Cynthia R. Curry v. Michael J. Astrue, No. 2:2009cv04415 - Document 26 (C.D. Cal. 2010)
Court Description: DECISION AND ORDER by Magistrate Judge Carla Woehrle, IT IS ORDERED that: 1. The decision of the Commissioner is AFFIRMED. 2. This action is DISMISSED WITH PREJUDICE. (SEE ORDER FOR FURTHER DETAILS) (lmh)
Download PDF
<![CDATA[
Cynthia R. Curry v. Michael J. Astrue Doc. 26 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 12 CYNTHIA CURRY, 13 ) ) ) ) ) ) ) ) ) ) ) Plaintiff, v. 14 15 MICHAEL J. ASTRUE, Commissioner, Social Security Administration, 16 Defendant. 17 No. CV 09-4415 CW DECISION AND ORDER 18 19 The parties have consented, under 28 U.S.C. § 636(c), to the 20 jurisdiction of the undersigned magistrate judge. 21 review of the denial of disability benefits. 22 judgment should be granted in favor of defendant, affirming the 23 Commissioner s decision. 24 25 I. Plaintiff seeks The court finds that BACKGROUND Plaintiff Cynthia Curry was born on May 20, 1956, and was fifty- 26 two years old at the time of her administrative hearing. 27 [Administrative Record ( AR ) 84.] 28 with some college education, and past relevant work as a school bus She has a high school education 1 Dockets.Justia.com 1 driver and in-home caretaker. 2 disability on the basis of emphysema, chronic obstructive pulmonary 3 disease ( COPD ), chronic tendinitis, and high blood pressure. 4 95.] 5 II. 6 [AR 104, 394, 440.] Plaintiff alleges [AR PROCEEDINGS IN THIS COURT Plaintiff s complaint was lodged on June 19, 2009, and filed on 7 June 24, 2009. On December 2, 2009, Defendant filed an Answer and 8 Plaintiff s Administrative Record. 9 their Joint Stipulation ( JS ) identifying matters not in dispute, On May 4, 2010, the parties filed 10 issues in dispute, the positions of the parties, and the relief sought 11 by each party. 12 oral argument. 13 This matter has been taken under submission without III. PRIOR ADMINISTRATIVE PROCEEDINGS 14 Plaintiff applied for a period of disability and disability 15 insurance benefits ( DIB ) on May 15, 2001, alleging disability since 16 April 26, 2001. 17 until September 1, 2004; accordingly, she must establish disability on 18 or before this date. 19 initially and on reconsideration, Plaintiff requested an 20 administrative hearing, which was held on April 12, 2002, before 21 Administrative Law Judge James Paisley ( ALJ Paisley ) (the 2002 22 Hearing ). 23 gave testimony. 24 decision issued on September 16, 2002 (the 2002 Decision ). 25 32.] 26 Council, which remanded the case to an administrative law judge on 27 March 18, 2004. 28 administrative law judge to further consider Plaintiff s residual [AR 84.] Plaintiff was insured for DIB purposes After Plaintiff s application was denied [AR 62-65, 390-423.] [AR 390-423.] Plaintiff appeared with counsel and ALJ Paisley denied benefits in a [AR 327- Plaintiff requested review of the decision by the Appeals [AR 348-49.] The Appeals Council ordered the 2 1 functional capacity and if warranted, obtain supplemental evidence 2 from a vocational expert. [AR 349.] 3 On October 12, 2005, a second administrative hearing was held 4 before Administrative Law Judge Edward Schneeberger ( ALJ ) (the 2005 5 Hearing ). [AR 424-69.] 6 testified. [Id.] 7 February 9, 2006 (the 2006 Decision ). 8 Council denied review on August 17, 2006, the ALJ s decision became 9 the Commissioner s final decision. Plaintiff appeared with counsel and The ALJ denied benefits in a decision issued on [AR 21-26.] [AR 7-9.] When the Appeals On October 18, 2006, 10 Plaintiff filed a complaint in the United States District Court, 11 Central District of California (Case No. CV 06-6543 CW), appealing the 12 2006 Decision denying benefits. 13 appeal, Plaintiff filed a duplicate application on February 7, 2007. 14 [AR 497.] 15 Order finding that specific and legitimate reasons were not provided 16 to discount treating medical evidence and remanding the matter for 17 further administrative proceedings (the 2007 Remand Order ). 18 485-94.] 19 remanding the matter to an administrative law judge for further 20 proceedings consistent with the 2007 Remand Order. 