Opinion
CASE NO. 14-cv-05036 JRC
07-21-2014
DENNIS SCHULER II, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.
ORDER ON PLAINTIFF'S
COMPLAINT
This Court has jurisdiction pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73 and Local Magistrate Judge Rule MJR 13 (see also Notice of Initial Assignment to a U.S. Magistrate Judge and Consent Form, ECF No. 5; Consent to Proceed Before a United States Magistrate Judge, ECF No. 8). This matter has been fully briefed (see ECF Nos. 13, 14, 15).
After considering and reviewing the record, the Court finds that the ALJ provided legally sufficient reasons for rejecting the opinion of plaintiff's treating rheumatologist, by finding that it is not consistent with his own treatment records and not consistent with other substantial evidence in the medical record which showed plaintiff engaging actively in gardening, riding bikes and having normal physical exams. The ALJ rejected plaintiff's allegations in part by finding that plaintiff overused his pain medication, despite being admonished not to do so, and by finding that plaintiff's allegations were inconsistent with his own self-reported statement in his treatment record, as well as being inconsistent with the medical evidence.
Therefore, this matter is affirmed pursuant to sentence four of 42 U.S.C. § 405(g).
BACKGROUND
Plaintiff, DENNIS SCHULER, II, was born in 1963 and was 47 years old on the amended alleged date of disability onset of May 1, 2010 (see Tr. 34-35, 116-119). Plaintiff did not complete high school, but did get his GED (Tr. 37). Plaintiff raced motocross and a little car racing (Tr. 39). He did some machinist work, but had another motorcycle/motocross accident "that was the onset and the start of all this" (Tr. 50-51).
According to the ALJ, plaintiff has at least "severe impairments related to anxiety, cognitive disorder not otherwise specified, inflammatory arthritis of the lower extremities, right knee injury, and chronic pain syndrome (20 CFR 416.920(c))" (Tr. 12).
At the time of the hearing, plaintiff was living with his girlfriend in his mother's rental house (Tr. 37-38).
PROCEDURAL HISTORY
Plaintiff's application for Supplemental Security Income ("SSI") benefits pursuant to 42 U.S.C. § 1382(a) (Title XVI) of the Social Security Act was denied initially and following reconsideration (see Tr. 57, 58, 59-62, 66-73). Plaintiff's requested hearing was held before Administrative Law Judge Richard A. Say ("the ALJ") on August 7, 2012 (see Tr. 31-56). On August 17, 2012, the ALJ issued a written decision in which the ALJ concluded that plaintiff was not disabled pursuant to the Social Security Act (see Tr.7-23).
In plaintiff's Opening Brief, plaintiff raises the following issues: (1) Did the ALJ commit reversible error by rejecting Dr. Sager's opinion; (2) Did the ALJ commit reversible error by finding plaintiff only partially credible; (3) Did the ALJ commit reversible error by failing to consider Dr. Donahue's assessment of plaintiff's functional limitations even though Dr. Donahue's opinion was given significant weight; and (4) Did the ALJ commit reversible error by erroneously rejecting the opinions of James Patterson (see ECF No. 13, pp. 8-9).
STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of social security benefits if the ALJ's findings are based on legal error or not supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)).
DISCUSSION
(1) Did the ALJ commit reversible error in his review of the medical evidence?
Plaintiff argues that the ALJ failed to provide adequate rationale for failing to credit fully the opinions of his treating doctor, rheumatologist, Dr. D.S. Sager (see Opening Brief, ECF No. 13, pp. 9-12; see also Tr. 344-45). The ALJ rejected Dr. Sager's opinion by finding that it is not consistent with Dr. Sager's own treatment records and also by finding that it is not consistent with the notes from Columbia pain management "which showed the claimant actively engaging in gardening, riding bikes with his grandkids, and having normal physical exams" (see Tr. 17).
