JOHN E. McDERMOTT, Magistrate Judge.
On May 27, 2016, Jeffrey P. Hummell ("Plaintiff" or "Claimant") filed a complaint seeking review of the decision by the Commissioner of Social Security ("Commissioner") denying Plaintiff's application for Social Security Disability Insurance benefits. The Commissioner filed an Answer on September 15, 2016. On December 5, 2016, the parties filed a Joint Stipulation ("JS"). The matter is now ready for decision.
Pursuant to 28 U.S.C. § 636(c), both parties consented to proceed before this Magistrate Judge. After reviewing the pleadings, transcripts, and administrative record ("AR"), the Court concludes that the Commissioner's decision must be affirmed and this case dismissed with prejudice.
Plaintiff is a 53-year-old male who applied for Social Security Disability Insurance benefits on July 3, 2013, alleging disability beginning March 1, 2013. (AR 15.) The ALJ determined that Plaintiff had not engaged in substantial gainful activity since December 15, 2013, the amended alleged onset date.
Plaintiff's claim was denied initially on September 25, 2013, and on reconsideration on February 4, 2014. (AR 15.) Plaintiff filed a timely request for hearing, which was held before Administrative Law Judge ("ALJ") John W. Wojciechowski on November 12, 2014, in Orange, California. (AR 15.) Plaintiff appeared and testified at the hearing and was represented by co-representative Sandra Haas.
The ALJ issued an unfavorable decision on January 7, 2015. (AR 15-27.) The Appeals Council denied review on April 4, 2016. (AR 1-4.)
As reflected in the Joint Stipulation, Plaintiff raises the following disputed issues as grounds for reversal and remand:
Under 42 U.S.C. § 405(g), this Court reviews the ALJ's decision to determine whether the ALJ's findings are supported by substantial evidence and free of legal error.
Substantial evidence means "`more than a mere scintilla,' but less than a preponderance."
This Court must review the record as a whole and consider adverse as well as supporting evidence.
The Social Security Act defines disability as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or . . . can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Commissioner has established a five-step sequential process to determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920.
The first step is to determine whether the claimant is presently engaging in substantial gainful activity.
If the claimant cannot perform his or her past relevant work or has no past relevant work, the ALJ proceeds to the fifth step and must determine whether the impairment prevents the claimant from performing any other substantial gainful activity.
In this case, the ALJ determined at step one of the sequential process that Plaintiff has not engaged in substantial gainful activity since December 15, 2013, the amended alleged onset date. (AR 17.)
At step two, the ALJ determined that Plaintiff has the following medically determinable severe impairments: lumbar degenerative disc disease and right knee osteoarthritis. (AR 17-18.)
At step three, the ALJ determined that Plaintiff does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments. (AR 18.)
The ALJ then found that Plaintiff has the RFC to perform a reduced range of light work as defined in 20 C.F.R. § 404.1567(b) with the following limitations:
(AR 18-25.) In determining the above RFC, the ALJ made an adverse credibility determination. (AR 21.)
At step four, the ALJ found that Plaintiff is unable to perform his past relevant work as a truck driver and loader/unloader. (AR 25.) The ALJ, however, also found that, considering Claimant's age, education, work experience, and RFC, there are jobs that exist in significant numbers in the national economy that Claimant can perform, including the jobs of deliverer of car rentals, telephone directory distributor driver, hand packager, and assembler. (AR 26-27.)
Consequently, the ALJ found that Claimant was not disabled, within the meaning of the Social Security Act. (AR 27.)
Plaintiff contends that the ALJ erred in rejecting the opinion of treating physician Dr. Jeff Dobyns. The Court disagrees.
The ALJ's RFC is not a medical determination but an administrative finding or legal decision reserved to the Commissioner based on consideration of all the relevant evidence, including medical evidence, lay witnesses, and subjective symptoms. See SSR 96-5p; 20 C.F.R. § 1527(e). In determining a claimant's RFC, an ALJ must consider all relevant evidence in the record, including medical records, lay evidence, and the effects of symptoms, including pain reasonably attributable to the medical condition. Robbins, 446 F.3d at 883.
In evaluating medical opinions, the case law and regulations distinguish among the opinions of three types of physicians: (1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant (examining physicians); and (3) those who neither examine nor treat the claimant (non-examining, or consulting, physicians).
