Raymond Gomez v. Michael J Astrue, No. 2:2008cv03155 - Document 16 (C.D. Cal. 2009)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Paul L. Abrams. IT IS HEREBY ORDERED that: 1. plaintiff's request for reversal, or in the alternative, remand, is DENIED; and 2. the decision of the Commissioner is AFFIRMED.IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and theJudgment herein on all parties or their counsel. THIS MEMORANDUM OPINION AND ORDER IS NOT INTENDED FOR PUBLICATION, NOR IS IT INTENDED TO BE INCLUDED OR SUBMITTED TO ANY ONLINE SERVICE SUCH AS WESTLAW OR LEXIS.**See Order for details.** (ch)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 12 RAYMOND GOMEZ, 13 Plaintiff, 14 15 v. 16 MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, 17 Defendants. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 08-3155-PLA MEMORANDUM OPINION AND ORDER 18 19 I. 20 PROCEEDINGS 21 Plaintiff filed this action on May 14, 2008, seeking review of the Commissioner s denial of 22 his applications for Disability Insurance Benefits and Supplemental Security Income payments. 23 The parties filed Consents to proceed before the undersigned Magistrate Judge on May 29, 2008, 24 and September 29, 2008. The parties filed a Joint Stipulation on January 29, 2009, that addresses 25 their positions concerning the disputed issues in the case. The Court has taken the Joint 26 Stipulation under submission without oral argument. 27 / 28 / 1 II. 2 BACKGROUND 3 Plaintiff was born on January 29, 1957. [Administrative Record ( AR ) at 61, 78, 404.] He 4 has a high school education [AR at 76, 404], and has past relevant work experience as, among 5 other things, a plumber, warehouse worker, and a forklift driver. [AR at 71-73, 406-11.] 6 On December 9, 2005, plaintiff filed his application for Disability Insurance Benefits, and 7 on January 30, 2005, plaintiff protectively filed his application for Supplemental Security Income 8 payments. [AR at 17, 61-66, 78-80.] In both applications, plaintiff alleged that he has been unable 9 to work since October 27, 2004, due to open heart surgery, heart valve replacement, and 10 shoulder, arm and hand pain. [AR at 61-66, 71, 78-80, 106.] After his applications were denied 11 initially and on reconsideration, plaintiff requested a hearing before an Administrative Law Judge 12 ( ALJ ). [AR at 17, 46-60.] A hearing was held on August 22, 2007, at which time plaintiff 13 appeared with counsel and testified on his own behalf. [AR at 401-29.] A vocational expert also 14 testified. [AR at 423-28.] On September 26, 2007, the ALJ determined that plaintiff was not 15 disabled. [AR at 14-26.] Plaintiff requested review of the hearing decision. [AR at 12.] When the 16 Appeals Council denied plaintiff s request for review on April 14, 2008, the ALJ s decision became 17 the final decision of the Commissioner. [AR at 6-9.] This action followed. 18 19 III. 20 STANDARD OF REVIEW 21 Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner s 22 decision to deny benefits. The decision will be disturbed only if it is not supported by substantial 23 evidence or if it is based upon the application of improper legal standards. Moncada v. Chater, 24 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 25 In this context, the term substantial evidence means more than a mere scintilla but less 26 than a preponderance -- it is such relevant evidence that a reasonable mind might accept as 27 adequate to support the conclusion. Moncada, 60 F.3d at 523; see also Drouin, 966 F.2d at 28 1257. When determining whether substantial evidence exists to support the Commissioner s 2 1 decision, the Court examines the administrative record as a whole, considering adverse as well 2 as supporting evidence. Drouin, 966 F.2d at 1257; Hammock v. Bowen, 879 F.2d 498, 501 (9th 3 Cir. 1989). Where the evidence is susceptible to more than one rational interpretation, the Court 4 must defer to the decision of the Commissioner. Moncada, 60 F.3d at 523; Andrews v. Shalala, 5 53 F.3d 1035, 1039-40 (9th Cir. 1995); Drouin, 966 F.2d at 1258. 6 7 IV. 8 THE EVALUATION OF DISABILITY 9 Persons are disabled for purposes of receiving Social Security benefits if they are unable 10 to engage in any substantial gainful activity owing to a physical or mental impairment that is 11 expected to result in death or which has lasted or is expected to last for a continuous period of at 12 least twelve months. 42 U.S.C. § 423(d)(1)(A); Drouin, 966 F.2d at 1257. 