Opinion
Case No.: 3:18-cv-00084-MK
09-05-2019
KALAWATI C., Plaintiff, v. COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant.
FINDINGS AND RECOMMENDATION KASUBHAI, Magistrate Judge :
Plaintiff Kalawati C. brings this action for judicial review of the Commissioner of Social Security's ("Commissioner's") decision denying her application for Disability Insurance Benefits under the Social Security Act (the "Act"). This Court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c).
For the reasons discussed below, the Court should affirm the Commissioner's decision.
BACKGROUND
Plaintiff protectively filed an application for Disability Insurance Benefits on October 6, 2014, and an application for Disabled Widow's Benefits on December 10, 2014. Tr. 47. Plaintiff alleges disability beginning August 31, 2014 ("AOD"). Id. Her applications were both denied, and Plaintiff timely requested and appeared for a hearing before Administrative Law Judge ("ALJ") John Michaelsen on November 16, 2016. Id.; Tr. 67-79. Plaintiff testified through a Hindi interpreter. Tr. 47, 67. The ALJ denied Plaintiff's applications in a written decision dated December 16, 2016. Tr. 47-59. Plaintiff sought review from the Appeals Council. The Appeals Council denied review of the ALJ's decision, rendering the ALJ's decision the final decision of the Commissioner. Tr. 1-4. Plaintiff now seeks judicial review of the decision.
STANDARD OF REVIEW
A reviewing court shall affirm the Commissioner's decision if the decision is based on proper legal standards and the legal findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). "Substantial evidence is 'more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)). To determine whether substantial evidence exists, a court reviews the administrative record as a whole, "weighing both the evidence that supports and detracts from the ALJ's conclusion." Davis v. Heckler, 868 F.2d 323, 326 (9th Cir. 1989).
DISCUSSION
The Social Security Administration utilizes a five-step sequential evaluation to determine whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920. The initial burden of proof rests upon the claimant to meet the first four steps. Id. If the claimant satisfies her burden with respect to the first four steps, the burden shifts to the commissioner at step five. Id.; see also Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995). At step five, the Commissioner must show that the claimant is capable of making an adjustment to other work after considering the claimant's residual functional capacity ("RFC"), age, education, and work experience. 20 C.F.R. §§ 404.1520(a)(4)(v) & 416.920(a)(4)(v). If the Commissioner fails to meet this burden, then the claimant is disabled. Id. If, however, the Commissioner proves that the claimant is able to perform other work existing in significant numbers in the national economy, the claimant is not disabled. Id.; see also Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001).
In the present case, the ALJ found that Plaintiff was not disabled. At step one, the ALJ found that Plaintiff has not engaged in substantial gainful activity since the application date of August 31, 2014. Tr. 50. At step two, the ALJ found Plaintiff had the following severe impairments: bilateral epicondylitis, adhesive capsulitis, and degenerative joint disease of the shoulders. Id. At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or equaled the requirements of a listed impairment in 20 CFR Part 404, Subpart P, Appendix 1 ("Listings"). Tr. 52.
Prior to step four, the ALJ determined that Plaintiff retained residual functional capacity ("RFC") to perform light work with the following exceptions: "She can no more than frequently bilaterally reach in all directions. She also can no more than frequently push or pull no more than 20 pounds." Tr. 53.
At step four, the ALJ found that Plaintiff is capable of performing past relevant work as a housekeeper, which does not require the performance of work-related activities precluded by Plaintiff's RFC. Tr. 59.
The issues before the Court are (1) whether the ALJ's discrediting of Plaintiff's subjective complaints is supported by substantial evidence and (2) whether the ALJ erred in rejecting the medical opinions of consultative examining physician Dr. Engelhardt and primary physician Dr. Sprague. Pl.'s Br. 6, 16-17 (ECF No. 19); Def.'s Br. 1 (ECF No. 26).
