CHARLES F. EICK, Magistrate Judge.
Plaintiff filed a complaint on May 15, 2014, seeking review of the Commissioner's denial of benefits. The parties consented to proceed before a United States Magistrate Judge on November 3, 2014. Plaintiff filed a motion for summary judgment on November 6, 2014. Defendant filed a motion for summary judgment on January 22, 2015. The Court has taken the motions under submission without oral argument.
Plaintiff asserted disability since September 1, 2007,
In a decision dated December 14, 2012, the ALJ found that Plaintiff has the following severe impairments: "status post right L5-S1 hemilaminotomy September 2007; status post C4-5, C5-6 discectomy, and fusion April 2008; osteopenia; and remote angioplasty history 2001" (A.R. 24). The ALJ found Plaintiff's alleged depression and polysubstance abuse nonsevere (A.R. 25). The ALJ determined that Plaintiff retains the residual functional capacity for light work with: (1) occasional overhead reaching; (2) no constant fine or gross manipulation; (3) no power gripping, grasping, or torquing bilaterally; (4) frequent climbing, balancing, kneeling, and crawling, and (5) occasional climbing ladders, stooping, and crouching (A.R. 28). The ALJ discounted the contrary opinions of treating physician Dr. Benjamin Lish (A.R. 26-33). The ALJ also discounted Plaintiff's testimony and certain lay witness evidence (A.R. 26-30).
The ALJ adopted the testimony of the vocational expert in concluding that a person having the limitations the ALJ found to exist could perform Plaintiff's past relevant work as an administrative clerk and billing clerk and, alternatively, could perform light, unskilled work as a parking attendant or storage facility rental clerk — jobs existing in significant numbers in the national economy (A.R. 33-35).
The Appeals Council considered additional treatment records from Dr. Lish, but denied review (A.R. 1-6, 761-70).
Under 42 U.S.C. section 405(g), this Court reviews the Administration's decision to determine if: (1) the Administration's findings are supported by substantial evidence; and (2) the Administration used correct legal standards.
Where, as here, the Appeals Council considered additional evidence but denied review, the additional evidence becomes part of the record for purposes of the Court's analysis.
After consideration of the record as a whole, Defendant's motion is granted and Plaintiff's motion is denied. The Administration's findings are supported by substantial evidence and are free from material
Dr. Moustapha Abou-Samra performed spinal surgeries on Plaintiff.
The record reflects a long history of drug seeking behavior by Plaintiff. Dr. Abou-Samra prescribed Vicodin from November 2006 through February 2007, and again on October 29, 2007 (A.R. 433-34). On November 1, 2007, Plaintiff sought additional pain medication from Dr. Abou-Samra (A.R. 335). Dr. Abou-Samra previously "tentatively" had prescribed Vicodin, but then provided Dilaudid (also a narcotic pain reliever) "for the time being" because Plaintiff claimed Vicodin caused her stomach problems (A.R. 335). Yet, on November 12, 2007, Plaintiff presented to the emergency room with complaints of back pain for which she was prescribed Vicodin (A.R. 330). And, on November 16, 2007, Dr. Abou-Samra renewed Plaintiff's Vicodin prescription, but declined to renew Plaintiff's Dilaudid prescription because Plaintiff reportedly took too much (A.R. 331). Dr. Abou-Samra recommended that Plaintiff's pain be managed with physical therapy (A.R. 331). On December 17, 2007, Dr. Abou-Samra noted that Plaintiff was taking too much narcotic medication and that he had explained very clearly that he was trying to taper off Plaintiff's Dilaudid altogether (A.R. 327).
Meanwhile, in September of 2007, Plaintiff began seeing Dr. Merrill Bacon, who initially prescribed Dilaudid (A.R. 347-421). On November 19, 2007 (only a week after Plaintiff's emergency room visit for which she was prescribed Vicodin (A.R. 330)), Dr. Bacon again prescribed Dilaudid (A.R. 402-03). During the course of Plaintiff's treatment with Dr. Bacon, which ended on or around August 21, 2008, Dr. Bacon prescribed Dilaudid, Roxicodone, Methadone and Norco.
On several occasions, Plaintiff requested early prescription refills. On December 7, 2007, Plaintiff called Dr. Bacon to request more pain medication, claiming that she had to double what she was taking because of supposedly increased pain from physical therapy (A.R. 404). On January 14, 2008, Plaintiff called Dr. Bacon to request a prescription for Vicodin, claiming that her purse containing all of her Norco and Dilaudid had been stolen (A.R. 397). Dr. Bacon required a police report, which Plaintiff said she did not want to file (A.R. 397). On January 28, 2008, Dr. Bacon denied a refill request for Hydrocodone, indicating that Plaintiff had Dilaudid (A.R. 388). On February 18, 2008, Plaintiff asked for Vicodin, claiming that she had washed her Dilaudid down the garbage disposal because the Dilaudid supposedly made her "too sleepy" (A.R. 387). On March 17, 2008, Plaintiff reported that she was taking too much Methadone, she "like[d] it too much," and wanted to go back to Vicodin (A.R. 383). Plaintiff was taking more Methadone than allowed.
