Michael W. Pilkinton v. Michael J. Astrue, No. 2:2009cv05448 - Document 17 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Alicia G. Rosenberg. Plaintiff Michael W. Pilkinton filed a complaint on August 4, 2009. Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before Magistrate Judge Rosenberg on Sept ember 3 and 18, 2009. (Dkt. Nos. 8, 9.) On May 5, 2010, the parties filed a Joint Stipulation (JS) that addressed the disputed issues. The Court has taken the matter under submission without oral argument. Having reviewed the entire file, the Court affirms the decision of the Commissioner. IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. (See Order for details.) (mp)

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Michael W. Pilkinton v. Michael J. Astrue Doc. 17 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MICHAEL W. PILKINTON Plaintiff, 12 v. 13 14 MICHAEL J. ASTRUE, Commissioner of Social Security 15 Defendant. 16 ) ) ) ) ) ) ) ) ) ) ) No. CV 09-5448 AGR MEMORANDUM OPINION AND ORDER Plaintiff Michael W. Pilkinton filed a complaint on August 4, 2009. Pursuant to 28 17 18 U.S.C. § 636(c), the parties consented to proceed before Magistrate Judge Rosenberg 19 on September 3 and 18, 2009. (Dkt. Nos. 8, 9.) On May 5, 2010, the parties filed a 20 Joint Stipulation ( JS ) that addressed the disputed issues. The Court has taken the 21 matter under submission without oral argument. Having reviewed the entire file, the Court affirms the decision of the 22 23 Commissioner. 24 /// 25 /// 26 /// 27 /// 28 /// Dockets.Justia.com 1 I. 2 PROCEDURAL BACKGROUND 3 On June 8, 2005, Pilkinton filed an application for disability insurance benefits. 4 Administrative Record ( AR ) 124-26. Pilkinton alleged a disability onset date of 5 February 1, 2003. AR 124. The application was denied. AR 75-79. On February 22, 6 2006, Pilkinton filed new applications for disability insurance benefits and supplemental 7 security income. AR 18. He alleged a disability onset date of May 10, 2005. Id. The 8 applications were denied initially and on reconsideration. Id. Pilkinton requested a 9 hearing before an Administrative Law Judge ( ALJ ). AR 96. On August 20, 2008, the 10 ALJ conducted a hearing at which a medical expert, a vocational expert ( VE ), and 11 Pilkinton testified. AR 32-69. On February 10, 2009, the ALJ issued a decision denying 12 benefits. AR 18-30. On or about April 17, 2009, Pilkinton requested that the Appeals 13 Council review the decision denying benefits. AR 9. On June 9, 2009, the Appeals 14 Council denied the request for review. AR 1-3. This action followed. 15 II. 16 STANDARD OF REVIEW 17 Pursuant to 42 U.S.C. § 405(g), this Court reviews the Commissioner s decision 18 to deny benefits. The decision will be disturbed only if it is not supported by substantial 19 evidence, or if it is based upon the application of improper legal standards. Moncada v. 20 Chater, 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th 21 Cir. 1992). 22 In this context, substantial evidence means more than a mere scintilla but less 23 than a preponderance it is such relevant evidence that a reasonable mind might 24 accept as adequate to support the conclusion. Moncada, 60 F.3d at 523. In 25 determining whether substantial evidence exists to support the Commissioner s 26 decision, the Court examines the administrative record as a whole, considering adverse 27 as well as supporting evidence. Drouin, 966 F.2d at 1257. Where the evidence is 28 2 1 susceptible to more than one rational interpretation, the Court must defer to the decision 2 of the Commissioner. Moncada, 60 F.3d at 523. 3 III. 4 DISCUSSION 5 A. Disability 6 A person qualifies as disabled and is eligible for benefits, "only if his physical or 7 mental impairment or impairments are of such severity that he is not only unable to do 8 his previous work but cannot, considering his age, education, and work experience, 9 engage in any other kind of substantial gainful work which exists in the national 10 economy." Barnhart v. Thomas, 540 U.S. 20, 21-22, 124 S. Ct. 376, 157 L. Ed. 2d 333 11 (2003) (citation and quotation marks omitted). 