I. Subjective Complaints
When a claimant has medically documented impairments that could reasonably be expected to produce some degree of the symptoms complained of, and the record contains no affirmative evidence of malingering, "the ALJ can reject the claimant's testimony about the severity of . . . symptoms only by offering specific, clear and convincing reasons for doing so." Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996) (internal citation omitted). A general assertion [that] the claimant is not credible is insufficient; instead, the ALJ must "state which ... testimony is not credible and what evidence suggests the complaints are not credible." Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). The reasons proffered must be "sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony." Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (internal citation omitted). If the ALJ's finding regarding the claimant's subjective symptom testimony is "supported by substantial evidence in the record, [the court] may not engage in second-guessing." Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (internal citation omitted).
Social Security Ruling ("SSR") 16-3p provides that "subjective symptom evaluation is not an examination of an individual's character," and requires the ALJ to consider all of the evidence in an individual's record when evaluating the intensity and persistence of symptoms. SSR 16-3p, available at 2016 WL 1119029 at *1-2. The ALJ must examine "the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record." Id. at *4.
Effective March 28, 2016, SSR 16-3p supersedes and replaces SSR 96-7p, which governed the assessment of claimant's "credibility." See SSR 16-3p, available at 2016 WL 1119029.
Here, the ALJ found severe impairments of bilateral epicondylitis, adhesive capsulitis and degenerative joint disease of the shoulders. Tr. 50. Although Plaintiff also complained of joint pain generally and pain in her back, hands, elbows, wrists, knees, neck, shoulders, thighs, soles and shins at various times, the ALJ found that there are no diagnoses for the musculoskeletal complaints other than the severe impairments of bilateral epicondylitis, adhesive capsulitis and degenerative joint disease of the shoulders. Tr. 50, 336, 348, 372, 380, 399, 449, 433, 452, 509.
The ALJ found that Plaintiff's "medically determinable impairments could reasonably be expected to cause the alleged symptoms." Tr. 50, 53. He cited the MRI scans of Plaintiff's left and right shoulders. Tr. 54. The MRI scan of Plaintiff's left shoulder shows "[d]egenerative changes acromioclavicular joint with associated findings of edema/fluid involving the joint and adjacent soft tissues[,]" and "[l]ocalized signal changes of tendinosis and possible non retracted tear involving the supraspinatus tendon near its humeral insertion." Tr. 407. The MRI scan of Plaintiff's right shoulder shows "[d]egenerative changes acromioclavicular joint and inferior spurring of the acromium which could be associated with some element of chronic impingement[,]" "probably tendinosis and possible partial tear involving the supraspinatus tendon[,]" and "[m]ild shoulder joint effusion and evidence of some fluid within the subdeltoid bursa." Tr. 408-09.
However, the ALJ discredited Plaintiff's statements concerning the intensity, persistence and limiting effects of Plaintiff's shoulder symptoms because: (1) Plaintiff was inconsistent in reporting the history and location of her pain complaints, Id.; (2) there are significant inconsistencies between Plaintiff's subjective complaints and the minimal objective medical findings including little and conservative treatment, Tr. 53-54; (3) there are inconsistencies as to the reason why Plaintiff stopped working, Tr. 56; and (4) Plaintiff's activities of daily living in the record suggest that she is not as limited as she reports, Tr. 56. The Court addresses each reason in turn.
A. The inconsistencies of the history and location of Plaintiff's symptoms.
The ALJ found that Plaintiff did not consistently report the history of her symptoms. Tr. 53-55. Plaintiff reported to Dr. Engelhardt at the consultative examination in December 2014 that the joint pain in her upper extremities started approximately eight years ago. Tr. 54, 380. In January 2015, Plaintiff reported bilateral shoulder pain of six years. Tr. 54, 399. In March 2016, the record shows that Plaintiff complained of chronic right shoulder pain "x 6-7 years." Tr. 55, 431. A different section on the same page notes that Plaintiff had "7 ½ y[ea]rs of right shoulder pain[]and loss of ROM [range of motion]." Tr. 431. Then in June 2016, Plaintiff reported "5-6 months of increased body pain" that "comes and goes in her neck, back, shoulders, anterior thighs, ... knee[s], soles of the feet and shins" and "[s]he first noted symptoms in 2006." Tr. 55, 449.