Where a treating doctor's opinion is not contradicted by another doctor, it may be rejected only for "clear and convincing" reasons.
Plaintiff is a former truck driver who alleges he no longer can work due to right knee, right shoulder, and back pain. (AR 19.) He claims he cannot lift any weight without extreme pain, uses a cane for walking, and is unable to tie his shoes. (AR 19.) He said he experiences pain with walking, lifting, and prolonged sitting. (AR 20.)
The ALJ, however, assessed a reduced range of light work RFC and concluded that there were jobs in the national economy that Plaintiff can perform. (AR 18, 26-27.) In determining Plaintiff's RFC, the ALJ gave great weight to the January 25, 2014 opinion of the consulting orthopedic examiner, Dr. Payam Moazzaz. (AR 22, 24.) Dr. Moazzaz found Plaintiff had a normal range of motion of the cervical spine, elbows, wrists, hands, hips, ankles, and feet. (AR 22.) Claimant had full motor strength, normal sensation, and normal reflexes. (AR 22, 24.) Although there was a decreased range of motion of the thoracolumbar spine and some pain in the right knee, Plaintiff had only a slightly antalgic gait, only mild tenderness in the paraspinal musculature, and negative straight leg raising. (AR 22, 24.) Dr. Moazzaz diagnosed Plaintiff with right knee degenerative joint disease, and spondylosis and spondylolisthesis. (AR 22.) She also opined that Plaintiff could do light work, could sit, stand, or walk six hours in an eight hour workday, and could occasionally perform postural activities. (AR 22.) State agency medical consultants also concluded that Plaintiff could perform a reduced range of light work. (AR 23-24, 62-71, 73-85.) The ALJ found that the medical consultants' opinions were consistent with Claimant's medical records and the objective medical evidence, which reveal "grossly conservative medical treatment." (AR 24.)
In contrast to the evidence above, Plaintiff's treating physician Dr. Jeff Dobyns opined that Plaintiff's limitations precluded all work. On July 23, 2013, Dr. Dobyns diagnosed Claimant with moderate osteoarthritis of the right knee, grade one lumbar spondylolisthesis, and right shoulder tendonitis. (AR 22.) In 2014, Dr. Dobyns opined Plaintiff could not lift, could stand or sit only 2 hours in an eight hour workday, and had marked limitation with regard to activities of daily living. (AR 23.) He opined Plaintiff required a cane and would miss more than 3 days of work a month. (AR 22, 23.) Inexplicably, Plaintiff asserts that Dr. Dobyns' opinions are supported by Dr. Moazzaz' findings even though Dr. Moazzaz assessed Plaintiff a reduced range light work RFC. Plaintiff does not address Dr. Moazzaz' conflicting RFC or acknowledge the findings of the State agency medical consultants.
The ALJ, moreover, gave little weight to Dr. Dobyns' opinions, primarily because he did not provide medically acceptable clinical or diagnostic findings to support his functional assessments. (AR 24.) Plaintiff challenges the ALJ's finding, but an ALJ may discount a treating physician's opinion that does not have supportive objective evidence, is contradicted by other assessments, is unsupported by the record as a whole or by objective findings, and is inconsistent with his or her treatment notes.
Plaintiff disagrees with the ALJ's interpretation of the medical evidence, but it is the ALJ's responsibility to resolve conflicts in the medical evidence.
The ALJ rejected Dr. Dobyns' RFC for specific, legitimate reasons supported by substantial evidence.
Plaintiff contends that the ALJ erred in rejecting his subjective symptom allegations. The Court disagrees.
The test for deciding whether to accept a claimant's subjective symptom testimony turns on whether the claimant produces medical evidence of an impairment that reasonably could be expected to produce the pain or other symptoms alleged.
In determining Plaintiff's RFC, the ALJ concluded that Plaintiff's medically determinable impairments reasonably could be expected to cause the alleged symptoms. (AR 21.) The ALJ, however, also found that Plaintiff's statements regarding the intensity, persistence, and limiting effects of these symptoms "not credible." (AR 21.) Because the ALJ did not make any finding of malingering, he was required to provide clear and convincing evidence for discounting Plaintiff's credibility.
