Maria F Hernandez v. Jo Anne B Barnhart, No. 2:2005cv04043 - Document 23 (C.D. Cal. 2009)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. The Agencys decision is affirmed. IT IS SO ORDERED. (rp)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 MARIA HERNANDEZ, Plaintiff, 11 12 13 v. 14 MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 15 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 05-4043 PJW MEMORANDUM OPINION AND ORDER 16 17 18 I. INTRODUCTION Before the Court is Plaintiff s appeal of a decision by Defendant 19 Social Security Administration ( the Agency ), denying her 20 applications for Disability Insurance benefits ( DIB ) and 21 Supplemental Security Income benefits ( SSI ). 22 the Administrative Law Judge ( ALJ ) erred in 1) failing to properly 23 consider the opinions of her treating physicians; 2) determining that 24 her testimony was not credible; and 3) failing to determine whether 25 26 27 28 Plaintiff claims that 1 she could sustain work activity. 1 2 38.) 3 affirmed. (Joint Stip. at 8-17, 24-28, 36- For the reasons explained below, the Agency s decision is 4 II. BACKGROUND 5 A. The Proceedings Before the Agency 6 On November 24, 1998, Plaintiff applied for SSI and DIB, claiming 7 that she had been disabled since September 30, 1998, due to low back 8 pain. 9 denied the applications initially and on reconsideration, Plaintiff (Administrative Record ( AR ) 62, 88, 252.) After the Agency 10 appeared with counsel at a hearing before an Administrative Law Judge 11 ( ALJ ) on May 17, 2000, and testified. (AR 62, 66, 319-42.) On June 12 20, 2000, the ALJ issued a decision denying her applications. (AR 22- 13 28.) 14 review, Plaintiff filed an action in this court. 15 subsequently stipulated to a remand to the Agency for further 16 consideration of Plaintiff s credibility and the treating doctor s 17 opinion. 18 Following the Appeals Council s denial of her request for The parties (AR 356-64.) On remand, the ALJ held another administrative hearing, at which 19 Plaintiff again appeared with counsel and testified. 20 On July 25, 2002, the ALJ issued a decision, again denying Plaintiff s 21 applications. 22 Council, which remanded the case to a different ALJ with instructions 23 to develop the record with respect to Plaintiff s treating doctor s 24 opinion, evaluate Plaintiff s subjective complaints, and further 25 consider Plaintiff s residual functional capacity. (AR 267-72.) (AR 495-508.) Plaintiff appealed to the Appeals (AR 291-93.) 26 27 28 1 The Court has presented Plaintiff s claims in the order that it will address them herein. It is not the same order that Plaintiff raised them in the Joint Stipulation. 2 Thereafter, a third administrative hearing was held before a 1 2 different ALJ. 3 was disabled beginning January 1, 2004, but not before then. 4 313.) 5 sufficient quarters of coverage to remain insured through only 6 December 31, 1998, he found that she was not entitled to receive DIB, 7 but that she was eligible to receive SSI beginning January 1, 2004.2 8 (AR 298-99.) 9 challenging the ALJ s finding that she was not disabled before January 10 (AR 511-37). This time, the ALJ found that Plaintiff (AR 297- Because the ALJ determined that Plaintiff had acquired Thereafter, Plaintiff filed the instant action, 1, 2004. 11 B. Summary of the Medical Evidence 12 Plaintiff developed a hernia in 1985, and underwent a ventral 13 herniorrhaphy in December 1996, to repair it. (AR 206-07.) 14 September 22, 1998, Plaintiff complained of a sudden onset of 15 abdominal pain and was treated at the emergency room at the Methodist 16 Hospital of Southern California, where she was diagnosed with 17 incarcerated hernia versus strangulated bowel. (AR 190-92.) On Against 18 19 20 21 22 23 24 25 26 27 28 2 Plaintiff contends that the ALJ erred when he found that her date last insured was December 1998 and, as proof, she contends it has been stated throughout the case that she was last insured 12/99. (Joint Stip. at 3.) Accordingly, Plaintiff argues that she is eligible for DIB if she can establish she was disabled on or