REPORT AND RECOMMENDATION RE: SOCIAL SECURITY DISABILITY APPEAL
MARY ALICE THEILER, Magistrate Judge.
Plaintiff proceeds through counsel in his appeal of a final decision of the Commissioner of the Social Security Administration (Commissioner). The Commissioner denied Plaintiff's application for Disability Insurance Benefits (DIB) after a hearing before an Administrative Law Judge (ALJ). Having considered the ALJ's decision, the administrative record (AR), and all memoranda of record, the Court recommends that this matter be AFFIRMED.
FACTS AND PROCEDURAL HISTORY
Plaintiff was born on XXXX, 1978.1 He has a GED and worked most recently as a combat engineer in the U.S. Army. (AR 219.)
Plaintiff applied for DIB in February 2015, alleging disability beginning July 16, 2012. (AR 180-83.) His application was denied at the initial level and on reconsideration, and he timely requested a hearing. (AR 114-16, 121-27.)
On November 20, 2015, ALJ Cynthia Rosa held a hearing, taking testimony from Plaintiff and a vocational expert (VE). (AR 38-86.) On February 26, 2016, the ALJ issued a decision finding Plaintiff not disabled. (AR 18-33.)
Plaintiff timely appealed. The Appeals Council denied Plaintiff's request for review on June 10, 2016 (AR 1-6), making the ALJ's decision the final decision of the Commissioner. Plaintiff appealed this final decision of the Commissioner to this Court, which found error in the ALJ's finding that Plaintiff's migraine headaches were not severe and remanded the case for further proceedings. (AR 1406-15.)
On remand, ALJ S. Andrew Grace held a hearing on February 15, 2018. (AR 1345-70.) On April 3, 2018, the ALJ issued a decision finding Plaintiff not disabled. (AR 1310-38.) Plaintiff sought judicial review of this decision.
JURISDICTION
The Court has jurisdiction to review the ALJ's decision pursuant to 42 U.S.C. § 405(g).
DISCUSSION
The Commissioner follows a five-step sequential evaluation process for determining whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920 (2000). At step one, it must be determined whether the claimant is gainfully employed. The ALJ found Plaintiff had not worked since the alleged onset date. (AR 1312.) At step two, it must be determined whether a claimant suffers from a severe impairment. The ALJ found severe Plaintiff's posttraumatic stress disorder, major depressive disorder, migraines, lumbago and low back strain, tinnitus, pes planus/valgoplanus, Achilles tendonitis and ankle weakness status-post history of anterior talofibular ligament tear and tenosynovitis of the hallucis longus. (AR 1313-14.) Step three asks whether a claimant's impairments meet or equal a listed impairment. The ALJ found that Plaintiff's impairments did not meet or equal the criteria of a listed impairment. (AR 1314-16.)
If a claimant's impairments do not meet or equal a listing, the Commissioner must assess residual functional capacity and determine at step four whether the claimant demonstrated an inability to perform past relevant work. The ALJ found Plaintiff able to perform light work, which involves lifting/carrying 20 pounds occasionally and 10 pounds frequently, and standing and/or walking for up to six hours in an eight-hour workday. The ALJ included additional limitations: Plaintiff can occasionally climb ramps and stairs, but can never climb ladders, ropes, or scaffolds. He can occasionally balance, stoop, kneel, crouch, and crawl. He can perform simple, routine tasks, in work that requires no contact with the public and no more than superficial contact with co-workers. He must avoid concentrated exposure to hazards and greater than a moderate noise level. (AR 1316.) With that assessment, the ALJ found Plaintiff unable to perform his past relevant work. (AR 1336.)
The ALJ continued to step five of the sequential evaluation, where the burden shifts to the Commissioner to demonstrate that the claimant retains the capacity to make an adjustment to work that exists in significant levels in the national economy. With the assistance of the VE, the ALJ found Plaintiff capable of performing other jobs, such as routing clerk, agricultural produce sorter, and office helper. (AR 1336-37.)