12 B. The ALJ s Findings 13 The ALJ found that Pilkinton met the insured status requirements through 14 December 31, 2009. AR 20. Pilkinton has the medically determinable severe 15 impairment of degeneration of the lumbar spine. Id. He has the residual functional 16 capacity ( RFC ) to perform a range of light work. AR 22. He can occasionally lift and 17 carry twenty pounds and frequently lift and carry ten pounds, . . . can stand, walk and sit 18 for a total of six hours in an eight-hour workday, . . . [and] can occasionally stoop and 19 crouch. Id. He is to avoid work [ing] over the shoulder level, climbing ladders, working 20 at unprotected heights, [using] vibrating tools, and [using] hazardous equipment. Id. 21 The ALJ found that Pilkinton is not able to perform any past relevant work as a 22 construction worker. AR 29. There are, however, jobs that exist in significant numbers 23 in the national economy that Pilkinton can perform, such as housekeeper, bench 24 assembler, and small product assembler. AR 29-30. 25 C. Dr. Kiester and Dr. Ryba 26 Pilkinton argues that the ALJ improperly rejected the opinions of Drs. Ryba and 27 Kiester. 28 3 1 An opinion of a treating physician is given more weight than the opinion of non- 2 treating physicians. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). When a treating 3 physician s opinion is contradicted by another doctor, the ALJ may not reject this 4 opinion without providing specific and legitimate reasons supported by substantial 5 evidence in the record. This can be done by setting out a detailed and thorough 6 summary of the facts and conflicting clinical evidence, stating his interpretation thereof, 7 and making findings. Id. at 632 (citations and quotation marks omitted). 8 In general, the opinions of examining physicians are afforded more weight than 9 those of non-examining physicians and the opinions of examining non-treating 10 physicians are afforded less weight than those of treating physicians. Id. at 631. An 11 examining physician's opinion constitutes substantial evidence when it is based on 12 independent clinical findings. Id. When an examining physician's opinion is 13 contradicted, it may be rejected for specific and legitimate reasons that are supported 14 by substantial evidence in the record. Carmickle v. Comm'r of Soc. Sec. Admin., 533 15 F.3d 1155, 1164 (9th Cir. 2008) (citation omitted). An ALJ may reject an uncontradicted 16 examining physician s medical opinion based on clear and convincing reasons. Id. 17 (quoting Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995)). 18 The opinion of a nonexamining physician cannot by itself constitute substantial 19 evidence that justifies the rejection of the opinion of either an examining physician or a 20 treating physician. Ryan v. Comm r, SSA, 528 F.3d 1194, 1202 (9th Cir. 2008) (citation 21 omitted) (emphasis in original). However, a non-examining physician s opinion may 22 serve as substantial evidence when it is supported by other evidence in the record and is 23 consistent with it. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). 24 25 1. Dr. Kiester The ALJ did not mention Dr. Kiester s opinion in his decision. Dr. Kiester is a 26 Clinical Professor at the University of California Irvine ( UCI ) Spine Center. AR 347. 27 Dr. Kiester s opinions are contained in a April 12, 2005 letter to Pilkinton s treating 28 4 1 physician and a June 9, 2005 CalWorks form regarding Physical Capacities. AR 3352 37, 347-48. 3 In the April 12, 2005 letter, which precedes the alleged onset date of May 10, 4 2005, Dr. Kiester assessed Pilkinton s impairments as follows: subjective complaints of 5 L4 radiculitis; L5 weakness bilaterally; spinal instability at L3-4 and L4-5; small recent 6 herniated disc at L4-5; and old resolved herniated disc at L5-S1. AR 348. His physical 7 examination revealed tenderness at the lumbosacral junction down into the sciatic notch, 8 greater on the left than the right; negative straight leg raise; 5/5 strength with heel walk, 9 toe walk; and 3+/5 strength on the right extensor hallucis and 4/5 strength on the left 10 extensor hallucis. Id. Dr. Kiester reviewed an April 7, 2005 MRI indicating herniated 11 discs at L4-5 and L5-S1, and x-rays showing a retrolisthesis at L4-5 and rotational 12 instability between flexion and extension at L3-4. AR 347. Dr. Kiester concluded that 13 stabilization from L3 