United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE
Plaintiff
seeks judicial review of a final decision by the Commissioner
of Social Security (“Commissioner”) denying
plaintiff’s application for Disability Insurance
Benefits (“DIB”) under Title II of the Social
Security Act (“Act”).[1] Plaintiff filed a motion for
summary judgment, which defendant opposed while
simultaneously filing a cross-motion for summary judgment.
(ECF Nos. 14, 15.) No reply brief was filed by plaintiff.
For the
reasons discussed below, the court DENIES plaintiff’s
motion for summary judgment, GRANTS the Commissioner’s
cross-motion for summary judgment, and enters judgment for
the Commissioner.
I.
BACKGROUND
Plaintiff
was born on February 1, 1964; she has a high school
education; her previous occupation was a certified court
reporter; and she last worked on August 13,
2004.[2](Administrative Transcript
(“AT”) 49-50, 203.) Plaintiff applied for DIB on
October 11, 2011, alleging that her disability began on
August 13, 2004, and that she was disabled due to cervical
disc disorder, migraines, and bursitis in her
hips.[3] (AT 203, 234.) After plaintiff’s
application was denied initially and upon reconsideration,
she requested a hearing before an administrative law judge
(“ALJ”), which took place on July 23, 2013. (AT
47, 136-48, 149.) In a decision dated September 3, 2013, the
ALJ found plaintiff not disabled. (AT 15-32.) The ALJ’s
decision became the final decision of the Commissioner when
the Appeals Council denied plaintiff’s request for
review on February 18, 2015. (AT 1-6.) Thereafter, plaintiff
filed this action in federal district court on April 21,
2015, to obtain judicial review of the Commissioner’s
final decision. (ECF No. 2.)
II.
ISSUES PRESENTED
Plaintiff
raises the following issues: (1) whether the ALJ improperly
assessed plaintiff’s residual functional capacity
(“RFC”) by improperly weighing the medical
opinion evidence in the record; (2) whether the ALJ relied
upon inadequate testimony from the vocational expert; and (3)
whether the ALJ improperly discounted plaintiff’s
testimony regarding the intensity, persistence, and limited
effects of her symptoms.
III.
LEGAL STANDARD
The
court reviews the Commissioner’s decision to determine
whether (1) it is based on proper legal standards pursuant to
42 U.S.C. § 405(g), and (2) substantial evidence in the
record as a whole supports it. Tackett v. Apfel, 180
F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is more
than a mere scintilla, but less than a preponderance.
Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir.
2003) (citation omitted). It means “such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Orn v. Astrue, 495 F.3d
625, 630 (9th Cir. 2007) (quoting Burch v. Barnhart,
400 F.3d 676, 679 (9th Cir. 2005)). “The ALJ is
responsible for determining credibility, resolving conflicts
in medical testimony, and resolving ambiguities.”
Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir.
2001) (citation omitted). “The court will uphold the
ALJ’s conclusion when the evidence is susceptible to
more than one rational interpretation.” Tommasetti
v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).
IV.
DISCUSSION
A.
Summary of the ALJ’s Findings
The ALJ
evaluated plaintiff’s entitlement to disability
benefits pursuant to the Commissioner’s standard
five-step analytical framework.[4] At the first step, the ALJ
concluded that plaintiff had not engaged in substantial
gainful activity between August 13, 2004, the alleged onset
date, and March 31, 2008, the date last insured. (AT 20.) At
step two, the ALJ determined that plaintiff had the following
severe impairments: “degenerative disc disease of the
cervical spine with radiculopathy, migraines, and chronic
pain.” (Id.) However, at step three, the ALJ
determined that the plaintiff did not have an impairment or
combination of impairments that meets or medically equals an
impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix
1. (Id.)
Before
proceeding to step four, the ALJ assessed plaintiff’s
RFC as follows:
After careful consideration of the entire record, the
undersigned finds that, through the date last insured, the
claimant had the residual functional capacity to perform
light work as defined in 20 CFR 404.1567(b) except that the
claimant can lift and carry ten pounds both occasionally and
frequently, can sit, stand and/or walk for six hours in an
eight-hour day, can occasionally climb, can frequently
balance, can occasionally stoop, kneel, crouch and/or crawl.
She can frequently, (but not constantly or repetitively),
reach, handle, finger, and feel with the bilateral upper
extremities.
