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Allen J. Bradley v. Michael J. Astrue


November 26, 2012


The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge


Plaintiff filed a Complaint on April 20, 2012, seeking review of the Commissioner's denial of benefits. The parties filed a consent to proceed before a United States Magistrate Judge on May 22, 2012.

Plaintiff filed a motion for summary judgment on October 10, 2012. Defendant filed a cross-motion for summary judgment on November 7, 2012. The Court has taken both motions under submission without oral argument. See L.R. 7-15; "Order," filed April 25, 2012.


Plaintiff, a former meat clerk, teacher's aide and prep cook, asserted disability based primarily on alleged neck and back problems (Administrative Record ("A.R.") 51-60, 113-17, 131-33). An Administrative Law Judge ("ALJ") examined the medical record and heard testimony from Plaintiff and from a vocational expert (A.R. 25-174, 206-438).

The ALJ found Plaintiff had "the following severe impairments: stenosis of cervical spine with myelopathy and multilevel degenerative disc disease/spondylosis; status post anterior cervical discectomies and fusion; degenerative disc disease of the lumbar spine; and status post gunshot wound with retained bullet fragment in the cervical vertebra (posterior neck)" (A.R. 27). The ALJ also found, however, that Plaintiff retained the residual functional capacity to perform a limited range of sedentary work (A.R. 28). In reliance on the testimony of a vocational expert, the ALJ determined that there existed significant numbers of jobs Plaintiff could perform (A.R. 32; see A.R. 67-75 (vocational expert's testimony)). The ALJ denied benefits, stating that Plaintiff "has not been under a disability, as defined in the Social Security Act, since January 5, 2009, the date the application was filed" (A.R. 32).

Plaintiff sought review from the Appeals Council, submitting a legal brief, some additional medical records, and some vocational evidence from "Job Browser Pro" and the "Specific Occupation Employment Unskilled Quarterly" (A.R. 175-205, 439-651). The Appeals Council considered these additional materials, but denied review (A.R. 1-4).


Plaintiff contends:

1. The ALJ assertedly "fail[ed] to consider disability during a discrete closed period of time";

2. The ALJ assertedly "fail[ed] to give proper consideration to the opinions of the treating physicians taken together";

3. The ALJ assertedly "fail[ed] to give clear and convincing reasons for rejecting the testimony of the claimant"; and

4. The Administration assertedly erred by relying on the testimony of the vocational expert.


Under 42 U.S.C. section 405(g), this Court reviews the Administration's decision to determine if: (1) the Administration's findings are supported by substantial evidence; and (2) the Administration used proper legal standards. See Carmickle v. Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and quotations omitted); Widmark v. Barnhart, 454 F.3d 1063, 1067 (9th Cir. 2006).

Where, as here, the Appeals Council considered additional material but denied review, the additional material becomes part of the Administrative Record for purposes of the Court's analysis. See Brewes v. Commissioner, 682 F.3d 1157, 1163 (9th Cir. 2012) ("[W]hen the Appeals Council considers new evidence in deciding whether to review a decision of the ALJ, that evidence becomes part of the administrative record, which the district court must consider when reviewing the Commissioner's final decision for substantial evidence."; expressly adopting Ramirez v. Shalala, 8 F.3d 1449, 1452 (9th Cir. 1993)); Taylor v. Commissioner, 659 F.3d 1228, 1231 (2011) (courts may consider evidence presented for the first time to the Appeals Council "to determine whether, in light of the record as a whole, the ALJ's decision was supported by substantial evidence and was free of legal error"); Penny v. Sullivan, 2 F.3d 953, 957 n.7 (9th Cir. 1993) ("the Appeals Council considered this information and it became part of the record we are required to review as a whole"); see generally 20 C.F.R. §§ 404.970(b), 416.1470(b).


After consideration of the record as a whole, Defendant's motion is granted and Plaintiff's motion is denied. The Administration's findings are supported by substantial evidence and are free from material*fn1 legal error. Plaintiff's contrary contentions are unavailing.

I. Plaintiff has Failed to Demonstrate Any Material "Closed Period" Error.

To be entitled to benefits, Plaintiff must satisfy a durational requirement of 12 continuous months of disability. See Barnhart v. Walton, 535 U.S. 212, 218-25 (2002); Krumpelman v. Heckler, 767 F.2d 586, 589 (9th Cir. 1985), cert. denied, 475 U.S. 1025 (1986). Impairments which, with treatment, would improve over a few months' time to attain a level permitting the performance of work cannot meet this durational requirement. Id.; see also Warre v. Commissioner, 439 F.3d 1001, 1006 (9th Cir. 2006) (impairments that can be controlled effectively with treatment are not disabling); Mongeur v. Heckler, 722 F.2d 1033, 1039 (2d Cir. 1983) ("a remediable impairment is not disabling"). Substantial evidence supports the ALJ's conclusion that, despite severe impairments, Plaintiff never lost or could be expected to lose for a continuous 12-month period the ability to perform a limited range of sedentary work.

