Opinion
Case No. EDCV 14-2448-JPR
01-26-2016
BEVERLY A. BARAJAS, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER AFFIRMING COMMISSIONER
I. PROCEEDINGS
Plaintiff seeks review of the Commissioner's final decision denying her application for Social Security disability insurance benefits ("DIB"). The parties consented to the jurisdiction of the undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c). The matter is before the Court on the parties' Joint Stipulation, filed September 15, 2015, which the Court has taken under submission without oral argument. For the reasons stated below, the Commissioner's decision is affirmed.
II. BACKGROUND
Plaintiff was born in 1962. (Administrative Record ("AR") 130.) She obtained a GED (AR 36, 154) and worked as a kitchen helper and cafeteria counter attendant (AR 24).
On December 15, 2011, Plaintiff submitted an application for DIB, alleging that she had been unable to work since December 18, 2009, because of tendinitis and "[l]ower back, shoulder, neck, and heel problems." (AR 130, 154.) After her application was denied initially and on reconsideration, she requested a hearing before an Administrative Law Judge. (AR 14.) A hearing was held on June 25, 2013, at which Plaintiff, who was represented by counsel, testified, as did a vocational expert. (AR 30-50.) In a written decision issued August 16, 2013, the ALJ found Plaintiff not disabled. (AR 19-25.) On October 30, 2014, the Appeals Council denied Plaintiff's request for review. (AR 1.) This action followed.
III. STANDARD OF REVIEW
Under 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. See id.; Richardson v. Perales, 402 U.S. 389, 401 (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). "If the evidence can reasonably support either affirming or reversing," the reviewing court "may not substitute its judgment" for the Commissioner's. Id. 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 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 to assess whether a claimant is disabled. 20 C.F.R. § 404.1520(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).
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, the claimant is not disabled and the claim must be denied. § 404.1520(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. § 404.1520(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") to perform her past work; if so, she is not disabled and the claim must be denied. § 404.1520(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.
RFC is what a claimant can do despite existing exertional and nonexertional limitations. § 404.1545; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989).
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); Drouin, 966 F.2d at 1257. That determination comprises the fifth and final step in the sequential analysis. § 4 04.1520(a)(4)(v); 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 December 18, 2009, the alleged onset date. (AR 21.) At step two, he concluded that Plaintiff had the severe impairments of degenerative disc disease "involving the cervical spine status post fusion," "right shoulder impairment," "left knee impairment," and obesity. (Id.) He also found that "[n]o severe psychiatric impairment [was] credibly asserted or established." (Id.) At step three, the ALJ determined that Plaintiff's impairments did not meet or equal a listing. (Id.) At step four, he found that Plaintiff had the RFC to perform light work except that she could lift or carry "no more than 20 pounds occasionally and 20 pounds frequently," "sit six hours out of eight provided normal breaks," and "stand and/or walk no more than two hours out of eight." (Id.) She was limited to "no more than occasional postural activities" and "no more than occasional overhead reaching bilaterally." (Id.) She was precluded from "work involving ladders, ropes[,] scaffolds or crouching" and "work at unprotected heights or around dangerous unguarded moving machinery." (Id.) Based on the VE's testimony, the ALJ concluded that Plaintiff could not perform her past relevant work as a "combination kitchen helper/cafeteria counter attendant." (AR 24.) At step five, the ALJ found that Plaintiff could perform jobs existing in significant numbers in the national economy. (Id.) Accordingly, he found her not disabled. (AR 25.)
The ALJ made this finding in step four. (AR 21.)
V. DISCUSSION
Plaintiff claims the ALJ erred in assessing her credibility and the opinion of her treating physician's assistant. (J. Stip. at 2-3.) For the reasons discussed below, remand is not warranted.
A. The ALJ Properly Assessed Plaintiff's Credibility
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) (as amended); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985) (as amended Feb. 24, 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) (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)).
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 (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). 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).
If the claimant meets the first test, the ALJ may discredit the claimant's subjective symptom testimony only if he makes specific findings that support the conclusion. See Berry v. Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). Absent a finding or affirmative evidence of malingering, the ALJ must provide "clear and convincing" reasons for rejecting the claimant's testimony. Brown-Hunter v. Colvin, 806 F.3d 487, 492-93 (9th Cir. 2015) (as amended); Ghanim v. Colvin, 763 F.3d 1154, 1163 & n.9 (9th Cir. 2014). The ALJ may consider, among other factors, (1) ordinary techniques of credibility evaluation, such as the claimant's reputation for lying, prior inconsistent statements, and other testimony by the claimant that appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; (3) the claimant's daily activities; (4) the claimant's work record; and (5) testimony from physicians and third parties. Rounds v. Comm'r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015) (as amended); Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). 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.