13 14 A. THE FIVE-STEP EVALUATION PROCESS 15 The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing 16 whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lester v. Chater, 81 F.3d 821, 17 828 n.5 (9th Cir. 1995, as amended April 9, 1996). In the first step, the Commissioner must 18 determine whether the claimant is currently engaged in substantial gainful activity; if so, the 19 claimant is not disabled and the claim is denied. Id. If the claimant is not currently engaged in 20 substantial gainful activity, the second step requires the Commissioner to determine whether the 21 claimant has a severe impairment or combination of impairments significantly limiting his ability 22 to do basic work activities; if not, a finding of nondisability is made and the claim is denied. Id. 23 If the claimant has a severe impairment or combination of impairments, the third step requires 24 the Commissioner to determine whether the impairment or combination of impairments meets or 25 equals an impairment in the Listing of Impairments ( Listing ) set forth at 20 C.F.R., Part 404, 26 Subpart P, Appendix 1; if so, disability is conclusively presumed and benefits are awarded. Id. 27 If the claimant s impairment or combination of impairments does not meet or equal an impairment 28 in the Listing, the fourth step requires the Commissioner to determine whether the claimant has 3 1 sufficient residual functional capacity to perform his past work; if so, the claimant is not disabled 2 and the claim is denied. Id. The claimant has the burden of proving that he is unable to perform 3 past relevant work. Drouin, 966 F.2d at 1257. If the claimant meets this burden, a prima facie 4 case of disability is established. The Commissioner then bears the burden of establishing that 5 the claimant is not disabled, because he can perform other substantial gainful work available in 6 the national economy. The determination of this issue comprises the fifth and final step in the 7 sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; Lester, 81 F.3d at 828 n.5; Drouin, 966 8 F.2d at 1257. 9 10 B. THE ALJ S APPLICATION OF THE FIVE-STEP PROCESS 11 In this case, at step one, the ALJ found that plaintiff had not engaged in any substantial 12 gainful activity since the alleged onset date of the disability.1 [AR at 19.] At step two, the ALJ 13 concluded that plaintiff has the following severe impairments: diabetes mellitus 2; hypertension; 14 obesity; status post aortic valve replacement; increased S2 (heart); chest pain, not of cardiac origin; 15 low back pain; and bilateral shoulder osteoarthritis. [Id.] At step three, the ALJ determined that 16 plaintiff s impairments do not meet or equal any of the impairments in the Listing. [AR at 19-20.] 17 The ALJ further found that plaintiff retained the residual functional capacity ( RFC )2 to perform light 18 work.3 [AR at 20.] Specifically, the ALJ determined that plaintiff is able to lift and/or carry 20 19 pounds occasionally and 10 pounds frequently, sit, stand and/or walk for about six hours in an 20 eight-hour workday, with occasional postural limitations, and is able to occasionally reach above 21 shoulder level bilaterally. [AR at 20.] At step four, the ALJ concluded that plaintiff was not capable 22 23 24 1 The ALJ also determined that plaintiff met the insured status requirements of the Social Security Act through March 31, 2005. [AR at 19.] 2 25 26 27 28 RFC is what a claimant can still do despite existing exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 3 Light work is defined as work involving lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds and requiring a good deal of walking or standing or sitting most of the time with some pushing and pulling of arm or leg controls. 20 C.F.R. §§ 404.1567(b), 416.967(b). 4 1 of performing his past relevant work. [AR at 24.] At step five, the ALJ found, based on the 2 vocational expert s testimony, that there are jobs that exist in significant numbers in the national 3 economy that [plaintiff] can perform. [AR at 24.] Accordingly, the ALJ determined that plaintiff is 4 not disabled. [AR at 25.] 5 6 V. 7 THE ALJ S DECISION 8 Plaintiff contends that the ALJ failed to: (1) properly analyze the medical records; and (2) 9 properly evaluate plaintiff s subjective symptoms and credibility. Joint Stipulation ( Joint Stip. ) at 10 3. As set forth below, the Court respectfully disagrees with plaintiff, and affirms the ALJ s decision. 