Opinion
For Stephanie Ann Seigler-Benitez, Plaintiff: Marc V Kalagian, LEAD ATTORNEY, Law Offices of Rohlfing and Kalagian LLP, Long Beach, CA.
For Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant: Assistant U.S. Attorney LA-SSA, LEAD ATTORNEY, Office of the General Counsel for Social Security Adm., San Francisco, CA; Assistant U.S. Attorney SA-CV, Jean M Turk, LEAD ATTORNEYS, Office of U.S. Attorney, Santa Ana Branch-Civil Div, Santa Ana, CA.
ORDER AFFIRMING DECISION OF COMMISSIONER
DAVID T. BRISTOW, UNITED STATES MAGISTRATE JUDGE.
Plaintiff filed a Complaint on July 8, 2014, seeking review of the Commissioner's denial of her application for Social Security Income (" SSI"). In accordance with the Magistrate Judge's Case Management Order, the parties filed a Joint Stipulation (" Jt. Stip.") on April 6, 2015. Thus, this matter now is ready for decision.
As the parties were advised in the Case Management Order, the decision in this case is being made on the basis of the pleadings, the Administrative Record (" AR"), and the Joint Stipulation filed by the parties. In accordance with Rule 12(c) of the Federal Rules of Civil Procedure, the Court has determined which party is entitled to judgment under the standards set forth in 42 U.S.C. § 405(g).
DISPUTED ISSUES
1. Whether the Administrative Law Judge (" ALJ") properly assessed plaintiff's residual functional capacity (" RFC"). (Jt. Stip. 4-10.)
2. Whether the ALJ properly evaluated plaintiff's credibility. (Jt. Stip. 10-22.)
DISCUSSION
I. Reversal is not warranted based on the ALJ's RFC assessment .
In Disputed Issue One, plaintiff contends that the " ALJ gave very little weight to [the opinion of consultative examiner and internist John S. Godes, M.D. (" Dr. Godes")]" but relied on no other opinion in formulating her RFC determination. (Jt. Stip. 5.) As such, plaintiff argues that " the ALJ's RFC assessment is nothing more than a lay medical opinion." (Jt. Stip. 5-6.)
A district court must uphold an ALJ's RFC assessment when the ALJ has applied the proper legal standard and substantial evidence in the record as a whole supports the decision. Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). The ALJ must consider all the medical evidence in the record and " explain in [the] decision the weight given to . . . [the] opinions from treating sources, nontreating sources, and other nonexamining sources[.]" 20 C.F.R. § § 404.1527(e)(2)(ii), 416.927(e)(2)(ii); see also 20 C.F.R. § § 404.1545(a)(1) (" We will assess your [RFC] based on all the relevant evidence in your case record."), 416.945(a)(1) (same). In making an RFC determination, the ALJ may consider those limitations for which there is support in the record and need not consider properly rejected evidence or subjective complaints. See Bayliss, 427 F.3d at 1217 (upholding ALJ's RFC determination because " the ALJ took into account those limitations for which there was record support that did not depend on [claimant's] subjective complaints"); Batson v. Comm'r of Soc. Sec., 359 F.3d 1190, 1197 (9th Cir. 2004) (ALJ not required to incorporate into RFC any findings from treating physician opinions that were " permissibly discounted"). The Court must consider the ALJ's decision in the context of " the entire record as a whole, " and if the " evidence is susceptible to more than one rational interpretation, the ALJ's decision should be upheld." Ryan v. Comm'r of Social Sec. Admin., 528 F.3d 1194, 1198 (9th Cir. 2008) (internal quotations and citation omitted).
On May 13, 2009, plaintiff underwent microdiscectomy and foraminotomy surgery for a left-sided L4-L5 herniated disk in her back. (AR 816-18.)
On October 5, 2011, plaintiff presented with acute low back pain at the emergency room, and an MRI was performed. (AR 866-71.) Emergency room physicians prescribed plaintiff Flexeril, Vicodin, and Prednisone and discharged her home in stable condition. (AR 866.)