21 Appeals Council also directed the administrative law judge to 22 associate both of Plaintiff s claim files and issue a new decision on 23 the associated claims. 24 [AR 487.] During the pendency of her On September 11, 2007, this Court issued a Decision and [AR On September 27, 2007, the Appeals Council issued an order [AR 497-98.] The [Id.] On September 23, 2008, a third administrative hearing was held 25 before the ALJ. [AR 539-65.] 26 testified. 27 473-83.] 28 became the Commissioner s final decision. [Id.] Plaintiff appeared with counsel and On March 19, 2009, the ALJ denied benefits. [AR The Appeals Council denied review and the ALJ s decision 3 IV. 1 2 STANDARD OF REVIEW Under 42 U.S.C. § 405(g), a district court may review the 3 Commissioner s decision to deny benefits. The Commissioner s (or 4 ALJ s) findings and decision should be upheld if they are free of 5 legal error and supported by substantial evidence. 6 court determines that a finding is based on legal error or is not 7 supported by substantial evidence in the record, the court may reject 8 the finding and set aside the decision to deny benefits. 9 v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. However, if the See Aukland 10 Halter, 242 F.3d 1144, 1147 (9th Cir. 2001); Osenbrock v. Apfel, 240 11 F.3d 1157, 1162 (9th Cir. 2001); Tackett v. Apfel, 180 F.3d 1094, 1097 12 (9th Cir. 1999); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); 13 Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Moncada v. 14 Chater, 60 F.3d 521, 523 (9th Cir. 1995) (per curiam). 15 Substantial evidence is more than a scintilla, but less than a Reddick, 157 F.3d at 720. It is relevant evidence 16 preponderance. 17 which a reasonable person might accept as adequate to support a 18 conclusion. 19 a finding, a court must review the administrative record as a whole, 20 weighing both the evidence that supports and the evidence that 21 detracts from the Commissioner s conclusion. 22 can reasonably support either affirming or reversing, the reviewing 23 court may not substitute its judgment for that of the Commissioner. 24 Id. at 720-21; see also Osenbrock, 240 F.3d at 1162. 25 V. Id. To determine whether substantial evidence supports Id. If the evidence DISCUSSION 26 A. 27 To be eligible for disability benefits a claimant must 28 THE FIVE-STEP EVALUATION demonstrate a medically determinable impairment which prevents the 4 1 claimant from engaging in substantial gainful activity and which is 2 expected to result in death or to last for a continuous period of at 3 least twelve months. 4 721; 42 U.S.C. § 423(d)(1)(A). Tackett, 180 F.3d at 1098; Reddick, 157 F.3d at 5 Disability claims are evaluated using a five-step test: 6 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two. Step two: Does the claimant have a severe impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate. Step three: Does the claimant s impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Part 404, Subpart P, Appendix 1? If so, the claimant is automatically determined disabled. If not, proceed to step four. Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 7 8 9 10 11 12 13 14 15 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended 16 April 9, 1996); see also Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 17 S. Ct. 2287, 96 L. Ed. 2d 119 (1987); Tackett, 180 F.3d at 1098-99; 20 18 C.F.R. §§ 404.1520, 416.920. If a claimant is found disabled or 19 not disabled at any step, there is no need to complete further 20 steps. Tackett, 180 F.3d 1098; 20 C.F.R. §§ 404.1520, 416.920. 21 Claimants have the burden of proof at steps one through four, 22 subject to the presumption that Social Security hearings are non23 adversarial, and to the Commissioner s affirmative duty to assist 24 claimants in fully developing the record even if they are represented 25 by counsel. Tackett, 180 F.3d at 1098 and n.3; Smolen, 80 F.3d at 26 1288. If this burden is met, a prima facie case of disability is 27 made, and the burden shifts to the Commissioner (at step five) to 28 5 1 prove that, considering residual functional capacity ( RFC )1, age, 2 education, and work experience, a claimant can perform other work 3 which is available in significant numbers. 