On March 7, 2008, Plaintiff had returned to Dr. Abou-Samra, reporting she was taking a combination of Vicodin and Dilaudid and seeking refills because Dr. Bacon purportedly was unable to see Plaintiff that week (A.R. 323). Dr. Abou-Samra agreed to refill the medications temporarily (A.R. 323).
On April 18, 2008, Plaintiff also saw Dr. Eric Birdwell for evaluation of alleged hip pain, requesting Dilaudid (A.R. 640-41). Dr. Birdwell refused (A.R. 641).
Plaintiff went to the emergency room on May 19, 2008, complaining of neck pain after an alleged fall (A.R. 298-99). An x-ray of her cervical spine was normal (A.R. 299;
Beginning on May 28, 2008, Dr. Bacon prescribed Suboxone for Plaintiff, which is used to treat opiate addiction (A.R. 351, 354, 362, 366-70).
It appears that Plaintiff then changed doctors. The Administrative Record contains treatment records from Dr. William Davis from September 9, 2008 through August 29, 2009 (A.R. 446-82). Plaintiff sought medical clearance to return to an outpatient drug rehabilitation program after a nurse in the program noted that Plaintiff had swelling in her legs and feet and that Plaintiff allegedly had fallen when Plaintiff stood up (A.R. 480-81). Upon reporting that Plaintiff was slurring her words, Dr. Davis ordered a drug abuse screening (A.R. 481-82). Plaintiff then was taking Suboxone, and Dr. Davis wanted Plaintiff to wean off of that drug (A.R. 481-82). Plaintiff's gait and coordination were normal, as well as her mood, memory, affect, and judgment (A.R. 481).
Plaintiff returned on September 19, 2008, with her swelling resolved (A.R. 479). She asked for an injection of Toradol and a prescription for Tramadol for alleged back pain, which Dr. Davis ordered with a note "[n]o further narcotics for her back pain" (A.R. 479-80). Plaintiff reportedly was nervous or anxious (A.R. 479). Her gait and coordination were normal (A.R. 479). Dr. Davis released Plaintiff to return to the rehabilitation program (A.R. 480).
Plaintiff saw another doctor at Dr. Davis's medical office on October 8, 2008, requesting a Toradol shot and more Tramadol for alleged low back pain, which that doctor ordered (A.R. 476-78). Plaintiff returned two days later with complaints of shoulder pain for which she was given a muscle relaxant (A.R. 475-76).
On October 18, 2008, Plaintiff complained of pain from dental work the week before and back pain supposedly caused by her niece "jumping on her back" (A.R. 474). When Plaintiff reported relief after taking Vicodin, the attending doctor discussed the use of opiates with Plaintiff (A.R. 474). Plaintiff was given a Toradol injection and a Tramadol prescription (A.R. 475). She had normal reflexes and her mood and affect were normal (A.R. 474).
On October 28, 2008, Plaintiff complained of low back pain without radiation (A.R. 470). Plaintiff denied receiving relief from Tramadol (A.R. 470). Plaintiff had a positive straight leg raising test (A.R. 471). Plaintiff was given a Toradol injection and prescribed hydrocodone-acetaminophen (Vicodin or Norco) for her alleged pain (A.R. 471).
Plaintiff returned on October 29, 2008, complaining of back and tooth pain (A.R. 471). Once again, Plaintiff was given an Toradol injection and prescribed Tramadol (A.R. 473).
On October 30, 2008, Plaintiff saw Dr. Davis for follow up from a recent syncope episode (A.R. 468). Plaintiff claimed she re-injured her low back while on vacation (A.R. 468). Dr. Davis refused to order pain relievers (A.R. 469).
Plaintiff visited a Dr. Braganza on November 15, 2008, complaining of tooth and low back pain and requesting a Toradol shot and a pain medication refill (A.R. 466). Dr. Braganza authorized a Toradol shot but advised Plaintiff to follow up with her primary care physician for a refill on her pain medications, given Plaintiff's history of "opioid dependence" (A.R. 467-68).
Plaintiff returned to Dr. Davis on December 1, 2008, for a regular physical examination (A.R. 462-63). She reported being off Lexapro and being okay "mood wise," but claimed lower back pain radiating to her right leg (A.R. 463). On examination, she was observed to be depressed and nervous/anxious (A.R. 464). Dr. Davis diagnosed,
Plaintiff returned on December 5, 2008, again complaining of right radicular low back pain (A.R. 460). A Dr. Stephenson noted that Plaintiff had a history of Vicodin abuse and that Plaintiff abuses narcotics "to the point of being intoxicated and falling" (A.R. 460). Dr. Stephenson indicated that Plaintiff needed a non-narcotic, non-pharmacologic treatment for her alleged pain (A.R. 460). Plaintiff reportedly planned to re-enter a detoxification program because she did not complete her prior treatment for opioid abuse (A.R. 460). Dr. Stephenson reviewed a recent MRI and noted a positive right side straight leg raising test, spasm, and tenderness, with mild diminished right S1 pattern sensation (A.R. 460-61). Per Dr. Stephenson's discussion with Dr. Davis prior to Plaintiff's visit, the plan was to avoid prescribing pain medications, given Plaintiff's planned addiction treatment (A.R. 462). The doctor ordered a right S1 TFESI (Transforaminal Epidural Steroid Injection) (A.R. 462).
