(SS) McMillen IV v. Commissioner of Social Security ( 2019 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 WILLIAM JOHN McMILLEN IV, No. 1:18-cv-01115-GSA 11 Plaintiff, 12 v. ORDER DIRECTING ENTRY OF JUDGMENT IN FAVOR OF 13 ANDREW SAUL, Commissioner of Social COMMISSIONER OF SOCIAL SECURITY Security, AND AGAINST PLAINTIFF 14 15 Defendant. 16 17 I. Introduction 18 Plaintiff William John McMillen IV (“Plaintiff”) seeks judicial review of a final decision 19 of the Commissioner of Social Security (“Commissioner” or “Defendant”) denying his 20 application for disability insurance benefits pursuant to Title II of the Social Security Act. The 21 matter is currently before the Court on the parties’ briefs which were submitted without oral 22 argument to the Honorable Gary S. Austin, United States Magistrate Judge.1 See Docs. 15, 16 23 and 17. Having reviewed the record as a whole, the Court finds that the ALJ’s decision is 24 supported by substantial evidence and applicable law. Accordingly, Plaintiff’s appeal is denied. 25 /// 26 /// 27 28 1 The parties consented to the jurisdiction of the United States Magistrate Judge. See Docs. 7 and 8. 1 II. Procedural Background 2 On March 19, 2014, Plaintiff filed an application for disability insurance benefits alleging 3 disability beginning March 10, 2014. AR 10. The Commissioner denied the application initially 4 on June 30, 2014, and again following reconsideration on August 14, 2014. AR 10, 114. 5 On August 28, 2014, Plaintiff filed a request for a hearing. AR 10. Administrative Law 6 Judge Richard T. Breen presided over an administrative hearing on August 10, 2017. AR 41-93. 7 Plaintiff appeared and was represented by an attorney. AR 41. On August 21, 2017, the ALJ 8 denied Plaintiff’s application. AR 10-21. 9 The Appeals Council denied review on June 21, 2018. AR 1-5. On August 17, 2018, 10 Plaintiff filed a complaint in this Court. Doc. 1. 11 III. Factual Background 12 A. Plaintiff’s Testimony 13 1. Agency Hearing 14 Plaintiff (born April 19, 1985) lived with his spouse and four children in California City, 15 California. AR 60. He completed high school and thereafter worked as a laborer performing 16 heavy construction work building and maintaining roads and bridges. AR 61. His duties 17 included such things as shoveling asphalt grindings, lifting and placing sandbags, and 18 transporting and installing asphalt in areas that trucks could not reach. AR 62-63. From 2009- 19 2014, Plaintiff worked as a field inspector, checking finished paving as well as tools and 20 equipment. AR 63. 21 Although Plaintiff drove short distances near his home, his spouse generally drove him on 22 longer trips. AR 60. At most, he could stand and walk for 30 minutes in an eight-hour work day. 23 AR 72. He could sit for 30 to 40 minutes before needing to lay down. AR 78. He could lift two 24 gallons of milk and use his hands and fingers. AR 77. Plaintiff had difficulty bending over to 25 wash his legs and feet and while looking up to shave. AR 77. Because Plaintiff had difficulty 26 reaching his lower extremities, his wife helped Plaintiff dress. AR 77. Plaintiff did very little 27 housework but could vacuum and wipe down counters. AR 78. He could not do dishes or 28 laundry because he could not bend. AR 78. Plaintiff’s medications made him drowsy, but pain 1 kept him awake at night. AR 80. He had dizzy spells at least once a month. AR 80. 2 Plaintiff continued working after his initial diagnosis of multiple sclerosis. AR 68. 3 Ultimately, he began passing out at work experiencing numbness in his hands and feet, and 4 finding himself unable to move or stand because of his back and neck problems. AR 68. He 5 could not carry his tools. AR 70. Severe pain prevented him from doing even less physical work. 6 AR 70-71. 7 Because he lived three hours from Los Angeles, Plaintiff had not returned to the UCLA 8 neurologist since 2015. AR 67. He had been unable to find a neurologist near his home. AR 74. 9 Finding that shots were ineffective at controlling his pain, Plaintiff had discontinued seeing his 10 pain management specialist, Dr. Emenike, in 2015 or 2016. AR 73. Similarly, Plaintiff had 11 discontinued seeing Dr. Del Rosario in favor of getting the same medications from his primary 12 care physician. AR 73. 13 2. Adult Function Report 14 In an Adult Function Report dated April 18, 2014, Plaintiff reported spending most of his 15 day lying on the couch watching television, or napping until his children returned from school 16 and the family went to the children’s practices. AR 314. In addition to the daily activities to 17 which he testified, Plaintiff reported feeding the family’s animals and taking out the trash 18 depending on his pain level. AR 316. He shopped every two weeks for about three hours. AR 19 317. Plaintiff’s impairments affected his ability to lift, squat, bend, walk, stand, reach, sit, kneel, 20 climb stairs, see, complete tasks, concentrate and use his hands. AR 319. 21 On a fatigue questionnaire of the same date, Plaintiff reported first experiencing fatigue in 22 early 2012. AR 323. He napped for one to two hours daily. AR 324. 23 B. Medical Records 24 The record includes examination notes of Plaintiff’s primary care physician, Kain Kumar, 25 M.D., Ph.D., from November 2012 through July 2015. AR 458-70, 514-18. Dr. Kumar’s notes 26 are brief and frequently illegible. By November 2012, Plaintiff was reporting severe back pain 27 and finger numbness. AR 464-65. As a result, Dr. Kumar ordered the November 29, 2012 28 1 magnetic resonance imaging studies that indicated areas of demyelination and Dawson’s fingers2 2 in Plaintiff’s brain. AR 466-70. 3 On January 23, 2013, neurologist Vijay Shanmugam, M.D., examined Plaintiff as a new 4 patient. AR 411-13. Plaintiff reported recurrent neck pain beginning six years prior that had 5 become constant in the last two years; bilateral blurry vision; twice passing out; migraine 6 headaches; and, intermittent numbness of the second and third fingers. AR 411. Dr. 7 Shanmugam’s examination of Plaintiff was normal in all regards. AR 412. The doctor 8 summarized: 9 Patient’s history and exam not consistent with MS. The neck pain appears to be musculoskeletal and he has a history of vasovagal 10 syncope. Visual acuity is 20/25 in both eyes without red desaturation. 11 AR 412. 12 On January 30, 2013, Dr. Shanmugam administered a visual evoked potential test. AR 13 414. Plaintiff’s responses were abnormal with prolonged latency on both sides suggestive of 14 demyelinating optic neuropathy. AR 414. In a follow-up examination on February 27, 2013, the 15 doctor reported that the November 2013 magnetic resonance imaging showed white matter 16 lesions suggestive of demyelination but no cervical spine lesions. AR 409. Because Plaintiff’s 17 MRI and EP abnormalities that indicated demyelination but were not specific for multiple 18 sclerosis, Dr. Shanmugam referred Plaintiff to a multiple sclerosis specialist at UCLA. AR 405, 19 407. 20 Stephanie Tankou, M.D., Ph.D., examined Plaintiff at UCLA on April 27, 2013. AR 4- 21 39. Except for mild decreased sensation to pinprick in a stocking distribution at Plaintiff’s feet, 22 the physical examination was normal. AR 435-36. Dr. Tankou wrote: 23 27-year-old right-handed male with history of headache with 24 migrainous features who presents with a constellation of symptoms including 1 year [history of] worsening daytime fatigue, intermittent 25 episodes of numbness in the third and fourth fingers bilaterally, and heavy sensation in both legs that are concerning for multiple 26 sclerosis. The patient underwent a brain MRI study that showed 27 2 “Dawson’s fingers” are elongated, flame shaped, hyperintense lesions perpendicular to the walls of lateral ventricals which correspond to areas of perivenous inflammation. www.ncbi.nih.gov/pms/articles/PMC3934317/ (accessed 28 December 3, 2019). These lesions are typical of multiple sclerosis. Id. 1 Dawson fingers. We were not able to review his C-spine MRI, but T-spine MRI also shows area of hyperintensity along the left side that 2 is suspicious for a demyelinating process and could explain abnormal sensation in his legs. The patient does meet the criteria for clinically 3 definite multiple sclerosis as some of the lesions were enhancing and others were not and the lesions were in different areas; this fulfill[s] 4 the criteria for dissemination in time and space. He has also been complaining of neck pain radiating to his back which is sounding 5 more like musculoskeletal type of pain, especially because it is exacerbated by movement, but since we have not had the opportunity 6 to review the C-spine MRI, we can’t completely rule out the possibility that his neck pain is secondary to an underlying C-spine 7 disease/abnormality. The blurry vision episodes of vertigo were lasting less than 24 hours, they would not qualify as multiple 8 sclerosis symptoms. 