Javier S. Alvarez v. Michael J. Astrue, No. 2:2008cv04429 - Document 20 (C.D. Cal. 2009)

Court Description: MEMORANDUM OPINION by Magistrate Judge Jacqueline Chooljian. The decision of the Commissioner of Social Security is affirmed. See memorandum for details. (hr)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JAVIER ALVAREZ, 12 Plaintiff, 13 14 15 16 17 v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. _________________________ ) Case No. CV 08-4429 JC ) ) ) MEMORANDUM OPINION ) ) ) ) ) ) ) ) 18 19 I. On July 10, 2008, plaintiff Javier Alvarez ( plaintiff ) filed a Complaint 20 21 22 23 seeking review of the Commissioner of Social Security s denial of plaintiff s applications for benefits. The parties have filed a consent to proceed before a United States Magistrate Judge. This matter is before the Court on the parties cross motions for summary 24 25 26 27 28 SUMMARY judgment, respectively ( Plaintiff s Motion ) and ( Defendant s Motion ). The Court has taken both motions under submission without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; July 14, 2008 Case Management Order ¶ 5. /// 1 1 Based on the record as a whole and the applicable law, the decision of the 2 Commissioner is AFFIRMED. The findings of the Administrative Law Judge 3 ( ALJ ) are supported by substantial evidence and are free from material error.1 4 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE 5 DECISION 6 On September 12, 2003, plaintiff filed an application for Disability 7 Insurance Benefits. (Administrative Record ( AR ) 60-62). On July 22, 2004, 8 plaintiff filed an application for Supplemental Security Income benefits. (AR 13). 9 Plaintiff asserted that he became disabled on February 20, 2003, due to a stress 10 related mini stroke, headaches, and pain in his upper and lower back, shoulders, 11 and knees. (AR 60, 91). The ALJ examined the medical record and heard 12 testimony from plaintiff and a vocational expert on April 11, 2007. (AR 348-83). 13 On May 23, 2007, the ALJ determined that plaintiff was not disabled 14 through the date of the decision. (AR 14-19). Specifically, the ALJ found: 15 (1) plaintiff suffered from the following severe impairments: Arthritis of the 16 shoulders and knees and degenerative disc disease of the spine (AR 17); 17 (2) plaintiff s impairments, considered singly or in combination, did not meet or 18 medically equal one of the listed impairments (AR 14, 17); (3) plaintiff could 19 perform a significant range of light work2 (AR 16, 17-18); (4) plaintiff could not 20 perform his past relevant work (AR 14, 18); (5) plaintiff could perform jobs that 21 22 23 24 25 26 27 28 1 The harmless error rule applies to the review of administrative decisions regarding disability. See Batson v. Commissioner of Social Security Administration, 359 F.3d 1190, 1196 (9th Cir. 2004) (applying harmless error standard); see also Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1054-56 (9th Cir. 2006) (discussing contours of application of harmless error standard in social security cases). 2 The ALJ determined that plaintiff: (i) could lift and/or carry up to 20 pounds occasionally and up to 10 pounds frequently; (ii) could stand/walk up to six hours per day; (iii) could sit up to six hours per day; (iv) should perform no at or above shoulder level work; (v) should not perform forceful pushing/pulling; (vi) should not run, jump, crawl; and (vii) should not perform repetitive or prolonged kneeling/squatting/stair climbing. (AR 15, 1718). 2 1 exist in significant numbers in the national economy (AR 14, 18); and 2 (6) plaintiff s allegations regarding his limitations were not totally credible (AR 3 15, 17). 4 On May 28, 2008, the Appeals Council denied plaintiff s application for 5 review. (AR 5-7). 6 III. APPLICABLE LEGAL STANDARDS 7 A. 8 To qualify for disability benefits, a claimant must show that he is unable to Sequential Evaluation Process 9 engage in any substantial gainful activity by reason of a medically determinable 10 physical or mental impairment which can be expected to result in death or which 11 has lasted or can be expected to last for a continuous period of at least twelve 12 months. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing 42 U.S.C. 13 § 423(d)(1)(A)). The impairment must render the claimant incapable of 14 performing the work he previously performed and incapable of performing any 15 other substantial gainful employment that exists in the national economy. Tackett 16 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). 17 In assessing whether a claimant is disabled, an ALJ is to follow a five-step 18 sequential evaluation process: 19 (1) 20 21 Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. (2) Is the claimant s alleged impairment sufficiently severe to limit 22 his ability to work? If not, the claimant is not disabled. If so, 23 proceed to step three. 24 (3) Does the claimant s impairment, or combination of 25 impairments, meet or equal an impairment listed in 20 C.F.R. 26 Part 404, Subpart P, Appendix 1? If so, the claimant is 27 disabled. If not, proceed to step four. 28 /// 3 1 (4) Does the claimant possess the residual functional capacity to 2 perform his past relevant work?3 If so, the claimant is not 3 disabled. If not, proceed to step five. 4 (5) Does the claimant s residual functional capacity, when 5 considered with the claimant s age, education, and work 6 experience, allow him to adjust to other work that exists in 7 significant numbers in the national economy? If so, the 8 claimant is not disabled. If not, the claimant is disabled. 9 Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th 10 Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920). 11 The claimant has the burden of proof at steps one through four, and the 12 Commissioner has the burden of proof at step five. Bustamante v. Massanari, 262 13 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett); see also Burch, 400 F.3d at 679 14 (claimant carries initial burden of proving disability). 15 B. 16 Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of Standard of Review 17 benefits only if it is not supported by substantial evidence or if it is based on legal 18 error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 19 2006) (citing Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 20 (9th Cir. 1995)). Substantial evidence is such relevant evidence as a reasonable 21 mind might accept as adequate to support a conclusion. Richardson v. Perales, 22 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a 23 mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing 24 Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)). 25 26 3 Residual functional capacity is what [one] can still do despite [ones] limitations and 27 represents an assessment based upon all of the relevant evidence. 20 C.F.R. §§ 404.1545(a), 28 416.945(a). 4 1 To determine whether substantial evidence supports a finding, a court must 2 consider the record as a whole, weighing both evidence that supports and 3 evidence that detracts from the [Commissioner s] conclusion. Aukland v. 4 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 5 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming 6 or reversing the ALJ s conclusion, a court may not substitute its judgment for that 7 of the ALJ. Robbins, 466 F.3d at 882 (citing Flaten, 44 F.3d at 1457). 8 IV. DISCUSSION 9 A. 10 11 12 The ALJ Properly Evaluated the Medical Evidence 1. Pertinent Facts a. Medical Opinion Evidence On September 4, 2003, Dr. Andrew Hesseltine, a treating physician, noted 13 that plaintiff experienced tenderness in the cervical and lumbar soft tissue, and 14 decreased range of motion in the cervical and lumbar spine. (AR 190-91). Dr. 15 Hesseltine expressly referred to MRI studies of the back and neck, a nerve 16 conduction test and electrodiagnostic studies. (AR 187, 191). Dr. Hesseltine 17 recommended no functional limitations. (AR 14, 185-92). 18 On August 15, 2004, Dr. Michael Luciano, a consultative examining 19 orthopedist, conducted a complex orthopedic evaluation of plaintiff in connection 20 with plaintiff s worker s compensation claim. (AR 307-41). Dr. Luciano 21 examined plaintiff and plaintiff s medical records, and provided a detailed 22 summary of the records, including multiple MRI studies conducted on June 13, 23 2003, July 11, 2003, and March 23, 2004, and an electrodiagnostic study 24 conducted on December 19, 2003. (AR 307-41). Dr. Luciano noted that plaintiff 25 displayed tenderness to palpation in both shoulders, both knees, and in the cervical 26 and lumbar soft tissue, and had decreased range of motion in his shoulders, 27 cervical spine and lumber spine, and slightly decreased range of motion in flexion, 28 bilateral knees. (AR 335, 337). Dr. Luciano opined that, on a prophylactic basis, 5 1 plaintiff should be precluded from: at or above shoulder level work and forceful 2 pushing/pulling, . . . running, jumping, crawling, and repetitive or prolonged 3 kneeling/squatting/stair climbing, . . . very prolonged upward/downward/sideways 4 gazing utilizing the neck, . . . [and] very heavy lifting and repetitive 5 bending/stooping. (AR 335-36). 