before December 31, 1999. (Joint Stip. at 3.) The Court rejects this argument. Although the first ALJ stated that Plaintiff last met the insured status requirements on December 31, 1999, (AR 23), which finding may have been based on an unsupported notation by a reviewing state agency doctor, (AR 69), that date was not based on any evidence appearing in the record, nor was it mentioned again. After the issue of Plaintiff s date last insured was raised at the third administrative hearing, (AR 514-16), the ALJ determined that the correct date was December 31, 1998. (AR 299.) This finding is supported by substantial evidence in the record in the form of earnings calculations, (AR 433-34, 439, 443-44), and Plaintiff provides no basis for disturbing it. 3 1 medical advice, Plaintiff went home. 2 1998, she underwent a hernioplasty and lipectomy in Sonora, Mexico. 3 (AR 161.) 4 reported that she presents spondylolisthesis of the L4, L5 stadium 1 5 and opined that she was, therefore, incapacitated for an indefinite 6 period of time, for the purposes of performing physical activities 7 such as lifting, pushing, or abdominal flexion. 8 9 (AR 188.) On September 30, On December 12, 1998, Dr. Gustavo Angulo Sanchez in Sonora (AR 164.) The following month, on January 25, 1999, Dr. Gabriel Fabella, a consultative physician, examined Plaintiff and, despite noting mild 10 limitations in her back, determined that she could lift and carry 11 twenty pounds occasionally and ten pounds frequently, and could stand 12 and walk for about six hours in an eight-hour workday. 13 On March 1, 1999, state agency reviewing physician Dr. Wallace 14 Campbell endorsed these limitations, and added that Plaintiff could 15 sit for six hours in an eight-hour workday and could frequently climb, 16 balance, kneel, crouch, and crawl. 17 (AR 145-49.) (AR 150-57.) On March 29, 1999, Plaintiff saw Dr. Gary Moscarello for a 18 second opinion. 19 lower back and right thigh, but also observed that she walks around 20 the room [and sat down] . . . readily. 21 found that x-rays showed spondylolisthesis at L5, L6, but opined that 22 she is not having symptoms . . . that would require surgical 23 intervention or that surgical intervention would help, and stated 24 that she should lose weight and exercise. 25 also noted that test results indicated that she had carpal tunnel 26 syndrome in her right hand. 27 28 (AR 233.) He noted her complaints of pain in her (AR 233.) Dr. Moscarello (AR 234.) Dr. Moscarello (AR 234.) On October 13, 1999, Plaintiff was involved in a car accident and suffered a contusion to her right thigh and an abrasion to her left 4 1 leg. 2 lumbosacral spine showed a transitional lumbar vertebrae and marked 3 degenerative facet joint changes, but did not show spondylolisthesis. 4 (AR 181, 186.) 5 (AR 181.) She complained of lower back pain. X-rays of her On October 18, 1999, Plaintiff was evaluated by Dr. Stephen 6 Roberts in connection with her accident. 7 noted multiple areas of spasm in Plaintiff s cervicothoracic and 8 lumbosacral spine, and hematomas in her right and left thighs. 9 584.) (AR 581-89.) Dr. Roberts (AR In follow-up visits between November 1999 and February 2000, 10 Plaintiff complained of pain in her neck, trapezius, low back, and 11 knee. 12 and lumbosacral spine and paracervicothoracic and paralumbar spasm. 13 (AR 587-88.) 14 underwent between November 1999 and February 2000. 15 588.) 16 Dr. Roberts noted diminished range of motion of the cervical Plaintiff was referred for physical therapy, which she Her prognosis was said to be fair. (AR 167-80, 587, (AR 588.) Plaintiff was also referred to orthopedic surgeon Frank 17 Sorrentino. 18 complaints of cervical, dorsal, low back, left shoulder, and right 19 thigh pain, and tingling and numbness of three fingers of her right 20 hand. 21 Plaintiff had a spasm in her trapezius, pain in her left shoulder, and 22 a positive left straight leg raising sign. 23 also noted positive right Tinel s and Phalen s signs for carpal tunnel 24 syndrome. 25 sprains, left rotator cuff tendinitis, a bulging disc at L5-S1, and a 26 hematoma on the right thigh. 