to L5 with fusion from L3 to S1 with a decompression and possible 14 discectomy and/or posterior lumbar interbody fusion at L4-5 would probably benefit 15 Pilkinton. AR 348. Because Pilkinton had a new job, he did not want to have the 16 surgery during his probation period. Id. Dr. Kiester advised Pilkinton to maintain an 17 exercise program with elevating [your] heart rate at least once a day for 15-20 minutes 18 and avoid heavy loading and flexion of the spine. Id. 19 On the June 9, 2005 CalWorks form, Dr. Kiester opined that Pilkinton could stand, 20 walk or sit zero to two hours in an eight-hour workday; he was restricted in using his feet 21 for repetitive movements due to LS stenosis and instability; he could occasionally 22 lift/carry 30 pounds; he could frequently lift/carry 20 pounds; he could occasionally climb 23 and kneel; and he could never balance, stoop, crouch or crawl. AR 335-36. 24 25 26 27 28 5 The ALJ did not address Dr. Kiester s opinion.1 However, the ALJ did cite 1 2 subsequent UCI records indicating disability would not be extended past March 1, 2006, 3 less than 12 months later. AR 22, 461-64. Any error in failing to mention Dr. Kiester s 4 opinion was harmless. 2. 5 Dr. Ryba Pilkinton argues the ALJ erred in discounting the opinion of Dr. Ryba, an 6 2 7 examining physician in rheumatology consulted through his counsel. As the ALJ noted, 8 on July 3, 2008, Dr. Ryba saw Pilkinton for a rheumatology consultation. AR 27. On 9 August 4, 2008, Dr. Ryba responded to interrogatories from Pilkinton s attorney, 10 completed a rheumatology evaluation, and completed a physical capacity evaluation 11 form. AR 710-739. The ALJ stated that he do[es] not accord great weight to Dr. Ryba s opinions for 12 13 four reasons: (1) the opinions do not concern a continuous period of at least 12 months; 14 (2) the opinions are not supported by the longitudinal objective medical evidence in the 15 record; (3) the opinions are contradicted by the medical expert, Dr. Temple; and (4) Dr. 16 Ryba appeared to be an advocate, and his opinions were not substantiated by definitive 17 abnormalities on a sustained basis. AR 28. Dr. Ryba diagnosed Pilkinton with lumbar and cervical degenerative disc disease, 18 19 cervical and lumbar facet osteoarthritis, lumbar disc herniations, L5-S1 radicular and 20 circumferential annular tear, fibromyalgia, bilateral carpal tunnel syndrome and chronic 21 22 23 24 1 25 26 The Commissioner argues that Dr. Kiester s opinion may be discounted for several reasons. However, a district court is constrained to review the reasons that the ALJ asserts for his or her decision. Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). 27 2 28 Rheumatology is the specialty for fibromyalgia. Benecke v. Barnhart, 379 F.3d 587, 588 (9th Cir. 2004). 6 1 pain. AR 27-28, 728-30. He further opined that Pilkinton met Listing 1.04A due to 3 2 multilevel lumbar degenerative disc disease with lumbar osteoarthritis. AR 732. In the Physical Capacities Evaluation, Dr. Ryba opined that Pilkinton can 3 4 occasionally lift and carry up to ten pounds; can sit for two hours, and stand and walk for 5 one hour in an eight-hour workday; cannot use his hands for repetitive actions; cannot 6 use his feet for repetitive movements; can occasionally reach; cannot bend, squat, crawl, 7 and climb; cannot work in unprotected heights; cannot work around moving machinery; 8 cannot be exposed to marked changes in temperature and humidity; and cannot be 9 exposed to dust, fumes and gases. AR 28, 715. The ALJ noted that Dr. Ryba s opinions regarding Pilkinton s functional limitations 10 11 did not concern a continuous period of at least 12 months. AR 28. To be considered a 12 disabling impairment, the impairment must have lasted, or must be expected to last, a 13 continuous period of at least twelve months, unless it is expected to result in death. 20 14 C.F.R. § 416.909; see also 20 C.F.R. § 416.913(e)(2) (evidence from medical sources 15 must contain detailed information about whether the 12-month duration requirement is 16 met). The ALJ further noted that Dr. Ryba s opinions are unsupported by the objective 17 18 medical evidence as a whole. AR 28. The more consistent an opinion is with the 19 evidence of record, the more weight is given to that opinion. 