JOHN E. McDERMOTT, Magistrate Judge.
On June 20, 2015, Jerry Jermaine Christian ("Plaintiff" or "Claimant") filed a complaint seeking review of the decision by the Commissioner of Social Security ("Commissioner") denying Plaintiff's applications for Social Security Disability Insurance benefits and Supplemental Security Income benefits. The Commissioner filed an Answer on November 24, 2015. On May 2, 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 bef ore 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 44-year-old male who applied for Social Security Disability Insurance benefits and Supplemental Security Income benefits on July 24, 2012, alleging disability beginning June 21, 2012. (AR 16.) The ALJ determined that Plaintiff had not engaged in substantial gainful activity since June 21, 2012, the alleged onset date. (AR 18.)
Plaintiff's claims were denied initially on December 5, 2012. (AR 16.) Plaintiff filed a timely request for hearing, which was held before Administrative Law Judge ("ALJ") Zane A. Lang on October 22, 2013, in West Los Angeles, California. (AR 16.) Plaintiff appeared and testified at the hearing and was represented by counsel. (AR 16.) Vocational expert ("VE") Ronald K. Hatakeyama also appeared and testified at the hearing. (AR 16.)
The ALJ issued an unfavorable decision on November 21, 2013. (AR 16-25.) The Appeals Council denied review on January 30, 2015. (AR 7-10.)
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 June 21, 2012, the alleged onset date. (AR 18.)
At step two, the ALJ determined that Plaintiff has the following medically determinable severe impairments: status post rupture of the left Achilles tendon with surgical repair, degenerative disc disease of the lumbar spine, and sprain and strain of the left ankle. (AR 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 19.)
The ALJ then found that Plaintiff has the RFC to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) with the following limitations:
(AR 19-22.) In determining the above RFC, the ALJ made an adverse credibility determination. (AR 21.)
At step four, the ALJ found that Plaintiff is able to perform his past relevant work as a general clerk. (AR 22-24.) The ALJ 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 bench assembler and telephone information clerk. (AR 23-24.)
Consequently, the ALJ found that Claimant was not disabled, within the meaning of the Social Security Act. (AR 24-25.)
The ALJ decision must be affirmed. The ALJ properly discounted the opinion of Plaintiff's treating physician, and properly discounted Plaintiff's subjective symptom allegations. The ALJ also properly found that Plaintiff is able to perform alternate work in the national economy.
Plaintiff contends that the ALJ erred in rejecting the treating physician opinion of Dr. Edwin Haronian. 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 had Achilles tendon surgery on his left ankle on July 13, 2012, and complains of lumbar spine pain resulting from walking with an antalgic gait due to the left ankle injury. (AR 20.) He alleges continuing pain in his left lower leg and lower back. (AR 19.) At first, there was a considerable reduction in range of motion in Claimant's left ankle due to pain, and he walked with an uneven gait. (AR 20.) On August 30, 2012 and February 13, 2013, Claimant had spasm, tenderness, and guarding in his paravertebral musculature. (AR 21.) By May 7, 2013, despite claims he could not sit, stand or walk for more than 5-10 minutes without increased pain, Plaintiff on physical examination had a normal gait and was able to ambulate without a cane, and even perform toe and heel walk albeit with back pain. (AR 21, 308.)
In addition to the above examination findings, an MRI of the lumbar spine conducted on August 3, 2012, showed bulges and a narrowing of the thecal sac, but no evidence of significant central or foraminal stenosis at any level. (AR 21.) On April 29, 2013, electrodiagnostic studies of the lower extremities were within normal limits and there was no electroneurographic evidence of entrapment neuropathy in the lower extremities or electromyographic evidence of acute lumbar radiculopathy. (AR 21, 295.) This electrodiagnostic study also indicated that Plaintiff's motor strength in all major groups was 5/5, sensation was normal, and deep tendon reflexes normal and symetrical. (AR 21, 292.) The ALJ found that the nerve conduction study was normal and the imaging study showed little pathology. (AR 22.)
