Opinion
For Ryan K Bray, Plaintiff: Bill LaTour, LEAD ATTORNEY, Bill LaTour Law Offices, Colton, CA.
For Carolyn W Colvin, Commissioner of Social Security, Defendant: Ann L Maley, LEAD ATTORNEY, Office of the U.S. Attorney, Social Security Administration, San Francisco, CA; 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, LEAD ATTORNEY, 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 (" Complaint") on May 29, 2014, seeking review of the Commissioner's denial of his application for Disability Insurance and Social Security Income. In accordance with the Magistrate Judge's Case Management Order, the parties filed a Joint Stipulation (" Jt. Stip.") on January 29, 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") provided clear and convincing reasons for determining that plaintiff's testimony was not credible. (Jt. Stip. 3-9.)
2. Whether the ALJ should have recontacted plaintiff's treating source(s) to clarify noted discrepancies and fully develop the record. (Jt. Stip. 9-10.)
3. Whether the ALJ included non-exertional and exertional limitations in the Residual Functional Capacity (" RFC") determination based on plaintiff's allegation of pain. (Jt. Stip. 10-12.)
DISCUSSION
I. Reversal is not warranted based on the ALJ's determination that plaintiff's testimony was not credible (Disputed Issue Nos. 1 and 3) .
In Disputed Issue One, plaintiff argues that " the ALJ determined that [p]laintiff had severe impairments of 'left hip pain status posts hemiarthroplasty; and alcohol-induced seizure disorders.'" (Jt. Stip. 5.) Plaintiff further argues that " the ALJ did find 'evidence of an underlying impairment; ' therefore, she could 'not discredit the [plaintiff's] testimony as to the severity of symptoms merely because they are unsupported by objective evidence, ' [citation omitted], at least absent 'clear and convincing reason[s] for rejecting it.'" (Id.)
In Disputed Issue Three, plaintiff argues that he " consistently testified that his hip pain makes it difficult for him to sit and walk for extended period [AR 28] and that since his hip surgery in 2004 he has suffered 'unbearable' pain 'even when sitting.' [AR 27.]." (Jt. Stip. 11.) Plaintiff further argues that " [u]nless the ALJ can provide clear and convincing reasons not to credit [p]laintiff's testimony (citation omitted), the ALJ would need to add these restrictions into the residual functional capacity." (Id.)
As these two disputed issues both challenge the ALJ's determination discrediting the plaintiff's testimony regarding his subjective complaints of pain, the Court considers them together.
At an administrative hearing, held on October 4, 2012, plaintiff testified that he had hip replacement surgery in 2004. (AR 61.) Plaintiff ceased working in 2010 because the pain in his left hip became " unbearable." (AR 61.) Plaintiff's occupation as a grounds maintenance worker required him to, inter alia, move furniture, dig holes and repair irrigation, but such duties became " too intense" for his hip condition, and he sought further medical treatment in 2007 and 2009 before retiring in 2010. (AR 61-62.)
Plaintiff testified that his hip pain can occur both when he is standing and sitting, which is why he did not think he could continue working, even in a less strenuous job. (AR 62.) Plaintiff walked with the use of a cane at the hearing, and testified that a physical therapist taught him how to correctly use it. (AR 64.) He testified that he started using the cane after his surgery in 2004, but did not need it once he initially returned to work, and only started using it again when he started experiencing pain in 2007. (AR 67.) He currently uses the cane when he is outdoors to maintain his balance. (AR 65.) Plaintiff also testified that he suffers from seizures (AR 65), but that they are controlled by medication. (AR 66.) He testified that he previously suffered from alcohol addiction, but that he received treatment for such. (AR 66-67.) With regard to his hip pain, plaintiff testified that he changes positions in order to alleviate the pain, and that he may have to lie down to mitigate it. (AR 63.) If the pain becomes too severe, he will take Ibuprofen - 800 milligrams, but he does not like to take the medication because of the potential harm to his liver, so he takes it only every two or three days. (Id.) Plaintiff testified that his daily activities are mostly indoor, and that he sits and watches television. (AR 64.) He prepares his own food, as he is hypoglycemic, and does not eat out. (Id.) He cleans his own home, but not as often as he used to. (Id.) He is unable to drive due to his seizures, and uses public transportation. (AR 60, 66.) A vocational expert, Alan Ey (" Mr. Ey"), also testified at the hearing. Mr. Ey testified in response to a hypothetical question from the ALJ that the plaintiff would be precluded from engaging in his past occupation due to the abilities presented, but that jobs existed, both locally and nationally, with regard to the limitations presented. (AR 70-72.)
In his ensuing decision, the ALJ determined that plaintiff's " statements concerning the intensity, persistence and limiting effects of [his] symptoms are not credible to the extent they are inconsistent with [the ALJ's] residual functional capacity assessment." (AR 28.)
The Court concludes the ALJ provided legally sufficient reasons for rejecting the alleged severity of plaintiff's subjective complaints.
