Opinion
For Arthur Morales, Plaintiff: Manuel D Serpa, LEAD ATTORNEY, Law Offices of Harry J Binder and Charles E Binder PC, Orange, CA.
For Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant: Assistant U.S. Attorney LA-CV, LEAD ATTORNEY, Office of U.S. Attorney, Civil Division, Los Angeles, CA; Assistant U.S. Attorney LA-SSA, LEAD ATTORNEY, Office of the General Counsel for Social Security Adm., San Francisco, CA; Jean M Turk, LEAD ATTORNEY, SAUSA - U.S. Attorney's Office, Social Security Administration, San Francisco, CA.
MEMORANDUM OPINION AND ORDER
PATRICK J. WALSH, UNITED STATES MAGISTRATE JUDGE.
I. INTRODUCTION
This case is back before the Court following a remand in 2010 for further proceedings. Plaintiff contends this time that the Administrative Law Judge (" ALJ") erred when he found that Plaintiff's testimony was not credible and when he discounted the treating doctors' opinions. For the following reasons, the Court affirms the ALJ's decision.
II. SUMMARY OF PROCEEDINGS
Plaintiff applied for Disability Insurance Benefits in November 2005, alleging that he had been unable to work since July 23, 2004, because of low back pain, carpal tunnel syndrome, pain in his right knee, and sleep apnea. (Administrative Record (" AR") 163-65, 199.) The Agency denied the application initially and on reconsideration. (AR 118-23, 125-29.) Plaintiff then requested and was granted a hearing before an ALJ. (AR 131, 133-34.) Plaintiff appeared with counsel and testified at the hearing in January 2008. (AR 89-117.) In March 2008, the ALJ issued an unfavorable decision. (AR 7-19.) Plaintiff appealed to the Appeals Council, which denied review. (AR 1-5.) He then filed an action in the district court, seeking review of the Agency's decision. In June 2010, the Court remanded the case to the Agency for further proceedings.
Thereafter, the ALJ held three hearings and reviewed additional evidence. (AR 701-22, 723-37, 738-73.) In December 2011, he issued a second decision, again denying benefits. (AR 679-93.) Plaintiff sought review by the Appeals Council, but that request was denied. (AR 651-55.) This action followed.
III. ANALYSIS
A. The ALJ's Credibility Findings
Plaintiff testified that he had to stop working in July 2004, due to pain in his arms, hands, legs, knees, and back. (AR 99-102, 750, 764-66.) He also claimed that his diabetes and sleep apnea impacted his ability to function. (AR 106-08, 112-13, 756.) The ALJ rejected this testimony. Plaintiff argues that he erred in doing so. For the following reasons, the Court disagrees.
ALJs are tasked with judging a claimant's credibility. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). In doing so, they can rely on ordinary credibility techniques. Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). Where there is no evidence of malingering, however, an ALJ can only reject a claimant's testimony for specific, clear, and convincing reasons that are supported by substantial evidence in the record. Garrison v. Colvin, 759 F.3d 995, 1014-15 (9th Cir. 2014).
The ALJ discounted Plaintiff's testimony because he found that:
1. It was not supported by the objective medical evidence.
2. None of the doctors, except the treating doctors, found that Plaintiff was as impaired as he claimed (and the ALJ rejected the treating doctors' opinions).
3. Plaintiff's back pain markedly improved with conservative treatment.
4. Plaintiff failed to comply with recommended treatment.
5. Plaintiff's testimony that he was essentially incapacitated was undermined by his ability to perform various daily activities.
(AR 688-90.)
Plaintiff does not really contest the ALJ's finding that the objective medical evidence does not support his claims of disabling pain. He argues, instead, that this reason alone is not sufficient to support the ALJ's credibility finding. (Joint Stip. at 28-29.) Though the Court agrees that this reason alone is not enough, it is proper for the ALJ to consider it in evaluating credibility and it is supported by the record. See, e.g., Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (" While subjective pain testimony cannot be rejected on the sole ground that it is not fully corroborated by objective medical evidence, the medical evidence is still a relevant factor in determining the severity of the claimant's pain and its disabling effects.")