Plaintiff returned to Dr. Davis on December 17, 2008, "for follow up of disability which ended 2 weeks ago" (A.R. 458). Plaintiff reported that she was on disability to deal with opioid addiction but she reportedly was unable to finish treatment (A.R. 458). Plaintiff claimed she could not return to work because of her "chronic pain issue," even if she had no substance abuse problems (A.R. 458). She claimed that she was unable to sit very long due to her "back and leg pain" (A.R. 458). She had been off Lexapro for a month and reportedly was doing well "mood wise" (A.R. 458). Dr. Davis indicated that Plaintiff was "negative" for depression and that Plaintiff was "clean now" (A.R. 458). Dr. Davis did not prescribe a pain reliever, but did refer Plaintiff to Behavioral Health to rearrange an outpatient treatment program and also referred her "to Dr. D. Armstrong for suboxone" (A.R. 459).
Plaintiff returned to Dr. Davis on February 9, 2009, claiming there was "no way she can return to work because of the severity of her chronic low back pain" (A.R. 455-56). She reportedly was back on Norco, from her dentist and from a Dr. Armstrong, and she wanted a refill (A.R. 456). Plaintiff also wanted a Lexapro refill (A.R. 456). Dr. Davis refilled Plaintiff's Lexapro and ordered ibuprofen for her alleged pain (A.R. 457). Dr. Davis extended Plaintiff's temporary disability to April 6, 2009, "[b]ecause of chronic low back pain" (A.R. 457).
Plaintiff returned to Dr. Davis on April 22, 2009 (A.R. 453-54). Despite his earlier plan to avoid prescribing narcotics, Dr. Davis prescribed hydrocodone-acetaminophen and extended Plaintiff's disability to July 6, 2009 (A.R. 455).
Plaintiff saw a Dr. Sanders on August 29, 2009, complaining of low back pain (A.R. 452). Plaintiff again was prescribed hydrocodone-acetaminophen (A.R. 453).
Plaintiff then underwent a single week of drug rehabilitation at Vista Del Mar Hospital (A.R. 567-71).
Thereafter, Plaintiff began seeing Dr. Benjamin Lish. The Administrative Record contains monthly treatment records from Dr. Lish from March 2010 through January 2013 (A.R. 554-59, 625-33, 674-770). On March 8, 2010, Plaintiff reported having been in a motor vehicle accident in September 2009 (A.R. 633). Since the accident, Plaintiff assertedly had pain radiating down her right buttock to her right knee (A.R. 633). She reported taking four Norco per day for alleged pain (A.R. 633). On examination, Plaintiff had positive straight leg raising on her right leg (A.R. 633). Dr. Lish referred Plaintiff for MRI and EMG studies and prescribed Norco (A.R. 633).
Plaintiff returned to follow up on her MRI results on April 8, 2010 (A.R. 632).
On May 11, 2010, Plaintiff discussed medical marijuana with Dr. Lish (A.R. 631). Plaintiff was taking Norco for her alleged pain (A.R. 631). On June 2, 2010, Dr. Lish reported that EMG results from May 28, 2010 showed right carpal tunnel syndrome and left C5-C6 root compression (A.R. 630). Dr. Lish refilled Plaintiff's Norco (A.R. 629).
On July 7, 2010, Plaintiff reported that her alleged weakness in her hands and alleged pain were "about the same" (A.R. 628). Dr. Lish refilled Plaintiff's Norco (A.R. 628).
Later in July, Plaintiff returned, stating that she had been denied permanent disability and was seeking a Norco refill because she supposedly had "loaned" her Norco to a friend (A.R. 627). Dr. Lish again refilled Plaintiff's Norco (A.R. 627).
On August 12, 2010, Plaintiff returned to discuss her alleged disability (A.R. 626). On this occasion, Plaintiff complained of depression, anxiety, back, neck, and right leg pain, and asserted numbness in her hands (A.R. 626). Dr. Lish's notes indicate that Plaintiff claimed to be unable to sit for more than two hours at a time (A.R. 626).
On October 12, 2010, Plaintiff reportedly was taking up to five Norco per day for alleged hand, shoulder, and back pain (A.R. 558). On December 16, 2010, Plaintiff returned with complaints of back pain and sought to renew her handicap placard (A.R. 557). Plaintiff reportedly was still having weakness and pain in her hands and dropping things, but her anxiety reportedly was stable on Xanax (A.R. 557). When she returned on January 13, 2011, Plaintiff reported tingling and numbness in her left arm (A.R. 556). Her alleged chronic pain was described as stable (A.R. 556).
