United States District Court, D. Arizona
K. Duncan United States Magistrate Judge.
his application for benefits was denied, Robert Gordon Lummus
appealed to this Court and his claim was remanded for further
proceedings in case 2:12-cv-2377. On remand, the record was
opened to include updated medical records and a hearing was
conducted where Lummus and a vocational expert testified.
(Tr. 666-89) Subsequently, the ALJ issued an opinion that, in
compliance with the remand order, reexamined the treating
physician opinion and reevaluated Lummus' credibility.
(Tr. 624, 707-708) The ALJ concluded that Lummus was not
disabled because his severe impairments permitted sedentary
work subject to additional exertional limitations and so he
could perform jobs that exist in significant numbers in the
national economy. (Tr. 624-39) Because the Court concludes
that the ALJ did not err, the Court will uphold the denial of
court must affirm the ALJ's findings if they are
supported by substantial evidence and are free from
reversible error. Marcia v. Sullivan, 900 F.2d 172,
174 (9th Cir. 1990). Substantial evidence is more
than a mere scintilla, but less than a preponderance; it is
“such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971). In
determining whether substantial evidence supports the
ALJ's decision, the court considers the record as a
whole, weighing both the evidence that supports and that
which detracts from the ALJ's conclusions. Reddick v.
Chater, 157 F.3d 715, 720 (9th Cir. 1988).
The ALJ is responsible for resolving conflicts, ambiguity,
and determining credibility. Andrews v. Shalala, 53
F.3d 1035, 1039 (9th Cir. 1995); Magallanes v.
Bowen, 881 F.2d 747, 750 (9th Cir. 1989). If
there is sufficient evidence to support the ALJ's
determination, the Court cannot substitute its own
determination. See Young v. Sullivan, 911 F.2d 180,
184 (9th Cir. 1990).
the Court must affirm the ALJ's decision where the
evidence considered in its entirety substantially supports it
and the decision is free from reversible error. 42 U.S.C.
§ 405(g); Hammock v. Bowen, 879 F.2d 498, 501
(9th Cir. 1989). The Court must do more than
merely rubber stamp the ALJ's decision. Winans v.
Bowen, 853 F.2d 643, 645 (9th Cir. 1988).
However, where the evidence is susceptible to more than one
rational interpretation, the ALJ's decision must be
upheld. Magallanes, 881 F.2d at 750.
who was 42 years old at the alleged onset date, had past
relevant work as an electrician. (Tr. 637) On appeal, Lummus
argues that the ALJ did not properly evaluate the opinion of
his treating cardiologist and did not make a proper credibility
determination. (Doc. 18)
Physician's Opinion. Lummus began treatment with
cardiologist Robert C. Candipan, M.D., shortly before his
alleged onset date in 2010. (Tr. 338-39) At that time, Dr.
Candipan diagnosed Lummus with non-ischemic cardiomyopathy,
possibly secondary to alcohol. (Tr. 344). During the course
of treating Lummus, Dr. Candipan did not change this
diagnosis. (Tr. 842)
October 2010, Dr. Candipan noted that Lummus “probably
should not be doing” the heavy exertion required of an
electrical worker in construction. (Tr. 343) In January 2011,
Dr. Candipan opined that Lummus “cannot do the same
activities that he used to do” and checked boxes on a
form acknowledging that Lummus suffers from fatigue, does not
need to nap during the day, and can sustain work on a regular
and continuing basis. (Tr. 356, 361) In September 2011, Dr.
Candipan stated that Lummus “had previously done rather
heavy exertion in his line of work, and since this diagnosis
was made, he has been disabled.” (Tr. 383) Finally, in
February 2012, Dr. Candipan wrote two letters. In the first,
he stated that Lummus did not have “any symptoms of
congestive heart failure” but he was “debilitated
due to dyspnea on exertion.” (Doc. 460) In the second,
he again stated that Lummus did “not suffer from overt
heart failure, but he does have significant impairment in his
function capacity due to chronic weakness and fatigue.”
(Tr. 536) He concluded by stating that, in his opinion,
Lummus could not work on a full time basis and was
“totally disabled.” (Tr. 536)
uncontroverted opinion or ultimate conclusion of a treating
physician is accorded great deference, deserves controlling
weight, and if not in conflict with the record, can only be
rejected with findings that are supported by clear and
convincing reasons based on substantial evidence.
Carmickle v. Comm'r of Soc. Sec., 533 F.3d 1155,
1164 (9th Cir. 2008); Lester v. Chater,
81 F.3d 821, 830 (9th Cir. 1995).
the ALJ found that Dr. Candipan's opinions were entitled
to little weight and were inconsistent with the record. (Tr.
