SHERI PYM, Magistrate Judge.
On October 16, 2014, plaintiff Jerry Garcia filed a complaint against defendant, the Commissioner of the Social Security Administration ("Commissioner"), seeking review of a denial of a period of disability, disability insurance benefits ("DIB"), and supplemental security income ("SSI"). Both plaintiff and defendant have consented to proceed for all purposes before the assigned Magistrate Judge pursuant to 28 U.S.C. § 636(c). The court deems the matter suitable for adjudication without oral argument.
Plaintiff presents two issues for decision: (1) whether the Administrative Law Judge ("ALJ") properly considered the opinion of plaintiff's treating physician Dr. Sacho Kondovski; and (2) whether the ALJ properly considered plaintiff's credibility. Memorandum in Support of Complaint ("P. Mem.") at 4-16; Memorandum in Support of Defendant's Answer ("D. Mem.") at 3-8.
Having carefully studied the parties' moving and opposing papers, the Administrative Record ("AR"), and the decision of the ALJ, the court concludes that, as detailed herein, the ALJ did not err in failing to either credit or explicitly reject plaintiff's physician's opinion when determining plaintiff's physical limitations because the opinion was of no probative value. In addition, the ALJ gave clear and convincing reasons for partially discounting plaintiff's credibility. Consequently, this court affirms the decision of the Commissioner denying benefits.
Plaintiff, who was fifty-three years old on his alleged disability onset date, speaks and understands English and has a tenth or eleventh grade education. AR at 44, 58, 247, 317, 319. His past relevant work was as a supermarket meat cutter. Id. at 44, 67, 580.
On April 7, 2011 plaintiff filed an application for SSI, and on April 29, 2011 plaintiff filed an application for a period of disability and DIB, due to back and neck pain, anxiety, and depression. Id. at 111, 112, 318. The Commissioner denied plaintiff's application initially and upon reconsideration, after which he filed a request for a hearing. Id. at 143-49, 151-61, 163-64.
On November 19, 2012, plaintiff, represented by an attorney, appeared and testified at a hearing before the ALJ. Id. at 56-76. The ALJ continued the hearing to permit plaintiff additional time to augment the record. Id. at 70-76. On March 1, 2013, plaintiff, represented by the same counsel, appeared and testified at a second hearing before the ALJ. Id. at 29-42. The ALJ also heard testimony from vocational expert ("VE") Bonnie Sinclair. Id. at 43-52. On March 8, 2013, the ALJ issued a partially-favorable decision, granting in part and denying in part, plaintiff's claims for benefits. Id. at 10-22.
Applying the well-known five-step sequential evaluation process, the ALJ found, at step one, that plaintiff had not engaged in substantial gainful activity since December 21, 2010, the alleged onset date. Id. at 12.
At step two, the ALJ found that plaintiff suffered from the following severe impairment: degenerative disc disease of the lumbar spine. Id. The ALJ also determined plaintiff's hypertension and anxiety do not qualify as severe impairments. Id. at 12-15.
At step three, the ALJ found that plaintiff's impairments, whether individually or in combination, did not meet or medically equal one of the listed impairments set forth in 20 C.F.R. part 404, Subpart P, Appendix 1 ("Listing"). Id. at 15.
The ALJ then assessed plaintiff's residual functional capacity ("RFC"),
The ALJ found, at step four, that plaintiff is not capable of performing his past relevant work as a supermarket meat cutter. Id. at 20.
At step five, the ALJ noted that after his alleged disability onset date, plaintiff changed age categories under the Medical Vocational Guidelines (20 C.F.R. part 404, Subpart P, Appendix 2 ("Grid Rules"). Id. at 20. Relying on the VE's testimony, the ALJ determined that prior to October 5, 2012, jobs existed in significant numbers in the national economy that plaintiff could perform, including cashier, information clerk, and mail clerk. Id. at 31. However, once plaintiff became an individual of advanced age under the Grid Rules, the ALJ found there were no jobs in the national economy plaintiff could perform. RT at 20-21; see 20 C.F.R. §§ 404.1563, 416.963. Consequently, the ALJ concluded that prior to October 5, 2012, plaintiff did not suffer from a disability as defined by the Social Security Act, but plaintiff became disabled under the Act on that date. Id. at 20-22.
Plaintiff filed a timely request for review of the ALJ's decision, which was denied by the Appeals Council. Id. at 1-4. The ALJ's decision stands as the final decision of the Commissioner.