The Commissioner objects to the clear-and-convincing standard but acknowledges that her argument was rejected — again — in Burrell v. Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014). (J. Stip. at 13 & n.13); see also Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (as amended) (reaffirming Burrell).
2. Relevant background
At the hearing, Plaintiff testified that she stopped working because of neck and shoulder injuries. (AR 34.) She testified that she had pain in her left and right heels, left knee, left hip, lower back, "wrist," and "upper extremities and neck and right shoulder and my right arm." (AR 38-39.) She stated that she could not walk properly because of the pain in her heels, left knee, and left hip. (AR 37.) The pain in her neck and right arm prevented her from doing "anything repetitive," and overuse of her left wrist caused pain there as well. (Id.)
Plaintiff did not allege left-knee pain in her benefits application. (See AR 154.)
Plaintiff testified that she had surgeries on her neck and left knee. (AR 34, 40.) After surgery, her neck was "much better but not good." (AR 41.) She no longer had "really bad headaches and pressure in [her] ear and [her] head from the pain." (Id.) She testified that she took "mostly" Motrin for pain and that although it didn't "ever take the pain away," it "help[ed] as much as it" could and improved her "movement." (AR 42.) Although her doctors had talked to her about surgery for her right shoulder, she was afraid to have it because she still had pain in other parts of her body. (AR 40-41.)
Plaintiff testified that on a typical day, she got up, made coffee, ate breakfast, and "kind of just lay around the house, be depressed." (AR 36.) She watched movies or the news at home while lying down and spent a few minutes on the computer to check her daughter's email or go on Facebook. (AR 44.) Plaintiff testified that she tried to "sometimes walk inside the house, back and forth just in the kitchen to the living room," but was depressed because she wasn't able to do the things she used to. (AR 36-37.) She could not sleep without medication because there was "no comfortable position." (AR 39.)
Plaintiff testified that her ability to do household chores was "minimal" and that her daughters did most of them, including folding clothes and cooking. (AR 37-38.) They also helped her with shopping, running errands, and taking care of herself. (AR 37-38, 40.) When asked how long she could stand up to cook before needing to sit down, Plaintiff stated, "maybe five minutes." (AR 37-38.) She could drive "but not long distance" because she didn't know when her neck might "lock up." (AR 37.) Plaintiff testified that she spent about an hour a week at church, although she used to be able to attend twice or more a week. (AR 39.) Although she could go to the movies with friends, she couldn't remember the last movie she saw and it was more than six months earlier. (AR 42-44.)
3. Analysis
The ALJ found that although Plaintiff's "medically determinable impairments could reasonably be expected to cause the alleged symptoms," her "statements concerning the intensity, persistence and limiting effects of these symptoms" were "not entirely credible." (AR 23.) As discussed below, the ALJ provided clear and convincing reasons for discounting Plaintiff's allegations.
The ALJ discounted Plaintiff's allegations of neck, arm, and left-knee pain because they were inconsistent with evidence showing significant improvement after her surgeries. (See AR 22 (noting "improved neck pain and complete resolution of arm pain" after surgery), 23 (noting that "range of motion of the left knee was improved subsequent to surgery").) Indeed, progress notes from after Plaintiff's May 2011 neck surgery stated that her arm pain "resolved," she had "little neck pain," and she "was overall happy with surgery." (AR 799 (June 2, 2011), 721 (June 30, 2011), 923 (Feb. 2012), 935 (Apr. 2012)); see De Guzman v. Astrue, 343 F. App'x 201, 205-06 (9th Cir. 2009) (ALJ properly discounted claimant's allegations of headaches and neck pain when "successful" cervical-spine surgery resulted in increased mobility and reduced neck pain). In November 2012, Plaintiff again reported "improved neck pain following surgery," exhibited no tenderness or spasms in her paracervical muscles or spinous processes, had only decreased sensation in her right C7 dermatome distribution, and was negative for Hoffmann's sign. (AR 1133.) Likewise, the record showed marked improvement in Plaintiff's left knee after her October 2011 surgery. In July 2012, she reported "[w]alking more" and had "better" range of motion, zero heel-height discrepancy, and no swelling, effusion, or tenderness. (AR 1080.) The ALJ was entitled to consider this objective medical evidence in assessing Plaintiff's credibility concerning her pain. See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) ("Although lack of medical evidence cannot form the sole basis for discounting pain testimony, it is a factor that the ALJ can consider in his credibility analysis."); Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008) ("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").
