Annette Guzman v. Michael J Astrue, No. 2:2011cv04196 - Document 20 (C.D. Cal. 2011)

Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. Consistent with the foregoing, and pursuant to sentence four of 42 U.S.C. sec 405(g), IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner. (See Order for further details) (vm)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ANNETTE GUZMAN, 12 13 14 15 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) NO. CV 11-04196 SS MEMORANDUM DECISION AND ORDER 17 18 I. 19 INTRODUCTION 20 21 Annette Guzman ( Plaintiff ) brings this action seeking to overturn 22 the decision of the Commissioner of the Social Security Administration 23 (hereinafter 24 applications for Social Security Income benefits ( SSI ) and Disability 25 Insurance Benefits ( DIB ). 26 complaint (the Complaint ) commencing the instant action. 27 3, 2011, the Commissioner filed an Answer to the Complaint (the 28 Answer ) and a certified administrative record ( AR ). the Commissioner or the Agency ) denying her On May 26, 2011, Plaintiff filed a On October Plaintiff and 1 the Commissioner each filed a memorandum of points and authorities 2 ( Plaintiff s Memo. and Commissioner s Memo. ) in support of their 3 positions on November 2, 2011 and December 5, 2011 respectively. 4 December 20, 2011, Plaintiff filed a Reply to the Commissioner s 5 Memorandum. 6 the jurisdiction of the undersigned United States Magistrate Judge. For 7 the reasons stated below, the decision of the Agency is AFFIRMED. On The parties consented, pursuant to 28 U.S.C. § 636(c), to 8 9 II. 10 PROCEDURAL HISTORY 11 12 Plaintiff applied for SSI on January 28, 2008 and DIB on January 13 29, 2008, alleging a disability onset date of January 1, 2007. (AR 142- 14 53). 15 on May 9, 2008, (AR 106-110), and denied reconsideration on September 16 26, 2008. (AR 113-17). Plaintiff then requested a hearing, (AR 10-11), 17 which was held on November 4, 2009 before an Administrative Law Judge 18 ( ALJ ), 19 testified. 20 (AR 12-23). 21 of the ALJ s decision on March 16, 2011, (AR 1-5), making the ALJ s 22 decision the final decision of the Agency. 23 instant action. 24 \\ 25 \\ 26 \\ 27 \\ 28 \\ The Agency denied Plaintiff s initial application for SSI and DIB (AR 27-64), (AR 35-56). where Plaintiff appeared with counsel and On December 21, 2009, the ALJ denied benefits. The Appeals Council denied Plaintiff s request for review 2 Plaintiff then filed the 1 III. 2 FACTUAL BACKGROUND 3 4 Plaintiff was 47 years old at the time of her alleged disability 5 onset date. (AR 116). She can speak, understand, and write in English. 6 (AR 7 neuropathy, arthritis, hypertension, high cholesterol, back problems, 8 pain on knees. 9 cashier, flower deliverer, interpreter and nurse assistant. 171). Plaintiff s (AR 172). claimed disability stems from diabetes, Plaintiff s past occupations have included (AR 173). 10 Plaintiff worked as an interpreter for AT&T, which included serving as 11 a night supervisor. 12 service for Great Western Bank. 13 additional work experience as a caregiver for the elderly. She also worked as an interpreter in customer (AR 40-43, 44, 45, 57). She has (AR 45). 14 15 A. Plaintiff s Medical History 16 17 The majority of Plaintiff s medical records derive from visits to 18 Dr. Santos Ricardo Carranza at Kaiser Permanente between December 2006 19 and May 2009. 20 diabetes mellitus and high blood pressure more than ten years ago, 21 although both conditions are controlled with medication. 22 Plaintiff also has a history of obesity, leg and back problems. (AR 218-323, 336-484). Plaintiff was diagnosed with (AR 324). (Id.) 23 24 On December 15, 2006, Dr. Matthew Marks Schniedermann examined 25 Plaintiff and observed: "Depression mostly ok off rx (advised to return 26 to psych if needed)." 27 problems are "stable on medical management." (AR 315). He further observed that her medical 28 3 (AR 316). 1 On October 11, 2007, it was noted that Plaintiff had diabetes that 2 was uncontrolled with complication. (AR 291). Dr. Carranza adjusted 3 Plaintiff s medication for her diabetes and advised her that she may 4 need insulin and that she needs to exercise regularly and lose weight. 5 (Id.). Dr. Carranza prescribed Cozaar for her hypertension. (Id.). 6 7 On November 12, 2007, it was noted that Plaintiff s diabetes was 8 uncontrolled with complication. 9 that Plaintiff continue her current regimen and he would see her in 10 one month. (AR 278). Dr. Carranza recommended (Id.) 11 12 On December 12, 2007, it was noted that Plaintiff had malaise and 13 fatigue, diabetes that was uncontrolled with complication and that she 14 was a smoker. 15 that 16 [decrease] due to hypoglycemia. . . will cont monitor for now. her (AR 258). medication be For her diabetes, Dr. Carranza recommended decreased and if sugars still low then (Id.) 17 18 On January 7, 2008, it was noted that Plaintiff s diabetes was 19 likely better controlled with recent change in diet and her malaise 20 and fatigue were resolving. (AR 236). As for her smoking, the doctor 21 noted: "continue to decrease amount. 22 needs to completely quit. 23 take." (AR 236). 24 better" and that Plaintiff agreed to decrease her tobacco use. 25 368). adviced (sic) that eventually previously prescribed welbutrin but did not The doctor observed that Plaintiff "overall feels (AR 26 27 On March 12, 2008, the records reflect observations regarding 28 constipation, obesity, diabetic microalbuminuria, cellulitis and that 4 1 Plaintiff was a smoker. 2 Plaintiff s diabetes was controlled, and that she should continue her 3 current medication regimen. 