This Court's review of the ALJ's decision is limited to whether the decision is in accordance with the law and the findings supported by substantial evidence in the record as a whole. See Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993). Substantial evidence means more than a scintilla, but less than a preponderance; it means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). If there is more than one rational interpretation, one of which supports the ALJ's decision, the Court must uphold that decision. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).
Plaintiff argues the ALJ erred in discounting the opinions of treating primary care physician Eddie Wang, M.D. He asks that the ALJ's decision be reversed and his claim remanded for an award of benefits or, in the alternative, for further proceedings. The Commissioner argues the ALJ's decision is supported by substantial evidence and should be affirmed.
Medical Opinion Evidence
In general, more weight should be given to the opinion of a treating physician than to a non-treating physician, and more weight to the opinion of an examining physician than to a nonexamining physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). Where not contradicted by another physician, a treating or examining physician's opinion may be rejected only for "`clear and convincing'" reasons. Id. (quoting Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991)). Where contradicted, a treating or examining physician's opinion may not be rejected without "`specific and legitimate reasons' supported by substantial evidence in the record for so doing." Id. at 830-31 (quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). The ALJ may reject physicians' opinions "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) (citing Magallanes, 881 F.2d at 751). Rather than merely stating her conclusions, the ALJ "must set forth [her] own interpretations and explain why they, rather than the doctors', are correct." Id. (citing Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988)).
In this case, Dr. Wang completed checkbox form opinions in August 2015, January 2017, and November 2017, indicating that Plaintiff's migraines had remained at the same frequency and severity since February 2013. (AR 1597-1601.) According to Dr. Wang, since February 2013 Plaintiff experienced 2-4 migraines per week, which required him to rest in a darkened room for hours afterward, and even when medication successfully controlled the migraines, the medication made him sleep for five hours afterward. (Id.)
The ALJ's decision explains why he found that Plaintiff's allegations of limitations caused by migraines, as well as Dr. Wang's opinions repeating those alleged limitations, were inconsistent with the record. (AR 1318-20, 1334-35.) Specifically, the ALJ found that Plaintiff did not report to his providers that he experienced migraines as frequently as he claimed, or that he described to his providers the severe medication side effects he and Dr. Wang described. (AR 1318-20.) The ALJ summarized Plaintiff's reports of migraines and found that after Plaintiff began using Imitrex medication in August 2015, he did not continue to report frequent or long-lasting headaches. (AR 1319.) The ALJ also found that Plaintiff's activities (particularly his childcare responsibilities) were inconsistent with his allegations of frequent debilitating migraines, as well as his allegations of medication side effects. (AR 1319-20.) Lastly, the ALJ identified a discrepancy between Plaintiff's headache log and his treatment record: on a day that Plaintiff claimed he had experienced a headache that started at 8 a.m. and required him to rest until 2:50 p.m., treatment records showed that Plaintiff attended a group counseling session from 9-10 a.m. and also met with his psychiatric nurse practitioner. (AR 1320 (citing AR 1575, 1732-37).) The ALJ referenced his earlier discussion of Plaintiff's migraine allegations when assessing Dr. Wang's opinions, gave little weight to the opinions due to "insufficient evidence documentation of the level of migraine claimed by Dr. Wang in the record[.]" (AR 1335.)
