VICTOR E. BIANCHINI, Magistrate Judge.
In May of 2012, Plaintiff Timothy Thompson applied for Disability Insurance Benefits and Supplemental Security Income ("SSI") benefits under the Social Security Act. The Commissioner of Social Security denied the applications. Plaintiff, represented by Disability Advocates Group, Michelle J. Shvarts, Esq., of counsel, commenced this action seeking judicial review of the Commissioner's denial of benefits pursuant to 42 U.S.C. §§ 405 (g) and 1383 (c)(3).
The parties consented to the jurisdiction of a United States Magistrate Judge. (Docket No. 9, 11, 19). On June 1, 2016, this case was referred to the undersigned pursuant to General Order 05-07. (Docket No. 18).
Plaintiff applied for disability insurance benefits on May 4, 2012, and SSI benefits on May 21, 2012, alleging disability beginning October 21, 2010. (T at 12).
On April 18, 2014, the ALJ issued a written decision denying the applications for benefits. (T at 9-23). The ALJ's decision became the Commissioner's final decision on August 11, 2015, when the Appeals Council denied Plaintiff's request for review. (T at 1-6).
On October 8, 2015, Plaintiff, acting by and through his counsel, filed this action seeking judicial review of the Commissioner's decision. (Docket No. 1). The Commissioner interposed an Answer on February 23, 2016. (Docket No. 14). The parties filed a Joint Stipulation on June 7, 2016. (Docket No. 20).
After reviewing the pleadings, Joint Stipulation, and administrative record, this Court finds that the Commissioner's decision should be affirmed and this case must be dismissed.
The Social Security Act ("the Act") defines disability as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a claimant shall be determined to be under a disability only if any impairments are of such severity that he or she is not only unable to do previous work but cannot, considering his or her age, education and work experiences, engage in any other substantial work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). Thus, the definition of disability consists of both medical and vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 (9
The Commissioner has established a five-step sequential evaluation process for determining whether a person is disabled. 20 C.F.R. §§ 404.1520, 416.920. Step one determines if the person is engaged in substantial gainful activities. If so, benefits are denied. 20 C.F.R. §§ 404. 1520(a)(4)(i), 416.920(a)(4)(i). If not, the decision maker proceeds to step two, which determines whether the claimant has a medically severe impairment or combination of impairments. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).
If the claimant does not have a severe impairment or combination of impairments, the disability claim is denied. If the impairment is severe, the evaluation proceeds to the third step, which compares the claimant's impairment(s) with a number of listed impairments acknowledged by the Commissioner to be so severe as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii); 20 C.F.R. § 404 Subpt. P. App. 1. If the impairment meets or equals one of the listed impairments, the claimant is conclusively presumed to be disabled. If the impairment is not one conclusively presumed to be disabling, the evaluation proceeds to the fourth step, which determines whether the impairment prevents the claimant from performing work which was performed in the past. If the claimant is able to perform previous work, he or she is deemed not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At this step, the claimant's residual functional capacity (RFC) is considered. If the claimant cannot perform past relevant work, the fifth and final step in the process determines whether he or she is able to perform other work in the national economy in view of his or her residual functional capacity, age, education, and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Bowen v. Yuckert, 482 U.S. 137 (1987).
The initial burden of proof rests upon the claimant to establish a prima facie case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9
Congress has provided a limited scope of judicial review of a Commissioner's decision. 42 U.S.C. § 405(g). A Court must uphold a Commissioner's decision, made through an ALJ, when the determination is not based on legal error and is supported by substantial evidence. See Jones v. Heckler, 760 F.2d 993, 995 (9
"The [Commissioner's] determination that a plaintiff is not disabled will be upheld if the findings of fact are supported by substantial evidence." Delgado v. Heckler, 722 F.2d 570, 572 (9
It is the role of the Commissioner, not this Court, to resolve conflicts in evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational interpretation, the Court may not substitute its judgment for that of the Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9
The ALJ determined that Plaintiff had not engaged in substantial gainful activity since October 21, 2010 (the alleged onset date) and met the insured status requirements of the Social Security Act through September 30, 2012. (T at 14). The ALJ found that Plaintiff's degenerative disc disease of the lumbar and cervical spine were "severe" impairments under the Act. (Tr. 14).
However, the ALJ concluded that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the impairments set forth in the Listings. (T at 14).