11 12 A. MEDICAL RECORDS/DEVELOPMENT OF RECORD 13 Plaintiff contends that the ALJ did not properly analyze the medical record including fully 14 developing the record. Joint Stip. at 3. Specifically, plaintiff argues that the ALJ failed in his 15 obligation to fully develop the record because he did not use the service of a medical expert to 16 interpret medical evidence. Id. 17 The ALJ has an affirmative duty to fully and fairly develop the record. See Tonapetyan v. 18 Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). However, only [a]mbiguous evidence, or the ALJ s 19 own finding that the record is inadequate to allow for proper evaluation of the evidence, triggers 20 the ALJ s duty to conduct an appropriate inquiry. Id. (quoting Smolen v. Chater, 80 F.3d 1273, 21 1288 (9th Cir. 1996)). If evidence from the medical source is inadequate to determine if the 22 claimant is disabled, an ALJ is required to recontact the medical source, including a treating 23 physician, to determine if additional needed information is readily available. See 20 C.F.R. §§ 24 404.1512(e)(1), 416.912(e)(1) ( We will seek additional evidence or clarification from your medical 25 source when the report from your medical source contains a conflict or ambiguity that must be 26 resolved, the report does not contain all the necessary information, or does not appear to be 27 based on medically acceptable clinical and laboratory diagnostic techniques. ). The responsibility 28 5 1 to see that this duty is fulfilled belongs entirely to the ALJ; it is not part of the claimant s burden. 2 See White v. Barnhart, 287 F.3d 903, 908 (10th Cir. 2001). 3 Plaintiff s contention that the ALJ s failure to use a medical expert violated his duty to fully 4 develop the record lacks merit. The case cited by plaintiff in the Joint Stipulation in support of this 5 contention merely stands for the general proposition that [i]n Social Security cases the ALJ has 6 a special duty to fully and fairly develop the record and to assure that the claimant s interests are 7 considered. Smolen, 80 F.3d at 1288 (quoting Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 8 1983)). Smolen did not hold that the failure to use a medical expert to interpret medical evidence 9 constituted a violation of the ALJ s duty to fully and fairly develop the record. Rather, the ALJ s 10 obligation to develop the record arises only where the ALJ finds the record insufficient to properly 11 evaluate the evidence. Here, the ALJ discussed all of the pertinent evidence in the record [AR at 12 20-24], and did not find the record either inadequate or ambiguous to allow for proper evaluation 13 of the evidence. Indeed, the ALJ indicated that there was no conflict in the medical evidence 14 concerning plaintiff s ability to perform light work. [AR at 22.] The ALJ found that [t]he record 15 contains no opinions of [plaintiff s] residual functional capacity from treating physicians, and that 16 the consultative and nonexamining State Agency physicians found plaintiff was capable of at least 17 light work. [AR at 21-24.] These findings are supported by the record. It does not appear that any 18 treating physician completed an RFC assessment of plaintiff, or limited him to more restricted 19 activities in their treatment notes.4 [AR at 124-40, 154-206, 218-28, 247-396.] Further, the 20 consultative and nonexamining State Agency physicians found that, at a minimum, plaintiff was 21 able to perform light work. [AR at 141-52, 207-12, 229-34, 238-46.] 22 Neither does plaintiff point to any inadequacy or ambiguity in the record. Plaintiff s quoted 23 assertion that the ALJ incorrectly stated that there is no evidence of radiculopathy or neuropathy 24 . . . (Joint Stip. at 3 (emphasis in original)), appears to be inaccurate. The Court finds no such 25 26 27 28 4 Despite a restriction from heavy lifting and an anticipated three month disability period placed on plaintiff by his treating physician on February 27, 2005, after his aortic valve replacement surgery [AR at 355], no other physician in the record restricted plaintiff from work activities. Indeed, in a treatment note dated April 25, 2005, plaintiff was encouraged to increase physical activity and was found to be capable of returning to work. [AR at 157.] 