20 C.F.R. § 404.1527(d)(4). 20 The ALJ examined in detail numerous medical tests and reports in the record indicating 21 22 23 24 25 26 27 28 3 Listing 1.04A states: Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture), resulting in compromise of a nerve root (including the cauda equina) or the spinal cord. With: [¶] A. Evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine). 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04A. 7 1 mild or normal findings that did not support the limitations asserted by Dr. Ryba. AR 222 27, 464, 474, 478, 499-501, 505, 601, 651, 707. 3 The ALJ further noted that Dr. Temple, a non-examining medical expert, strongly 4 disagreed with Dr. Ryba s opinion. AR 28. A non-examining physician s opinion may 5 serve as substantial evidence when it is supported by other evidence in the record and is 6 consistent with it. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). As the ALJ 7 observed, Dr. Temple testified at the hearing that the objective findings in the record did 8 not reflect sustained symptoms or concomitant signs or findings consistent with 9 [Pilkinton s] allegations. AR 28. Dr. Temple specifically disputed Dr. Ryba s conclusions 10 and noted the lack of evidence of nerve root compression, specific percentages of range 11 of motion limits, and indications of atrophy or reflex loss. AR 28, 51-54. Dr. Ryba s 12 examination found [n]o muscle atrophy, which is required for the listing. AR 721; see 13 also AR 499. Dr. Temple s testimony was consistent with evidence in the record. See, 14 e.g., AR 464, 474, 478, 501, 505, 601, 651, 707; see also Magallanes v. Bowen, 881 15 F.2d 747, 751-55 (9th Cir. 1989) (affirming ALJ s decision awarding less weight to 16 treating physician based on testimony of non-examining physician that was consistent 17 with evidence in the record). 18 The ALJ also noted that Dr. Ryba was consulted through counsel in support of 19 [Pilkinton s] claim, his opinions were not substantiated by definitive clinical or laboratory 20 abnormalities on a sustained basis, and his opinions are not supported by ongoing 21 reports of symptoms [of] the level asserted. AR 28. The ALJ may consider the fact that 22 an opinion letter was solicited by claimant s counsel as a factor in weighing the opinions 23 of the physician but may not use that fact as the sole basis for rejecting the opinion. See 24 Saelee v. Chater, 94 F.3d 520, 523 (9th Cir. 1996) (per curiam) (when doctor s opinion is 25 solicited by plaintiff s counsel, that fact may be used in conjunction with other evidence 26 in the record, such as the absence of objective medical basis for the opinion). Here, 27 when weighing Dr. Ryba s opinion, the ALJ not only noted he was consulted for 28 purposes of Pilkinton s claim but also found that his opinions were not substantiated as 8 1 described above. The ALJ cited the lack of clinical findings in support of the limitations 2 asserted by Dr. Ryba. AR 28, 710-32. The ALJ set forth specific and legitimate reasons, supported by substantial 3 4 evidence in the record, for discounting Dr. Ryba s opinion. The ALJ did not err. 5 D. Mental Impairment 6 Pilkinton argues that at step two of the sequential analysis, the ALJ improperly 7 determined that his mental impairment was not severe. JS 19-22; AR 20. Pilkinton also 8 contends that the ALJ failed to properly consider the opinions of two State agency 9 physicians, Drs. Balson and Mallare. JS 19-22; AR 20. At step two, the claimant bears the burden of demonstrating a severe, medically 10 11 determinable impairment that meets the duration requirement. 20 C.F.R. § 12 404.1520(a)(4)(ii); Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S.Ct. 2287, 96 L.Ed.2d 13 119 (1987). To satisfy the duration requirement, the severe impairment must have 14 lasted or be expected to last for a continuous period of not less than 12 months. Id. at 15 140. 16 Your impairment must result from anatomical, physiological, or 17 psychological abnormalities which can be shown by medically acceptable 18 clinical and laboratory diagnostic techniques. A physical or mental 19 impairment must be established by medical evidence consisting of signs, 20 symptoms, and laboratory findings, not only by your statement of 21 symptoms. 