The ALJ also found inconsistencies in the location of Plaintiff's pain complaints. Tr. 53-54. In particular, Plaintiff reported pain in the thoracic spine in August 2013, chronic pain in elbows, knees, wrist and thighs in July 2014, knee pain in October 2014, multiple joint pains including pain in the upper extremities in December 2014, shoulder pain and knee pain in January 2015, shoulder pain in March 2016, body pain in neck, back, shoulders, thighs, knees, soles of the feet and shins in June 2016, arm and shoulder pain in July 2016, right shoulder pain in October 2016. Tr. 54-55, 336 (August 2013), 348 (July 2014), 372 (October 2014), 380 (December 2014), 399 (January 2015), 509 (March 2015), 449 (June 2016), 433 (July 2016), 452 (October 2016).
The record shows that Plaintiff was born in Fiji island and speaks Hindi. Tr. 449. She had no more than one year of formal schooling in Fiji. Tr. 392. Plaintiff moved to the United States at age 40. Id. The record indicates that she has cultural and language barriers. See e.g., Tr. 67, 336, 348, 371 392. At the same time, David Gostnell, Ph.D., who evaluated Plaintiff, made the following observation: "[a]lthough the interview was conducted through an interpreter, many interchanges were done in English, and she demonstrated sufficient language proficiency to express most of her thoughts, ideas, and responses to test items." Tr 391. "She was fluent and intelligible, although her vocabulary was clear [sic] clearly limited, and she could not follow many rules of grammar. She needed occasional interpretation in order to acquire a clear understanding of questions and instructions, and to make her own thoughts clear." Id.
Sometimes Plaintiff was assisted by an interpreter for the medical visits. For example, when Plaintiff reported joint pain in upper extremities for approximately eight years, she was assisted by an interpreter "supplied by DDS." Tr. 380. Plaintiff had her friend interpret for her when she subsequently reported bilateral shoulder pain of six years. Tr. 399. It is unclear whether this friend was a certified interpreter. See id. Some portion of the record is silent as to whether Plaintiff had an interpreter. Also pertinent to Plaintiff's reporting of the history of symptoms are the records of March 2016 and June 2016, which do not document whether Plaintiff had an interpreter. Tr. 431, 449. The record also shows that Plaintiff sometimes did not have an interpreter at medical appointments. See e.g. Tr. 352, 442.
In light of the possibility of a language barrier, the inconsistencies of the history and location of Plaintiff's symptoms suggest the possibility of unclear communications or miscommunications between Plaintiff and her medical providers. Some medical providers recognized the communication challenge. The treatment notes in August 2013 state that "[t]he history is provided by the patient and a friend. The history is limited by a language barrier." Tr. 336. Mr. Gostnell also stated that "[g]iven both the cultural and linguistic factors that preclude adequate analysis and interpretation of test results, combined with her history of minimal educational opportunity, no opinion can be rendered with regard to a potential learning disability." Tr. 392. It is thus possible that the inconsistencies in the record may be "unreliable because of the language barrier between [Plaintiff] and [her] treating physicians." Alaali v. Astrue, 2010 WL 3893925 at * n. 6 (D. Idaho September 30, 2010) ("At least one court has agreed with a claimant's argument that an alleged inconsistency in the record 'is unreliable because of the language barrier between he and his treating physicians.'") (citing Norng v. Shalala, 885 F.Supp. 1199, 1216 (N.D.Iowa 1995)).
