Larry J Sullivan v. Michael J Astrue, No. 2:2010cv05718 - Document 24 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF COMMISSIONER OF SOCIAL SECURITY by Magistrate Judge John E. McDermott. IT IS HEREBY ORDERED that the decision of the Commissioner of Social Security is AFFIRMED and that this action is dismissed with prejudice. LET JUDGMENT BE ENTERED ACCORDINGLY. (es)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 9 10 11 LARRY J. SULLIVAN, 12 Plaintiff, 13 v. 14 15 16 MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 10-5718-JEM MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF COMMISSIONER OF SOCIAL SECURITY 17 18 PROCEEDINGS 19 On July 30, 2010, Larry J. Sullivan ( Plaintiff or Claimant or Sullivan ) filed a 20 complaint seeking review of the decision by the Commissioner of Social Security 21 ( Commissioner ) denying Plaintiff s application for Social Security Disability Insurance 22 Benefits. The Commissioner filed an Answer on January 19, 2011. On March 23, 2011, the 23 parties filed a Joint Stipulation ( JS ). 24 Pursuant to 28 U.S.C. § 636(c), both parties consented to proceed before the 25 Magistrate Judge. The matter is now ready for decision. After reviewing the pleadings, 26 transcripts, and administrative record ( AR ), the Court concludes that the Commissioner s 27 decision should be affirmed and the case dismissed with prejudice. 28 BACKGROUND 1 2 Plaintiff is a 60 year old male who filed an application for Disability Insurance Benefits 3 on October 5, 2001, alleging severe back pain and mental disorder. (AR 14, 40, 49.) 4 Plaintiff has not engaged in substantial gainful activity since June 3, 2001, the alleged onset 5 date of his disability. (AR 23, 456.) 6 Plaintiff s claim was denied by the Commissioner. (AR 14, 26-30.) Plaintiff filed a 7 timely request for hearing, which was held on December 2, 2002, in Downey, California, 8 before Administrative Law Judge ( ALJ ) William C. Thompson, Jr. (AR 14.) On February 9 28, 2003, the ALJ issued an unfavorable decision. (AR 14-24.) The Appeals Council 10 11 denied Plaintiff s request for review on August 18, 2004. (AR 4.) Claimant filed a subsequent application for benefits on August 15, 2003. (AR 482.) 12 He was determined to be disabled beginning November 1, 2003. (AR 482.) Claimant s 13 neurological condition apparently had deteriorated since the February 28, 2003, ALJ 14 decision. (AR 482.) 15 On February 7, 2006, U.S. Magistrate Judge James W. McMahon issued a 16 Memorandum of Decision overturning the February 28, 2003, ALJ decision for the period 17 from June 3, 2001, to November 1, 2003, remanding the case to the Commissioner for 18 further proceedings regarding Plaintiff s literacy and whether Plaintiff was disabled before 19 November 1, 2003 only. (AR 520.) The Court noted that, if Plaintiff were found to be 20 illiterate, he would be disabled under the Medical-Vocational Guidelines (the Grids ). (AR 21 520.) The District Court did not address any of the other findings in the February 28, 2003, 22 ALJ decision. (AR 486.) 23 On May 16, 2007, the Appeals Council vacated the February 28, 2003, ALJ decision 24 and remanded to an ALJ for further proceedings on the issue of disability prior to November 25 1, 2003. (AR 482-83.) The Appeals Council did not direct the ALJ to explore any other 26 issues. (AR 451.) 27 28 2 1 Subsequently, a hearing was held in Downey, California, on July 6, 2007, before ALJ 2 Edward P. Schneeberger. (AR 451.) Claimant appeared and testified and was represented 3 by counsel. Also appearing was medical expert Dr. Stephen H. Wells. On August 16, 2007, 4 ALJ Schneeberger issued an unfavorable decision. (AR 486-492.) Due to procedural 5 issues (AR 449-451), the August 16, 2007, ALJ decision essentially was reissued on May 6 25, 2010. (AR 449-457.) DISPUTED ISSUES 7 As reflected in the Joint Stipulation, the only disputed issue that Plaintiff raises as a 8 9 ground for reversal is as follows: 1. Whether the ALJ properly found Plaintiff was not disabled prior to November 3, 10 11 12 13 2003? STANDARD OF REVIEW Under 42 U.S.C. § 405(g), this Court reviews the ALJ s decision to determine 14 whether the ALJ s findings are supported by substantial evidence and free of legal error. 15 Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); see also DeLorme v. Sullivan, 924 16 F.2d 841, 846 (9th Cir. 1991) (ALJ s disability determination must be supported by 17 substantial evidence and based on the proper legal standards). 