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Grisel v. Colvin

United States District Court, C.D. California

April 2, 2014

COLLEEN GRISEL, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM OPINION AND ORDER AFFIRMING THE COMMISSIONER

JEAN ROSENBLUTH, Magistrate Judge.

I. PROCEEDINGS

Plaintiff seeks review of the Commissioner's final decision denying her application for Social Security disability insurance benefits ("DIB") and supplemental security income benefits ("SSI"). The parties consented to the jurisdiction of the undersigned U.S. Magistrate Judge pursuant to 28 U.S.C. § 636(c). This matter is before the Court on the parties' Joint Stipulation, filed January 9, 2014, which the Court has taken under submission without oral argument. For the reasons discussed below, the Commissioner's decision is affirmed and this action is dismissed.

II. BACKGROUND

Plaintiff was born on September 29, 1958. (Administrative Record ("AR") 52.) She has a 12th-grade education. (AR 33, 54, 250.) She previously worked as a supervising housekeeper. (AR 31, 62.)

On November 14 and 19, 2008, respectively, Plaintiff filed applications for DIB and SSI, alleging that she had been disabled since September 13, 2004, because of "[s]evere depression, anxiety attacks, hepati[tis] c, bone spur on right foot, back problems, arthritis in lower spine, [and] acid reflux." (AR 78-81, 221-31, 245.) After Plaintiff's applications were denied, she requested a hearing before an Administrative Law Judge. (AR 115.) A hearing was held on July 15, 2010, at which Plaintiff, who was represented by counsel, testified, as did a vocational expert ("VE"). (AR 49-77.) On September 23, 2010, the ALJ issued a written decision finding Plaintiff not disabled. (AR 85-92.) On October 19, 2010, Plaintiff requested review of the ALJ's decision. (AR 168.) On December 9, 2011, the Appeals Council granted the request for review, vacated the hearing decision, and remanded the case for further proceedings. (AR 99-102.)

On July 23, 2012, a second hearing was held, before a different ALJ. (AR 28-48.) Plaintiff, who was represented by counsel, testified, as did her husband, Woodrow Grisel, and a different VE. (Id.) On July 26, 2012, the ALJ issued a written decision finding Plaintiff not disabled. (AR 10-22.) On August 21, 2012, Plaintiff requested review of the ALJ's decision. (AR 6.) On February 20, 2013, after considering new evidence submitted by Plaintiff, the Appeals Council denied review. (AR 1-5.) This action followed.

III. STANDARD OF REVIEW

Pursuant to 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The ALJ's findings and decision should be upheld if they are free of legal error and supported by substantial evidence based on the record as a whole. Id .; Richardson v. Perales , 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); Parra v. Astrue , 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means such evidence as a reasonable person might accept as adequate to support a conclusion. Richardson , 402 U.S. at 401; Lingenfelter v. Astrue , 504 F.3d 1028, 1035 (9th Cir. 2007). It is more than a scintilla but less than a preponderance. Lingenfelter , 504 F.3d at 1035 (citing Robbins v. Soc. Sec. Admin. , 466 F.3d 880, 882 (9th Cir. 2006)). To determine whether substantial evidence supports a finding, the reviewing court "must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Reddick v. Chater , 157 F.3d 715, 720 (9th Cir. 1996). Moreover, "when 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." Brewes v. Comm'r of Soc. Sec. Admin. , 682 F.3d 1157, 1163 (9th Cir. 2012); see also Taylor v. Comm'r of Soc. Sec. Admin. , 659 F.3d 1228, 1232 (9th Cir. 2011). If the evidence as a whole can reasonably support either affirming or reversing, the reviewing court "may not substitute its judgment" for the Commissioner's. Reddick , 157 F.3d at 720-21.

IV. THE EVALUATION OF DISABILITY

People are "disabled" for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or mental impairment that is expected to result in death or which has lasted, or is expected to last, for a continuous period of at least 12 months. 42 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan , 966 F.2d 1255, 1257 (9th Cir. 1992).

A. The Five-Step Evaluation Process

The ALJ follows a five-step sequential evaluation process in assessing whether a claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Lester v. Chater , 81 F.3d 821, 828 n.5 (9th Cir. 1995) (as amended Apr. 9, 1996). In the first step, the Commissioner must determine whether the claimant is currently engaged in substantial gainful activity; if so, the claimant is not disabled and the claim must be denied. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not engaged in substantial gainful activity, the second step requires the Commissioner to determine whether the claimant has a "severe" impairment or combination of impairments significantly limiting her ability to do basic work activities; if not, a finding of not disabled is made and the claim must be denied. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a "severe" impairment or combination of impairments, the third step requires the Commissioner to determine whether the impairment or combination of impairments meets or equals an impairment in the Listing of Impairments ("Listing") set forth at 20 C.F.R., Part 404, Subpart P, Appendix 1; if so, disability is conclusively presumed and benefits are awarded. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the claimant's impairment or combination of impairments does not meet or equal an impairment in the Listing, the fourth step requires the Commissioner to determine whether the claimant has sufficient residual functional capacity ("RFC")[1] to perform her past work; if so, the claimant is not disabled and the claim must be denied. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). The claimant has the burden of proving she is unable to perform past relevant work. Drouin , 966 F.2d at 1257. If the claimant meets that burden, a prima facie case of disability is established. Id . If that happens or if the claimant has no past relevant work, the Commissioner then bears the burden of establishing that the claimant is not disabled because she can perform other substantial gainful work available in the national economy. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). That determination comprises the fifth and final step in the sequential analysis. §§ 404.1520, 416.920; Lester , 81 F.3d at 828 n.5; Drouin , 966 F.2d at 1257.

