(SS) Boyer v. Commissioner of Social Security ( 2020 )

2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 CHAD BOYER, Case No. 1:19-cv-00714 EPG 13 Plaintiff, FINAL JUDGMENT AND ORDER REGARDING PLAINTIFF’S SOCIAL 14 v. SECURITY COMPLAINT 15 COMMISSIONER OF SOCIAL SECURITY, 16 Defendant. 17 18 19 20 This matter is before the Court on Plaintiff’s complaint for judicial review of an 21 unfavorable decision by the Commissioner of the Social Security Administration regarding his 22 application for Disability Insurance Benefits. The parties have consented to entry of final 23 judgment by the United States Magistrate Judge under the provisions of 28 U.S.C. § 636(c) with 24 any appeal to the Court of Appeals for the Ninth Circuit. (ECF Nos. 7, 8). 25 At a hearing on September 23, 2020, the Court heard from the parties and, having 26 reviewed the record, administrative transcript, the briefs of the parties, and the applicable law, 27 finds as follows: 28 \\\ 2 Testimony 3 Plaintiff challenges the ALJ’s finding that Plaintiff’s subjective symptom testimony could 4 not be fully credited. 5 The Court looks to whether the ALJ offered clear and convincing reasons for discounting 6 Plaintiff’s subjective symptom testimony. Burrell v. Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 7 2014). 8 The ALJ stated as follows regarding Plaintiff’s subjective symptom testimony: 9 After careful consideration of the evidence, the undersigned finds that the claimant’s medically determinable impairments could reasonably be expected to 10 cause the alleged symptoms; however, the claimant’s statements concerning the intensity, persistence and limiting effects of those symptoms are not entirely 11 consistent with the medical evidence and other evidence in the record for the 12 reasons explained in this decision. 13 As for the claimant’s statements about the intensity, persistence, and limiting effects of his symptoms, they are inconsistent because the objective medical 14 evidence does not show that the claimant’s symptoms are as limiting as he alleges. For example, in October of 2016, the claimant’s primary care provider noted that 15 all of his chronic conditions were stable, including asthma and low back pain 16 (8F/36). He had normal physical examinations in November and December of 2016 (8F/59, 72, 75). The claimant also had normal physical examinations in 17 February, May, and September of 2017 (8F/161, 297, 301, 355). Regarding the claimant’s activities of daily living, he testified that he lives alone. He is able to 18 do light activities at home. He is able to drive. He is able to go grocery shopping 19 and go to church on Sundays. He goes to bible study twice per month. The claimant is able to watch television and he plays chess with friends (Hearing 20 Testimony). Furthermore, the claimant worked from January to August of 2017 at substantial gainful activity levels (8D; 9D). This shows that the has excellent 21 abilities for earning income. Here, the claimant has described daily activities that 22 are inconsistent with the claimant’s allegations of disabling symptoms and limitations. 23 24 (A.R. 22). 25 The Court has looked at the objective medical evidence cited by the ALJ. It is true that 26 his primary care provider noted that all of his chronic conditions were stable, including asthma 27 and low back pain. (A.R. 560 (“All conditions are stable.”). However, stability does not 28 necessarily say anything as to the intensity, persistence, and limiting effects of his symptoms. 2 560; see also A.R. 564 (“bilateral low back pain, unspecified chronicity, with sciatica presence 3 unspecified. Comment: stable”)). 4 The ALJ also cites to certain records for showing “normal physical examinations in 5 December of 2016. (A.R. 220). The first cited record shows normal findings on an examination 6 of vital signed, “general,” ears, nose, pharynx, chest, heart and extremities. (A.R. 583). Another 7 notes, regarding a physical examination, “well developed, well nourished male, alert and 8 orientated x3 and no acute distress.” (A.R. 596; see also A.R. 22 (same)). 9 The ALJ then points to various “normal physical examinations.” (A.R. 685 10 (“musculoskeletal: no joint or muscle pain or limitation; neurological: no weakness, tremors, 11 syncope”); (A.R. 821-22 (“General: well developed, well nourished male, alert and orientated x3, 12 no acute distress.”); (A.R. 879 (same)). The record supports the ALJ’s summary of these normal 13 physical examinations. 14 The record also supports the ALJ’s summary that Plaintiff lives alone, can do light 15 activities at home, can drive, can go grocery shopping and go to church on Sundays, goes to bible 16 study, watches television and plays chess. While none of these activities show an ability to 17 perform full time work, they are relevant in assessing Plaintiff’s abilities. 