18 Substantial evidence means more than a mere scintilla . . . but less than a 19 preponderance. Saelee v. Chater, 94 F.3d 520, 521-22 (9th Cir. 1996) (quoting Richardson 20 v. Perales, 402 U.S. 389, 401 (1971)). Substantial evidence is such relevant evidence as a 21 reasonable mind might accept as adequate to support a conclusion. Richardson, 402 U.S. 22 at 401 (internal quotations and citation omitted). 23 This Court must review the record as a whole and consider adverse as well as 24 supporting evidence. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). 25 Where evidence is susceptible to more than one rational interpretation, the ALJ s decision 26 must be upheld. Morgan v. Comm r, 169 F.3d 595, 599 (9th Cir. 1999). However, a 27 reviewing court must consider the entire record as a whole and may not affirm simply by 28 3 1 isolating a specific quantum of supporting evidence. Robbins, 466 F.3d at 882 (quoting 2 Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)); see also Orn v. Astrue, 495 F.3d 3 625, 630 (9th Cir. 2007). SEQUENTIAL EVALUATION 4 5 The Social Security Act defines disability as the inability to engage in any substantial 6 gainful activity by reason of any medically determinable physical or mental impairment 7 which can be expected to result in death or . . . can be expected to last for a continuous 8 period of not less than 12 months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The 9 Commissioner has established a five-step sequential process to determine whether a 10 11 claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920. The first step is to determine whether the claimant is presently engaging in 12 substantial gainful activity. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). If the 13 claimant is engaging in substantial gainful activity, disability benefits will be denied. Bowen 14 v. Yuckert, 482 U.S. 137, 140 (1987). Second, the ALJ must determine whether the 15 claimant has a severe impairment or combination of impairments. Parra, 481 F.3d at 746. 16 An impairment is not severe if it does not significantly limit the claimant s ability to work. 17 Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). Third, the ALJ must determine 18 whether the impairment is listed, or equivalent to an impairment listed, in Appendix I of the 19 regulations. Id. If the impediment meets or equals one of the listed impairments, the 20 claimant is presumptively disabled. Bowen v. Yuckert, 482 U.S. at 141. Fourth, the ALJ 21 must determine whether the impairment prevents the claimant from doing past relevant 22 work. Pinto v. Massanari, 249 F.3d 840, 844-45 (9th Cir. 2001). Before making the step 23 four determination, the ALJ first must determine the claimant s residual functional capacity 24 ( RFC ).1 20 C.F.R. § 416.920(e). The RFC must consider all of the claimant s 25 impairments, including those that are not severe. 20 C.F.R. §§ 416.920(e), 416.945(a)(2); 26 1 27 28 Residual functional capacity ( RFC ) is what one can still do despite [his or her] limitations and represents an assessment based on all the relevant evidence. 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). 4 1 Social Security Ruling ( SSR ) 96-8p. If the claimant cannot perform his or her past relevant 2 work or has no past relevant work, the ALJ proceeds to the fifth step and must determine 3 whether the impairment prevents the claimant from performing any other substantial gainful 4 activity. Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000). 5 The claimant bears the burden of proving steps one through four, consistent with the 6 general rule that at all times the burden is on the claimant to establish his or her entitlement 7 to benefits. Parra, 481 F.3d at 746. Once this prima facie case is established by the 8 claimant, the burden shifts to the Commissioner to show that the claimant may perform 9 other gainful activity. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). To 10 support a finding that a claimant is not disabled at step five, the Commissioner must provide 11 evidence demonstrating that other work exists in significant numbers in the national 12 economy that the claimant can do, given his or her RFC, age, education, and work 13 experience. 20 C.F.R. § 416.912(g). If the Commissioner cannot meet this burden, then 14 the claimant is disabled and entitled to benefits. Id. 15 In this case, the February 7, 2006 District Court decision directed the Commissioner 16 to reconsider whether the Plaintiff is disabled beginning with step three of the sequential 17 evaluation. (AR 520.) 