This court is empowered to review decisions by the Commissioner to deny benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security Administration must be upheld if they are free of legal error and supported by substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) (as amended). But if the court determines that the ALJ's findings are based on legal error or are not supported by substantial evidence in the record, the court may reject the findings and set aside the decision to deny benefits. Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 1144, 1147 (9th Cir. 2001).
"Substantial evidence is more than a mere scintilla, but less than a preponderance." Aukland, 257 F.3d at 1035. Substantial evidence is such "relevant evidence which a reasonable person might accept as adequate to support a conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 F.3d at 459. To determine whether substantial evidence supports the ALJ's finding, the reviewing court must review the administrative record as a whole, "weighing both the evidence that supports and the evidence that detracts from the ALJ's conclusion." Mayes, 276 F.3d at 459. The ALJ's decision "`cannot be affirmed simply by isolating a specific quantum of supporting evidence.'" Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). If the evidence can reasonably support either affirming or reversing the ALJ's decision, the reviewing court "`may not substitute its judgment for that of the ALJ.'" Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)).
On October 26, 2012, Dr. Sacho Kondovski, plaintiff's primary care physician since July 27, 2010, completed two check-box forms indicating plaintiff had extreme work-related mental and physical limitations. AR at 619-24. The ALJ explicitly stated he accorded little weight to Dr. Kondovski's opinion regarding plaintiff's mental limitations, because he is not a mental health specialist. Id. at 15. Petitioner argues the ALJ failed to state whether he accepted or rejected Dr. Kondovski's opinion of plaintiff's physical limitations, failed to state what weight, if any, he afforded the opinion, and failed to provide specific and legitimate reasons supported by substantial evidence for rejecting this treating physician's opinion. P. Mem. at 4-7.
Before addressing the ALJ's written opinion, the court notes a review the administrative record plainly reveals the ALJ gave no weight to Dr. Kondovski's opinion. During the administrative hearing held on November 19, 2012, the ALJ questioned plaintiff's attorney about the veracity of Dr. Kondovski's medical opinions. Id. at 58-62. After noting the doctor listed "some very extreme limitations" (id. at 58), plaintiff testified about some of his normal daily activities, and then the following exchange ensued between the ALJ and petitioner's attorney ("Atty"):
Id. at 61-62 (emphasis added); see also id. at 39-40, 48-49. Following this exchange, the ALJ advised plaintiff's attorney to gather additional medical records and opinions from other sources. Id. at 62-76. The ALJ continued the hearing for several months to accommodate augmentation of the record. Id.
Accordingly, contrary to plaintiff's assertion that if the ALJ properly considered Dr. Kondovski's opinion, "he more than likely would have come to a different conclusion regarding plaintiff's ability to obtain and sustain full-time employment," the record is quite clear regarding how much weight the ALJ afforded Dr. Kondovski's medical opinions. See id. at 39-40, 48-49, 61-62. Nonetheless, plaintiff is correct that the ALJ did not explicitly reject Dr. Kondovski's opinion regarding plaintiff's physical limitations in his written decision.
The ALJ does acknowledge and describe plaintiff's physical limitations as opined by Dr. Kondovski. Id. at 18. Dr. Kondovski found plaintiff could: lift and carry less than ten pounds; sit, stand, or walk less than two hours in an eight-hour day and should have the option to sit or stand; lie down every one to two hours; occasionally twist, stoop, and climb stairs; and was limited in his ability to reach overhead, push, pull, kneel, and crouching. Id. at 19; see id. at 622-24. Dr. Kondovski further opined plaintiff should avoid even moderate exposure to extreme cold or heat, wetness, humidity, noise, fumes, dust, odors, gases, poor ventilation, and hazards; and plaintiff would be absent more than three times a month. Id. at 19, 624.
The limitations opined by Dr. Kondovski were greater than those in plaintiff's RFC as determined by the ALJ. Thus, it is apparent that the ALJ did not credit, at least to any significant extent, Dr. Kondovski's opinion. In general, where, as here, a treating physician's opinion is contradicted by other medical opinions, the ALJ must provide specific and legitimate reasons supported by substantial evidence for rejecting it. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). Defendant points to various reasons the ALJ might have given for rejecting Dr. Kondovski's opinion, including its inconsistency with Dr. Kondovski's own treating records for plaintiff, and that it conflicts with other medical opinions. D. Mem. at 4-5. Although, during the administrative hearing, the ALJ certainly suggested these as reasons, as discussed above, in his written decision the ALJ did not give these or any other reasons for rejecting Dr. Kondovski's opinion. The court's review is limited to the reasons actually given by the ALJ, not those he could have given. See Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) ("We review only the reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a ground upon which he did not rely." (citation omitted)).