636) To support this conclusion, the ALJ provided extensive
citations to the record. First, the ALJ noted that Dr.
Candipan's conclusory statements were inconsistent with
Lummus' medical record. As detailed in the ALJ's
decision, Lummus' treatment records, many of which
postdate Dr. Candipan's letters, confirmed Dr.
Candipan's statement that Lummus did not demonstrate any
symptoms of congestive heart failure. (Tr. 460, 466, 842,
846, 849, 851-53) The ALJ further noted that Lummus had
experienced chest pain but this symptom resolved after Lummus
received a pacemaker, a defibrillator, and started taking
proton pump inhibitor medication. (Tr. 352-53, 458, 461, 464,
498, 553, 630, 631-32, 846, 849, 851) Finally, the ALJ noted
that Lummus' other symptoms, such as fatigue and dyspnea,
had either improved with treatment or were only
intermittently present. (Tr. 340, 354, 463, 495, 535, 846)
Consistent with Dr. Candipan's treatment notes and
letters, the ALJ limited Lummus' residual functional
capacity to accommodate his fatigue and dyspnea.
the ALJ accommodated the limitations noted by Dr. Candipan in
his treatment notes and in his letters. The ALJ also agreed
with Dr. Candipan to the extent that his opinion was that
Lummus could not resume work as an electrician. However, the
ALJ did not agree with Dr. Candipan's ultimate conclusion
about Lummus' disability. This was not in error. See
Thomas v. Barnhart, 278 F.3d 947, 957 (9th
Cir. 2002) (“The ALJ need not accept the opinion of any
physician, including a treating physician, if that opinion is
brief, conclusory, and inadequately supported by clinical
findings.”); Lester v. 81 F.3d 821 at 830
(“clear and convincing reasons are required to reject
the treating doctor's ultimate conclusions”).
Because the ALJ's determination about Dr. Candipan's
opinion was supported with clear and convincing reasons and
based on substantial evidence, there was no error.
Credibility. Next, Lummus argues that the ALJ failed to
articulate clear and convincing reasons for discounting his
symptom testimony. An ALJ must engage in a two-step analysis
in evaluating the credibility of a claimant's testimony
regarding alleged symptoms. Smolen v. Chater, 80
F.3d 1273, 1290 (9th Cir. 1996). First, the ALJ
must determine whether there is objective medical evidence of
an underlying impairment that could reasonably be expected to
produce the alleged symptoms. Id. at 1281. Second,
when there is no affirmative evidence suggesting malingering,
the ALJ must also set forth “specific, clear and
convincing reasons” before it can reject a
claimant's testimony about the severity of symptoms.
Id. at 1283-84. See Dodrill v. Shalala, 12
F.3d 915, 918 (9th Cir. 1993). The clear and
convincing standard is the most heightened standard in Social
Security Law. Moore v. Soc. Sec. Admin., 278 F.3d
920 (9th Cir. 2002). Once an underlying impairment
is verified, an ALJ cannot use a lack of full and objective
medical corroboration to reject a claimant's subjective
symptoms. Cotton v. Bowen, 799 F.2d 1403, 1407
(9th Cir. 1986), superseded by statute on
other grounds as stated in Bunnell v. Sullivan, 912 F.2d
1149 (9th Cir.1990). To support a finding that the
symptoms are not credible, the ALJ must offer specific
findings properly supported by the record in sufficient
detail to allow a reviewing court to review the findings for
permissible grounds and freedom from arbitrariness.
(Id.) Moreover, the mere fact that Lummus engages in
some daily activities does not in any way detract from the
credibility as to his overall disability, as a claimant does
not need to be “utterly incapacitated” in order
to be disabled. Vertigan v. Halter, 260 F.3d 1044,
1050 (9th Cir. 2001). Such activities of daily
living can only be used to reject a claimant's testimony
if those activities actually show that a claimant can work or
they are inconsistent with a claimant's testimony
regarding what he or she can do. (Id.)
the ALJ did not find evidence that Lummus was malingering.
Instead, the ALJ found that Lummus' impairments could
reasonably be expected to cause his alleged symptoms but his
statements about the intensity, persistence, and limiting
effects of his symptoms were not credible to the extent they
were inconsistent with the residual functional capacity
assessment. (Tr. 22) As detailed below, the ALJ supported
this finding with specific, clear and convincing reasons and
noted conflicts between Lummus' testimony and his
conduct. Light v. ...