18 19 THE ALJ DECISION The May 25, 2010, ALJ decision upheld all findings of the prior ALJ decision except 20 for literacy. (AR 451.) These findings included: (1) a determination at step one of the 21 sequential process that Plaintiff has not engaged in substantial gainful activity since the 22 alleged onset date, (2) a determination at step two that Claimant had the medically 23 determinable severe impairments of degenerative disc disease and depression, and (3) a 24 determination at step three that Plaintiff does not have an impairment or combination of 25 impairments that meets or medically equals an impairment. (AR 456.) 26 The ALJ also incorporated the findings and analysis of the prior ALJ decision 27 regarding Plaintiff s RFC. (AR 453-454.) The prior decision determined that Plaintiff could 28 5 1 perform light unskilled work, which does not involve more than occasional climbing, 2 stooping, crawling, crouching, or kneeling. (AR 454, 456.) As no new medical evidence 3 was submitted for the period prior to November 1, 2003, the ALJ adopted the prior RFC. 4 (AR 454.) The ALJ also adopted the adverse credibility finding contained in the prior ALJ 5 decision. (AR 454.) 6 7 8 The ALJ then found at step four that Plaintiff was unable to perform his past relevant work. (AR 456.) At step five, the ALJ determined that Plaintiff was literate and that, based on an 9 exertional capacity for light work for someone closely approaching advanced age (50 to 54 10 during 2001-2003), Rule 202.10, Table No. 2 of the Grids, would direct a conclusion of not 11 disabled. (AR 456.) Because of Claimant s nonexertional limitations that erode the light 12 work occupational base, the ALJ adopted the opinion of the vocational expert who had 13 testified previously that there were other jobs in the national economy Plaintiff could 14 perform, including assembler, inspector and sorter. (AR 456-457.) 15 16 Thus, the ALJ concluded that Plaintiff was not disabled within the meaning of the Social Security Act at any time prior to November 1, 2003. (AR 457.) DISCUSSION 17 18 A. The ALJ Finding That Plaintiff Is Literate Is Supported By Substantial Evidence 19 The Commissioner bears the burden at step five of the sequential process to prove 20 that Sullivan can perform other work in the national economy, given his RFC, age, 21 education, and work experience. 20 C.F.R. § 416.912(g); Silveira v. Apfel, 204 F.3d 1257, 22 1261 n.14 (9th Cir. 2000). Literacy or education level is relevant only to the step five inquiry 23 and not to existence of a disability; thus, the Commissioner bears the burden of establishing 24 here that Sullivan is literate. Id. In this case, the ALJ decision plainly satisfies that burden. 25 The ALJ decision finding Sullivan can perform other work in the national economy is 26 supported by substantial evidence and free of legal error. 27 28 6 1 2 3 Social Security regulations define illiteracy as the inability to read or write. 20 C.F.R. § 416.964(b)(1). The regulations go on to say: We consider someone illiterate if the person cannot read or write 4 a simple message such as instructions or inventory lists even though the 5 person can sign his or her name. Generally, an illiterate person has had 6 little or no formal schooling. 7 Id. A marginal education, by contrast, means 6th grade level or less, and a limited 8 education means 7th through 11th grade. Id. § 416.964(b)(2) and (b)(3). 9 10 Applying that standard, the ALJ provided this analysis of Plaintiff s literacy: The Administrative Law Judge notes that the District Court 11 concluded that the claimant s level of literacy or lack thereof had not 12 been sufficiently explored in the prior hearing decision. As such, both the 13 District Court and the Appeals Council remanded the case for 14 reconsideration of the claimant s literacy level. At his current hearing, 15 the claimant testified that he was never enrolled in a special education 16 program at school. Rather, the claimant indicated that he stopped his 17 education at the eighth grade in order to go to work. He indicated that he 18 could not actually read the text of the Bible, as he suggested at his prior 19 hearing, but only carried the Bible to church without actually ever reading 20 it. The claimant further testified that his son and daughter-in-law filled 21 out the Social Security forms ahead of time for him. He also denied 22 being able to read street signs, and indicated that he would memorize 23 routes before trying to navigate unfamiliar places. 24 Although the claimant s testimony might suggest that he lacks 25 basic literacy skills, this testimony is completely contradicted by written 26 test scores as well as the testimony of an impartial medical expert. 