REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
This Revised Report and Recommendation is submitted to the Honorable Dale S. Fischer, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
Plaintiff filed a complaint on April 24, 2015, seeking review of the denial of social security disability benefits. Plaintiff filed a motion for summary judgment on October 6, 2015. Defendant filed a cross-motion for summary judgment on November 23, 2015. The Court has taken both motions under submission without oral argument. See L.R. 7-15; "Order," filed May 15, 2015.
BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION
Plaintiff, a former licensed vocational nurse, asserted disability since December 7, 2009, based on alleged physical impairments, primarily neck and back problems (Administrative Record ("A.R.") 51-59, 203-10, 234, 236, 257). An Administrative Law Judge examined the record and heard testimony from Plaintiff, Dr. Malcolm Brahms (a medical expert) and Alan Ey (a vocational expert) (A.R. 8-345).1 Plaintiff testified to symptoms of allegedly disabling severity, although she conceded she had been employed for months during the period of alleged disability (A.R. 54-59; see also A.R. 348).
The ALJ found Plaintiff has "degenerative disc disease of cervical and lumbar spine; and obesity," but retains the residual functional capacity for a limited range of light work (A.R. 14-17). In reliance on the vocational expert's testimony, the ALJ concluded that a person with this residual functional capacity could perform jobs existing in significant numbers in the national economy (A.R. 17-18; see A.R. 60-62). The Appeals Council considered additional evidence submitted by Plaintiff but denied review (A.R. 1-6).
SUMMARY OF PLAINTIFF'S CONTENTIONS
Plaintiff contends:
(1) the administrative decision is not supported by substantial evidence;
(2) Plaintiff's testimony must be credited as true;
(3) the opinions of Plaintiff's treating physician should not have been rejected; and
(4) the opinions of Dr. Brahms, the medical expert, are unworthy of belief because of prior bad acts allegedly committed by Dr. Brahms.
STANDARD OF REVIEW
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. See Carmickle v. Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner of Social Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and quotations omitted); see Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006).
If the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ. But the Commissioner's decision cannot be affirmed simply by isolating a specific quantum of supporting evidence. Rather, a court must consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [administrative] conclusion.
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and quotations omitted).
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. See Brewes v. Commissioner of Social Sec. Admin., 682 F.3d at 1163 ("[W]hen the Appeals Council considers new evidence in deciding whether to review a decision of the ALJ, that evidence becomes part of the administrative record, which the district court must consider when reviewing the Commissioner's final decision for substantial evidence"; expressly adopting Ramirez v. Shalala, 8 F.3d 1449, 1452 (9th Cir. 1993)); Taylor v. Commissioner, 659 F.3d 1228, 1232 (2011) (courts may consider evidence presented for the first time to the Appeals Council "to determine whether, in light of the record as a whole, the ALJ's decision was supported by substantial evidence and was free of legal error"); Penny v. Sullivan, 2 F.3d 953, 957 n.7 (9th Cir. 1993) ("the Appeals Council considered this information and it became part of the record we are required to review as a whole"); see generally 20 C.F.R. §§ 404.970(b), 416.1470(b).
DISCUSSION
After consideration of the record as a whole, the Magistrate Judge recommends that Defendant's motion be granted and Plaintiff's motion be denied. The Administration's findings are supported by substantial evidence and are free from material2 legal error.
I. Substantial Evidence Supports the Conclusion Plaintiff Can Work.
As discussed below, the Administrative Record contains relevant evidence that "a reasonable mind might accept as adequate to support [the] conclusion" that Plaintiff is not disabled from all employment.
Dr. Brahms, the medical expert, testified Plaintiff can perform a full range of light work (A.R. 51-53). Dr. Eleanor Santiago, a consultative examining internist, opined Plaintiff can perform work at an exertional capacity even greater than light work (A.R. 369-70).3 Medical testing supported the conclusion Plaintiff retains the capacity to work. A January 10, 2011 MRI of the lumbar spine was "essentially unremarkable" except for "probable uterine fibroids" (A.R. 332). There was "no disc herniation or other acute abnormality of the lumbar spine" (id.). An MRI of the cervical spine taken at the same time showed only "C4-C5 and C5-C6 central disc osteophyte complexes . . . without evidence of significant spinal canal stenosis or neural foraminal narrowing" (A.R. 397-98). Cervical spine x-rays taken in January of 2011 confirmed only "mild degenerative changes" (A.R. 393). A radiologist later described the disc space narrowing previously noted at the C4-5 and C5-6 levels to be "mild" (A.R. 371). Even the most recent scans of the cervical spine characterized Plaintiff's condition as involving "mild" degenerative disc disease (A.R. 461-62).