9 AR 436-37. 10 Following a second appointment with Dr. Tankou,3 Plaintiff began injecting Copaxone4 11 on June 17, 2013. AR 422, 425. When Plaintiff saw Dr. Tankou on July 27, 2013, he was 12 experiencing a skin reaction (swelling and erythema) at the injection sites, particularly at the hips 13 and thighs. AR 425. Plaintiff continued to experience fatigue, bilateral numbness of the thumbs 14 and third and fourth fingers, and soreness in his lower extremities. AR 425. Dr. Tankou 15 reviewed Plaintiff’s November 2012 C-spine MRI and observed no clear area of demyelination. 16 AR 425. She encouraged Plaintiff to discontinue Vicodin and Soma, both of which had sedating 17 effects that could exacerbate Plaintiff’s fatigue. AR 427. 18 On October 29, 2013, orthopedist Woojae Kim, M.D., examined Plaintiff to evaluate 19 complaints of upper and lower back pain. AR 444-46. The physical examination was generally 20 normal except for tenderness to palpation in the bilateral thoracic paraspinal muscles. AR 445. 21 Magnetic resonance imaging of Plaintiff’s lumbar spine (October 2013) revealed a broad-based 22 disk protrusion with annular fissure and spur at L5-S1 with bilateral facet arthropathy probably 23 touching both L5 exiting roots; a 2-3 mm disk bulge with facet hypertrophy at L3-L4 and L4-L5; 24 and, trace facet joint effusions at L4-L-5 and L5-S1. AR 445-46, 449-50. Lumbar spine 25 /// 26 3 Dr. Tankou prescribed physical therapy to address Plaintiff’s neck pain. AR 681. The administrative record includes no evidence that Plaintiff ever participated in physical therapy. 27 4 Copaxone (Glatiramer injection) is injected subcutaneously to treat adults with various forms of multiple sclerosis. www.medlineplus.gov/druginfo/meds/a603016.html (accessed December 4, 2019). Copaxone is an 28 immunomodulator that stops the body from damaging its own nerve cells (myelin). Id. 1 imaging was unremarkable. AR 451-52. Dr. Kim administered trigger point injections to the 2 thoracic paraspinous [sic] bilaterally and prescribed Baclofen5 to be taken as needed. AR 446. 3 Dr. Kim again administered trigger point injections on November 12, 2013. AR 447-48. 4 Although Plaintiff’s back pain had improved following the prior injections, the doctor remained 5 concerned about Plaintiff’s neck pain. AR 448. He diagnosed cervical radiculopathy and 6 bilateral trapezius myofascial pain. AR 448. 7 Ophthalmologist Reginald Sampson, M.D., evaluated Plaintiff’s complaints of blurry 8 vision in June 2014. AR 478-93. Plaintiff’s visual acuity was 20/25, and he had astigmatism. 9 AR 479, 481. Dr. Sampson prescribed glasses. AR 481. 10 In the emergency department of Antelope Valley Hospital on October 14, 2014, Plaintiff 11 was treated for paranoia and agitation following an argument in which he threatened his wife. 12 AR 540. Emergency room medical personnel diagnosed depression and psychosis with mild 13 delusional disorder (paranoia). AR 541. He was discharged and returned home the same day. 14 AR 547. 15 In November 2014, Plaintiff returned to UCLA where he was treated by Andrew M. 16 Wilson, M.D. AR 681-83. Dr. Wilson noted that since Plaintiff’s last appointment in July 2013, 17 Plaintiff continued to experience fatigue and intermittent paresthesia but had no MS-like attacks. 18 AR 681. Plaintiff experienced blurred vision and difficulty swallowing in the mornings, which 19 improved as the day passed. AR 681. Plaintiff reported that he was hospitalized for a “mental 20 breakdown” after his wife left him, taking their three young children. AR 681. Magnetic 21 resonance imaging of Plaintiff’s brain, cervical spine and lumbar spine in October 2014 revealed 22 no new lesions. AR 681. Following a physical examination of Plaintiff, Dr. Wilson opined that 23 Plaintiff’s multiple sclerosis was stable. AR 682. He recommended that Plaintiff reduce his use 24 of Norco and Ambien as tolerated. AR 683. 25 Plaintiff received pain management services from Emmanuel Emenike, M.D., from 26 February through July 2015. AR 623-58. Dr. Emenike prescribed Norco and periodically 27 5 “Baclofen acts on the spinal cord nerves and decreases the number and severity of muscle spasms caused by multiple sclerosis or spinal cord diseases. It also relieves pain and improves muscle movement.” 28 www.medlineplus.gov/druginfo/meds/a682530.html (accessed December 4, 2019). 1 administered injections to relieve lumbar pain radiating to Plaintiff’s lower extremities. AR 23- 2 58. 3 Plaintiff did not keep his March 2015 appointment at UCLA. AR 684. 4 The record includes notes concerning Plaintiff’s psychiatric treatment by Roy Del 5 Rosario, M.D., from February 2015 to December 2016. AR 526-33, 670-71, 673-75. In an 6 undated intake interview Plaintiff disclosed daily consumption of four alcoholic beverages. AR 7 534. His psychiatric history included anxiety, depression, psychosis and schizophrenia. AR 534. 8 Dr. Del Rosario noted appropriate grooming and observed no loss of thought processes, intact 9 associations, thoughts within normal limits, full orientation, intact recent and remote memory, 10 impaired attention span and concentration, and anxious and depressed mood and affect. AR 535. 11 Dr. Del Rosario’s diagnosis is largely illegible except for his notation of a GAF score of 40.6 AR 12 536. 13 On June 10, 2015, Plaintiff was treated for a broken toe and injured foot at Palmdale 14 Regional Medical Center (PRMC). AR 556-61. Plaintiff experienced a tunneling of vision, 15 dropped a clay pot on his foot, recovered, then blacked out and fell into a fountain striking his 16 face. AR 556. 17 On July 26, 2015, Plaintiff was treated at PRMC for severe back pain following a sneeze. 18 AR 562-65. Emergency personnel diagnosed a possible herniated lumbar disc and prescribed 19 Motrin and Norco for pain. AR 564-65. 20 When Plaintiff saw Dr. Wilson in October 2015, he reported that his orthopedists were 21 considering surgery to address numbness and weakness of Plaintiff’s left leg, thought to be 22 caused by a pinched nerve. AR 684. Since his last appointment Plaintiff had experienced no MS- 23 like attacks such as change in vision, bowel/bladder disfunction or other extremity changes. AR 24 684. Plaintiff reported that stress from his divorce was disturbing his sleep, but he had family 25 support and a new girlfriend. AR 684. Dr. Wilson encouraged exercise to improve Plaintiff’s 26 6 The Global Assessment of Functioning (GAF) scale is a rating from 0 to 100 and considers psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. Diagnostic and Statistical 27 Manual of Mental Disorders, 32-35 (4th ed. American Psychiatric Association 1994). A GAF of 31-40 corresponds to some impairment in reality testing or communication (e.g., speech is at times illogical, obscure or irrelevant) or 28 major impairment in several areas (e.g., stays in bed all day; no job, home or friends). Id. 1 quality of life and ease disease progression. AR 686. He also encouraged Plaintiff to minimize 2 stress and adapt good coping mechanisms. AR 686. 3 In December 2016, Firooz Amjadi, M.D., performed a C5-C6 anterior cervical 4 decompression and instrumented fusion of Plaintiff’s spine at C5, C6 and C7. AR 594-95. The 5 surgery eliminated Plaintiff’s left arm pain and resolved the radiating pain to the fingers of the 6 right arm; however, Plaintiff still experienced some pain from the neck to the right elbow. AR 7 594. By April 2017, Plaintiff’s right arm pain had resolved. AR 662. 8 IV. Standard of Review 9 Pursuant to 42 U.S.C. §405(g), this court has the authority to review a decision by the 10 Commissioner denying a claimant disability benefits. “This court may set aside the 11 Commissioner’s denial of disability insurance benefits when the ALJ’s findings are based on 12 legal error or are not supported by substantial evidence in the record as a whole.” Tackett v. 13 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted). Substantial evidence is evidence 14 within the record that could lead a reasonable mind to accept a conclusion regarding disability 15 status. See Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a scintilla, but less 16 than a preponderance. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996) (internal citation 17 omitted). When performing this analysis, the court must “consider the entire record as a whole 18 and may not affirm simply by isolating a specific quantum of supporting evidence.” Robbins v. 19 Social Security Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citations and internal quotation marks 20 omitted). 21 If the evidence reasonably could support two conclusions, the court “may not substitute its 22 judgment for that of the Commissioner” and must affirm the decision. Jamerson v. Chater, 112 23 F.3d 1064, 1066 (9th Cir. 1997) (citation omitted). “[T]he court will not reverse an ALJ’s 24 decision for harmless error, which exists when it is clear from the record that the ALJ’s error was 25 inconsequential to the ultimate nondisability determination.” Tommasetti v. Astrue, 533 F.3d 26 1035, 1038 (9th Cir. 2008) (citations and internal quotation marks omitted). 27 /// 28 /// 1 V. The Disability Standard 2 To qualify for benefits under the Social Security Act, a plaintiff must establish that he or she is unable to engage in substantial gainful 3 activity due to a medically determinable physical or mental impairment that has lasted or can be expected to last for a continuous 4 period of not less than twelve months. 42 U.S.C. § 1382c(a)(3)(A). An individual shall be considered to have a disability only if . . . his 5 physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work, but cannot, 6 considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national 7 economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for 8 him, or whether he would be hired if he applied for work. 9 42 U.S.C. §1382c(a)(3)(B). 10 To achieve uniformity in the decision-making process, the Commissioner has established 11 a sequential five-step process for evaluating a claimant’s alleged disability. 20 C.F.R. §§ 12 416.920(a)-(f). The ALJ proceeds through the steps and stops upon reaching a dispositive finding 13 that the claimant is or is not disabled. 20 C.F.R. §§ 416.927, 416.929. 14 Specifically, the ALJ is required to determine: (1) whether a claimant engaged in 15 substantial gainful activity during the period of alleged disability, (2) whether the claimant had 16 medically determinable “severe impairments,” (3) whether these impairments meet or are 17 medically equivalent to one of the listed impairments set forth in 20 C.F.R. § 404, Subpart P, 18 Appendix 1, (4) whether the claimant retained the residual functional capacity (“RFC”) to 19 perform his past relevant work, and (5) whether the claimant had the ability to perform other jobs 20 existing in significant numbers at the national and regional level. 20 C.F.R. § 416.920(a)-(f). 21 VI. Summary of the ALJ’s Decision 22 The Administrative Law Judge found that Plaintiff had not engaged in substantial gainful 23 activity since the alleged onset date of March 10, 2014. AR 12. His severe impairments 24 included: multiple sclerosis; cervical spine degenerative disk disease, status post fusion in 25 December 2016; lumbar spine degenerative disk disease; and, depression. AR 13. None of the 26 severe impairments met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, 27 Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526). AR 13. 28 /// 1 The ALJ concluded that Plaintiff had the residual functional capacity to perform light 2 work as defined in 20 C.F.R. §§ 404.1567(b), except he could no more than occasionally operate 3 hand controls with his bilateral upper extremities. AR 15. He could never climb ladders, ropes or 4 scaffolds; occasionally stoop, kneel, crouch and crawl; and, frequently balance and climb ramps 5 and stairs. AR 15. He could reach overhead no more often than occasionally. AR 15. Plaintiff 6 should avoid concentrated exposure to extreme heat, extreme cold, unprotected heights and 7 moving mechanical parts. AR 15. He was limited to simple, routine and repetitive tasks. AR 15. 8 Plaintiff was unable to perform his past relevant work. AR 19. However, considering 9 Plaintiff’s age, education, work experience and residual functional capacity jobs that he could 10 perform existed in significant numbers in the national economy. AR 20. Accordingly, the ALJ 11 found that Plaintiff was not disabled at any time from March 10, 2014, the alleged onset date, 12 through August 21, 2017, the date of the decision. AR 21. 13 VII. Reliability of Plaintiff’s Testimony 14 Plaintiff contends that the ALJ erred in concluding that his testimony was inconsistent 15 with objective medical evidence in the record. The Commissioner responds that the ALJ 16 appropriately focused his analysis on the objective medical evidence, and not on Plaintiff’s 17 subjective allegations. Having reviewed the record as a whole, the Court agrees that Plaintiff’s 18 account of disabling pain and other symptoms was inconsistent with the objective medical 19 evidence of his symptoms and treatment. 20 An ALJ is responsible for determining credibility, resolving conflicts in medical 21 testimony and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 22 His or her findings of fact must be supported by “clear and convincing evidence.” Burrell v. 23 Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014). 24 To determine whether the ALJ’s findings are supported by sufficient evidence a court 25 must consider the record as a whole, weighing both the evidence that supports the ALJ’s 26 determination and the evidence against it. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 27 1989). “[A] federal court’s review of Social Security determinations is quite limited.” Brown- 28 Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015). “For highly fact-intensive individualized 1 determinations like a claimant’s entitlement to disability benefits, Congress places a premium 2 upon agency expertise, and, for the sake of uniformity, it is usually better to minimize the 3 opportunity for reviewing courts to substitute their discretion for that of the agency.” Id. (quoting 4 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014), quoting Consolo v. 5 Fed. Mar. Comm’n, 383 U.S. 607, 621 (1966)) (internal quotation marks omitted). Federal courts 6 should generally “’leave it to the ALJ to determine credibility, resolve conflicts in the testimony, 7 and resolve ambiguities in the record.’” Brown-Hunter, 806 F.3d at 492 (quoting Treichler, 775 8 F.3d at 1098). 9 A claimant’s statements of pain or other symptoms are not conclusive evidence of a 10 physical or mental impairment or disability. 42 U.S.C. § 423(d)(5)(A); Soc. Sec. Rul. 16-3p. 11 “An ALJ cannot be required to believe every allegation of [disability], or else disability benefits 12 would be available for the asking, a result plainly contrary to the [Social Security Act].” Fair v. 13 Bowen, 885 F.2d 597, 603 (9th Cir. 1989). 14 Social Security Ruling 16-3p applies to disability applications heard by the agency on or 15 after March 28, 2016. Ruling 16-3p eliminated the use of the term “credibility” to emphasize that 16 subjective symptom evaluation is not “an examination of an individual’s character” but an 17 endeavor to “determine how symptoms limit ability to perform work-related activities.” S.S.R. 18 16-3p at 1-2. 19 An ALJ performs a two-step analysis to determine whether a claimant’s testimony 20 regarding subjective pain or symptoms is credible. See Garrison v. Colvin, 759 F.3d 995, 1014 21 (9th Cir. 2014); Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); S.S.R 16-3p at 3. First, the 22 claimant must produce objective medical evidence of an impairment that could reasonably be 23 expected to produce some degree of the symptom or pain alleged. Garrison, 759 F.3d at 1014; 24 Smolen, 80 F.3d at 1281-1282. In this case, the first step is satisfied by the ALJ’s finding that 25 Plaintiff’s “medically determinable impairments could reasonably be expected to produce the 26 alleged symptoms.” AR 16. The ALJ did not find Plaintiff to be malingering. 