The ALJ determined that Plaintiff retained the residual functional capacity ("RFC") to perform light work as defined in 20 CFR § 416.967 (b), with the following limitations: he can stand/walk for 6 of 8 hours; sit for 6 of 8 hours; occasionally climb, balance, stoop, bend, crouch, and crawl; understand and remember tasks; sustain concentration and persistence; socially interact with the general public, co-workers, and supervisors; and adapt to workplace changes frequently enough to perform unskilled, low stress jobs that require simple instructions. (T at 15).
The ALJ found that Plaintiff has no past relevant work. (T at 17). Considering Plaintiff's age (44 on the alleged onset date), education (at least high school), work experience, and residual functional capacity, the ALJ determined that there were jobs that exist in significant numbers in the national economy that Plaintiff can perform. (T at 17).
As such, the ALJ found that Plaintiff was not entitled to benefits under the Social Security Act from October 21, 2012 (the alleged onset date) through April 18, 2014 (the date of the ALJ's decision). (T at 18-19). As noted above, the ALJ's decision became the Commissioner's final decision when the Appeals Council denied Plaintiff's request for review. (T at 1-6).
As set forth in the parties' Joint Stipulation (Docket No. 20), Plaintiff offers two (2) main arguments in support of his claim that the Commissioner's decision should be reversed. First, he contends that the ALJ did not properly weigh the medical opinion evidence. Second, Plaintiff challenges the ALJ's credibility determination. This Court will address both arguments in turn.
In disability proceedings, a treating physician's opinion carries more weight than an examining physician's opinion, and an examining physician's opinion is given more weight than that of a non-examining physician. Benecke v. Barnhart, 379 F.3d 587, 592 (9
An ALJ satisfies the "substantial evidence" requirement by "setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings." Garrison v. Colvin, 759 F.3d 995, 1012 (9
In this case, the record contains treatment notes from Dr. James Gocke, Plaintiff's treating physician. In June, September, October of 2012, Dr. Gocke opined that Plaintiff should not lift more than 10 pounds, could not stoop or climb ladders/step stools, and should only perform "activity as tolerated." (T at 435, 437, 441). In the September treatment note, Dr. Gocke indicated that Plaintiff was "unemployable [for the] past two years, [but] not likely employable for 1 year from today[`s] date." (T at 436). However, in December of 2012, the treatment notes reported that Plaintiff was disabled, but that the disability was temporary (lasting only three more months) and indicated that Plaintiff should not apply for SSI benefits. (T at 433).
The ALJ discounted Dr. Gocke's opinion that Plaintiff was "unemployable." For the following reasons, this Court finds the ALJ's decision consistent with applicable law and supported by substantial evidence.
First, as noted above, two months after rendering the opinion that Plaintiff was "not likely employable for 1 year," Dr. Gocke concluded that Plaintiff's disability was temporary (lasting only three more months) and that opined Plaintiff should not apply for SSI benefits. (T at 433). The ALJ reasonably relied on this inconsistency when considering Dr. Gocke's assessment. See Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9
Moreover, Dr. Gocke's indication that Plaintiff's disability was temporary (lasting only three more months) was significant because a claimant cannot receive benefits unless his or her impairment or combination of impairments is expected to be significantly limiting for 12 consecutive months. See 20 CFR §§ 404.1509, 404.1520 (a)(4)(ii), 416.909.
Second, the ALJ reasonably found that Plaintiff's treatment history was conservative, which is also a proper basis for discounting the treating physician's assessment. See Johnson v. Shalala, 60 F.3d 1428,1434 (9
Plaintiff objects to this finding — noting that he was treated with Percocet — a strong narcotic requiring a prescription. However, this argument misses an important nuance — conservative in this context means conservative relative to what might be expected if the pain was as severe as alleged. Here, the ALJ reasonably concluded that the absence of objective evidence of more aggressive treatments (e.g. surgery, use of a TENS, physical therapy, chiropractic care, epidural steroid injections) being employed or even recommended was inconsistent with a finding that Plaintiff's pain was disabling. This conclusion was supported by the evidence and is within the ALJ's discretion. See Rollins v. Massanari, 261 F.3d 853, 856 (9
Third, the ALJ reasonably relied on the fact that Dr. Gocke's opinion was contradicted by other medical opinion evidence. Dr. Rajeswari Kumar performed a consultative orthopedic examination in November of 2012. Dr. Kumar diagnosed degenerative disc disease of the lumbar spine and grade 1 anterolisthesis of L5 over S1. (T at 401). He opined that Plaintiff could lift/carry 20-30 pounds occasionally and 10 pounds frequently; standing and walking was limited to 6 hours in an 8-hour workday with routine breaks; occasionally bending and stopping; sitting for 6 hours in an 8-hour workday; no restrictions for upper extremity activities; and no functional limitations for kneeling and climbing activities. (T at 402).
