MEMORANDUM DECISION AND ORDER
SUZANNE H. SEGAL, Magistrate Judge.
Luis Salazar ("Plaintiff") brings this action seeking to overturn the decision of the Commissioner of the Social Security Administration (the "Commissioner" or "Agency") denying his application for Supplemental Security Income ("SSI") benefits. The parties consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the undersigned United States Magistrate Judge. (Dkt. Nos. 11, 12). For the reasons stated below, the Court AFFIRMS the Commissioner's decision.
Plaintiff filed an application for SSI on May 16, 2013. (AR 134-39). Plaintiff alleged a disability onset date of November 19, 2005. (AR 118). The Agency denied Plaintiff's application on October 3, 2013. (AR 59-67). On October 10, 2013, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (AR 71). On December 29, 2014, ALJ David G. Marcus conducted a hearing to review Plaintiff's claim. (AR 39-58). On January 29, 2015, the ALJ found that Plaintiff was not disabled under the Social Security Act. (AR 28-35). Plaintiff sought review of the ALJ's decision before the Appeals Council on March 16, 2015. (AR 22). On June 29, 2016, the Appeals Council denied review. (AR 8-10). The ALJ's decision then became the final decision of the Commissioner. (AR 8). Plaintiff commenced the instant action on September 7, 2016. (Dkt. No. 1).
Plaintiff was born on March 9, 1965. (AR 134). He was 40 years old as of the alleged disability onset date of November 19, 2005, and 49 years old when he testified before the ALJ. (AR 39, 134). Plaintiff previously worked as a security guard and mover/driver. (AR 46, 34). Plaintiff alleges disability due to lower back injury/screws in back, low blood count, stomach surgery for holes in esophagus, and depression. (AR 59, 161).
Plaintiff's Testimony And Statements
Plaintiff testified that he worked as a mover and driver for approximately five years beginning in 2001. (AR 46, 161-62). In 1999 and 2000, Plaintiff worked as a security guard at a homeless shelter. (AR 46-47, 162). Plaintiff has not worked since he filed his application for SSI benefits in May 2013. (AR 48).
Plaintiff had prior back surgeries in February 2009 and February 2010. (AR 164). Plaintiff testified that there is a "ball" in the lumbar area of his back at the location of his past surgeries that "hurts" and does "not feel right." (AR 51-52). This pain prevents him from laying on his bed and leaning over. (AR 52). Plaintiff testified that he "can't do anything." (
Plaintiff reports that his condition has worsened since his initial application for SSI benefits. (AR 170). Plaintiff testified that, due to his back pain and other limitations, he can lift only ten to fifteen pounds, stand for three to four hours out of an eight-hour work day, and walk for about eight hours out of an eight-hour work day. (AR 53-55).
Plaintiff testified that the only medical care he is receiving is for treatment of his back. (AR 50). The last time Plaintiff saw a doctor for his back symptoms was in March 2013.
1. Worker's Compensation Physician Simon Lavi, D.O.
Simon Lavi, D.O., was Plaintiff's original worker's compensation physician. (AR 31). Dr. Lavi treated Plaintiff for ongoing symptoms associated with retained symptomatic lumbar spine hardware and status post L4 to S1 bilateral transforaminal lumbar interbody fusion. (AR 258;
2. Consultative Examining Physician Conception A. Enriquez, M.D.
On September 11, 2013, Plaintiff was examined by Conception A. Enriquez, M.D., a consultative examining internist. (AR 244-47). Dr. Enriquez noted that Plaintiff presented for treatment for a history of peptic ulcer disease and back pain. (AR 244). Dr. Enriquez reported that Plaintiff drove himself to his appointment. (AR 245).