27 If the claimant satisfies the first step and there is no evidence of malingering, the ALJ 28 must “evaluate the intensity and persistence of [the claimant’s] symptoms to determine the extent 1 to which the symptoms limit an individual’s ability to perform work-related activities.” S.S.R. 2 16-3p at 2. “[S]ome individuals may experience symptoms differently and may be limited by 3 symptoms to a greater or lesser extent than other individuals with the same medical impairments, 4 the same objective medical evidence and the same non-medical evidence.” S.S.R. 16-3p at 5. In 5 reaching a conclusion, the ALJ must examine the record as a whole, including objective medical 6 evidence; the claimant’s representations of the intensity, persistence and limiting effects of his 7 symptoms; statements and other information from medical providers and other third parties; and, 8 any other relevant evidence included in the individual’s administrative record. S.S.R. 16-3p at 5. 9 “The determination or decision must contain specific reasons for the weight given to the 10 individual’s symptoms, be consistent with and supported by the evidence, and be clearly 11 articulated so the individual and any subsequent reviewer can assess how the adjudicator 12 evaluated the individual’s symptoms.” SSR 16-3p at *10. 13 Because a “claimant’s subjective statements may tell of greater limitations than can 14 medical evidence alone,” an “ALJ may not reject the claimant’s statements regarding her 15 limitations merely because they are not supported by objective evidence.” Tonapetyan v. Halter, 16 242 F.3d 1144, 1147-48 (2001) (quoting Fair, 885 F.2d at 602). See also Bunnell v. Sullivan, 947 17 F.2d 341, 345 (9th Cir. 1991) (holding that when there is evidence of an underlying medical 18 impairment, the ALJ may not discredit the claimant’s testimony regarding the severity of his 19 symptoms solely because they are unsupported by medical evidence). “Congress clearly meant 20 that so long as the pain is associated with a clinically demonstrated impairment, credible pain 21 testimony should contribute to a determination of disability.” Id. (internal quotation marks and 22 citations omitted). 23 However, the law does not require an ALJ simply to ignore inconsistencies between 24 objective medical evidence and a claimant’s testimony. “While subjective pain testimony cannot 25 be rejected on the sole ground that it is not fully corroborated by objective medical evidence, the 26 medical evidence is still a relevant factor in determining the severity of claimant’s pain and its 27 disabling effects.” Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); SSR 16-3p (citing 20 28 C.F.R. § 404.1529(c)(2)). As part of his or her analysis of the record as a whole, an ALJ properly 1 considers whether the objective medical evidence supports or is consistent with a claimant’s pain 2 testimony. Id.; 20 C.F.R. §§ 404.1529(c)(4), 416.1529(c)(4) (symptoms are determined to 3 diminish residual functional capacity only to the extent that the alleged functional limitations and 4 restrictions “can reasonably be accepted as consistent with the objective medical evidence and 5 other evidence”). The ALJ did so here, finding that Plaintiff’s “statements concerning the 6 intensity, persistence and limiting effects of these symptoms are not entirely consistent with 7 medical evidence and other evidence in the record for the reasons explained in this decision.” AR 8 16. 9 “[O]bjective medical evidence is a useful indicator to help make reasonable conclusions 10 about the intensity and persistence of symptoms, including the effects those symptoms may have 11 on the ability to perform work-related activities.” S.S.R. 16-3p at 6. Because objective medical 12 evidence may reveal the intensity, persistence and limiting effects of a claimant’s symptoms, an 13 ALJ must consider whether the symptoms reported by a claimant are consistent with medical 14 signs and laboratory findings of record. Id. For example, “reduced joint motion, muscle spasm, 15 sensory deficit, and motor disruption illustrate findings that may result from, or be associated 16 with, pain.” Id. Conversely, records indicating that a claimant has no muscle wasting bely a 17 claimant’s representation that he or she has been unable to walk no more than a few steps per day. 18 Id. 19 Here, the ALJ began his analysis by contrasting Plaintiff’s claims that he was unable to 20 perform any work activity with objective medical records documenting Plaintiff’s symptoms, 21 diagnoses and treatment; the progression of Plaintiff’s multiple sclerosis; and, Plaintiff’s failure to 22 comply with his neurologists’ instructions for follow-up appointments: 23 In terms of the claimant’s alleged physical symptoms, the record reflects that he was referred to a neurologist in January 2013 for back 24 pain, blurry vision, intermittent numbness in the right fingers and migraine headaches a few times per month. Consequently, he was 25 diagnosed with multiple sclerosis and decided to start treatment with injectable copaxone. Following an appointment in August 2013 at 26 which he was instructed to return in three months, he did not return for follow-up until November 2014, at which time he reported having 27 no multiple sclerosis-like attacks but continued to have fatigue and intermittent paresthesia. In addition, MRI scans of the brain, cervical 28 spine and lumbar spine in October 2014 had shown no new lesions. 1 The examining neurologist instructed him to follow up in four months, but he did not show to his March 2015 appointment and 2 returned in October 2015, at which time he stated he had been doing pretty well on the copaxone injections, had not had any multiple 3 sclerosis-like attacks, and his strength had dramatically improved over the past month. Indeed, examination noted intact sensation, 4 intact gait with good arm swing and steady turn, and negative Romberg test. Notably the record is devoid of further records. 5 AR 16 (citations to record omitted). 6 As summarized in the Factual Background above, the ALJ’s account of Plaintiff’s treatment was 7 accurate. In his testimony, Plaintiff dismissed his failure to continue regular treatment claiming 8 that the UCLA specialists were three hours from his home and he was unable to find a neurologist 9 nearby.7 AR 67, 74. 10 The ALJ next considered the medical evidence relating to the degenerative disk disease of 11 Plaintiff’s cervical spine. AR 16-17. Because of Plaintiff’s severe pain, bilateral arm 12 radiculopathy and weakness, cervical degeneration and stenosis, Plaintiff’s underwent cervical 13 fusion in December 2016. AR 16. By April 2017, Plaintiff told his surgeon that his pain had 14 improved 60 percent in the left arm, 50 percent in the right arm, and 60 to 80 percent in his neck, 15 although he still experienced some triggering in his right hand. AR 16-17. Subsequent imaging 16 indicated that the fusion was progressing well with good positioning of hardware and only mild 17 degeneration. AR 17. At the same time, examination, testing and imaging indicated that 18 Plaintiff’s lumbar spine was stable and did not preclude Plaintiff’s performing light work. AR 17. 19 Plaintiff’s initial mental health evaluation was within normal limits except for impaired 20 attention span and concentration, and subsequent evaluations were unremarkable. AR 17. The 21 ALJ acknowledged Plaintiff’s acute mental health crisis which required emergency room 22 treatment in October 2014 after Plaintiff threatened his wife in the course of a marital argument. 23 AR 17. Emergency room personnel treated Plaintiff and released him the same day.8 AR 547. 24 25 7 Nothing in the record addresses Plaintiff’s failure to return to his initial neurologist, Dr. Shanmugam, who had referred him to UCLA for consultation and whose office was located significantly closer to Plaintiff’s home. 8 Notably, in November 2014, Plaintiff represented to Dr. Wilson that he had a “mental breakdown” requiring 26 hospitalization after his wife left him. AR 681. Emergency room records indicate that Mrs. McMillen brought Plaintiff to the emergency room and explained the circumstances of his agitation and inappropriate behavior. AR 27 545. She later took him home. AR 546. The record neither documents any other hospitalization for mental health treatment, nor provides any further details of Mrs. McMillen’s decision to leave the family home with the family’s 28 three young children. 1 The ALJ concluded that Plaintiff’s depression was adequately addressed in Plaintiff’s residual 2 functional capacity, which limited him to simple work. AR 17. 