The ALJ acts as "an examiner charged with developing the facts." Richardson v. Perales, 402 U.S. 389, 410 (1971). The ALJ has a duty to "develop the arguments both for and against granting benefits." Sims v. Apfel, 530 U.S. 103, 111 (2000); see also Social Security Ruling, SSR 00-4P, 65 Fed. Reg. 75760 (2000) (noting "the adjudicator's duty to fully develop the record"). Here, the ALJ conducted a hearing that lasted a total of 23 minutes including the time for administrative matters. Tr. 67-79 (the hearing started at 9:12 am and ended at 9:35 am). Plaintiff's substantive testimony takes less than three pages of the transcript while the entire hearing transcript is 12 pages. Id. The ALJ asked Plaintiff a total of eleven non-administrative questions regarding the reason why Plaintiff stopped working, treatments she received, and her activities of daily living. Tr. 72-74. None of the questions involved the inconsistencies of the history and location of Plaintiff's symptoms. Id. The ALJ then moved on to question the vocational expert. Tr 74-78. The ALJ's inquiry of Plaintiff was brief and significantly shorter than the rest of the hearing. Because the ALJ failed to develop the facts concerning the inconsistencies of the history and location of Plaintiff's symptoms, the Court should find that the ALJ's reliance on this reasoning to discredit Plaintiff is unwarranted.
B. The minimal objective medical findings and little and conservative treatment.
The ALJ cited the minimal objective findings of Plaintiff's knees and hands as support of discrediting Plaintiff's pain complaints. Tr. 54-56. Plaintiff's left knee X-ray in December 2014 showed no bony abnormalities. Tr. 54, 379. The X-ray report states that the bony mineralization was within normal limits, the medial and lateral joint spaces were well maintained, and no arthritic changes were seen. Tr. 379. Plaintiff's right knee X-ray was also unremarkable. It showed age appropriate bone mineralization, anatomic alignment, and patellar enthesopathy but no acute findings. Tr. 54-55, 513. Plaintiff had a normal gait and station in April 2015 and June 2016 despite walking with a limp and having difficulty getting on the exam table in December 2014. Tr. 440-41, 450, 382. Similarly, an X-ray of Plaintiff's right hand in March 2014 showed no acute appearing abnormalities. Tr. 55-56, 363-64. There was no further treatment for her hands. Tr. 56. Dr. Engelhardt's examination revealed that Plaintiff had full grip strength and normal gross and fine motor skills, even though Plaintiff complained of arthritic pain in her hands. Tr. 384.
Although conditions of Plaintiff's knees and hands are not the basis of Plaintiff's disability, the lack of objective evidence to substantiate Plaintiff's pain complaints in her knees and hands can be a factor, among others, upon which the ALJ relied in finding that Plaintiff's shoulder and elbow complaints were not credible.
The ALJ also found that Plaintiff's shoulder symptoms are not supported by the objective findings, because "most of [Plaintiff's] medical treatment for her pain complaints is very recent[] and has largely focused on routine care for her diabetes and hypertension[,]" despite her complaints of being bothered by joint pain for many years. Tr. 53. The ALJ noted little and conservative treatment in the record. Tr. 54-56.
Treatment received by a claimant is a relevant factor in determining the severity of a claimant's symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). An ALJ may discredit a claimant's pain testimony based on a history of conservative treatment. Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995) (finding that the ALJ provided clear and convincing reasons to properly decline to rely on the claimant's testimony and noting that the doctor prescribed only "conservative treatment" which suggested a lower level of both pain and functional limitation).