Flexeril is a muscle relaxant. Vicodin is a pain killer and contains a combination of acetaminophen and hydrocodone. Prednisone is a corticosteriod and is used as an anti-inflammatory medication. See www.drugs.com.
On January 4, 2012, Dr. Godes performed a complete internal medicine evaluation of plaintiff. (AR 850-55.) After a physical examination of plaintiff, Dr. Godes described plaintiff as a " well-nourished female in no acute distress, " and stated, she " gets in and out of the chair without difficulty." (AR 851.) Dr. Godes found " tenderness of the lower lumbar spine and paravertebral areas" and noted plaintiff's " [s]traight leg raising test is to 30 degrees, bilaterally, and is positive, producing sciatic pain." (AR 853.) He diagnosed plaintiff with lumbar discogenic disease with radicular symptoms and found plaintiff is capable of a full range of light work; specifically, that she " can lift 20 pounds occasionally and 10 pounds frequently, " " is able to stand or walk for 6-hours of an 8-hour workday, " and " is able to sit for 6-hours of an 8-hour workday." (AR 854.)
On October 10, 2012, Chiwai E. Chan, D.O. (" Dr. Chan") at the Orange County Pain Center treated plaintiff for low back and left leg pain. (AR 1046-48.) On November 2, 2012, Dr. Chan administered epidural steroid injections for plaintiff's left L4 and L5 radiculopathies. (AR 1044.)
On January 24, 2013, neurological and spine surgeon Tien T. Nguyen, M.D. (" Dr. Nguyen") treated plaintiff for her low back pain. (AR 1050-51.) On examination, Dr. Nguyen noted that " there is a lot of tenderness" over her " back incision" and her " sensory is decreased in the lateral aspect of the thigh, legs and foot." (AR 1050.) Dr. Nguyen indicated that plaintiff " has negative straight leg raise testing." (Id.)
In her March 22, 2013 opinion, the ALJ found plaintiff retained the RFC to perform a limited range of sedentary work. (AR 30, AR 35.) In doing so, she accorded " little weight" to Dr. Godes opinion that plaintiff should be restricted to an unlimited range of light work because " a full review of the medical evidence of record shows [plaintiff] requires additional limitations in her lifting and carrying capacity and that she is no longer capable of standing and walking up to 6 hours a day." (AR 32.)
The Court concludes the ALJ did not err in formulating an RFC for sedentary work.
Here, Dr. Godes's conclusion that plaintiff is capable of performing light work supports the ALJ's RFC determination. Indeed, Dr. Godes's examination revealed normal findings overall. For example, Dr. Godes found plaintiff's hips, knees, and ankles had normal ranges of motion and no tenderness, her motor strength was normal, her gait was normal, and she was able to get in and out of her chair without difficulty. (AR 851-54.) Although the ALJ gave little weight to Dr. Godes's opinion that plaintiff is capable of performing light work, the doctor's examination findings nevertheless lend support to the ALJ's determination that plaintiff could perform a limited range of sedentary work. See, e.g., Gonzales v. Comm'r of Soc. Sec. Admin., 2015 WL 685347, at *7 (C.D. Cal. Feb. 18, 2015) (determining that despite ALJ having assigned little weight to consultative examiner's opinion that claimant had no functional limitations, consultative examiner's findings nevertheless supported ALJ's determination that plaintiff could perform a range of medium work).
Plaintiff argues that the " ALJ's RFC assessment is nothing more than a lay medical opinion" and " [s]uch an opinion cannot be substantial evidence to support the ALJ's RFC finding." (Jt. Stip. 5-6.) It is true that an ALJ may not substitute her 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"). But here, the ALJ did not improperly substitute her own lay opinion for any medical opinion. Rather, she carefully analyzed the medical opinions, treatment records, and plaintiff's own testimony in formulating an RFC. The ALJ therefore acted within her 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 [RFC]."). Indeed, no other medical source has ever opined that plaintiff had more significant physical limitations than those reflected in the RFC. (See generally AR 1-1097.)
