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Maria Figueroa v. Michael J. Astrue


September 12, 2011


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


Plaintiff, who is represented by counsel, seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying plaintiff's applications for Disability Insurance Benefits under Title II of the Social Security Act ("Act") and Supplemental Security Income benefits under Title XVI of the Act.*fn1 In her motion for summary judgment, plaintiff contends that the administrative law judge ("ALJ") in this case erred by: (1) giving "very little weight" to the opinion of plaintiff's chiropractor, James W. Newell, D.C. ("Mr. Newell"); (2) finding that plaintiff's testimony regarding her limitations was not credible to the extent that it was inconsistent with the residual functional capacity found by the ALJ; and (3) not crediting the testimony of a vocational expert in response to hypothetical questions about plaintiff's ability to work that were premised on plaintiff's proposed residual functional capacity. (See generally Pl.'s Mot. for Summ. J., Dkt. No. 18.) The Commissioner filed an opposition to plaintiff's motion and a cross-motion for summary judgment. (Dkt. No. 19.) Plaintiff did not file a reply brief. For the reasons stated below, the court denies plaintiff's motion for summary judgment and grants the Commissioner's cross-motion for summary judgment.


On June 20, 2006, plaintiff*fn3 filed an application for Disability Insurance Benefits that alleged a disability onset date of September 21, 2003, and an application for Social Security Income benefits that alleged a disability onset date of March 9, 2002.*fn4 (Admin. Tr. ("AT") 129-38.) The ALJ assessed plaintiff's applications based on an alleged disability onset date of September 21, 2003, without any discussion of the apparent discrepancy. (AT 24.) In any event, the Social Security Administration denied plaintiff's application initially and upon reconsideration. (AT 96-99, 100-04, 109-14.) Plaintiff requested a hearing before an ALJ, and the ALJ conducted a hearing regarding plaintiff's claim on June 11, 2008. (AT 60-80, 124.) Plaintiff was represented by counsel at the hearing and testified. For the most part, plaintiff testified through an interpreter because plaintiff asserted that she could not speak English. A vocational expert ("VE") also testified at the hearing.

In a written decision dated July 24, 2008, the ALJ denied plaintiff's applications for benefits based on a finding that plaintiff was "capable of performing past relevant work as a cook, dishwasher, vegetable sorter, and final finisher (construction)."*fn5 (AT 32.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review. (AT 1-5.) Plaintiff subsequently filed this action.

B. Summary of the ALJ's Findings

The ALJ conducted the required five-step evaluation and concluded that plaintiff was not disabled within the meaning of the Act. At step one, the ALJ found that plaintiff had not engaged in substantial gainful employment since September 21, 2003, the alleged date of onset of disability used by the ALJ. (AT 27.) At step two, the ALJ concluded that plaintiff had the following "severe" impairments: "musculoligamentous strain and coccydynia"*fn6 (id.), stemming from a previously fractured coccyx. At step three, the ALJ determined that plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the impairments listed in the applicable regulations. (Id.)

Prior to reaching step four of the analysis, the ALJ determined plaintiff's residual functional capacity ("RFC") as follows:

[T]he claimant has the residual functional capacity to perform the full range of medium work defined in 20 CFR 404.1567(c)*fn7 and 416.967(c). Specifically, the claimant can lift, carry, push, and pull 50 pounds occasionally and 25 pounds frequently. She can sit for 8 hours, and stand and walk for 8 hours, in an 8 hour day with normal breaks. (AT 27.) In assessing plaintiff's RFC, the ALJ addressed plaintiff's testimony and found that plaintiff was not credible to the extent that plaintiff's testimony conflicted with the RFC. (See AT 30-31.) The ALJ also addressed the opinion of Mr. Newell and gave it "very little weight." (See AT 28-29.)

Having assessed plaintiff's RFC, the ALJ found at step four that plaintiff "is capable of performing relevant past work as a cook, dishwasher, vegetable sorter, and final finisher (construction)." (AT 32.) The ALJ stated that the VE testified that these jobs are performed at the medium or light exertional levels. (Id.) As a result of the ALJ's finding at step four, the ALJ found that plaintiff was not disabled without reaching step five of the analysis.