27 low back. 28 for Social Security Disability as I do not feel she can continue on in (AR 172.) (AR 225.) On November 29, 1999, Dr. Sorrentino noted her He observed that she walked with a limp. (AR 227.) (AR 228.) (AR 227.) (AR 226.) Dr. Sorrentino He diagnosed cervical, dorsal, and lumbosacral (AR 228.) He recommended an MRI of the He concluded that Plaintiff will be a candidate 5 1 her employment cleaning houses. 2 difficult for this patient if she can be so trained. 3 Even a sedentary job will be (AR 228.) On December 27, 1999, Plaintiff visited Dr. Sorrentino again, at 4 which time he noted that an MRI of Plaintiff s lower back indicated 5 mild disc dissection at L3-L4, but did not mention the 6 spondylolisthesis diagnosed by Dr. Moscarello. 7 Sorrentino opined that Plaintiff has low back pain with any bending 8 or lifting, prolonged standing. 9 cannot bend or lift. (AR 230.) (AR 230.) Dr. She cannot squat or kneel. She He recommended that she lose at 10 least 20-25 pounds, continue with physical therapy, and have a custom 11 orthopedic corset fitted. 12 to be trained in light work as she will not be able to tolerate 13 occupations requiring prolonged standing for more than one hour, 14 sitting for more than [two] hours at a time. 15 retrained into a secretarial type of work. (AR 230.) He concluded that she would need She will most likely be (AR 230.) 16 On February 28, 2000, Plaintiff returned to Dr. Sorrentino. 17 noted that Plaintiff had not obtained an orthopedic corset because she 18 could not afford one. 19 complain of pain in her neck, left shoulder, back, and right thigh, 20 though she told him that the pain in her back had improved with 21 therapy and medications. 22 shoulder, Plaintiff was given refills of Tylenol with codeine, 23 released from physical therapy, and advised to maintain with 24 Tylenol, home remedies, and exercise. 25 opined that her prognosis for response to conservative measures as 26 concerns the low back is poor due to the underlying spondylolisthesis 27 of L5 on S1, which was exacerbated by the trauma of the car accident. 28 (AR 550.) He He reported that Plaintiff continued to (AR 549.) 6 After an injection in her left (AR 549, 550.) Dr. Sorrentino 1 The records show that Plaintiff was not seen again for orthopedic 2 treatment until December 14, 2000, when she returned to Dr. 3 Moscarello. 4 been substantially worse since the October 1999 accident and 5 repeated his diagnosis of spondylolisthesis. 6 that surgery would be unlikely to make any dramatic change in her 7 condition, given her body weight, and prescribed Tylenol No. 3 and 8 Neurontin. 9 Plaintiff s prescription to Celebrex after she complained that Tylenol 10 On that occasion, Dr. Moscarello noted that her back has (AR 560.) He opined On April 9, 2001, Dr. Moscarello changed No. 3 caused bleeding. 11 (AR 560.) (AR 557.) On May 14, 2001, Plaintiff reported to Dr. Moscarello that her 12 left leg had not improved and that, after walking for three hours, her 13 feet grew numb. 14 disabled for six months--through November 14, 2001 -due to low back 15 pain and spondylolisthesis. 16 appointments were scheduled in June and October 2001, Plaintiff did 17 not return to Dr. Moscarello until January 2002, at which time she 18 complained only of right hand pain. 19 2002, however, Plaintiff complained to Dr. Moscarello of severe back 20 pain. (AR 555.) Dr. Moscarello opined that Plaintiff was (AR 556.) Though it looks as though (AR 552, 553-54.) On March 13, (AR 551.) 21 On March 18, 2002, Plaintiff returned to Dr. Sorrentino, 22 complaining of low back pain, numbness in her big toes, and a 23 headache. 24 during that visit, Dr. Sorrentino opined that Plaintiff cannot bend, 25 cannot lift, cannot vacuum. 26 minutes at a time. 27 tendency for the leg to buckle, and he noted that her complaints 28 described right carpal tunnel syndrome. (AR 564.) Though, apparently, he did not examine her She cannot stand for more than 4-5 She utilizes a cane in the right hand as she has a 7 (AR 564.) He concluded that 1 Plaintiff certainly cannot do her previous occupation and should be 2 retrained into lighter work, more of a sedentary occupation where she 3 would be allowed to sit periodically as needed for increased pain, 4 and noted that her complaints and symptoms have not changed since her 5 initial examination. 