Plaintiff went on vacation and then came back for a follow up on February 4, 2011 (A.R. 555). Plaintiff was referred to occupational therapy for her bilateral "hand weakness" and peripheral neuropathy (A.R. 555). When she returned on March 1, 2011, Plaintiff reported tingling and numbness going down her right leg (A.R. 554). Plaintiff received a Toradol injection (A.R. 554).
On May 2, 2011, Plaintiff alleged severe pain in her neck for three days but no recent trauma or injury (A.R. 697). Allegedly, her hands were both tingling and weak (A.R. 697). Dr. Lish gave Plaintiff a Toradol injection and noted that Plaintiff would "self-refer" for counseling (A.R. 697). On June 13, 2011, Plaintiff reported she was taking 150 Norco tablets every 12 days, two at a time (A.R. 696). Later that month, she called asking for stronger pain medication and was given Percocet (A.R. 696). On July 16, 2011, Dr. Lish prescribed 300 Norco tablets (A.R. 689). On August 15, 2011, Dr. Lish dispensed 300 more Norco tablets (A.R. 687).
Plaintiff returned to Dr. Lish on September 1, 2011, with complaints of allegedly worsening neck pain and associated headaches (A.R. 686-88). Starting on this date, the format of Dr. Lish's treatment notes changed and included an "active problems" section which mentioned anxiety but not depression (A.R. 674, 677, 680, 683, 686, 690, 692, 703, 706, 710, 715, 733, 735, 738, 742, 745, 767). Plaintiff reportedly was appealing a disability denial (A.R. 686). Plaintiff claimed she had not been using Norco as much as before and supposedly was trying to cut down (A.R. 686). On September 12, 2011, she called, alleging headaches and requesting Percocet instead of Norco (A.R. 692).
On October 18, 2011, Plaintiff alleged worsening anxiety and depression, reportedly because of a family crisis (A.R. 683). She requested a Norco refill, stating that she normally gets 300 Norco tablets per month and last month she only got 220 Norco tablets (A.R. 683). Dr. Lish refilled the 300 Norco tablets as requested but noted that Plaintiff "needs to be changed to a longer acting pain medication and get off Norco" (A.R. 684). Dr. Lish also refilled Plaintiff's Xanax and increased her Abilify (A.R. 684). One week later, Plaintiff sought a refill of Soma, Norco, and Xanax, claiming that her purse had been stolen (again) (A.R. 680). Upon review, Dr. Lish noted that Plaintiff had received small amounts of Norco from her dentist, but had received 740 tablets from two different pharmacies during the month of September 2011 (A.R. 680). Dr. Lish assessed Plaintiff with narcotic pain medication abuse, and referred her to long term pain management and substance abuse counseling (A.R. 681). Dr. Lish reduced Plaintiff's Norco prescription to 112 tablets for two weeks (A.R. 681).
On November 1, 2011, Plaintiff requested a refill of Xanax, telling Dr. Lish that her purse was stolen (again) so it would be "an early refill" (A.R. 690-91). On November 8, 2011, Plaintiff reported she was "really hurting" and had "been in bed for the past three days" (A.R. 677). Plaintiff also wanted to see a psychiatrist "for low sex drive" (A.R. 677). Dr. Lish referred Plaintiff for further MRI studies and refilled 240 Norco tablets as a "30 day supply" (A.R. 679).
On December 5, 2011, Plaintiff alleged headaches and chronic neck pain (A.R. 674-75). Dr. Lish prescribed 300 Norco tablets and 60 Percocet tablets (A.R. 675).
On January 17, 2012, Plaintiff presented with bronchitis (A.R. 745-46). She returned for followup and reported that a Fentanyl patch was "helpful in reducing overall pain" (A.R. 742). Dr. Lish said he would refer Plaintiff for neurosurgery based on her L4-5 bulging disc, but Plaintiff wanted to wait for further test results (A.R. 744).
On February 9, 2012, Plaintiff reported that she had been in another motor vehicle accident, allegedly causing "considerable" neck pain (A.R. 738). Plaintiff was given a Toradol injection and prescribed Norco (A.R. 740). Later that month, Plaintiff claimed that her neck pain was worsening (A.R. 735). She was given a Fentanyl patch and referred to neurosurgery (A.R. 737).