6 1 statement in the ALJ s decision. Contrary to plaintiff s assertion, the ALJ in the decision 2 specifically considered plaintiff s neuropathy, and concluded that there was no evidence that it is 3 disabling. The ALJ noted the August 13, 2007, EMG/NCS test of plaintiff s right upper extremity 4 performed by Dr. Hsien C. Young, which showed decreased SNAP and CMAP amplitudes, 5 prolonged latencies, and increased late responses in all the nerves tested likely indicating an 6 underlying chronic peripheral sensorimotor neuropathy, such as due to diabetes or other causes 7 (metabolic, toxic, vitamin deficiency). [AR at 395-96.] The ALJ further noted plaintiff s counsel s 8 argument at the hearing that plaintiff has a chronic neuropathy in [his] hands. [AR at 428.] 9 However, the ALJ found that the EMG/NCS test contained no specific findings involving the hands. 10 [AR at 23, 395-96.] In addition, the ALJ found that a right hand series showed only a simple bone 11 cyst in the middle phalanx of plaintiff s third finger, but was otherwise unremarkable. [AR at 23, 12 278.] The ALJ concluded that [t]his condition is apparently not disabling, as subsequent treating 13 notes do not specifically address a condition of the right hand or fingers. [AR at 23, 278.] 14 Moreover, plaintiff s contention that the ALJ s statement that plaintiff s diabetes is controlled with 15 medication and laboratory tests demonstrates his lack of expertise in evaluating medical records 16 fails. Joint Stip. at 8. [AR at 23.] The ALJ s statement in this regard is supported by the record. 17 On May 19, 2005, nonexamining State Agency physician Dr. Norman J. Rubaum completed a 18 Physical Residual Functional Capacity Assessment in which he noted that plaintiff s diabetes 19 mellitus is controlled with oral medication, and that plaintiff shows no evidence of end organ 20 damage from this disease. [AR at 145.] On February 20, 2006, the consultative internal medicine 21 examiner noted that plaintiff reports a history of diabetes and is currently on oral medication, 22 with symptoms of frequent urination, but no thirstiness, numbness or tingling of his feet. [AR at 23 229.] The consultative examiner concluded that plaintiff suffered from diabetes, but had a normal 24 sensory examination. [AR at 233.] On March 13, 2006, another nonexamining State Agency 25 physician noted that plaintiff has hypertension and diabetes mellitus with no evidence of end organ 26 damage. [AR at 239.] 27 Under the circumstances of this case, the ALJ was not required to obtain the testimony of 28 a medical expert. See Orellana v. Astrue, 2008 WL 398834, *11 (E.D. Cal. Feb.12, 2008) (noting 7 1 that the ALJ generally is not obligated to have a medical expert testify at the administrative 2 hearing unless the onset date cannot be ascertained or the expert is required to help develop the 3 record with respect to a claimant s mental impairments ); see also 20 C.F.R. §§ 404.1527(f)(2)(iii), 4 416.927(f)(2)(iii) ( [ALJs] may also ask for and consider opinions from medical experts on the 5 nature and severity of [a claimant s] impairment(s) . . . ) (emphasis added); see, e.g., Madis v. 6 Massanari, 2001 WL 1485699, *1 (5th Cir. Nov. 5, 2001) ( Although an ALJ may ask for the 7 opinion of a medical expert at a hearing, it is not mandatory. ); cf. Armstrong v. Commissioner of 8 Social Sec. Admin., 160 F.3d 587, 589 (9th Cir. 1998) (holding that where record was unclear as 9 to determinative issue, ALJ committed reversible error by deciding issue without consulting a 10 medical expert). The ALJ properly relied on the opinions of the consultative and nonexamining 11 State Agency physicians in determining the severity of plaintiff s impairments and plaintiff s RFC.5 12 See 20 C.F.R. §§ 404.1527(f)(2)(i), 416.927(f)(2)(i) ( State agency medical and psychological 13 consultants and other program physicians and psychologists are highly qualified physicians and 14 psychologists who are also experts in Social Security disability evaluation, and thus an ALJ must 15 consider findings of State agency medical and psychological consultants or other program 16 physicians or psychologists as opinion evidence, except for the ultimate determination about 17 whether [a claimant is] disabled. ); see also Social Security Ruling6 96-6p ( Findings of fact made 18 by State agency medical and psychological consultants and other program physicians and 19 psychologists regarding the nature and severity of an individual s impairment(s) must be treated 20 5 21 22 23 24 25 26 27 28 The ALJ summarized the opinions of these physicians [AR at 21-22], and gave less weight