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Whitehead v. Commissioner of Social Security

United States District Court, E.D. California

March 28, 2014

MICHAEL WHITEHEAD, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

MEMORANDUM OPINION AND ORDER

CRAIG M. KELLISON, Magistrate Judge.

Plaintiff, who is proceeding with retained counsel, brings this action under 42 U.S.C. § 405(g) for judicial review of a final decision of the Commissioner of Social Security. Pursuant to the written consent of all parties, this case is before the undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c). Pending before the court are plaintiff's motion for summary judgment (Doc. 14) and defendant's opposition (Doc. 17).

I. PROCEDURAL HISTORY

Plaintiff applied for social security benefits on March 7, 2007. In the application, plaintiff claims that disability began on May 1, 2006. Plaintiff claims that disability is caused by a combination of "degenerative cervical spondylosis, degenerative lumbar spondylosis, and carpal tunnel syndrome." Plaintiff's claim was initially denied. Following denial of reconsideration, and after an administrative hearing, plaintiff's claim was again denied.

On January 5, 2010, the Appeals Council granted review and remanded for further proceedings. In its remand order, the Appeals Council identified the following issues:

1. The hearing decision indicates that the claimant has the severe impairment of carpal tunnel syndrome, but does not contain limitations in the claimant's residual functional capacity that correspond to this impairment;
2. The hearing decision indicates that the claimant has the residual functional capacity for work-related functions that equate to a maximum capability for light work, page 4, but the decision does not contain sufficient rationale with specific references to evidence of record in support of the assessed limitations. The hearing decision rejects the opinions of the consultative examiner and the state agency consultant that the claimant is limited to standing and/or walking for at least 2 hours in an 8 hour work day. The hearing decision does not cite any evidence to support the finding that the claimant can stand and/or walk for at least 6 hours in an 8 hour work day; and
3. The decision indicates that, based on vocational expert evidence, the claimant could perform such past relevant work as assembly line worker and label maker operator. However, the vocational expert incorrectly cites the Dictionary of Occupational Titles (DOT) code 559.685-018, the code for ampoule filler as past relevant work. This occupation is significantly different from the claimant's past relevant work as assembly line worker.

The Appeals Council provided the following instructions on remand:

1. Obtain evidence from a medical expert to clarify the nature and extent of the claimant's carpal tunnel syndrome impairment;
2. Give further consideration to the claimant's residual functional capacity during the entire period at issue and provide rationale with specific references to evidence of record in support of assessed limitations. In so doing, evaluate the treating and nontreating source opinions, including the consultative examiner, Dr. Pliam, and nonexamining source opinions, including the state agency medical consultant (Exhibit 3F), and explain the weight given to such opinion evidence. As appropriate, the Administrative Law Judge may request the treating and nontreating sources to provide additional evidence and/or further clarification of the opinions and medical source statements about what the claimant can still do despite the impairments. The Administrative Law Judge may enlist the aid and cooperation of the claimant's representative in developing evidence from the claimant's treating sources; and
3. Obtain supplemental evidence from a vocational expert to clarify the effect of the assessed limitations on the claimant's occupational base. The hypothetical questions should reflect the specific capacity/limitations established by the record as a whole. The Administrative Law Judge will ask the vocational expert to identify examples of appropriate jobs and to state the incidence of such jobs in the national economy. Further, before relying on the vocational expert evidence, the Administrative Law Judge will identify and resolve any conflicts between the occupational evidence provided by the vocational expert and information in the Dictionary of Occupational Titles (DOT) and its companion publication, the Selected Characteristics of Occupations.

A second administrative hearing was held on May 24, 2010, before Administrative Law Judge ("ALJ") Jean R. Kerins. In a November 20, 2011, decision, the ALJ concluded that plaintiff is not disabled based on the following relevant findings:

1. The claimant has the following severe impairment(s): degenerative disc disease of the cervical and lumbar spines status post cervical fusion and lumbar diskectomy;
2. The claimant does not have an impairment or combination of impairments that meets or medically equals an impairment listed in the regulations;
3. The claimant has the following residual functional capacity: claimant can perform less than a full range of light work; the claimant has the ability to lift 20 pounds occasionally and 10 pounds frequently; he can stand and/or walk for at least 2 hours in an 8-hour workday; he can sit for at least 6 hours in an 8-hour workday; the claimant is able to climb ramps and stairs occasionally, but is never able to climb ladders, ropes, or scaffolds; the claimant is able to balance, kneel, stoop, crouch, and crawl occasionally, but is never able to reach overhead, bilaterally; and
4. Considering the claimant's age, education, work experience, residual functional capacity, and vocational expert testimony there are jobs that exist in significant numbers in the national economy that the claimant can perform.