27 Specifically, Dr. Wells testified that the documentary record contained 28 7 1 various psychological tests, which were self-administered or involved 2 some aspect of sentence completion (Exhibits 18F). The claimant 3 acknowledged to Dr. Wells that he took all of the tests on his own, and 4 that the questions were not read to him. Rather, the claimant asserted 5 that he simply gave random answers to the test questions. Dr. Wells 6 noted that the MMPI and the PAI, which were both administered to the 7 claimant, contain a very large number of questions.2 Dr. Wells further 8 stated that these tests have been carefully developed by psychologists 9 with scales, so as to assess if an individual was randomly answering 10 questions because he could not read or understand the questions. Dr. 11 Wells reported that, in the claimant s case, the test scales did not 12 suggest that the claimant gave random answers. Rather, the test scales 13 showed that the claimant was consistent and did understand the test 14 questions. The claimant and his counsel were unable to provide any 15 adequate explanation for this obvious discrepancy. The Administrative 16 Law Judge further notes that Dr. Wells testified that school records 17 corroborate that the claimant is literate. Additionally, I.Q. scores, which 18 are attributed to the claimant, do not suggest that he is illiterate. To the 19 contrary, the claimant is reported to have a full scale I.Q. in the low 20 average range (Exhibits 10E and 13F/5). As such, Dr. Wells concluded 21 that the claimant was literate, as demonstrated by the psychological 22 testing. The Administrative Law Judge concurs with the opinion of Dr. 23 Wells because the psychological tests are designed to reveal if an 24 individual is randomly giving responses. This was not evident in the 25 26 27 28 2 Dr. Wells indicated that the MMPI contains 567 questions and the PAI contains 344 questions. 8 1 claimant s test scores. As such, the claimant is determined to be literate 2 in English. 3 (AR 454-55.) Accordingly, the ALJ found Plaintiff to be literate in English. (AR 456.) The District Court had observed that Plaintiff had testified that he cannot write a 4 5 simple message (AR 518) and, if true, Plaintiff should be considered illiterate. (AR 518- 6 519.) The District Court further recommended that the ALJ might also consider referring 7 the Plaintiff to an adult literacy expert who could actually test the Plaintiff s literacy. (AR 8 520.) 9 Plaintiff claims that the critical question in the District Court s February 7, 2006, 10 decision was not the ability to read but to write (AR 517-520), and that there was no 11 testimony or ALJ finding on the ability to write. Thus, Plaintiff argues, the medical expert 12 and the ALJ did not comply with the District Court s Order or prove Plaintiff can write. 13 Plaintiff mischaracterizes the District Court s Order somewhat. The District Court 14 decision did not establish that Plaintiff could read, as Plaintiff suggests. It stated only that 15 Plaintiff did not state that he could not read. (AR 518.) The decision specifically instructed 16 the ALJ on remand to explore what Plaintiff meant when he testified he read the Bible. (AR 17 520.) The ALJ was obliged to consider whether Plaintiff could read and write. 18 The ALJ decision satisfactorily determined that Plaintiff could read. Dr. Wells 19 testified extensively that Plaintiff could read. (AR 613-622.) As Dr. Wells observed, 20 Plaintiff s performance on psychological tests demonstrated his ability to read. Id. Dr. Wells 21 testified that the psychological tests were scaled to assess whether someone was 22 answering randomly because he could not read. (AR 454-55.) Plaintiff answered a lengthy 23 series of questions on two tests in a manner that was consistent and demonstrated that he 24 understood the test questions, i.e., he could read. (AR 454-55.) Neither Plaintiff nor his 25 counsel had any explanation for this discrepancy. (AR 454-55.) The psychological tests, 26 Dr. Wells opinion that Plaintiff can read (AR 617), and Plaintiff s eighth grade education and 27 low average IQ score constitute substantial evidence supporting the ALJ s finding that 28 9 1 Plaintiff can read. Plaintiff does not contend on this appeal that he cannot read or that the 2 ALJ did not meet his burden to establish that Plaintiff can read. 3 Plaintiff is correct that Dr. Wells did not testify that Plaintiff can write. The ALJ 4 decision states inaccurately that Dr. Wells concluded that Plaintiff was literate, as 5 demonstrated by the psychological testing. (AR 455.) Dr. Wells only concluded that 6 Plaintiff could read. (AR 617.) He never discussed whether Plaintiff could write. 