4 1100; Reddick, 157 F.3d at 721; 20 C.F.R. §§ 404.1520, 416.920. Tackett, 180 F.3d at 1099- 5 B. THE ALJ S EVALUATION IN PLAINTIFF S CASE 6 Here, the ALJ found that Plaintiff had not engaged in substantial 7 gainful activity from April 26, 2001, the filing date of Plaintiff s 8 application, through September 1, 2004, the date last insured (step 9 one); that Plaintiff had the severe impairments of asthma and sleep 10 apnea (step two); and that Plaintiff did not have an impairment or 11 combination of impairments that met or equaled a listing (step 12 three). 13 enabling her to lift, carry, push or pull no more than ten pounds 14 frequently and twenty pounds occasionally, stand or walk for up to two 15 hours in an eight-hour workday, and sit for up to six hours in an 16 eight-hour workday. 17 than occasional climbing, stooping, bending, crouching, and crawling 18 and needed to avoid even moderate exposure to fumes, odors, dust, 19 gases, and poor ventilation. 20 her past relevant work (step four). 21 from the vocational expert, it was determined that Plaintiff could 22 perform certain jobs existing in significant numbers in the national 23 economy, including telephone quote clerk, charge account clerk, and [AR 475-76.] The ALJ determined that Plaintiff had an RFC [AR 476.] Plaintiff was restricted from more [Id.] Plaintiff was unable to perform [AR 481.] Based on testimony 24 1 25 26 27 28 Residual functional capacity measures what a claimant can still do despite existing exertional (strength-related) and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5-6 (9th Cir. 1989). Nonexertional limitations limit ability to work without directly limiting strength, and include mental, sensory, postural, manipulative, and environmental limitations. Penny v. Sullivan, 2 F.3d 953, 958 (9th Cir. 1993); Cooper, 800 F.2d at 1156 n.7; 20 C.F.R. § 404.1569a(c). 6 1 call out operator (step five). [AR 481-82.] Accordingly, Plaintiff 2 was found not disabled as defined by the Social Security Act. 3 482.] [AR 4 C. 5 The parties Joint Stipulation identifies the following disputed 6 issues: 7 ISSUES IN DISPUTE 1. Whether the ALJ properly considered the opinion of treating 8 9 10 physician, Dr. Brian Korotzer; and 2. Whether the ALJ properly considered Plaintiff s testimony. [JS 3-4.] 11 D. 12 RESIDUAL FUNCTIONAL CAPACITY ISSUE ONE: TREATING PHYSICIAN S OPINION PERTAINING TO 13 14 Background Dr. Brian Korotzer, a pulmonologist, was one of Plaintiff s 15 treating physicians during the period relevant for her disability 16 claim. 17 since June 2001. 18 [See, e.g., AR 200, 302.] Dr. Korotzer treated Plaintiff [AR 373.] Dr. Korotzer did not submit an opinion for consideration by ALJ 19 Paisley prior to the 2002 Decision. Despite not submitting a formal 20 opinion, the opinion of Dr. Cohenzadeh, a State Agency review 21 physician, strongly suggests that it incorporated Dr. Korotzer s 22 opinion. 23 Residual Functional Capacity Assessment. 24 opined that Plaintiff could occasionally lift and/or carry twenty 25 pounds, frequently lift and/or carry ten pounds, stand or walk for at 26 least two hours in an eight-hour workday, and sit for six hours in an 27 eight-hour workday. 28 Cohenzadeh indicated that he reached this RFC after discussion with On September 7, 2001, Dr. Cohenzadeh completed a Physical [AR 289.] [AR 288-95.] Dr. Cohenzadeh As support for his conclusions, Dr. 7 1 Dr. Korotzer and that he gave the opinion of Dr. Korotzer greater 2 weight than that of the consultative examiner. [AR 289, 294.] 3 On September 20, 2005, Dr. Korotzer completed a Pulmonary 4 Residual Functional Capacity Questionnaire ( 2005 Opinion ), which 5 Plaintiff submitted to the ALJ upon remand of the 2002 Decision. 6 373-77.] 7 six hours in an eight-hour workday, stand or walk for less than two 8 hours in an eight-hour work day, and rarely lift more than ten pounds. 9 [AR 375.] [AR Dr. Korotzer opined that Plaintiff could sit for at least Dr. Korotzer wrote that Plaintiff had three to four asthma 10 attacks a year, each of which would incapacitate her for several weeks 11 on average. 12 whether Plaintiff would need unscheduled breaks or how many days 13 Plaintiff would likely be absent from work each month due to her 14 impairments. 