Opinion
No. CV-10-8085-PHX-DGC.
January 27, 2011
ORDER
Plaintiff Stephen Gnandt injured his right heel and ankle when he slipped on a boat dock on October 3, 2004. See Doc. 12, Tr. 19, 59. He had surgery to stabilize the right calcaneal fracture one week later, and had subtalar joint arthrodesis surgery in October 2005. Tr. 19, 122-23. On March 12, 2006, Plaintiff injured his left ankle when he fell off a houseboat, fracturing the distal tibia across the medial malleous. Tr. 119. He was placed in a below-the-knee cast, which was removed on April 5, 2006. Tr. 118-19.
Plaintiff applied for disability insurance benefits on October 11, 2005, claiming to be disabled since October 3, 2004. See Doc. 12, Tr. 43-45. The application was denied. Tr. 31-40. A hearing before an Administrative Law Judge (ALJ) was held on November 8, 2007. Tr. 166-95. The ALJ issued a written decision on February 1, 2008, finding Plaintiff disabled through February 14, 2006, but not thereafter. Tr. 16-25. This decision became Defendant's final decision when the Appeals Council denied review. Tr. 3-5.
Plaintiff then commenced this action for judicial review pursuant to 42 U.S.C. §§ 405(g) and 1383(c). Doc 1. For reasons that follow, the Court will affirm Defendant's decision denying benefits as of February 15, 2006.
Plaintiff's request for oral argument is denied because the issues have been fully briefed (Docs. 13, 14, 15) and oral argument will not aid the Court's decision. See Fed.R.Civ.P. 78(b); Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998).
I. Standard of Review.
II. Analysis.
42 U.S.C. § 405Ryan v. Comm'r of Soc. Sec. 528 F.3d 11941198Id. 20 C.F.R. § 404.152020 C.F.R. § 404.1594
Plaintiff challenges the decision to terminate benefits as of February 15, 2006, arguing that the ALJ erred in rejecting a treating physician's opinion and Plaintiff's own testimony, that he erred in determining RFC and medical improvement, and that he failed to pose a complete hypothetical to the vocational expert. Docs. 13, 15. Defendant contends that the ALJ did not err and his decision is supported by substantial evidence. Doc. 14.
A. The Treating Physician's Opinion.
On September 19, 2006, Dr. James Wilson completed a medical source statement of Plaintiff's ability to do work-related activities. Tr. 99-101. He opined that Plaintiff was able to stand and walk for less than 2 hours in an 8-hour workday. Tr. 100. Plaintiff contends that the ALJ failed to provide clear and convincing reasons for rejecting that opinion. Doc. 13 at 13-16. The Court does not agree.
The ALJ explicitly relied on a contemporaneous treatment note in which Dr. Wilson found that Plaintiff's pain became severe only after standing for "prolonged periods of time" (Tr. 108). Tr. 22. The ALJ notes, correctly, that this finding is consistent with Dr. Wilson's treatment note of February 15, 2006, the date the ALJ found Plaintiff to be no longer disabled, wherein Plaintiff reported that he "can walk most of the time without difficulty" and has some soreness and swelling only after "several hours of walking" (Tr. 120). Tr. 21.
The ALJ need not accept the opinion of any medical source, including a treating source, "if that opinion is brief, conclusory, and inadequately supported by clinical findings." Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). The limitation of less than 2 hours of standing and walking (Tr. 100) is extreme and not supported by Dr. Wilson's own treatment notes (Tr. 108, 120). The discrepancy between Dr. Wilson's opinion and his own clinical notes is a "clear and convincing reason for not relying on the doctor's opinion regarding [Plaintiff's] limited ability to stand and walk." Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005); see Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 2003) (ALJ properly rejected treating physician's opinion where it was contradicted by his own notes); Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (same). "The ALJ's rejection of [Dr. Wilson's] opinion is supported by substantial evidence and was based on a permissible determination within the ALJ's province." Bayliss, 427 F.3d at 1216.
Plaintiff asserts that the ALJ erroneously found (Tr. 21) no medical evidence supporting Dr. Wilson's statement that Plaintiff uses an assistive device to walk (Tr. 100). Doc. 13 at 14. In support of this assertion, Plaintiff cites treatment notes (Tr. 118, 122, 123) purportedly showing that he was "consistently" wearing a cam walker. Id. But the note dated December 7, 2005 states that he was "released from camwalker" for his right foot. Tr. 122. On April 5, 2006, Plaintiff had the cast removed from his left foot and "was allowed to wear the CamWalker which he already has[.]" Tr. 118. One month later, however, Plaintiff affirmatively disclaimed using a walker or other assistive device. Tr. 88-89. The ALJ also notes, correctly, that by September 19, 2006, the date Dr. Wilson provided his medical source statement (Tr. 100), Plaintiff "no longer complained of having any pain or limitations in his left ankle." Tr. 21 (citing Tr. 108). The ALJ did not err in finding that no medical evidence supported Plaintiff's use of an assistive device as of September 2006.