The court reviews the Commissioner's decision to determine whether it is (1) free of legal error, and (2) supported by substantial evidence in the record as a whole. Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009); accord Vernoff v. Astrue, 568 F.3d 1102, 1105 (9th Cir. 2009). This standard of review has been described as "highly deferential." Valentine v. Comm'r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). "'Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)); accord Valentine, 574 F.3d at 690. "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Andrews, 53 F.3d at 1039; see also Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) ("[T]he ALJ is the final arbiter with respect to resolving ambiguities in the medical evidence."). Findings of fact that are supported by substantial evidence are conclusive. 42 U.S.C. § 405(g); see also McCarthy v. Apfel, 221 F.3d 1119, 1125 (9th Cir. 2000). "Where the evidence as a whole can support either a grant or a denial, [the court] may not substitute [its] judgment for the ALJ's." Bray, 554 F.3d at 1222; see also Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) ("'Where evidence is susceptible to more than one rational interpretation,' the ALJ's decision should be upheld.") (quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)). However, the court "must consider the entire record as a whole and may not affirm simply by isolating a 'specific quantum of supporting evidence.'" Ryan, 528 F.3d at 1198 (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)); accord Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007).


A. The ALJ's Permissibly Discounted Plaintiff's Chiropractor's Opinion Plaintiff contends that the ALJ improperly rejected the opinion of Mr. Newell, plaintiff's treating chiropractor, who is not a licensed physician. Mr. Newell's opinions regarding plaintiff's functional ability were set forth in a form dated February 12, 2007. (See AT 296-300.) Mr. Newell opined that, among other things, plaintiff could lift or carry at most 12 pounds but only occasionally; could never climb, stoop, or crouch, but could occasionally balance, kneel, and crawl; could occasionally reach, push, and could frequently handle, feel, and hear; could sit, stand, or walk for at most one hour in an eight-hour workday; and should avoid concentrated exposure to dust, temperature extremes, fumes, and vibrations. (See id.) Mr. Newell generally cited an x-ray and an MRI from 1999 as supporting his opinion. (AT 296, 299.) He also relied on plaintiff's poor posture, a positive "Minor's sign,"*fn8 and plaintiff's guarded gait as medical findings that supported his opinions. (AT 297.) The remainder of the "findings" cited by Mr. Newell in support of his opinions were plaintiff's subjective complaints.

The ALJ considered Mr. Newell's opinion, but gave his "non-medical opinion very little weight." (AT 28.) Noting the lack of "serious objective findings" in the records, the ALJ stated:

[G]iven the lack of any objective medical findings, or the results of diagnostic testing which support this extreme assessment, the [ALJ] gives this non-medical opinion very little weight. In fact, treating notes from this chiropractor do not contain any findings supporting his opinion. Moreover, it appears that his opinion is speculative, and primarily based on the claimant's subjective complaints.

(AT 28; accord AT 29.) The ALJ then discussed the records of examining and non-examining physicians that contradicted Mr. Newell's opinions and upon which the ALJ relied in arriving at plaintiff's RFC. (See AT 28-29.)

Under the applicable regulations, chiropractors are considered "other sources" and are not "acceptable medical sources." See 20 C.F.R. § 404.1513(a), (d); accord 20 C.F.R. § 416.913(a), (d). Only acceptable medical sources may provide medical opinions. See 20 C.F.R. § 404.1527(a)(2) ("Medical opinions are statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of your impairment(s), including your symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and your physical or mental restrictions."); accord 20 C.F.R. § 416.927(a)(2). Social Security Rule 06-03p recognizes that regulations regarding the evaluation of opinion evidence, such as 20 C.F.R. §§ 404.1527 and 416.927, do not address how to evaluate the opinions of "other sources" such as a chiropractor who has seen the claimant in his or her professional capacity. See Soc. Sec. Ruling 06-03p. Although not binding on this court, Social Security Ruling 06-03p provides: "Opinions from these medical sources, who are not technically deemed 'acceptable medical sources' under our rules, are important and should be evaluated on key issues such as impairment severity and functional effects, along with the other relevant evidence in the file."

The Ninth Circuit Court of Appeals has held that "there is no requirement that the Secretary accept or specifically refute" a report of a chiropractor. Bunnell v. Sullivan, 912 F.2d 1149, 1151-52 (9th Cir. 1990), rev'd en banc on other grounds, 947 F.2d 341 (9th Cir. 1991) (en banc). However, more recent decisions of the Court of Appeals, some of which are unpublished but instructive, have held that the ALJ cannot reject evidence from an "other source" without comment, but need only provide "germane" reasons in rejecting the opinion evidence of an other source such as a chiropractor. See Bain v. Astrue, 319 Fed. Appx. 543, 546 (9th Cir. 2009) ("Because Stout is not an acceptable medical source, the ALJ had only to provide 'germane' reasons for discrediting her opinion.") (citing Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993)); Kus v. Astrue, 276 Fed. Appx. 555, 556 (9th Cir. 2008) ("As with other witnesses, the ALJ was required to take into account evidence from Kus's chiropractor 'unless he or she expressly determine[d] to disregard such testimony' and gave reasons for doing so.") (modification in original) (citing Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001)); Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996) (holding that an ALJ cannot reject lay witness testimony about how an impairment affects the claimant's ability to work without comment).*fn9

