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Steven H. Murtishaw v. Carolyn W. Colvin


March 28, 2013


The opinion of the court was delivered by: Hon. Jay C. Gandhi United States Magistrate Judge


Steven H. Murtishaw ("Plaintiff") challenges the Social Security Commissioner's decision denying his application for disability benefits. Two issues are presented for decision here:

1. whether the Administrative Law Judge ("ALJ") improperly rejected the opinion of Plaintiff's treating physicians, Drs. Michael Roach and Gale Schuler, (see Joint Stip. at 3-6, 12-13); and

2. whether the ALJ improperly rejected Plaintiff's credibility. (See id. at 14-15, 17-18.)

The Court addresses -- and rejects -- Plaintiff's contentions below.

A. The ALJ's Rejection of Treating Opinions Plaintiff first asserts that the ALJ improperly rejected the opinions of his treating physicians, Drs. Roach and Schuler. (Joint Stip. at 3-6, 12-13.)

"As a general rule, more weight should be given to the opinion of a treating source than to the opinion of doctors who do not treat the claimant." Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). This is so because a treating physician "is employed to cure and has a greater opportunity to know and observe the patient as an individual." Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987).

Where the "treating doctor's opinion is contradicted by another doctor, the [ALJ] may not reject this opinion without providing specific and legitimate reasons supported by substantial evidence in the record[.]" Lester, 81 F.3d at 830 (internal quotation marks and citation omitted). The ALJ can meet the requisite specific and legitimate standard "by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings." Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (internal quotation marks and citation omitted).

The Court discusses the ALJ's treatment of each physician below.

1. Dr. Roach

The ALJ gave three reasons for discrediting Dr. Roach's opinion.

First, the ALJ found Dr. Roach's analysis of Plaintiff's gastric cancer to be unsupported "by the medical evidence in the record." (AR at 28); see Batson v. Comm'r of Soc. Sec., 359 F.3d 1190, 1197 (9th Cir. 2004) (treating physician's opinion may be rejected as "unsupported by the record as a whole"). For instance, with respect to Dr. Roach's finding of "distant metastas[is]," the ALJ cited Plaintiff's MRI results, which provided "[n]o evidence of abdominal [metastasis]." (Id.; compare AR at 629 with AR at 382.) Similarly, Dr. Roach's prognosis of Plaintiff's gastric cancer -- simply stated as "poor" -- was also undermined by Plaintiff's treating oncologist,*fn2 Dr. Jack Freimann, who found the condition to be controlled by chemotherapy medication. (AR at 28; compare AR at 629 with AR at 640.) Thus, in light of such documented inconsistencies, no error was made here.

Second, the ALJ found Dr. Roach's April 27, 2010 mental health assessment to be "vague and unclear" concerning the effects of Plaintiff's fatigue. (AR at 32); see Batson, 359 F.3d at 1195 (treating physician's opinion may be rejected if it is conclusory, brief, and unsupported). Specifically, the ALJ determined that Dr. Roach failed to "quantify"*fn3 how Plaintiff's severe fatigue would affect his ability to work. (AR at 32; see AR at 656.) In fact, the questionnaire provided to Dr. Roach -- in no uncertain terms -- asked him to "[d]describe [Plaintiff's] ability to adapt to stresses common to the work environment." (AR at 656.) Lest there be any confusion, it then also queried, "[i]n what way, if any, have these [abilities] changed as a result of [Plaintiff's] condition?" (Id.) Though pressed for details, Dr. Roach only gave a two-word response: "severe fatigue." (Id.) Such brevity provides adequate grounds to reject Dr. Roach's opinion.

Third, the ALJ noted that Dr. Roach, in spite of his assessment of Plaintiff's limitations, failed to identify any medically determinable mental impairment. (AR at 32.) This reason, however, is somewhat misleading. Though no purely "mental" impairment was noted, the ALJ did describe, albeit in basic terms, that Plaintiff's gastric cancer -- undoubtedly, a medically determinable impairment -- caused the severe fatigue. (AR at 655.) In any event, considering the adequacy of the ALJ's other reasons, this error is harmless. Batson, 359 F.3d at 1197.