B. The RFC Determination.
A sedentary job "involves lifting no more than 10 pounds at a time," and although it "is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties." 20 C.F.R. § 404.1567(a). In concluding that Plaintiff had regained the RFC to perform a range of sedentary work as of February 15, 2006, the ALJ found that "he can lift/carry up to 20 pounds occasionally, lift/carry up to 10 pounds frequently, stand and/or walk for a total of 2-4 hours in an 8-hour workday and sit for a total of 6 hours in an 8-hour workday." Tr. 20, 25 ¶ 14. Plaintiff asserts that the ALJ's RFC determination "was not based on any evidence in the record." Doc. 13 at 16. Plaintiff is incorrect.
Plaintiff himself recognizes that the ALJ found he "could lift/carry the amount of weight Dr. Wilson opined he could in his medical source statement." Id. at 17. The ALJ's finding that Plaintiff can sit for 6 hours is consistent with Dr. Wilson's opinion that Plaintiff has no limitation in his ability to sit (Tr. 100). The ALJ's finding that Plaintiff is able to stand and walk for 2-4 hours is supported by Dr. Wilson's treatment note stating that Plaintiff "can walk most of the time without difficulty" and only after " several hours of walking" does he have "some" soreness and swelling. Tr. 120 (emphasis added). Contrary to Plaintiff's assertion, the ALJ's RFC determination is supported by substantial medical evidence, that is, the opinion and clinical findings of Plaintiff's treating physician. See Desrosiers v. Sec'y of HHS, 846 F.2d 573, 576 (9th Cir. 1988) ("Substantial evidence means more than a mere scintilla, but less than a preponderance. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.") (quotation marks and citations omitted); Valentine v. Comm'r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009) (noting that reviewing the Commissioner's decision for substantial evidence is a "highly deferential" standard of review).
C. The Medical Improvement Finding.
The ALJ erred in finding medical improvement, Plaintiff contends, by "failing to perform a continuing disability review pursuant to 20 C.F.R. § 404.1519p." Doc. 13 at 17. That regulation concerns the reports of consultive examiners. It provides that "[i]f the report is inadequate or incomplete, we will contact the medical source who performed the consultive examination, give an explanation of our evidentiary needs, and ask that the medical source furnish the missing information or prepare a revised report." 20 C.F.R. § 404.1519p(b).
Plaintiff asserts that had "the ALJ re-contacted Dr. Wilson concerning his medical opinions, the ALJ would have learned Dr. Wilson strongly disagreed with the ALJ's summary of [Plaintiff's] medical history and determination of [his RFC]." Doc. 18. Plaintiff cites no legal authority showing that 20 C.F.R. § 404.1519p applies to opinions of treating physicians, as opposed to reports of consultive examiners. Nor has Plaintiff shown that the medical source statement completed by Dr. Wilson (Tr. 99-101), when coupled with relevant treatment notes (Tr. 108, 120), was not adequate for the ALJ to make a medical improvement determination. See 20 C.F.R. § 404.1512(e) (it is necessary to recontact a treating physician only where the evidence he provides "is inadequate for us to determine whether you are disabled").
"The ALJ, with support in the record, found the evidence adequate to make a determination regarding [Plaintiff's medical improvement]." Bayliss, 427 F.3d at 1217. He therefore had no duty to recontact Dr. Wilson. See id.; Dosey v. Astrue, No. EDCV 07-890-CW, 2010 WL 1875659, at *5 (C.D. Cal. May 10, 2010) ("An ALJ is required to recontact a doctor or otherwise undertake to develop the record more fully only if the medical evidence is ambiguous or insufficient for the ALJ to make a disability determination.").
D. Plaintiff's Testimony.
Plaintiff testified at the hearing that he is able to sit and stand for only half an hour at a time (Tr. 171-72), that he must elevate his feet throughout the day (Tr. 73), that he has difficulty walking on uneven surfaces and is unable to balance even on flat ground (Tr. 174-75, 180), that he can lift only one pound (Tr. 180-81), and that the Vicodin he takes causes dizziness several times a day (Tr. 182).