6 On October 14, 2004, Dr. Laurence Meltzer, a state consultative examining 7 orthopedist conducted a complete orthopedic evaluation of plaintiff. (AR 1978 201). (AR 197). Dr. Meltzer examined plaintiff and reviewed the objective 9 medical evidence, expressly referencing another doctor s summaries of multiple 10 cervical and lumbar spine MRIs. (AR 197-201). Dr. Meltzer found that plaintiff 11 had minimal objective signs of pathology. Dr. Meltzer noted that plaintiff had 12 decreased range of motion in the cervical spine, minimal decreased range of 13 motion of the lumbar spine due to mild degenerative cervical disc disease of the 14 cervical and lumbar spine, and normal range of motion for upper and lower 15 extremities. (AR 198-201). Dr. Meltzer opined that plaintiff had no functional 16 restrictions in his upper extremities, but was otherwise limited as follows: (1) he 17 could lift and carry 50 pounds occasionally and 25 pounds routinely; (2) he could 18 sit, stand and walk for a total of 8 hours in an 8-hour workday with breaks every 219 3 hours; (3) he should not walk on uneven or irregular terrain; (4) he could 20 frequently climb stairs but not ladders; and (5) he could occasionally stoop, kneel 21 and crouch. AR 201). 22 23 b. The ALJ s Decision In his May 23, 2007, decision, the ALJ summarized the medical opinions 24 and evaluations regarding plaintiff s physical impairments provided by Dr. 25 Hesseltine, Dr. Luciano, and Dr. Meltzer, and considered all . . . evidence of 26 record, which also included statements submitted by plaintiff and his wife, and 27 testimony of plaintiff and the vocational expert at the administrative hearing. (AR 28 14-21). The ALJ referred to plaintiff s complaints of multiple joint pains and 6 1 noted that [o]bjective medical cause for [plaintiff s] pain [was] established by 2 multiple MRIs, which the ALJ summarized. 3 As noted above, the ALJ determined that plaintiff had the residual 4 functional capacity to perform a significant range of light work, i.e., that plaintiff: 5 (i) could lift and/or carry up to 20 pounds occasionally and up to 10 pounds 6 frequently; (ii) could stand/walk up to six hours per day; (iii) could sit up to six 7 hours per day; (iv) should perform no at or above shoulder level work; (v) should 8 not perform forceful pushing/pulling; (vii) should not run, jump, crawl; and 9 (viii) should not perform repetitive or prolonged kneeling/squatting/stair climbing. 10 (AR 15, 17-18). The ALJ stated that his residual functional capacity 11 determination was based on the most restrictive elements of [plaintiff s] 12 examining and treating doctors residual functional capacity opinions. (AR 15). 13 14 2. Analysis Plaintiff contends that the ALJ failed adequately to evaluate the medical 15 evidence, and that, consequently, the ALJ s decision was not supported by 16 substantial evidence. (Plaintiff s Motion at 5-6). Specifically, plaintiff alleges 17 that the ALJ (1) inadequately addressed and/or misstated the results of MRI 18 studies (Plaintiff s Motion at 2, 3-5); (2) inadequately discussed the opinions of 19 Dr. Hesseltine (a treating physician who generated a report dated September 4, 20 2003 [AR 185-92]) and Dr. Luciano (a medical examiner who generated a report 21 dated August 15, 2004 [AR 307-41]) (Plaintiff s Motion at 2); (3) made a residual 22 functional capacity assessment that, contrary to the ALJ s suggestion, was not as 23 restrictive as that called for by Dr. Meltzer (a state agency consultative examiner 24 [AR 197-201]) (Plaintiff s Motion at 3); and (4) ignored the December 19, 2003 25 electrodiagnostic examination report from Dr. Leonard Scott (Plaintiff s Motion 26 at 5). This Court concludes that the ALJ did not materially err in evaluating the 27 record medical evidence. 