evidence in the record, the ALJ could reasonably infer that Plaintiff's complaints were not as severe as she presented. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (ALJ may draw reasonable inferences from the record).

Citing Young v. Heckler, 803 F.2d 963, 966 (9th Cir. 1986), Plaintiff contends it was error for the ALJ to rely on Plaintiff's inconsistent statements regarding her alcohol abuse as a basis to finding her not entirely credible. (JS at 10.) However, Young merely stands for the proposition that because of an alcoholic's propensity for downplaying the adverse effects of their drinking, undue weight should not be given to such testimony in the face of medical evidence to the contrary, as that testimony is not conclusive on the issue of a claimed alcohol-related disability. Young, 803 F.2d at 966. That is not the issue here. In fact, Young specifically found that the ALJ did not err in considering the claimant's testimony regarding his drinking habits. Id. Moreover, Ninth Circuit case law is clear that an ALJ may properly consider a claimant's inconsistent reports regarding substance abuse. Thomas, 278 F.3d at 959 (citing Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999) (relying on inconsistent statements about alcohol use to reject claimant's testimony).

Finally, the Court agrees with Plaintiff that Dr. Birkenstein's and Dr. Mayo's comments regarding their lack of confidence or comfort in filling out disability paperwork is too vague and ambiguous to alone support discounting Plaintiff's credibility. However, even if this finding was error, the error was harmless because there was substantial additional evidence supporting the ALJ's credibility determination. Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1162, 1163 (9th Cir. 2008) (an error by the ALJ with respect to one or more factors in a credibility determination may be harmless if there "remains substantial evidence supporting the ALJ's conclusions" in that regard).

Based on the foregoing, the Court finds that the ALJ provided clear and convincing reasons supported by substantial evidence for discounting Plaintiff's credibility regarding the extent of her pain. Thus, there was no error.

C. Treating Physician.

Plaintiff contends that the ALJ rejected the opinion of Joseph Mayo, III, M.D., Plaintiff's orthopedic surgeon,*fn6 without providing a specific and legitimate reason for that rejection. (JS at 17-22.) Specifically, in a September 25, 2006, letter from Dr. Mayo to Dr. Birkenstein regarding Plaintiff's condition, Dr. Mayo wrote:

Unfortunately, she was kicked out of her fiancee's house. The wedding is off. She owes twenty-some thousand dollars and can't get a job. She wants to get on social security disability so she can get Medical Insurance. Obvious orthopedic reason that would preclude her from gainful employment. She should get on a good pain management regimen. I called Dr. Birkenstein to see if he could be of help.

(AR at 225.)

With respect to Dr. Mayo's opinion, the ALJ stated:

The doctor's impression was: osteoarthritis of the left great toe, knee, and right shoulder acromioclavicular joint. The claimant was noted to want to get on Social Security disability so that she could get medical insurance. Dr. Mayo stated that the claimant had an obvious orthopedic reason that would preclude her from gainful employment and that he would contact the claimant's general practitioner, Dr. Birkenstein, to see if he could be of help.

Dr. Mayo was of the opinion that the claimant had a disability that would preclude her from gainful employment; yet, he was not comfortable filing out any disability papers for her and referred her to her treating physician, Dr. Birkenstein who was also not comfortable completing any disability papers for the claimant [and] said that her attorney would know a physician that would do this for her.[*fn7 ]

(Id. at 59 (citing id. at 218, 225).)

It is well-established in the Ninth Circuit that a treating physician's opinions are entitled to special weight, because a treating physician is employed to cure and has a greater opportunity to know and observe the patient as an individual. McAllister v. Sullivan, 880 F.2d 1086, 1089 (9th Cir. 1989). The weight given a treating physician's opinion depends on whether it is supported by sufficient medical data and is consistent with other evidence in the record. See 20 C.F.R. § 404.1527(d)(2). If the treating physician's opinion is uncontroverted by another doctor, it may be rejected only for "clear and convincing" reasons. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995); Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). If the treating physician's opinion is controverted, it may be rejected only if the ALJ makes findings setting forth specific and legitimate reasons that are based on the substantial evidence of record. Thomas, 278 F.3d at 957; Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989); Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987).