After the Appeals Council declined further review on November 20, 2012, this appeal followed.

II. STANDARD OF REVIEW

The court reviews the Commissioner's final decision to determine whether it is: (1) based on proper legal standards; and (2) supported by substantial evidence in the record as a whole. See Tackett v. Apfel , 180 F.3d 1094, 1097 (9th Cir. 1999). "Substantial evidence" is more than a mere scintilla, but less than a preponderance. See Saelee v. Chater , 94 F.3d 520, 521 (9th Cir. 1996). It is "... such evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales , 402 U.S. 389, 402 (1971). The record as a whole, including both the evidence that supports and detracts from the Commissioner's conclusion, must be considered and weighed. See Howard v. Heckler , 782 F.2d 1484, 1487 (9th Cir. 1986); Jones v. Heckler , 760 F.2d 993, 995 (9th Cir. 1985). The court may not affirm the Commissioner's decision simply by isolating a specific quantum of supporting evidence. See Hammock v. Bowen , 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative findings, or if there is conflicting evidence supporting a particular finding, the finding of the Commissioner is conclusive. See Sprague v. Bowen , 812 F.2d 1226, 1229-30 (9th Cir. 1987). Therefore, where the evidence is susceptible to more than one rational interpretation, one of which supports the Commissioner's decision, the decision must be affirmed, see Thomas v. Barnhart , 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal standard was applied in weighing the evidence, see Burkhart v. Bowen , 856 F.2d 1335, 1338 (9th Cir. 1988).

III. DISCUSSION

In his motion for summary judgment, plaintiff argues: (1) the ALJ erred in evaluating the opinions of Dr. Pliam, an examining physician, and Mr. Girt, a physical therapist; and (2) the ALJ erred in rejecting his testimony as not credible.

A. Evaluation of the Medical Opinons

The weight given to medical opinions depends in part on whether they are proffered by treating, examining, or non-examining professionals. See Lester v. Chater , 81 F.3d 821, 830-31 (9th Cir. 1995). Ordinarily, more weight is given to the opinion of a treating professional, who has a greater opportunity to know and observe the patient as an individual, than the opinion of a non-treating professional. See id.; Smolen v. Chater , 80 F.3d 1273, 1285 (9th Cir. 1996); Winans v. Bowen , 853 F.2d 643, 647 (9th Cir. 1987). The least weight is given to the opinion of a non-examining professional. See Pitzer v. Sullivan , 908 F.2d 502, 506 & n.4 (9th Cir. 1990).

In addition to considering its source, to evaluate whether the Commissioner properly rejected a medical opinion the court considers whether: (1) contradictory opinions are in the record; and (2) clinical findings support the opinions. The Commissioner may reject an uncontradicted opinion of a treating or examining medical professional only for "clear and convincing" reasons supported by substantial evidence in the record. See Lester , 81 F.3d at 831. While a treating professional's opinion generally is accorded superior weight, if it is contradicted by an examining professional's opinion which is supported by different independent clinical findings, the Commissioner may resolve the conflict. See Andrews v. Shalala , 53 F.3d 1035, 1041 (9th Cir. 1995). A contradicted opinion of a treating or examining professional may be rejected only for "specific and legitimate" reasons supported by substantial evidence. See Lester , 81 F.3d at 830. This test is met if the Commissioner sets out a detailed and thorough summary of the facts and conflicting clinical evidence, states her interpretation of the evidence, and makes a finding. See Magallanes v. Bowen , 881 F.2d 747, 751-55 (9th Cir. 1989). Absent specific and legitimate reasons, the Commissioner must defer to the opinion of a treating or examining professional. See Lester , 81 F.3d at 830-31. The opinion of a non-examining professional, without other evidence, is insufficient to reject the opinion of a treating or examining professional. See id. at 831. In any event, the Commissioner need not give weight to any conclusory opinion supported by minimal clinical findings. See Meanel v. Apfel , 172 F.3d 1111, 1113 (9th Cir. 1999) (rejecting treating physician's conclusory, minimally supported opinion); see also Magallanes , 881 F.2d at 751.