B. The ALJ's Application of the Five-Step Process

At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since September 13, 2004, the alleged onset date. (AR 13.) At step two, the ALJ concluded that Plaintiff had the severe impairments of "degenerative disc disease of the back and mild chronic obstructive pulmonary disease [("COPD")]." (Id.) The ALJ determined that Plaintiff's hypertension, "alcohol withdrawal seizure, " and mental impairments were nonsevere (AR 13-15), findings Plaintiff does not challenge. At step three, the ALJ determined that Plaintiff's impairments did not meet or equal any of the impairments in the Listing. (AR 15.) At step four, the ALJ found that Plaintiff had the RFC to perform "light work"[2] except "she cannot push/pull with the lower extremities; she is limited to performing postural activities occasionally except she is prohibited from climbing ladders, ropes, or scaffolds; and she must avoid exposure to pulmonary irritants, unprotected heights, or dangerous machinery." (AR 15-16.) Based on the VE's testimony, the ALJ concluded that Plaintiff could perform jobs existing in significant numbers in the national economy. (AR 20-21.) Accordingly, the ALJ determined that Plaintiff was not disabled. (AR 22.)

V. DISCUSSION

Plaintiff alleges that the ALJ erred in assessing (1) the opinion of examining physician Bahaa Girgis, (2) her credibility, and (3) the lay testimony from her husband, Woodrow Grisel. (J. Stip. at 3.)

A. The ALJ Properly Assessed Dr. Girgis's Opinion

Plaintiff contends that "the ALJ's finding that Dr. Girgis was wrong about Plaintiff's need for frequent stops was based on [the ALJ's] lay opinion that a person with mild COPD could not need such a limitation." (J. Stip. at 11.) Plaintiff argues that the ALJ's finding "was not founded on any medical evidence of record" and that "no opinion at all" supported his finding. (Id.)

1. Applicable law

Three types of physicians may offer opinions in Social Security cases: "(1) those who treat[ed] the claimant (treating physicians); (2) those who examine[d] but d[id] not treat the claimant (examining physicians); and (3) those who neither examine[d] nor treat[ed] the claimant (non-examining physicians)." Lester , 81 F.3d at 830. A treating physician's opinion is generally entitled to more weight than the opinion of a doctor who examined but did not treat the claimant, and an examining physician's opinion is generally entitled to more weight than that of a nonexamining physician. Id.

When an examining doctor's opinion is not contradicted by another doctor, it may be rejected only for "clear and convincing" reasons. Carmickle v. Comm'r, Soc. Sec. Admin. , 533 F.3d 1155, 1164 (9th Cir. 2008) (quoting Lester , 81 F.3d at 830-31). When an examining physician's opinion conflicts with another doctor's, the ALJ must provide only "specific and legitimate reasons" for discounting it. Id . The weight given an examining physician's opinion, moreover, depends on whether it is consistent with the record and accompanied by adequate explanation, among other things. §§ 404.1527(c)(3), 416.927(c)(3).

2. Relevant facts[3]

On June 29, 2006, an x-ray of Plaintiff's chest was normal. (AR 329.) On July 26, 2006, a lumbar-spine MRI showed "[g]rade 1 anterolisthesis of L5 on S1, probably degenerative";[4] "[m]ultilevel degenerative disc disease and spondylosis resulting in moderate-to-severe central canal stenosis at L4-5 and L5-S1"; and "[m]ild neural foraminal narrowing" at L4-5 and L5-S1. (AR 283.) On August 24, 2006, a lumbar-spine x-ray showed anterolisthesis of L5 on S1 "likely secondary to facet sclerosis, " degenerative disc disease at L5-S1 and L1-S2, and "[o]ld fracture of the left transverse process of L3." (AR 315-16.)

On February 27, 2009, Dr. Girgis, who was board certified in internal medicine, performed an internal medicine evaluation of Plaintiff at the Social Security Administration's request. (AR 356-61.) Dr. Girgis noted that Plaintiff was in no acute distress and "walks and moves easily." (AR 357.) Her lungs had mild rhonchi, decreased breath sounds that were "clear to ausculation and percussion, " "[g]ood air movement, " no wheezing or rales, and normal expiratory phase.[5] (AR 358.) A pulmonary-function test "revealed mild obstructive lung disease improved after bronchodilator."[6] (AR 360.)

Dr. Girgis found that Plaintiff's back had no tenderness or spasm, equal muscle tone throughout, and normal range of motion. (Id.) A straight-leg-raising test was negative at 90 degrees. (Id.) Plaintiff had normal range of motion of the neck, hips, knees, ankles, shoulders, elbows, wrists, and hands; normal reflexes; intact sensation; good motor tone; good active motion; 5/5 strength throughout; and no atrophy, fasciculation, [7] or motor deficits. (AR 358-59.) Her gait was normal, "not unsteady or unpredictable"; she could "change position and get on and off the examining table without difficulty"; and she required "[n]o assistive aid... for ambulation across the room." (AR 360.)

Dr. Girgis diagnosed

COPD due to long-term smoking. [Plaintiff] denies using oxygen or prednisone. She denies any recent hospitalizations or emergency room visits for COPD exacerbation. The lung examination today show decreased breath sounds but no expiratory wheezing or prolonged expiratory phase. Pulmonary function test today showed mild obstructive lung disease improved after bronchodilator.

(Id.) Dr. Girgis also diagnosed "[h]istory of generalized tonic clonic seizures"[8] - but noted that Plaintiff's "neurological examination today was unremarkable" - and "[h]istory of hypertension, " noting that she might need an additional antihypertensive medication. (Id.) Dr. Girgis concluded that Plaintiff was

capable of lifting and carrying 20 pounds occasionally and 10 pounds frequently. [She] can stand and walk 6 hours in an 8-hour workday with frequent stops. [Plaintiff] can sit 6 hours in an 8-hour workday.

(AR 360-61.)