3 Finally, the ALJ considered how little treatment Plaintiff had sought and received in 4 contrast to the severe impairments he alleged. AR 17. Although the medical records indicated 5 that Plaintiff experienced some side effects in the course of his treatment, he testified at the 6 hearing that he was then only experiencing drowsiness.9 AR 17. In addition to the repeated 7 objective reports that Plaintiff’s condition was stable, the ALJ noted that the Plaintiff’s 8 medications and dosages had changed little from 2012 to 2017. AR 17. The ALJ wrote: 9 If his impairments were so severe that he is unable to work as he alleges, I would expect that he would seek additional treatment, 10 However, the record contains scant evidence of any such care. Indeed, as noted above, his medical records show large, unexplained 11 gaps in treatment. These appear to be inconsistent with the allegations of severe, painful, and debilitating conditions. In sum, 12 his treatment history is inconsistent with an alleged inability to perform all work activity. 13 AR 17-18. 14 In assessing a claimant’s credibility, an ALJ may properly rely on “unexplained or 15 inadequately explained failure to seek treatment or follow a prescribed course of treatment.” 16 Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012). A claimant’s failure to assert a good 17 reason for not seeking treatment or for failing to follow a prescribed course of treatment or an 18 ALJ’s finding that the proffered reason is not credible, cast doubt on the sincerity of the 19 claimant’s testimony. Fair, 885 F.2d at 603. “[I]f the frequency or extent of the treatment sought 20 by an individual is not comparable with the degree of the individual’s subjective complaints, or if 21 the individual fails to follow prescribed treatment that may improve symptoms, we may find the 22 alleged intensity and persistence of an individual’s symptoms are inconsistent with the overall 23 evidence of record.” SSR 16-3p at 9. 24 Finally, the ALJ examined evidence documenting Plaintiff’s ability to perform his own 25 personal care, prepare his daily meals, take out the trash, drive locally, handle finances, attend his 26 9 The ALJ did not acknowledge the recommendations of Dr. Tankou and Dr. Wilson that Plaintiff reduce or stop 27 taking pain medications with sedating effect. AR 427, 683. Nor did he consider Dr. Orth’s comment concerning Plaintiff’s opiate dependency or Plaintiff’s disclosure to Dr. Del Rosario that, in addition to his prescription 28 medications, he was consuming four alcoholic drinks daily. AR 57, 534. 1 children’s sporting events, socialize with friends and family, and care for his pets and children 2 with his wife’s help. AR 18. Finding that Plaintiff engaged in reasonably normal activities, the 3 ALJ observed, “While activities of daily living do not prove the claimant’s ability to perform 4 work activity, neither do they support his allegations of disabling pain and depression, and lack of 5 ability to perform work activity.” AR 18 6 Plaintiff’s failure to comply with medical treatment and recommendations, discontinuance 7 of treatment with a neurologist. and evidence of his ability to provide his own personal care and 8 engage in a wide range of activities undermine his allegations of total disability. See S.S.R. 16-3p 9 at 7-9. As is always the case in an appeal of the Commissioner’s denial of disability benefits, 10 Plaintiff would construe the evidence differently than the ALJ. Nonetheless, the hearing decision 11 sets forth sufficient evidence in the record to support the ALJ’s determination that Plaintiff’s 12 representations to the agency were not fully consistent with the medical evidence of record. The 13 Court therefore will not second guess the ALJ’s assessment of Plaintiff’s credibility. 14 VIII. No Further Development of the Record Was Required 15 Based on neurologist Dr. Orth’s testimony that the record was insufficient for him to form 16 a medical opinion of Plaintiff’s residual functional capacity, Plaintiff contends that the ALJ 17 should have further developed the record by securing a consultative examination by a neurologist 18 as Dr. Orth suggested. The Commissioner counters that sufficient evidence was included in the 19 record to determine disability and that evidence was neither ambiguous or unclear. 20 A. Neurological Expert Testimony 21 The Court interprets Dr. Orth’s testimony differently than Plaintiff. In the portion of 22 testimony cited by Plaintiff, Dr. Orth noted Plaintiff’s lack of neurological treatment after his 23 2015 appointment at UCLA and indicated that he could not analyze progression of Plaintiff’s 24 multiple sclerosis without the records of periodic neurological examinations and testing: 25 Q So, doctor, were you able to review up through about 27 F [AR 680-86] in the file? 26 A I was, your honor. 27 Q Okay. And is that sufficient for you to have formed medical 28 opinions within your area of specialty? 1 A Not really, your honor. I mean, I’m missing the – the last records I have from UCLA are back in October of 2015. 2 Q Uh-huh. 3 A I have no – did he have any – in October of 2015 there was a 4 repeat brain and [inaudible] scan which showed no additional findings regarding his MS. So, I have no additional MRI findings in 5 [inaudible] since October of [inaudible] show any progression. And I don’t have the neurologic evaluation by the UCLA staff since 6 October of ‘15 that show progression for his symptoms. In October of ‘15 his neurologic examination was unchanged . . . . . 7 AR 46-47. 8 In addition, at the close of the doctor’s testimony, Plaintiff’s attorney asked Dr. Orth 9 whether he would recommend a “consultative examination” for the claimant and if so, by what 10 specialty. AR 56. Dr. Orth replied, “He should go back to UCLA neurology and let them do a 11 repeat [inaudible] it’s my understanding the last time he was seen by them was 2015.” AR 56. 12 The attorney then repeated Plaintiff’s claim that he lived in a remote area, and again asked Dr. 13 Orth to what type of consultative expert “we” should send Plaintiff. AR 56. Dr Orth replied: 14 A Oh, I recommend a neurology examination because what we 15 are concerned about is MS, okay? He’s not disabled on the basis [inaudible] – 16 Q All right. 17 A --cervical or lumbar spine. So, the only way claimant can 18 obtain disability is based on his MS, and we don’t have that in the exhibits, the last two years. So he needs a neurologist [inaudible]. 19 He also has developed a dependency on opiates in the last four years, so that’s another factor [inaudible]. 20 AR 57. 21 Plaintiff’s attorney continued to press Dr. Orth for an opinion that Plaintiff’s impairments 22 rendered him disabled. Dr. Orth repeated that Plaintiff’s cervical and lumbar spine impairments 23 did not render him unable to perform work, and that further neurological evaluation would be 24 necessary to establish impairment from multiple sclerosis. AR 57-58. 25 B. Plaintiff’s Motion for a Consultative Examination 26 The ALJ also interpreted Dr. Orth’s testimony as indicating the need for regular treatment 27 to observe the progression of Plaintiff’s multiple sclerosis symptoms. At the end of the 28 1 administrative hearing, Plaintiff’s attorney requested a consultative examination arguing that 2 Plaintiff had not seen a neurologist since 2015 because he lived three hours from UCLA and that 3 Dr. Orth was unable to render an opinion on Plaintiff’s residual functional capacity without an 4 updated examination. AR 90. The ALJ denied the motion: 5 I’m not going to order that. There’s a few reasons for it. The remoteness doesn’t fly with me because all the treatment is 50 miles 6 from his home anyway. It is only two hours to metro Los Angeles, less to the San Fernando Valley . . . the remoteness doesn’t work on 7 the lack of medical treatment, particularly where the treating physicians are all 50 miles from the claimant’s house anyway . . . 8 There’s simply a lack of treatment . . . And technically the doctor said there was no treating physician exam. So, at this point, you 9 know, without the treatment it is what it is and I don’t see the reason for it. You know, Mr. McMillen’s going to other types of 10 doctors, so that’s not – and I’ll note for the record that even in the 2015 that you’re citing me to, he didn’t go for a full year. He missed 11 the six month’s follow-up and then there was no change over that time, so I did note that in those UCLA records. So, it’s not even like 12 he was engaging in a lot of neurological treatment anyway, and the conclusion was that the issues were orthopedic, okay? So we’re not 13 going to do a CE . . . at this late date I don’t see the value of a CE given that there’s no – there’s been no subsequent treatment, doesn’t 14 tell us anything without the treatment notes. 