4 Plaintiff lost a significant amount of weight through diet and 5 exercise and had better mobility. (AR 354). 6 Plaintiff to weight 7 changes. (AR 355). 8 controlled. continue (AR her 354-56). (AR 355). current It was also noted that The doctor observed that The doctor encouraged loss/exercise/lifestyle Plaintiff s hypertension was also noted as being (Id.). 9 10 On November 21, 2008, it was noted that Plaintiff had controlled 11 diabetes, essential hypertension, shoulder region pain and low back 12 pain. 13 Dr. Carranza increased her medication Cozaar. 14 and back pain, Plaintiff was prescribed Naproxen. (AR 391). With respect to Plaintiff s essential hypertension, (Id.). For her shoulder (AR 391). 15 16 On December 26, 2008, Dr. Carranza noted that Plaintiff was gaining 17 weight and eating more. (AR 420). Plaintiff reported that she was 18 aware that this is really bad for her diabetes. 19 increased her diabetes medication and emphasized that Plaintiff needed 20 to concentrate on losing weight. (Id.) Dr. Carranza (Id.). 21 22 On January 5, 2009, Plaintiff was diagnosed with impingement 23 syndrome of the shoulder. (AR 408). She was given a shoulder cortisone 24 injection, which helped. (AR 412). 25 26 On January 6, 2009, Plaintiff presented with back pain. (AR 411). 27 Plaintiff reported that her blood pressure had been high, she had not 28 really [been] following [her] diet as [she] should, and that her 5 1 sugars are better than before with addition of glyburide. (AR 412). 2 Dr. Carranza ordered an MRI of her lumbar spine for her low back pain. 3 (AR 413). He further noted that her diabetes was controlled. (Id.). 4 5 On March 3, 2009, Plaintiff underwent an MRI of her lumbar spine 6 without contrast. 7 (AR 387-88). As to Plaintiff s L4-5, the MRI revealed a: 8 9 3 mm degenerative anterior spondylolisthesis of L4 with 10 respect to L5. 11 bilateral synovial cysts. 12 measures 7.3 mm and extends into the left lateral recess 13 impinging the left L5 nerve root. 14 cyst extends into the right postcrolateral canal without 15 obvious lateral recess stenosis, measuring 7.7 mm. 16 combination 17 arthropathy, and synovial cyst results in overall moderately 18 severe canal stenosis. of There is bilateral facet arthropathy and findings The left-sided synovial cyst of the The right-sided synovial anterolisthesis, The facet The neural foramina are patent. 19 20 (AR 388). 21 22 On March 26, 2009, Dr. Carranza noted that Plaintiff s MRI revealed 23 spinal stenosis. (AR 456). He also observed that Plaintiff had 24 appointment with pmr. Did not follow up. (Id.). Plaintiff s physical 25 examination revealed mostly normal findings. 26 musculoskeletal exam reveal no edema. 27 that Plaintiff s diabetes was controlled and for her hypertension, he 28 6 (Id.). (AR 456). Plaintiff s The doctor also noted 1 prescribed Cozaar and Lisinopril. (AR 457). The doctor again counseled 2 Plaintiff to stop smoking. (AR 456). 3 4 On May 7, 2009, Plaintiff presented with chronic low back pain. 5 (AR 452). The physical examination notes state Patient in no acute 6 distress. Heavyset. 7 asymmetry. 8 Range of motion is limited with pain by 20% flexion extension bilateral 9 lateral bending. Lumbar spine: Inspection shows no misalignment/ There is no spine tenderness to palpation in the spine. Assessment of stability: normal. Straight leg raise 10 is negative bilaterally. Patrick s is negative with painless passive 11 hip range of motion. 12 was able to walk on her toes and heels. 13 Plaintiff was given 5 trigger point injections and was encouraged to 14 lose weight and do water exercise. (AR 453). Plaintiff s gait was intact and she (Id.). For her back pain, (Id.). 15 16 B. State Agency Physicians Opinions 17 18 On May 8, 2008, after reviewing Plaintiff s medical file, state 19 agency physician Dr. Cornelius C. Scott assessed Plaintiff as being able 20 to lift twenty pounds occasionally and ten pounds frequently, stand 21 and/or walk for at least two hours, sit about six hours, unlimited push 22 and/or 23 kneeling, crouching and crawling but no climbing on ladders, ropes or 24 scaffolds. 25 communicative or environmental limitations. pull abilities, occasional (AR 331-32). climbing, balancing, stooping, Plaintiff has no manipulative, visual, (AR 332-33). 26 27 On September 26, 2008, after reviewing Plaintiff s medical file, 28 state agency physician Dr. C. Friedman determined that other than there 7 1 being an improvement in Plaintiff s sitting, there is not significant 2 change and affirm the ALJ [prior] decision. 1 (AR 381). 3 4 C. Examining Consultative Examiners Opinions 5 6 On April 23, 2008, Dr. Jagvinder Singh, who is Board Certified in 7 Internal Medicine, performed an Internal Medicine Consultation. 8 324-29). 9 blood pressure, high cholesterol, leg and weight problems. (AR Plaintiff s chief complaints were diabetes mellitus, high (AR 324). 10 Plaintiff reported that has no problems with dressing, grooming and 11 bathing herself. (Id.). She is able to cook, do dishes and laundry but 12 also asserts that she cannot do much due to shortness of breath. 13 (Id.). 14 15 After a physical, musculoskeletal, range of motion, neurological 16 and cranial nerves examination, Dr. Singh diagnosed Plaintiff with 17 morbid obesity, bilateral knee osteoarthritis, diabetes mellitus with 18 peripheral neuropathy, 19 medication. (AR 325-28). 