On March 24, 2009, Dr. J. Lee[9] reviewed Plaintiff's medical records and completed a physical-residual-functional-capacity assessment. (AR 383-87.) Dr. Lee opined that Plaintiff had no exertional limitations, noting, "[s]ee... Int. Med. CE dated 2/27/2009." (AR 384.) He believed Plaintiff could never climb ladders, ropes, or scaffolds but could frequently climb ramps and stairs, balance, stoop, kneel, crouch, and crawl. (AR 385.) Dr. Lee indicated that Plaintiff needed to avoid "concentrated exposure" to fumes, odors, dusts, gases, poor ventilation, and hazards, noting "COPD, mild" and history of seizures, "probably due to alcohol withdrawal." (AR 386.) Dr. Lee also found that Plaintiff's alleged symptoms were "not supported by objective findings" and that Dr. Girgis's findings were not supported by the evidence because Plaintiff "has FROM, sensation/strength, " - presumably, full range of motion, sensation, and strength - and there was "no indication as to why exertional impairments [sic]." (AR 386-87.)

On July 9, 2009, Dr. Joel Ross, a neurologist, [10] reviewed Plaintiff's medical records and completed a physical-residual-functional-capacity assessment. (AR 399-404, 410.) Dr. Ross noted that Plaintiff's primary diagnoses were low-back pain from degenerative disc disease and degenerative joint disease at L4-5 and L5-S1, "[a]lcohol [a]buse with Hep C (asymptomatic), " and "withdrawal seizures." (AR 399.) He noted that Plaintiff's "secondary" diagnoses were tobacco abuse and COPD but that a chest x-ray and pulmonary function tests had been negative. (Id.) Dr. Ross opined that Plaintiff could lift 10 pounds frequently and 20 pounds occasionally, stand or walk with normal breaks for about six hours in an eight-hour day, and sit with normal breaks for about six hours in an eight-hour day. (AR 400.) Plaintiff could never push or pull with her legs or climb ladders, ropes, or scaffolds, but she could occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl. (AR 400-01.) Dr. Ross believed that Plaintiff needed to avoid concentrated exposure to fumes, odors, dusts, gases, and poor ventilation, and all exposure to hazards.[11] (AR 402.) Dr. Ross noted Dr. Girgis's finding that Plaintiff was limited to lifting and carrying "10-20#, " sitting "6/8h, " and standing and walking "6/8h" and stated that he "agree[d]" with that assessment, that his assessment with "consistent with" it, and that Dr. Girgis's opinion was the "basis of this RFC." (AR 403.) He did not specifically mention Dr. Girgis's requirement of frequent stops when walking. Dr. Ross also noted that Dr. Girgis's report "fails to support [Plaintiff's] claims of disability to the extent she portrays to SSA." (Id.)

On May 4, 2012, Dr. Vicente R. Bernabe, D.O., a board-certified orthopedic surgeon, performed a complete orthopedic consultation of Plaintiff at the Social Security Administration's request. (AR 452-62.) Dr. Bernabe noted that Plaintiff appeared to be in "no acute or chronic distress" and could move "freely in and out of the office and around the examination room without the use of any assistive device." (AR 453.) Plaintiff's gait was "normal without ataxia or antalgia, " she was able to toe and heel walk, she did not use any assistive device to walk, and she had normal swing and stance phases. (Id.) Plaintiff's cervical spine displayed "no significant tenderness to palpation" or "visible or palpable spasm, " and it had full and painless range of motion. (AR 454.) Examination of Plaintiff's thoracic spine was "unrevealing, " and she had no tenderness. (Id.) Plaintiff's lumbar spine was tender with spasm on the right side; she had flexion of 40 degrees, extension to 10 degrees, side bending to 10 degrees, and rotation to 40 degrees to the left and 45 degrees to the right. (Id.) Straight-leg-raising was negative in the supine and seated positions. (Id.) Plaintiff had full and painless range of motion of the shoulders, elbows, wrists, hands, hips, knees, ankles, and feet. (AR 454-55.) Motor strength was 5/5 in the upper extremities and 4/5 in the lower extremities, "with weakness in the hip flexors and extensors." (AR 455.) Reflexes were 2/4 in the upper extremities and 1/4 in the lower. (Id.) Sensation in her upper and lower extremities was "well preserved." (Id.)

Dr. Bernabe noted that x-rays of the lumbar spine that day showed

a mild lumbar scoliosis. There is a 5 mm anterolisthesis of L5 on S1. There is severe degenerative disc disease at the T11-T12 and T12-L1 with subchondral sclerosis and significant narrowing of the intervertebral disc spaces. There is straightening of the lumbar lordosis. There are anterior osteophytes. No compression fracture or dislocation is seen.

(Id.) He diagnosed degenerative disc disease of the lumbar spine and thoracolumbar and lumbrosacral musculoligamentous strain. (Id.) Dr. Bernabe opined that Plaintiff could lift and carry 25 pounds frequently and 50 pounds occasionally, walk and stand for two hours at a time and a total of six hours, and sit two hours at a time and a total of six hours. (AR 456-58.) She could frequently push and pull, walk on uneven terrain, climb ladders, work at heights, bend, stoop, and crawl. (AR 456.) Plaintiff could never work at unprotected heights but could frequently operate a motor vehicle and tolerate pulmonary irritants, extreme temperatures, humidity and wetness, and vibration. (AR 461.) She did not need a cane or other assistive device to ambulate. (AR 456, 458.) Dr. Bernabe opined that Plaintiff could shop, travel alone, walk without a wheelchair or walker, walk a block at a reasonable pace on uneven surfaces, use public transportation, climb steps, prepare simple meals, care for her own personal hygiene, and handle paper files. (AR 462.)

In his July 2012 decision, the ALJ accurately summarized the medical evidence and accorded "significant weight, but not full weight, " to the opinions of Drs. Girgis, Lee, Ross, and Bernabe.[12] (AR 19.) The ALJ explained,

These opinions are all somewhat reasonable and supported by the record as a whole. These opinions are consistent with Dr. Girgis' report that [Plaintiff] had no tenderness to palpitation [sic] over the midline and paraspinal area, had a negative result from the straight leg raise test, had normal range of motion of the back, had a normal gait, and was able to move about the examination room without difficulty. Further, these opinions are supported by the mild findings from the pulmonary functioning test. No single assessment has been completely adopted as the residual functional capacity determined herein. In particular, the undersigned finds that the consultative examiners overestimated [Plaintiff's] exertional capacity by not adequately considering the claimant's subjective complaints. Further, Dr. Girigs' [sic] finding that [Plaintiff] needed frequent stops is given little weight because it is inconsistent with his mild findings regarding [Plaintiff's] COPD and back impairments. The undersigned has adopted those specific restrictions on a function-by-function basis that are best supported by the objective evidence as a whole.