1. Dr. Pliam

As to Dr. Pliam, the ALJ stated:

On a June 2007 orthopedic evaluation (Exhibit 2F), the claimant complained of neck pain, headaches, low back pain, and bilateral hand and forearm pain. Nathan Pliam, M.D., Ph.D., reported that the claimant had no tenderness to palpation or muscle spasm of the cervical and lumbar spine; that he had normal range of motion of the cervical spine; and that he had forward flexion of 85 degrees, extension of 25 degrees, and normal lateral bending, bilaterally, of the lumbosacral spine. Dr. Pliam also revealed that the claimant had no tenderness or swelling of the wrists, hands, and fingers; that motion of the fingers was within normal limits; and that grip strength measured 60/55/55 pounds on the right and 60/60/55 pounds on the left. In addition, Dr. Pliam reported that the claimant sat and stood with normal posture; that he was able to arise from a chair without difficulty; and that he could toe and heel walk without evidence of weakness of the ankle flexors or extensors. Sensory examination also revealed no deficits, and a gross evaluation of selectively tested muscles in the upper and lower extremities showed no weakness.
The claimant was diagnosed with degenerative cervical spondylosis status post C5-6 fusion, with residual symptoms of neck pain and probable right cervical radiculopathy; and degenerative lumbar spondylosis status post decompression of the L4-5 with persistent symptoms of back pain. Dr. Pliam opined that the claimant should be limited to lifting 20 pounds occasionally and 10 pounds repetitively; to stand and walk for 1 to 2 hours continuously for a cumulative total of 4 hours per day; and to sit for 2 hours continuously for a cumulative total of 2 hours per day. Dr. Pliam noted that if the claimant was sitting, he should be able to move about or change positions as needed for comfort. Dr. Pliam also determined that the claimant was precluded from posturally-demanding activities, including climbing, crouching, crawling, squatting, and kneeling.
The undersigned gives significant weight to some of Dr. Pliam's medical opinions, particularly his conclusions relating to the claimant's ability to lift and/or carry, as they are based on medical findings on examination of the claimant and are well-supported by medically acceptable and laboratory diagnostic techniques. However, some of Dr. Pliam's determinations, including those relating to the claimant's ability to stand, walk, and sit, are not consistent with the objective findings on examination or other substantial evidence of record.
To illustrate, Dr. Pliam reported objective medical findings showing no tenderness to palpation or spasm of the cervical or lumbar spine, no motor weakness, good range of motion, and no significant gait or station abnormalities. Dr. Pliam further indicated that he did not find any specific radicular signs on examination of the claimant (Exhibit 2F/5).
In addition, on a June 2007 Physical Residual Functional Capacity form (Exhibit 3F), M.L. Tambellini, M.D., a medical consultant employed by the state, opined, in part, that the claimant was able to lift and/or carry 20 pounds occasionally and 10 pounds frequently; and to sit for about 6 hours in an 8-hour workday. Dr. Tambellini credibly indicated that, because the claimant had shown no motor weakness, good range of motion, and no significant findings on station or gait, the claimant was able to sit for 6 hours in a workday.
Dr. Tambellini also determined that the claimant was able to stand and/or walk for at least 2 hours in an 8-hour workday; to climb ramps and stairs occasionally, but never able to climb ladders, ropes, or scaffolds; and to balance, stoop, kneel, crouch, and crawl occasionally. In addition, Dr. Tambellini opined that the claimant was not able to reach overhead, bilaterally, and that he did not have any communicative, visual, or environmental limitations.
The undersigned gives great weight to these determinations [by Dr. Tambellini], as the medical consultant referenced objective medical evidence of record within the report in making his conclusions, including the claimant showing no significant loss of grip strength by Dr. Pliam or any headache limitations....

Plaintiff argues that the ALJ erred in rejecting Dr. Pliam's sit/stand/walk limitations.

Plaintiff argues that, contrary to the ALJ's conclusion, "Dr. Pliam's sit, stand, and walk limitations were consistent with the record as a whole...." Plaintiff then notes various portions of the record showing: (1) complaints of low back pain since 2006; (2) radiological evidence from 2001 and 2003 showing problems at C5-6 and L4-5; and (3) a diskectomy in 2001. Plaintiff also notes that Dr. Pliam's assessment is consistent with that of Jim Girt, a physical therapist.

The court does not agree with plaintiff that the evidence he cites reveals a flaw in the ALJ's analysis of Dr. Pliam's sit/stand/walk opinion. The evidence reflects plaintiff's subjective complaints of low back pain, that plaintiff had a diskectomy, and that he has some problems at C5-6 and L4-5, as shown by x-rays. While this evidence, as well as Mr. Girt's assessment, may be consistent with Dr. Pliam's sit/stand/walk assessment, other evidence of record was not. Ignored by plaintiff are Dr. Pliam's own objective observations that plaintiff exhibited no tenderness to palpation or spasm of the cervical or lumbar spine, no motor weakness, good range of motion, and no significant gait or station abnormalities. Dr. Pliam also found no specific radicular signs. The court agrees with the ALJ that these findings are inconsistent with Dr. Pliam's sit/stand/walk assessment.