His treating physician Dr. Edward Haronian assessed work limitations of no lifting and a 10 minute break for every hour of standing in order to be seated, to reduce the stress of the lumbar spine and left ankle. (AR 21.) The ALJ discounted Dr. Haronian's opinion because his findings are both inconsistent with and unsupported by the substantial medical evidence of record discussed above. (AR 22.) Although a treating physician's opinion is generally afforded great weight, an ALJ may disregard the treating physician's opinion whether or not the opinion is contradicted when it is unsupported by the record as a whole or by objective findings or objective evidence.
Preliminarily, there is no conflict between the ALJ's RFC and Dr. Haronian's limitation to a 10 minute break for every one hour of standing in order to be seated, to reduce the stress on spine and ankle. The ALJ's RFC provides for sitting up to 6 hours in an 8 hour workday. (AR 19.) The Commissioner notes that these limitations more than incorporate Dr. Haronian's limitation requiring a 10 minute break every hour to be seated. Plaintiff's only argument is that the ALJ's RFC permits light work but the two hour limitation on standing and/or walking is more consistent with sedentary work. The ALJ, however, made an alternative finding that Plaintiff could perform sedentary work in the national economy. (AR 24.) (See Section III below.)
The ALJ rejected Dr. Haronian's no lifting limitation as inconsistent with and unsupported by the medical evidence of record. (AR 22.) The ALJ found that there were no clinical findings supporting the degree of limitation alleged. (AR 22.) As already noted, the MRI and electrodiagnostic findings ordered by Dr. Haronian were essentially normal. (AR 21.) Plaintiff mentions the MRI study but does not discuss or even acknowledge the absence of any central or forminal stenosis. Plaintiff does not mention the electrodiagnostic findings.
On May 7, 2013, pain management physician Dr. Jonathan F. Kohan found Plaintiff had a normal gait and was able to ambulate without an assistive device, despite claims of pain in the ankle and back and difficulties walking. (AR 21, 308.) Dr. Kohan also found that Plaintiff could perform heel and toe walk albeit with back pain. (AR 308.) Plaintiff suggests that Dr. Kohan found that Plaintiff could not stand or walk for more than 10-15 minutes without his pain increasing (JS 3) but Dr. Kohan was simply describing Plaintiff's complaints (AR 306), which is how the ALJ interpreted Dr. Kohan's report. (AR 21-22.) In fact, as noted, Dr. Kohan found that Plaintiff had a normal gait and is able to ambulate without a cane. (AR 308.)
The ALJ also found that Plaintiff's allegations of disabling symptoms is contradictory to his testimony about his daily activities. (AR 22.) Plaintiff is able to drive, do the laundry, go to the store, cook, do the dishes, sweep, mop, take out the trash, and clean the bathroom and kitchen. (AR 20, 22.) These activities plainly include some lifting. As the ALJ noted, Plaintiff's daily activities are not limited to the extent one would expect if Plaintiff were disabled. (AR 22.) An ALJ may reject a physician's opinion that is contradicted by a claimant's own admitted or observed abilities.
Plaintiff contends that the ALJ should have recontracted Dr. Haronian to determine why he believed Plaintiff had the limitations Dr. Haronian assessed. An ALJ's duty to further develop the record is triggered only "when there is ambiguous evidence or the record is inadequate to allow for proper evaluation of the evidence."
The ALJ also discounted Dr. Haronian's opinion that Plaintiff was temporarily totally disabled for workers' compensation purposes. (AR 22, 291.) Under state law, a claimant is disabled if he or she is unable to perform his or her prior work whereas a claimant for Social Security benefits is not disabled if he or she can do alternative work in the national economy, which is obviously a higher burden.
Although Plaintiff disagrees with the ALJ's interpretation of the medical evidence regarding Dr. Haronian's opinion, it is the ALJ's responsibility to resolve conflicts in the medical evidence.