(AR 19 (citations omitted).)

3. Discussion

Plaintiff contends the ALJ erred in rejecting Dr. Girgis's "material contingency" that Plaintiff could walk for six hours in an eight-hour day "only if permitted to make frequent stops." (J. Stip. at 5.) As Plaintiff acknowledges (id.), the ALJ credited Dr. Girgis's other findings by limiting her to only a limited range of light work (AR 15-16, 19). Because Dr. Girgis's opinion that Plaintiff needed to make "frequent stops" conflicted with the opinions of Drs. Lee, Ross, and Bernabe, none of whom found any similar limitation (see AR 383-87, 399-404, 452-62), the ALJ was required to provide only "specific and legitimate" reasons for rejecting that portion of Dr. Girgis's opinion. See Carmickle , 533 F.3d at 1164. As discussed below, the ALJ's findings met that requirement.

The ALJ permissibly discounted Dr. Girgis's finding that Plaintiff needed to make "frequent stops" when standing and walking because it was "inconsistent with his mild findings regarding [Plaintiff's] COPD and back impairments." (AR 19); see 20 C.F.R. §§ 404.1527(c)(3)-(4) (greater weight accorded to opinion that is supported by relevant evidence, such as medical signs and laboratory findings, and more consistent with record as whole), 416.927(c)(3)-(4) (same). Indeed, Dr. Girgis found only "mild" COPD that "improved" after Plaintiff used a bronchodilator and that didn't cause abnormal test results.[13] (AR 360.) He specifically noted that she had no "acute respiratory illness." (AR 362.) Dr. Girgis also noted that Plaintiff's back was nontender with a normal range of motion (AR 358) and that she had a normal gait and no difficulty changing position or getting on and off the examining table (AR 360). Such mild findings fail to support Dr. Girgis's opinion that Plaintiff required "frequent stops" while walking and standing. See Batson v. Comm'r of Soc. Sec. Admin. , 359 F.3d 1190, 1195 (9th Cir. 2004) (ALJ may discredit medical opinion that is "conclusory, brief, and unsupported by the record as a whole, or by objective medical findings" (citation omitted)); §§ 404.1527(c)(3) ("The more a medical source presents relevant evidence to support an opinion, particularly medical signs and laboratory findings, the more weight we will give that opinion."), 416.927(c)(3) (same).

The ALJ was also entitled to rely on Drs. Lee's and Ross's opinions regarding Plaintiff's COPD-related limitations instead of Dr. Girgis's. Dr. Lee opined that Plaintiff's mild COPD and history of withdrawal seizures resulted only in limitations to avoiding "concentrated exposure" to fumes, odors, dusts, gases, poor ventilation, and hazards. (AR 386.) Dr. Lee acknowledged that his opinion conflicted with Dr. Girgis's but explained that Dr. Girgis's finding was not supported by the evidence because Plaintiff had full range of motion, sensation, and strength, and there was "no indication as to why [Dr. Girgis found she had] exertional limitations."[14] (AR 387.) Moreover, Dr. Ross specifically noted Plaintiff's "COPD/emphysema (tobacco abuse), " stating that it was treated with "Spiriva and Xopenex";[15] that an examination had revealed "decreased BS, " presumably, breath sounds; and that a June 2006 chest x-ray was negative. (AR 403.) Dr. Ross found that Plaintiff could sit six hours and stand or walk six hours in an eight-hour day but should avoid exposure to "dust[, ] fumes[, ] or industrial strength chemicals." (Id.) The ALJ was entitled to credit Drs. Lee's and Ross's opinions because unlike Dr. Girgis, they reviewed Plaintiff's medical file before rendering their opinions. (See AR 16 (ALJ's RFC limitation to "avoid exposure to pulmonary irritants"); AR 357 (Dr. Girgis's notation that he reviewed "[n]o medical records"), 388-90 (case analysis listing medical evidence and electronically signed by Dr. Lee), 403 (Dr. Ross's summary of medical evidence and resulting functional limitations)); §§ 404.1527(c)(3) (in weighing medical opinions, ALJ "will evaluate the degree to which these opinions consider all of the pertinent evidence in [claimant's] claim, including opinions of treating and other examining sources"), 416.927(c)(3) (same).

Indeed, Drs. Lee and Ross noted several other medical records, including Plaintiff's normal chest x-ray in June 2006, her July 2006 lumbar-spine MRI results, and her August 2006 lumbar-spine x-ray results (AR 388-89, 403), that supported their assessments. Plaintiff also had a normal lung examination in September 2008. (AR 287.) And as Dr. Girgis himself noted, Plaintiff did not use oxygen or prednisone. (AR 356-57.) Finally, Plaintiff never testified at either hearing that she had shortness of breath when walking.[16] The ALJ was therefore also entitled to rely on those portions of Drs. Lee's and Ross's opinions because they were consistent with other clinical findings and the record evidence. See Thomas v. Barnhart , 278 F.3d 947, 957 (9th Cir. 2002) ("The opinions of non-treating or non-examining physicians may also serve as substantial evidence when the opinions are consistent with independent clinical findings or other evidence in the record."). Any conflict in the properly supported medical-opinion evidence was "solely the province of the ALJ to resolve." Andrews v. Shalala , 53 F.3d 1035, 1041 (9th Cir. 1995).[17]