to the March 13, 2006, opinion of the nonexamining State Agency physician, as well as the opinions of the consultative internist, solely with respect to the findings that plaintiff has a medium exertional level. [AR at 23, 207-12, 229-34, 238-45.] The ALJ gave greater weight to the May 19, 2005, opinion of the nonexamining State Agency physician, who found that plaintiff retains the ability to perform light work, as it is more consistent with the record. [AR at 23, 14452.] See Andrews, 53 F.3d at 1041 ( reports of the nonexamining advisor need not be discounted and may serve as substantial evidence when they are supported by other evidence in the record and are consistent with it ). 6 Social Security Rulings ( SSR ) do not have the force of law. Nevertheless, they constitute Social Security Administration interpretations of the statute it administers and of its own regulations, and are given deference unless they are plainly erroneous or inconsistent with the Act or regulations. Han v. Bowen, 882 F.2d 1453, 1457 (9th Cir. 1989). 8 1 as expert opinion evidence of nonexamining sources at the administrative law judge and Appeals 2 Council levels of administrative review. ). As the evidence relied on by the ALJ was neither 3 inadequate or ambiguous, the ALJ did not have a duty to further develop the record, and thus his 4 decision not to obtain the testimony of a medical expert is free from legal error. Remand is not 5 warranted on this issue. 6 7 8 9 B. PLAINTIFF S SUBJECTIVE SYMPTOMS AND CREDIBILITY Plaintiff contends that the ALJ did not properly evaluate plaintiff s subjective symptoms and credibility. Joint Stip. at 8. 10 Whenever an ALJ discredits a claimant s testimony, the ALJ must make explicit credibility 11 findings. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990); see also Dodrill v. Shalala, 12 12 F.3d 915, 918 (9th Cir. 1993) (if the ALJ does not accept a claimant s testimony, he must make 13 specific findings rejecting it). The ALJ can reject a claimant s allegations only upon (1) finding 14 evidence of malingering, or (2) expressing clear and convincing reasons for doing so. Benton v. 15 Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003); see Lester, 81 F.3d at 834 (the ALJ must provide 16 clear and convincing reasons for discrediting a claimant s testimony as to severity of symptoms 17 when there is medical evidence of an underlying impairment). The factors to be considered in 18 weighing a claimant s credibility include: (1) the claimant s reputation for truthfulness; (2) 19 inconsistencies either in the claimant s testimony or between the claimant s testimony and her 20 conduct; (3) the claimant s daily activities; (4) the claimant s work record; and (5) testimony from 21 physicians and third parties concerning the nature, severity, and effect of the symptoms of which 22 the claimant complains. See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002); see also 23 20 C.F.R. §§ 404.1529(c), 416.929(c). It is not sufficient for the ALJ to make only general 24 findings. Dodrill, 12 F.3d at 918. Absent evidence showing that the plaintiff is malingering, the 25 ALJ must state which testimony is not credible and identify the evidence that undermines the 26 claimant s complaints. See id.; see also Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) 27 ( General findings are insufficient; rather, the ALJ must identify what testimony is not credible and 28 what evidence undermines the claimant s complaints. ) (quoting Lester, 81 F.3d at 834). If 9 1 properly supported, the ALJ s credibility determination is entitled to great deference. See Green 2 v. Heckler, 803 F.2d 528, 532 (9th Cir. 1986). 3 As neither party points to any evidence in the record of malingering by plaintiff, the ALJ was 4 required to justify his credibility determination with clear and convincing reasons. See Benton, 331 5 F.3d at 1040. In the decision, the ALJ determined that plaintiff s statements concerning the 6 intensity, persistence, and limiting effects of his subjective symptoms were not entirely credible. 7 [AR at 22.] The ALJ discounted plaintiff s subjective complaints of pain based on the medical 8 evidence and plaintiff s inconsistent statements. [AR at 22-24.] As discussed below, the Court 9 has considered the ALJ s reasons for discounting plaintiff s credibility, and finds that they are clear 10 and convincing. 