JOHN D. EARLY, Magistrate Judge.
Plaintiff Ronald James M. ("Plaintiff") filed a Complaint on August 8, 2018, seeking review of the Commissioner's denial of his application for disability insurance benefits ("DIB") and supplemental security income ("SSI"). The parties filed a Joint Stipulation ("Jt. Stip.") regarding the issues in dispute on May 8, 2019. The matter now is ready for decision.
Plaintiff filed applications for DIB and SSI on February 20, 2015, alleging disability commencing on January 12, 2010. Administrative Record ("AR") 198-206. After his applications were denied initially (AR 116-21) and on reconsideration (AR 125-30), Plaintiff requested an administrative hearing (AR 131-33). Plaintiff initially appeared without counsel for a hearing on March 27, 2017 before an Administrative Law Judge ("ALJ"), but, following a colloquy, Plaintiff advised he desired counsel and the hearing was adjourned. AR 34-46. On August 2, 2017, Plaintiff again appeared before the ALJ, with counsel, and testified. AR 47-65. Plaintiff requested that the disability onset date be amended to August 13, 2013, which the ALJ approved. AR 50.
On September 18, 2017, the ALJ found Plaintiff was not disabled (AR 16-28), finding Plaintiff had not engaged in substantial gainful employment since August 13, 2013 and suffered from the following severe impairments: disorder of the right clavicle, disorder of the lumbar, disorder of the shoulder, disorder of the wrists, carpal tunnel syndrome, and disorder of the right knee. AR 18. The ALJ found Plaintiff did not have an impairment or combination of impairments that met or medically equaled a listed impairment and had the residual functional capacity ("RFC") to perform light work, "limited to frequent but not continuous bilateral fingering and handling and frequent but not continuous right upper extremity overhead reaching." AR 19-20. The ALJ found Plaintiff was not capable of performing his past relevant work, but considering his age, education, work experience, and RFC, could perform other jobs existing in significant numbers in the national economy, meaning Plaintiff was thus not under a "disability" as defined in the Social Security Act. AR 27. On July 23, 2018, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the Commissioner's final decision. AR 1-6.
Under 42 U.S.C. § 405(g), district courts may review decisions to deny benefits. Such decisions will be upheld if they are free from legal error and supported by substantial evidence in the record.
When the claimant's case has proceeded to consideration by an ALJ, the ALJ conducts a five-step sequential evaluation to determine at each step if the claimant is or is not disabled.
If the claimant's impairments do not meet or equal a listed impairment, before proceeding to the fourth step, the ALJ assesses the claimant's RFC, that is, what the claimant can do on a sustained basis despite the limitations from his impairments.
If the claimant cannot perform past relevant work, the ALJ proceeds to a fifth and final step to determine whether, based on the claimant's RFC, age, education, and work experience, any jobs exist in significant numbers in either the national or regional economies that the claimant can perform.
The claimant generally bears the burden at each of steps one through four to either disability or that the requirements to proceed to the next step have been met, and the claimant bears the ultimate burden to show disability.
The parties present two disputed issues (Jt. Stip. at 4):
With respect to Issue No. 1, Plaintiff contends the ALJ failed to properly consider the opinions of treating physicians James Matiko, M.D. ("Dr. Matiko") and Raymond Leung, M.D. ("Dr. Leung") and examining physician Donald D. Kim, M.D ("Dr. Kim"). Jt. Stip. at 5-8.
In assessing an RFC, an ALJ must consider all relevant evidence in the record, including medical records and "the effects of symptoms, including pain, that are reasonably attributable to the medical condition."
"There are three types of medical opinions in social security cases: those from treating physicians, examining physicians, and non-examining physicians."
"[T]he ALJ may only reject a treating or examining physician's uncontradicted medical opinion based on clear and convincing reasons" supported by substantial evidence in the record.
Plaintiff directs the Court to a January 2011 report by Dr. Matiko, a treating physician, that states Plaintiff "was to have no use of his bilateral upper extremities" (Jt. Stip. at 5 [citing AR 526]) and argues the ALJ erred in not crediting that opinion.
The Court agrees with the Commissioner. As noted, although an ALJ must consider all relevant evidence in the record in assessing an RFC, the ALJ is only required to discuss "significant and probative medical evidence" in his decision.