Thus, for the above reasons, the ALJ properly rejected Dr. Roach's medical assessment.

2. Dr. Schuler

As for Dr. Schuler, the ALJ offered three reasons for discrediting her opinion. First, the ALJ observed that Dr. Schuler did not have "the benefit of reviewing any medical reports contained in the current record," and thus appeared to have "relied heavily on [Plaintiff's] subjective complaints." (AR at 32.) This conclusion, however, seems to be in error, as the record discloses at least one psychoanalytical test performed by Dr. Schuler. (See AR at 778 (discussing results of the "House-Tree-Person-Drawing" test).)

Second, the ALJ noted that Plaintiff's inconsistent mental health counseling indicated that his symptoms are not as severe as alleged by Dr. Schuler. (AR at 32.) Though unexplained failures to seek treatment can cast doubt on the alleged severity of a condition, that reason is not applicable in the mental health context because the mentally ill "often do not recognize that their condition reflects a potentially serious mental illness." Van Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir.1996).

Third, though the above reasons are in error, the ALJ properly noted that the limitations assessed by Dr. Schuler were undermined by Plaintiff's daily activities. (AR at 31.) For instance, Dr. Schuler found Plaintiff's ability to maintain attention and concentration for extended periods of time to be "markedly limited" (i.e., the lowest of four options.) (AR at 783.) Undermining this finding, however, is Plaintiff's testimony that he is able to read for lengthy durations and drive a car. (AR at 58, 63.) Presumably, then, Plaintiff's ability to concentrate is not as impaired as he alleged it to be.

Given the viability of this third reason, no reversible error can be attributed to the ALJ's assessment of Dr. Schuler's opinion. See Batson, 359 F.3d at 1197.

B. The ALJ's Assessment of Plaintiff's Testimony

Plaintiff next asserts that the ALJ improperly assessed his credibility. (Joint Stip. at 14-15, 17-18.) The Court disagrees.

An ALJ can reject a claimant's subjective complaints by expressing clear and convincing reasons for doing so. Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003). "General findings are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints." Lester v. Chater, 81 F.3d at 834.

Here, the ALJ presented at least two reasons in support of his credibility determination.

First, the ALJ noted that Plaintiff was able to volunteer at a hospital, even though his chemotherapy apparently caused severe side effects. (AR at 27); see Valentine v. Commissioner, Soc. Sec. Admin., 574 F.3d 685, 693 (9th Cir. 2009) (daily activities can discredit a claimant when those activities suggest a greater functional capacity than alleged.) In particular, Plaintiff testified that his volunteer work included "folding towels and restocking lightweight hospital supplies." (Id.; see AR at 48-49.) Certainly, then, Plaintiff is able to perform at least some basic work activities.

Second, Plaintiff's subjective complaints are also undermined by objective medical evidence indicating that his conditions have improved with treatment. (AR at 27); see Rollins v. Massanari, 261 F.3d 853, 856-57 (9th Cir. 2001) (lack of objective evidence, when combined with other factors, is a valid reason for rejecting a claimant's testimony). Indeed, as explained above, an October 2009 MRI of Plaintiff's abdomen showed no signs of "abdominal metastatic disease." (AR at 27; see AR at 407-08.) Similarly, in March 2010, Plaintiff's treating oncologist, Dr. Freimann, reported that Plaintiff's cancer was being controlled by medication. (AR at 27; see AR at 382, 639.) Thus, given such incompatible evidence, the ALJ's credibility determination remains intact.

Accordingly, the Court finds that substantial evidence supported the ALJ's decision that Plaintiff was not disabled. See Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001).

Based on the foregoing, IT IS ORDERED THAT judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits.

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