Dr. Enriquez's physical examination of Plaintiff's spine revealed that his cervical spine range of motion was within normal limits with no tenderness or muscle spasm. (AR 246). While there was tenderness in Plaintiff's lumbosacral spine with decreased range of motion at 70/90 degrees on trunk flexion, there was no tenderness to palpation or muscle spasm in that area. (
Dr. Enriquez reported that Plaintiff's gait and balance are within normal limits and Plaintiff does not require an assistive device for ambulation. (AR 247). Using the Jamar dynamometer, Dr. Enriquez noted that Plaintiff is able to generate 80 pounds of force using his right hand and 90 pounds of force using his left hand. (AR 245). The remaining portions of Dr. Enriquez's examination of Plaintiff were unremarkable. (AR 244-47).
Dr. Enriquez's medical impressions were that Plaintiff's back revealed tenderness and decreased range of motion in the lumbosacral spine area with signs of radiculopathy. (AR 247). As a functional assessment, the doctor opined that Plaintiff can occasionally lift or carry twenty pounds and frequently lift and/or carry ten pounds, stand and/or work with normal breaks for six hours in an eight-hour work day, sit with normal breaks for six hours in an eight-hour work day, and occasionally bend, stoop, and twist. (
3. Consultative Examining Physician Richard Pollis, M.D.
On August 7, 2014, Plaintiff underwent a consultative orthopedic examination by Richard Pollis, M.D. (AR 666-71). Dr. Pollis reported that Plaintiff's gait was "normal without signs of limp or antalgia." (AR 668). Dr. Pollis further noted that Plaintiff is able to stand on his heels and toes without difficulty and no evidence of weakness in the ankle flexors and extensors. (
Dr. Pollis's examination of Plaintiff's spine revealed paravertebral muscle tenderness and spasm, forward flexion to 70 degrees, extension to zero degrees, right and left lateral flexion to fifteen degrees, and straight leg raise test to 80 degrees bilaterally with hamstring spasm. (
Dr. Pollis diagnosed Plaintiff with "[l]ower back pain, status post lumbar laminectomy and fusion." (AR 670). In his medical source statement, Dr. Pollis opined that Plaintiff is capable of lifting and carrying twenty pounds occasionally and ten pounds frequently, standing and walking six hours out of an eight-hour work day with appropriate breaks, and sitting six hours out of an eight-hour work day with appropriate breaks. (
4. State Agency Reviewing Physician L. Limos, M.D.
On October 2, 2013, L. Limos, M.D., concluded that Plaintiff has a severe back condition that does not medically meet or equal a listed impairment. (AR 59-67;
5. Worker's Compensation Examiner Jeffrey A. Berman, M.D.
The Agreed Medical Examiner in Plaintiff's Worker's Compensation case Jeffrey A. Berman, M.D., examined Plaintiff on October 15, 2009. (AR 424). Dr. Berman's physical examination of Plaintiff's lumbar spine revealed tenderness around and to the sides of Plaintiff's scar and a "needle" sensation reported by Plaintiff upon palpation. (AR 427). Further, Plaintiff reported pain in the lower back with lumbar mobility, mainly with flexion and extension. (
Dr. Berman reported that Plaintiff's x-rays of his lumbar spine show evidence of a decompression as well as screw fixations and fusions. (AR 429). Dr. Berman's remaining findings were unremarkable. (AR 424-36).
Dr. Berman concluded that, as of October 2009, Plaintiff was "permanent and stationary, having reached maximum medical improvement." (AR 431). Due to Plaintiff's limited mobility and resulting pain, as well as the "hint" of left side radiculopathy in response to straight leg raising and left calf atrophy consistent with chronic radicular involvement, Plaintiff is "precluded from
Based upon these findings, Dr. Berman initially assessed Plaintiff with a 28 percent "whole person impairment." (
THE FIVE STEP SEQUENTIAL EVALUATION PROCESS
To qualify for disability benefits, a claimant must demonstrate a medically determinable physical or mental impairment that prevents the claimant from engaging in substantial gainful activity and that is expected to result in death or to last for a continuous period of at least twelve months.
To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920. The steps are as follows:
The claimant has the burden of proof at steps one through four and the Commissioner has the burden of proof at step five.