Additionally, plaintiff maintains that the ALJ " had an affirmative duty to recontact Dr. Nguyen to obtain an opinion regarding her limitations, " " especially since plaintiff " was not represented at the hearing." (Jt. Stip. 6, Jt Stip. 10.) The Court does not agree. An ALJ's duty to augment an existing record is triggered " only when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence." Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001) (as amended) (citation omitted). While " the ALJ must be 'especially diligent' when the claimant is unrepresented, " as plaintiff was here, Dr. Nguyen's one time treatment note, dated January 24, 2013, did not create an ambiguity such that the ALJ's duty to recontact him was triggered. (AR 1050-51); McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011) (as amended) (citing Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001)). Similar to Dr. Godes's relatively benign findings, Dr. Nguyen reported plaintiff suffered from tenderness in her back, but summarized that her MRI presented " no significant nerve compression" at the L4-L5 level. (AR 1050.)
Dr. Nguyen's treatment notes also arguably showed plaintiff improved since Dr. Godes's examination. Dr. Nguyen found plaintiff had " negative straight leg raise testing" where Dr. Godes had determined plaintiff had a positive straight leg raising test producing sciatic pain. (Compare AR 1050 with AR 853.) What's more, plaintiff received only conservative treatment from Dr. Nguyen for her allegedly totally disabling back impairment, which also tends to support the ALJ's RFC assessment. (AR 1051 (Dr. Nguyen ordering CAT scan and plaintiff back for an appointment " in three months").)
Thus, Disputed Issue One does not warrant reversal of the Commissioner's decision.
II. Reversal is not warranted based on the ALJ's assessment of plaintiff's credibility .
Plaintiff contends that " the ALJ fails to articulate clear and convincing reasons supported by substantial evidence" for finding plaintiff not credible. (Jt. Stip. 13.)
Where the claimant has produced objective medical evidence of an impairment or impairments which could reasonably be expected to produce some degree of pain and/or other symptoms, and the record is devoid of any affirmative evidence of malingering, the ALJ may reject the claimant's testimony regarding the severity of the claimant's pain and/or other symptoms only if the ALJ makes specific findings stating clear and convincing reasons for doing so. See Smolen v. Chater, 80 F.3d 1273, 1281-82 (9th Cir. 1996); Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993); Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir. 1991) (en banc); see also Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). The ALJ " must identify what testimony is not credible and what evidence undermines the claimant's complaints." Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995) (as amended); see also Dodrill, 12 F.3d at 918. Further, a credibility finding must be " sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit [the] claimant's testimony." Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002). Factors that may be considered include: (1) The claimant's reputation for truthfulness; (2) inconsistencies in testimony or between testimony and conduct; (3) the claimant's daily activities; (4) an unexplained, or inadequately explained, failure to seek treatment or follow a prescribed course of treatment; and (5) testimony from physicians concerning the nature, severity, and effect of the symptoms of which the claimant complains. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989); see also Thomas, 278 F.3d at 958-59.
On November 9, 2011, plaintiff completed a Pain Questionnaire form. (AR 286-88.) In the form, plaintiff indicated that she suffers from low back and left leg pain, which began in " mid-2007." (AR 286.) Plaintiff reported that she takes Advil and medical marijuana for the pain. (Id.) In terms of physical ability, plaintiff described she is " able to walk 200 [feet] outside [her] home." (AR 288.)
On the same date, plaintiff also completed an Adult Function Report form. (AR 289-96.) In the form, plaintiff stated that dressing herself " takes time, " and she requires " someone home to make sure" she does not fall when she is bathing. (AR 290.) Plaintiff reported that she travels by " rid[ing] in a car" and is also able to drive. (AR 292.) Plaintiff stated that she is able to shop for groceries twice a month with " help, " but does not otherwise " do any chores inside or outside" her home. (AR 291-92.)
At an administrative hearing, held on September 20, 2012, plaintiff testified that she began suffering from back problems in 2001 or 2002. (AR 53, AR 64.) She stated that she became unable to work in 2007 due to her back impairment. (Id.) Plaintiff further indicated that she has a " history of adhesions" in her abdomen. (AR 66-67.)