Dr. Lish corresponded with Plaintiff by email on March 12, 2012 (A.R. 728-30, 733). Plaintiff had requested another Norco refill (A.R. 730). Dr. Lish replied, "[A]re you using the [F]entanyl patch? ¶ [I] hope so. [B]ecause if you are not using it, then [I] am convinced that you are abusing the [N]orco and don't want to treat your pain. ¶ [I]f you are, then we can cut the [N]orco quantity by 50%, maybe more. [Y]ou have been on a ridiculous amount of [N]orco for too long" (A.R. 730). Plaintiff denied abusing Norco and claimed she had stopped using the Fentanyl patch because of an alleged rash (A.R. 729). Dr. Lish replied, "[I] will note that you had a `rash' with the [F]entanyl patch. [H]owever, [I] find it interesting that you did not have a rash when you used the patches you got from your roommate. . ." (A.R. 728 (elipses original)). Dr. Lish told Plaintiff she needed to think about what she was trying to achieve, and that records indicated that she was using 13-14 tablets daily (A.R. 728). He continued, "[I] don't have time to continue to monitor your use of [N]orco. [I] have already spent 30 minutes going over all of this and frankly it pisses me off. [Y]ou have been abusing both the medication and me. ¶ [I] will fill for #300 and [I] expect it to last a full 30 days. [I]f you loose [sic] your rx, if it gets stolen, if your dog eats it, if it burns in a fire, if you give some of your pills to someone else (which [I] do not recommend as [I] think it is a felony) [I] will NOT replace the tablets. [Y]ou are abusing [N]orco no matter how much you try to deny it. [T]his is the last time [I] will warn you. [I]f you continue to take more than prescribed (and [I] am going to change the rx to specify that you cannot take more than 10 tablets per 24 hours), [I] will have no choice but to report you to the DEA and drop you as a patient. . . . [Y]ou will always have pain and you will have to find other ways to control your pain. [Q]uitting smoking will help a lot. [R]egular exercise. [C]harting how many pills you take. [Y]ou should be taking 4-6 tablets per day, NOT 10." (A.R. 728-29).
On May 8, 2012, Dr. Abou-Samra saw Plaintiff for a neurosurgical consultation (A.R. 722-24). Plaintiff had been complaining of neck pain (A.R. 722). Dr. Abou-Samra reviewed cervical and lumbar spine MRI studies, finding no clinically significant abnormalities from the lumbar spine MRI, and some stenosis at the C3-4 level from the cervical spine MRI (A.R. 723). Dr. Abou-Samra stated that Plaintiff had no weakness in the lower extremities and no sensory abnormalities (A.R. 723). Dr. Abou-Samra identified no clear pathology to be corrected surgically (A.R. 723). Dr. Abou-Samra saw Plaintiff again on May 22, 2012, reviewing with Plaintiff her imaging studies (A.R. 720-21). Dr. Abou-Samra thought Plaintiff's pain should be managed with pain management and conservative care; no surgery was indicated (A.R. 720).
Plaintiff returned to Dr. Lish on June 19, 2012, requesting a medical marijuana letter (A.R. 715-19). Plaintiff reported having chest pain and shortness of breath for the past two months, and claimed she was under a lot of stress (A.R. 715). Plaintiff had been getting 300 Norco tablets every 30 days (A.R. 715). Dr. Lish ordered a urine toxicology screen to monitor Plaintiff's Norco use and referred Plaintiff for an ECG for her chest pains (A.R. 717). On July 30, 2012, Plaintiff returned to discuss her lab results (A.R. 710-13). Dr. Lish refilled Plaintiff's Norco again (A.R. 712). By now, Plaintiff was also using medical marijuana (A.R. 711;
On September 17, 2012, Plaintiff claimed that her pain had worsened and that she supposedly had numbness in her hand (A.R. 706). Dr. Lish refilled Plaintiff's Norco again (A.R. 709). Plaintiff returned on October 9, 2012 to have Dr. Lish complete her disability forms (discussed below) (A.R. 703-05). On January 25, 2013, Plaintiff returned with a cough (A.R. 767). Dr. Lish refilled Plaintiff's Norco again (A.R. 769).
Psychologist Samantha Case evaluated Plaintiff on January 9, 2011 (A.R. 511-14). Plaintiff complained of depression beginning approximately one year earlier (A.R. 511). Plaintiff described as mild her symptoms of depressed mood, diminished interest in activities, and fatigue (A.R. 511). Plaintiff then was taking Cymbalta, Abilify, and Xanax, prescribed by Dr. Lish (A.R. 511). Plaintiff claimed that she has difficulty washing her hair and using a keyboard, and also claimed that doing anything longer than 15 to 20 minutes makes her have to lie down for an hour (A.R. 512). Plaintiff's posture and gait were normal (A.R. 512). Dr. Case indicated Plaintiff "has preoccupations with physical pain" (A.R. 512).
Dr. Case diagnosed Plaintiff with a mood disorder due to her general medical condition of supposed back pain and assigned a GAF of 70 (A.R. 513). Dr. Case stated that Plaintiff had mild impairment in mental health functioning, with a mild level of motivation and follow through, and mild cognitive limitations (A.R. 513). Dr. Case believed that Plaintiff's mental health condition "probably" would abate within 12 months (A.R. 513). Dr. Case also opined that Plaintiff would be able to do "1-2 simple and repetitive tasks on a regular basis," with no impairment in her ability adequately to perform complex tasks or in her ability to accept instructions from supervisors or to interact with coworkers and the public (A.R. 514).