15 AR 90-91 (emphasis added). 16 C, Legal Standard 17 A claimant generally bears the burden of proving his or her entitlement to disability 18 benefits. Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001); 20 C.F.R § 404.1512(c). But 19 Social Security hearings are not adversarial proceedings. DeLorme v. Sullivan, 924 F.2d 841, 849 20 (9th Cir. 1991). Whether or not the claimant is represented by counsel, the ALJ “must inform 21 himself about the facts relevant to his decision.” Heckler v. Campbell, 461 U.S. 458, 471 n. 1 22 (1983). “The ALJ has a special duty to fully and fairly develop the record and to assure that the 23 claimant’s interests are considered.” Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983). 24 Accord Tonapetyan, 242 F.3d at 1150; Smolen, 80 F.3d at 1288. However, the ALJ’s obligation 25 to obtain additional evidence is triggered only when the evidence from the treating medical 26 source is ambiguous or inadequate to evaluate the evidence of the claimant's disability. Thomas 27 v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002); Tonapetyan, 242 F.3d at 1150. 28 /// 1 In this case, the evidence is inadequate only because Plaintiff completely stopped seeing a 2 neurologist after the October 2015 appointment at UCLA. As discussed in the factual statement 3 above, Plaintiff experienced substantial pain relief following successful orthopedic surgery to 4 fuse his cervical spine. Dr. Orth opined that following surgery Plaintiff no longer experienced the 5 pain and disfunction of his upper extremities that had led to the discovery of Dawson’s fingers 6 and apparent demyelination diagnosed as multiple sclerosis. In fact, Plaintiff discontinued 7 treatment claiming that UCLA was too far to travel but did not explain why he did not return to 8 Dr. Shanmugam, the neurologist who had referred him to UCLA for resolution of incongruities 9 between Plaintiff’s physical symptoms and the typical symptoms of multiple sclerosis. In the 10 absence of continued treatment, there was no evidence of any functional impairment attributable 11 to multiple sclerosis nor any documented basis by which Dr. Orth could confirm the multiple 12 sclerosis diagnosis and evaluate the progression of the disease. 13 “The claimant bears the burden of proving steps one through four, consistent with the 14 general rule that ‘[a]t all times, the burden is on the claimant to establish his entitlement to 15 disability insurance benefits.’” Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007) (quoting 16 Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1998)). To determine whether a claimant has carried 17 his burden of proof, the ALJ must evaluate the evidence “with due consideration for credibility, 18 motivation, and medical evidence of impairment.” Gray v. Matthews, 421 F.Supp. 364, 367 19 (N.D.Cal. 1976) (quoting Dibble v. Finch, 316 F.Supp 1304, 1309 (W.D. Pa 1970)). When an 20 ALJ has “acted in accordance with his responsibility to determine the credibility of medical 21 evidence” and given specific and legitimate reasons for his determination, he did not err in failing 22 to secure additional medical evidence. Thomas, 278 F.3d at 958. When the ALJ finds support in 23 the record adequate to determine the claimant’s disability, she is not required to secure an 24 additional or consultative opinion. Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). 25 IX. Sufficient Evidence Supported the ALJ’s Determination 26 Plaintiff contends that the determination of Plaintiff’s residual functional capacity was not 27 supported by sufficient evidence. The Commissioner disagrees. After carefully reviewing the 28 /// 1 administrative record and the ALJ’s analysis, the Court concludes that substantial evidence 2 supported the ALJ’s determination of Plaintiff’s residual functional capacity. 3 A. Medical Opinions 4 1. Agency Physicians 5 On initial review, Robert Hughes, M.D., opined that Plaintiff could occasionally lift 6 twenty pounds and frequently lift ten pounds; stand or walk about six hours in an eight-hour work 7 day; and, sit about six hours in an eight-hour work day. AR 99. Plaintiff could frequently climb 8 ramps and stairs, balance, stoop, kneel, crouch and crawl, but never climb ropes, ladders or 9 scaffolds. AR 99. He had no manipulative, visual or communicative limitations. AR 99-100. 10 Plaintiff had no environmental limitations except to avoid concentrated exposure to heat and cold 11 and avoid all exposure to hazards. AR 100. On reconsideration, E. Christian, M.D., agreed. AR 12 111-12. 13 2. Medical Source Statement: Primary Care 14 a. Disability Impairment Questionnaire 15 In a disability impairment questionnaire dated August 12, 2015, Dr. Kumar indicated that 16 Plaintiff’s diagnoses included multiple sclerosis, lower back pain, cervical spine pain and left leg 17 osteo arthritis. AR 509. Multiple sclerosis caused numbness, weakness and constant pain in the 18 arms, hands, legs, feet, back and neck, which were not controlled by medication. AR 510. 19 Plaintiff’s medications included Nucynta,10 Norco,11 Oxycontin,12 Ativan13 and Zanaflex.14 AR 20 510. 21 /// 22 23 10 Nucynta (Tapentadol) is an opiate drug used to treat moderate to severe acute pain. www.medlineplus.gov/druginfo/meds/a610006.html (accessed December 4, 2019). 11 Norco (Acetaminophen and Hydrocodone) is a combination drug prescribed to relieve moderate to severe pain. 24 www.medlineplus.gov/druginfo/meds/a601006.html (accessed December 4, 2019). 12 Oxycontin (Oxycodone) is an opiate drug prescribed to treat moderate to severe pain. 25 www.medlineplus.gov/druginfo/meds/a682132.html (accessed December 4, 2019). 13 Ativan (Lorazepam) is a benzodiazepine prescribed to relieve anxiety. 26 www.medlineplus.gov/druginfo/meds/a682053.html (accessed December 4, 2019). 14 Zanaflex (Tizanidine) is a skeletal muscle relaxant prescribed to relieve the spasms and increased muscle tone 27 cause by multiple sclerosis. www.medlineplus.gov/druginfo/meds/a601121.html (accessed December 4, 2019). 28 1 Dr. Kumar opined that Plaintiff could sit about two hours and stand or walk about one 2 hour in an eight-hour workday. AR 511. When sitting, Plaintiff needed to get up for thirty 3 minutes every thirty minutes. AR 511. Plaintiff did not need to elevate his legs. AR 511. 4 Plaintiff could occasionally lift from zero to twenty pounds. AR 511. Plaintiff should never or 5 rarely perform reaching, handling or fingering. AR 512. He should not participate in a 6 competitive work environment because he “can strain himself with any wrong movement.” AR 7 512. Plaintiff would frequently experience pain in the course of a normal work day and would 8 likely need to rest for 30 to 60 minutes every 30 to 50 minutes. AR 512. His symptoms would be 9 intensified by his anxiety. AR 513. Plaintiff would likely miss more than three days of work 10 monthly. AR 513. 11 b. Prescription Blank Statement 12 On July 17, 2015, Dr. Kumar wrote on a prescription blank bearing Plaintiff’s name: 13 “This patient is currently diagnosed with MS, Anxiety, Depression and is Completely Disabled.” 14 AR 668. 15 c. “To Whom It May Concern” 16 On March 3, 2017, Dr. Kumar issued a letter addressed “To Whom It May Concern,” 17 which read: 18 My patient has a diagnosis of MS and relevant conditions that are severe, Osteoarthritis, Lumbar and Cervical pain. He underwent 19 surgery on December 15, 2016 of his Cervical Spine. He is permanently and totally disabled. 20 Due to his current medical conditions/disabilities he is to avoid 21 continuous sitting, standing or walking as it may increase his symptoms and worsen his condition. 22 It is also medically necessary for him to avoid stressful situations as 23 it may cause a relapse or worsening of his MS conditions. Emotional factors such as anxiety can contribute to the severity of his symptoms 24 and functional limitations. 25 In my opinion Mr. McMillen is totally and permanently disabled due to physical impairment. MS is a progressive neurological disorder. 26 My expectation is that he will continue to decline in function over time. 27 AR 677. 