At an administrative hearing held on February 7, 2013, plaintiff testified that she takes morphine for pain which causes her to be " a little stupid." (AR 79.) Plaintiff stated that she " [r]arely" drives because she does not have a " full range of motion, " has a " specific group of friends" with " heated seat[s]" that drive her, and " won't go anywhere in a car if the seat is not heated." (AR 92.)
In her decision, the ALJ rejected plaintiff's credibility based on the following three grounds: (1) The " significant gap in her treatment history"; (2) " the consistency of her allegations about other impairments with her treatment history"; and (3) plaintiff's inconsistent statements. (AR 27, AR 32-33.)
Both plaintiff and defendant argue that the ALJ discounted plaintiff's credibility based on her poor work history. (See Jt. Stip. 18, Jt. Stip. 21.) However, the parties are mistaken. The ALJ found that plaintiff's " allegations are bolstered by her work history." (AR 33 (emphasis added).)
These were clear and convincing reasons to reject plaintiff's subjective symptom testimony.
First, the ALJ properly found that the gaps in plaintiff's treatment history detracted from her credibility. (AR 32.) Failure to seek treatment is a clear and convincing reason for discounting plaintiff's statements. Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007). For example, the ALJ highlighted that " the last treatment note in 2009 before an almost two year gap in her treatment notes was a follow-up to her May 2009 lumbar spine surgery that notes she is doing extremely well, that she is happ[y] with the surgery, and that she has excellent strength and sensation throughout her bilateral lower extremities." (AR 32-33; see also AR 849 (treatment note, dated June 24, 2009, indicating that " [o]n exam, [plaintiff] has excellent strength and sensation throughout in her bilateral lower extremities" and her " incision is well healed").) The ALJ then elaborated that " there is no evidence of additional complaints of low back pain until mid to late 2011." (AR 33; see also AR 878 (treatment note, dated August 13, 2011, indicating plaintiff has history of chronic back pain due to herniated disc).)
Plaintiff contends that " this is not a clear and convincing reason for discounting her complaints" because " the record . . . reflects regular and consistent treatment since the filing of her SSI application on September 29, 2011." (Jt. Stip. 14.) The Court is not persuaded. The ALJ discounted plaintiff's credibility because she alleged disability since 2007 due to her back problems. Accordingly, that plaintiff only received intermittent treatment for her back problems after 2007 is relevant in determining whether plaintiff's allegations are trustworthy. Moreover, the Court notes that, even after 2011, plaintiff visited the emergency room on numerous occasions, but a majority of those treatment notes do not relate to plaintiff's back impairment. (See, e.g., AR 900 (emergency room treatment note, dated March 8, 2012, indicating plaintiff complained of pelvic pain), AR 933 (emergency room treatment note, dated January 27, 2012, indicating plaintiff complained of urinary tract infection), AR 956 (emergency room treatment note, dated June 7, 2011, indicating plaintiff complained of feeling agitated and anxious, and experiencing a panic attack), AR 967 (emergency room treatment note, dated May 23, 2011, indicating plaintiff complained of swelling in her right hand), AR 983 (emergency room treatment note, dated May 15, 2011, indicating plaintiff " punched a cabinet"), AR 999 (emergency room treatment note, dated April 30, 2011, indicating plaintiff was " cleaning oven and smashed hand").)
Plaintiff also argues that the ALJ should have questioned plaintiff " for reasons for the gaps in treatment" because " an ALJ may not reject symptom testimony where a claimant has a 'good reason' for not seeking treatment." (Jt. Stip. 20.) However, as stated above, an ALJ's duty to develop an existing record is triggered " only when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence." Mayes, 276 F.3d at 459-60. Here, the evidence was not ambiguous, nor was the record inadequate. Instead, the record revealed that plaintiff likely failed to seek further treatment between 2009 and 2011 because none was needed. (See AR 849 (treatment note, dated June 24, 2009, indicating plaintiff responded well to her left-sided L4-5 discectomy).) In any event, despite her objections, plaintiff offers no reason for her gaps in treatment even at this juncture. (See generally Jt. Stip. 1-24.)