28 /// 7 1 First, this Court rejects plaintiff s contentions that the ALJ s evaluation of 2 the MRI studies warrants a reversal or remand. Plaintiff essentially complains that 3 the ALJ s evaluation of the MRIs was erroneous because the ALJ s summary of 4 such reports did not cite to the record and misstated the results of the MRIs of 5 plaintiff s cervical and lumbar spines. (Plaintiff s Motion at 2-6). To the extent 6 plaintiff complains about the ALJ s failure to cite to the record when discussing 7 the MRIs, such omission is immaterial. To the extent plaintiff complains that the 8 ALJ s summary of the MRIs was incomplete and misstated the findings therein, 9 the Court likewise finds no material error, particularly when the ALJ s summary is 10 viewed in context. As noted above, the ALJ summarized the MRIs for the purpose 11 of making it clear that there was objective medical evidence of the cause of the 12 pain about which plaintiff complained a threshold determination necessary to an 13 analysis of plaintiff s credibility, as discussed further below. (AR 14). It was 14 unnecessary for the ALJ to recite and discuss every detail regarding the MRIs, 15 particularly where, as here, the medical opinions to which the ALJ did specifically 16 refer and upon which he relied those of Drs. Hesseltine, Luciano and Metzger 17 did consider the MRIs in issue. As noted above, all three such doctors expressly 18 referred to the MRIs, and Dr. Luciano, in particular, detailed the results of each of 19 the MRIs referenced by plaintiff. (AR 187, 191, 197, 314, 315, 320-21). Plaintiff 20 does not dispute that the three medical opinions that form the basis of the ALJ s 21 residual functional capacity assessment are supported by substantial medical 22 evidence. Simply because the ALJ did not himself discuss every MRI report and 23 may not have accurately summarized them in the context of determining that there 24 was objective evidence to support plaintiff s assertion that he suffered from pain, 25 does not mean he failed to consider such evidence. See Black v. Apfel, 143 F.3d 26 383, 386 (8th Cir. 1998) ( An ALJ s failure to cite specific evidence does not 27 indicate that such evidence was not considered[.] ). The ALJ was not required to 28 discuss every piece of evidence in the record. See Howard ex rel. Wolff v. 8 1 Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (citations omitted). In light of the 2 medical doctors expertise, it was wholly appropriate for the ALJ to rely on their 3 assessments of the MRIs and the functional impact of such studies, as opposed to 4 adopting plaintiff s currently asserted lay assessment of such reports. See 5 Gonzalez Perez v. Secretary of Health & Human Services, 812 F.2d 747, 749 (1st 6 Cir. 1987) (ALJ may not substitute his own layman s opinion for the findings and 7 opinion of a physician ); Ferguson v. Schweiker, 765 F.2d 31, 37 (3d Cir. 1985) 8 (ALJ may not substitute his interpretation of laboratory reports for that of a 9 physician); Winters v. Barnhart, 2003 WL 22384784, at *6 (N.D. Cal. Oct.15, 10 2003) ( The ALJ is not allowed to use his own medical judgment in lieu of that of 11 a medical expert. ). 12 Second, this Court rejects plaintiff s contention that the brevity of the ALJ s 13 reference to the opinions of Drs. Hesseltine and Luciano warrants a reversal or 14 remand. The ALJ was not required to discuss at length medical opinion evidence 15 which he did not reject, and which was cumulative. See Howard, 341 F.3d at 16 1012. Even assuming the ALJ erred in not more extensively discussing such 17 doctors opinions, such error was harmless as the ALJ s residual functional 18 capacity assessment was at least as restrictive as recommended by such doctors. 19 In any event, nether such doctor opined that plaintiff could not work for any 20 twelve-month period. See Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993) 21 (in upholding the Commissioner s decision, the Court emphasized: None of the 22 doctors who examined [claimant] expressed the opinion that he was totally 23 disabled ); accord Curry v. Sullivan, 925 F.2d 1127, 1130 n.1 (9th Cir. 1990) 24 (upholding Commissioner and noting that after surgery, no doctor suggested 25 claimant was disabled). 