On January 22, 2011, Dr. Fariba Vesali examined Plaintiff and prepared a comprehensive orthopedic evaluation (A.R. 517-21). Plaintiff complained of pain in both hands, left forearm pain, right buttock pain with alleged radiation to the right knee, and chronic low back pain (A.R. 517). Plaintiff claimed that sitting or standing more than 10 minutes at a time aggravates her low back pain, which subsides when she lies down (A.R. 518). Plaintiff's only admitted daily activity was doing laundry (A.R. 518). She said she stopped working due to hand and low back pain (A.R. 518). Plaintiff was taking Norco, Xanax, Gabapentin, Cymbalta, Abilify, Prilosec, B12, and prescription cannibus (A.R. 518). On examination, Plaintiff was observed to have no difficulties getting on and off the examining table, taking off her shoes, and untying and tying her right shoe (A.R. 518). Plaintiff had a normal gait and was able to walk on toes and heels, although she had claimed that walking on her toes and heels aggravated her alleged low back pain (A.R. 519). Plaintiff was not using any assistive device for ambulation (A.R. 519).
Dr. Vesali diagnosed mild right carpal tunnel syndrome, chronic low back pain, status post back surgery, with possible right sacroiliac joint dysfunction (A.R. 520). Dr. Vesali did not believe that Plaintiff's condition would impose any limitations for 12 continuous months, and opined that Plaintiff could walk, stand, and sit six hours in an eight-hour day with normal breaks, and would have no limitations in lifting, carrying, posture, manipulation, or environment, and no need for an assistive device for ambulation (A.R. 520).
State agency review physician Dr. G. Ikawa completed a Psychiatric Review Technique form and related analysis dated February 22, 2011 (A.R. 524-37). Dr. Ikawa found that Plaintiff would have only mild restriction in activities of daily living and in maintaining concentration, persistence, or pace (A.R. 532). Dr. Ikawa agreed that Dr. Case's opinion was supported by the evidence, and found Plaintiff's psychiatric condition "non-severe" (A.R. 536-37).
State agency review physician Dr. I. Ocrant completed a Physical Residual Functional Capacity Assessment form dated February 23, 2011 (A.R. 538-42). Dr. Ocrant found Plaintiff capable of performing medium work (
In a June 20, 2011 Disability Determination Explanation, two other state agency review physicians looked at the available record and confirmed the prior findings that Plaintiff's alleged mental condition is non-severe, and that she does not suffer from a disabling physical condition (A.R. 109-19). These doctors gave "great weight" to the consultative examiners' opinions (A.R. 118).
The Administrative Record contains relevant non-medical and medical evidence that "a reasonable mind might accept as adequate to support [the] conclusion" that Plaintiff is not disabled from all employment.
First, with respect to Plaintiff's alleged mental impairments, the ALJ properly relied on Dr. Case's opinion that Plaintiff's mental impairments were non-severe.
Second, with respect to Plaintiff's alleged physical impairments, the ALJ properly relied on the state agency physicians to find Plaintiff capable of performing light work with some postural limitations (A.R. 28).
The vocational expert testified that a person with the residual functional capacity the ALJ found to exist could perform Plaintiff's past relevant work or unskilled light work as a parking attendant or storage facility rental clerk (A.R. 71-72). The vocational expert's testimony furnishes substantial evidence there exist significant numbers of jobs Plaintiff can perform.
To the extent the record contains conflicting evidence, it was the prerogative of the ALJ to resolve the conflicts.
Plaintiff contends that the ALJ improperly discounted Dr. Lish's opinions.
Dr. Lish also completed a Physical Residual Functional Capacity Questionnaire form dated October 9, 2012 (A.R. 575-79). Dr. Lish opined that Plaintiff had chronic neck and back pain with tingling/numbness in her legs and arms, depressed and anxious mood, and weakness in her hands and legs (A.R. 575). He claimed Plaintiff's pain was 7-8 on a 10-point scale daily, with sharp stabbing pain in the neck and low back (A.R. 575). According to Dr. Lish, narcotic pain medications cause Plaintiff to be drowsy, dizzy, and cloud her thoughts (A.R. 575). Walking, sitting, and standing supposedly increased Plaintiff's pain (A.R. 575). The clinical findings and objective findings assertedly supporting Plaintiff's pain were stated to be a bulging disc at L3-4 compressing the nerve root, as well as Plaintiff's claimed inability to stand on the balls of her feet (A.R. 575). Dr. Lish opined that Plaintiff would frequently or constantly have interference with her attention and concentration to perform even simple work tasks, and would be incapable of even a low stress job due to her need for narcotic pain medications (A.R. 576). Dr. Lish opined that Plaintiff could walk up to one block, could sit 15 minutes, and could stand 15 minutes at one time (A.R. 576). According to Dr. Lish, Plaintiff could sit and stand or walk less than two hours in an eight-hour workday (A.R. 577). Dr. Lish further opined that Plaintiff would have to walk around every 30 minutes for five to six minutes at a time, would have to shift positions at will, would have to take unscheduled breaks once or twice an hour for 10 to 20 minutes, could rarely lift less than 10 pounds, and could rarely look down or up, but could occasionally turn her head right or left or hold her head in a static position (A.R. 577-78). According to Dr. Lish, Plaintiff could rarely twist, stoop/bend, crouch/squat, and climb stairs, and could never climb ladders (A.R. 578). Dr. Lish opined that, for 20 percent of an eight-hour workday, Plaintiff could use her hands to grasp, turn or twist objects, use her fingers for fine manipulations, and use her arms for reaching (including overhead reaching) (A.R. 578). Dr. Lish opined that Plaintiff would miss more than four days of work per month (A.R. 578). Dr. Lish claimed that Plaintiff's limitations had existed since October of 2009 (A.R. 579).