6 (AR 564.) On September 26, 2002, Plaintiff was seen at Los Angeles County- 7 USC Medical Center ( LAC-USC ) with complaints of chronic back pain 8 over the past four years that had worsened in the previous three days. 9 (AR 812.) The attending nurse practitioner noted lumbosacral 10 tenderness but no joint swelling, and observed that Plaintiff walked 11 with a steady gait. 12 diagnosed at LAC-USC with new onset diabetes mellitus, hypothyroidism, 13 arthralgia, and hyperlipidemia. 14 Synthroid and Glyburide and referred to a nutritionist. 15 January 28, 2003, Plaintiff returned to LAC-USC with complaints of 16 foot pain, chest pain, and joint pain. 17 with chest pain, possibly due to angina, diabetes mellitus, 18 hypothyroidism, mild hyperlipidemia, and mild hypertension. 19 Plaintiff was given various prescriptions and referred for an exercise 20 stress test. 21 (AR 812.) On November 8, 2002, Plaintiff was (AR 810.) She was prescribed (AR 806.) (AR 810.) On She was diagnosed (AR 806.) (AR 807.) In July 2003, Plaintiff underwent surgery at Methodist Hospital 22 for a bowel obstruction and incarcerated ileum, after presenting to 23 the emergency room with lower abdominal pain, and no bowel movement 24 and vomiting for several days. 25 noninsulin dependent diabetes mellitus, hypothyroidism, hyper- 26 cholesterolemia, and morbid obesity and discharged in a stable 27 condition. (AR 698.) (AR 698, 699.) 28 8 She was diagnosed with Plaintiff underwent surgery again in February 2004 after 1 2 experiencing severe pain in her upper abdomen for 24 hours. 3 She was hospitalized in March 2004 for ulcerative colitis and internal 4 hemorrhoids after suffering from rectal bleeding. 5 11.) 6 temporarily disabled from February 8, 2004, through December 1, 2004. 7 (AR 771.) 8 (AR 614.) (AR 605-07, 610- In March 2004, Dr. Jason Boutros opined that Plaintiff was On October 26, 2004, though he had apparently not seen Plaintiff 9 since March 2002, Dr. Sorrentino completed a form report in which he 10 diagnosed her with degenerative disc disease of the cervical spine, 11 rotator cuff tendinitis, spondylolisthesis, right carpal tunnel 12 syndrome, and left ankle arthritis. 13 could stand for no longer than an hour, sit for no longer than five 14 hours, and walk for no longer than two hours in an eight-hour workday; 15 never bend, squat, kneel, crawl, climb, or reach above shoulder level; 16 and never lift or carry more than five pounds. (AR 826-30.) He opined that she (AR 828, 829.) 17 C. 18 The ALJ determined that Plaintiff was impaired due to a history The ALJ s 2005 Decision 19 of ventral hernia, new onset diabetes mellitus (in November 2002), 20 hypothyroidism, spondylolisthesis of the lumbosacral spine, 21 degenerative changes of the lumbosacral spine, history of gall bladder 22 surgery (in February 2004), and obesity, which were severe when 23 considered in combination.3 (AR 301.) The ALJ found that the 24 25 26 27 28 3 In making this determination, the ALJ found that there was insufficient evidence to establish that her other claimed ailments-small bowel obstruction; carpal tunnel syndrome; neck, shoulder, and ankle pain; leg abrasion; blurry vision and vertigo; headaches; and cardiac condition--were severe impairments that lasted for at least twelve consecutive months. (AR 300-301.) Plaintiff has not 9 1 impairments did not meet or equal a Listed impairment, whether 2 considered alone or in combination. 3 (AR 302.) After noting the varying residual functional capacity opinions in 4 the record and discussing Plaintiff s medical history in some detail, 5 the ALJ concluded that she retained the functional capacity to do 6 light work up until January 1, 2004, which, under Medical-Vocational 7 Rules 202.11 and 202.17, directed a finding that she was not 8 disabled.4 9 after January 1, 2004, Plaintiff was only able to perform sedentary (AR 306-08, 312-13.) The ALJ determined, however, that, 10 work, which meant that she was disabled under Medical-Vocational Rule 11 201.09. 