28 1 d. Summary Impairment Questionnaire15 2 The record includes a summary impairment questionnaire prepared by Plaintiff’s counsel 3 and completed by Dr. Kumar on August 4, 2017. AR 39-40. Dr Kumar began treating Plaintiff 4 in November 2012 and saw Plaintiff monthly. AR 39. Plaintiff’s diagnoses included multiple 5 sclerosis, lower back fusion, low back pain and cervical fusion. AR 39. In an eight-hour work 6 day, Plaintiff could sit, stand or walk less than one hour. AR 40. While sitting, Plaintiff should 7 elevate his legs to waist level two to three times daily. AR 40. He could never or rarely reach, 8 handle, finger or lift any weight. AR 40. As a result of his impairments, Plaintiff was likely to 9 miss work more than three times per month. AR 40. 10 3. Medical Source Statement: Psychology 11 On October 27, 2017, while Plaintiff’s appeal was pending before the Appeals Council, 12 Plaintiff’s treating psychologist LaRae C. Neal, Ph.D., completed a mental impairment 13 questionnaire. AR 28-32. Dr. Neal had been treating Plaintiff since August 11, 2017.16 AR 32. 14 Plaintiff’s symptoms included depressed mood, hostility or irritability, anxiety due to 15 condition, intrusive recollections of a traumatic experience, anhedonia/pervasive loss of interest, 16 decreased energy, motor tension, social withdrawal or isolation and sleep disturbance due to 17 constant pain. AR 29. Dr. Neal diagnosed multiple sclerosis, anxiety due to multiple sclerosis 18 and major depression-severe. AR 28. She wrote: 19 Client[‘]s symptoms are severe and unmanageable, and interfere with [client’s] social, occupational and physical functioning[.] Based on 20 psychological testing, client’s scores were in the severe category[.] Reports constant pain which increases his negative mental status. 21 H[e]ightened levels of anxiety & severe depression. 22 AR 28. 23 In Dr. Neal’s opinion, Plaintiff had no or mild limitations in getting along with co-workers 24 or peers without distracting them and adhering to basic standards of neatness. AR 31. Plaintiff 25 had moderate impairments in carrying out simple one-to-two step instructions; sustaining 26 ordinary routine without supervision; working in coordination with or near others without being 27 15 The ALJ ruled that this opinion was inadmissible since it was not proffered until the hearing. AR 45. 28 16 No treatment notes from Dr. Neal appear in the administrative record. 1 distracted; interacting appropriately with the public; and, maintaining socially appropriate 2 behavior. AR 31. He had moderate-to-marked impairment in remembering locations and work- 3 like procedures; understanding and remembering one-to-two step instructions; making simple 4 work-related decisions; accepting instructions and responding appropriately to criticism from 5 supervisors; being aware of hazards and taking appropriate precautions; and, making plans 6 independently. AR 31. Plaintiff had marked impairment in understanding and remembering 7 detailed instructions; carrying out detailed instructions; performing activities within a schedule 8 and being consistently punctual; completing a work day without interruption from psychological 9 symptoms; performing at consistent pace without rest periods of unreasonable length or 10 frequency; asking simple questions or requesting assistance; responding appropriately to 11 workplace changes; traveling to unfamiliar places or using public transportation; and, setting 12 realistic goals. AR 31. On some days, Plaintiff experienced extreme anxiety and irritability due 13 to physical impairments such as getting out of bed, standing or sitting. AR 32. Due to his 14 impairments and treatment, Plaintiff was likely to be absent from work more than three times per 15 month. AR 32. 16 4. Medical Source Statement: Psychiatry 17 Dr. Del Rosario diagnosed Plaintiff with major depression. AR 521. Symptoms included 18 depressed mood, persistent or generalized anxiety, feelings of guilt or worthlessness, hostility or 19 irritability, obsessions, difficulty thinking or concentrating, easy distractibility, poor immediate 20 memory, recurrent panic attacks, anhedonia/pervasive loss of interest, motor tension, appetite 21 disturbances/weight change, decreased energy, psychomotor retardation, social withdrawal or 22 isolation, and sleep disturbances. AR 522. Plaintiff’s psychiatric conditions exacerbated his neck 23 and back pain. AR 523. Episodes of decompensation or deterioration in a work setting would 24 result in serious mood instability. AR 523. Plaintiff was likely to miss work more than three 25 times monthly. AR 525. 26 In Dr. Del Rosario’s opinion, Plaintiff had moderate-to-marked limitations in carrying out 27 simple one or two step instructions; interacting appropriately with the public; maintaining socially 28 appropriate behavior; adhering to basic standards of neatness, travel to unfamiliar locations or 1 using public transportation; and, making plans independently. AR 524. Plaintiff had marked 2 limitation in remembering locations and work-like procedures; understanding and remembering 3 one or two step or detailed instructions; carrying out detailed instructions; maintaining attention 4 and concentration for prolonged periods; performing activities within a schedule and being 5 punctual; sustaining ordinary routine without supervision; working in coordination with or near 6 others without being distracted by them; making simple work-related decisions; completing a 7 work day without interruptions from psychological symptoms; performing at a consistent pace 8 without rest periods of unreasonable length or frequency; asking simple questions or requesting 9 assistance; accepting instructions and responding appropriately to criticism from supervisors; 10 getting along with co-workers or peers without distracting them; responding appropriately to 11 workplace changes; being aware of hazards and taking appropriate precautions; and, setting 12 realistic goals. AR 524. 13 5. Medical Source Statement: Ophthalmology 14 Dr. Sampson reported that Plaintiff had uncorrected distance vision of 20/25 bilaterally 15 and required annual monitoring. AR 502-03. 16 6. Expert Testimony: Neurology 17 Neurologist O. Gerald Orth testified at the hearing as a medical expert. AR 45-58. He 18 had reviewed Plaintiff’s medical records through October 2015. AR 46. Although significant 19 portions of his testimony were inaudible, the ALJ summarized the doctor’s initial testimony as 20 indicating that no change in Plaintiff’s neurologic exams or symptoms occurred after October 21 2015. AR 48. The resolution of Plaintiff’s symptoms following cervical spine fusion indicated 22 that orthopedic impairments, not multiple sclerosis, caused Plaintiff’s symptoms. AR 48-49. Dr. 23 Orth opined that Plaintiff was not disabled (1) based on the orthopedic problems in his cervical 24 and lumbar spine and, (2) in the absence of neurological testing to confirm his multiple sclerosis 25 diagnosis. AR 57. 26 Dr. Orth declined to opine further on Plaintiff’s functional limitations since Plaintiff’s 27 medical records did not clearly articulate the findings of a physical examination or establish a 28 need for the cervical fusion. AR 55. In addition, Plaintiff had not sought further neurologic 1 treatment following his November 2015 appointment at UCLA, preventing Dr. Orth from 2 confirming the diagnosis and evaluating the progression of the disease. AR 46-47. 3 B. Determining Residual Functional Capacity 4 “Residual functional capacity is an assessment of an individual’s ability to do sustained 5 work-related physical and mental activities in a work setting on a regular and continuing basis.” 6 SSR 96-8p. The residual functional capacity assessment considers only functional limitations and 7 restrictions which result from an individual’s medically determinable impairment or combination 8 of impairments. SSR 96-8p. 9 A determination of residual functional capacity is not a medical opinion, but a legal 10 decision that is expressly reserved for the Commissioner. See 20 C.F.R. §§ 404.1527(d)(2) (RFC 11 is not a medical opinion), 404.1546(c) (identifying the ALJ as responsible for determining RFC). 12 “[I]t is the responsibility of the ALJ, not the claimant’s physician, to determine residual 13 functional capacity.” Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001). In doing so the 14 ALJ must determine credibility, resolve conflicts in medical testimony and resolve evidentiary 15 ambiguities. Andrews, 53 F.3d at 1039-40. 