First, the ALJ determined that the objective medical evidence does not support the plaintiff's alleged degree of disability. (AR 28-29.) A lack of objective evidence supporting plaintiff's symptoms cannot be the sole reason for rejecting plaintiff's testimony. Rollins v. Massanari, 261 F.3d 853, 856-57 (9th Cir. 2001). However, it can be one of several factors used in evaluating the credibility of plaintiff's subjective complaints. Id. In the instant action, the ALJ properly found that the objective evidence did not " fully support [plaintiff's] statements" regarding his hip pain and lack of mobility. (AR 28.) The ALJ noted that his physical examinations were " typically largely normal." (AR 28.) The ALJ cited to the report of Haleh Safavi, M.D., (" Dr. Safavi") dated June 24, 2011, wherein Dr. Safavi noted that plaintiff walked with a normal gait and did not use an assistive device (AR 228), and that his left hip had " an acceptable range of motion and minimal pain in full range of motion." (AR 229.) The ALJ also noted that only one of his medical providers observed his use of a cane (AR 28 (citing to AR 180-86, 226-32, 244-90, and 291-312); (see also AR 252 (treatment note of Bradly S. Waker, M.D., observing plaintiff's use of a cane and mild limp on 10/28/11).)
Additionally, the ALJ noted that plaintiff's complaints of pain to his medical providers presented a stark contrast to his testimony at the hearing that his hip pain was " unbearable." (AR 29.) The record supports this conclusion. For example, in Dr. Daniel T. Stein, M.D.'s (" Dr. Stein") report of July 10, 2009, plaintiff complained of left hip pain, but the report also noted plaintiff was taking no medication for pain, had no difficulty walking, and was proscribed conservative treatment (AR 177-78). Plaintiff described the pain to Dr. Safavi in his report of July 24, 2011, as " occasional sharp pain" (AR 226); in a note from an office visit on February 13, 2012, with Nurse Deborah A. Binning (" Nurse Binning"), nurse practioner, plaintiff described his pain as " 0" on a scale of 1 - to - 10 (AR 303); and at a January 30, 2012 visit with Nurse Binning, described his pain level at a " 3" on a scale of 0 - to - 10 (AR 305). In an office visit note dated April 22, 2011 with Angel J. Yap, M.D. (" Dr. Yap"), plaintiff described his pain as " intermittent." (AR 318.)
The ALJ also noted plaintiff's relatively conservative treatment regarding his hip pain, even accounting for periods where he lacked insurance (AR 28); see Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (as amended) (ALJ properly considered, as part of credibility evaluation, treating physician's failure to prescribe, and claimant's failure to request, medical treatment commensurate with the " supposedly excruciating" pain alleged, and the " minimal, conservative treatment") (citation omitted); Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989) (ALJ permissibly considered discrepancies between the claimant's allegations of " persistent and increasingly severe pain" and the nature and extent of treatment obtained). The ALJ specifically noted that none of his healthcare providers have prescribed - or recommended - physical therapy or other treatment for his hip pain. (AR 29.)
Second, the ALJ highlighted plaintiff's daily activities as being inconsistent with his testimony regarding his stated level of hip pain. (See AR 29 (ALJ noting " the [plaintiff] is able to care for his personal needs, take public transportation, cook, grocery shop, do chores around the house, and exercise three times per week").) This reason is supported by substantial evidence. At the administrative hearing, plaintiff testified that he uses public transportation, as he does not have a driver's license. (AR 60.) He testified that he is indoors most of the time, but that he does his own shopping (although it causes him pain). (AR 64.) He prepares all his own meals, since he is hypoglycemic, and does not eat out. (AR 64.) He is able to do light housekeeping, but cannot move furniture. (AR 64.) In his statements to medical providers, plaintiff did not indicate any significant limitations on his daily activities due to his hip pain. (See, e.g., AR 177 (treatment note of Dr. Stein dated July 10, 2009 (" the patient can walk miles. He uses no ambulatory aids.")) AR 293 (treatment note of Nurse Binning dated April 18, 2012 (" exercises 3-4 times a week" " exercise includes walking")).)
Thus, Disputed Issues One and Three do not warrant reversal.
II. Reversal is not warranted based on the ALJ's alleged failure to fully and fairly develop the record .
In Disputed Issue Two, plaintiff contends that the ALJ had a duty to further develop the record regarding discrepancies between the medical records and plaintiff's testimony. (Jt. Stip at 9.) Plaintiff asserts that, upon identifying these discrepancies discussed by the Court, supra, the ALJ had a duty to contact the medical providers to resolve these discrepancies. (Id.)
It is well-established that the ALJ has a special duty to fully and fairly develop the record and to assure that the claimant's interests are considered, and that this special duty exists even when the claimant is represented by counsel. See Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983). " An ALJ's duty to develop the record further is triggered . . . when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence." See Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001).
Here, the Court finds that the ALJ's duty to further develop the record was not triggered because there is no basis for concluding that the record herein was either ambiguous or inadequate for purposes of evaluating the evidence.
Accordingly, for the reasons stated by the Commissioner (see Jt. Stip at 9-10), the Court finds that reversal is not warranted based on the ALJ's alleged failure to fully and fairly develop the record.
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.