A dermatome is an area of skin in which sensory nerves come from a single spinal nerve root. Compressed spinal nerve roots may exhibit symptoms in their corresponding dermatomes. The C7 dermatome encompasses the middle finger. Dermatomes Anatomy, Medscape, http://emedicine.medscape.com/article/1878388-overview#showall (last updated Aug. 12, 2015).
The Hoffmann sign is a clinical test for evaluating cervical spinal-cord compression. See John A. Glaser et al., Cervical Spinal Cord Compression and the Hoffmann Sign, 21 Iowa Orthopaedic J. 49, 49 (2001), http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1888193/pdf/1555-1377v021p049.pdf.
The ALJ also found Plaintiff not credible because she had not sought or received any treatment for her alleged depression and required only mild treatment for her alleged neck, arm, and left-knee pain. (See AR 22 (noting that Plaintiff was "treated conservatively" after neck surgery), 23 (noting lack of medication and other treatment for alleged depression), 24 (noting that Plaintiff's pain was "controlled with mild analgesics").) Indeed, as the ALJ noted regarding her alleged depression, Plaintiff acknowledged to state-agency physicians that she was not taking any medication for depression and denied any history of emergency-room visits, hospitalizations, or outpatient treatment because of depression. (AR 66.) She explained that she felt depressed "sometimes because of her physical limitations." (Id.) Additionally, in her disability report, she listed only Tylenol in her list of medications and in response to a question asking if she had ever seen a doctor or received treatment at a hospital or clinic for any mental conditions, she answered, "No." (AR 156.)
And as the ALJ noted regarding her physical impairments, Plaintiff was able to treat her neck, arm, and left-knee pain with "mild analgesics" after her surgeries. (AR 24; see AR 42 (Plaintiff testifying that she took "mostly" Motrin for pain and that it improved her "movement" and "help[ed] as much as it" could), 1080 (in July 2012, doctor noting that Plaintiff needed only "[o]ccasional acetominophen [sic]" for left knee)); see De Guzman, 343 F. App'x at 204-05 (ALJ properly noted routine and conservative treatment in finding claimant not credible when neck pain after surgery was "well controlled with Tylenol"). Plaintiff also did not need an "assistive handheld device for ambulation." (AR 24; see AR 864 (few days after Oct. 27, 2011 left-knee surgery, Plaintiff was "doing well" and "ambulating with out [sic] crutches"), 183 (Plaintiff indicating in Oct. 2012 function report that she did not use crutches, walker, wheelchair, cane, or brace).)
Plaintiff argues that the ALJ was inaccurate in stating that she was able to control her pain with "mild analgesics" because she received "aggressive treatments including surgery, and injections." (J. Stip. at 11-12.) But the ALJ made that statement only after acknowledging her history of injections, neck surgery, and left-knee surgery, as well as her eligibility for right-shoulder surgery. (See AR 22-23.) And most of Plaintiff's injections occurred before her surgeries. (See, e.g., AR 303 (Nov. 2009 cervical injection), 535 (Apr. 2010 cervical injection), 327 (Dec. 2010 right paraspinal injection and orthopedic surgeon recommending neck surgery).) Aside from an injection for her left knee in February 2012 (AR 875), she did not receive any injections for her neck or left knee after her surgeries. The injections she did have were for her right shoulder. (AR 747 (June 2011), 785 (Sept. 2011), 1135 (Nov. 2012).) Thus, the ALJ was correct in finding that Plaintiff was able to control her symptoms after her left-knee and neck surgeries with mild pain medication.
Plaintiff contends that the fact that she did not use an "assistive handheld device for ambulation" was irrelevant to discounting her allegations of neck pain. (J. Stip. at 11.) While that may be true, it was certainly relevant to discrediting her testimony that she could not walk because of pain in her left knee and hip. (See AR 37.)