The medical record confirms that Plaintiff had little and conservative treatment for her elbows and shoulders. When Plaintiff complained of pain in elbows, knees, wrist, and thighs in July 2014, she was provided tennis elbow support, referred to occupational therapy, and given exercises. Tr. 348. The following month at a follow-up visit for diabetes, Plaintiff reported that the elbow and arm pain was somewhat better and was mostly depending on work. Tr. 352. Plaintiff stated having some hypoglycemic episodes but had no complaints otherwise. Id. Upon establishing care with Dr. Sprague in October 2014, Plaintiff presented with diabetes mellitus and knee pain and did not make any other pain complaints. Tr. 372. Plaintiff first reported shoulder pain in December 2014, four months after the AOD, even though she alleged an approximately eight-year of pain in the upper extremities. Tr. 380. With treatments of physical therapy, cortisone injection and ibuprofen for her joint pain, Plaintiff's general joint exam in June 2016 "[wa]s normal with full range of motion of spine, shoulders, elbows, wrists, fingers, hips, knees and ankles[.]" Tr. 55, 439 (treatment of physical therapy and cortisone), 516 (treatment of cortisone injection and ibuprofen), 450 (a general joint exam). On Plaintiff's subsequent report that she received marginal relief from physical therapy, a review of her bilateral shoulder MRI revealed that her shoulders "are about the same bilaterally ..." Tr. 433. At Plaintiff's request, Plaintiff was referred to an orthopedic surgeon in March 2016. Id. The record however does not show that Plaintiff followed up with the referral as of October 2016. Tr. 452.
On appeal, Plaintiff submitted additional medical records dated December 23, 2016 through March 7, 2017. Tr. 2. The Appeals Council rejected these records because the additional evidence does not relate to the period at issue. Id. For purposes of reviewing treatment received by Plaintiff, the Court notes that Plaintiff's subsequent medical visits were for blood pressure check, diabetes, and ear infection. Tr. 11-31.
On this record of minimal objective medical evidence as well as little and conservative treatment for Plaintiff's impairments, the ALJ reasonably inferred that Plaintiff's symptoms and limitations were less disabling than alleged. Johnson, 60 F.3d at 1434; Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (a claimant's ability to manage symptoms with conservative measures, such as physical therapy and over-the-counter medication, demonstrates that her symptoms are not as limiting as alleged).
C. The reason Plaintiff stopped working.
An ALJ may find the claimant's subjective complaints not credible if the claimant left a job for reasons unrelated to the impairments. See Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001) (affirming the ALJ's finding that the claimant's subjective complaints not credible because, among other factors, the claimant left his job because he was laid off, rather than because he was injured).
Here, the ALJ discredited Plaintiff's subjective complaints because he found inconsistencies as to the reason she stopped working. Tr. 56. In early August of 2014, Plaintiff reported that her employer "is due to lay off for 1 year" and she was "not planning on pursing [sic] another job at that time." Tr. 56, 352. The ALJ noted that Plaintiff did not explain why she did not plan to look for another job. Tr. 56. The same treatment notes documented that Plaintiff presented "to follow up [sic] diabetes" and she reported "elbow and arm pain somewhat better." Tr. 352. As noted by the ALJ, there was no "physical reason ... to support a finding that she could not continue working if she were not laid off, or to seek another job." Tr. 56. However, in the Work Activity Report for the disability application, Plaintiff marked "[m]y physical and/or mental condition(s)" and "[o]ther reasons" as the reasons she stopped working. Tr. 259. She further explained: "my physical and [sic] conditions were getting bad to work. I was [sic] getting hard to get up in the morning. My hands were in pain. My sugar was high and low. I was always dizzy." Id. She again reported in December 2014 that she had to leave her job "because of her dizziness, pain and fatigue." Tr. 390.
At the hearing, Plaintiff testified that she could not continue to work because of the pain and her hands were always swollen. Tr. 72-73. Notably, Plaintiff did not mention any shoulder or elbow pain. See id. The ALJ then asked: "in the medical record, there's mention of you stopping work because you were going to be laid off. Is that not accurate?" Tr. 73. Plaintiff explained that she was already planning to leave for the last two months before she was laid off, and her employer laid her off at the same time when "[s]he was already telling them she was going to leave the work." Id. Plaintiff argues that the ALJ erred in discrediting Plaintiff because there is substantial evidence of physical reasons for her departure from the workforce before, during and after the departure. Pl.'s Br. 14-15 (ECF No. 19). Plaintiff cites the diagnosis of trapezius strain going back to 2006 and the diagnosis of "adhesive capsulitis of shoulder" as early as August 17, 2010. Id. at 15; Tr. 334, 370. Additionally, Dr. Engelhardt opined in December 2014 that Plaintiff could lift and carry no more than 10 pounds. Tr. 385.