20 to stand and walk for two hours with breaks, sit without restriction, 21 should use a single point cane for prolonged walking and standing, able 22 to lift and carry 20 pounds occasionally and 10 pounds frequently. and hypertension, well controlled with He thereafter opined that Plaintiff is able (AR 23 24 25 26 27 28 1 On November 17, 2007, Plaintiff s prior application for DIB and SSI was denied. (AR 89-97). The ALJ determined that Plaintiff had the residual functional capacity to perform sedentary exertional level work with avoidance of prolonged standing and walking, sitting for no more than 20-30 minutes at a time, no more than two hours of sitting in an eight-hour workday, occasional stooping, kneeling, and crawling, and no repetitive squatting, kneeling, stooping or climbing of stairs and ladders. (AR 93). 8 1 328). Plaintiff will have difficulty with crawling, kneeling and 2 bending. 3 restrictions. (Id.) Finally, she has no manipulative and environmental (Id.). 4 5 On December 7, 2009, Dr. John Simmonds, an Orthopedic Surgeon, 6 performed an orthopedic examination. (AR 501-05). He diagnosed 7 Plaintiff with discogenic disease of the lumbosacral spine status post 8 microdiscectomy currently with multilevel degenerative disc disease with 9 stable anterolisthesis of L4-L5, myofascial muscular pain of the lower 10 back and posttraumatic arthritic changes of the right knee. 11 504). 12 findings, he opined that Plaintiff could lift and carry approximately 13 50 pounds occasionally and 25 pounds frequently, stand and walk four 14 hours in an eight-hour work day and does not require the use of an 15 assistive ambulatory device. 16 limitations 17 stooping, crawling and crouching can be performed on a frequent basis. 18 (Id.). 19 her hands for fine and gross manipulative movements. Based on and the examination, postural clinical (AR 505). limitations history and (AR objective Plaintiff has no sitting such as bending, kneeling, Plaintiff can perform overhead activities and has full use of (Id.). 20 21 D. Plaintiff s Testimony 22 23 Plaintiff testified that she did not work in 2007 because she could 24 not stand and sit for long periods of time. 25 sit for about 20 minutes each. (AR 37). She can stand and (Id.). 26 27 Plaintiff s previous occupations have included being a nurse 28 assistant, interpreter, taking care of the elderly and delivering 9 1 flowers. (AR 40-46). She stated that she could no longer deliver 2 flowers because her back hurt and her legs did not support her. 3 46). 4 sit that long, for six hours or four hours or three hours or two hours. 5 (Id.). (AR She is also unable to work as an interpreter because she can t 6 7 Plaintiff testified that she is unable to work because of her 8 diabetes. (AR 47). Her diabetes usually goes up and down, it flexes 9 every time and if she does not control her diabetes, she has to go 10 into dialysis. (Id.). She takes medication for her diabetes, but has 11 not been prescribed insulin. (AR 47-48). She also takes medication for 12 her high blood pressure. (AR 48). 13 14 Plaintiff further testified that she is unable to work because of 15 the pain in her back, legs and arms. 16 Motrin for her back pain. (AR 47). She takes Vicodin and (Id.). 17 18 Plaintiff testified that she lives alone, does not drive but takes 19 the bus. (AR 49-50). In response to the ALJ s question regarding how 20 she spends her days, Plaintiff replied: 21 22 I get up in the morning. 23 pills. 24 my plants. 25 go back inside. I have breakfast. I usually try to make my bed. I take my I go outside and water I have like five plants that I have to water. I lay down for a while. 26 27 28 10 I I try to figure out 1 what I want to make for dinner and lunch. 2 a shower. I get in to have And that s about it. 3 4 (AR 50). 5 6 Plaintiff also watches a little television. (Id.) She goes 7 shopping when she gets her food stamps, but she has a friend go with 8 her. 9 friends that help her clean while she makes them dinner. (Id.). She is semi able to keep her house straight but she has (AR 51-52). 10 She tries to go to the park with her friends where she will either just 11 sit or have a barbeque. 12 all day is just watch[] a little TV and lay[] down. (Id.). Plaintiff confirmed that all she does (AR 52). 13 14 Plaintiff is 5 4 and weighs 240 pounds. (AR 53). She used to 15 weight 370 pounds but two years ago due to a cut on [her] leg, she 16 started to lose a lot of weight and within six months she lost close to 17 100 pounds. 18 (AR 54). 19 54-55). Her pain level during the day is an eight to nine on a scale 20 of ten. (AR 55). 21 for like three or four hours and then I take Tylenol Arthritis. I just 22 take Motrin, Motrin 800 milligrams and sometimes I take them twice [or 23 three times] a day. 24 \\ 25 \\ 26 \\ 27 \\ 28 \\ (Id.). Her knees are very weak and her shoulders hurt. She had a cortisone shot in her shoulder which helped. (AR She takes Vicodin for her pain but that only helps (Id.). 11 1 IV. 2 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 3 4 To qualify for disability benefits, a claimant must demonstrate a 5 medically determinable physical or mental impairment that prevents her 6 from engaging in substantial gainful activity2 and that is expected to 7 result in death or to last for a continuous period of at least twelve 8 months. 9 42 U.S.C. § 423(d)(1)(A)). Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing The impairment must render the claimant 10 incapable of performing the work she previously performed and incapable 11 of performing any other substantial gainful employment that exists in 12 the national economy. 13 1999) (citing 42 U.S.C. § 423(d)(2)(A)). Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 14 15 16 To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. § 416.920. The steps are: 17 18 (1) Is the claimant presently engaged in substantial gainful 19 activity? 