15 Cohenzadeh s opinion and rejected Dr. Korotzer s 2005 Opinion. 16 24.] 17 [AR 374.] Dr. Korotzer indicated that he did not know [AR 375-76.] In the 2006 Decision, the ALJ adopted Dr. [AR After remand of the 2006 Decision, Plaintiff submitted another 18 opinion by Dr. Korotzer, dated October 15, 20022 (the 2002 Opinion ). 19 [525-28.] 20 six hours in an eight-hour work day, stand or walk for less than two 21 hours out of an eight-hour workday, occasionally lift no more than ten 22 pounds, and would require several unscheduled breaks. Dr. Korotzer opined that Plaintiff could sit for at least [AR 527.] Dr. 23 24 25 26 27 28 2 There is dispute as to the date of this opinion. Although the date next to the signature appears to be October 15, 2002, Plaintiff argues that it was actually written on October 15, 2007, based on comparisons with other samples of Dr. Korotzer s writing and his admittedly sloppy penmanship. [JS 7, n.1.] However, Plaintiff s counsel stated during the latest administrative hearing that the opinion was completed in 2002. [AR 543 (citing Exhibit B19F (AR 52528)).] In the administrative decision, the ALJ evaluated the opinion as if it was completed in 2002. [AR 480.] 8 1 Korotzer estimated that Plaintiff would likely be absent more than 2 three times a month due to her impairments.3 [AR 528.] The Commissioner s Findings 3 4 In his decision, the ALJ noted the opinions of both Dr. 5 Cohenzadeh and Dr. Korotzer. The ALJ accepted Dr. Cohenzadeh s RFC 6 and rejected Dr. Korotzer s more restrictive limitations. 7 80.] 8 properly consider the opinion of Plaintiff s treating physician, Dr. 9 Korotzer. [JS 4-12.] [AR 479- In the first claim, Plaintiff asserts that the ALJ did not Specifically, Plaintiff argues that the ALJ 10 simply regurgitated his previous decision and failed to articulate 11 specific and legitimate reasons for discounting the opinion of Dr. 12 Korotzer. 13 14 [JS 4.] Discussion Under the Commissioner s regulations, state agency medical 15 physicians and other program physicians are considered highly 16 qualified experts in the area of Social Security disability 17 evaluations, and their evaluations must be considered by the 18 Commissioner as opinion evidence except for the ultimate determination 19 of disability. 20 However, the opinion of a non-examining physician is normally entitled 21 to less deference than that of an examining and treating physician 20 C.F.R. §§ 404.1527(f)(2)(I), 416.927(f)(2)(I). 22 23 24 25 26 27 28 3 Plaintiff has attached a third opinion from Dr. Korotzer, dated July 16, 2008, and asserts that the ALJ failed to consider it. [JS 7, n.2; see Exhibit 1".] Upon review of the evidence, however, it appears that the 2008 evaluation is almost identical to the 2002 and 2005 evaluations, and posits no greater limitations. [Compare JS Exhibit 1 and AR 374-75 and AR 525-28.] Accordingly, the ALJ s failure, if any, to consider this opinion was harmless error. See Stout v. Commissioner, Social Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006)( We have . . . affirmed under the rubric of harmless error where the mistake was nonprejudicial to the claimant or irrelevant to the ALJ s ultimate disability conclusion ). 9 1 precisely because of a lack of opportunity to conduct an independent 2 examination and lack of a treatment relationship with the claimant. 3 Benecke v. Barnhart, 379 F.3d 587, 592 (9th Cir. 2004); Andrews v. 4 Shalala, 53 F.3d 1035, 1040-1041 (9th Cir. 1995) (explaining greater 5 weight given to opinions of treating and examining physicians because 6 they have a greater opportunity to know and observe the patient as an 7 individual). 8 cannot constitute substantial evidence that justifies the rejection of 9 the opinion of either an examining physician or a treating physician. 