7 The ALJ decision, however, properly concluded that Plaintiff could write based on 8 other evidence in the record. The ALJ s finding that Plaintiff was literate plainly 9 encompassed both the ability to read and the ability to write. The ALJ found that Plaintiff s 10 testimony that he lacks basic literacy skills is completely contradicted by written test 11 scores. (AR 454 (emphasis added).) More specifically, the ALJ stated that Dr. Wells had 12 testified that the documentary record contained various psychological tests, which the ALJ 13 noted were self-administered or involved some aspect of sentence completion. (AR 454 14 (emphasis added).) 15 Dr. Wells did not discuss sentence completion, but there is no dispute that Plaintiff 16 completed the Forer Structured Sentence Completion Test. (AR 322-25.) This test 17 consisted of 100 partial prompt sentences. Plaintiff provided short completions that, 18 although not elegant, make sense and demonstrate the ability to write short messages. For 19 example, in response to a partial sentence I was not depressed when . . . , he responded, 20 I was mistreated. (AR 322.) Again, to the partial sentence I used to feel I was being held 21 back by . . . , he added, not being smart. (AR 322.) There is little doubt that Plaintiff 22 wrote those answers. 23 Plaintiff suggests that the record is ambiguous whether Plaintiff wrote the answers or 24 someone recorded his answers for him. At the hearing, when asked whether any of the 25 psychological tests required him to complete sentences, Plaintiff responded, I don t 26 remember. I don t recall writing any sentence. (AR 608.) Plaintiff s treating psychiatrist Dr. 27 Thomas A. Curtis, however, makes clear that Plaintiff wrote the answers, The patient also 28 10 1 completed the Forer Structured Sentence Completion Test. (AR 121.) There is more. 2 When asked, [D]id you physically complete the forms in your own handwriting, he replied I 3 believe I did. (AR 606.) Dr. Curtis testified that the tests were self-administered (AR 125), 4 and Plaintiff testified that the questions were not read to him (AR 614) and that he took the 5 tests on the paperwork. (AR 607.) 6 The ALJ s literacy finding, then, was supported by substantial evidence of both 7 Plaintiff s ability to read and his ability to write, as demonstrated by his sentence 8 completions cited by the ALJ. The ALJ s literacy finding is also supported by Plaintiff s 9 ability to read, his eighth grade education, his performance on the tests and his IQ score, all 10 cited by the ALJ. 11 B. The ALJ s Light Work RFC Is Supported By Substantial Evidence 12 The ALJ decision of February 28, 2003, after considering the medical evidence, 13 found that Plaintiff had an RFC for unskilled light work which does not involve more than 14 occasional climbing, stooping, crawling, crouching, or kneeling. (AR 20.) This RFC finding 15 was based in part on an adverse credibility determination as to Plaintiff s pain allegations. 16 (AR 21.) The District Court did not disturb these findings and no new evidence was 17 presented at the July 6, 2007, hearing. (AR 454.) As a result, ALJ Schneeberger adopted 18 the prior RFC and adverse credibility findings of the February 28, 2003, ALJ decision. (AR 19 453-54.) 20 Plaintiff challenges his assessed RFC, claiming that he should have been limited to 21 sedentary work, which would have required a disability finding under the Grids. Plaintiff also 22 challenges the adverse credibility finding. Substantial evidence, however, supports the 23 ALJ s RFC and credibility findings. 24 The February 28, 2003, ALJ decision found that the medical evidence of record did 25 not support more restrictive limitations than those specified in the RFC. (AR 21.) Despite 26 Plaintiff s degenerative disc disease and mental limitations, four state agency physicians 27 28 11 1 determined that Sullivan could do light work. (AR 136-46, 150-52, 158-160; AR 167-68.) 2 The ALJ decision cites these medical opinions. (AR 20.) 3 The opinions of non-examining physicians, however, may serve as substantial 4 evidence only when they are consistent with and supported by other independent evidence 5 in the record. Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995); Morgan, 169 F.3d at 6 600. Accordingly, the ALJ decision reviewed the orthopedic and psychiatric evidence from 7 California workers compensation physicians. (AR 15-17.) The ALJ noted that these 8 opinions were directed at Plaintiff s ability to perform past work rather than other work as 9 defined in the Social Security regulations. (AR 21.) Nonetheless, even though terms of art 10 used in California workers compensation proceedings are not equivalent to Social Security 11 terminology, an ALJ may not ignore a physician s medical opinion from a workers 12 compensation proceeding. Booth v. Barnhart, 181 F. Supp. 2d 1099, 1104-05 (C.D. Cal. 13 2002). The ALJ must translate terms of art contained in workers compensation medical 14 reports and opinions into corresponding Social Security terminology in order to assess that 15 evidence for Social Security disability determinations. Id. at 1106. The ALJ must explain 16 the basis for any material inference the ALJ has drawn from those opinions so that 17 meaningful judicial review is possible. Id. 18 The ALJ properly assessed the workers compensation medical evidence in this 19 case. He discussed the psychiatric evaluation of Dr. Curtis (AR 15), noting that despite 20 findings of depression, Dr. Curtis rated the degree of limitation at no more than moderate. 21 (AR 17.) He also discussed and gave little weight to the neuropsychological examination of 22 Dr. Boone because his opinion of disability was inconsistent with his finding of only mild 23 symptoms. (AR 16.) Plaintiff does not dispute or discuss the ALJ s interpretation of the 24 medical evidence of Plaintiff s mental limitations. 25 The ALJ also properly assessed the orthopedic evidence. He described the findings 26 and opinions of Dr. Sperling, Dr. Ambrosio and Dr. Creamer. (AR 15, 16.) Dr. Ambrosio 27 recommended continued conservative management in the form of medical and physical 28 12 1 therapy (AR 238, 241), an evaluation entirely consistent with the State reviewing 2 physicians assessments. Only Dr. Creamer, however, provided specific work limitations, 3 again in California workers compensation terminology. (AR 21.) Dr. Creamer opined that 4 the patient has a disability precluding substantial work. (AR 21.) He found Plaintiff has 5 lost approximately 75% of his pre-injury capacity for performing such activities as bending, 6 stooping, lifting, pushing, pulling and climbing or other activities involving comparable 7 physical efforts. (AR 221.) He further opined that Plaintiff should not do prolonged 8 uninterrupted standing, and should not do repetitive walking on uneven surfaces. (AR 9 221.) The ALJ concluded that Dr. Creamer s restrictions do not necessarily preclude 10 occasional postural activities as required by light work. (AR 21.) Nor did Dr. Creamer 11 assess whether Plaintiff could perform standing or walking for six hours with normal work 12 breaks. (AR 21.) 13 The ALJ, then, interpreted the workers compensation evidence as consistent with 14 the RFC assessed by State agency reviewing physicians. Plaintiff repeats some of the 15 medical findings previously described in attempting to establish a more restrictive RFC but 16 does not explicitly challenge or even address the ALJ s translation of the workers 17 compensation medical evidence. He does appear to claim that Dr. Sperling opined that 18 Plaintiff has difficulty bending, stooping or squatting. (JS 14.) This is a mischaracterization 19 of Dr. Sperling s report, which plainly was describing Plaintiff s own pain allegations. (AR 20 189.) The ALJ s RFC is supported by the medical evidence. 21 Plaintiff s assertion that he must be limited to sedentary work is based primarily on 22 his excess pain allegations, which the ALJ found not credible. (AR 21, 23.) The ALJ 23 summarized Plaintiff s hearing testimony as follows: 24 25 The claimant testified that he can only sit, stand, or walk for brief periods of five minutes due to pain. He stated that he had to lie down 26 27 28 13 1 during the day, and could not lift more than five pounds. He said that his 2 activities of daily living are severely limited due to pain. 3 4 (AR 21.) The test for deciding whether to accept a claimant s subjective symptom testimony 5 turns on whether the claimant produces medical evidence of an impairment that reasonably 6 could be expected to produce the pain or other symptoms alleged. Bunnell v. Sullivan, 947 7 F.2d 341, 346 (9th Cir. 1991); see also Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 8 1998); Smolen, 80 F.3d at 1281-82 & n.2. The Commissioner may not discredit a claimant s 9 testimony on the severity of symptoms merely