26 Third, the Court likewise finds harmless any error by the ALJ in suggesting 27 that he had adopted the most restrictive elements of the medical opinion 28 evidence when determining plaintiff s residual functional capacity, even though 9 1 Dr. Meltzer said plaintiff should only occasionally stoop, kneel and crouch (AR 2 201), and the ALJ s residual functional capacity determination precluded only 3 repetitive or prolonged kneeling [or] squatting (AR 15). (Plaintiff s Motion at 4 3). As defendant accurately points out, each of the jobs the vocational expert 5 testified plaintiff could perform were at a light exertional level and required no 6 more than occasional stooping, kneeling and crouching. (Defendant s Motion at 7 6) (citing Dictionary of Occupational Titles ( DOT ) §§ 706.687-010 [bench 8 assembler], 727.687-062 [inspector], 920.687-098 [handkerchief folder]).4 9 Finally, the ALJ was not required to explain his decision to exclude any 10 findings contained in the electrodiagnostic examination report prepared by Dr. 11 Leonard Scott. An ALJ must provide an explanation only when he rejects 12 significant probative evidence. See Vincent v. Heckler, 739 F.2d 1393, 1394-95 13 (9th Cir. 1984) (citation omitted). Here, Dr. Scott found that plaintiff had marked 14 sensory radiculopathy of the right sided (L5) peroneal nerve and left (S1) sided 15 sural nerve. Plaintiff fails to demonstrate that such finding constitutes significant 16 or probative evidence that is not already accounted for in the ALJ s residual 17 functional capacity assessment. Moreover, at least Dr. Luciano expressly 18 considered Dr. Scott s December 19, 2003 report in connection with reaching his 19 opinions. (AR 307, 319). The ALJ considered Dr. Luciano s report when 20 determining plaintiff s residual functional capacity, and thus ultimately did not fail 21 to account for Dr. Scott s report. (AR 14-15). 22 In light of the foregoing, a remand or reversal on this basis is not warranted. 23 /// 24 /// 25 /// 26 27 28 4 According to the DOT, the job of bench assembler calls for occasional stooping and crouching, but kneeling is not present, whereas neither stooping, kneeling, nor crouching are present in connection with the jobs of inspector and handkerchief folder. DOT §§ 706.687-010, 727.687-062, 920.687-098. 10 1 B. 2 3 The ALJ Properly Evaluated Plaintiff s Credibility 1. Additional Pertinent Facts In an Exertional Daily Activities Questionnaire dated October 13, 2003, 4 plaintiff stated the following: He suffers from a lot of pain in his upper back, his 5 lower back, his shoulders and his knees. He has headaches. He feels fatigued 6 very easily. He doesn t walk, and when he does go to the store with his wife, he 7 gets very tired. His wife cleans the home. He is only able to drive his car for 30 8 minutes a day. He requires rest periods during the day due to fatigue and strong 9 headaches. (AR 136-38). 10 In a disability report received by the Social Security Administration on 11 November 12, 2004, plaintiff stated that he has numbness and tingling in his arms, 12 and is increasingly more uncomfortable while sitting, especially while driving. 13 (AR 149). 14 In a disability report dated January 25, 2005, plaintiff stated: The pain in 15 his back is so severe that he cannot bend over. His wife must help him dress every 16 day. He is unable to help his wife much anymore with cooking or cleaning. He is 17 unable to do lawn work for more than five minutes at a time. Bending over or 18 leaning over slightly and holding weight causes extreme pain. (AR 146, 153). 19 At the April 11, 2007 hearing, plaintiff testified: He experiences pain in his 20 neck, back and knees. (AR 367, 371). He continued to take Ibuprofen and 21 Vicodin which helped a little with his pain, but caused plaintiff to feel drunk. (AR 22 368). He needs to rest every day, sometimes for several hours. (AR 371-72). 23 In the ALJ s May 23, 2007 decision, the ALJ noted that plaintiff s 24 symptoms included pain in his shoulders, knees and back. (AR 14). The ALJ 25 found that plaintiff s medically determinable impairments could reasonably be 26 expected to produce his symptoms, but determined that plaintiff s subjective 27 complaints were not sufficiently credible to justify any further limitations than 28 /// 11 1 those established by the objective medical record. (AR 15). The ALJ stated two 2 reasons for discrediting plaintiff s subjective complaints. 