12 (AR 312-13.). In determining that Plaintiff could perform light work for the 13 period up to January 1, 2004, the ALJ relied on the opinions of 14 reviewing physician Campbell and examining physician Fabella. 15 rejected Dr. Sanchez s view that Plaintiff was incapacitated as a 16 result of her spondylolisthesis and Dr. Sorrentino s opinion that she 17 suffered from greater functional limitations. 18 acknowledged that Dr. Sorrentino s 1999 opinions may well describe 19 [Plaintiff] s condition shortly after her motor vehicle accident, but 20 he found that the evidence fails to establish that symptoms related 21 to her October 1999 injuries persisted for twelve consecutive months. 22 (AR 307, 308.) (AR 307-08.) He The ALJ The ALJ also noted Dr. Moscarello s May 2001 opinion 23 24 25 26 27 28 challenged this determination. 4 The ALJ determined that, before January 2004, Plaintiff could lift and carry twenty pounds occasionally and ten pounds frequently, stand and walk for about six out of eight hours, and also sit for six hours in an eight-hour workday; she could frequently climb, balance, kneel, crouch, and crawl, and she could occasionally crouch. (AR 311.) 10 1 that Plaintiff was disabled for six months, but found that it did not 2 establish disability for Social Security purposes because the period 3 of disability was too short. 4 was no evidence that [Plaintiff] s symptoms changed significantly 5 after the date of the consultative evaluation [in January 1999] and 6 before January 2004[,] but that internal problems, gall bladder 7 surgery, and a diagnosis of colitis limited her to sedentary work 8 after January 2004. (AR 308.) The ALJ concluded that there (AR 309.) 9 III. ANALYSIS 10 A. 11 Plaintiff contends that the ALJ did not properly consider the The Treating Physicians Opinions 12 opinions of treating doctors Gary Moscarello, Frank Sorrentino, and 13 Stephen Roberts. 14 contends that the ALJ improperly rejected: 1) Dr. Moscarello s March 15 19, 1999 report; 2) Dr. Sorrentino s November 29, 1999 examination 16 findings and February 28, 2000 report; and 3) Dr. Roberts records for 17 the period October 1999 to February 2000. 18 For the following reasons, the Court disagrees. 19 (Joint Stip. at 24-28, 35-36.) In particular, she (Joint Stip. at 24-27.) It is well established that an ALJ is required to discuss a 20 treating doctor s opinion and that, even if it is contradicted by 21 another doctor s opinion, he may only reject it for specific and 22 legitimate reasons that are supported by substantial evidence. 23 e.g., Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). 24 hand, where the ALJ accepts a treating doctor s findings, he is not 25 required to provide such reasons. 26 1113 (9th Cir. 1999). 27 28 See, On the other Meanel v. Apfel, 172 F.3d 1111, The ALJ accepted the functional limitations assessed by examining doctor Fabella and reviewing doctor Campbell as the baseline for what 11 1 Plaintiff could do before her car accident in October 1999. 2 03, 308, 309.) 3 independent examination findings, constituted substantial evidence to 4 support the ALJ s residual functional capacity determination. 5 v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (holding that, where 6 the opinion of a nontreating source is based on independent clinical 7 findings that differ from those of the treating physician, that 8 opinion constitutes substantial evidence). 9 (AR 302- Dr. Fabella s opinion, which was based on his Andrews As to the ALJ s analysis of Dr. Moscarello s March 1999 opinion, 10 the Court finds that it was adequate. 11 accepted Dr. Moscarello s diagnosis of spondylolisthesis because he 12 found this to be one of her severe impairments, even while noting that 13 other evidence in the record, such as the MRI ordered by Dr. 14 Sorrentino, conflicted with this diagnosis. 