Had the ALJ found plaintiff was not disabled at all, the court would be inclined to find the ALJ erred in failing to provide reasons in his written decision for rejecting Dr. Kondovski's opinion, notwithstanding that the ALJ effectively gave such reasons during the administrative hearing. But the ALJ did find plaintiff was disabled, beginning on October 5, 2012. AR at 22. Thus, the question is whether the ALJ erred in neither crediting nor giving reasons for rejecting Dr. Kondovski's opinion with respect to the question of whether plaintiff was disabled during the period from the December 21, 2010 alleged onset date to October 5, 2012.
As to this question and time period, the court finds the ALJ did not err, as Dr. Kondovski's opinion has no probative value for the time period in question. See Howard v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (finding no error when the "ALJ ignored a subsequent medical review" because an "ALJ is not required to discuss evidence that is neither significant nor probative"). Dr. Kondovski's opinion is dated October 26, 2012 — three weeks after October 5, 2012. Id. at 624. The opinion fails to indicate an onset date, and thus there is no basis to conclude the opinion pertains to the period before October 5, 2012. This is particularly so because, although Dr. Kondovski treated plaintiff throughout the pre-October 5, 2012 period, there is nothing in those treatment records to suggest Dr. Kondovski found plaintiff suffered from the limitations opined on October 26, 2012. See AR at 591-617; see also AR 18 (ALJ noting Kondovski's treatment records "revealed lumbar tenderness and moderate pain with range of motion," with plaintiff "merely prescribed oral analgesics for pain"). And despite the form's mandate to "identify particular medical findings" to support the opinion, Dr. Kondovski simply checks boxes and references plaintiff's lumbar disc disease and chronic low back pain. Id. at 622-24; see Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citing Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996) ("ALJ may `permissibly reject[ ] . . . check-off reports that [do] not contain any explanation of the bases of their conclusions.'")).
The lack of retroactive implication, failure to cite supporting medical evidence, and that the opinion was written at such a time when plaintiff was already deemed disabled as defined by the Social Security Act, renders Dr. Kondovski's opinion of no probative value. As such, the ALJ did not err in failing to either credit the opinion or explicitly reject it and provide reasons for doing so.
The ALJ considered plaintiff's subjective complaints in arriving at his RFC, but discounted plaintiff's subjective complaints of complete disability. AR at 16-17. Plaintiff contends the ALJ failed to make a proper credibility determination. P. Mem. at 7-16.
An ALJ must make specific credibility findings, supported by the record. Social Security Ruling ("SSR") 96-7p.
"[A]n ALJ does not provide specific, clear, and convincing reasons for rejecting a claimant's testimony by simply reciting the medical evidence in support of his or her residual functional capacity determination." Brown-Hunter v. Colvin, 806 F.3d 487, 489 (9th Cir. 2015). To permit a meaningful review of the ALJ's credibility determination, the ALJ must "specify which testimony [he] finds not credible, and then provide clear and convincing reasons, supported by evidence in the record, to support that credibility determination." Id. The ALJ may consider several factors in weighing a claimant's credibility, including: (1) ordinary techniques of credibility evaluation such as a claimant's reputation for lying; (2) the failure to seek treatment or follow a prescribed course of treatment; and (3) a claimant's daily activities. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008); Bunnell, 947 F.2d at 346-47.
At the first step, the ALJ found that plaintiff's medically determinable impairments could reasonably be expected to cause the symptoms alleged. AR at 21. At the second step — although the ALJ stated plaintiff's allegations are inconsistent with the evidence in the record, "which indicates an attempt by the [plaintiff] to exaggerate," and the ALJ had previously noted plaintiff's psychological test scores had to be "considered with caution due to [plaintiff]'s poor effort" — the ALJ did not discount plaintiff's credibility due to malingering. AR at 14, 16; see also id. at 35-36, 47-51. Thus, the ALJ was required to provide clear and convincing reasons for discounting plaintiff's credibility. Smolen, 80 F.3d at 1281.
As an initial matter, plaintiff argues the ALJ failed to identify which of his specific statements were rejected and which were accepted. P. Mem. at 8-9. The court disagrees. The ALJ discussed plaintiff's "allegations of disabling back problems," claims that plaintiff "could not work due to anxiety, depression, and stress," and plaintiff's "allegations concerning the intensity, persistence and limiting effects of his symptoms." AR at 16. In assessing plaintiff's RFC, the ALJ also specifically credits plaintiff's complaints that are consistent with his wife's credible testimony about plaintiff's need for breaks between extended periods of sitting, and standing or walking, and plaintiff's account of his difficulty with bending and the back pain that radiates down his legs. Id. at 19.