Dr. R. May, a non-examining state agency physician, also opined Plaintiff can perform light work (A.R. 372-77). The opinion of a non-examining physician may serve as substantial evidence to support the Administration's residual functional capacity determination when the opinion "`is not contradicted by all other evidence in the record.'" Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (quoting Magallanes v. Bowen, 881 F.2d 747, 752 (9th Cir. 1989) (emphasis in original)); see also Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) ("The opinions of non-treating or non-examining physicians may serve as substantial evidence when the opinions are consistent with independent clinical findings or other evidence in the record.") (citing Magallanes v. Bowen, 881 F.2d at 751). In the present case, Dr. May's opinion is corroborated by other evidence in the record and constitutes substantial evidence to support the Administration's conclusion that Plaintiff can work.
Although the medical evidence appears to be in conflict, it is the prerogative of the Administration to resolve such conflicts. See Lewis v. Apfel, 236 F.3d 503, 509 (9th Cir. 2001). When evidence "is susceptible to more than one rational interpretation," the Court must uphold the administrative decision. See Andrews v. Shalala, 53 F.3d at 1039-40; accord Thomas v. Barnhart, 278 F.3d at 954 (9th Cir. 2002); Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997). The Court should uphold the Administration's rational interpretation of the evidence in the present case, notwithstanding any conflicts in the record.
The vocational expert testified that a person with the residual functional capacity the ALJ found to exist could perform jobs existing in significant numbers in the national economy (A.R. 60-62). The vocational expert's testimony furnishes substantial evidence there exist significant numbers of jobs Plaintiff can perform. See Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988); see also Barker v. Secretary, 882 F.2d 1474, 1478-80 (9th Cir. 1989); see generally Johnson v. Shalala, 60 F.3d 1428, 1435-36 (9th Cir. 1995) (ALJ properly may rely on vocational expert to identify jobs claimant can perform); 42 U.S.C. § 423(d)(2)(A).
II. Plaintiff's Other Arguments are Unavailing.
A. Plaintiff's Crediblity
An ALJ's assessment of a claimant's credibility is entitled to "great weight." Anderson v. Sullivan, 914 F.2d 1121, 1124 (9th Cir. 1990); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985). Where, as here, the ALJ finds that the claimant's medically determinable impairments reasonably could be expected to cause some degree of the alleged symptoms of which the claimant subjectively complains, any discounting of the claimant's complaints must be supported by specific, cogent findings. See Berry v. Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995); but see Smolen v. Chater, 80 F.3d 1273, 1282-84 (9th Cir. 1996) (indicating that ALJ must offer "specific, clear and convincing" reasons to reject a claimant's testimony where there is no evidence of malingering).4 An ALJ's credibility findings "must be sufficiently specific to allow a reviewing court to conclude the ALJ rejected the claimant's testimony on permissible grounds and did not arbitrarily discredit the claimant's testimony." See Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004) (internal citations and quotations omitted); see also Social Security Ruling 96-7p. As discussed below, the ALJ stated sufficient reasons for deeming Plaintiff's subjective complaints less than fully credible.
The ALJ found that Plaintiff's "longitudinal medical history is not consistent with her alleged disability . . . [Plaintiff] was conservatively treated with medications and occupational therapy" (A.R. 15). The ALJ then stated:
As for the claimant's credibility, I find the claimant is not fully credible. The claimant alleges disability since December 2009 (Exhibit 2E/2). However, the claimant's neck pain is primarily stemming from a car accident in 2000 (Exhibit 2F/10). Despite her severe neck pain since the accident, the claimant was able to engage in substantial gainful activity according to the earning statement (Exhibit 5E/3). In addition, despite her allegation of debilitating pain, objective evidence of x-rays and MRIs showed only mild degenerative disc disease without stenosis or nerve compression (Exhibit 8F/2, 3, 4 7; 14F/2). Moreover, physical examination was negative for any abnormal sensation or motor strength (Exhibit 8F/12). Furthermore, although the claimant reportedly complained of weakness of the extremities, there are no objective/clinical findings in support of her allegation. EMG/nerve conduction study was recommended in April 2003 but there is no evidence of such diagnostic studies. Finally, at the hearing, the claimant testified that she has problem with her vision (Testimony). However, there is no evidence of ongoing treatment with an eye specialist, and the ophthalmologic examination by a consultative examination showed normal pupil, intact ocular movements, and normal visual fields, except her inability to see fundi due to constriction (Exhibit 4F/3). Therefore, I find the claimant is only partially credible.
(A.R. 16-17).
Plaintiff worked for years after her injury and even worked long after her alleged disability onset date. These facts properly impugn Plaintiff's testimony that she has suffered from symptoms of disabling severity. See, e.g., Bray v. Commissioner, 554 F.3d 1219, 1227 (9th Cir. 2009) (upholding ALJ's credibility determination where the claimant had recently worked as a personal caregiver and also had sought out other employment).
A claimant's failure to follow up with recommended diagnostic studies or treatment properly can cast doubt on a claimant's credibility. See Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (unexplained or inadequately explained failure to seek or follow prescribed course of treatment can cast doubt on claimant's credibility); see also Burch v. Barnhart, 400 F.3d at 681 (lack of consistent treatment such as where there was a three to four month gap in treatment properly considered in discrediting claimant's back pain testimony); Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (in assessing the credibility of a claimant's pain testimony, the Administration properly may consider the claimant's failure to request treatment and failure to follow treatment advice) (citing Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991) (en banc)); Johnson v. Shalala, 60 F.3d at 1434 (absence of treatment for back pain during half of the alleged disability period, and evidence of only "conservative treatment" when the claimant finally sought treatment, sufficient to discount claimant's testimony).