15 Additionally, as the ALJ reported, Dr. Moscarello noted Plaintiff s 16 complaints of back and thigh pain, but also stated that she walked and 17 sat down without discomfort and that she could walk on her heels and 18 toes. 19 and ruled out surgery. 20 1999 opinion established any greater functional limitations than those 21 found by the ALJ in his decision and, therefore, Plaintiff has failed 22 to show why the ALJ s treatment of the opinion requires remand. (AR 233.) First, the ALJ evidently (AR 299, 303-04.) Dr. Moscarello recommended weight loss and exercise (AR 234.) Nothing in Dr. Moscarello s March 23 As for Dr. Sorrentino s opinion, the ALJ gave several reasons why 24 he did not adopt the functional limitations found by Dr. Sorrentino in 25 1999, i.e., that Plaintiff would find even a sedentary job difficult, 26 and that she could stand for no longer than one hour and sit for no 27 longer than two hours. 28 Plaintiff told Dr. Moscarello in May 2001 that her feet grew numb (AR 228.) First, the ALJ pointed out that 12 1 after walking for three hours, which suggested that her condition had 2 improved as she recovered from her October 1999 accident. 3 This finding is supported by the record. 4 (AR 307.) (AR 555.) More generally, as mentioned above, the ALJ found that, though 5 Dr. Sorrentino s 1999 reports might have accurately described 6 Plaintiff s condition at that time, there was no evidence to establish 7 that any limitations she was experiencing in November and December 8 1999, just a month or two after the accident, persisted at the same 9 level for any period of at least 12 consecutive months thereafter. 10 (AR 307.) 11 [Plaintiff] received aggressive and intensive treatment with Dr. 12 Roberts and Dr. Sorrentino through February 2000. 13 ALJ contrasted this period of intensive treatment with a lack of any 14 orthopedic treatment between February and December 2000, and with 15 Plaintiff s lack of any treatment with Dr. Sorrentino between February 16 2000 and March 2002. 17 declining to adopt Dr. Sorrentino s functional limitations for the 18 entire period at issue. 19 Admin., 533 F.3d 1155, 1165 (9th Cir. 2008) (affirming ALJ s rejection 20 of treating doctor s statement that claimant could not tolerate even 21 sedentary work where record showed his condition subsequently 22 improved). 23 The ALJ noted that, [f]or a time after the accident, (AR 304, 307.) (AR 303, 304.) The This was a legitimate basis for See, e.g., Carmickle v. Comm r, Soc. Sec. Moreover, the ALJ noted Dr. Sorrentino s statement in October 24 2004 that the only treatment he had provided to Plaintiff was 25 physiotherapy originally and then Ibuprofen, which conservative 26 treatment was inconsistent with the extreme limitations that Dr. 27 28 13 1 Sorrentino assessed.5 2 ALJ rejected Dr. Sorrentino s view that Plaintiff was unable to do 3 light work for any consecutive 12-month period after November 1999, 4 the ALJ s reasons were specific and legitimate and supported by 5 substantial evidence in the record. 6 (AR 308, 827.) In sum, to the extent that the Finally, with respect to Dr. Roberts, the ALJ noted his treatment 7 findings between October 1999 and February 2000. (AR 303.) Though 8 the ALJ did not specifically accept or reject these findings, but his 9 failure to do so was not error. Dr. Roberts did not express any 10 opinion about Plaintiff s functional limitations in those notes. 11 Furthermore, as previously discussed, the ALJ accepted that 12 Plaintiff s condition in the months following her accident was poor, 13 but found that it had improved sufficiently by February 2000 that she 14 was released from physical therapy and did not need orthopedic 15 treatment again until December 2000, at which time Dr. Moscarello 16 again ruled out surgery and prescribed Tylenol.6 17 (AR 303-04.) Although another factfinder might have drawn a different 18 conclusion from Plaintiff s medical records, the ALJ s interpretation 19 was not unreasonable. 