2. Mr. Girt

As to this source, the ALJ stated:

In November 2007, Jim Girt, PT, reported that the claimant's material handling capabilities included the "sedentary" physical demand classification (Exhibit 9F). Mr. Girt also indicated that the claimant's fine hand/finger dexterity appeared to be functional but noncompetitive, and that, even if he was allowed to alternate sitting and standing postures as tolerated, it did not appear that the claimant could perform work at a sedentary level for long enough periods to be productive.
The undersigned has read and considered the records from Mr. Girt. However, a physical therapist is not an acceptable medical source under the Act. Mr. Girt's opinions are also inconsistent with the objective medical findings of record and with Dr. Tambellini's conclusions.... Furthermore, in May 2009, which was shortly after the claimant's date last insured, James Mu, M.D., reported that the claimant's right grip strength was 5/5, which is inconsistent with the allegations made by Mr. Girt (Exhibit 13F/5). Consequently, although the undersigned has considered Mr. Girt's opinions pursuant to SSR 06-3p, the undersigned gives his opinions less weight.

Plaintiff argues that the ALJ failed to consider Mr. Girt's assessment as "other medical source" evidence. Citing SSR 06-3p, plaintiff contends that the ALJ "...failed to provide legitimate reasons for rejecting Mr. Wirt's [sic] functional capacity assessment."

The court does not agree. While the ALJ noted that Mr. Girt was not an acceptable medical source, the ALJ nonetheless specifically cited SSR 06-3p and clearly considered Mr. Girt's assessment as "other medical source" evidence. In so doing, the ALJ gave Mr. Girt's assessment reduced weight because it is inconsistent with other medical evidence, specifically the objective findings noted by Drs. Tambellini and Mu. The court finds that this analysis is supported by substantial evidence, namely the objective findings indicating no motor weakness, good range of motion, and no significant findings on station or gait.

B. Plaintiff's Credibility

The Commissioner determines whether a disability applicant is credible, and the court defers to the Commissioner's discretion if the Commissioner used the proper process and provided proper reasons. See Saelee v. Chater , 94 F.3d 520, 522 (9th Cir. 1996). An explicit credibility finding must be supported by specific, cogent reasons. See Rashad v. Sullivan , 903 F.2d 1229, 1231 (9th Cir. 1990). General findings are insufficient. See Lester v. Chater , 81 F.3d 821, 834 (9th Cir. 1995). Rather, the Commissioner must identify what testimony is not credible and what evidence undermines the testimony. See id. Moreover, unless there is affirmative evidence in the record of malingering, the Commissioner's reasons for rejecting testimony as not credible must be "clear and convincing." See id.; see also Carmickle v. Commissioner , 533 F.3d 1155, 1160 (9th Cir. 2008) (citing Lingenfelter v Astrue , 504 F.3d 1028, 1936 (9th Cir. 2007), and Gregor v. Barnhart , 464 F.3d 968, 972 (9th Cir. 2006)).

If there is objective medical evidence of an underlying impairment, the Commissioner may not discredit a claimant's testimony as to the severity of symptoms merely because they are unsupported by objective medical evidence. See Bunnell v. Sullivan , 947 F.2d 341, 347-48 (9th Cir. 1991) (en banc). As the Ninth Circuit explained in Smolen v. Chater :

The claimant need not produce objective medical evidence of the [symptom] itself, or the severity thereof. Nor must the claimant produce objective medical evidence of the causal relationship between the medically determinable impairment and the symptom. By requiring that the medical impairment "could reasonably be expected to produce" pain or another symptom, the Cotton test requires only that the causal relationship be a reasonable inference, not a medically proven phenomenon.
80 F.3d 1273 , 1282 (9th Cir. 1996) (referring to the test established in Cotton v. Bowen , 799 F.2d 1403 (9th Cir. 1986)).

The Commissioner may, however, consider the nature of the symptoms alleged, including aggravating factors, medication, treatment, and functional restrictions. See Bunnell , 947 F.2d at 345-47. In weighing credibility, the Commissioner may also consider: (1) the claimant's reputation for truthfulness, prior inconsistent statements, or other inconsistent testimony; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; (3) the claimant's daily activities; (4) work records; and (5) physician and third-party testimony about the nature, severity, and effect of symptoms. See Smolen , 80 F.3d at 1284 (citations omitted). It is also appropriate to consider whether the claimant cooperated during physical examinations or provided conflicting statements concerning drug and/or alcohol use. See Thomas v. Barnhart , 278 F.3d 947, 958-59 (9th Cir. 2002). If the claimant testifies as to symptoms greater than would normally be produced by a given impairment, the ALJ may disbelieve that testimony provided specific findings are made. See Carmickle , 533 F.3d at 1161 (citing Swenson v. Sullivan , 876 F.2d 683, 687 (9th Cir. 1989)).