In arguing the contrary, Plaintiff places principal reliance on the March 10, 2009 statement of Dr. Limos, a non-examining physician. Dr. Limos's March 10, 2009 statement referred to Plaintiff's recent (January, 2009) neck surgery and tracheostomy, and forecast that "it is reasonable to assume barring all complications that by 1/10[/10] [Plaintiff] is able to do LT [light] work" (A.R. 348). The ALJ was not required to accept, and did not fully accept, Dr. Limos' forecast. Even if accepted, however, Dr. Limos' forecast would not compel the finding of a closed period of disability. Assuming Plaintiff would regain the ability to perform light work on (but not before)

January 10, 2010, it still would be reasonable to infer that Plaintiff would regain the ability to perform a limited range of sedentary work sometime well in advance of January 10, 2010.

Plaintiff appears also to argue that the ALJ only considered whether Plaintiff was disabled as of the June 28, 2010 date of the ALJ's decision. Plaintiff argues that the ALJ never considered the possibility of disability during any 12-month period ending before that date. Plaintiff's argument lacks merit. The ALJ expressly found that Plaintiff was not under a disability at any time "since January 5, 2009, the date the application was filed" (A.R. 32). Moreover, "[t]he presumption of regularity supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties." United States v. Chemical Foundation, 272 U.S. 1, 14-15 (1926); see Wilburn v. Astrue, 626 F.3d 999, 1003-04 (8th Cir. 2010) (applying this principle to the decision of an ALJ in a social security disability case); Morris v. Sullivan, 897 F.2d 553, 560 (D.C. Cir. 1990) (same).*fn2 Finally, Plaintiff made an express "closed period" argument to the Appeals Council, which the Appeals Council necessarily rejected in denying review.

Speculation aside, there exists substantial evidence that Plaintiff improved significantly in the months immediately following his January, 2009 surgery so as to regain the ability to work. Plaintiff admitted there was "a whole lot of improvement" after the surgery, including a significant reduction of pain (A.R. 54, 57-58). During the month prior to the surgery, Plaintiff's hands reportedly were constantly numb and he had difficulties using his hands (A.R. 224). In the spring and summer of 2010, however, treatment records consistently reported significant improvement, including improvement in Plaintiff's ability to use his hands (See, e.g., A.R. 477-78, 554, 561, 580, 593, 618-19). Plaintiff's pain reportedly was "moderate," but manageable (A.R. 457, 466). The Court is unable to discern any material error in relation to any alleged closed period of disability.

II. The ALJ did Not Materially Err in Regard to the Statements of Plaintiff's Treating Physicians.

Plaintiff contends that the ALJ materially erred in regard to statements made by three of Plaintiff's treating physicians, Drs. Lee, Chen, and So. This contention lacks merit.

A treating physician's conclusions "must be given substantial weight." Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988); see Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989) ("the ALJ must give sufficient weight to the subjective aspects of a doctor's opinion . . . This is especially true when the opinion is that of a treating physician") (citation omitted); see also Orn v. Astrue, 495 F.3d 625, 631-33 (9th Cir. 2007) (discussing deference owed to treating physician opinions). Even where the treating physician's opinions are contradicted,*fn3 "if the ALJ wishes to disregard the opinion[s] of the treating physician he . . . must make findings setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record." Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987) (citation, quotations and brackets omitted); see Rodriguez v. Bowen, 876 F.2d at 762 ("The ALJ may disregard the treating physician's opinion, but only by setting forth specific, legitimate reasons for doing so, and this decision must itself be based on substantial evidence") (citation and quotations omitted).

On February 17, 2009, Dr. Lee signed a statement in which she indicated she last had seen Plaintiff on December 9, 2008 (A.R. 340-42). Dr. Lee noted Plaintiff had been "hyporeflexic" with "impaired hand dexterity." Id. Dr. Lee did not opine concerning Plaintiff's "current status" as of February, 2009, instead deferring to Dr. So because of the surgery that had taken place subsequent to Plaintiff's last visit with Dr. Lee (A.R. 341). Dr. Lee also did not offer any opinion regarding Plaintiff's work capacity (pre-surgery or post-surgery) (A.R. 340-42).

On December 19, 2008, Dr. Chen reported significant neurological deficits including weaknesses, abnormal speech, and numbness in the hands (A.R. 270). Dr. Chen's report predates Plaintiff's surgery, however, and therefore says nothing about Plaintiff's post-operative condition. Dr. Chen offered no opinion concerning Plaintiff's ability to work (pre-surgery or post-surgery).