3 First, the ALJ noted that plaintiff s allegations of total disability [were] 4 inconsistent with his activities as reflected in a Third Party Function Report 5 submitted by plaintiff s wife. (AR 15). Specifically, the ALJ stated: 6 The [plaintiff s] wife, Rosa Alvarez, states that [plaintiff] goes to 7 church daily, visits his father at the hospital daily, reads the Bible 8 daily, plays guitar daily, and does some household chores daily 9 [citation]. He also does light yard work, talks on the phone, and hosts 10 visitors. He can lift objects that weigh up to ten pounds without any 11 problems, and can stand and walk for about ten minutes. He has good 12 social skills [citation]. 13 (AR 15) (citing Exhibit 6E [AR 120-28]). The ALJ noted that plaintiff s wife s 14 statements were mostly credible, but that her estimate of the weight plaintiff could 15 safely lift was not supported by any professional medical opinion. (AR 15). 16 Second, the ALJ pointed out that plaintiff s subjective complaints were not 17 consistent with the treatment he [was receiving]. (AR 15). Specifically, the ALJ 18 noted that even though plaintiff alleged that he was in a disabling level of pain, 19 he treated his pain with physical therapy and one and a half years of chiropractic. 20 He also takes ibuprofen and Tylenol [citation]. (AR 15 (citing AR 197)). The 21 ALJ concluded that [i]t [was] reasonable to assume that if [plaintiff] were as 22 pained as he claimed, he would have told his doctor, and the doctor would have 23 ordered more aggressive treatment. (AR 15). 24 25 2. Pertinent Law An ALJ is not required to believe every allegation of disabling pain or other 26 non-exertional impairment. Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 2007) 27 (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). If the record establishes 28 the existence of a medically determinable impairment that could reasonably give 12 1 rise to symptoms assertedly suffered by a claimant, an ALJ must make a finding as 2 to the credibility of the claimant s statements about the symptoms and their 3 functional effect. Robbins, 466 F.3d 880 at 883 (citations omitted). Where the 4 record includes objective medical evidence that the claimant suffers from an 5 impairment that could reasonably produce the symptoms of which the claimant 6 complains, an adverse credibility finding must be based on clear and convincing 7 reasons. Carmickle v. Commissioner, Social Security Administration, 533 F.3d 8 1155, 1160 (9th Cir. 2008) (citations omitted). The only time this standard does 9 not apply is when there is affirmative evidence of malingering. Id. The ALJ s 10 credibility findings must be sufficiently specific to allow a reviewing court to 11 conclude the ALJ rejected the claimant s testimony on permissible grounds and 12 did not arbitrarily discredit the claimant s testimony. Moisa v. Barnhart, 367 13 F.3d 882, 885 (9th Cir. 2004). 14 To find the claimant not credible, an ALJ must rely either on reasons 15 unrelated to the subjective testimony (e.g., reputation for dishonesty), internal 16 contradictions in the testimony, or conflicts between the claimant s testimony and 17 the claimant s conduct (e.g., daily activities, work record, unexplained or 18 inadequately explained failure to seek treatment or to follow prescribed course of 19 treatment). Orn, 495 F.3d at 636; Robbins, 466 F.3d at 883; Burch, 400 F.3d at 20 680-81; SSR 96-7p. Although an ALJ may not disregard such claimant s 21 testimony solely because it is not substantiated affirmatively by objective medical 22 evidence, the lack of medical evidence is a factor that the ALJ can consider in his 23 credibility assessment. Burch, 400 F.3d at 681. 24 Questions of credibility and resolutions of conflicts in the testimony are 25 functions solely of the Commissioner. Greger v. Barnhart, 464 F.3d 968, 972 (9th 26 Cir. 2006). If the ALJ s interpretation of the claimant s testimony is reasonable 27 and is supported by substantial evidence, it is not the court s role to 28 second-guess it. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). 13 1 2 3. Analysis Plaintiff contends that the ALJ improperly evaluated his credibility. As 3 noted above, the ALJ stated two reasons for discrediting plaintiff s allegations 4 regarding the severity of his pain. (AR 15). The Court concludes that each such 5 reason individually constitutes a clear and convincing reason for rejecting 6 plaintiff s pain testimony, and that each such reason is supported by substantial 7 evidence. Accordingly, a reversal or remand based upon the ALJ s assessment of 8 plaintiff s credibility is not warranted. 