"The treating physician's opinion is not, however, necessarily conclusive as to either a physical condition or the ultimate issue of disability." Magallanes, 881 F.2d at 751 (citing Rodriguez v. Bowen, 876 F.2d 759, 761-62 & n.7 (9th Cir. 1989)); Tonapetyan, 242 F.3d at 1149 (although a treating physician's opinion is generally afforded the greatest weight in disability cases, it is not binding on an ALJ with respect to the existence of an impairment or the ultimate determination of disability). The issue of whether a claimant is disabled within the meaning of the Social Security Act is an issue reserved for the Commissioner, and therefore the opinion of a treating physician that a claimant is disabled will not be given special significance. 20 C.F.R. §§ 404.1527(e)(1), 416.927(e)(1).

Plaintiff contends the ALJ did not properly address the weight he gave to this opinion, and that the fact that Dr. Mayo did not want to fill out disability paperwork yet stated in a report to another physician that he believes Plaintiff cannot engage in employment, lends more veracity to his opinion, not less, as inferred by the ALJ. (JS at 20.) Assuming that the statement actually reflects Dr. Mayo's opinion, a fact of which the Court is not convinced,*fn8 Plaintiff's claim fails.

It is up to the ALJ to resolve conflicts and ambiguities in the medical evidence. Tommasetti, 533 F.3d at 1041-42; Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995). Where the opinion of the treating physician is contradicted, and the opinion of a nontreating source is based on independent clinical findings that differ from those of the treating physician, the opinion of the nontreating physician may itself be substantial evidence. Andrews, 53 F.3d at 1041. In such a case, it is solely the province of the ALJ to resolve the conflict. Id.; Tonapetyan, 242 F.3d at 1149 (a consultative examiner's opinion "constitutes substantial evidence, because it rests on its own independent examination" of the claimant).

The ALJ need not accept the opinion of any physician, even a treating physician, if the opinion is brief, conclusory, and inadequately supported by clinical findings. Thomas, 278 F.3d at 957. Moreover, although he did not specifically state that he was rejecting Dr. Mayo's opinion because it conflicted with the testimony of Dr. Landau, the medical expert, the ALJ did state that he gave greater weight to the medical expert's testimony and opinion, an opinion which conflicted with Dr. Mayo's conclusion. (AR at 61 (see id. at 14-20, 307-311)); Morgan, 169 F.3d at 602 (ALJ may rely, in part, on the testimony of a medical advisor to reject a treating physician's opinion). Dr. Landau expressly considered Dr. Mayo's treatment notes, as well as evidence of Plaintiff's foot and shoulder impairments. (AR at 15-16.) An ALJ need not recite a magical "incantation" expressly rejecting a physician's opinion. Magallanes, 881 F.2d at 755. Rather, a reviewing court is "not deprived of [its] faculties for drawing specific and legitimate inferences from the ALJ's opinion." Id. As such, it is proper for a reviewing court to read an ALJ's discussion of one physician and draw inferences relevant to other physicians "if those inferences are there to be drawn." Id.

In the present case, Dr. Mayo did not give a specific assessment of Plaintiff's functional abilities during an eight-hour workday; he merely conclusorily stated, in essence, that she was precluded from gainful employment due to orthopedic reasons. The ALJ's decision to question Dr. Mayo's opinion in light of the fact that he would not prepare a disability report, for whatever reasons, was a specific and legitimate reason for rejecting Dr. Mayo's opinion and a rational resolution of the evidence presented. Burch v. Barnhart, 400 F.3d 676, 680-81 (9th Cir. 2005). Moreover, other than this one ambiguous statement by Dr. Mayo, there is no other indication in the record that any physician found Plaintiff totally disabled.

Based on the above, the Court finds that the ALJ provided specific and legitimate reasons for rejecting Dr. Mayo's opinion regarding Plaintiff's preclusion from gainful employment for orthopedic reasons. Thus, there was no error.


Based on the foregoing, IT THEREFORE IS ORDERED that Judgment be entered affirming the decision of the Commissioner, and dismissing this action with prejudice.

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