11 While it cannot provide the only basis to reject a claimant s credibility, the absence of 12 objective medical evidence to support plaintiff s subjective complaints is a factor that an ALJ can 13 consider in discrediting symptom testimony. See Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 14 1991) (an adjudicator may not discredit a claimant s testimony of pain and deny disability benefits 15 solely because the degree of pain alleged by the claimant is not supported by objective medical 16 evidence. ) (emphasis added); see also Light v. Social Security Administration, 119 F.3d 789, 792 17 (9th Cir. 1997) ( because a claimant need not present clinical or diagnostic evidence to support the 18 severity of his pain . . . a finding that the claimant lacks credibility cannot be premised wholly on a 19 lack of medical support for the severity of his pain ); Rollins v. Massanari, 261 F.3d 853, 857 (9th 20 Cir. 2001) (while medical evidence alone cannot discredit testimony as to pain, it is one factor which 21 the ALJ is permitted to consider). Symptoms can sometimes suggest a greater severity of 22 impairment than is demonstrated by objective and medical findings alone . . . [D]irect medical 23 evidence of the cause and effect relationship between the impairment and the degree of claimant s 24 subjective complaints need not be produced . . . The absence of an objective medical basis which 25 supports the degree of severity of subjective complaints alleged is just one factor to be considered 26 in evaluating the credibility of the testimony and complaints. Luna v. Bowen, 834 F.2d 161, 165 27 (10th Cir. 1987) (quoting Polaski v. Heckler, 751 F.2d 943, 948 (8th Cir. 1984), vacated and 28 remanded on other grounds, 476 U.S. 1167, 106 S. Ct. 2885, 90 L. Ed. 2d 974 (1986)). 10 1 Here, after considering the evidence of record, the ALJ concluded that [plaintiff s] credibility 2 is reduced by the lack of objective medical evidence to substantiate disability. [AR at 24.] The 3 ALJ noted that plaintiff successfully recovered from his aortic valve replacement surgery; plaintiff s 4 complaints of chest pain were not cardiac in origin; there are no complaints of foot pain in the 5 record; there is no evidence that plaintiff s bilateral shoulder pain, back problems, or right hand 6 and finger pain are disabling; plaintiff s syncope episode was not permanently disabling; and 7 plaintiff s diabetes is controlled with medication and laboratory tests. [AR at 22-23.] The ALJ s 8 findings are supported by the record. Discharge documents dated February 27, 2005, indicated 9 that, subsequent to the aortic valve replacement surgery, plaintiff was fully ambulatory, with a 10 restriction from heavy lifting; had a good prognosis; and would likely only be disabled for a period 11 of three months. [AR at 355-56.] Further, Dr. Rubaum noted that plaintiff had an aortic valve 12 replacement, and found that [h]e has done well since [that] surgery. [AR at 145.] Indeed, 13 plaintiff testified at the hearing that he believed the aortic valve replacement surgery was 14 successful. [AR at 412.] Furthermore, while plaintiff was hospitalized due to a syncope episode 15 on October 27, 2004, and alleged disability on that date, he was discharged on October 28, 2004, 16 and was found able to return to work on November 4, 2004. [AR at 247-49.] In addition, an 17 internal medicine examination from February, 2006, revealed that plaintiff s chest pain was not 18 cardiac in origin given that it was mostly in the right side, was nonexertional, and lasted only a 19 couple of hours. [AR at 233.] The examination also revealed no evidence of muscle spasm or 20 tenderness and normal range of motion of the cervical and lumbar spines, negative straight-leg- 21 raising test of the lumbar spine, limited range of motion of the shoulders, and only a slightly 22 antalgic gait.7 [AR at 231-33.] The examiner noted that radiographs of the right shoulder were 23 within normal limits.8 [AR at 233, 236.] The examiner diagnosed plaintiff with low back and 24 7 25 26 27 28 The findings of the July 1, 2005, internal medicine examination with respect to the cervical and lumbar spines are the same as the 2006 findings. [AR at 207-12.] 8 The Court notes that an MRI of the right shoulder in December, 2005, showed moderate acromioclavicular joint osteoarthritis. [AR at 384-85.] However, there is no indication that this finding was disabling, and given the subsequent radiographs showing normal findings [AR at 236], it does not appear that plaintiff is disabled based on his right shoulder problem. 