Here, the ALJ considered Mr. Newell's opinions regarding plaintiff's functional limitations and provided specific and germane reasons for heavily discounting those opinions. First, the ALJ's observation that Mr. Newell's opinion was primarily based on plaintiff's subjective testimony is supported by the record. Although the form Mr. Newell completed asks the author to cite to "medical findings" in support of a functional assessment, Mr. Newell relied heavily on plaintiff's subjective complaints, which the undersigned concludes below are not credible. See cf. Tommasetti, 533 F.3d at 1041 ("An ALJ may reject a treating physician's opinion if it is based 'to a large extent' on a claimant's self-reports that have been properly discounted as incredible."). For example, in assessing plaintiff's ability to lift and carry weight, Mr. Newell stated: "Patient is unable to bend forward at the waist > 45o w/o increasing subjective complaint." (AT 298.) In assessing plaintiff's ability to reach, handle, feel, push, pull, and hear, Mr. Newell's "medical findings" consist solely of plaintiff's subjective reports of her own functional abilities. (AT 297.) Similarly, Mr. Newell's "medical findings" in support his assessment of plaintiff's ability to use her hands and feet state, in part: "Patient claim [sic] that reaching above shoulder level aggravates LBP." (AT 300.) Mr. Newell's opinion is almost entirely unsupported by actual medical findings even though such findings are requested in the form he completed; rather, plaintiff's subjective complaints provide the basis for the limitations cited by Mr. Newell. Another set of records prepared by Mr. Newell, which immediately precede Mr. Newell's functional assessment in the record, indicate diagnoses of plaintiff, but consist of plaintiff's subjective reports from August 2006 through February 2007. (See AT 292-95.)

Second, the record supports the ALJ's finding that objective medical findings did not support Mr. Newell's extreme assessment of plaintiff's functional abilities. In terms of laboratory findings, Mr. Newell relied on an x-ray and an MRI from 1999 in arriving at his functional assessment eight years later in 2007. (See AT 296.) Moreover, Mr. Newell did not explain how the x-ray or MRI supported the limitations he found. And although plaintiff is correct that Mr. Newell performed "tests" or made observations, such as the positive Minor's sign, the ALJ did not err by finding that Mr. Newell's records did not support the degree of limitation assessed. Indeed, the ALJ's citation to medical records prepared by acceptable medical sources that contradicted Mr. Newell's extreme assessment, including the reports of examining physicians and state agency physicians, compellingly supports the ALJ's rejection of Mr. Newell's assessment. (AT 28-29; see also, e.g., AT 320 (August 2007 report of Richard A. Beyer, M.D., noting plaintiff's excellent strength during a neurological examination and largely normal nerve conduction studies); AT 337 (May 2007 treatment notes of Carol Kimball, M.D., noting on physical examination that plaintiff was "in no acute distress" and that plaintiff's back was "minimally tender").)

In short, the ALJ provided specific and germane reasons for discounting Mr. Newell's opinion of plaintiff's functional abilities, which are supported by the record. Moreover, the ALJ relied on opinions provided by acceptable medical sources in calculating plaintiff's RFC.

Accordingly, the ALJ did not err in evaluating Mr. Newell's opinion.

B. The ALJ's Credibility Determination Was Not Erroneous Next, plaintiff attacks the ALJ's credibility determination. The ALJ found that plaintiff's statements regarding "the intensity, persistence and limiting effects of [plaintiff's] symptoms [were] not credible to the extent they [were] inconsistent with the [RFC]." (AT 30.)

In Lingenfelter v. Astrue, the Ninth Circuit Court of Appeals summarized the ALJ's task with respect to assessing a claimant's credibility:

To determine whether a claimant's testimony regarding subjective pain or symptoms is credible, an ALJ must engage in a two-step analysis. First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged. The claimant, however, need not show that her impairment could reasonably be expected to cause the severity of the symptom she has alleged; she need only show that it could reasonably have caused some degree of the symptom. Thus, the ALJ may not reject subjective symptom testimony . . . simply because there is no showing that the impairment can reasonably produce the degree of symptom alleged.

Second, if the claimant meets this first test, and there is no evidence of malingering, the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so. . . .