THE ALJ'S DECISION
The ALJ employed the five-step sequential evaluation process and concluded that Plaintiff was not disabled within the meaning of the Social Security Act. (AR 35). At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since May 16, 2013, which is the date Plaintiff filed his application for SSI benefits. (AR 30). At step two, the ALJ found that Plaintiff had the severe medically determinable impairments of status posterior fusion with pedicle screw fixation (L4-5 and L5-S1) and interbody fusions and obesity. (
At step four, the ALJ found that Plaintiff had the RFC to perform light work as defined in 20 C.F.R. § 416.967(b) except that Plaintiff can lift or carry twenty pounds occasionally and ten pounds frequently, stand and walk six hours in an eight-hour work day, sit six hours in an eight-hour work day, and occasionally bend, climb, stoop, kneel, and crouch. (AR 32). The ALJ found that Plaintiff was capable of performing his past relevant work as a security guard. (AR 34). The ALJ determined that this past work did not require the performance of work-related activities precluded by Plaintiff's RFC. (
STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. "[The] court may set aside the Commissioner's denial of benefits when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole."
"Substantial evidence is more than a scintilla, but less than a preponderance."
The ALJ's Reasons For Rejecting Plaintiff's Credibility Were Clear And Convincing
Plaintiff alleges that the ALJ improperly assessed Plaintiff's credibility. (Pl's Mem. in Support of Complaint at 3). The Court disagrees. The ALJ's reasons for rejecting Plaintiff's credibility were supported by substantial evidence in the record and were clear and convincing. Accordingly, for the reasons discussed below, the ALJ's decision is AFFIRMED.
When assessing a claimant's credibility regarding subjective pain or intensity of symptoms, the ALJ must engage in a two-step analysis.
An AlJ also may rely upon inconsistencies between a claimant's testimony and conduct, or internal contradictions in the claimant's testimony.
Regardless of the reason, the ALJ's credibility determination must be supported with findings that are "sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit [the claimant's] testimony."
Here, Plaintiff testified to suffering from "unbearable," stabbing pain in his lower back that limits his ability to stand and requires him to lay down for much of the day. (AR 51-52;
The ALJ relied on the following reasons to reject Plaintiff's testimony: (1) conservative treatment; (2) lack of objective medical evidence; (3) inconsistencies between Plaintiff's testimony and conduct; (4) Drs. Enriquez's and Pollis's observations that Plaintiff's gait is unimpaired; and (5) consultative examining and state agency reviewing physicians' opinions that Plaintiff can do light work. As discussed below, the ALJ's reasons for discrediting Plaintiff's statements were based upon substantial evidence in the record and were clear and convincing.
First, the ALJ properly rejected Plaintiff's credibility because Plaintiff's treatment has been conservative. Evidence of conservative treatment is sufficient to discredit a claimant's testimony regarding the severity of an impairment.
The ALJ found that Plaintiff is not a surgical candidate and received no medical treatment in 2014, despite filing his application in May 2013 and claiming that his condition worsened after filing. (AR 32-33, 170). While Plaintiff explained that he failed to seek treatment in 2014 because his worker's compensation coverage was terminated (AR 51), the ALJ noted that Plaintiff's medical "records show that his condition is responsive to treatment." (AR 33). In addition, the ALJ reasoned that Dr. Lavi's records show only conservative management after his second surgery in 2010, including trigger point injections with symptom relief. (AR 34). The ALJ also took note that Plaintiff admitted to taking no prescribed medications for pain and using only over-the counter Tylenol. (AR 33).
Substantial evidence in the record supports the ALJ's conclusion that Plaintiff received conservative, effective treatment. From this evidence, the ALJ properly could infer that Plaintiff's pain was exaggerated and not completely disabling.
Second, while a lack of objective medical evidence may not serve as the sole reason for an adverse credibility determination, the ALJ properly relied on a lack of medical evidence as one of many reasons to discount Plaintiff's credibility.
This evidence was substantial and reasonably supported the ALJ's conclusion that Plaintiff's symptoms were not consistent with the objective medical evidence. Accordingly, the ALJ properly relied on a lack of objective medical evidence as one of several reasons to discount Plaintiff's credibility.