The ALJ found plaintiff's subjective complaints only partially credible because (1) he has not received the type of treatment expected for a totally disabled individual; (2) his daily activities are inconsistent with his claimed limitations; and (3) the objective medical evidence does not support the severity of his complaints. AR 1516-18.
First, the ALJ found plaintiff received only routine, conservative treatment for both his physical and mental impairments. AR at 17. Plaintiff's primary care physician treated his degenerative disc disease primarily with oral analgesics and treated his anxiety with psychotrophic medications. Id. at 17-18, 42, 447-48, 450-51, 612-14, 616-17; Warre v. Comm'r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) ("Impairments that can be controlled effectively with medication are not disabling for the purpose of determining eligibility for SSI benefits."). Although a surgical solution was suggested to plaintiff by Dr. Uppal and Dr. Bergey, two doctors connected to plaintiff's Worker's Compensation claim, as of the ALJ's findings plaintiff had not undergone surgery. Id. at 18-19, 466-67, 471-75, 583-84; see Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007) ("evidence of `conservative treatment' is sufficient to discount a claimant's testimony regarding severity of an impairment") (citation omitted); John v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995) (reasoning "conservative treatment" is indicative of "a lower level of both pain and functional limitation"); SSR 96-7p ("the [plaintiff]'s statements may be less credible if the level or frequency of treatment is inconsistent with the level of complaints"); see also Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999).
Second, plaintiff's testimony regarding his own ability to function contradicted his claims of totally disabling limitations. AR at 16. Despite plaintiff's claims of severe anxiety affecting his concentration, reportedly he can follow instructions, read, watch sports, drive alone, pay bills, count change, go shopping, spend time with others at church and in social groups and gets along with authority figures. Id. at 16-17, 42, 332, 335-36, 339-344. Plaintiff also testified he regularly attended church where he acted as an usher and helped other parishioners throughout the service. Id. at 60, 343. Plaintiff reported other physical activities inconsistent with totally disabling limitation, such as the ability to do household chores, including cooking, vacuuming, mopping, and the ability to walk 1-2 miles with breaks, garden, and plant flowers. Id. at 16-17, 332, 336, 341-43. Inconsistency between a claimant's alleged symptoms and his daily activities may be a clear and convincing reason to find a claimant less credible. Tommasetti, 533 F.3d at 1039; Bunnell, 947 F.2d at 346. Here, plaintiff's daily activities such as following directions, walking, driving, and interacting socially appear inconsistent with his alleged marked or extreme limitations.
Third, the ALJ found plaintiff's subjective complaints inconsistent with the objective medical evidence. AR at 17-20. An ALJ "may not reject a claimant's subjective complaints based solely on a lack of objective medical evidence to fully corroborate the alleged severity of pain," but lack of objective medical evidence may be one factor used to evaluate credibility. Bunnell, 947 F.2d at 345; see Rollins v. Massanari, 261 F.3d 853, 856-7 (9th Cir. 2001) (asserting a lack of corroborative objective medical evidence may be one factor in evaluating credibility). Here, both parties stipulated the ALJ's opinion fairly and accurately summarizes the evidence in the record. P. Mem. at 4; D. Mem. at 3. The ALJ reviewed plaintiff's psychological evaluations including several Global Assessment of Functioning ("GAF") scores attributed to plaintiff by various medical practitioners. AR at 13-15; see Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders 34 (4th Ed. 2000) ("DSM"). All of the scores were between 60 and 75, indicating at most moderate symptoms and difficulty functioning. AR at 14 & n.2, n.3; see id. at 569, 627, 629, 632, 635. After review of the treatment records related to plaintiff's back, the ALJ found "there is objective evidence of significant degenerative disk disease," but the ALJ noted there was no surgical intervention and, as discussed above, generally the ailment was conservatively treated. Id. at 17-20; see id. at 363-66 (analyzing CT and MRI); id. at 489-90 (analyzing subsequent MRI); see, e.g., id. at 466-70, 484-86, 491-93, 571-575, 577, 580-84, 586-87, 601-604, 609-17 (evidencing plaintiff's exams and resulting conservative treatment since the disability onset date). Overall the objective medical records do not support plaintiff's subjective complaints of totally disabling back pain and anxiety.
In sum, the ALJ gave clear and convincing reasons for discounting plaintiff's credibility, including his conservative course of treatment and inconsistent daily activities. The ALJ's finding is further supported by the objective medical evidence. The ALJ thus did not err in finding plaintiff's subjective complaints only partially credible.
IT IS THEREFORE ORDERED that Judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits, and dismissing the complaint with prejudice.