Plaintiff's argument is not persuasive. While the diagnoses of trapezius strain and adhesive capsulitis of shoulder may date back several years, Plaintiff's medical records document little and conservative treatment up to October 2016. Furthermore, when asked what forced her to stop working, Plaintiff testified "because of the pain" and "[h]er hands were always swollen" but did not mention any pain in her shoulders or arms, or anywhere else she complained of as documented in the record. Tr. 72-73. The ALJ also noted that "there is no [objective medical] evidence of problems with [Plaintiff's] hands or any physical reason for her to quit her job in June [sic] 2014." Tr. 56. On this record, the Court should find that the ALJ's finding of the inconsistencies as to the reason Plaintiff left her job is supported by substantial evidence in the record. Bruton, 268 F.3d at 828.
D. Activities of daily living
Activities of daily living can form the basis for an ALJ to discount a claimant's testimony in two ways: (1) as evidence a claimant can work if the activities "meet the threshold for transferable work skills"; or (2) where the activities "contradict [a claimant's] testimony." Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). When considering the factor of daily activities, the Ninth Circuit has repeatedly warned that ALJs must be especially cautious in concluding that daily activities are inconsistent with testimony about pain, and only if the level of activity is inconsistent with the claimant's claimed limitations would these activities have any bearing on the claimant's credibility. Garrison v. Colvin, 759 F.3d 995, 1016 (9th Cir. 2014) (citing Smolen, 80 F.3d at 1287 n. 7 ("The Social Security Act does not require that claimants be utterly incapacitated to be eligible for benefits, and many home activities may not be easily transferable to a work environment where it might be impossible to rest periodically or take medication."); Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) ("[M]any home activities are not easily transferable to what may be the more grueling environment of the workplace, where it might be impossible to periodically rest or take medication.")).
The ALJ found that Plaintiff is quite independent. Tr. 56. Plaintiff lives alone and is entirely independent for her activities of daily living including her personal care needs, household chores, laundry, meal preparation, and medication management. Id.; Tr. 381, 390. She is able to use public transportation, do her own shopping, and manage her personal finances. Tr. 56, 381, 390. The ALJ noted that even assuming Plaintiff is very limited in her daily activities, the record does not support that the limitations are caused by her impairments in the shoulders. Tr. 56. The ALJ further explained that Plaintiff has demonstrated sufficient English proficiency to perform her past job and navigate around her community as she did for several years in the past. Tr. 56-57.
"While a claimant need not vegetate in a dark room in order to be eligible for benefits, the ALJ may discredit a claimant's testimony when the claimant reports participation in everyday activities indicating capacities that are transferable to a work setting." Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th Cir. 2012) (citations and internal punctuation omitted). At the hearing, Plaintiff testified through the interpreter that she is not able to do a lot - "she's tried to do [sic] sit down around the house, whatever she can do a little bit, walk around the house. But then the pain goes on ... so she's now limited to do things around the house[.]" Tr. 73. Plaintiff testified that she cannot go to stores a lot, "maybe once a month or something." Id. If she needs to shop, her friends take her." Tr. 73-74. "[Plaintiff] said she really doesn't go as much on the public [transportation] because it's so hard to go in [sic] the bus. But ... when she doesn't have any ride, then she does go to very close places, not too far." Tr. 74. However, Plaintiff told Mr. Gostnell that "she is entirely independent for all of her daily living activities." Tr. 390. It is notable that her testimony is inconsistent with what she told Mr. Gostnell: "[she] relies upon public transportation, which she can navigate independently" and "[s]he does her own shopping[.]" Id.