20 If not, proceed to step two. 21 (2) Is the If so, the claimant is found not disabled. claimant s impairment 22 claimant is found not disabled. 23 severe? If not, the three. 24 25 (3) Does the claimant s If so, proceed to step impairment meet or equal the requirements of any impairment listed at 20 C.F.R. Part 26 2 Substantial gainful activity means work that involves doing 27 significant and productive physical or mental duties and is done for pay or profit. 20 C.F.R. § 416.910. 28 12 1 404, Subpart P, Appendix 1? 2 found disabled. 3 (4) If so, the claimant is If not, proceed to step four. Is the claimant capable of performing h[er] past work? 4 If so, the claimant is found not disabled. 5 proceed to step five. 6 (5) Is the claimant able to do any other work? 7 claimant is found disabled. 8 If not, If not, the If so, the claimant is found not disabled. 9 10 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 11 949, 953-54 (9th Cir. 2001); 20 C.F.R. § 416.920(b)-(g)(1). 12 13 The claimant has the burden of proof at steps one through four, and 14 the Commissioner has the burden of proof at step five. Bustamante, 262 15 F.3d at 953-54. 16 establishing an inability to perform the past work, the Commissioner 17 must show that the claimant can perform some other work that exists in 18 significant numbers in the national economy, taking into account the 19 claimant s RFC, age, education and work experience. 20 at 1100; 20 C.F.R. § 416.920(g)(1). 21 testimony of a vocational expert or by reference to the Medical- 22 Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart P, 23 Appendix 2 (commonly known as the Grids ). 24 F.3d 1157, 1162 (9th Cir. 2001). 25 (strength-related) 26 inapplicable and the ALJ must take the testimony of a vocational expert. 27 Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000). If, at step four, the claimant meets her burden of and Tackett, 180 F.3d The Commissioner may do so by the Osenbrock v. Apfel, 240 When a claimant has both exertional nonexertional 28 13 limitations, the Grids are 1 V. 2 THE ALJ S DECISION 3 4 The ALJ employed the five-step sequential evaluation process and 5 concluded that Plaintiff was not disabled. 6 the ALJ determined that Plaintiff had not engaged in substantial gainful 7 activity since January 1, 2007. 8 that Plaintiff had severe impairments of diabetes mellitus type II with 9 associated neuropathy, 10 disease of the 11 meniscectomy. back, (AR 17). hypertension, and knee (AR 15-23). At step two, the ALJ found multi-level pain At step one, status degenerative disc post right medial (Id.). 12 13 At step three, the ALJ determined that Plaintiff did not have an 14 impairment that meets or equals a listed impairment. (AR 18). At step 15 four, the ALJ found that Plaintiff could perform light work, and was 16 able to occasionally lift and carry 20 pounds and frequently 10 pounds, 17 would be able to stand and walk 2 hours in an 8-hour workday, but not 18 continuously, no limitations with sitting; would be able to occasionally 19 climb ramps and stairs, balance, stoop, kneel, crouch and crawl, but 20 would be precluded from climbing ladders, ropes and scaffolds. (Id.). 21 22 At step five, the ALJ relied on a vocational expert s ( VE ) 23 testimony. (AR 22-23). The VE testified that Plaintiff had the past 24 relevant work as a deliverer which was an unskilled job generally 25 performed at medium level and actually performed at light level; 26 interpreter, which was a skilled job generally performed and actually 27 performed by [Plaintiff] at sedentary level and nurse assistant which 28 was a semi-skilled job generally performed and actually performed at 14 1 medium level. (AR 23). In comparing Plaintiff s residual functional 2 capacity ( RFC ) with the physical and mental demands of her past 3 relevant work, the ALJ then determined that Plaintiff could perform her 4 past relevant work as an interpreter as actually and generally performed 5 at the sedentary level but would not be able to perform her past 6 relevant work as a deliverer or a nurse assistant because the physical 7 demands of these jobs exceeded the [Plaintiff s RFC]. 8 Accordingly, the ALJ found that Plaintiff could return to her past 9 relevant work as an interpreter and was not disabled. (AR 22). (Id.). 10 11 VI. 12 STANDARD OF REVIEW 13 14 Under 42 U.S.C. § 405(g), a district court may review the 15 Commissioner s decision to deny benefits. The court may set aside the 16 Commissioner s decision when the ALJ s findings are based on legal error 17 or are not supported by substantial evidence in the record as a whole. 18 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Smolen v. 19 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). 20 21 Substantial evidence is more than a scintilla, but less than a 22 preponderance. 23 which a reasonable person might accept as 24 conclusion. 25 a finding, the court must consider the record as a whole, weighing 26 both 27 [Commissioner s] conclusion. Aukland, 257 F.3d at 1035 (quoting Penny 28 v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). evidence Reddick, 157 F.3d at 720. Id. It is relevant evidence adequate to support a To determine whether substantial evidence supports that supports and evidence 15 that detracts from the If the evidence can 1 reasonably support either affirming or reversing that conclusion, the 2 court may not substitute its judgment for that of the Commissioner. 3 Reddick, 157 F.3d at 720-21. 4 5 VII. 6 DISCUSSION 7 8 A. The ALJ Gave Clear And Convincing Reasons In Rejecting Plaintiff s Pain Testimony 9 10 11 Plaintiff contends that the ALJ failed to articulate clear and 12 convincing reasons for rejecting her pain testimony. (Plaintiff s Memo. 13 at 3-9). 