Lingenfelter, 504 F.3d at 1035-36 (citations and quotation marks omitted). In weighing a claimant's credibility, an ALJ may consider, among other things, the "'[claimant's] reputation for truthfulness, inconsistencies either in [claimant's] testimony or between [her] testimony and [her] conduct, [claimant's] daily activities, [her] work record, and testimony from physicians and third parties concerning the nature, severity, and effect of the symptoms of which [claimant] complains." Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002) (modification in original) (quoting Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997)); see also Burch, 400 F.3d at 680 ("In determining credibility, an ALJ may engage in ordinary techniques of credibility evaluation, such as considering claimant's reputation for truthfulness and inconsistencies in claimant's testimony."). If the ALJ's credibility finding is supported by substantial evidence in the record, the court "may not engage in second-guessing." Id. at 959.

Here, the ALJ discounted plaintiff's testimony regarding her functional limitations for several reasons that are supported by the record.*fn10 For example, the ALJ stated that "the record does not show that the claimant is receiving any regular, ongoing specialized treatment for her complaints." (AT 31.) Plaintiff cites Dr. Kimball's treatment of plaintiff, which consisted of prescribing narcotics and other medications. However, the ALJ's point appears to be that plaintiff was not undergoing treatment by a specialist, such as an orthopedist or neurologist, for plaintiff's complaints of lower back pain. In a similar vein, the ALJ reasonably noted that plaintiff's treatment was conservative and that no physicians had referred plaintiff for additional testing or hospitalization for further investigation of plaintiff's complaints. See Tommasetti, 533 F.3d at 1041 (noting that a conservative treatment plan is a permissible basis for discounting testimony of all-disabling pain).

The ALJ also noted that the "record reflects that examinations have not revealed any significant findings, or reflected any neurological involvement, or muscle wasting or atrophy, usually associated with pain and inactivity." (AT 31.) On a related note, the ALJ reasoned that the record did not contain "any diagnostic testing such as X-rays, tomography, magnetic resonance imaging, or nerve conduction studies, that shows any significant abnormality." (Id.) These reasons for discounting plaintiff's credibility are supported. Among other treatment notes, Dr. Beyer noted in July 2007 that nerve conduction studies performed on plaintiff were almost entirely normal, and his neurological examination revealed that plaintiff had "excellent strength," normal muscle tone, and good range of motion in her neck. (AT 319.) In March 2006, Graham Bray, M.D., an examining orthopaedic surgeon, conducted a follow up examination of plaintiff that resulted in unremarkable findings regarding plaintiff's back and a recommendation that plaintiff only receive chiropractic therapy for an estimated four "flare-ups" that plaintiff might expect to experience in a year. (See AT 242-46.) In December 2007, John C. Forsyth, M.D. examined plaintiff and noted that plaintiff's spine showed normal alignment, plaintiff was not particularly tender over the sacrum or coccyx, plaintiff's range of motion about the spine was relatively full, and plaintiff's gait was normal. (AT 354.) These medical records and others in the record support the ALJ's reasoning. And to the extent that plaintiff would again rely on Mr. Newell's opinion, the ALJ properly rejected that opinion and was nevertheless entitled to favor the supported treating and examining observations of licensed physicians over the opinions of a chiropractor who is not an acceptable medical source.

The ALJ provided several reasons for discounting plaintiff's testimony that are supported by the record. Accordingly, the undersigned concludes that the ALJ did not err in assessing plaintiff's credibility.

C. The ALJ Did Not Err By Not Crediting the VE's Responses To Plaintiff's Counsel's Hypothetical Questions

Finally, plaintiff argues that the ALJ erred by not crediting the VE's testimony about plaintiff's ability to work in response to hypothetical questions premised on the RFC framed by plaintiff's counsel. Plaintiff contends that the ALJ erred by not adopting the functional limitations found by Mr. Newell, and testified to by plaintiff, in the RFC, and thus did not ask hypothetical questions of the VE. Plaintiff's counsel, however, posed hypothetical questions to the VE using an RFC framed by plaintiff's counsel. Plaintiff's argument is entirely contingent on her arguments rejected above. Because the undersigned concluded that the ALJ properly discounted the functional assessment of Mr. Newell and permissibly discounted plaintiff's subjective testimony, the ALJ did not err in questioning the VE.


For the foregoing reasons, IT IS HEREBY ORDERED that:

1. Plaintiff's motion for summary judgment (Dkt. No. 18) is denied.

2. The Commissioner's cross-motion for summary judgment (Dkt. No. 19) is granted.

3. The Clerk of Court is directed to enter judgment in the Commissioner's favor.


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