Plaintiff argues that the ALJ merely speculated that because the treatment notes do not document his reports of migraines as frequently as he or Dr. Wang claimed, that he was not actually experiencing them at the alleged frequency. Dkt. 10 at 3. This argument is not persuasive. The ALJ does not err in comparing a claimant's allegations of limitations with the treatment record to determine whether the claimant consistently reported those limitations to providers. See, e.g., Greger v. Barnhart, 464 F.3d 968, 972-73 (9th Cir. 2006) ("Because Greger did not report any fatigue to his doctors during the relevant period, the ALJ properly limited the hypothetical to the medical assumptions supported by substantial evidence in the record."); McCawley v. Astrue, 423 Fed. Appx. 687, 690 (9th Cir. Mar. 21, 2011) (affirming an ALJ's adverse credibility determination based in part on the rejection of the claimant's "serious side effects from her medications because she failed to complain to her treating psychiatrists of such side effects"). It is possible to interpret the infrequent mentions of migraines in the treatment record to mean, as Plaintiff suggests, that the headaches had "plateaued" in frequency (Dkt. 10 at 3), but it is not unreasonable to interpret infrequent mentions to mean that the headaches occurred infrequently. The ALJ's interpretation is reasonable, and therefore should not be disturbed. See Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982) ("Where evidence is susceptible of more than one rational interpretation, it is the ALJ's conclusion which must be upheld. In reaching his findings, the law judge is entitled to draw inferences logically flowing from the evidence."). The ALJ's finding in this regard is supported by substantial evidence and based on a reasonable interpretation of the record, and it is a specific, legitimate reason to discount Dr. Wang's opinions indicating that Plaintiff experienced migraines more frequently.
Plaintiff also argues that the ALJ overlooked the side effects associated with Plaintiff's use of the headache medicine Imitrex. Dkt. 10 at 4. According to Plaintiff, the ALJ "simply ignore[d]" his need to sleep for five hours after taking Imitrex. Id. The ALJ did not ignore Plaintiff's alleged need to sleep for hours after taking Imitrex: the ALJ mentioned this specific allegation and explained that he discounted it because Plaintiff did not regularly report this side effect to providers and because this allegation was inconsistent with his activities, namely childcare. (AR 1317, 1319-20.) Plaintiff contends that he could engage in childcare activities when he was feeling well enough to do so, and that the ALJ merely speculated that he engaged in activities inconsistent with sleeping or resting for hours at a time during the day multiple times per week. Dkt. 10 at 4.
Again, the ALJ's finding is not based on mere speculation. The record indicates that Plaintiff sought increasingly more time with his children via modifications to his parenting plan, and that he also cares for his stepson during the day while his wife is at work, before and after school. (See AR 1930, 2014.) The ALJ reasonably found that Plaintiff's regular commitments to spend time with both his own children and his stepson suggested that his migraines did not cause as much disruption to his schedule as frequently as he alleged. Furthermore, the ALJ noted the discrepancy between Plaintiff's migraine log and his activities, which also undermined the reliability of his migraine allegations, and the ALJ's findings with regard to that discrepancy are not disputed by Plaintiff.
Because the ALJ thoroughly discussed Plaintiff's allegations of limitations caused by migraines and provided multiple reasons to conclude that his migraines were less limited than either he described or Dr. Wang described, the ALJ did not err in discounting Dr. Wang's opinions.2
CONCLUSION
For the reasons set forth above, the Court recommends this matter should be AFFIRMED.
DEADLINE FOR OBJECTIONS
Objections to this Report and Recommendation, if any, should be filed with the Clerk and served upon all parties to this suit within fourteen (14) days of the date on which this Report and Recommendation is signed. Failure to file objections within the specified time may affect your right to appeal. Objections should be noted for consideration on the District Judge's motions calendar for the third Friday after they are filed. Responses to objections may be filed within fourteen (14) days after service of objections. If no timely objections are filed, the matter will be ready for consideration by the District Judge on April 5, 2019.
ORDER AFFIRMING COMMISSIONER
The Court has reviewed the entire record, including the Administrative Record, the memoranda of the parties, and the Report and Recommendation of United States Magistrate Judge Mary Alice Theiler. It is therefore ORDERED:
(1) The Court adopts the Report and Recommendation;
(2) The Court AFFIRMS the decision of the Commissioner; and
(3) The Clerk shall direct copies of this Order to all counsel and to Judge Theiler.
JUDGMENT IN A CIVIL CASE
____Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.
X Decision by Court. This action came to consideration before the Court. The issues have been considered and a decision has been rendered.
THE COURT HAS ORDERED THAT
By Order of the Court, the decision of the Commissioner is AFFIRMED.