14 conclusion, the objective medical evidence did support her subjective 15 complaints as to her back pain, diabetes and hypertension. (Id. at 4-6, 16 8). 17 treatments have been routine and conservative is based on the ALJ s own 18 speculation. 19 inaccurately described her daily activities. 20 disagrees. Specifically, Plaintiff complains that, contrary to the ALJ s Plaintiff also (Id. contends that the ALJ s conclusion that her at 6). Lastly, she complains that (Id. at 7-8). the ALJ The Court 21 22 Whenever an ALJ s disbelief of a claimant s testimony is a critical 23 factor in a decision to deny benefits, as it is here, the ALJ must make 24 explicit credibility findings. Rashad v. Sullivan, 903 F.2d 1229, 1231 25 (9th Cir. 1990). 26 claimant is malingering, the ALJ s reasons for rejecting the claimant s 27 testimony must be clear and convincing. 28 742, 750 (9th Cir. 2007); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. Unless there is affirmative evidence showing that a 16 Parra v. Astrue, 481 F.3d 1 1995). As long as Plaintiff offers evidence of a medical impairment 2 that could reasonably be expected to produce pain, the ALJ may not 3 require the degree of pain to be corroborated by objective medical 4 evidence. Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991) (en 5 banc); Smolen, 80 F.3d at 1282. 6 7 The ALJ may, however, reject Plaintiff s testimony regarding the 8 severity of her symptoms if he points to clear and convincing reasons 9 for doing so. See Smolen, 80 F.3d at 1283-84. testimony regarding the severity To determine whether 10 Plaintiff s of her symptoms is 11 credible, the ALJ may consider, among other things, the following 12 evidence: 13 the claimant s reputation for lying, prior inconsistent statements 14 concerning the symptoms, and other testimony by the claimant that 15 appears less than candid; (2) unexplained or inadequately explained 16 failure to seek treatment or to follow a prescribed course of treatment; 17 and (3) the claimant s daily activities. 18 credibility finding is supported by substantial evidence in the record, 19 the court may not engage in second-guessing. 20 F.3d 947, 959 (9th Cir. 2002). (1) ordinary techniques of credibility evaluation, such as Id. at 1284. If the ALJ s Thomas v. Barnhart, 278 21 22 The ALJ determined that Plaintiff is credible to the extent she 23 would experience some low back and knee pain due to her degenerative 24 anterior spondylolisthesis, and medial meniscus tear in her right knee 25 with heavy lifting or prolonged periods of walking and/or standing, and 26 therefore reduced Plaintiff s RFC to accommodate those limitations. (AR 27 21). However, the ALJ did not find Plaintiff s allegations that she 28 17 1 is incapable of all work activity to be credible because of significant 2 inconsistences in the record as a whole. (AR 22). 3 4 Here, the ALJ gave clear and convincing reasons for discounting 5 Plaintiff s allegations of subjectively disabling symptoms. (AR 19-22). 6 Specifically, the ALJ found that the medical evidence, conservative 7 treatment and Plaintiff s daily activities fail to support the alleged 8 severity of Plaintiff s symptoms and that Plaintiff retains the ability 9 despite her impairments to perform work activities with the limitations 10 set forth above. (AR 22). 11 1. 12 Objective Medical Evidence And Conservative Treatment 13 14 a. Diabetes And Hypertension 15 16 First, the ALJ found that the objective evidence is inconsistent 17 with Plaintiff s alleged 18 hypertension. 19 contention that her diabetes and hypertension were uncontrolled, the 20 medical evidence indicated otherwise. (AR 20). disabling symptoms of her diabetes and The ALJ noted that contrary to Plaintiff s (Id.). 21 22 Although there is evidence in Plaintiff s earlier treatment notes 23 that her diabetes was uncontrolled, with complication, her most recent 24 office visits 25 medication. 26 391 - November 21, 2008, AR 355 - March 12, 2008). 27 supports the ALJ s conclusion that Plaintiff s diabetes improved with 28 diet and exercise. suggest that her diabetes was well-controlled with (See AR 457 - March 26, 2009, AR 413 - January 6, 2009, AR Further, the record (AR 20, 236, 354, 420); see Warre v. Comm r of Soc. 18 1 Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) ( Impairments that can 2 be controlled effectively with medication are not disabling for the 3 purpose of determining eligibility for SSI benefits. ). 4 also indicates that Plaintiff was not following the recommended advice 5 of her doctors to diet and exercise to better control her diabetes. For 6 instance, on December 26, 2008, Plaintiff reported that she was gaining 7 weight and eating more and that she was aware that this is really bad 8 for her diabetes, and Dr. Carranza emphasized that Plaintiff needed to 9 concentrate on losing weight to control her diabetes. The record (AR 20). Yet, 10 on January 9, 2009, Plaintiff reported that she was not really 11 following diet as should (AR 412) and on March 26, 2009, it was noted 12 that Plaintiff was not exercising. 13 Plaintiff was following her doctors advice, she lost a significant 14 amount of weight through diet and exercise. (AR 456). Earlier, however, when (AR 354). 15 16 Similarly, there is no evidence that Plaintiff s hypertension was 17 uncontrolled. Plaintiff s 18 hypertension 19 adjustments of her medication, Cozaar. (AR 20, 292, 303, 355, 391, 413, 20 421, 446, 457). was either treatment notes well-controlled or indicate that controlled her through 21 22 The ALJ also cited conservative treatment for Plaintiff s diabetes 23 and hypertension to reject her testimony. 