10 Widmark v. Barnhart, 454 F.3d 1063, 1067 n.2 (9th Cir. 2006); Morgan 11 v. Comm r, 169 F.3d 595, 602 (9th Cir. 1999); see also Erickson v. 12 Shalala, 9 F.3d 813, 818 n. 7 (9th Cir. 1993) ( [T]he non-examining 13 physicians conclusion, with nothing more, does not constitute 14 substantial evidence, particularly in view of the conflicting 15 observations, opinions, and conclusions of an examining 16 physician. )(quoting Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 17 1990)). Standing alone, the opinion of a non-examining physician 18 Here, the Commissioner s decision to reject both Dr. Korotzer s 19 2005 Opinion and 2002 Opinion, specifically the lifting and carrying 20 restriction, was supported by substantial evidence. The 2005 Opinion 21 22 The ALJ provided several specific and legitimate reasons for 23 rejecting the 2005 Opinion and relying on Dr. Cohenzadeh s opinion 24 instead. 25 functional restrictions in his 2005 Opinion than in his discussion The ALJ acknowledged that Dr. Korotzer opined greater 26 27 28 10 1 with Dr. Cohenzadeh in 20014, but determined that the medical record 2 did not indicate a worsening of Plaintiff s impairment from 2001-2005 3 that would support the increased lifting restrictions opined by Dr. 4 Korotzer in 2005.5 5 [AR 479.] First, the ALJ noted that Plaintiff s medical history was 6 inconsistent with Dr. Korotzer s opinion. See Bayliss v. Barnhart, 7 427 F.3d 1211, 1216 (9th Cir. 2005) (finding that inconsistency 8 between an opinion and treatment notes is a specific and legitimate 9 reason for rejection of the opinion). Dr. Korotzer claimed that 10 Plaintiff had three to four asthma attacks a year that would 11 incapacitate her for several weeks at a time. 12 observed, however, that this claim was inconsistent with the medical 13 evidence. 14 such debilitating attacks, the medical records should indicate 15 increased care and medical attention. 16 during the relevant period of claimed disability, Plaintiff s medical 17 records indicate that she had two documented overnight hospital stays, 18 two emergency room visits,6 and otherwise routine care for her asthma. 19 [AR 202, 220, 369, 384, 479.] [AR 374, 479.] The ALJ The ALJ reasonably noted that were Plaintiff to have had [AR 479.] To the contrary, The second emergency room visit in 2004 20 21 4 There is no dispute that Dr. Cohenzadeh spoke with Dr. Korotzer and relied on his opinion to formulate his RFC. 22 5 23 24 25 26 27 28 Although not mentioned by the ALJ, the Court notes that Plaintiff testified at the 2002 Hearing that she can and does lift fifteen pounds. [AR 397.] This statement is inconsistent with Dr. Korotzer s 2005 Opinion. 6 Plaintiff inaccurately asserts that she required emergency care July 16, 2004 due to increase[d] shortness of breath. (JS at 10.) The record indicates, however, that she was directed to the emergency room after a routine visit to check asthma with Dr. Korotzer showed that she had an elevated blood pressure. [AR 384-85.] In fact, the record indicates that she had no shortness of breath. [AR at 384.] 11 1 was unrelated to Plaintiff s asthma. 2 reasonably concluded that this level of care was inconsistent with the 3 frequency and duration of asthma attacks proffered by Dr. Korotzer. 4 [AR 384, 479.] Thus, the ALJ Second, the ALJ noted that Plaintiff received primarily routine 5 care for her asthma. [AR 479.] Plaintiff visited Dr. Korotzer 6 approximately ten times over a four-year period, with decreasing 7 frequency in 2003 and 2004. 8 85.] 9 Plaintiff s asthma was fairly well-controlled and stable. [AR 200, 302, 308-09, 312, 378, 382, 384- During two routine visits in 2003, Dr. Korotzer noted that [AR See Bayliss, 427 F.3d at 1216; see also Lusardi v. Astrue, 10 382-83.] 11 350 Fed. Appx. 169, 172 (9th Cir. 2009) ( Rejecting an opinion on the 12 basis that it is not supported by the doctor's own treatment notes or 13 by clinical findings is permissible. ). 14 only sought non-routine treatment for her asthma on two occasions. 15 [AR 379, 381.] 16 visit to Dr. Korotzer regarding her asthma. 17 reasonably determined that there are no other documented medical 18 visits, whether urgent or routine, concerning Plaintiff s asthma that 19 would suggest a need to increase restrictions from those Dr. Korotzer 20 relayed to Dr. Cohenzadeh in 2001. 21 (requiring the Court to defer to the Commissioner when evidence can 22 reasonably support either affirming or reversing). 