Third, the ALJ properly relied on Plaintiff's own conduct to impeach the credibility of his statements. The ALJ noted that Plaintiff "is able to drive a car, which reasonably supports a retained ability to bend, twist, use the upper and lower extremities in a coordinated fashion and an ability to turn his neck." (AR 33). The ALJ further determined that Plaintiff's "testimony regarding the ability to lift or carry is undermined by his ability to exert a grip force up to 80 pounds with the bilateral extremities." (
Substantial evidence supported the ALJ's conclusion. Dr. Enriquez observed that Plaintiff drove himself to his appointment. (AR 245). He also reported that Plaintiff is able to generate 80 pounds of force using the right hand and 90 pounds of force using the left hand. (
Fourth, the ALJ properly relied on the observations of Plaintiff's examining physicians to discount Plaintiff's credibility. The ALJ found that Plaintiff "walks effectively as noted by the consultative examining physicians." (AR 34). Further, the ALJ noted that Drs. Enriquez and Pollis failed to observe any gait disturbances or upper or lower extremity weakness or loss of function. (AR 34).
Substantial evidence supported the ALJ's finding. Dr. Enriquez's notes indicate that Plaintiff's "[g]ait and balance are within normal limits" and Plaintiff does not require an assistive device for ambulation. (AR 247). Dr. Pollis similarly reported that Plaintiff's "gait is normal without signs of limp or antalgia." (AR 668). In addition, Dr. Pollis observed that Plaintiff is able to stand on his heels and toes without difficulty and there is no evidence of weakness in the angle flexors and extensors. (
Moreover, while Dr. Berman assessed a nine percent loss of function due to Plaintiff's weight-bearing limitation, he nonetheless noted that Plaintiff falls within a category of persons who can rise to a standing position and walk, but has difficulty with elevations, grade, stairs, deep chairs, and long distances. (AR 433). The ALJ reasonably interpreted this assessment of Plaintiff's weight-bearing capacity as consistent with the opinions of Drs. Pollis, Enriquez, and Limos. (AR 34). It is not the Court's task to second-guess the reasonable interpretation of an ALJ when, as here, it is supported by substantial evidence.
Fifth, the ALJ properly discounted Plaintiff's credibility because consultative examiners Drs. Pollis and Enriquez and state agency reviewer Dr. Limos opined that Plaintiff was capable of performing a level of work consistent with Plaintiff's RFC. (AR 33). The ALJ also interpreted Dr. Berman's opinion as consistent with the other medical opinion evidence and Plaintiff's RFC. (AR 33-34).
The opinions of these physicians constituted substantial evidence upon which the ALJ was entitled to rely to discount Plaintiff's credibility.
Dr. Pollis similarly opined that Plaintiff is capable of lifting and carrying twenty pounds occasionally and ten pounds frequently, standing and walking six hours out of an eight-hour work day with appropriate breaks, and sitting six hours out of an eight-hour work day with appropriate breaks. (AR 670). Dr. Pollis noted the limitation of occasional bending, climbing, stooping, kneeling, and crouching. (AR 670-71). Dr. Limos's functional assessment was fully consistent with the assessments of Drs. Enriquez and Pollis. (AR 64).
Further, although Dr. Berman assessed Plaintiff with a 28 percent "whole person impairment" and an additional nine percent impairment due to Plaintiff's weight-bearing limitation, the ALJ reasonably determined that Dr. Berman's opinion nonetheless was consistent with the other medical opinions. The ALJ reasoned that, "given the claimant's pervious very heavy work activity," he would not be precluded from performing activities consistent with the assessed RFC even with the percentage impairment assessed by Dr. Berman. (AR 34). The Court does not second-guess this reasonable interpretation where it is supported by substantial evidence in the record.
In sum, the ALJ offered clear and convincing reasons, supported by substantial evidence in the record, for his adverse credibility finding. Accordingly, no remand is required.
Consistent with the foregoing, IT IS ORDERED that Judgment be entered AFFIRMING the decision of the Commissioner. The Clerk of the Court shall serve copies of this Order and the Judgment on counsel for both parties.