24 F.3d at 751 (holding that conservative treatment is sufficient to 25 discount 26 impairment). 27 hypertension, however, it does not appear that she received any more a claimant s testimony (AR 20); see also Parra, 481 regarding the severity of an Plaintiff was prescribed medication for her diabetes and 28 19 1 extreme treatment or great increases in her medication over time.3 2 236, 244, 258, 278, 292-93, 303, 355, 391, 413, 420-21, 446, 457). For 3 example, the ALJ noted that Plaintiff was not prescribed insulin for her 4 diabetes. 5 diabetes and hypertension suggested to the ALJ that her medications have 6 been effective in controlling her diabetes and hypertension. 7 The consistent use of specific medications also suggests that Plaintiff 8 did not suffer from debilitating side effects from the medications. 9 Lastly, as discussed above, the medical records show that Plaintiff s 10 doctors recommended that she diet and exercise because it contributed 11 to a better control of her diabetes. 12 439 F.3d at 1006. 13 conservative treatment and improvement with medication were convincing 14 reasons to reject her testimony. (AR 20). (AR Further, Plaintiff s medication use for her (Id.). (AR 20, 236, 354, 420); Warre, Thus, the ALJ properly found that Plaintiff s 15 16 b. Chronic Low Back Pain 17 18 The ALJ noted that Plaintiff was credible to the extent she would 19 experience some low back pain, and her RFC was reduced to accommodate 20 that limitation. 21 complaints credible to the extent Plaintiff was incapable of all work 22 activity 23 evidence, particularly a March 3, 2009 MRI that revealed a slight facet 24 hypertrophy, but no evidence of canal or foraminal stenosis. 25 Plaintiff correctly notes that the ALJ misread the MRI and that the 26 MRI does in fact reveal severe canal stenosis. because (AR 21). it was However, the ALJ did not find Plaintiff s inconsistent with the objective medical (AR 20). (Plaintiff s Memo. at 27 3 Plaintiff reported that she was diagnosed with diabetes mellitus 28 and hypertension more than ten years ago. (AR 324). 20 1 5). However, the Court concludes that even if the ALJ erred in her 2 precise reading of the MRI record, any error was harmless, because the 3 remaining medical records overwhelmingly support the ALJ s conclusions. 4 5 In his orthopedic examination of Plaintiff, Dr. Simmonds 6 specifically noted that he reviewed the March 3, 2009 MRI. 7 He noted that the MRI revealed overall moderate severe canal stenosis. 8 (Id.). 9 medical history and his examination of Plaintiff, Dr. Simmonds assessed 10 Plaintiff with a less restrictive RFC than the one imposed by the ALJ. 11 Dr. . Simmonds opined that Plaintiff could lift and carry 50 pounds 12 occasionally and 25 pounds frequently and could stand and walk for four 13 hours. 14 postural limitations such as bending, kneeling, stooping, crawling and 15 crouching could be done frequently. 16 even assuming the ALJ fully credited the MRI findings, it is unlikely 17 that she would have given Plaintiff a more restrictive RFC. 18 the 19 Plaintiff s back into her RFC findings. 20 ALJ s consideration of the MRI report was harmless. 21 Carmickle v. Comm r of Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 22 2008) ( So long as there remains substantial evidence supporting the 23 ALJ s conclusions and the error does not negate the validity of the 24 ALJ s ultimate . . . conclusion, such is deemed harmless and does not 25 warrant reversal. ) (quoting Batson v. Comm r of Soc. Sec. Admin., 359 26 F.3d 1190, 1197 (9th Cir. 2004)); Burch v. Barnhart, 400 F.3d 676, 679 27 (9th Cir. 2005) ( A decision of the ALJ will not be reversed for errors 28 that are harmless. ). ALJ (AR 501). Based on this evidence, as well his review of Plaintiff s (AR 505). Dr. Simmonds assessed no sitting limitations and specifically incorporated 21 (Id.). Under these circumstances, appropriate Moreover, limitations as to Accordingly, any error in the (AR 21). See 1 The ALJ also cited conservative treatment to reject Plaintiff s 2 pain testimony regarding her back pain. Parra, 481 F.3d at 751. 3 Specifically, the ALJ noted that Plaintiff s treatment for her back had 4 been essentially routine and conservative in nature and she had not 5 undergone any invasive surgery or other treatment for her pain. 6 20-21). 7 Plaintiff was prescribed Vicodin and Naproxen and on one occasion was 8 injected with lidocaine for her back pain, the medical records indicate 9 that she did not receive any more extreme treatment. The medical records support the ALJ s conclusion. (AR Although Instead, the 10 medical records show that her doctors used conservative care to manage 11 her pain, and recommended water exercise and weight loss. 12 453). There is evidence that Plaintiff s physician discussed the option 13 of surgery for her back but only if she developed lower limb symptoms 14 or if her low back pain did not improve. 15 reasonably suggest 16 Carmickle, 533 17 Plaintiff s back pain was supported by substantial evidence, and not 18 based on mere speculation as Plaintiff suggests. that F.3d at Plaintiff s 1162. The (AR 453). pain was not conservative (AR 391, Thus, this could overly care to severe. manage 19 20 2. Daily Activities 21 22 The ALJ stated that Plaintiff s high level of daily functioning 23 is not typical of someone in debilitating pain and is therefore 24 inconsistent with [Plaintiff s] subjective complaints. 25 support this finding, the ALJ cited Plaintiff s admission that her 26 activities of daily living included, waking up, making her bed, 27 watering her plants, watching TV, grocery shopping, and cooking. 