A treating physician's conclusions "must be given substantial weight."
The ALJ rejected Dr. Lish's opinions that Plaintiff would have greater limitations than the ALJ found to exist, finding the opinions not supported by the entire medical record or Dr. Lish's own treatment notes, and contrary to Plaintiff's ability to perform daily activities (A.R. 26, 32).
(A.R. 26).
The ALJ also gave "little weight" to Dr. Lish's opinions that: (1) Plaintiff's pain would interfere with the attention and concentration needed to perform even simple tasks; (2) Plaintiff would be incapable of even low stress jobs; (3) Plaintiff could sit, stand, and/or walk for less than two hours per workday; (4) Plaintiff could lift and/or carry less than 10 pounds rarely; (5) Plaintiff could rarely look down or up, occasionally turn her head right or left, and hold her head in a static position, rarely perform postural activities, and never climb ladders; and (6) Plaintiff would miss more than four days of work per month (A.R. 32). The ALJ explained that Plaintiff's recent diagnostic images did not support the severity of Plaintiff's alleged pain, her condition was being maintained with medication management, and she could perform activities of daily living, social interaction, and personal care (A.R. 32).
These stated reasons suffice under the applicable case law. An ALJ properly may discount a treating physician's opinions that are in conflict with treatment records or are unsupported by objective clinical findings.
Here, the ALJ correctly observed that Dr. Lish's conclusory opinions lack support in the treatment records, including Dr. Lish's own records and findings.
A material inconsistency between a treating physician's opinion and a claimant's admitted level of daily activities also can furnish a specific, legitimate reason for rejecting a treating physician's opinion.
For these reasons, the ALJ did not materially err in discounting Dr. Lish's opinions.
Plaintiff also contends that the ALJ erred in finding Plaintiff's subjective complaints less than fully credible and in rejecting similar statements by Plaintiff's friend.
An ALJ's assessment of a claimant's credibility is entitled to "great weight."
Plaintiff testified that she stopped working in September of 2007 when she had back surgery (A.R. 45). Plaintiff said she became addicted to Norco (A.R. 46). At the time of the hearing, Plaintiff reportedly was taking six to 10 Norco per day (A.R. 51). Plaintiff had neck surgery in February 2008 (A.R. 59). Plaintiff said she tried to return to work briefly in September of 2008, but was laid off and she otherwise claimed she could not work due to the alleged side effects of the medications she was taking (A.R. 46-47, 58-59, 65-67). Plaintiff said she had been taking three Xanax per day and by the time of the hearing had cut it down to once every few days, and took Gabapentin three times per day (A.R. 66).
Plaintiff also testified that she could not work at the time of the hearing because of burning and swelling in her hands and arms (neuropathy), shooting pain in her legs, and back and neck pain (A.R. 48-49, 54). Plaintiff said that, on an average day, her pain is five on a scale of zero to 10 (A.R. 50). On a bad day, her pain supposedly goes to nine (A.R. 50). She claimed she has an average of three bad days each week, during which she supposedly spends most of the day on her couch (A.R. 50, 57).
Plaintiff said on an average day she lies on the couch and watches television (A.R. 48). She reportedly gets up, brushes her teeth, tries to do a load of laundry, and tries to clean the parts of the bathroom that she can clean without bending over (A.R. 49, 52-53). Plaintiff testified she thought she could sit for 10 to 15 minutes before having to move, could stand for five to 10 minutes, and could lift a couple pounds at most (A.R. 51-52, 60). Plaintiff said she has trouble writing with a pen after about five minutes and trouble using a keyboard after about 10 minutes, supposedly due to pain (A.R. 61-62). Plaintiff reportedly did not have problems with fine fingering; her problems allegedly were with grasping and holding (A.R. 62). Plaintiff said she did no grocery shopping (A.R. 52). Plaintiff twice had her husband help her wash her hair because she supposedly could not lift her arms (A.R. 53). Plaintiff said she was having a hard time turning her head when driving a car but could look up and down (A.R. 63). She said that once every six weeks, she has a bad headache that makes her have to lie down for an hour (A.R. 63-64). Plaintiff testified she can focus her attention for about an hour (A.R. 68).
Plaintiff had a heart stent placement in 2000 (A.R. 64). She said that, when she is stressed, she has chest pains (A.R. 64). Plaintiff said she smokes a half pack of cigarettes per day (A.R. 54). Plaintiff said she had been treated for depression with weekly therapy for six weeks, but claimed she had to stop because her insurance stopped paying (A.R. 54-55). Plaintiff said she was taking Xanax, Cymbalta, and Abilify for her depression, which Dr. Lish had prescribed (A.R. 55).