22 20 C.F.R. § 404.1508; 20 C.F.R. § 416.908. [T]he impairment must be one that 4 23 significantly limits your physical or mental ability to do basic work activities. Yuckert, 24 25 26 27 28 4 Basic work activities are the abilities and aptitudes necessary to do most jobs, such as (1) physical functions like walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, and handling; (2) the capacity for seeing, hearing, and speaking; (3) understanding, carrying out, and remembering simple instructions; (4) the use of judgment; (5) responding appropriately to supervision, co-workers, and usual work situations; and (6) dealing with changes in a routine work setting. 20 C.F.R. § 9 1 482 U.S. at 154 n. 11 (quoting 20 C.F.R. § 404.1520(c)); Smolen v. Chater, 80 F.3d at 2 1273, 1290 (9th Cir. 1996) ( [A]n impairment is not severe if it does not significantly limit 3 [the claimant's] physical ability to do basic work activities. ) (citation and quotation marks 4 omitted). An impairment or combination of impairments may be found not severe only 5 if the evidence establishes a slight abnormality that has no more than a minimal effect 6 on an individual's ability to work. Webb v. Barnhart, 433 F.3d 683, 686-87 (9th Cir. 7 2005) (citation omitted). Step two is a de minimis screening device [used] to dispose of 8 groundless claims and the ALJ's finding must be clearly established by medical 9 evidence. Id. at 687 (citations and quotation marks omitted). [T]he ALJ must consider 10 the combined effect of all of the claimant's impairments on her ability to function, without 11 regard to whether each alone was sufficiently severe. Smolen, 80 F.3d at 1290. 12 The ALJ considered the four broad functional areas set out in the disability 13 regulations for evaluating mental disorders and determined that Pilkinton s mental 14 impairment was non-severe. AR 21. Properly applying that analytic framework, the ALJ 15 determined that Pilkinton s medically determinable mental impairment causes no more 16 than mild limitation in any of the first three functional areas and no episodes of 17 decompensation which have been of extended duration in the fourth area. Id. (citing 20 18 C.F.R. § 404.1520a(d)(1)). 19 The ALJ cited substantial evidence to support his findings that Pilkinton s 20 limitations in his activities of daily living, social functioning, and concentration, 21 persistence or pace are mild and that he has no episodes of decompensation. AR 2022 21. The ALJ relied on a report by State agency psychologist, Dr. Halimah McGee, who 23 conducted a consultative examination. AR 20-21, 319-24. Dr. McGee indicated that 24 Pilkinton s mood and affect are socially appropriate; his intermediate memory for daily 25 26 27 28 416.921(b); Social Security Ruling ( SSR ) 85-15. (Social security rulings 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).) 10 1 events is intact; his remote memory is grossly intact; and his concentration and attention 2 span are within normal limits. AR 21, 322. Although Dr. McGee found that Pilkinton has 3 mild cognitive limitations regarding his ability to work, including severe deficits in 4 attention and concentration on some types of tasks, Pilkinton is capable of learning a 5 routine, repetitive task. AR 21, 323. Dr. McGee concluded that Pilkinton would be able 6 to function in a regular job setting without additional behavioral controls. AR 21, 323. 7 His reasoning capacities are adequate; he would not create a hazard at work; and he 8 would be able to maintain regular attendance. AR 21, 323. 9 The ALJ also relied on Pilkinton s medical records from the Orange County Health 10 Care Agency. AR 21, 399-448. He acknowledged that the records indicated mental 11 health complaints and assessments but found Pilkinson s pathology to be no more than 12 mild. AR 21. He noted that Pilkinton was advised to obtain employment and was 13 discharged from treatment because he was not cooperative and refused to receive 14 referrals. AR 21, 416, 418. 15 Further, the ALJ cited the conclusions of the State agency reviewing medical 16 consultant, who determined that the evidence did not support a finding of more than mild 17 limitations in any of the key areas of mental functioning. AR 21, 526-36. 