The ALJ credited Plaintiff's testimony that he is unable to walk on uneven surfaces, but found the "allegations of greater limitations since February 15, 2006 [to be] not consistent with the record as a whole." Tr. 20. There is no dispute that Plaintiff's impairments could reasonably produce some symptoms. Given this fact, and because there is no evidence of malingering, the ALJ was required to present "specific, clear and convincing reasons" for his adverse credibility finding. See Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996).
Plaintiff asserts that the ALJ rejected his symptom testimony "for only one articulated reason: The belief [he] `exaggerated the extent of his injury to the evaluator." Doc. 13 at 20 (quoting Tr. 22). To the contrary, the ALJ provided several specific, clear, and convincing reasons for finding Plaintiff's testimony not entirely credible.
The ALJ noted (Tr. 21) that by February 15, 2006, Plaintiff "was doing well following subtalar joint arthrodesis" surgery (Tr. 120). He was able to "walk most of the time without difficulty" and had some soreness and swelling only after "several hours of walking." Tr. 120. Examination revealed no edema in the right foot or ankle, muscle tone was normal, muscle strength was 5/5 for all groups tested, and Plaintiff was advised to "[c]ontinue to weight bear as tolerated." Tr. 120. Plaintiff experienced continued improvement in his right foot, with x-rays taken in April 2006 showing only incomplete arthrodesis and resolving osteopenia. Tr. 118. By September 2006, Plaintiff no longer complained of having any pain or limitation in his left ankle, and experienced severe pain in his right foot only after "standing for prolonged periods of time[.]" Tr. 108. The medical evidence is wholly inconsistent with Plaintiff's claim that he is able to stand for only half an hour. See Thomas, 278 F.3d at 958-59 (an ALJ may reject a claimant's testimony to the extent it is inconsistent with medical records).
The ALJ also found Plaintiff's subjective complaint testimony inconsistent with his daily activities. Tr. 21-22. Although a claimant need not be "utterly incapacitated" in order to be eligible for benefits, Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989), the ALJ may consider daily activities in making his credibility determination. See Thomas, 278 F.3d at 959. Plaintiff reported to an examining physician that he is able to cook and barbeque and goes fishing and boating. Tr. 111. He has lots of associates who visit regularly (Tr. 111), he drives (Tr. 85), and he is able to do the dishes and other housework (Tr. 84). While some of these activities may not show an ability work, they do tend to negate Plaintiff's testimony that he is can lift only one pound and is limited to sitting and standing for only half an hour. The ALJ "properly considered Plaintiff's daily activities in finding [his] testimony incredible." Curry v. Astrue, No. 09-CV-2580-PHX-GMS, 2010 WL 3789535, at *6 (D. Ariz. Sept. 22, 2010); see Thomas, 278 F.3d at 958-59 (the ALJ did not err in rejecting the claimant's pain testimony where the claimant "was able to perform various household chores such as cooking, laundry, washing dishes, and shopping").
The ALJ found, correctly, that no medical evidence supports Plaintiff's testimony that he needs to elevate his feet throughout the day, that he has difficulty with balance, that he has developed osteoporosis in his right foot, and that the he has dizzy spells several times a day as a side effect of Vicodin. Tr. 22.
The ALJ noted inconsistencies in Plaintiff's hearing testimony and other statements in the record. Plaintiff testified that he has "trouble falling asleep" and wakes up "three to five times" during the night (Tr. 174), but reported to the examining physician that he "takes 5-10 minutes to get to sleep" and sleeps through the night (Tr. 110). The ALJ did not err in considering those inconsistencies when weighing Plaintiff's credibility. See Thomas, 278 F.3d at 958.
Because "the ALJ's credibility finding is supported by substantial evidence in the record, [the Court] may not engage in second-guessing." Id. at 959.
E. The Hypothetical Posed to the Vocational Expert.
Plaintiff contends that the ALJ erred "[b]y not including Dr. Wilson's opinion or Plaintiff's testimony regarding pain or side effects from medications in the hypothetical posed to the VE." Doc. 15 at 7. As explained more fully above, the ALJ properly rejected Dr. Wilson's opinion and Plaintiff's subjective symptom testimony. The ALJ's hypotheticals to the vocational expert (Tr. 190-92) were not incomplete or otherwise erroneous.
III. Conclusion.
Because the decision denying benefits as of February 15, 2006 is supported by substantial evidence and is not based on legal error, the Court will affirm the decision. See 42 U.S.C. § 405(g); Ryan, 528 F.3d at 1198.
IT IS ORDERED:
1. Defendant's decision that Plaintiff's disability ended on February 15, 2006 ( see Doc. 12, Tr. 25 ¶ 17) is affirmed.
2. The Clerk is directed to enter judgment accordingly.
DATED this 27th day of January, 2011.