Second, the ALJ discounted plaintiff's credibility because the objective medical evidence failed to support her claims of suffering from disabling pain based on her other impairments, such as " adhesions" in her abdomen. (See AR 33 (ALJ finding plaintiff " alleges she suffers from other impairments that the objective medical evidence of record shows [are] not severe medically determinable impairments"); see also AR 27 (ALJ noting plaintiff's " complaints of acute abdominal pain are not constant and are not connected to other more significant impairments").) For example, the ALJ noted that plaintiff complained of " acute abdominal pain, " which plaintiff attributed to " adhesions." (AR 27; see AR 67 (plaintiff testifying, " I have adhesions, a history of adhesions . .., I believe, they're still there" and explaining that her doctors are " sending [her] to a general surgeon").) However, plaintiff's abdominal pain appeared to relate to non-severe impairments, such as a urinary tract infection, and an ovarian cyst, which subsequently decreased in size. (AR 27; see, e.g., AR 872 (treatment note, dated August 27, 2012, indicating that plaintiff " had . . . fibroids in 2005, " had a " left ovarian cystadenoma adherent to her colon in 2006, " and reporting her " [p]elvic exam is unremarkable"), AR 918 (CAT scan of plaintiff's abdomen and pelvis, dated March 8, 2012, concluding that there is " [n]o evidence of acute intra-abdominal abnormality, " and " [i]nterval decrease in size of prior right ovarian cyst"), AR 933-34 (treatment note, dated January 27, 2012, indicating plaintiff suffering from urinary tract infection for three weeks and right ovarian cyst, but noting plaintiff's condition was improved and she refused pain medication), AR 945 (pelvic ultrasound, dated January 27, 2012, indicating " 2 1 cm right ovarian cyst").)
Third, the ALJ properly noted that plaintiff made inconsistent statements regarding her ability for personal care. (AR 27 (ALJ stating that plaintiff " indicated in her function report that she has difficulties with all of her personal hygiene activities, " but at " the consultative psychiatric examination, [she] indicated that she is capable of self-dressing, self-bathing, and self-personal hygiene")); see Smolen, 80 F.3d at 1284 (in assessing credibility, ALJ may consider " ordinary techniques of credibility evaluation, " such as prior inconsistent statements). Substantial evidence supports the ALJ's conclusion. In her Adult Function Report, plaintiff reported that she requires assistance bathing " to make sure [she does not] fall" and also stated that dressing herself " takes time." (AR 290.) In contrast, at a complete psychiatric evaluation, held on January 13, 2012, plaintiff stated that she is able to " take[] care of self-dressing, self-bathing, and personal hygiene" and did not indicate any difficulties in performing her personal care. (AR 860; compare AR 860 (at psychiatric evaluation, plaintiff indicating she " gets rides" for transportation) with AR 850 (at internal medicine evaluation, Dr. Godes reporting plaintiff " drove to the appointment today"); see also AR 288 (plaintiff stating that she " is able to walk 200 [feet]" maximum and is unable to stand for any length of time), AR 291 (plaintiff stating she does not " do any chores inside or outside" her home), AR 999 (emergency room treatment note, dated April 30, 2011, indicating plaintiff was " cleaning oven" when she injured her hand), AR 1087 (treatment note, dated December 6, 2012, indicating plaintiff " walks daily 40-60 min").)
Thus, Disputed Issue Two does not warrant reversal of the Commissioner's decision.
ORDER
IT IS THEREFORE ORDERED that Judgment be entered affirming the decision of the Commissioner and dismissing this action with prejudice.
JUDGMENT
In accordance with the Order Affirming Decision of Commissioner filed herewith, IT IS HEREBY ADJUDGED that the decision of the Commissioner of Social Security is affirmed and this action is dismissed with prejudice.