The ALJ is responsible for determining credibility and resolving ambiguities and conflicts in the medical evidence. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (citing Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). It is not the job of the court to reweigh the evidence: If the evidence "is susceptible to more than one rational interpretation," including one that supports the decision of the Commissioner, the Commissioner's conclusion "must be upheld." Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citing Morgan, supra, 169 F.3d at 599, 601). The ALJ may "draw inferences logically flowing from the evidence." Sample, supra, 694 F.2d at 642 (citing Beane v. Richardson, 457 F.2d 758 (9th Cir. 1972); Wade v. Harris, 509 F. Supp. 19, 20 (N.D. Cal. 1980)). However, an ALJ may not speculate. See SSR 86-8, 1986 SSR LEXIS 15 at *22.
"A treating physician's medical opinion as to the nature and severity of an individual's impairment must be given controlling weight if that opinion is well-supported and not inconsistent with the other substantial evidence in the case record." Edlund v. Massanari, 2001 Cal. Daily Op. Srvc. 6849, 2001 U.S. App. LEXIS 17960 at *14 (9th Cir. 2001) (citing SSR 96-2p, 1996 SSR LEXIS 9); see also Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). When a treating or examining physician's opinion is contradicted, that opinion can be rejected "for specific and legitimate reasons that are supported by substantial evidence in the record." Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1996) (citing Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995); Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). The ALJ can accomplish this by "setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings." Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citingMagallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)).
a. Dr. D.S. Sager, M.D., treating rheumatologist
Dr. Sager was plaintiff's treating rheumatologist and submitted an opinion that plaintiff needed to lie down for one hour, 2 to 4 times a day, and would miss four or more days of work per month (see Tr. 344-45). The ALJ gave Dr. Sager's opinion little weight (see Tr. 17). The first reason provided by the ALJ for his failure to credit fully the opinions of Dr. Sager is that "Dr. Sager's opinion is granted little weight as it is not consistent with his treatment records which showed only minor effusion, the use of 'extreme terms' by the claimant in describing his pain, and the claimant tolerating passive joint movement" (see id., citing Exhibit 11F). As discussed below, this finding is based on substantial evidence in the record as a whole.
As noted by the ALJ, in July 2010, Dr. Sager's treatment record reveals that plaintiff recently had presented to the emergency room in May with described right knee effusion, and Dr. Sager indicates that plaintiff "uses extreme terms in describing findings, pain, difficulty with function" (see Tr. 317-18). Dr. Sager also indicates that his physical examination of plaintiff indicated that plaintiff "has a small right knee effusion" (see Tr. 317). Dr. Sager opines that the "right knee may be mildly warm but there is no erythema [and] he tolerates passive joint motion" (see id.). However, Dr. Sager noted erythema and diffuse, but notable, swelling in the feet (see Tr. 317-18). In addition, on September 30, 2010, Dr. Sager's treatment notes indicate that plaintiff's gout was improving gradually and plaintiff indicated at that time that he did "not feel there is any significant persistent swelling in his lower extremity joints to examine today" (Tr. 314).
Based on the record as a whole, the Court concludes that the ALJ's finding that Dr. Sager's treatment notes are inconsistent with his opinion that plaintiff needed to lie down for one hour, 2 to 4 times a day, and would miss four more days of work per month, is a finding based on substantial evidence in the record as a whole (see Tr. 17, 317-18, 344-45).