The ALJ did not specifically mention the statements of Drs. Lee or Chen. However, neither Dr. Lee nor Dr. Chen offered any specific opinion regarding Plaintiff's capacity to work. Under these circumstances, the ALJ's failure specifically to mention the doctors' statements did not effect material error. Cf. Hollon ex rel. Hollon v. Commissioner, 447 F.3d 477, 491 (6th Cir. 2006) (court rejected claimant's suggestion that the ALJ failed to give proper deference to the opinions of claimant's treating physicians where the claimant failed to specify the particular opinion(s) that the ALJ purportedly disregarded or discounted). Perhaps more significantly, even accepting the accuracy of Dr. Lee's statements and Dr. Chen's statements at the time the statements were made would not impugn the validity of the Administration's decision to deny disability benefits.

In a "Work Status Report," dated March 24, 2010, Dr. So cryptically stated: "This patient is placed off work from 4/1/2010 through 6/30/2010" (A.R. 360). The ALJ mentioned this "Work Status Report," but properly reasoned that "[a]n ALJ is not required to accept a treating physician's opinion which is brief and conclusory, and is not adequately supported by clinical findings" (A.R. 30). See Matney v. Sullivan, 981 F.2d 1016, 1019-20 (9th Cir. 1992) ("The ALJ need not accept an opinion of a physician -- even a treating physician -- if it is conclusionary and brief and is unsupported by clinical findings"); Magallanes v. Bowen, 881 F.2d 747, 753 (9th Cir. 1989) (ALJ can meet requirement to set forth reasons to reject a treating physician's opinion by "setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof and making findings") (citations and quotations omitted); see also Batson v. Commissioner, 359 F.3d 1190, 1195 (9th Cir. 2004) ("an ALJ may discredit treating physicians' opinions that are conclusory, brief, and unsupported by the record as a whole . . . or by objective medical findings"); Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 2003) (treating physician's opinion properly rejected where treating physician's treatment notes "provide no basis for the functional restrictions he opined should be imposed on [the claimant]"). In any event, even accepting Dr. So's "Work Status Report" at face value, Plaintiff still would not have satisfied the durational requirement for disability benefits.

It might be argued that the ALJ should have recontacted Plaintiff's treating physicians to seek additional documentation or greater clarity concerning these physicians' various statements. Remand for this purpose would be inappropriate, however, because Plaintiff has failed to carry his burden of showing a "substantial likelihood of prejudice" resulting from the ALJ's failure to re-contact the treating physicians. See McLeod v. Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011) (claimant bears the burden of showing a substantial likelihood of prejudice from the Administration's errors). The circumstances of this case show no "substantial likelihood of prejudice." See id.

III. The ALJ did Not Materially Err in Evaluating Plaintiff's Credibility.

Plaintiff contends that the ALJ improperly discounted Plaintiff's testimony regarding the severity of his alleged limitations. An ALJ's assessment of a claimant's credibility is entitled to "great weight." Anderson v. Sullivan, 914 F.2d 1121, 1124 (9th Cir. 1990); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985). The discounting of a claimant's testimony regarding subjective symptoms must be supported by specific, cogent findings. See Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995); see also Berry v. Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010) (reaffirming same); Varney v. Secretary of Health and Human Serv., 846 F.2d 581, 584 (9th Cir. 1988) (generally discussing specificity requirement); but see Smolen v. Chater, 80 F.3d at 1282-84 (indicating that ALJ must offer "specific, clear and convincing" reasons to reject a claimant's testimony where there is no evidence of malingering).*fn4 Contrary to Plaintiff's contention, the ALJ stated sufficient reasons for deeming Plaintiff's testimony less than fully credible.

The ALJ discussed medical evidence suggesting that Plaintiff's impairments were not disabling (A.R. 29-30). Although a claimant's credibility "cannot be rejected on the sole ground that it is not fully corroborated by objective medical evidence, the medical evidence is still a relevant factor. . . ." Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); see also Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) ("lack of medical evidence" can be "a factor" in rejecting credibility, but cannot "form the sole basis").

The ALJ also properly cited Plaintiff's level of activities as inconsistent with some of Plaintiff's reports of disabling symptomatology (A.R. 30-31). Plaintiff regularly cooks, does a little housework, vacuums, "walk[s] the kids around until they go to the bus," takes care of two dogs, and reportedly is capable of lifting a case of beer (A.R. 59, 61-62). Such considerations can constitute "clear and convincing reasons" for discounting the credibility of a claimant's testimony that the claimant cannot work. Burch v. Barnhart, 400 F.3d at 680-81; see Rollins v. Massanari, 261 F.3d at 857 (claimant's testimony regarding daily domestic activities undermined the credibility of her pain-related testimony); Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999) (inconsistencies between claimant's testimony and actions cited as a clear and convincing reason for rejecting the claimant's testimony).