18 Finally, the ALJ is correct that Plaintiff worked from January to August of 2017 at 19 substantial gainful activity levels. It is also true that Plaintiff testified that he had to leave this job 20 because of his pain, and that he missed two to three days per week. (A.R. 49). 21 The Court has considered the reasons given and concludes that they are legally sufficient. 22 While some of the reasons are not persuasive, such as Plaintiff’s condition being stable, the Court 23 finds that the repeated normal physical examination findings do provide a clear and convincing 24 reason to not fully credit Plaintiff’s symptom testimony. Those examinations repeatedly show 25 normal findings, where one would expect Plaintiff to show abnormal findings given his 26 testimony. The other reasons, including Plaintiff’s extensive activities of daily living and time of 27 gainful activity, although not dispositive, provide further support for the ALJ’s reasoning. 28 /// 2 B. Whether the ALJ Committed Legal Error Re: Plaintiff’s Treating Physician 3 Plaintiff argues that the ALJ committed legal error in failing to provide sufficient reasons 4 for discounting the opinion of Plaintiff’s treating physician. 5 In weighing medical source opinions in Social Security cases, there are three categories of 6 physicians: (i) treating physicians, who actually treat the claimant; (2) examining physicians, 7 who examine but do not treat the claimant; and (3) non-examining physicians, who neither treat 8 nor examine the claimant. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). An ALJ must 9 provide clear and convincing reasons that are supported by substantial evidence for rejecting the 10 uncontradicted opinion of a treating or examining doctor. Id.at 830–31; Bayliss v. Barnhart, 427 11 F.3d 1211, 1216 (9th Cir. 2005). An ALJ cannot reject a treating or examining physician's 12 opinion in favor of another physician's opinion without first providing specific and legitimate 13 reasons that are supported by substantial evidence. Bayliss, 427 F.3d at 1216; 20 C.F.R. § 14 404.1527(c)(4) (an ALJ must consider whether an opinion is consistent with the record as a 15 whole); Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); Tommasetti v. Astrue, 533 F.3d 16 1035, 1041 (9th Cir. 2008) (finding it not improper for an ALJ to reject a treating physician's 17 opinion that is inconsistent with the record). 18 Here, because Dr. Jafri’s opinion was contradicted by state agency non-examining 19 physicians, the Court looks to whether the ALJ’s decision was supported by specific and 20 legitimate reasons that are supported by substantial evidence. 21 The ALJ addressed Dr. Jafri’s opinion as follows: 22 The claimant’s physician, Zeeshan A. Jafri, M.D., completed a physical residual functional capacity questionnaire regarding the claimant. He reported that the 23 claimant could walk half of a block without rest or severe pain, he could sit thirty minutes at a time, and stand five minutes at a time. He could stand/walk less than 24 two hours in an eight-hour day and sit at least six hours in an eight-hour day. He 25 would need to shift positions. Dr. Jafri found that the claimant could frequently lift twenty pounds. He stated that the claimant would need intermittent time off 26 for flare-ups, three times per month up to three days per episode (7F). This 27 opinion is given little weight, as it is inconsistent with the record as a whole. The record supports a lesser degree of restriction. For example, the claimant’s primary 28 care provider noted that all of his chronic conditions were stable, including asthma 4:40 UV VY EDT NOMIC Ia ee POY VI 1 and low back pain (8F/36). The claimant had numerous normal physical examinations throughout the record (1F/38, 58; 8F/59, 72, 161, 297, 301, 355). 2 Accordingly the record shows that the claimant is not as limited as Dr. Jafri 3 opined. Therefore, this opinion is given little weight. 4 | (AR. 23). 5 For the same reasons described above regarding Plaintiff's symptom testimony, the Court 6 | finds that these reasons, especially the repeated normal physical examinations, constitute specific 7 | and legitimate and supported by substantial evidence. 8 C. Conclusion 9 Thus, the Court finds that the decision of the Commissioner of Social Security is 10 | supported by substantial evidence, and the same is hereby affirmed. 11 The Clerk of the Court is directed to close this case. 12 13 | IT IS SO ORDERED. | Dated: _ September 30, 2020 [see ey 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28