23 Indeed, in 2003, Plaintiff Further, in 2004, Plaintiff only made one routine [AR 385.] The ALJ See Reddick, 157 F.3d at 720-21 Finally, the ALJ also relied on Dr. Cohenzadeh s opinion in 24 formulating his RFC. The ALJ determined that Dr. Cohenzadeh s RFC was 25 based on a review of Plaintiff s medical records and a discussion with 26 Dr. Korotzer. 27 Dr. Korotzer s functional limitations, which were supported by the 28 medical evidence. [AR 479.] By all indications, Dr. Cohenzadeh adopted Contrary to Plaintiff s assertion, however, the ALJ 12 1 did not characterize Dr. Cohenzadeh s opinion as Dr. Korotzer s 2 opinion. 3 adopted only the functional limitations opined by Dr. Korotzer and 4 offered his own additional restrictions, including restricting 5 Plaintiff from even moderate exposure to pulmonary irritants. 6 479.] 7 8 9 Rather, the ALJ specifically noted that Dr. Cohenzadeh [AR 2002 Opinion The ALJ s reasons for rejecting the 2005 Opinion are equally applicable to the 2002 Opinion, as these opinions are nearly 10 identical.7 11 disability remains the same. 12 that Dr. Korotzer s opinion failed to account for the ALJ s finding 13 that Plaintiff was limited to a reduced range of sedentary work and 14 precluded from any of her past work, based on her significant 15 breathing condition. 16 Korotzer s opinion accounted for Plaintiff s RFC and less restrictive 17 work demands, the ALJ reasonably discounted it. The medical evidence for the relevant period of claimed Moreover, the ALJ reasonably determined In the absence of any indication that Dr. 18 Accordingly, this claim does not merit reversal of the 19 Commissioner s decision finding that Plaintiff is not disabled. 20 21 22 23 24 25 26 27 28 7 Contrary to Plaintiff s assertion, the ALJ s focus on the fact that the 2002 Opinion was written in 2002 and submitted in 2007 was not an attempt by the ALJ [] to manufacture a gotcha moment. [JS 7, n.1.] A reasonable person looking at the opinion could have assumed it was dated October 15, 2002. Moreover, Plaintiff s counsel presented the opinion as having been written in 2002. [AR 543.] Plaintiff has offered a plausible explanation for the purported misunderstanding, but the explanation is not conclusive. Even assuming that the 2002 Opinion was written in 2007, Plaintiff s date last insured is September 1, 2004. Dr. Korotzer fails to indicate the applicable time period for his opinion. Moreover, had the 2002 Opinion been Dr. Korotzer s Opinion as of 2007, then it is inconsistent with his own treatment notes, which the ALJ found were indicative of only mild pulmonary function tests. [AR 480, 535.] 13 1 E. ISSUE TWO: CREDIBILITY 2 During the hearings, Plaintiff testified that she stopped working 3 because of her asthma. 4 extensive shortness of breath and consequently was exhausted. 5 432, 438.] 6 with nebulizers twice a day and bronchial dialtors, and since 2001, 7 she continues to have good and days. 8 for weeks. 9 [AR 431.] Plaintiff said that she experienced [AR As a result of her asthma, Plaintiff has to be treated [AR 444.] The bad days can last [AR 556.] The ALJ found Plaintiff s testimony concerning the intensity, 10 persistence and limiting effects of her symptoms to be not credible 11 to the extent they are inconsistent with his RFC assessment because 12 the medical record did not support Plaintiff s claims that she was 13 unable to sustain the activities delineated in her RFC. [AR 477.] 14 First, the ALJ noted that Plaintiff had not required any respiratory 15 related emergency care since December 2002 and that three different 16 pulmonary function tests showed that she responded well to an inhaled 17 bronchodilator and had no acute respiratory illness. 18 322-23, 477.] 19 of shortness of breath at rest and upon minimal exertion, a cardio- 20 pulmonary exercise and a cardiologist s recommendations indicated 21 otherwise. 22 October 2001, Plaintiff terminated the test after four minutes due to 23 pain in her legs. 24 slight shortness of breath and no apparent difficulties. 