20 review applied here, the ALJ s decision must be upheld if it is Under the highly deferential standard of 21 22 23 24 25 26 27 28 5 Additionally, the ALJ rejected Dr. Sorrentino s March 2002 functional capacity assessment because Dr. Sorrentino did not examine Plaintiff, but merely repeat[ed] her subjective complaints[,] and rejected his 2004 opinion in part because it was inconsistent with that of other examiners and also unsupported. (AR 308.) Plaintiff does not specifically challenge those findings here. 6 Similarly, the ALJ was not required to specifically accept or reject other treatment notes from Methodist Hospital and Woodfield Medical Group that did not include any diagnoses or functional limitations. 14 1 supported by substantial evidence and is based on a correct 2 application of the law. 3 F.3d 685, 690 (9th Cir. 2009). 4 thorough summary of the facts and conflicting medical evidence, 5 stat[ed] his interpretation thereof, and ma[de] findings[,] which 6 supported his partial rejection of the treating doctors opinions. 7 Orn, 495 F.3d at 632. Valentine v. Comm r, Soc. Sec. Admin., 574 Here, the ALJ set out a detailed and Thus, there was no error. 8 B. 9 Plaintiff contends that the ALJ s finding that her allegations Plaintiff s Credibility 10 for the period before January 2004 are not fully credible, (AR 311), 11 was erroneous and not supported by substantial evidence in the record. 12 (Joint Stip. at 14-17.) 13 rejected. For the following reasons, this claim is 14 ALJ s are tasked with judging the credibility of witnesses. 15 Where, as here, a claimant has produced objective medical evidence of 16 an impairment which could reasonably be expected to produce the 17 symptoms alleged and there is no evidence of malingering, the ALJ can 18 only reject the claimant s testimony for specific, clear, and 19 convincing reasons. 20 1996). 21 account ordinary credibility evaluation techniques as well as a 22 claimant s inadequately explained failure to seek or follow a course 23 of treatment. 24 supported by substantial evidence in the record, the Court may not 25 engage in second-guessing. 26 Cir. 2002). 27 28 Smolen v. Chater, 80 F.3d 1273, 1283-84 (9th Cir. In making a credibility determination, the ALJ may take into Id. at 1284. If the ALJ's credibility finding is Thomas v. Barnhart, 278 F.3d 947, 959 (9th The ALJ gave several reasons for finding that Plaintiff s pre2004 complaints were not fully credible. 15 First, the ALJ noted that 1 Plaintiff had denied experiencing previous back problems to Dr. 2 Sorrentino at her first meeting with him after the October 1999 car 3 accident, a statement that was plainly inconsistent with several other 4 records, including a lower-back pain complaint in January 1997, a 5 doctor s diagnosis of spondylolisthesis in 1998, Plaintiff s statement 6 that she had 18 months of pain in her lower back in March 1999, and 7 Dr. Moscarello s report that Plaintiff complained of back pain prior 8 to the accident. 9 mischaracterized her history of back pain in order to accentuate (AR 309.) The ALJ found that Plaintiff apparently 10 problems associated with the motor vehicle accident[,] which reduced 11 her general credibility. 12 questioning Plaintiff s credibility, Smolen, 80 F.3d at 1284, and is 13 supported by substantial evidence in the record. 14 (AR 309.) This was a proper basis for (AR 159, 226, 541.) Second, the ALJ found that Plaintiff s treatment history 15 undermined her allegations of disability. 16 significant gaps in her treatment history. 17 Sorrentino s findings that Plaintiff was severely limited in her 18 functioning, he did not see her between February 2000 and March 2002, 19 and March 2002 and October 2004. 20 did Plaintiff receive treatment for back or leg pain at any time 21 between May 2001 and March 2002, during at least part of which time 22 she was deemed disabled by Dr. Moscarello. 23 (AR 310.) He noted For example, despite Dr. (AR 304, 305, 550, 564, 826.) Nor (AR 304, 552-55.) Though the ALJ acknowledged that Plaintiff did not have medical 24 insurance during the relevant time period, he also noted that she was 25 able to access health care at county facilities and Methodist 26 Hospital. 