That Plaintiff received no treatment for her alleged depression and was able to control her neck, arm, and left-knee pain with medication after her surgeries was a clear and convincing reason for discrediting her testimony. See Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (that claimant "did not seek an aggressive treatment plan" undermined allegations of disabling impairment); id. at 1039 (ALJ may discount claimant's testimony in light of "unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment"); Ortez v. Comm'r of Soc. Sec., No. CIV S-10-2096-CMK, 2012 WL 3727136, at *6 (E.D. Cal. Aug. 24, 2012) (affirming ALJ's credibility determination based in part on "conservative treatment following surgery"); Ramirez v. Astrue, No. CV 10-04188 RZ, 2011 WL 1113973, at *2 (C.D. Cal. Mar. 25, 2011) (upholding ALJ's finding that "residual pain following [back] surgery was treated conservatively and did not prevent [claimant] from performing work"); SSR 96-7p, 1996 WL 374186, at *7 (claimant's statements "may be less credible if the level or frequency of treatment is inconsistent with the level of complaints").
In discounting Plaintiff's allegations of disabling depression and pain, the ALJ noted her daily activities. (AR 23.) Indeed, Plaintiff's testimony that on a typical day she "kind of just lay around the house, be depressed" (AR 36) was contradicted by her and her niece's statements in October 2012 function reports that she went outside daily and spent time with others by shopping, watching movies with friends, going to the casino, and attending church weekly. (AR 180-81, 189-90); see Wilson v. Comm'r, Soc. Sec. Admin., No. 6:14-cv-01326-HZ, 2015 WL 5919881, at *4 (D. Or. Oct. 8, 2015) (ALJ properly found claimant not credible when her "allegations of crippling anxiety were contradicted by her involvement at church, multiple casino trips, and her ability to shop with friends and manage her finances"). She also stated that she attended her daughters' soccer games (AR 181), took them to school, and picked them up (AR 178, 187). Further, in August 2012, Plaintiff was feeling sufficiently better to ride a bicycle occasionally. (AR 1086.) Plaintiff did not testify that her pain or depression had gotten worse lately, which could conceivably have accounted for the discrepancy between the function reports and her testimony just a few months later. That Plaintiff's allegations of depression and pain were inconsistent with her daily activities was a clear and convincing reason for discrediting them. See Molina, 674 F.3d at 1112 (ALJ may discredit claimant's testimony when "claimant engages in daily activities inconsistent with the alleged symptoms" (citing Lingenfelter, 504 F.3d at 1040)).
Plaintiff asserts that the ALJ erred in finding her not credible based on her daily activities because they did not demonstrate that she was "capable of sustaining full time employment on a consistent basis." (J. Stip. at 11.) It is true that an ALJ may discount a claimant's testimony when her daily activities indicate "capacities that are transferable to a work setting." Molina, 674 F.3d at 1113. But even when those activities "suggest some difficulty functioning, they may be grounds for discrediting the claimant's testimony to the extent that they contradict claims of a totally debilitating impairment." Id.; see also Ghanim, 7 63 F.3d at 1165 ("Engaging in daily activities that are incompatible with the severity of symptoms alleged can support an adverse credibility determination."). Here, the ALJ properly discounted Plaintiff's testimony because her socializing with family and friends was inconsistent with the severity of her alleged depression. See Valentine v. Astrue, 574 F.3d 685, 693 (9th Cir. 2009) (finding that ALJ properly rejected claimant's testimony based on inconsistency with his daily activities, noting that even though daily activities did "not suggest [claimant] could return to his old job, . . . it did suggest that his later claims about the severity of his limitations were exaggerated").
In sum, the ALJ provided clear and convincing reasons for finding Plaintiff not credible. Because those findings were supported by substantial evidence, this Court may not engage in second-guessing. See Thomas, 278 F.3d at 959. Plaintiff is not entitled to remand on this ground.
B. The ALJ Properly Assessed the Opinion of the Physician's Assistant
1. Applicable law
An opinion from a nonacceptable medical source, including physician's assistants, may be rejected for "germane" reasons. Molina, 674 F.3d at 1111; see also § 404.1513(a) ("[a]cceptable medical sources" include only licensed physicians, psychologists, optometrists, podiatrists, and speech pathologists).