In addition, two State Agency review physicians (Dr. Wilson and Dr. Greene) reviewed the record and rendered opinions consistent with Dr. Kumar's findings, and the ALJ's conclusion, that Plaintiff could perform light work. (T at 57-61, 69-73, 84-90, 98-104).
State Agency review physicians are highly qualified experts and their opinions, if supported by other record evidence, may constitute substantial evidence sufficient to support a decision to discount a treating physician's opinion. See Saelee v. Chater, 94 F.3d 520, 522 (9
Plaintiff argues that the ALJ should have weighed the conflicting medical opinion evidence differently and resolved the conflict in favor of Dr. Gocke's opinion. However, it is the role of the Commissioner, not this Court, to resolve conflicts in evidence. Magallanes v. Bowen, 881 F.2d 747, 751 (9
A claimant's subjective complaints concerning his or her limitations are an important part of a disability claim. Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9
However, subjective symptomatology by itself cannot be the basis for a finding of disability. A claimant must present medical evidence or findings that the existence of an underlying condition could reasonably be expected to produce the symptomatology alleged. See 42 U.S.C. §§423(d)(5)(A), 1382c (a)(3)(A); 20 C.F.R. § 404.1529(b), 416.929; SSR 96-7p.
In this case, Plaintiff testified as follows: He was 48 years old as of the date of the administrative hearing. (T at 30). He attended school through the 11
He is not looking for work and lives with his mother. (T at 41). He feels his physical condition is getting worse. (T at 41). He spends much of the day at home, mostly laying down. His daughter and mother help him with his activities of daily living. (T at 42).
The ALJ concluded that Plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms, but that his statements concerning the intensity, persistence, and limiting effects of the symptoms were not fully credible. (T at 15).
This Court finds that the ALJ's credibility determination was supported by substantial evidence and consistent with applicable law. First, the ALJ noted that Plaintiff's testimony was contradicted by the objective medical evidence. For example, Plaintiff's subjective allegations were contradicted by the assessments of Dr. Kumar (the consultative examiner), Dr. Wilson, and Dr. Greene (the State Agency review physicians). Although lack of supporting medical evidence cannot form the sole basis for discounting pain testimony, it is a factor the ALJ may consider when analyzing credibility. Burch v. Barnhart, 400 F.3d 676, 680 (9
Second, as discussed above, the ALJ noted that Plaintiff had a conservative course of treatment. "Evidence of `conservative treatment' is sufficient to discount a claimant's testimony regarding the severity of an impairment." Parra v. Astrue, 481 F.3d 742, 751 (9
Third, the ALJ concluded that Plaintiff was less than truthful regarding his use of a cane. Although Plaintiff told Dr. Kumar that he had used a cane to walk for a decade and told the ALJ that an unidentified physician had recommended it, he did not have his cane at the consultative examination, there was no record of a prescription or recommendation regarding use of a cane, and there were repeated references in the record describing Plaintiff as having normal gait. (T at 16-17, 355, 356, 383, 398, 443). This was a valid reason for discounting the overall credibility of Plaintiff's claims. See Chaudry v. Astrue, 688 F3d. 661, 671 (9
Plaintiff offers competing interpretations of the evidence and alternative explanations for apparent inconsistencies in his testimony. However, for the reasons outlined above, this Court finds that the ALJ's credibility determination must be sustained. See Morgan v. Commissioner, 169 F.3d 595, 599 (9
After carefully reviewing the administrative record, this Court finds substantial evidence supports the Commissioner's decision, including the objective medical evidence and supported medical opinions. It is clear that the ALJ thoroughly examined the record, afforded appropriate weight to the medical evidence, including the assessments of the examining medical providers and the non-examining consultants, and afforded the subjective claims of symptoms and limitations an appropriate weight when rendering a decision that Plaintiff is not disabled. This Court finds no reversible error and substantial evidence supports the Commissioner's decision.
IT IS THEREFORE ORDERED that:
Judgment be entered AFFIRMING the Commissioner's decision; and
The Clerk of the Court shall file this Decision and Order, serve copies upon counsel for the parties, and CLOSE this case.