27 Plaintiff was seen for gynecological treatment at San Gabriel Valley 28 County Health Centers in September 2000. (AR 310, 800-17.) The record shows, for example, that 16 (AR 820.) Thus, the ALJ was 1 permitted to rely on the fact that Plaintiff failed to seek treatment 2 for her alleged back and leg pain as a basis for questioning her 3 credibility. 4 inadequately explained, failure to seek treatment may be the basis for 5 an adverse credibility finding unless one of a number of good reasons 6 for not doing so applies. ) (quotation omitted). 7 See Orn, 495 F.3d at 638 ( [A]n unexplained, or Additionally, the ALJ found that the treatment Plaintiff received 8 was not commensurate with her alleged level of pain. The ALJ noted 9 that Dr. Sorrentino provided only physical therapy and Ibuprofen and 10 LAC-USC provided only routine treatment until January 2004, findings 11 which are also supported in the record. 12 Moreover, the ALJ noted that Plaintiff missed a scheduled appointment 13 in July 2003, failed to pick up prescriptions in July 2003 and January 14 2004, and failed to follow up with referrals for a nutritionist, an 15 eye specialist, and a stress test. 16 supports these findings and they are all legitimate reasons to 17 question Plaintiff s testimony. 18 638 ( Our case law is clear that if a claimant complains about 19 disabling pain but fails to seek treatment, or fails to follow 20 prescribed treatment, for the pain, an ALJ may use such failure as a 21 basis for finding the complaint unjustified or exaggerated. ).7 22 Because the ALJ provided specific, clear, and convincing reasons for 23 rejecting Plaintiff s pain testimony, all of which are supported by 24 substantial evidence in the record, this claim does not warrant 25 remand. (AR 310, 807, 827.) (AR 310.) Again, the record (AR 800, 802.) See Orn, 495 F.3d at 26 27 28 7 The ALJ also discounted Plaintiff s allegations in so far as they concerned her obesity. (AR 310.) Plaintiff has not challenged that aspect of his decision here. 17 1 C. Ability to Sustain Employment 2 Plaintiff contends that the ALJ erred in failing to adequately 3 determine whether she could work on a sustained basis prior to her 4 date last insured. 5 was required by Social Security Ruling ( SSR ) 96-8p to evaluate 6 whether she could do work activities on an eight-hour a day for five- 7 days a week basis in light of her functional capacity and the 8 evidence in the record. 9 rejected. (Joint Stip. at 36-38.) She contends that the ALJ (Joint Stip. at 37.) This claim is also 10 SSR 96-8p provides that the ALJ must include a narrative 11 discussion describing how the evidence supports each conclusion . . . 12 must discuss the individual s ability to perform sustained work 13 activities in an ordinary work setting on a regular and continuing 14 basis . . . and describe the maximum amount of each work-related 15 activity the individual can perform based on the evidence available in 16 the case record. 17 discussion of the medical evidence, set forth above, the Court 18 concludes that he met the requirements of SSR 96-8p in this case. 19 In light of the ALJ s thorough and detailed As discussed above, the ALJ based his residual functional 20 capacity assessment of Plaintiff s condition before 2004 on the 21 opinions of Dr. Fabella and Dr. Campbell. 22 and Dr. Campbell found that Plaintiff could stand and walk six hours 23 in an eight-hour workday with normal breaks. 24 just discussed, the ALJ s rejection of the functional limitations set 25 forth by Dr. Sorrentino was based on specific and legitimate reasons, 26 which were supported by substantial evidence in the record. 27 28 18 (AR 308.) Both Dr. Fabella (AR 148, 151.) And, as Because 1 Plaintiff has not shown that the ALJ failed to heed the directives of 2 SSR 96-8p, this claim does not require remand or reversal. 3 For all of the above reasons, the Agency s decision is affirmed. 4 IT IS SO ORDERED. 5 DATED: November 13 , 2009. 6 7 8 9 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 S:\PJW\Cases-CLOSED\Closed-Soc Sec\HERNANDEZ, M 4043\Memo_Opinion.wpd 19
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