2. Relevant background
Jame Lanier was a physician's assistant and worked with Dr. Darren Bergey, Plaintiff's treating orthopedic surgeon, at Bergey Spine Institute. (See, e.g., AR 954, 960, 964, 969, 974, 979, 988, 993, 1003, 1026, 1031, 1036, 1041, 1048.) Plaintiff was treated at Bergey Spine Institute from November 2009 to April 2012 (see AR 929-1058), when she was declared permanent and stationary for purposes of her state workers'-compensation case (AR 935). Seven months later, in November 2012, she returned to Dr. Bergey for treatment of a flare-up of pain. (AR 1132.)
On May 7, 2013, Lanier completed a form entitled "Medical Source Statement of Ability to do Work Related Activities (PHYSICAL)." (AR 1139-41.) He indicated a diagnosis of "C5-6 + C6-7 disc degeneration," with symptoms of "[n]eck upper back shoulder pain" and "spasm." (AR 1139.) He did not respond to a question asking, "Identify any clinical findings and signs." (Id.) Lanier opined that Plaintiff could walk half an hour "without rest or severe pain" and sit for 15 minutes or stand for 30 minutes at a time. (Id.) He opined that in an eight-hour workday, Plaintiff could sit "about 3" hours and, apparently, stand or walk "about" two or four hours. (AR 1139-40.) Lanier assessed that Plaintiff could lift or carry 10 pounds rarely and less than 10 pounds occasionally. (AR 1140.) Plaintiff could rarely perform twisting, stooping, crouching, climbing ladders, climbing stairs, balancing, or kneeling. (Id.) Lanier also indicated that Plaintiff could rarely reach in front or overhead. (AR 1141.)
Although the form provided boxes for indicating that the patient could stand or walk for "less than 2 hours," "about 2 hours, "about 4 hours," or "at least 6 hours," Lanier did not check any of them. (AR 1140.) Instead, he wrote "about" near the "about 2 hours" and "about 4 hours" boxes, and it is not clear which box he intended to indicate, if any. (Id.)
The ALJ gave "no weight" to Lanier's opinion. (AR 23.) He noted that Lanier's functional assessment "appear[ed] on a pre-printed form solicited by [Plaintiff's] representative and appear[ed] through a series of checked boxes and without any specific clinical or objective support." (Id.) The ALJ also noted that Lanier's "accommodating disabling assessment" was "inconsistent with the totality of the medical evidence of record" and was "nothing more than an egregious accommodation by the preparer to his patient." (Id.)
The ALJ referred to Lanier as "Dr. Lamar" (AR 23), likely because his signature and printed name were illegible (see AR 1141).
3. Analysis
The ALJ gave no weight to Lanier's opinion that Plaintiff could lift or carry less than 10 pounds occasionally and 10 pounds rarely and could sit three hours and stand or walk two or four hours in an eight-hour workday. (AR 23; see AR 1140.) Because Lanier was a physician's assistant, he was a nonacceptable medical source. (J. Stip. at 21); see § 404.1513(d) ("physicians' assistants" are "other sources"); SSR 06-03p, 2006 WL 2329939, at *2 (Aug. 9, 2006) ("physician assistants" are not acceptable medical sources). Thus, the ALJ needed to give only germane reasons for rejecting Lanier's opinion, see Molina, 674 F.3d at 1111, which he did.
Plaintiff notes that Lanier treated her "in conjunction with her orthopedic surgeon." (J. Stip. at 21-22.) The Ninth Circuit has held that "other sources" may qualify as acceptable medical sources if they worked under a physician's close supervision. Gomez v. Chater, 74 F.3d 967, 971 (9th Cir. 1996) (finding that ALJ properly considered nurse practitioner's opinion as opinion of supervising physician). Subsequent cases, however, have questioned whether Gomez remains good law given that the regulations on which it partly relied have since been repealed. See Molina, 674 F.3d at 1111 n.3. In any event, the Court need not address the issue because Plaintiff nonetheless concedes that the "germane" standard applies. (See J. Stip. at 22 (citing Molina for its holding that "ALJ may only discount testimony from lay witnesses if he gives reasons germane to each witness"), 23 (arguing that one of ALJ's reasons was "not germane").) Moreover, even if Lanier qualified as an acceptable medical source, the ALJ's reasons for rejecting his opinion were also specific and legitimate for the same reasons they were germane. See Carmickle, 533 F.3d at 1164 (when treating physician's opinion is contradicted by other evidence in record, ALJ must provide "specific and legitimate reasons" for discounting it).