Dr. Matiko's January 2011 opinion refenced by Plaintiff in the Joint Stipulation, rendered more than two and a half years before the alleged onset date and superseded by a far less restrictive opinion by Dr. Matiko also rendered outside the relevant period, was neither probative nor significant to the relevant inquiry before the ALJ. The ALJ did not err in rejecting such evidence and did not err in declining to further explain why he rejected it.
On November 30, 2015, Dr. Leung opined Plaintiff could return to work with the restriction that Plaintiff not use either of his hands. AR 371. However, starting on January 25, 2016 and continuing monthly thereafter, excluding June, until September 2016, Dr. Leung opined Plaintiff should remain off work due to what was variously described as chronic pain, bilateral cubital tunnel syndrome, bilateral hand derangement, and flexor tendonitis. AR 361-70. On October 24, 2016, Dr. Leung opined Plaintiff was permanently totally disabled. AR 572. On June 19, 2017, Dr. Leung opined Plaintiff could "never" lift or carry any weight, can never reach, handle, finger, feel, push or pull with either hand. AR 579, 581.
On August 13, 2013, Dr. Kim diagnosed Plaintiff with a variety of carpal tunnel and hand and finger related maladies. AR 589. On October 12, 2014, Dr. Kim noted Plaintiff's symptoms "are alleviated with medications and use of hand braces." AR 588. As a result of an October 7, 2014 exam, Dr. Kim placed Plaintiff on a work restriction precluding him from push, pulling or lifting more than 10 pounds and from repetitive forceful squeezing and grasping. AR 358.
The ALJ accorded "little weight" to the opinions of Drs. Leung and Kim, finding the opinions of both doctors were "not consistent with the entire evidence of record," noting, among other things, routine and conservative treatment; Plaintiff's declination of medication; Plaintiff's reported lack of complaints; and diagnostic and testing results that found "no more than moderate findings." AR 24-25.
Plaintiff argues the ALJ's assessment "is woefully inadequate and misplaced" in failing to give "appropriate weight" to the "relatively consistent" opinions of Drs. Leung and Kim (and Matiko), asserting their findings were supported by the entire medical record. Jt. Stip. at 7-8. To the extent the ALJ recited conservative treatment as a basis to discount the opinions, Plaintiff cited his "multiple surgical procedures" regarding his "persistent upper extremity issues."
The Court finds the ALJ properly considered the opinions of Dr. Leung and Dr. Kim in determining Plaintiff's RFC. First, the ALJ's discounting the doctors' opinions because their findings were "not consistent with the entire evidence of record" is supported by the record. AR 24-25. An ALJ is permitted to reject a treating physician's opinion that is unsupported by the record as a whole.
Additionally, the ALJ also properly discounted the opinions of Dr. Leung and Dr. Kim as inconsistent Plaintiff's routine and conservative treatment. AR 24-25. The ALJ noted: (a) in October 2014, Plaintiff reported he had not undergone any treatment such as diagnostic studies, physical therapy, injections, or surgeries since his previous evaluation over a year earlier (AR 22 [citing AR 588-89]); and (b) a November 2014 report in which Plaintiff reported that his right shoulder pain was alleviated with his father's Lidoderm patches, declining further medication (AR 25 [citing AR 399]). Although Plaintiff notes his prior surgeries as evidence of non-conservative treatment, as the Commissioner notes, and as Plaintiff's citation to the record demonstrate, those surgeries took place eleven months or more before the alleged onset date and prior to the opinions rendered by Drs. Kim and Leung. Jt. Stip. at 6, 10.
In addition, the ALJ, "[i]n making findings in this case," considered the opinion of the State agency medical consultant and accorded that assessment, which was consistent with the RFC assessed, "great weight." AR 25. An ALJ may consider findings by state-agency medical consultants as opinion evidence. 20 C.F.R. § 404.1527(e). "The opinions of non-treating or non-examining physicians may also serve as substantial evidence when the opinions are consistent with independent clinical findings or other evidence in the record."
Here, the ALJ provided a detailed review of the medical evidence, including the opinions of the State agency reviewing physician as well as examining and treating physicians, among other things, in formulating Plaintiff's RFC. AR 20-26. The RFC determination is an "administrative finding" specifically reserved for the Commissioner.
With respect to Issue No. 2, Plaintiff argues the ALJ "failed to properly consider Plaintiff's subjective statements of record and testimony regarding his symptoms, and resulting limitations." Jt. Stip. at 13.
Where a disability claimant produces objective medical evidence of an underlying impairment that could reasonably be expected to produce the pain or other symptoms alleged, absent evidence of malingering, the ALJ must provide "specific, clear and convincing reasons for rejecting the claimant's testimony regarding the severity of the claimant's symptoms."