The ALJ also failed to credit fully opinions from Dr. Sager with the finding that Dr. Sager's opinion is not consistent with the notes from Columbia pain management "which showed the claimant actively engaging in gardening, riding bikes with his grandkids, and having normal physical exams" (see Tr. 17). This finding, too, is supported by substantial evidence in the record as a whole. For example, in February, 2012, plaintiff reported that he did not have any severe swelling flare since starting Humira and also reported that he had "been out riding a bicycle and a dirt bike again" (Tr. 367). At this time, plaintiff's gate was non-antalgic and revealed normal cadence and stride (id.). Similarly, plaintiff's toe and heel walking were normal and he was able to squat and rise without difficulty (see id.). It was noted that "postural examination in the sagittal and coronal planes is unremarkable"
Similarly on April 7, 2011, plaintiff reported being "busy in his garden" and his examination results indicated that his gait was non-antalgic and revealed normal cadence and stride (see Tr. 381). Again, toe and heel walking were normal; plaintiff could squat and rise without difficulty; and "postural examination in the sagittal and coronal planes is unremarkable" (see id.). Finally, in another earlier note cited by the ALJ, in August, 2010, plaintiff was feeling "much better" and had "gone back to work for a couple of days" (see Tr. 388). Plaintiff's gate was non-antalgic, with normal cadence and stride; and his toe and heel walking were normal (see id.). Again, plaintiff was able to squat and rise without difficulty, and his "postural examination session on coronal planes is unremarkable" (see id.).
The Court concludes that the ALJ's finding that Dr. Sager's opinion that plaintiff needed to lie down for one hour, 2 to 4 times a day, and would miss four more days of work per month is inconsistent with treatment notes from Columbia pain management is a finding based on substantial evidence in the record as a whole.
For the reasons discussed, and based on the record as a whole, the Court concludes that the ALJ provided specific and legitimate reasons for failing to credit fully the opinions of Dr. Sager.
b. Dr. Dan Donohue, Ph.D., non-examining medical consultant
The ALJ gave significant weight to the opinion of nonexamining doctor, Dr. Donahue (see Tr. 18). Plaintiff complains that although the ALJ gave significant weight to the opinions of Dr. Donohue, the ALJ did not include in his RFC or in his hypothetical to the VE, Dr. Donohue's opinions that plaintiff suffered from multiple moderate limitations in his ability to function in a normal work environment (see Opening Brief, ECF No.13 pp. 14-17; see also Tr. 14, 291-92).
Despite opining that plaintiff suffered from multiple moderate limitations in the ability to engage in full-time work, Dr. Donohue nevertheless opined that plaintiff could "carry out [simple routine tasks] but not complex tasks" (see Tr. 293; see also Tr. 291-92). Dr. Donohue also indicated his opinion that plaintiff "would do best working alone or [with] a small amount of coworkers" (see Tr. 293). Both of these opinions are included in the ALJ's formulation of plaintiff's RFC (see Tr. 14).
Although plaintiff complains because the ALJ did not include in his RFC Dr. Donohue's opinion regarding plaintiff's multiple moderate limitations, in a similar situation in which a claimant had complained that a moderate limitation as to pace was not accommodated into the RFC, the Ninth Circuit Court found no error due to the fact that the ALJ in Stubbs-Danielson had included the consultant's opinion from the narrative portion of a limitation to simple tasks into the RFC. See Stubbs-Danielson, supra, 539 F.3d at 1173-74. The situation here is analogous, as the ALJ credited Dr. Donohue's narrative opinion, but failed to include Dr. Donohue's opinion regarding moderate limitations in a different section of the opinion into the RFC. See id.
In addition, the Court notes that according to the internal operating manual of the Administration, the purpose of the summary conclusions in section 1, is to ensure that the evaluator considered each of the relevant mental activities, as well as any limitations on these activities over a normal workweek, but that it "is the narrative written by the psychiatrist or psychologist in section III ("Functional Capacity Assessment" ) . . . . that [the] adjudicator [is] to use as the assessment of RFC." See Program Operations Manual System (POMS), DI 25020.0100(B)(1), 2001 WL 1933437, available at https://secure.ssa.gov/poms.nsf/lnx/0425020010, last visited July 17, 2014.
For the reasons stated and based on the relevant record, the Court finds no error in the ALJ's evaluation of the opinions of Dr. Donohue.
(2) Did the ALJ commit reversible error by finding plaintiff only partially credible?