The second reason cited by the ALJ for questioning Plaintiff's testimony was that none of the doctors, other than the treating doctors--whose opinions he discounted--agreed that his condition was so severe. (AR 688.) Here, again, Plaintiff recognizes the validity of the ALJ's finding but argues that the treating doctors' opinions should not have been discounted. (Joint Stip. at 29.) As discussed more fully below, however, the Court finds that the treating doctors' opinions are suspect and that the ALJ rightly questioned them. Once they are eliminated, or, at least, discounted, there is little if any support from the other doctors for Plaintiff's claims of disabling pain. In fact, generally speaking, the other doctors' findings contradict his claims. For example, on February 13, 2006, Dr. Zewdu Y. Gebreyes performed what he described as a " complete physical exam" of Plaintiff, whom he characterized as a " well adult male." (AR 318.) Dr. Gebreyes found that Plaintiff was in " no apparent distress" and had " no acute problems." (AR 318.) Other than noting that Plaintiff had a history of two back surgeries, he did not record any issues with Plaintiff's back nor did he mention any problems with his wrists, legs, or arms. (AR 318.) When blood test results were available ten days later, Plaintiff returned and spoke with Dr. Gebreyes about his high blood sugar. (AR 317.) At that time, Dr. Gebreyes recorded Plaintiff's complaints of headache, excess mucous, and postnasal drip but did not report any complaints regarding his wrists, arms, legs, or back. (AR 317.)
Plaintiff seeks to minimize Dr. Gebreyes's findings. (Joint Stip. at 29.) He points out that Dr. Gebreyes was performing an annual physical and " not focused on [Plaintiff's] disabling conditions." (Joint Stip. at 29.) This argument makes no sense and is rejected. It defies reason and common sense to believe that a medical doctor would perform an annual physical on a patient who claims that he is so riddled with pain that he can barely sit, stand, or walk and overlook all of those symptoms or, at least, fail to mention them in the medical records. Further, a fair reading of the report from the examination suggests that Plaintiff was providing information during the examination and that Dr. Gebreyes was recording it and acting on it. (AR 318.) The Court presumes, as did the ALJ, that Plaintiff never complained of his alleged disabling symptoms or else the doctor would have recorded those complaints in the report of examination. This presumption is bolstered by the fact that Plaintiff returned to Dr. Gebreyes four months later seeking " disability" and complained for the first time to Dr. Gebreyes that he had work-related carpal tunnel syndrome and severe lower back pain, complaints Dr. Gebreyes duly noted in the medical chart. (AR 343.)
The ALJ's third reason for questioning Plaintiff's testimony was that his back pain markedly improved with conservative treatment, citing a chart note from February 2007. (AR 689.) Plaintiff complains that this was a selective interpretation of the medical record as evidenced by the fact that the medical records immediately before and after that date note that Plaintiff was complaining of severe pain and discomfort. (Joint Stip. at 30.) The record supports Plaintiff's argument here. Though his treating doctor noted in February 2007 that his condition had markedly improved, chart notes from before and after that date document that Plaintiff was telling this same doctor that his condition had not improved. (AR 486-89.) The ALJ's failure to take a more global view of this evidence was wrong. See, e.g., Holohan v. Massanari, 246 F.3d 1195, 1207 (9th Cir. 2001) (holding ALJ's rejection of physician's opinion was not supported by substantial evidence where ALJ selectively relied on records indicating improvement and ignored others that showed " continued, severe impairment").