28 occasionally has to lie down and rest for awhile. 22 (AR 20). To She She sometimes visits 1 with her friends and goes to the park. (Id.). Plaintiff contends that 2 the ALJ did not accurately describe her daily activities. 3 Memo. at 6-7). (Plaintiff s 4 5 After reviewing the record, the Court finds that the ALJ s 6 paraphrasing of Plaintiff s testimony regarding her daily activities is 7 generally accurate. 8 9 First, the ALJ noted that Plaintiff goes grocery shopping. (AR 10 20). However, Plaintiff alleges that she relies on a friend to help 11 her go grocery shopping. 12 Plaintiff testified that she goes shopping when I get my food stamps, 13 but I have a friend come with me. 14 could reasonably be interpreted to suggest that Plaintiff has a friend 15 go with her grocery shopping and not necessarily that she relies on her 16 friend to go grocery shopping. 17 interpretation of the evidence when it is reasonably based upon the 18 record. 19 Plaintiff 20 demonstrate that she is capable of her past relevant work. (Plaintiff s Memo. at 7). on a friend Plaintiff s testimony This Court must defer to the ALJ s Batson, 359 F.3d at 1193. relies (AR 50). At the hearing, to Moreover, even if it is true that shop, her remaining activities 21 22 Plaintiff alleges that she is unable to perform household chores, 23 and again relies on a friend in exchange for dinner. (Plaintiff s 24 Memo. at 7). 25 whether she can keep her house straight, Plaintiff responded, Semi; I 26 mean, it s not -- I have a friend that, that comes over and I make him, 27 I make them dinner and they help me clean my bathroom -- (AR 50). This 28 could be reasonably interpreted as suggesting that Plaintiff is able to At the hearing, in response to the ALJ s question as to 23 1 do some of her household chores but receives help from her friends in 2 exchange for dinner, not that she is unable to perform any household 3 chores. Batson, 359 F.3d at 1193. 4 5 Next, the ALJ noted that Plaintiff sometimes visits with her 6 friends and goes to the park. (AR 20). However, Plaintiff alleges 7 that she attempts to go to the park, which indicates that she has some 8 difficulty in that regard unlike the ALJ s summary of this particular 9 activity. (Plaintiff s Memo. at 7). At the hearing, Plaintiff 10 testified that she has friends and I try to go the park [with them]. 11 (AR 51). 12 responded, We just sit there, really. 13 usually get together with some friends and barbecue or something and I m 14 there a couple hours and then I - take a chair for me. 15 The Court finds that the ALJ s interpretation of Plaintiff s testimony 16 was reasonable. The ALJ asked Plaintiff what she does at the park, and she We don t do any -- like we (AR 51-52). Batson, 359 F.3d at 1193. 17 18 Moreover, Plaintiff s statements to Dr. Singh completely 19 corroborate the ALJ s finding that Plaintiff engaged in significant 20 daily 21 Plaintiff reported to Dr. Singh that she has no problems with dressing 22 grooming and bathing herself and she is able to do cooking, dishes and 23 laundry but she cannot do much due to the shortness of breath. 24 324). activities that were inconsistent with her alleged pain. (AR 25 26 Plaintiff cites Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 27 1998), for the proposition that a claimant should not be penalized for 28 attempting to live a normal life and should not be required to vegetate 24 1 in a dark room in order to receive benefits. (Plaintiff s Memo. at 7). 2 While Plaintiff is correct with respect to her citation to the court s 3 observations in Reddick, the court also observed in that case that the 4 ALJ may consider in her credibility assessment whether the level of 5 activity [is] inconsistent with Claimant s claimed limitations . . . . 6 Id. (emphasis added). 7 the extent of Plaintiff s daily activities and comparing this to 8 Plaintiff s testimony of totally debilitating pain. Here, the ALJ did follow Reddick, by considering 9 10 Thus, the Court concludes the ALJ provided clear and convincing 11 reasons for rejecting Plaintiff s testimony regarding her claim of 12 complete disability. 13 14 B. The ALJ Properly Evaluated Plaintiff s Mental Impairment 15 16 17 Plaintiff claims that the ALJ failed to properly evaluate her mental impairment. (Plaintiff s Memo. at 9-11). The Court disagrees. 18 19 Where there is evidence of a mental impairment that allegedly 20 prevents the plaintiff from working, the Agency has supplemented the 21 five-step sequential evaluation process with additional regulations.4 22 Maier v. Comm r of Soc. Sec. Admin., 154 F.3d 913, 914-15 (9th Cir. 23 1998) (citing 20 C.F.R. § 416.920a) (per curiam). 24 raises a colorable claim of mental impairment, the ALJ must follow a When a plaintiff 25 4 These additional steps are intended to assist the ALJ in determining the severity of mental impairments at steps two and three. 27 The mental RFC assessment used at steps four and five of the evaluation process, on the other hand, require a more detailed analysis. Social 28 Security Ruling ( SSR ) 98-8p, 1996 WL 374184 at * 4. 26 25 1 special technique to evaluate the plaintiff s limitations. 20 C.F.R. 2 § 416.920a (2006) ( [W]e must follow a special technique at each level 3 in the administrative review process ). 4 plaintiff s 5 conclusions into her decision. 6 significant history, including examination and laboratory findings, and 7 the functional limitations that were considered in reaching a conclusion 8 about the severity of the mental impairment(s). 