Plaintiff contends that in assessing her RFC, the ALJ "merely made a leap from the medical evidence that Dr. Girgis, with his medical expertise[, ] did not - that a person with mild COPD like Plaintiff's has an unrestricted ability to stand and walk for up to six hours a day." (J. Stip. at 6.) Plaintiff contends that the ALJ "does not have the expertise" to form such a "medical opinion." (Id.) It is true that an ALJ may not substitute his own opinion for a doctor's professional interpretation of clinical testing. See Day v. Weinberger , 522 F.2d 1154, 1156 (9th Cir. 1975) (noting that hearing examiner erred by failing to "set forth any specific reasons for rejecting the... doctors' uncontroverted conclusions" and instead making "his own exploration and assessment as to claimant's physical condition" even though he "was not qualified as a medical expert"); Miller v. Astrue , 695 F.Supp.2d 1042, 1048 (C.D. Cal. 2010) ("[I]n noting [a]t the hearing, the claimant's thoughts did not seem to wander and all questions were answered alertly and appropriately[, ]' the ALJ acted as his own medical expert, substituting his opinion for [examining physician's] professional interpretation of the clinical testing, which is improper." (alterations in original)). Here, however, the ALJ did not substitute his opinion for a medical expert's; rather, he appropriately considered all of the medical evidence and formulated an RFC that was consistent with it. (See AR 18-19 (summarizing evidence).) Moreover, as discussed above, in doing so the ALJ permissibly relied on the opinions of Drs. Lee and Ross. The ALJ therefore acted within his authority. See Vertigan v. Halter , 260 F.3d 1044, 1049 (9th Cir. 2001) ("It is clear that it is the responsibility of the ALJ, not the claimant's physician, to determine residual functional capacity."); 20 C.F.R. §§ 404.1546(c) ("[T]he administrative law judge... is responsible for assessing your residual functional capacity."), 416.946(c) (same).

Plaintiff is not entitled to remand on this ground.

B. The ALJ's Errors in Assessing Plaintiff's Credibility Were Harmless

Plaintiff contends that the ALJ improperly discounted her credibility. (J. Stip. at 14-37.)

1. Applicable law

An ALJ's assessment of symptom severity and claimant credibility is entitled to "great weight." See Weetman v. Sullivan , 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. Heckler , 779 F.2d 528, 531 (9th Cir. 1986). "[T]he ALJ is not required to believe every allegation of disabling pain, or else disability benefits would be available for the asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A)." Molina v. Astrue , 674 F.3d 1104, 1112 (9th Cir. 2012) (internal quotation marks omitted). In evaluating a claimant's subjective symptom testimony, the ALJ engages in a two-step analysis. See Lingenfelter , 504 F.3d at 1035-36. "First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment [that] could reasonably be expected to produce the pain or other symptoms alleged." Id. at 1036 (internal quotation marks omitted). If such objective medical evidence exists, the ALJ may not reject a claimant's testimony "simply because there is no showing that the impairment can reasonably produce the degree of symptom alleged." Smolen v. Chater , 80 F.3d 1273, 1282 (9th Cir. 1996) (emphasis in original). When the ALJ finds a claimant's subjective complaints not credible, the ALJ must make specific findings that support the conclusion. See Berry v. Astrue , 622 F.3d 1228, 1234 (9th Cir. 2010). Absent affirmative evidence of malingering, those findings must provide "clear and convincing" reasons for rejecting the claimant's testimony. Lester , 81 F.3d at 834. If the ALJ's credibility finding is supported by substantial evidence in the record, the reviewing court "may not engage in second-guessing." Thomas , 278 F.3d at 959.

2. Relevant facts

In an undated disability report, Plaintiff wrote that she was unable to work because of "[s]evere depression, anxiety attacks, hepat[itis] c, bone spur on right foot, back problems, arthritis in lower spine, [and] acid reflux." (AR 245.) Plaintiff said that her impairments made it hard to stand and walk, she was always in pain, she cried all the time, and she vomited a lot "because of the acid reflux." (AR 246.) In an undated "Disability Report - Appeal, " Plaintiff wrote that she was "unable to walk, stand, bend for long periods due to spine pain[, ] (R) knee swells up[, ] (R) leg numb too, more stressed and depressed, anxiety, alcohol dep, chronic hepatitis, emphysema, hypertension, esophageal reflux." (AR 259.) She wrote that she needed help cooking for herself, doing chores, cleaning her house, doing laundry, and shopping for food. (AR 262.) She needed reminders to take her medication, and sometimes she was "unable to get out of bed" because she had "too much pain, also pain in legs due to restless leg syndrome." (Id.)

At the July 15, 2010 hearing, Plaintiff testified that she was unable to work because she had "chronic pain all the time, constantly, " in her lower back and hips. (AR 58.) She could sit for a "little while" but then "ha[d] to kind of be able to wiggle around a little bit, " she couldn't "stand up very long at all, " and she could "walk better than [she] stand[s]." (Id.) Plaintiff testified that she often lost her balance because her legs would grow numb and "feel like rubber bands." (AR 65.) She could not walk a block at a reasonable pace on a surface that was rough or uneven. (AR 66.) Her only side effect from her medication was a "little bit of constipation." (AR 59.)

Plaintiff had a walker at the 2010 hearing and said she had asked her doctor to prescribe it because she could not walk around the store without stopping and because she was "afraid [she] would fall out into the street and get run over."[18] (AR 59-60.) Plaintiff testified that she had been using the walker for about a year. (Id.) At the time of the hearing she used the walker every couple of days, when she and her husband took their dogs for a walk, and she had previously used it about three days a week. (AR 65, 70.) Plaintiff said she had had a seizure on New Year's Eve a couple years earlier after drinking a beer (AR 61), and she had breathing problems but continued to smoke about two-thirds or three-fourths of a pack of cigarettes a day (AR 71). Plaintiff stopped drinking alcohol in December 2008. (AR 72-73.)