Finally, as the ALJ also emphasized, the objective medical evidence seriously undermines Plaintiff's credibility in the present case. Although a claimant's credibility "cannot be rejected on the sole ground that it is not fully corroborated by objective medical evidence, the medical evidence is still a relevant factor. . . ." Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). Here, the medical evidence suggests Plaintiff's problems have not been, and are not now, as profound as she has claimed.
Accordingly, the ALJ stated sufficient reasons to allow this Court to conclude that the Administration discounted Plaintiff's credibility on permissible grounds. See Moisa v. Barnhart, 367 F.3d at 885. The Court therefore should defer to the Administration's credibility determination. See Lasich v. Astrue, 252 Fed. App'x 823, 825 (9th Cir. 2007) (court will defer to Administration's credibility determination when the proper process is used and proper reasons for the decision are provided); accord Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1464 (9th Cir. 1995).
B. Plaintiff's Treating Physician
On March 31, 2011, Dr. Arlena Menda, Plaintiff's treating physician, signed a form questionnaire in which she opined Plaintiff is disabled (A.R. 301-309, 433-40). Dr. Menda identified a cervical MRI done in 2003 as the only "positive clinical findings that demonstrate and/or support" Dr. Menda's diagnosis (A.R. 301, 433). Similarly, Dr. Menda identified the same cervical MRI done in 2003 as the only "laboratory and diagnostic test results which demonstrate and/or which supports" Dr. Menda's diagnosis (A.R. 302, 434).
Generally, a treating physician's conclusions "must be given substantial weight." Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988); see Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989) ("the ALJ must give sufficient weight to the subjective aspects of a doctor's opinion. . . . This is especially true when the opinion is that of a treating physician") (citation omitted); see also Orn v. Astrue, 495 F.3d 625, 631-33 (9th Cir. 2007) (discussing deference owed to treating physician opinions). Even where the treating physician's opinions are contradicted,5 "if the ALJ wishes to disregard the opinion[s] of the treating physician he . . . must make findings setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record." Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987) (citation, quotations and brackets omitted); see Rodriguez v. Bowen, 876 F.2d at 762 ("The ALJ may disregard the treating physician's opinion, but only by setting forth specific, legitimate reasons for doing so, and this decision must itself be based on substantial evidence") (citation and quotations omitted). Contrary to Plaintiff's arguments, the ALJ stated sufficient reasons for discounting Dr. Menda's opinions.
The ALJ stated:
On March 31, 2011, Arlena Menda, M.D., the claimant's family physician, completed a Multiple Impairment Questionnaire and opined that the claimant has less than sedentary residual functional capacity due to cervical degenerative disc disease and herniated disks, referring to the 2003 cervical MRI (Exhibit 13F/2, 12F/2). However, as discussed above, more recent objective diagnostic images of x-rays and MRI of the cervical spine in January and September 2011 showed only mild degenerative disc disease and two small central disc osteophyte complexes without evidence of spinal canal stenosis or nueral [sic] foraminal narrowing (Exhibit 8F/2, 3, 7; 14F/2). Therefore, the opinions of Dr. Menda are not well supported by the objective evidence and are thus given little weight.
(A.R. 16).
An ALJ properly may reject a treating physician's opinion that is "conclusory, brief, and unsupported by the record as a whole . . . or by objective medical findings." Batson v. Commissioner, 359 F.3d 1190, 1195 (9th Cir. 2004). The only support Dr. Menda cited for her opinions was a remote MRI taken six years prior to Plaintiff's alleged disability onset. Plaintiff worked for years after 2003. The ALJ properly rejected Dr. Menda's opinions as unsupported.
C. Dr. Brahms
After the adverse decision by the ALJ, Plaintiff submitted to the Appeals Council documents reflecting Dr. Brahms' alleged prior bad acts concerning medical licensure in the state of Ohio (A.R. 470-80). Plaintiff essentially argues that, in light of these prior bad acts, Dr. Brahms' opinions must be deemed unworthy of belief as a matter of law. This argument should be rejected. It is the Administration, not this Court, that determines issues of witness credibility in social security disability cases. See Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995); see also Moore v. Sullivan, 919 F.2d 901, 905 (5th Cir. 1990) ("the ALJ is entitled to determine the credibility of medical experts as well as lay witnesses and to weigh their opinions and testimony accordingly") (citations and quotations omitted).6
RECOMMENDATION
For all of the reasons discussed herein,7 it is recommended that the Court issue an order: (1) accepting and adopting this Revised Report and Recommendation; (2) denying Plaintiff's motion for summary judgment; (3) granting Defendant's motion for summary judgment; and (4) directing that judgment be entered in favor of Defendant.