Plaintiff complains only about one reason provided by the ALJ for his failure to credit fully plaintiff's allegations and testimony. However, even if the ALJ's reliance on plaintiff's activities of daily living when making his credibility determination was not proper, the Court concludes that any error was harmless.
The Ninth Circuit has "recognized that harmless error principles apply in the Social Security Act context." Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (citing Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1054 (9th Cir. 2006) (collecting cases)). The court noted that "several of our cases have held that an ALJ's error was harmless where the ALJ provided one or more invalid reasons for disbelieving a claimant's testimony, but also provided valid reasons that were supported by the record." Id. (citations omitted). The Ninth Circuit noted that "in each case we look at the record as a whole to determine [if] the error alters the outcome of the case." Id. The court also noted that the Ninth Circuit has "adhered to the general principle that an ALJ's error is harmless where it is 'inconsequential to the ultimate nondisability determination.'" Id. (quoting Carmickle v. Comm'r Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008)) (other citations omitted). The court noted the necessity to follow the rule that courts must review cases "'without regard to errors' that do not affect the parties' 'substantial rights.'" Id. at 1118 (quoting Shinsheki v. Sanders, 556 U.S. 396, 407 (2009) (quoting 28 U.S.C. § 2111) (codification of the harmless error rule)).
Here, the ALJ relied on plaintiff's repeated overuse of his pain medications and the related inference that plaintiff was over-reporting his pain symptoms in order to obtain more or different narcotic prescription medication, and also relied on a finding that plaintiff's allegations are inconsistent with the objective medical evidence when failing to credit fully plaintiff's allegations and testimony. As discussed below, the Court concludes that the ALJ's credibility determination is supported by substantial evidence in the record as a whole.
If the medical evidence in the record is not conclusive, sole responsibility for resolving conflicting testimony and questions of credibility lies with the ALJ. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1999) (citing Waters v. Gardner, 452 F.2d 855, 858 n.7 (9th Cir. 1971) (Calhoun v. Bailar, 626 F.2d 145, 150 (9th Cir. 1980)). An ALJ is not "required to believe every allegation of disabling pain" or other non-exertional impairment. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (citing 42 U.S.C. § 423(d)(5)(A) (other citations and footnote omitted)). Even if a claimant "has an ailment reasonably expected to produce some pain; many medical conditions produce pain not severe enough to preclude gainful employment." Fair, supra, 885 F.2d at 603. The ALJ may "draw inferences logically flowing from the evidence." Sample, supra, 694 F.2d at 642 (citing Beane v. Richardson, 457 F.2d 758 (9th Cir. 1972); Wade v. Harris, 509 F. Supp. 19, 20 (N.D. Cal. 1980)). However, an ALJ may not speculate. See SSR 86-8, 1986 SSR LEXIS 15 at *22.
Nevertheless, the ALJ's credibility determinations "must be supported by specific, cogent reasons." Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (citing Bunnell v. Sullivan, 947 F.2d 341, 343, 346-47 (9th Cir. 1991) (en banc)). In evaluating a claimant's credibility, the ALJ cannot rely on general findings, but "'must specifically identify what testimony is credible and what evidence undermines the claimant's complaints.'" Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006) (quoting Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999)); Reddick, supra, 157 F.3d at 722 (citations omitted); Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996) (citation omitted). The ALJ may consider "ordinary techniques of credibility evaluation," including the claimant's reputation for truthfulness and inconsistencies in testimony regarding symptoms, and may also consider a claimant's daily activities, and "unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment." Smolen, supra, 80 F.3d at 1284 (citations omitted).
Here, plaintiff does not address in his opening brief two of the reasons provided by the ALJ for the ALJ's credibility determination, and in his reply brief includes largely plaintiff's subjective self-reports and testimony in support of his argument (see Reply, ECF No. 15, pp. 8-11). The Court already has discussed, in part, the objective medical evidence relied on by the ALJ, see supra, section 1. Based on a review of the record, the Court concludes that the ALJ's finding that plaintiff's allegations and testimony are inconsistent with the medical evidence is a finding based on substantial evidence in the record as a whole.