Nevertheless, the record as a whole supports the ALJ's finding that Plaintiff's treatment was conservative. Despite Plaintiff's continual complaints of pain, discomfort, and immobility, his doctors and other healthcare providers repeatedly recommended that he exercise, lose weight, and take Ibuprofen when needed. (AR 407, 487, 489, 494.) The ALJ was free to consider this when evaluating Plaintiff's testimony. Tommasetti v. Astrue, 533 F.3d 1035, 1039-40 (9th Cir. 2008) (explaining ALJ may consider the fact that claimant was receiving conservative treatment when evaluating claims of disabling pain).
Plaintiff also argues that the ALJ erred when he concluded that a January 2007 MRI showed only mild degenerative disease, which Plaintiff contends amounts to an improper and flawed interpretation of the MRI. (Joint Stip. at 29.) The Court does not read the ALJ's decision that way. Rather, as the Court sees it, the ALJ found that the " MRI evidence is the only diagnostic testimony that showed anything other than mild degenerative disease." (AR 689 (emphasis added).) Thus, it appears that the ALJ was observing that the MRI suggested something more than mild degenerative disease.
The fourth reason the ALJ cited for questioning Plaintiff's testimony was that he failed to follow his prescribed treatment plan, i.e., a recommended diet and exercise plan. (AR 689-90.) Plaintiff takes exception to this finding, arguing that the ALJ was improperly relying on the fact that he had failed to lose weight, a finding this Court criticized in its prior decision. (Joint Stip. at 30-31.) The ALJ did not err here. Though he touched on the same topic that the Court scrutinized in the previous decision, he did not improperly focus on Plaintiff's failure to lose weight. (AR 689-90.) Instead, he focused on Plaintiff's failure to follow his recommended diet, which was intended to limit the amount of sugar and carbohydrates he was consuming so that he could control his diabetes. (AR 644-50.) And he focused on the doctor's recommendation that Plaintiff exercise more, which Plaintiff clearly failed to do. (AR 689, 644-50.) These same records also show that Plaintiff ignored his doctor's advice to check his blood-sugar levels daily with a finger stick so that he could maintain his insulin level. (AR 644-50.) For that reason, Plaintiff's objections to the ALJ's reasoning here are rejected. See Smolen, 80 F.3d at 1284 (explaining ALJ may rely on claimant's failure to follow prescribed course of treatment in evaluating claimant's testimony).
Finally, the ALJ questioned Plaintiff's claims of debilitating pain based on the fact that he was able to swim and use a treadmill at the gym. (AR 690.) This, again, is supported by the record (AR 407) and is a valid reason for discounting Plaintiff's testimony. Smolen, 80 F.3d at 1284. Plaintiff told his doctor that he could not stand for more than ten minutes without feeling tingling in his feet. (AR 407.) He testified that he was unable to " lean over and pick up something" off a table. (AR 752.) Yet, he had a gym membership and explained that he sometimes went to the gym to swim or walk on the treadmill. (AR 407.) The ALJ essentially found that the fact that he could swim and use the treadmill contradicted his claim that he could not bend over and pick up something off a table. (AR 690.) The ALJ did not err in reaching this conclusion.
In the end, the Court finds that, of the five reasons cited by the ALJ for questioning Plaintiff's credibility, all but part of one--that his symptoms markedly improved with conservative treatment--are supported by the record. The remaining reasons are more than enough to support the ALJ's credibility finding. See Carmickle v. Comm'r, Soc. Sec., 533 F.3d 1155, 1162-63 (9th Cir. 2008) (holding, where ALJ errs as to some of his justifications for questioning a claimant's testimony, the court must determine whether remaining reasons are substantial enough to support credibility finding). For these reasons, it is affirmed.
Though Plaintiff's May 2011 hearing testimony was focused on the 2004 and 2005 period (AR 750), he explained later in the hearing that his back pain had been unchanged up to the date of the hearing. (AR 758, 760.)