Regarding reliance on a claimant's daily activities to find testimony of disabling pain not credible, the Social Security Act does not require that disability claimants be utterly incapacitated. See Fair v. Bowen , 885 F.2d 597, 602 (9th Cir. 1989). The Ninth Circuit has repeatedly held that the "... mere fact that a plaintiff has carried out certain daily activities... does not...[necessarily] detract from her credibility as to her overall disability." See Orn v. Astrue , 495 F.3d 625, 639 (9th Cir. 2007) (quoting Vertigan v. Heller , 260 F.3d 1044, 1050 (9th Cir. 2001)); see also Howard v. Heckler , 782 F.2d 1484, 1488 (9th Cir. 1986) (observing that a claim of pain-induced disability is not necessarily gainsaid by a capacity to engage in periodic restricted travel); Gallant v. Heckler , 753 F.2d 1450, 1453 (9th Cir. 1984) (concluding that the claimant was entitled to benefits based on constant leg and back pain despite the claimant's ability to cook meals and wash dishes); Fair , 885 F.2d at 603 (observing that "many home activities are not easily transferable to what may be the more grueling environment of the workplace, where it might be impossible to periodically rest or take medication"). Daily activities must be such that they show that the claimant is "...able to spend a substantial part of his day engaged in pursuits involving the performance of physical functions that are transferable to a work setting." Fair , 885 F.2d at 603. The ALJ must make specific findings in this regard before relying on daily activities to find a claimant's pain testimony not credible. See Burch v. Barnhart , 400 F.3d 676, 681 (9th Cir. 2005).

As to plaintiff's credibility, the ALJ stated:

The claimant alleges, in essence, that he is unable to work due to fusion and planting of the cervical spine at C5-6; continued and chronic lumbar pain; left hand pain and loss of grip; headaches and general pain; an inability to sleep well; pain with activity; limited use of his arms; and numbness in his fingers and lower arms (Exhibits 1E to 14E). He also claims that, in June 2007, he began to have more hand numbness associated with pain in his lower arms (Exhibit 7E). The claimant has indicated that he did not work for two years after 2001 and that he tried to go back to work, but that this attempt only lasted for about six months before he was laid off due to not being able to work due to pain (Exhibit 3E).
During the hearing, the claimant testified that he was unable to work due to back problems and an inability to stand or sit for any length of time. He indicated that he saw a doctor for his back twice a year. The claimant also stated that he would occasionally drop things with his right hand and that he had been prescribed the use of wrist braces for about a year and a half. He noted that his activities were limited in 2008, although he went hiking and hunting with his granddaughter, fishing a couple of times on a boat for an hour or two, and bike riding on occasion. The claimant also revealed that he had never had surgery on his hand or wrists and that he occasionally smoked marijuana to relieve his pain.
* * *
... [A]fter careful consideration of the evidence, the undersigned finds that the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence, and limited effects of these symptoms are not entirely credible to the extent they are inconsistent with the above residual functional capacity assessment. Although the claimant has complained of pain in his back, neck, leg, and shoulder, he has not sought medical treatment. In addition, Dr. Pliam and Dr. Tambellini opined that the claimant was able to lift and/or carry 20 pounds occasionally and 10 pounds frequently, with objective medical findings also demonstrating that the claimant has no sensory deficits, an essentially normal gait, and no weakness in the extremities. The claimant has also not always been compliant with recommended treatment. Although the claimant testified at his hearing that he had continued to perform stretching exercises, Dr. Mu revealed that the claimant did not do his back stretching exercises consistently (Exhibit 13F/5). Consequently, the undersigned finds that the claimant's allegations relating to his ability to work are only partially credible.

The court finds no error in the ALJ's credibility analysis. The ALJ accurately noted that, while plaintiff complained of limited activity in 2008 due to pain, plaintiff went hiking, fishing, hunting, and bike riding during the same period.[1] The ALJ also noted that plaintiff had not been compliant with recommended treatment.

IV. CONCLUSION

Based on the foregoing, the court concludes that the Commissioner's final decision is based on substantial evidence and proper legal analysis. Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's motion for summary judgment (Doc. 14) is denied;
2. The decision of the Commissioner of Social Security is affirmed; and
3. The Clerk of the Court is directed to enter judgment and close this file.

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