The ALJ's decision also states that Plaintiff "has searched and applied for work, and that if offered a job, he would try it" (A.R. 30; see A.R. 49 (Plaintiff's testimony re same)). According to the ALJ, "[s]uch testimony evidences a belief that [Plaintiff] is able to work and belies the credibility of his subjective complaints." (Id.). Some authorities within the Ninth Circuit have upheld adverse credibility determinations predicated on a claimant's having held himself or herself out as available for work. See Bray v. Commissioner, 554 F.3d 1219, 1227 (9th Cir. 2009) (among the specific findings supporting the ALJ's adverse credibility determination was the fact that the claimant had sought employment); Copeland v. Bowen, 861 F.2d 536, 542 (9th Cir. 1988) (upholding ALJ's adverse credibility determination where the ALJ relied in part on the fact that the claimant "received unemployment insurance benefits . . . apparently considering himself capable of work and holding himself out as available for work"); Bohall v. Astrue, 2010 WL 1740770, at *10 (W.D. Wash. April 29, 2010) ("The ALJ was also proper in discounting plaintiff's credibility on the basis that his receipt of unemployment insurance compensation was inconsistent with his allegations of disability . . . the point is that at the time he applied for unemployment benefits, he was deemed to have considered and to have held himself out as being available for and capable of work"); but see Webb v. Barnhart, 433 F.3d 683, 687-88 (9th Cir. 2005) (reversing an ALJ's determination that an impairment was not severe where the ALJ had relied in part on the claimant's seeking of employment). Assuming arguendo that the ALJ's partial reliance on Plaintiff having sought work was somehow improper in the present case, the ALJ's credibility determination nevertheless would stand. Under Carmickle v. Commissioner, 533 F.3d at 1163, the infirmity of one or two supporting reasons for an ALJ's credibility determination does not require overturning the determination if independently valid supporting reasons remain. Independently valid supporting reasons remain in the present case.

Because the ALJ's credibility findings were sufficiently specific to allow this Court to conclude that the ALJ rejected Plaintiff's testimony on permissible grounds, Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004), the Court defers to the ALJ's credibility findings. See Lasich v. Astrue, 252 Fed. App'x 823, 825 (9th Cir. 2007) (court will defer to ALJ's credibility determination when the proper process is used and proper reasons for the decision are provided); accord Flatten v. Secretary of Health & Human Services, 44 F.3d 1453, 1464 (9th Cir. 1995).

IV. The Administration Properly Could Rely on the Testimony of the Vocational Expert.

The vocational expert testified that a person having the limitations identified by the ALJ could perform jobs existing in significant numbers in the local and national economy (A.R. 70-75). This testimony furnished substantial evidence that there exist significant numbers of jobs Plaintiff can perform. See Barker v. Secretary, 882 F.2d 1474, 1478-80 (9th Cir. 1989); Martinez v. Heckler, 807 F.2d 771, 775 (9th Cir. 1986); see generally 42 U.S.C. § 423(d)(2)(A). "A [vocational expert's] recognized expertise provides the necessary foundation for his or her testimony. Thus, no additional foundation is required." Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005).

After the ALJ's adverse decision, Plaintiff submitted additional vocational evidence to the Appeals Council. Plaintiff asserts that this additional evidence starkly conflicts with the vocational expert's testimony regarding the numbers of relevant jobs existing in the economy. Any such conflict does not prevent the vocational expert's testimony from constituting substantial evidence to support the administrative decision, however. See Bayliss v. Barnhart, supra; Brault v. Social Security Administration, 683 F.3d 443, 448 (2nd Cir. 2012) (rejecting claimant's contention that the Administration had a duty to explain why the Administration rejected the claimant's objections to allegedly dubious testimony from a vocational expert); Drossman v. Astrue, 2011 WL 4496568, at *8 (N.D. Ohio July 15, 2011), adopted, 2011 WL 4496561 (N.D. Ohio Sept. 27, 2011) (vocational expert testimony based on sources of information other than "Job Browser Pro" held to constitute substantial evidence supporting the administrative decision).

When the record contains ambiguous or conflicting evidence, it is the prerogative of the Administration to resolve the conflict. See Lewis v. Apfel, 236 F.3d 503, 509 (9th Cir. 2001). When evidence "is susceptible to more than one rational interpretation," the Court must uphold the administrative decision. See Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995); accord Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002); Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997). Accordingly, this Court will uphold the administrative decision in the present case notwithstanding the conflict between the vocational expert's testimony and the vocational evidence submitted by Plaintiff to the Appeals Council.*fn5


For all of the reasons discussed herein, Plaintiff's motion for summary judgment is denied and Defendant's motion for summary judgment is granted.*fn6


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