9 First, this Court rejects plaintiff s suggestion that the ALJ s credibility 10 determination failed sufficiently to address plaintiff s subjective statements 11 regarding pain and his asserted inability to perform tasks on a sustained basis. 12 The ALJ expressly acknowledged that plaintiff complained of disabling . . . pain 13 and, again, that such pain could reasonably result from plaintiff s medically 14 determinable impairments. (AR 14). As noted above, the ALJ was not required to 15 discuss every piece of cumulative evidence regarding plaintiff s pain. See 16 Howard, 341 F.3d at 1012; Black, 143 F.3d at 386. 17 Second, the ALJ properly discredited plaintiff s allegations of disabling 18 pain as inconsistent with plaintiff s daily activities. See Thomas v. Barnhart, 278 19 F.3d 947, 958-59 (9th Cir. 2002) (inconsistency between the claimant s testimony 20 and the claimant s conduct supported rejection of the claimant s credibility); 21 Verduzco v. Apfel,188 F.3d 1087, 1090 (9th Cir. 1999) (inconsistencies between 22 claimant s testimony and actions cited as a clear and convincing reason for 23 rejecting the claimant s testimony). The ALJ reasonably concluded that a person 24 who was unable to perform even sedentary work would not have been able to 25 sustain the daily schedule maintained by plaintiff, as reflected in his wife s 26 Function Report. (AR 15, 120-24). Although plaintiff suggests that the activities 27 identified in plaintiff s wife s Function Report were simply examples of activities 28 that plaintiff performed on a daily basis (Plaintiff s Motion at 8-9), it was 14 1 reasonable for the ALJ to infer otherwise. The Function Report instructs the 2 person completing the form to state what the claimant does from the time he [] 3 wakes up until going to bed. (AR 120). The ALJ reasonably inferred that the 4 wife s response to such question reflected plaintiff s daily activities. Moreover, 5 plaintiff testified at the hearing that during a typical day he would take his 6 daughter to school in the morning, stop at church every day, and play his guitar 7 every day. (AR 375-76). Plaintiff also stated that he read the Bible a lot, 8 watched television, listened to music, helped with household chores and did light 9 yard work. (AR 375-77). This Court will not second-guess the ALJ s reasonable 10 interpretation of such evidence, even if such evidence could give rise to inferences 11 more favorable to plaintiff.5 12 13 5 Plaintiff also suggests that the ALJ s credibility assessment of plaintiff is flawed because 14 the ALJ did not expressly reference or discredit other statements of plaintiff s wife which corroborate plaintiff. (Plaintiff s Motion at 8-9). This Court disagrees. Lay testimony as to a 15 claimant s symptoms is competent evidence that an ALJ must take into account, unless he 16 expressly determines to disregard such testimony and gives reasons germane to each witness for doing so. Stout, 454 F.3d at 1056 (citations omitted); Lewis v. Apfel, 236 F.3d 503, 511 (9th 17 Cir. 2001). Here, the ALJ satisfied his obligations in this regard. To the extent the ALJ 18 erroneously failed to discuss plaintiff s wife s statement that plaintiff spends all day with her and that she is always helping [plaintiff] (Plaintiff s Motion at 8), any error was harmless as 19 the ALJ expressly noted in his decision that he had considered the lay evidence from plaintiff s wife and because such evidence was cumulative of plaintiff s own statements. See Zerba v. 20 Commissioner of Social Security Administration, 279 Fed. Appx. 438, 440 (9th Cir. 2008) 21 (failure to address husband s cumulative lay testimony harmless error); Rohrer v. Astrue, 279 Fed. Appx. 437, 437 (9th Cir. 2008) (rejecting claimant s contention that ALJ improperly 22 rejected lay witness statement of claimant s girlfriend where such statement cumulative of 23 statements by claimant which ALJ accepted). (The Court may cite unpublished Ninth Circuit opinions issued on or after January 1, 2007. See U.S. Ct. App. 9th Cir. Rule 36-3(b); Fed. R. 24 App. P. 32.1(a)). To the extent