25 Moreover, in January 2003, Plaintiff s cardiologist, with knowledge of 26 Plaintiff s asthma, recommended that she increase her exercise in 27 order to improve her blood pressure. [AR 169, 318, Second, the ALJ found that despite Plaintiff s claims [AR 477.] During a cardio-pulmonary exercise test in [AR 310.] The doctor noted that Plaintiff only had 28 14 [AR 380.] [Id.] Plaintiff asserts 1 that the ALJ s paucity of reasons fails to meet the standard of 2 clear and convincing. 3 [JS 19-20.] Questions of credibility and resolution of conflicts in the 4 testimony are functions solely for the ALJ. Parra v. Astrue, 481 F.3d 5 742, 750 (9th Cir. 2007) (citing Sample v. Schweiker, 694 F.2d 639, 6 642 (9th Cir. 1982)). 7 symptom testimony is credible, the ALJ must engage in a two-step 8 analysis. 9 2007). To determine whether a claimant s subjective Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. First, the ALJ must determine whether the claimant has 10 presented objective medical evidence of an underlying impairment 11 which could reasonably be expected to produce the pain or other 12 symptoms alleged. 13 344 (9th Cir. 1991)). 14 and there is no evidence of malingering, the ALJ can reject the 15 claimant s testimony about the severity of her symptoms only by 16 offering specific, clear and convincing reasons for doing so. 17 1036 (quoting Smolen, 80 F.3d at 1281); see also Parra, 481 F.3d at 18 750; Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001). 19 ALJ must specifically identify the testimony found not credible, the 20 ALJ must explain what evidence undermines the testimony, and the 21 evidence on which the ALJ relies must be substantial. 22 F.3d at 750; Tonapetyan, 242 F.3d at 1148 ( The ALJ must give 23 specific, convincing reasons for rejecting the claimant s subjective 24 statements. ); Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 25 1997). 26 Id. (quoting Bunnell v. Sullivan, 947 F.2d 341, Second, if the claimant meets this first test, Id. at An Parra, 481 Plaintiff argues that the ALJ does not offer a single legally 27 sufficient reason to reject her testimony but neither directly 28 addresses any of the specific reasons provided by the ALJ to discount 15 1 her testimony nor provides any argument for the assertion that the 2 ALJ s credibility evaluation was not legally sufficient. 3 [JS 18.] Contrary to Plaintiff s argument, a review of the record 4 indicates that the ALJ provided clear and convincing reasons under the 5 Ninth Circuit standard. 6 credibility evaluation, including a plaintiff s reputation for 7 truthfulness and inconsistencies between a plaintiff s testimony and 8 conduct. 9 2008); Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). 10 First, the ALJ noted that the objective medical evidence did not 11 support the level of disability alleged by Plaintiff. 12 lack of objective medicine cannot be the sole basis for rejecting a 13 plaintiff s credibility, it is a factor that the ALJ can consider in 14 his credibility analysis. 15 Cir. 2005). 16 inconsistencies between Plaintiff s claims and her doctors findings. 17 Several doctors disagreed that Plaintiff was completely incapacitated 18 and indeed, one recommended exercise. 19 also conservative in nature. 20 conservative treatment is a clear and convincing reason for finding a 21 plaintiff not credible). 22 unsatisfactory effort during one of her tests. 23 Thomas, 278 F.3d at 959 (finding that plaintiff s failure to give 24 maximum effort at a physical evaluation supported the ALJ s finding 25 that plaintiff was not credible). 26 warrant reversal of the Commissioner s decision. 27 // 28 // An ALJ may rely on ordinary techniques of See Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. Although the Burch v. Barnhart, 400 F.3d 676, 681 (9th Here, the ALJ provided concrete examples of [AR 380.] Her treatment was Parra, 481 F.3d at 751 (noting that The ALJ also noted that Plaintiff gave [AR 169, 477.] See Accordingly, this issue does not 16 1 V. ORDERS 2 Accordingly, IT IS ORDERED that: 3 1. The decision of the Commissioner is AFFIRMED. 4 2. This action is DISMISSED WITH PREJUDICE. 5 3. The Clerk of the Court shall serve this Decision and Order 6 and the Judgment herein on all parties or counsel. 7 8 DATED: October 26, 2010 9 10 ______________________________ CARLA M. WOEHRLE United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