11 1 bilateral shoulder strain. [AR at 233.] He concluded that plaintiff can lift and carry 50 pounds 2 occasionally and 25 pounds frequently, stand and walk for six hours in an eight-hour day with 3 normal breaks, sit for six hours in an eight-hour day, and can only occasionally reach in all 4 directions above shoulder level bilaterally. [AR at 233.] Moreover, at the hearing, plaintiff testified 5 that sometimes his feet hurt and he cannot wear shoes or socks [AR at 413-14], but plaintiff has 6 pointed to nothing in the treatment record to indicate that he suffered from foot pain. [AR at 124- 7 40, 154-206, 218-28, 247-396.] Finally, as discussed above, the consultative and nonexamining 8 State Agency physicians opinions suggest that plaintiff s diabetes was controlled with medication. 9 [AR at 145, 229, 233, 239.] See discussion, supra, p. 7. Since, as set forth below, the ALJ has 10 provided an additional reason for rejecting plaintiff s credibility that is clear and convincing, the 11 absence of objective medical evidence is a legitimate basis to also reject his credibility. 12 In weighing plaintiff s credibility, the ALJ may also consider inconsistencies either in his 13 testimony or between his testimony and his conduct. See Light, 119 F.3d at 792; see also 14 Smolen, 80 F.3d at 1283-84 (an ALJ can consider inconsistent statements made by a claimant 15 in evaluating credibility). Here, the ALJ discredited plaintiff s allegations of disabling pain based 16 on his inconsistent statements regarding the side effects of his medications. At the hearing, 17 plaintiff testified that his pain medication makes him sleep most of the time and causes 18 headaches, and that his nerve medication puts him to sleep. [AR at 412, 414.] Plaintiff further 19 testified, however, that he did not talk to his doctor about the headaches caused by his 20 medications. [AR at 414-15.] Notably, there is no indication in the treatment record that plaintiff 21 suffered from side effects from his medications. 22 complained of side effects, namely headaches or sleepiness, at the internal medicine 23 examinations. [AR at 207-12, 229-34.] Indeed, the treatment notes reveal that plaintiff denied 24 headaches. [AR at 352-53, 368.] Thus, the ALJ s conclusion that plaintiff s subjective symptoms 25 were not entirely credible based on his inconsistent statements is entirely supported by the 26 record and is proper. Nor is there any indication that plaintiff 27 While an ALJ may certainly find testimony not credible and disregard it . . ., [courts] cannot 28 affirm such a determination unless it is supported by specific findings and reasoning. Robbins 12 1 v. Social Security Administration, 466 F.3d 880, 884-85 (9th Cir. 2006). Here, the ALJ provided 2 clear and convincing reasons for discounting plaintiff s subjective testimony. His conclusion is 3 entitled to deference. See Morgan v. Commissioner of the Social Security Administration, 169 4 F.3d 595, 599 (9th Cir. 1999) ( questions of credibility and resolutions of conflicts in the testimony 5 are functions solely of the Secretary ); see also Fair, 885 F.2d at 604 (where the ALJ has made 6 specific findings justifying a decision to disbelieve an allegation of excess pain, and those findings 7 are supported by substantial evidence in the record, reviewing courts must not engage in second 8 guessing); see, e.g., Fuller v. Astrue, 2008 WL 906447, *6 (D. Ariz. Mar. 31, 2008) (ALJ s 9 credibility determination is entitled to deference if her reasoning is supported by substantial 10 evidence in the record and is sufficiently specific to allow a reviewing court to conclude the 11 adjudicator rejected the claimant s testimony on permissible grounds and did not arbitrarily 12 discredit a claimant s testimony. ) (citing Bunnell, 947 F.2d at 345). Remand is not warranted 13 on this issue. 14 15 VI. 16 CONCLUSION 17 18 19 20 21 22 IT IS HEREBY ORDERED that: 1. plaintiff s request for reversal, or in the alternative, remand, is denied; and 2. the decision of the Commissioner is affirmed. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. This Memorandum Opinion and Order is not intended for publication, nor is it intended to be included or submitted to any online service such as Westlaw or Lexis. 23 24 25 DATED: July 31, 2009 PAUL L. ABRAMS UNITED STATES MAGISTRATE JUDGE 26 27 28 13

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