On a typical day Plaintiff got up at around 6:30 a.m., made and drank coffee, "t[ook] the blinds off all of the birds, " took her medication, played a hand-held solitaire game for about an hour, and watched television "[a]ll day." (AR 54-57.) She could start fixing her own meals but needed her husband to help finish them, and when working in the kitchen she sat on a stool so her legs would not "giv[e] out." (AR 55.) She could take care of her personal hygiene but used handrails and a chair in the shower. (Id.) Plaintiff vacuumed "once in a blue moon, " cooked, and "sometimes" did the dishes. (Id.) She and her husband shopped for groceries for about 30 minutes three or four times a month; Plaintiff would "hop on one of [those] little carts" and her husband would "help[] [her] put everything in the basket." (AR 55-56.)

At the July 23, 2012 hearing, Plaintiff testified that she could not work because she had pain in her lower back and could not bend, her whole leg "goes to sleep, " her knee "gives out, " her back muscles tightened up, and she had muscle spasms in her legs and ankles. (AR 33.) Plaintiff's back pain was treated only with pain medication, which "dull[ed] the pain, " but if she stood for very long "everything starts tightening up" and she would "get[]to the point where [she could] only walk so far" and had to "sit down and let [her] back settle down." (AR 33-34, 39.) She could sit for about a half hour before she would "start to squirm, " and she could stand for only five or six minutes unless she was "leaning." (AR 38-39.) Plaintiff said she still had seizures "every now and again" but had not "had one in a while." (AR 40.)

Plaintiff testified that she had last used alcohol about four years earlier and had not used any other substance since before she was pregnant with her son, who was 25 years old at the time of the hearing. (AR 31-32.) Plaintiff testified that her daily activities included getting up in the morning and having coffee, watching television, sleeping, playing a word puzzle, and taking her medication. (AR 34, 37-38.) She could not cook dinner (AR 34), and when she did cook she took a chair into the kitchen so she could sit down (AR 37).

3. Discussion

The ALJ gave four reasons for discounting Plaintiff's credibility: (1) her activities of daily living were "inconsistent with [her] testimony regarding disability and demonstrate the capacity for work, " (2) her testimony that she "did nothing all day" conflicted with her husband's report that she "tended to a bunch of birds, " (3) her testimony that she required a walker, had significant difficulty moving around, and had debilitating back pain was inconsistent with the evidence of record, and (4) she received only "routine and conservative treatment for complaints of back pain." (AR 17-18 (internal quotation marks omitted).)

Contrary to the ALJ's finding, Plaintiff's reported daily activities were not inconsistent with her asserted level of pain, nor did they indicate that she would be capable of performing full-time remunerative employment. See Molina , 674 F.3d at 1113 (ALJ may discredit testimony when claimant "reports participation in everyday activities indicating capacities that are transferable to a work setting" or "contradict claims of a totally debilitating impairment"). Plaintiff consistently testified that she spent her days watching television, playing a hand-held game or word puzzle, and taking medication. Although she sometimes cooked, she could not cook a meal by herself and needed to sit in a chair or on a stool while cooking. Plaintiff said she needed help doing chores, cleaning her house, doing laundry, and shopping for food. (AR 262.) None of these activities conflict with Plaintiff's testimony that her ability to stand and walk was significantly limited. Indeed, the ALJ did not rely on them in his analysis, but instead cited Dr. Bernabe's opinion that Plaintiff could shop, travel alone, walk without a wheelchair or walker, use public transportation, climb steps, prepare simple meals, care for her own personal hygiene, and use paper. (AR 17, 462.) Because nothing indicates that Plaintiff actually performed all of those activities, however, the ALJ improperly relied on them to discredit her subjective complaints.

The ALJ also erroneously found that Plaintiff's testimony that she "essentially did nothing all day" was "inconsistent with the testimony of her husband, " Woodrow Grisel, who testified that Plaintiff "tended to a bunch of birds."[19] (AR 17 (internal quotation marks omitted).) Woodrow in fact testified that Plaintiff "can't walk very far at all without having to sit down, " complained about pain "all the time, " and spent her days "[r]eading and playing a game, watching a little TV." (AR 42-43.) Woodrow testified that he did the laundry, helped her take a shower and wash her hair, drove her places, picked up her medication, and took care of their dogs. (Id.) Although Woodrow testified that Plaintiff had "some birds she tends to, a bunch of birds, " and "tries to go out and sit with them - when she gets outside" (AR 43), it is not clear how sitting outside with her birds, or even feeding them, is inconsistent with any of Plaintiff's complaints. Indeed, Plaintiff herself interjected during Woodrow's testimony that it was "all [she] could do to get out to [the birds], " and she had to have Woodrow give them food and water. (Id.) As such, Plaintiff's subjective complaints do not conflict with her husband's statement that she tended to her birds.

The ALJ's other reasons for discounting Plaintiff's credibility, however, are sufficiently clear and convincing.

First, the ALJ accurately noted that Plaintiff's testimony that she had "significant difficulty moving around, " required a walker, and had debilitating back pain conflicted with the objective medical evidence. (AR 17-18.) Plaintiff claimed that she was so limited by her back pain that she was able to sit for only 30 minutes at a time, stand for only about five minutes before needing to sit (AR 38-39), needed to use a walker two or three days a week (AR 59-60, 64-65), and was sometimes unable to get out of bed because of pain (AR 262). Her husband similarly testified that Plaintiff "can't walk very far at all" without needing to sit down. (AR 42-43.) But in February 2009, Dr. Girgis examined Plaintiff's back and found equal muscle tone, normal range of motion, and no tenderness or spasm (AR 358-59); he also noted that Plaintiff had good tone and motion and 5/5 strength throughout her body (AR 359). Dr. Girgis further observed that Plaintiff "walks and moves easily, " had a "normal" gait that was "not unsteady or unpredictable, " was "able to change position and get on and off the examining table without difficulty, " and needed "[n]o assistive device... for ambulation across the room." (AR 360.) Moreover, in May 2012, Dr. Bernabe, an orthopedic surgeon, noted several positive examination findings but also observed that Plaintiff "moved freely in and out of the office and around the examination room without the use of any assistive device, " her gait was normal, and she could "toe and heel walk." (AR 453.) Indeed, Dr. Bernabe concluded that despite her back impairment, Plaintiff could stand and walk for two hours at a time and a total of six hours in an eight-hour day. (AR 456, 458.) The ALJ therefore permissibly discounted Plaintiff's credibility based on the conflict between her statements and the objective medical evidence.[20] See Carmickle , 533 F.3d at 1161 ("Contradiction with the medical record is a sufficient basis for rejecting the claimant's subjective testimony."); Lingenfelter , 504 F.3d at 1040 (in determining credibility, ALJ may consider "whether the alleged symptoms are consistent with the medical evidence").[21]