In a Function Report — Adult — Third Party form dated September 30, 2010, Plaintiff's friend Yvonne Pulido reported that she saw Plaintiff approximately two hours per day, two to three times per week (A.R. 222). Pulido stated that Plaintiff struggles to get up in the morning due to allegedly severe muscle pain, and once she is up Plaintiff attempts to pick up the house, watches television, reads, goes on the Internet, does some laundry, and picks up her daughter from school, with rest between all of these activities (A.R. 222). According to Pulido, Plaintiff could slowly bathe and carefully dress herself but did not shave (A.R. 223). Pulido stated Plaintiff had anxiety and trouble sleeping due to her pain (A.R. 223). Plaintiff's daughter reportedly did most of the cooking, with Plaintiff only making microwave dinners every once in a while (A.R. 224). Plaintiff did no house or yard work, supposedly due to her pain (A.R. 224). Pulido said that Plaintiff "feels down most of the time" (A.R. 224). Pulido said that Plaintiff could go out alone every day in a car but only for a limited time (A.R. 225). Pulido also said that Plaintiff could grocery shop when she has to (
In her own Function Report — Adult form dated September 30, 2010, Plaintiff reported that on a good day she gets up, dresses, attempts to do "very little" housework, rests frequently, takes her daughter to and from school, and tries to socialize with a friend (A.R. 231). On worse days, she reportedly stays on the couch, watches television, and sleeps (A.R. 231). Plaintiff also reported that she will make a microwave meal once in a while and does some laundry twice a week (A.R. 233). Plaintiff stated she goes outside daily and could drive a car, but not for long distances (A.R. 234). She also stated she could grocery shop with the help of family or friends once or twice a month (A.R. 234).
The ALJ deemed Plaintiff's testimony less than fully credible based on: (1) the inconsistency between the objective medical evidence and Plaintiff's allegations; and (2) Plaintiff's daily activities, which the ALJ found were inconsistent with the presence of an incapacitating or debilitating condition (A.R. 28-29). More specifically, the ALJ found that Plaintiff's allegations concerning isolation due to depression were inconsistent with her report that she spent time with others, daily if possible, talking on the phone, could get along with others, and could go places "when it is a must" (A.R. 29). Although Plaintiff alleged that she had problems with memory and concentration, she reported that she could pay attention depending on the situation, could follow instructions, and was fine with handling changes in routine (A.R. 29). Although Plaintiff complained about alleged pain-related limitations, including an alleged inability to grocery shop or lift more than two pounds, she admitted that she could do very light chores including laundry and also admitted that she could go out alone, drive a car, and shop in stores with the help of family or friends (A.R. 28-29). While Plaintiff complained that she supposedly could not sit for more than 10 or 15 minutes at a time, she sat for approximately 40 minutes through the hearing without issue (A.R. 29). Plaintiff admitted that she could attend to her personal care, prepare simple meals, do light housework, go outside every day, take her daughter to and from school, socialize, and watch television — activities the ALJ said required some of the same physical and mental abilities as those required to obtain and maintain employment (A.R. 28-29). The ALJ also found that Plaintiff's noncompliance with quitting smoking and with other recommended treatment suggested that Plaintiff's symptoms were not as severe as she reported (A.R. 31-32).
The ALJ's generalized, conclusory statement that the medical evidence of record does not support Plaintiff's allegations is not, in itself, a sufficiently specific reason for rejecting Plaintiff's credibility.
First, Plaintiff's noncompliance with her recommended treatments is a specific reason supported by substantial evidence to find Plaintiff not credible.
Second, the ALJ properly could rely on inconsistencies in Plaintiff's statements in finding Plaintiff not credible. The internal contradictions between Plaintiff's testimony and her admitted activities furnish specific reasons supported by substantial evidence for discounting Plaintiff's credibility.
In sum, the ALJ stated sufficient reasons to allow this Court to conclude that the ALJ discounted Plaintiff's credibility on permissible grounds.
Similarly, the Court defers to the ALJ's finding that Pulido's report was credible only to the extent consistent with the residual functional capacity the ALJ found to exist (A.R. 30). The ALJ stated that Pulido's opinion concerning Plaintiff's ability to work was not as persuasive as the professional opinions, that Pulido was motivated by her relationship with Plaintiff and her opinion was not an unbiased one, and finally that, like Plaintiff's statements (which the ALJ noted were similar to Pulido's statements), Pulido's statements were not supported by the clinical or diagnostic medical evidence as discussed elsewhere in the ALJ's decision (A.R. 30).
An ALJ may discount lay witness testimony where the testimony is similar to the claimant's testimony and the ALJ has given legally sufficient reasons for discounting the claimant's testimony.
For all of the foregoing reasons,
LET JUDGMENT BE ENTERED ACCORDINGLY.