An ALJ is not "required to believe every allegation" of disability" (
During the 2017 hearing, Plaintiff described living alone in a two-story house. AR 51. He wore braces on both wrists and testified he "can no longer use" his hands. AR 54. He described "severe swelling" in his right knee, for which he wears a brace, which "makes it feel better." AR 55. He also expected to receive a back brace because he has "severe arthritis in [his] lower back."
The ALJ analyzed Plaintiff's subjective symptoms and the medical and opinion evidence regarding those symptoms in detail in his decision, concluding that, although Plaintiff's "medically determinable impairments could reasonably be expected to cause the alleged symptoms," his "statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record . . . ." AR 21.
Among other bases, the ALJ found the "medical evidence of record does not support the severity of [Plaintiff's] allegations," citing, among other things, records reflecting Plaintiff's refusal to take medication and having "no complaints," as well as diagnostic testing and exams that revealed only moderate findings. AR 22. Although Plaintiff states in conclusory fashion that the medical evidence reflects impairments that preclude work (Jt. Stip. at 15), Plaintiff, unlike the ALJ, does not cite to evidence in the record other than generic references to opinions of Drs. Leong and Matiko, opinion the Court has already found were properly discounted by the ALJ. The ALJ properly discounted Plaintiff's subjective symptom testimony partly on its inconsistency with the medical evidence of record; however, as noted, that reason cannot be the sole basis for the ALJ's decision.
As a second basis the ALJ cited is the "routine and conservative treatment" Plaintiff had undergone since the alleged onset date, citing, among other things: (i) an October 12, 2014 report by Dr. Kim noting Plaintiff had not "undergone any treatment in the form of diagnostic studies, physical therapy, injections, or surgeries" since prior to August 13, 2013, the alleged onset date; and (ii) November 6, 2014 treatment notes indicating Plaintiff "did not want to take any meds." AR 22 (citing AR 399, 588-89). Conservative treatment is a legitimate consideration in evaluating subjective symptoms.
Third, the ALJ noted instances indicating treatment was generally working, citing November 6, 2014 treatment notes indicating Plaintiff was using his father's Lidoderm patches to alleviate pain and declined further medication and December 9, 2014 treatment notes reflecting Plaintiff had "no complaints" but sought refills on medication. AR 22 (citing AR 396, 399); see also AR 405 (notes from September 15, 2014 medical visit, stating Plaintiff "[f]eels well with no complaints"). As with conservative treatment, Plaintiff does not address the ALJ's statements and supporting evidence on this issue. "Impairments that can be controlled effectively with medication are not disabling."
Fourth, the ALJ cited Plaintiff's "somewhat normal level of activities," including living alone in a two-story house, driving on a regular basis to the store, his parents' house, the gas station, church, doctors' appointments, and his girlfriend's house, performing household chores, making simple meals, and swimming every day in his own pool, some of which "are the same as those necessary for obtaining and maintaining employment." AR at 19-20. Plaintiff argues that these activities are "not inconsistent" with Plaintiff's symptom descriptions. Jt. Stip. at 15.
Although an ALJ may consider "whether the claimant engages in daily activities inconsistent with the alleged symptoms" (Molina, 674 F.3d at 1112), the Ninth Circuit has "repeatedly warned that ALJs must be especially cautious in concluding that daily activities are inconsistent with testimony about pain, because impairments that would unquestionably preclude work and all the pressures of a workplace environment will often be consistent with doing more than merely resting in bed all day."
Here, the ALJ properly discounted Plaintiff's testimony that he "can no longer use" his hands, which prevents him from working (AR 54, 57-58), by noting that Plaintiff lives alone in a house, makes simple meals, goes shopping, pumps gas, goes swimming in his own pool every day, regularly drives a car to visit doctors, his parents, a friend, and a girlfriend, among other activities. The ALJ properly noted that many of those activities are consistent with work and are inconsistent with a claim of disability. The ALJ properly discounted Plaintiff's subjective symptom testimony about disabling pain based upon his activities of daily living.
For the foregoing reasons, the ALJ provided multiple sufficiently specific, clear, and convincing reasons supported by substantial evidence for discounting Plaintiff's symptom testimony.
Pursuant to sentence four of 42 U.S.C. § 405(g), IT THEREFORE IS ORDERED that Judgment be entered affirming the decision of the Commissioner of Social Security.