Plaintiff points out that the ALJ did not explain why Plaintiff's daily activities support Plaintiff's ability to perform the housekeeper work. Pl.'s Br. 16 (ECF No. 19). Nevertheless, the ALJ reasonably inferred that Plaintiff is not as limited as she alleges based on the inconsistencies in her report. Additionally, the ALJ provided other specific reasons supported by the record that discredit Plaintiff's complaints. The vocational expert opined that an individual with Plaintiff's RFC would be able to perform the housekeeper work. Tr. 59, 77-78. The ALJ relied on the vocational expert's opinion and found that Plaintiff is capable of performing her past work as a housekeeper. Tr. 59.
Plaintiff also generally argues that the ALJ failed to identify what testimony is not credible and what evidence undermines the testimony. Pl.'s Br. 8, 13, 16 (ECF No. 9). The Court nonetheless is able to discern the ALJ's path of reasoning based on the minimal objective findings in the record, the little and conservative treatment, and the inconsistencies in Plaintiff's reason to stop working. Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) ("[e]ven when the ALJ commits [a] legal error, we uphold the decision where that error is harmless," meaning that "it is inconsequential to the ultimate nondisability determination," or that, despite the legal error, "the agency's path may reasonably be discerned, even if the agency explains its decision with less than ideal clarity.") (citing Treichler v. Comm'n of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014)). The Court should find that the ALJ's failure to identify what testimony is not credible and what evidence undermines the testimony is harmless. Id.
As discussed above, although the ALJ's reliance on the inconsistencies in the history and location of Plaintiff's symptom may be unreliable, the ALJ provided other grounds for his unfavorable credibility determination and they are supported by substantial evidence in the record. Accordingly, the Court should uphold the ALJ's credibility determination.
II. Medical Opinion Evidence
The ALJ is responsible for resolving conflicts in the medical record, including conflicts among physicians' opinions. Carmickle v. Comm'r., Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008). Specific and legitimate reasons for rejecting a physician's opinion may include its reliance on a claimant's discredited subjective complaints, inconsistency with medical records, inconsistency with a claimant's testimony, inconsistency with a claimant's daily activities, or that the opinion is brief, conclusory, and inadequately supported by clinical findings. Bray v. Commissioner, 554 F.3d 1219, 1228 (9th Cir. 2009); Tommasetti, 533 F.3d at 1040; Andrews v. Shalala, 53 F.3d 1035, 1042-43 (9th Cir. 1995). An ALJ errs by rejecting or assigning minimal weight to a medical opinion "while doing nothing more than ignoring it, asserting without explanation that another medical opinion is more persuasive, or criticizing it with boilerplate language that fails to offer a substantive basis" for the ALJ's conclusion. Garrison, 759 F.3d at 1013; see also Smolen, 80 F.3d at 1286 (noting that an ALJ effectively rejects an opinion when he or she ignores it).
"An ALJ can satisfy 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, 759 F.3d at 1012 (quoting Reddick v. Chater, 157 F.3d 715, 725). In other words, "[t]he ALJ must do more than offer his conclusions. He must set forth his own interpretations and explain why they, rather than the doctors', are correct." Reddick, 157 F.3d at 725 (citing Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988)). "[T]he opinion of a nonexamining medical advisor cannot by itself constitute substantial evidence that justifies the rejection of the opinion of an examining or treating physician." Morgan v. Comm'r Soc. Sec. Admin., 169 F.3d 595, 602 (citations omitted); but see id. at 600 (opinions of non-treating or nonexamining physicians may serve as substantial evidence when the opinions are consistent with independent clinical findings or other evidence in the record).
A. Dr. Engelhardt
Based on her consultative examination, Dr. Engelhardt concluded that Plaintiff cannot lift or carry more than 10 pounds "due to her bilateral should pain, probable osteoarthritis ..." Tr. 385. The ALJ rejected Dr. Engelhardt's opinion because "there are huge inconsistencies in the claimant's report of complaints and presentation to Dr. Engelhardt compared to her actual medical treatment records." Tr. 58. The ALJ also noted that Dr. Engelhardt did not have the benefit of reviewing Plaintiff's MRIs which confirm that Plaintiff does not have widespread osteoarthritis in her joints. Id.