(AT 21.)
At step
four, the ALJ found that plaintiff was unable to perform any
past relevant work through the date last insured. (AT 24.)
However, at step five, the ALJ found that considering
plaintiff’s age, education, work experience, and RFC,
there were jobs that existed in significant numbers in the
national economy that the claimant could have performed
through the date last insured. (Id.)
Accordingly,
the ALJ concluded that the plaintiff had not been under a
disability from August 13, 2014, the alleged onset date,
through March 31, 2008, the date last insured. (AT 28.)
B.
Plaintiff’s Substantive Challenges to the
Commissioner’s Determinations
1.
Whether the ALJ Improperly Assessed the Medical Opinion
Evidence When Determining Plaintiff’s RFC
First,
plaintiff argues that the ALJ erred in considering and
weighing the medical opinions of Dr. Duffy, Dr. Kimble, Dr.
Champlin, Dr. Jaojoco, and Nurse Practitioner Mullen.
The
weight given to medical opinions depends in part on whether
they are proffered by treating, examining, or non-examining
professionals. Holohan v. Massanari, 246 F.3d 1195,
1201-02 (9th Cir. 2001); Lester v. Chater, 81 F.3d
821, 830 (9th Cir. 1995). Generally speaking, a treating
physician’s opinion carries more weight than an
examining physician’s opinion, and an examining
physician’s opinion carries more weight than a
non-examining physician’s opinion. Holohan,
246 F.3d at 1202.
To
evaluate whether an ALJ property rejected a medical opinion,
in addition to considering its source, the court considers
whether (1) contradictory opinions are in the record; and (2)
clinical findings support the opinions. An ALJ may reject an
uncontradicted opinion of a treating or examining medical
professional only for “clear and convincing”
reasons. Lester, 81 F.3d at 830-31. In contrast, a
contradicted opinion of a treating or examining professional
may be rejected for “specific and legitimate”
reasons. Id. at 830. While a treating
professional’s opinion generally is accorded superior
weight, if it is contradicted by a supported examining
professional’s opinion (supported by different
independent clinical findings), the ALJ may resolve the
conflict. Andrews v. Shalala, 53 F.3d 1035, 1041
(9th Cir. 1995) (citing Magallanes v. Bowen, 881
F.2d 747, 751 (9th Cir. 1989)). The regulations require the
ALJ to weigh the contradicted treating physician opinion,
Edlund, 253 F.3d at 1157, [5] except that the ALJ in any
event need not give it any weight if it is conclusory and
supported by minimal clinical findings. Meanel v.
Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (treating
physician’s conclusory, minimally supported opinion
rejected); see also Magallanes, 881 F.2d at 751. The
opinion of a non- examining professional, by itself, is
insufficient to reject the opinion of a treating or examining
professional. Lester, 81 F.3d at 831.
a.
Dr. Duffy and Dr. Kimble
Plaintiff
argues that the ALJ erred by failing to properly incorporate
into his RFC determination or otherwise reconcile the
limitations opined by Dr. Duffy and Dr. Kimble despite giving
those physicians’ opinions significant and considerable
weight, respectively. For the reasons discussed below, the
undersigned finds no error in the ALJ’s consideration
of Dr. Duffy’s and Dr. Kimble’s opinions.
After
completing an MRI scan of plaintiff on September 9, 2003,
which found plaintiff had “reversed lordosis and mild
annular bulges at ¶ 4-5, C5-6, and C6-7, ” Dr.
Duffy completed an attending physician’s statement
(“APS”) dated October 28, 2003. (AT 305-09.) Dr.
Duffy indicated that the current and planned treatment would
be conservative, and restricted plaintiff from performing
repetitive motions in the neck and upper extremities and
prolonged reading, noting that plaintiff’s headaches
made work and concentration difficult. (AT 305-06.) Dr. Duffy
opined that plaintiff could not work in another occupation
due to her pain and headaches. (AT 306.) On June 11, 2004,
Dr. Duffy opined that plaintiff could work part-time. (AT
300.) In a second APS dated December 7, 2004, Dr. Duffy found
that plaintiff could not perform her work as a court reporter
as of August 1, 2004, basing his determination on
plaintiff’s “inability to transcribe” as a
result of her impairments. (AT ...