The ALJ rejected the no lifting opinion of Dr. Haronian for specific, legitimate reasons supported by substantial evidence.
Plaintiff contends that the ALJ erred in discounting Plaintiff's 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 were "not entirely credible." (AR 21.) Because the ALJ did not make any finding of malingering, he was required to provide clear and convincing reasons supported by substantial evidence for discounting Plaintiff's credibility.
First, the ALJ found that Plaintiff's subjective symptom allegations were unsupported by the objective medical evidence. (AR 21.) An ALJ is permitted to consider whether there is a lack of medical evidence to corroborate a claimant's alleged symptoms so long as it is not the only reason for discounting the claimant's testimony.
Second, the ALJ also found Claimant's allegations inconsistent with his daily activities (AR 21), which is a legitimate consideration in evaluating credibility.
Plaintiff disputes the ALJ's adverse credibility finding but again it is the ALJ who has the responsibility to resolve ambiguities in the record.
The ALJ discounted Plaintiff's subjective symptom testimony for clear and convincing reasons supported by substantial evidence.
Plaintiff contends that the ALJ did not provide legitimate reasons to reject the opinion of Dr. Haronian, and thus the ALJ erred in not including in Plaintiff's RFC the no lifting restriction and the need to take a 10 minute break for every hour of standing. As already noted, the 10 minute break limitation is incorporated within the ALJ's RFC limitations of sitting up to 6 hours in an 8 hour workday and standing and/or walking only 2 hours in an 8 hour workday. The Court also found that the ALJ's rejection of Dr. Haronian's no lifting limitation was supported by substantial evidence. Thus, there was no need to include it in the ALJ's hypothetical question to the VE.
Plaintiff contends that the ALJ's RFC formulation and his finding that Plaintiff can perform his past relevant work are in error. The Court agrees, but the error was harmless because the ALJ also found that there is alternative work in the national economy of a sedentary nature that Plaintiff can perform.
At step four of the sequential process, the ALJ found that Plaintiff is capable of performing his past relevant work as a general clerk. (AR 22.) Plaintiff correctly observes that the specific job duties set forth in the Dictionary of Occupational Titles ("DOT") at 109.562-010 conflict with ALJ's RFC, which limits Plaintiff to only 2 hours of standing and walking. These limitations are more consistent with sedentary than with light work. SSR 83-10. According to DOT 209.562-010, a general clerk job is classified as light work which requires one to be on one's feet up to 6 hours in an 8 hour workday. The Commissioner argues that there is no necessary conflict between the ALJ's RFC and DOT 109.562-010 because a job may be considered light when it requires walking or standing to a significant degree, or "it requires sitting most of the time but entails pushing and/or pulling of arm or leg controls," or "when the job requires working at a production rate pace entailing the constant pushing and/or pulling of materials even though the weight of those materials is negligible." The DOT job requirements for a general clerk, however, do not include any use of pushing/pulling of arm or leg controls to any significant degree. The ALJ's light work RFC was in error, as was his finding that Plaintiff could perform his past relevant work.
The ALJ's error, however, was harmless.
Plaintiff repeats his argument that the ALJ should have developed the record further by recontacting Dr. Haronian or ordering a consultant examination. More specifically, Plaintiff contends that the ALJ, having rejected Dr. Haronian's no lifting limitation, did not base his RFC finding on any medical opinion. This contention is meritless. The ALJ relied on Dr. Haronian's opinion regarding 10 minute breaks and on Dr. Kohan's finding that Plaintiff had a normal gait and could walk without a cane. The ALJ also relied on the MRI and electrodiagnostic evidence and considered as well Plaintiff's daily activities. The ALJ explicitly stated he relied on "objective clinical findings, imaging studies, and the Claimant's allegations and testimony." (AR 22.) The record was "not inadequate to allow for a proper evaluation of evidence."
The ALJ properly determined that there were sedentary jobs in the national economy Plaintiff can perform.
The ALJ's RFC 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.