First, the ALJ found that Claimant's treatment records and the objective medical evidence are inconsistent with Plaintiff's pain allegations and that the medical evidence supports a reduced range of light work RFC. (AR 21, 24.) An ALJ may consider whether there is a lack of medical evidence to corroborate a claimant's alleged pain symptoms so long as it is not the only reason for discounting a claimant's credibility.
Second, the ALJ found that Plaintiff only received conservative treatment. (AR 17-18, 20-21, 24.) An ALJ may consider conservative treatment in evaluating credibility.
Third, the ALJ found that Plaintiff's activities of daily living are compatible with competitive work. (AR 25.) An ALJ is permitted to consider whether a claimant's daily activities are inconsistent with disabling limitations.
Plaintiff disagrees with the ALJ's interpretation of the evidence of record but it is the ALJ's responsibility to resolve conflicts in the medical evidence and ambiguities in the record.
The ALJ discounted Plaintiff's subjective symptom allegations for clear and convincing reasons supported by substantial evidence. The ALJ's RFC is supported by substantial evidence.
Plaintiff contends that the ALJ erred in finding that Plaintiff's right shoulder tendonitis is nonsevere. The Court disagrees.
At step two of the sequential inquiry, the ALJ determines whether the claimant has a medically severe impairment or combination of impairments.
The step two determination is a
Here, the ALJ found that Plaintiff's medically determinable impairment of right shoulder tendonitis would have no more than a minimal effect on his ability to work. (AR 17.) The ALJ stated, "This condition was being managed medically and should be amenable to proper control by adherence to recommended medical management and medication compliance." (AR 17.) The ALJ also stated, "No aggressive treatment was recommended or anticipated for this condition." (AR 18.) The ALJ's conclusion that Plaintiff's right shoulder tendonitis is non-severe is supported by Dr. Moazzaz' January 25, 2014 report which found that range of motion of Plaintiff's shoulders and elbows are within normal limits, and Plaintiff can lift and carry 20 pounds and can perform overhead activities on an unrestricted basis. (AR 22, 24, 271, 273.) The State agency medical consultants reached similar conclusions, including a specific finding that the alleged shoulder problem and elbow tendonitis are not supported by examination. (AR 80.) The ALJ properly discounted any limitations beyond the ALJ's RFC proffered by Dr. Dobyns. (AR 24.)
In challenging the ALJ's nonseverity finding, Plaintiff relies on two treatment notes, neither of which undermines the ALJ's finding. On September 18, 2012, before the alleged onset date of December 15, 2013 (AR 15), Dr. Dobyns reports Plaintiff's subjective allegation of right shoulder pain but on physical examination reported, "The right shoulder is without tenderness or discoloration," although there was some pain on elevation but no ligamentous laxity. (AR 265.) Dr. Dobyns reported an old 2007 MRI found rotator cuff tendonitis without any definite evidence of tear. (AR 265.) At the September 18, 2012 examination, Plaintiff declined Dr. Dobyns' recommendation of a new right shoulder MRI and continued on his medications. (AR 265.) Nothing in this treatment note undermines or is inconsistent with the ALJ's non-severity finding.
The second treatment note, dated January 21, 2015 (AR 357), reports Plaintiff's complaint of right shoulder pain but again Dr. Dobyns on examination found "no inflammation or swelling" but some tenderness. (AR 357.) X-rays showed moderate osteoarthritis but no abnormal calcifications or other abnormalities. (AR 357.) Dr. Dobyns referred Plaintiff for an MRI scan to assess for a "possible" rotator cuff tear. (AR 358.) Again, nothing in the treatment undermines or is inconsistent with the ALJ's nonseverity finding.
At best, Plaintiff has established the medically determinable impairment of right shoulder tendonitis. An impairment, however, does not by itself establish it is severe; the condition must interfere with his ability to work.
Again, it is the ALJ's responsibility to resolve conflicts in the medical evidence and ambiguities in the record.
The ALJ's nonseverity determination regarding Plaintiff's right shoulder tendonitis is supported by substantial evidence.
The ALJ's nondisability determination is supported by substantial evidence and free of legal error.
IT IS HEREBY ORDERED that Judgment be entered affirming the decision of the Commissioner of Social Security and dismissing this case with prejudice.