The ALJ also permissibly discounted Plaintiff's credibility because she received only "routine and conservative treatment for complaints of back pain."[22] (AR 18); see Tommasetti v. Astrue , 533 F.3d 1035, 1040 (9th Cir. 2008) (ALJ may infer that claimant's "response to conservative treatment undermines [claimant's] reports regarding the disabling nature of his pain"); Johnson v. Shalala , 60 F.3d 1428, 1434 (9th Cir. 1995) (doctor's prescribed "conservative treatment" suggested "lower level of both pain and functional limitation"). Plaintiff's back condition was treated with physical therapy (AR 446-47) and medication, including at various times the narcotics Norco (AR 287-88, 291, 396, 445, 490, 492-93), Percocet (AR 393), oxycodone (AR 394), morphine (445-46, 490, 492-93), methadone (AR 447), and hydromorphone (AR 464, 466, 470, 472-73, 475).[23] Although treatment with narcotic pain relievers has generally been found to be nonconservative when combined with other treatments - such as surgery, steroid or epidural injections, or referral for necessary further treatment - here Plaintiff was never advised to seek any additional treatment for her back, such as surgery or pain management, [24] and she testified that her medications in fact dulled the pain and did not result in any side effects other than a "little constipation."[25] (AR 34, 59); see Tommasetti , 533 F.3d at 1040 (ALJ permissibly discounted credibility when claimant "responded favorably to conservative treatment including physical therapy and the use of anti-inflammatory medication, a transcutaneous electrical nerve stimulation unit, and a lumbosacral corset"); Huizar v. Comm'r of Soc. Sec., 428 F.Appx. 678, 680 (9th Cir. 2011) (ALJ permissibly discounted claimant's credibility because her "physical and mental impairments responded favorably to conservative treatment, " which included "the use of narcotic/opiate pain medications" (emphasis omitted)); compare Lapeirre-Gutt v. Astrue , 382 F.Appx. 662, 664 (9th Cir. 2010) (treatment with narcotic pain medication, occipital nerve blocks, trigger-point injections, and cervical-fusion surgery not conservative); Samaniego v. Astrue, No. EDCV 11-865 JC, 2012 WL 254030, at *4 (C.D. Cal. Jan. 27, 2012) (treatment with narcotic pain medication, regular trigger-point injections, and occasional epidural injections not conservative, noting that doctor also "recommended significantly invasive surgery for plaintiff's back"). The ALJ therefore did not err in relying on Plaintiff's limited treatment to discount the credibility of her complaints of a totally disabling back impairment.[26] Indeed, this Court may not "second guess" the ALJ's credibility finding even if the evidence of Plaintiff's treatment was susceptible of other interpretations more favorable to Plaintiff. See Tommasetti , 533 F.3d at 1039.

Because the ALJ provided two valid reasons for finding Plaintiff not credible, any errors in his credibility assessment were harmless. See Carmickle , 533 F.3d at 1162 (when ALJ provides specific reasons for discounting Plaintiff's credibility, decision may be upheld even if certain reasons were invalid as long as "remaining reasoning and ultimate credibility determination" were supported by substantial evidence (emphasis omitted)). Plaintiff is not entitled to remand on this ground.

C. The ALJ Permissibly Discounted Woodrow's Lay Testimony

Plaintiff contends that the ALJ erroneously discounted the credibility of her husband, Woodrow. (J. Stip. at 40-49.)

1. Applicable law

"In determining whether a claimant is disabled, an ALJ must consider lay witness testimony concerning a claimant's ability to work." Bruce v. Astrue , 557 F.3d 1113, 1115 (9th Cir. 2009) (quoting Stout v. Comm'r, Soc. Sec. Admin. , 454 F.3d 1050, 1053 (9th Cir. 2006) (internal quotation marks omitted)); see also §§ 404.1513(d) (statements from therapists, family, and friends can be used to show severity of impairments and effect on ability to work), 416.913(d) (same). Such testimony is competent evidence and " cannot be disregarded without comment." Bruce , 557 F.3d at 1115 (quoting Nguyen v. Chater , 100 F.3d 1462, 1467 (9th Cir. 1996) (internal quotation marks omitted)); Robbins , 466 F.3d at 885 ("[T]he ALJ is required to account for all lay witness testimony in the discussion of his or her findings."). When rejecting the testimony of a lay witness, an ALJ must give specific reasons that are germane to that witness. Bruce , 557 F.3d at 1115; see also Stout , 454 F.3d at 1053; Nguyen , 100 F.3d at 1467.

2. Discussion

As discussed in Section B.3 above, Woodrow testified that Plaintiff couldn't "walk very far at all without having to sit down, " complained about pain "all the time, " and was unable to do household chores like cooking and laundry. (AR 42.) He asserted that Plaintiff did not go grocery shopping, needed his help showering and washing her hair, [27] and spent her days reading, "playing a game, " watching television, and sometimes tending to or sitting with her birds. (AR 42-43.) Woodrow had to do the laundry "and everything, " pick up Plaintiff's "pills and stuff, " drive her, help her shower and wash her hair, take care of their dogs, and do the grocery shopping and "whatever she needs.[28] (AR 36, 42-43.)