These two reasons - Plaintiff's discredited subjective complaints and the inconsistency of Dr. Engelhardt's conclusion with the medical records - are specific and legitimate reasons the ALJ may rely on to reject a physician's opinion. Bray, 554 F.3d at 1228; Tommasetti, 533 F.3d at 1040; Andrews, 53 F.3d at 1042-43. Based on the discussion above concerning Plaintiff's subjective complaints and the objective evidence, the Court should not disturb the ALJ's decision in rejecting Dr. Engelhardt's opinion.
B. Dr. Sprague
Dr. Sprague completed a Physical Residual Functional Capacity Assessment and opined that Plaintiff can lift or carry less than 10 pounds. Tr. 523. Dr. Sprague also limited Plaintiff's standing and walking to less than 2 hours in an 8-hour workday. Id. Dr. Sprague opined that it is medically necessary for Plaintiff to elevate her legs frequently up to 30 minutes at 6 inches or less. Id.
The ALJ rejected Dr. Sprague's opinion because Dr. Sprague admitted that her opinion was based in large degree on Plaintiff's reported symptoms and limitations. Tr. 58, 524-27 (Dr. Sprague's answer to each of the questions started with "PT [patient] states ..." and she handwrote that the information "is based in large degree on patient report."). Although Dr. Sprague noted that "[i]maging studies and exam support these answers[,]" she acknowledges that "no formal testing for functional residual capacities was done." Tr. 527. The ALJ found that "it is unclear what imaging studies [Dr. Sprague] was referring to since the record shows no diagnosed condition relating to [Plaintiff's] lower extremities that would support such severe limitations in walking and standing or the need to elevate her legs." Tr. 58. The ALJ also found Dr. Sprague's opinion unpersuasive because Plaintiff had "a few appointments" with Dr. Sprague and "very few recently." Id.
To the extent that Dr. Sprague based her opinion in large degree on Plaintiff's discredited complaints, it is reasonable for the ALJ to reject Dr. Sprague's opinion because of his unfavorable credibility finding of Plaintiff. Additionally, "[l]ength of treatment relationship and the frequency of examination" are a factor in weighing medical opinions. 20 C.F.R. § 404.1527(c)(2); Pl.'s Br. 16 (ECF No. 13). It is therefore proper for the ALJ to consider the number and frequency of appointments Plaintiff had with Dr. Sprague as a factor in giving little weight to Dr. Sprague's opinion.
As to the lack of supporting objective medical evidence, Plaintiff argues that the ALJ's reliance on the inability of Dr. Sprague to support her opinion with objective laboratory findings does not constitute a clear and convincing reason for rejecting her conclusions. Pl.'s Br. 19 (ECF No. 19) (citing Montijo v. Secretary of Health & Human Services, 729 F.2d 599, 601 (9th Cir. 1984) ("Neither the hearing examiner's observation of the claimant at the hearing nor his reliance on the inability of the physicians to support their findings with objective laboratory findings constituted a clear and convincing reason for rejecting their conclusion.")). However, the Montijo case is distinguishable. The Ninth Circuit found that the ALJ in Montijo "failed to present clear and convincing reasons for rejecting uncontroverted reports of the psychiatrists" based on "evidence relevant primarily to claimant's physical impairment and upon observation of claimant at the hearing." Montijo, 729 F.2d at 602. Here, the ALJ considered the entire record and reasonably concluded that the record does not provide a sound basis for Dr. Sprague's opinion.
In view of the reasons offered by the ALJ, the Court should find that the ALJ provided specific and legitimate reasons for rejecting Dr. Engelhardt's and Dr. Sprague's opinions.
RECOMMENDATION
For the reasons set forth above, the Court should affirm the ALJ's decision.
Scheduling Order
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.
DATED this 5th day of September 2019.
s/ Mustafa T. Kasubhai
MUSTAFA T. KASUBHAI
United States Magistrate Judge