because they are unsupported by objective 10 medical evidence. Reddick, 157 F.3d at 722; Bunnell, 947 F.2d at 343, 345. If the ALJ 11 finds the claimant s symptom testimony not credible, the ALJ must specifically make 12 findings which support this conclusion. Bunnell, 947 F.2d at 345. These findings must be 13 sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit 14 [the] claimant s testimony. Thomas, 278 F.3d at 958; see also Rollins v. Massanari, 261 15 F.3d 853, 856-57 (9th Cir. 2001); Bunnell, 947 F.2d at 345-46. Unless there is evidence of 16 malingering, the ALJ can reject the claimant s testimony about the severity of her symptoms 17 only by offering specific, clear and convincing reasons for doing so. Smolen, 80 F.3d at 18 1283-84; see also Reddick, 157 F.3d at 722. The ALJ must identify what testimony is not 19 credible and what evidence discredits the testimony. Reddick, 157 F.3d at 722; Smolen, 80 20 F.3d at 1284. 21 22 23 Substantial evidence supports the original adverse credibility finding. The February 28, 2003, ALJ decision sets forth the following evidence of exaggeration: The claimant has alleged severe pain and limitations, but this is 24 inconsistent with his conservative treatment. He is not on narcotic pain 25 medication. In fact, in April 2002, the claimant stated that he was only 26 taking one aspirin per day, needed to recline only 30-60 minutes per day, 27 and was only sporadically using a back brace for a few hours per week 28 14 1 (Exhibit 12f). He said that he could only sit five minutes at a time, but he 2 also testified that he drove 20 miles daily with therapy. He said he could 3 only lift five pounds, but then said that he could lift a gallon of milk, which 4 weighs approximately 8 pounds. He said that he could not read but then 5 said that he could read the Bible. Moreover, although he stated that his 6 activities of daily living are extremely limited, he can participate in 7 therapy, attend church, use a treadmill, drive daily, and run some 8 errands when necessary. These statements suggest a certain amount of 9 exaggeration of limitations on the part of the claimant. 10 (AR 21.) Plaintiff challenges the ALJ s interpretation of the evidence, but the responsibility 11 for evaluating and interpreting the evidence lies with the ALJ. Moreover, where Plaintiff 12 simply offers a different interpretation of the evidence, the ALJ s assessment must be 13 upheld if rational. Burch v. Barnhart, 400 F.3d 676, 680-81 (9th Cir. 2005); Fair v. Bowen, 14 885 F.2d 597, 603-04 (9th Cir. 1989). 15 The ALJ noted Plaintiff s conservative care, which is a basis for discounting a 16 claimant s testimony about the severity of his impairment. Parra, 481 F.3d at 751. 17 Substantial evidence supports the ALJ s analysis. Plaintiff s orthopedic surgeon Dr. 18 Ambrosio recommended continued conservative management in the form of medication 19 and physical therapy. (AR 238, 241.) Dr. Maze, a consulting examiner, did describe 20 Plaintiff s treatment as aggressive (AR 567), but Dr. Maze did not review the medical 21 records and was relying on Plaintiff s reported history. (AR 564.) The opinion of treating 22 physician Dr. Ambrosio that Plaintiff was receiving conservative treatment is more reliable 23 than a consulting physician s opinion based only on the Claimant s report. Andrews v. 24 Shalala, 53 F.3d 1035, 1040 (9th Cir. 1995). 25 There also were inconsistencies in Plaintiff s statements, exaggerations of his lack of 26 literacy and daily activities such as walking on a treadmill and driving daily that are 27 inconsistent with a limitation to sedentary work. (AR 21.) Although Plaintiff disputes these 28 15 1 findings, the ALJ s interpretation of this evidence was rational. In the Joint Stipulation, 2 Plaintiff did not reply to the Commissioner s analysis of this evidence. Where the record 3 supports more than one rational interpretation of the evidence, the ALJ s decision must be 4 upheld. Burch, Fair, supra. 5 In combination, the factors cited by the ALJ constitute clear and convincing reasons 6 for rejecting Plaintiff s credibility. The ALJ s light work RFC is supported by substantial 7 evidence and free of legal error. ORDER 8 9 10 11 IT IS HEREBY ORDERED that the decision of the Commissioner of Social Security is AFFIRMED and that this action is dismissed with prejudice. LET JUDGMENT BE ENTERED ACCORDINGLY. 12 13 14 DATED: April 19, 2011 /s/ John E. McDermott JOHN E. MCDERMOTT UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16

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