The ALJ permissibly discounted Woodrow's testimony because it was "less persuasive" than "the opinions of medical professionals relied on" in the decision and was "not supported by the clinical or diagnostic medical evidence that is discussed elsewhere in [the] decision." (AR 20.) Indeed, like Plaintiff's, Woodrow's testimony was inconsistent with Drs. Girgis's and Bernabe's findings that Plaintiff had a normal gait, was able to move freely about the examination room, and could walk for six hours in an eight-hour day. And like Plaintiff's, Woodrow's testimony that Plaintiff experienced disabling pain was inconsistent with medical records showing that Plaintiff received only routine and conservative treatment. This was therefore a germane reason for discounting Woodrow's testimony. See Bayliss v. Barnhart , 427 F.3d 1211, 1218 (9th Cir. 2005) ("inconsistency with medical evidence" is germane reason for discounting lay-witness testimony); Carter v. Astrue, 472 F.Appx. 550, 553 (9th Cir. 2012) ("We have held that inconsistency with medical evidence is a germane reason to reject lay testimony."); see also Molina , 674 F.3d at 1114 ("if the ALJ gives germane reasons for rejecting testimony by one witness, the ALJ need only point to those reasons when rejecting similar testimony by a different witness").

Plaintiff contends that inconsistency with the record evidence was not a germane reason for discounting Woodrow's testimony because "the lack of supporting medical evidence is not a legitimate reason for rejecting lay testimony about the severity of symptoms." (J. Stip. at 47.) But although the Ninth Circuit has held that a mere lack of supporting evidence is not a germane reason for discounting a lay witness's testimony, see Smolen , 80 F.3d at 1289, it has also repeatedly held that inconsistency or contradiction with the medical evidence is a germane reason, see Vincent v. Heckler , 739 F.2d 1393, 1395 (9th Cir. 1984) ("The ALJ properly discounted lay testimony that conflicted with the available medical evidence."); see also Bayliss , 427 F.3d at 1218 ("inconsistency with medical evidence" is a germane reason); Carter, 472 F.Appx. at 553 (same); Barton v. Astrue, 500 F.Appx. 607, 609 (9th Cir. 2012) ("The ALJ's finding that the lay opinion testimony conflicted with the medical evidence was a germane reason' for rejecting this testimony." (alteration omitted)); see generally Rivera v. Colvin, No. 6:12-cv-02132-MO, 2013 WL 6002445, *2-*4 (D. Or. Nov. 12, 2013) (discussing Smolen and Vincent lines of cases). Here, the medical evidence is clearly inconsistent with Woodrow's testimony; indeed, the ALJ specifically noted that Woodrow's testimony was "less persuasive" than the credited medical opinions and referred to earlier discussions of the evidence (AR 19), which pointed out that Plaintiff's asserted difficulty moving around and disabling back pain were "inconsistent with the evidence of record" in various ways (AR 17-18).[29]

The ALJ also found that Woodrow's opinion was "not an unbiased one because he has a familial motivation to support [Plaintiff] as well as a financial interest in seeing [her] receive benefits in order to increase the household income." (AR 20.) It is not clear whether, in context, this was a valid reason to discount Woodrow's testimony. The Ninth Circuit has held that a lay witness's familial relationship or abstract financial interest in the claimant's receipt of benefits is not in itself a sufficient reason for rejecting his testimony. See Smolen , 80 F.3d at 1289 ("The fact that a lay witness is a family member cannot be a ground for rejecting his or her testimony."); Valentine v. Comm'r Soc. Sec. Admin. , 574 F.3d 685, 694 (9th Cir. 2009) (ALJ may not rely on "characteristics common to all spouses" to discount spouse's testimony). But here, in addition to noting Woodrow's "familial motivation" and "familial interest" in seeing Plaintiff obtain benefits, the ALJ noted that his testimony was inconsistent with the medical evidence, which tended to show that Woodrow was in fact exaggerating Plaintiff's symptoms. See Valentine , 574 F.3d at 694 ("evidence that a specific spouse exaggerated a claimant's symptoms in order to get access to his disability benefits, as opposed to being an interested party' in the abstract, might suffice to reject that spouse's testimony").

Moreover, the Ninth Circuit has found that a lay witness's close relationship and possible financial interest in the outcome of a claim, when combined with inconsistency with the medical evidence, are germane reasons for discounting a witness's testimony. See Greger v. Barnhart , 464 F.3d 968, 972 (9th Cir. 2006) (ALJ permissibly discounted lay witness's testimony based on "inconsisten[cy]" with medical evidence, her "close relationship" with claimant, and possibility she was "influenced by her desire to help [the claimant]" (alteration and internal quotation marks omitted)); Rusten v. Comm'r of Soc. Sec. Admin., 468 F.Appx. 717, 719 (9th Cir. 2012) (AlJ's observations that lay witnesses' testimony "was at odds with the preponderance of the medical evidence, " that claimant's "mother and ex-wife could not be considered disinterested witnesses, " and that "their statements were likely colored by affection for him" were germane reasons for discounting testimony). Indeed, the evidence tends to show that Woodrow in fact had a significant financial interest in Plaintiff's claim for benefits: Plaintiff testified that she was "living off" her husband, whose sole source of income was veterans benefits, and that they had been forced to "give up the house and move in with [her] mom and [her] sister." (AR 32, 35.)

But even if the ALJ erred by relying on Woodrow's interest in Plaintiff's receipt of benefits, it was harmless because the ALJ provided a different germane reason for rejecting Woodrow's testimony - that it was inconsistent with the medical evidence of record. See Valentine , 574 F.3d at 694; see also Molina , 674 F.3d at 1115 (ALJ's error harmless when "inconsequential to the ultimate nondisability determination" (internal quotation marks omitted)).

Plaintiff is not entitled to remand on this ground.

VI. CONCLUSION

Consistent with the foregoing, and pursuant to sentence four of 42 U.S.C. § 405(g), [30] IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner and dismissing this action with prejudice. IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment on counsel for both parties.


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