18 Pilkinton also argues the ALJ erred by not considering the opinions of reviewing 19 physicians, Drs. Balson and Mallare. Dr. Balson opined that Pilkinton had mild 20 difficulties in maintaining concentration, persistence or pace, and no limitations in the 21 areas of daily living, social functioning, or decompensation. AR 534. Where Dr. Balson 22 noted some moderate limitations, he explained that his assessment was based on a 23 diagnosis of substance abuse. AR 523-25; see 42 U.S.C. § 423(d)(2)(C) ( An individual 24 shall not be considered to be disabled for purposes of [benefits] if alcoholism or drug 25 addiction would . . . be a contributing factor material to the Commissioner s 26 determination that the individual is disabled. ). Although Dr. Mallare opined that 27 Pilkinton was moderately limited in the ability to maintain attention and concentration for 28 extended periods and in the ability to complete a normal workday and workweek without 11 1 interruptions and to perform at a consistent pace, he found no functional limitations that 2 satisfied the functional criterion. AR 308-09, 316. In the four functional areas, he found 3 mild limitations in daily living and social functioning and moderate difficulties in 4 concentration, persistence or pace. AR 316. In addition, he explained that his 5 assessment was based on diagnoses of a learning disorder and substance addiction 6 disorders. AR 312; see 42 U.S.C. § 423(d)(2)(C). The ALJ did not err at step two. 7 E. Credibility 8 Pilkinton claims the ALJ improperly assessed his subjective symptom testimony. 9 JS 26-31. 10 To determine whether a claimant s testimony regarding subjective pain or 11 symptoms is credible, an ALJ must engage in a two-step analysis. Lingenfelter v. 12 Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). 13 First, the ALJ must determine whether the claimant has presented objective 14 medical evidence of an underlying impairment which could reasonably be expected to 15 produce the pain or other symptoms alleged. Id. (quoting Bunnell v. Sullivan, 947 F.2d 16 341, 344 (9th Cir. 1991) (en banc)). The ALJ found that Pilkinton s medically 17 determinable impairment could reasonably be expected to cause the alleged symptoms. 18 AR 28. 19 Second, if the claimant meets this first test, and there is no evidence of 20 malingering, the ALJ can reject the claimant s testimony about the severity of her 21 symptoms only by offering specific, clear and convincing reasons for doing so. 22 Lingenfelter, 504 F.3d at 1036 (citations omitted). In making a credibility determination, 23 the ALJ must specifically identify what testimony is credible and what testimony 24 undermines the claimant s complaints. Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 25 2006) (citation omitted). [T]o discredit a claimant s testimony when a medical 26 impairment has been established, the ALJ must provide specific, cogent reasons for the 27 disbelief. Orn, 495 F.3d at 635 (citations and quotation marks omitted). The ALJ must 28 12 1 cite the reasons why the claimant s testimony is unpersuasive. Id. (citation and 2 quotation marks omitted). In weighing credibility, the ALJ may consider factors including: the nature, 3 4 location, onset, duration, frequency, radiation, and intensity of any pain; precipitating and 5 aggravating factors (e.g., movement, activity, environmental conditions); type, dosage, 6 effectiveness, and adverse side effects of any pain medication; treatment, other than 7 medication, for relief of pain; functional restrictions; the claimant s daily activities; and 8 ordinary techniques of credibility evaluation. Bunnell, 947 F.2d at 346 (citing SSR 889 13, quotation marks omitted). The ALJ may consider: (a) inconsistencies or 10 discrepancies in a claimant s statements; (b) inconsistencies between a claimant s 11 statements and activities; (c) exaggerated complaints; and (d) an unexplained failure to 12 seek treatment. Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). The ALJ made no finding of malingering. The ALJ determined that Pilkinton s 13 14 subjective complaints about the intensity, persistence and limiting effects of his alleged 15 symptoms are not credible to the extent they are inconsistent with the [RFC]. AR 2816 29. In support of his credibility determination, the ALJ cited Pilkinton s conservative 17 treatment and lack of objective medical evidence supporting Pilkinton s symptoms. AR 18 29. [E]vidence of conservative treatment is sufficient to discount a claimant s 19 20 testimony regarding severity of an impairment. Parra v. Astrue, 481 F.3d 742, 751 (9th 21 Cir. 2007) (citation omitted). The ALJ noted that Pilkinton s treatment was based on a 5 22 continuing medication regimen and routine office visits. AR 29. Although Dr. Kiester 23 presented spinal fusion as an option in April 2005, Pilkinton declined surgery at that 24 time. AR 347-48. He was advised to maintain an exercise program and to avoid heavy 25 loading and flexion of the spine. AR 348. In March 2007, Dr. Bhatia found Pilkinton s 26 27 28 5 Impairments that can be controlled effectively with medication are not considered disabling. See Warre v. Comm r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006). 13 6 1 degenerative disc disease to be mild or moderate. AR 601. He did not believe that 2 Pilkinton was a surgical candidate and referred him to a pain management clinic. Id. 3 Pilkinton underwent a series of lumbar epidural steroid injections, having had good relief 4 of pain after the first lumbar epidural steroid injection. AR 742, 744. The pain 5 management clinic recommended continuing his medications and daily exercise. AR 6 742, 744. By April 2009, Pilkinton s pain intensity had decreased and he was able to get 7 a job doing maintenance work. AR 748. Although not sufficient alone, inconsistency with the objective medical record is a 8 9 factor that may be considered in assessing credibility. Burch v. Barnhart, 400 F.3d 676, 10 681 (9th Cir. 2005). The ALJ noted that there were no significant sustained imaging 11 and/or x-ray abnormalities or symptoms incompatible with the [RFC], and there were 12 inconsistencies between Pilkinton s allegations and the medical evidence. AR 29. For 13 example, the ALJ noted that on July 17, 2006, a physician s assistant wrote that he had 14 discussed [Pilkinton s] case briefly today with Dr. Raczka, and he feels that if the tests 15 keep coming back normal, including the MRI that was done from a previous visit that 16 shows essentially very mild degenerative disc disease with no central or foraminal 17 stenosis, that he may have to be referred back . . . for follow-up primary care only and 18 discharged from orthopaedic service. AR 23, 489. The ALJ further noted that Dr. 19 Conaty, a consultative examining orthopedic physician, found no evidence of scoliosis; 20 normal extremity alignment; some difficulty with weight bearing gait, walking on toes, 21 and walking on heels; no evidence of muscle spasm, swelling, or masses; minimal 22 tenderness in paraspinal muscles; and no tenderness in the muscles throughout the 23 thighs and/or legs. AR 24, 500. Dr. Conaty stated that Pilkinton has some significant 24 subjective complaints with minimal objective findings, and concluded that Pilkinton 25 could occasionally lift and carry fifty pounds and frequently lift and carry twenty-five 26 27 28 6 Dr. Kiester apparently referred Pilkinton to Dr. Bhatia after Pilkinton got a lawyer against [Dr. Kiester], who changed his mind about recommending surgery for Pilkinton. AR 637. 14 1 pounds; and he could stand, walk and sit for a total of six hours in an eight-hour 2 workday. AR 24, 501. The ALJ also noted that on March 15, 2007, Dr. Bhatia examined 3 radiographs of Pilkinton s lumbar spine, which showed only minimal degenerative disc 4 disease at L4-5 and L5-S1 and no evidence of spinal stenosis. AR 25, 600-02. 5 The ALJ s credibility finding is supported by substantial evidence. If the ALJ s 6 credibility finding is supported by substantial evidence in the record, we may not engage 7 in second-guessing. Thomas, 278 F.3d at 959 (citing Morgan v. Comm r of the Soc. 8 Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999)). 9 IV. 10 ORDER 11 IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. 12 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order 13 and the Judgment herein on all parties or their counsel. 14 15 DATED: March 31, 2011 ALICIA G. ROSENBERG United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 15

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