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Morrone v. Berryhill

United States District Court, C.D. California

March 8, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          KAREN E. SCOTT United States Magistrate Judge

         Plaintiff Sante Carmen Morrone (“Plaintiff”) appeals the final decision of the Administrative Law Judge (“ALJ”) denying her application for Social Security Disability Insurance benefits (“DIB”). For the reasons discussed below, the ALJ's decision is AFFIRMED.



         Plaintiff applied for DIB on March 25, 2013, alleging the onset of disability on January 17, 2012. Administrative Record (“AR”) 180-81, 46.[1] An ALJ conducted a hearing on September 15, 2014, at which Plaintiff, who was represented by an attorney, appeared and testified. AR 39-74.

         On November 20, 2014, the ALJ issued a written decision denying Plaintiff's request for benefits. AR 18-32. The ALJ found that Plaintiff had the following severe impairments: “left shoulder labrum tear; left shoulder subacromial tendinopathy with impingement; right shoulder subacromial tendinopathy; and right shoulder acromioclavicular joint arthrosis.” AR 23. Notwithstanding his impairments, the ALJ concluded that Plaintiff had the residual functional capacity (“RFC”) to perform the demands of sedentary work with the additional limits that he can lift/carry 10 pounds frequently and occasionally; can stand/walk “approximately 6 hours” per 8-hour workday; can sit “approximately 6 hours” per 8-hour workday “with normal breaks”; can frequently push/pull with the bilateral upper extremities; and can frequently reach overhead with the bilateral upper extremities. AR 25-26 (citing 20 C.F.R. § 404.1567(a)). Based on this RFC and the testimony of a vocational expert (“VE”), the ALJ found that Plaintiff could perform the work of assembler, document preparer, and film touchup inspector. AR 31-32. Therefore, the ALJ concluded that Plaintiff is not disabled. AR 32.



         Issue No. 1: Whether the ALJ properly evaluated the opinions of Plaintiff's “other” treating source, i.e., chiropractor Phu Q. La, D.C.; and Issue No. 2: Whether the ALJ properly evaluated Plaintiff's testimony concerning his shoulder pain.

         Joint Stipulation (“JS”) at 4.



         A. The ALJ Properly Evaluated the Opinions of Chiropractor Phu La.

         1. Applicable Law.

         Medical sources are divided into two categories: “acceptable medical sources” and “other sources.” 20 C.F.R. §§ 404.1502, 404.1513. In general, only licensed physicians and similarly qualified specialists are “acceptable medical sources” who can provide evidence to establish a claimant's impairment. 20 C.F.R. § 404.1513(a). Chiropractors are included in the “other sources” category, and can provide evidence to show the severity of a claimant's impairment and how it affects his ability to work. 20 C.F.R. § 404.1513(d). Opinions from “other sources” can be afforded “less weight than opinions from acceptable medical sources.” Gomez v. Chater, 74 F.3d 967, 970-71 (9th Cir. 1996). “The ALJ may discount testimony from … ‘other sources' if the ALJ ‘gives reasons germane to each witness for doing so.'” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (quoting Turner v. Comm'r of Soc. Sec., 613 F.3d 1217, 1224 (9th Cir. 2010)).

         2. Dr. La's Opinion and the ALJ's Reasons for Discounting It.

         Chiropractor Dr. La of One Stop Multi-Specialty Medical Group & Therapy treated Plaintiff since at least February 2013. AR 346.[2] In a letter dated January 22, 2014, Dr. La opined that Plaintiff was “not capable” of work requiring “heavy lifting more than 10 pounds and repetitive overhead reaching above and below shoulder levels.” AR 758.

         The ALJ gave “little weight” to Dr. La's opinion for two reasons. AR 27. First, she found them “overly restrictive and inconsistent with the record as a whole, including claimant's description of his activities.” Id. Second, she determined that she should give greater weight to the conflicting opinions of qualifying medical sources. Id.

         3. Analysis.

         The ALJ gave germane reasons for discounting the opinions of Dr. La supported by evidence in the record. The ALJ considered the opinions of at least four doctors who offered opinions on Plaintiff's reaching and lifting abilities: Drs. Pan, Bayar, Hoang and Simpkins. AR 27-28. The ALJ gave “little” weight to the opinions of Drs. Pan and Hoang because she determined that Plaintiff's medical records supported “more restrictive functional limitations” than the limitations suggested by those doctors. Dr. Hoang, for example, found Plaintiff could perform medium-level work with no manipulative limitations for his upper extremities. AR 27, 371-76. The ALJ also considered Dr. Simpkins opinion that while Plaintiff had a reduced range of shoulder motion, he is “unimpaired in his ability to work” and “does not require any work restrictions.” AR 325. The ALJ gave the most “significant weight” to Dr. Bayar's reaching and lifting opinions, which were the most restrictive of all four doctors, and she ultimately incorporated many of them into her RFC determination. AR 25-26, 28. Given that all four of these doctors did not assess restrictions on Plaintiff's lifting and carrying abilities as significant as those assessed by Dr. La, this conflict was a germane reason supported by the record to discount the opinions of Dr. La and give greater weight to those of a qualified medical source.[3]

         Plaintiff argues that while “Dr. Bayar and Dr. La are largely in agreement with one another, ” they disagree concerning Plaintiff's ability to reach “below shoulder level.” JS at 9-10. The ALJ correctly noted that Plaintiff's reported activities include many activities that would require reaching out below shoulder level, such as walking a dog, cleaning, watering plants, fishing, and yardwork. AR 25 (citing AR 336-38). Sub rosa video shows Plaintiff able to reach into the bed of his truck, reach to retrieve mail from a mail box, and reach to take items off a store shelf while shopping. AR 336. Thus, inconsistency with Plaintiff's activities was another germane reason for discounting Dr. La's restrictive opinion.

         B. The ALJ Properly Evaluated Plaintiff's Pain Testimony.

         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. ...

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