plaintiff alleges that the ALJ erroneously ignored the statement 25 that plaintiff is unable to walk more than 10 minutes at a time (Plaintiff s Motion at 9), any such 26 27 28 error was also harmless as such statement was cumulative of plaintiff s own statements and as the ALJ noted with respect to the wife s other statements about plaintiff s exertional abilities, that such lay statement was not supported by any professional medical opinion in the record, and therefore was reasonably rejected without comment. See Vincent, 739 F.2d at 1394-95 (ALJ did not err by omitting from hearing decision discussion of lay testimony that conflicted with (continued...) 15 1 Third, the ALJ reasonably rejected plaintiff s allegations of disabling pain 2 as inconsistent with the level of treatment he received. The ALJ noted that 3 plaintiff had treated his pain with physical and therapy and chiropractic and was 4 taking relatively mild pain relievers (Tylenol) and non-prescription medication 5 (Ibuprofen). (AR 15). It was reasonable for the ALJ to infer that if plaintiff s pain 6 was incapacitating, he would requested and been prescribed stronger medication 7 and more aggressive treatment. In assessing credibility, the ALJ may properly rely 8 on plaintiff s unexplained failure to request treatment consistent with the alleged 9 severity of her symptoms. Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991) 10 (en banc); Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999); see Tidwell v. 11 Apfel, 161 F.3d 599, 602 (9th Cir. 1999) (lack of treatment and reliance upon 12 nonprescription pain medication clear and convincing reasons for partially 13 rejecting [claimant s] pain testimony ).6 14 As the ALJ made specific findings stating clear and convincing reasons 15 supported by substantial evidence for discrediting plaintiff s allegations regarding 16 /// 17 /// 18 19 20 21 22 23 24 25 26 27 28 5 (...continued) the available medical evidence. ) (citation omitted). As the ALJ expressly considered and partially rejected plaintiff s wife s statements based upon germane reasons which are supported by the record, the ALJ did not err in evaluating such lay testimony. 6 Although plaintiff, at the April 11, 2007 hearing, testified that he also took Vicodin, a stronger medication, which helped with the pain, but caused him to feel drunk and weak (AR 367-70), plaintiff s medical records do not reflect that for any period plaintiff was prescribed Vicodin he complained that he suffered from any side effects from the medication, or that the medication was ineffective in alleviating plaintiff s pain. (AR 289, 291-94, 299). The ALJ could reasonably have concluded that plaintiff s medication sufficiently resolved his pain complaints, and that plaintiff s testimony regarding any medication side effects was not credible. This Court may not substitute its own judgment on credibility for that of the ALJ. Similarly, even though Dr. Hesseltine recommended that plaintiff receive an injection for relief of pain (AR 138), plaintiff points to no evidence that he ultimately received such treatment, or if he did, that it was ineffective in alleviating his pain. (AR 191). 16 1 the severity of his pain, the ALJ s credibility determination does not warrant a 2 reversal or remand.7 3 V. CONCLUSION 4 For the foregoing reasons, the decision of the Commissioner of Social 5 Security is affirmed. 6 LET JUDGMENT BE ENTERED ACCORDINGLY. 7 DATED: December 28, 2009 8 _____________/s/____________________ Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 Even if one of the bases upon which the ALJ discredited plaintiff s pain testimony was deficient, any such error was harmless because the remaining reason noted by the ALJ is supported by substantial evidence and the foregoing error does not negate the validity of the ALJ s ultimate credibility conclusion in this case. See Carmickle, 533 F.3d at 1162 (Where some reasons supporting an ALJ s credibility analysis are found invalid, the error is harmless if (1) the remaining reasons provide substantial evidence to support the ALJ s credibility conclusions, and (2) the error does not negate the validity of the ALJ s ultimate credibility conclusion. ) (quoting Batson, 359 F.3d at 1195) (citation and internal quotation marks omitted). 17

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