16 “In determining a claimant's RFC, an ALJ must consider all relevant evidence in the 17 record such as medical records, lay evidence and the effects of symptoms, including pain, that are 18 reasonably attributed to a medically determinable impairment.” Robbins, 466 F.3d at 883. See 19 also 20 C.F.R. § 404.1545(a)(3) (residual functional capacity determined based on all relevant 20 medical and other evidence). “The ALJ can meet this burden by setting out a detailed and 21 thorough summary of the facts and conflicting evidence, stating his interpretation thereof, and 22 making findings.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (quoting Cotton v. 23 Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986)). 24 The opinions of treating physicians, examining physicians, and non-examining physicians 25 are entitled to varying weight in residual functional capacity determinations. Lester v. Chater, 81 26 F.3d 821, 830 (9th Cir. 1995). Ordinarily, more weight is given to the opinion of a treating 27 professional, who has a greater opportunity to know and observe the patient as an individual. Id.; 28 Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). The opinion of an examining physician is, 1 in turn, entitled to greater weight than the opinion of a non-examining physician. Pitzer v. 2 Sullivan, 908 F.2d 502, 506 (9th Cir. 1990). An ALJ may reject an uncontradicted opinion of a 3 treating or examining medical professional only for “clear and convincing” reasons. Lester, 81 4 F.3d at 831. In contrast, a contradicted opinion of a treating professional may be rejected for 5 “specific and legitimate” reasons. Id. at 830. However, the opinions of a treating or examining 6 physician are “not necessarily conclusive as to either the physical condition or the ultimate issue 7 of disability.” Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999). 8 C. The ALJ Properly Analyzed Evidence in the Record as a Whole 9 “[A]n ALJ is responsible for determining credibility and resolving conflicts in medical 10 testimony.” Magallanes, 881 F.2d at 750. An ALJ may choose to give more weight to opinions 11 that are more consistent with the evidence in the record. 20 C.F.R. §§ 404.1527(c)(4) (“the more 12 consistent an opinion is with the record as a whole, the more weight we will give to that 13 opinion”). 14 The ALJ’s analysis began at step three when the ALJ considered whether Plaintiff’s 15 alleged physical impairments met or equaled a listed impairment (see 20 C.F.R. Part 404, Subpart 16 P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526)). AR 13. The ALJ briefly 17 indicated that objective medical evidence did not establish that any alleged physical impairment 18 met any condition listed in Appendix 1. AR 13-14. 19 The ALJ’s discussion of Plaintiff’s mental impairments was longer since the ALJ 20 carefully considered each component of Listing 12.04, which addresses depressive, bipolar and 21 related disorders. AR 14. The ALJ gave little weight to Dr. Del Rosario’s opinion that Plaintiff 22 “had marked limitations in his ability to perform virtually all mental activities.” AR 14. He 23 found the opinion brief and conclusory with few clinical findings to support it. AR 14. In fact, 24 records of Dr. Del Rosario’s treatment of Plaintiff largely showed normal mental status reports. 25 AR 24. In contrast, the ALJ discussed in detail Plaintiff’s own representation of his abilities and 26 limitations and concluded that Plaintiff had moderate limitations in understanding, remembering 27 or applying information; mild limitations in interacting with others; moderate limitations of 28 /// 1 concentration, persistence and pace; and, mild limitations in adapting and managing himself. AR 2 14-15. 3 Moving on to analyze evidence of Plaintiff’s residual functional capacity at step four, the 4 ALJ found that Plaintiff’s testimony regarding his symptoms was not fully consistent with the 5 objective medical records. AR 15-18. See full discussion in Issue VII above. 6 The ALJ gave great weight to the opinions of the state agency physicians that Plaintiff 7 was able to perform a full range of light work with postural and environmental limitations. AR 8 18. “However, based on evidence received at the hearing level, which the consultants did not 9 have the opportunity to review,” the ALJ found Plaintiff to have greater limitation in some 10 postural and manipulative activities than would have been apparent to the agency physicians. AR 11 18. 12 The ALJ gave some weight to Dr. Kumar’s opinion that Plaintiff could lift and carry up to 13 twenty pounds, but little weight to the opinion that Plaintiff could only stand or walk one hour 14 and sit two hours in an eight-hour work day, and was unable to use his hands and arms. AR 18. 15 “The extreme limitations [we]re not supported by the doctor’s treatment records, which do not 16 document significant clinical abnormalities and show that [Dr. Kumar] only instructed [Plaintiff] 17 to take medications for back pain.” AR 18. Further, the ALJ rejected Dr. Kumar’s March and 18 July 2015 opinions to the extent that each concluded that Plaintiff was completely disabled, a 19 determination reserved to the Commissioner (20 C.F.R. § 404.1527(e)). AR 18. 20 Returning to his step-two analysis of Dr. Del Rosario’s psychiatric opinion, the ALJ 21 repeated his determination to give little weight to the psychiatrist’s opinion that Plaintiff had 22 marked limitation in his ability to perform nearly all mental activities. AR 19. Nonetheless, in 23 light of Plaintiff’s subjective complaints, his having pursued psychiatric help and his use of 24 psychotropic medications, the ALJ concluded that Plaintiff was limited to performing simple 25 work. AR 19. 26 “[A]n ALJ is responsible for determining credibility and resolving conflicts in medical 27 testimony.” Magallanes, 881 F.2d at 750. He properly determines the weight to be given each 28 medical opinion by considering the evidence in the record as the ALJ did here. 20 C.F.R. § 1 404.1527(c)(4) (“the more consistent an opinion is with the record as a whole, the more weight 2 we will give to that opinion”). The record must include objective evidence to support the medical 3 opinion of the claimant’s residual functional capacity. Meanel v. Apfel, 172 F.3d 1111, 1113-14 4 (9th Cir. 1999). Inconsistencies with the overall record or with a physician’s own notes are a valid 5 basis to reject a medical opinion. Molina v. Astrue, 674 F.3d 1104, 1111-1112 (9th Cir. 2012) 6 (recognizing that a conflict with treatment notes is a germane reason to reject a treating 7 physician's assistant's opinion); Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 2003) (rejecting 8 physician’s opinion when treatment notes provide no basis for the opined functional restrictions); 9 Tommasetti, 533 F.3d at 1041 (incongruity between questionnaire responses and the Plaintiff’s 10 medical records is a specific and legitimate reason for rejecting an opinion); Valentine v. Comm'r 11 of Soc. Sec. Admin., 574 F.3d 685, 692-693 (9th Cir. 2009) (holding that a conflict with treatment 12 notes is a specific and legitimate reason to reject a treating physician's opinion). 13 The Court is not required to accept Plaintiff’s characterization of his treatment records. 14 The ALJ fully supported his determination based on multiple medical and psychological opinions and the evidence of record. 15 Even if this Court were to accept that the record could support Plaintiff’s opinion, the 16 record amply supports the ALJ’s interpretation as well. When the evidence could arguably 17 support two interpretations, the Court may not substitute its judgment for that of the 18 Commissioner. Jamerson, 112 F.3d at 1066. 19 X. Conclusion and Order 20 Based on the foregoing, the Court finds that the ALJ’s decision that Plaintiff is not 21 disabled is supported by substantial evidence in the record as a whole and is based on proper legal 22 standards. Accordingly, this Court DENIES Plaintiff’s appeal from the administrative decision 23 /// 24 /// 25 26 27 28 1 of the Commissioner of Social Security. The Clerk of Court is directed to enter judgment in favor 2 of Defendant Andrew Saul, Commissioner of Social Security, and against Plaintiff William John 3 McMillen IV. 4 IT IS SO ORDERED. 5 6 Dated: December 16, 2019 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28