B. The Treating Doctors' Opinions
Having concluded that the ALJ did not err in finding that Plaintiff's subjective complaints were not credible, it follows that his finding that Plaintiff's treating doctors' opinions should also not be believed because they were based in large measure on Plaintiff's discredited complaints. See Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (holding ALJ may reject treating opinion largely based on claimant's self-reports that have been properly discounted). There is minimal objective support for Plaintiff's contention that he is too disabled to stand, walk, or even sit for any length of time.
Further, as the ALJ pointed out, the treating doctors' opinions are suspect because it appears that they were prepared merely as accommodations for Plaintiff. For example, following the Court's June 2010 remand of the case for further proceedings, Plaintiff' counsel provided treating doctor Richard Vanis with a check-the-box form for capturing his opinion. (AR 1085-91.) In November 2010, Dr. Vanis filled out the form and returned it to Plaintiff's counsel, who subsequently submitted it to the Agency. (AR 1085-91.) On the form, Dr. Vanis indicated that he first saw Plaintiff in January 2007 and last saw him in December 2007. (AR 1085.) Yet, despite the intervening years, Dr. Vanis opined that Plaintiff's prognosis was poor and that he was presently only able to sit for three hours and stand/walk for one. (AR 1085, 1088.) Dr. Vanis also determined that Plaintiff could never lift any weight, even zero to five pounds. (AR 1088.) As the ALJ noted in his decision, however, even assuming that Dr. Vanis's opinion that Plaintiff was disabled in November 2010 had been acceptable, it was practically irrelevant because Plaintiff's date last insured was September 30, 2007.
It appears that someone on Plaintiff's team figured out the problem with Dr. Vanis's opinion after the form was submitted to the Agency in February 2011 and sent Dr. Vanis another form, which he filled out and submitted in April 2011. (AR 1125-33.) This form was completed very much like the first one, with slight variations. For example, Dr. Vanis opined this time that Plaintiff could sit for two hours, instead of three, and could stand/walk for zero to one hours, instead of one. (AR 1128.) Significantly, however, this time Dr. Vanis changed the date of the onset of these debilitating symptoms and limitations to January 2007, nine months before the date last insured. (AR 1132.) The ALJ questioned this apparent change of heart with good reason as there was nothing in the record to support such a change.
Though Plaintiff did go to see Dr. Vanis on April 5, 2011, and underwent an MRI (AR 1145-46), nothing in those records suggests a basis for changing the onset date from November 2010 to January 2007.
And Dr. Vanis was not alone in his efforts to help Plaintiff pursue his disability claim. In April 2011, another treating doctor, Patricia Hong, also filled out a check-the-box form provided by Plaintiff's counsel. (AR 1149-56.) On this form, Dr. Hong noted that she had only seen Plaintiff once, on November 29, 2006, but was still able to opine that he had various limitations and restrictions as of an unspecified date in 2005. (AR 1149-56.)
Finally, a third treating doctor, Theodore Goldstein, provided his input on a similar form provided by Plaintiff's counsel. (AR 1163-70.) He noted that he only saw Plaintiff once, on March 29, 2011, but concluded that Plaintiff was severely limited as of December 2007. (AR 1169.)
The ALJ rightly questioned these doctors' opinions, which were short on evidence and long on advocacy. Though the Court frowns upon ALJs discounting doctors' opinions on the ground that they were procured by claimant's counsel in connection with a disability case and, therefore, are perceived as biased, the Court agrees with the ALJ here that, in an apparent effort to help Plaintiff, the doctors compromised their objectivity, which undermined their opinions. For these reasons, the ALJ's decision that the treating doctors' opinions were entitled to little if any weight is affirmed.
IV. CONCLUSION
For these reasons, the Agency's decision is affirmed and the case is dismissed with prejudice.
IT IS SO ORDERED.
JUDGMENT
In accordance with the Memorandum Opinion and Order filed herewith, IT IS HEREBY ADJUDGED that the decision of the Commissioner of the Social Security Administration is affirmed and this action is dismissed with prejudice.