The ALJ rejected Lanier's opinion because it was "a series of checked boxes" and lacked "specific clinical or objective support." (AR 23.) Indeed, although the form instructed Lanier to "[i]dentify any clinical findings and signs," he left the question blank. (AR 1139.) He also did not describe Plaintiff's treatment or prognosis in the space provided on the form. (Id.) That Lanier's opinion consisted mostly of checked boxes and failed to cite supporting clinical findings was a germane — and specific and legitimate — reason for rejecting it. See Molina, 674 F.3d at 1111 (holding that ALJ properly discounted physician's assistant's opinion when it "consisted primarily of a standardized, check-the-box form in which she failed to provide supporting reasoning or clinical findings, despite being instructed to do so"); Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996) (holding that ALJ permissibly rejected treating physicians' opinions because "they were check-off reports that did not contain any explanation of the bases of their conclusions"); cf. § 404.1527(c)(3) (more weight given "[t]he more a medical source presents relevant evidence" and "[t]he better an explanation" he provides to support opinion).
The ALJ gave no weight to Lanier's opinion also because it was "inconsistent with the totality of the medical evidence of record." (AR 23.) Indeed, by April 2012, when Plaintiff was declared permanent and stationary for workers'-compensation purposes, her arm pain had "resolved," she had "little neck pain," and she "was overall happy" with the results of her May 2011 neck surgery. (AR 935.) Dr. Bergey opined that Plaintiff was restricted to "[n]o repetitive motion right arm," "[l]imited use of shoulder at and above shoulder level," and "[n]o lifting greater than 20lbs," significantly less restrictive findings than Lanier's. (AR 936.) Plaintiff herself stated in her October 2012 function report that she could "lift 20 pound max," twice what Lanier said she could lift just six months later. (AR 182; see also AR 177 (in different section of function report, Plaintiff stating "No lifting over 20lbs").) Plaintiff's left knee showed similar improvement after her October 2011 surgery. By August 2012, she had improved range of motion, was "[w]alking more," had no swelling or effusion, and treated any problems with "[o]ccasional acetominophen [sic]." (AR 1080-81.) She was also able to ride a bike. (AR 1075, 1086.) All this evidence was inconsistent with Lanier's opinion that Plaintiff could not lift more than 10 pounds and could sit only 15 minutes and stand only 30 minutes at a time. Thus, the ALJ properly rejected Lanier's opinion as inconsistent with the record as a whole. See Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) ("[i]nconsistency with medical evidence" is germane reason for discounting lay opinion); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) ("an ALJ may discredit treating physicians' opinions that are conclusory, brief, and unsupported by the record as a whole"); § 404.1527(c)(4) (more weight given "the more consistent an opinion is with the record as a whole").
The ALJ also rejected Lanier's opinion because it was "nothing more than an egregious accommodation by the preparer to his patient." (AR 23.) Apart from that conclusory statement, however, the ALJ did not point to any evidence of actual impropriety. (See AR 23); cf. Lester, 81 F.3d at 832 ("The [Commissioner] may not assume that doctors routinely lie in order to help their patients collect disability benefits" but "may introduce evidence of actual improprieties . . . ."). Indeed, nothing in the record suggests that Lanier was, for example, "deliberately attempting to mislead the ALJ for the purpose of helping claimant obtain benefits." Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996). This basis for rejecting Lanier's opinion was therefore not legitimate. Cf. Ballesteros v. Astrue, No. ED CV 08-798-PLA, 2009 WL 1582926, at *7 (C.D. Cal. June 3, 2009) (finding unsupported ALJ's statement that treating physician's opinion was "no more than an egregious accommodation" to claimant because no evidence showed that he "embellished his assessment of [claimant's] limitations in order to assist her with her benefits claim"). The error was harmless, however, because the ALJ gave other, legally valid reasons for giving no weight to Lanier's opinion. See Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) (error harmless when it is "inconsequential to the ultimate nondisability determination"); see also Molina, 674 F.3d at 1115.
Plaintiff is not entitled to remand on this ground.
VI. CONCLUSION
Consistent with the foregoing, and under sentence four of 42 U.S.C. § 405(g), IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner, DENYING Plaintiff's request for remand, 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. DATED: January 26, 2016
That sentence provides: "The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." --------
JEAN ROSENBLUTH
JEAN ROSENBLUTH
U.S. Magistrate Judge