In addition, a review of the record reveals that the ALJ's findings that plaintiff violated his pain contract and overused his pain medications are findings based on substantial evidence in the record as a whole (see Tr. 333-34, 365). For example, on February 2, 2012, the record indicates that plaintiff "should have had three tabs remaining today but states he's been out for one day" (see Tr. 367); and on July 9, 2010, plaintiff reported being in pain and seeking a refill of his prescription, as he was "[o]ut of everything" (Tr. 333). However, a call to the pharmacist revealed that plaintiff "recently [had] received narcotics . . . . [and] did not disclose that he is on a pain contract" (see id. ).
For the reasons stated and based on a review of the record as a whole, the Court concludes that the ALJ committed at most harmless error during the evaluation of plaintiff's credibility. The Court concludes that the ALJ provided clear and convincing reasons for his failure to credit fully plaintiff's allegations and testimony, despite any possible error in the reliance on plaintiff's activities of daily living.
(3) Did the ALJ commit reversible error by erroneously rejecting the lay opinions of James M. Patterson, LICSW?
Plaintiff complains that the lay opinion by Mr. Patterson was rejected improperly. The ALJ rejected this opinion, finding that it "is conclusory and lacks adequate explanation" (see Tr. 18). The ALJ also noted that there were not any corresponding treatment records from Mr. Patterson (see id.).
Pursuant to the relevant federal regulations, in addition to "acceptable medical sources," that is, sources "who can provide evidence to establish an impairment," 20 C.F.R. § 404.1513 (a), there are "other sources," such as friends and family members, who are defined as "other non-medical sources" and "other sources" such as nurse practitioners, therapists and chiropractors, who are considered other medical sources, see 20 C.F.R. § 404.1513 (d). See also Turner v. Comm'r of Soc. Sec., 613 F.3d 1217, 122324 (9th Cir. 2010) (citing 20 C.F.R. § 404.1513(a), (d)); Social Security Ruling "SSR" 06-3p, 2006 SSR LEXIS 5 at *4-*5, 2006 WL 2329939. An ALJ may disregard opinion evidence provided by both types of "other sources," characterized by the Ninth Circuit as lay testimony, "if the ALJ 'gives reasons germane to each witness for doing so." Turner, supra, 613 F.3d at 1224 (quoting Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001)); see also Van Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996).
"Other sources" specifically delineated in the relevant federal regulations also include public and private "social welfare agency personnel," see 20 C.F.R. § 404.1513(d)(3).
The Court concludes that the ALJ provided germane rationale for failing to credit fully the lay opinion of Mr. Patterson. In rejecting this opinion, the ALJ noted a lack of corresponding treatment records from Mr. Paterson, and plaintiff has not directed this Court to evidence of Mr. Patterson's treatment records. Although plaintiff directs the Court to plaintiff's own testimony that he often saw Mr. Patterson, the Court concludes that the ALJ's finding that Mr. Patterson's opinion was not supported by corresponding treatment records is a finding based on substantial evidence in the record as a whole. The Court also concludes that this is a germane reason for failing to credit fully the opinion of Mr. Patterson.
In addition, a review of Mr. Patterson's opinion reveals only checked boxes and no explanation in support of his opinion (see Tr. 346-48). Thus, this reason provided by the ALJ for his rejection of Mr. Patterson's opinion also is based on substantial evidence in the record. The Court concludes that it also is germane.
CONCLUSION
Based on the stated reasons and the relevant record, the Court ORDERS that this matter be AFFIRMED pursuant to sentence four of 42 U.S.C. § 405(g).
JUDGMENT should be for DEFENDANT and the case should be closed.
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J. Richard Creatura
United States Magistrate Judge