9 include a specific finding as to the degree of limitation in each of the claims and incorporate The ALJ must evaluate the the pertinent findings and Id. ( The decision must show the The decision must 10 functional areas. ). 11 impairment, the ALJ must rate the degree of functional limitation 12 resulting from the impairment(s) for the four broad functional areas: 13 activities 14 persistence and pace; and episodes of decompensation. 15 § 416.920a(b)(2), (c)(3). of If the claimant has a medically determinable daily living; social functioning; concentration, 20 C.F.R. 16 17 An ALJ s failure to follow the required procedure mandates remand 18 only if the claimant has a colorable claim of a mental impairment. 19 Cf. Gutierrez v. Apfel, 199 F.3d 1048, 1051 (9th Cir. 2002), superseded 20 by regulation as stated in Selassie v. Barnhart, 203 Fed. App x 174, 175 21 (9th Cir. 2006) (holding that, where there is a colorable claim of 22 mental 23 evaluating mental impairment); see also Gunderson v. Astrue, 371 Fed. 24 App x 807, 808 n.1 (9th Cir. 2010) ( Although Gutierrez dealt with the 25 prior version of section 404.1520a, the current version, although 26 different, imposes similar obligations on the ALJ. ); Moore v. Barnhart, 27 405 F.3d 1208, 1214 (11th Cir. 2005) ( We thus join our sister circuits 28 in holding that where a claimant has presented a colorable claim of impairment, the ALJ must 26 strictly follow regulations for 1 mental impairment, the social security regulations require the ALJ to 2 complete a PRTF and append it to the decision, or incorporate its mode 3 of analysis into [her] findings and conclusions. ); but see Rabbers v. 4 Comm r of Social Sec. Admin., 582 F.3d 647, 658 (6th Cir. 2009) (finding 5 the 6 harmless error). 7 insubstantial, immaterial, or frivolous. 8 791, 795 (9th Cir. 1987). failure to strictly follow mental impairment regulations was A colorable claim is one which is not wholly Cassim v. Bowen, 824 F.2d 9 10 Following the technique outlined in Section 416.920a(c) and (e), 11 however, is only required for medically determinable impairments. See 12 20 C.F.R. § 416.920a(b). 13 physical or mental medically determinable impairment by providing 14 medical evidence consisting of signs, symptoms, and laboratory findings. 15 20 C.F.R. § 404.908; see also Ukolov v. Barnhart, 420 F.3d 1002, 1005 16 (9th Cir. 2005) (noting that the existence of a medically determinable 17 physical or mental impairment may only be established with objective 18 medical findings) (citing SSR 96-4p, 1996 WL 374187 at *1-2). 19 are a claimant s own description of his or her impairment, and alone are 20 not enough to establish a mental impairment. 21 psychological abnormalities and must be medically demonstrable phenomena 22 and laboratory findings must be shown through medically acceptable 23 laboratory techniques. The claimant must prove the existence of a Symptoms Signs include observable 20 C.F.R. § 416.928. 24 25 Here, the record contains no evidence of pertinent symptoms, 26 signs, and laboratory findings that Plaintiff suffered from depression 27 within 28 Recurrent, in Partial Remission appears as part of Plaintiff s Problem the relevant time period. 27 Although Depression, Major, 1 List in each office visit print out, the Court agrees with Respondent 2 that this list is simply a log of problems Plaintiff has had in her 3 medical history. (See 219, 226, 233, 246, 253, 258, 264, 266, 271, 274, 4 279, 283, 287, 299, 304, 313, 340, 426, 428). 5 references and Plaintiff s own statement in her disability report that 6 she was taking Amitriptyline for depression (AR 206), there is little 7 evidence that Plaintiff suffered from or was treated for depression. 8 Moreover, neither of these references demonstrates that Plaintiff had 9 depression that significantly limits [her] physical or mental ability 10 to do basic work activities, 20 C.F.R. § 416.920(c), or that the 11 depression lasted a continuous period of at least 12 months. 12 § 416.909. 13 Depression mostly ok off rx (advised return to pscyh if needed), and 14 there is no evidence in the record that Plaintiff ever returned for 15 needed or additional psychological or psychiatric assistance. (AR 315). 16 The evidence fails to show a colorable claim of a mental impairment. Other than these Id. Indeed, a progress note dated December 15, 2006 states 17 18 The Court also notes that Plaintiff s applications for benefits 19 fail to mention any symptoms related to a mental impairment, let alone 20 that she suffered any mental impairment within the relevant time period 21 other than the isolated reference that she was taking Amitriptyline. 22 (See AR 106, 113, 172, 175-76, 192-95, 204-07). 23 fact that at the hearing, neither Plaintiff nor her attorney, who had 24 an opportunity to examine Plaintiff, mentioned that Plaintiff suffered 25 from depression 26 impairments 27 medications she was taking. although prevented the ALJ Plaintiff specifically from working (AR 47-49, 52-56). 28 28 Also notable is the asked and what what further prescribed 1 Under these circumstances, the Court finds that Plaintiff failed 2 to meet her burden of proof on this issue. See Bray v. Comm r of Soc. 3 Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) ( The burden of proof 4 is on the claimant at steps one through four . . . . ). 5 there is no colorable claim of a mental impairment, the ALJ was not 6 required to consider that claim and was not required to follow the 7 process outlined 416.920a(c) and (e) nor evaluate the severity of 8 Plaintiff s mental limitations. In sum, because 9 10 VIII. 11 CONCLUSION 12 13 Consistent with the foregoing, and pursuant to sentence four of 42 14 U.S.C. § 405(g),1 IT IS ORDERED that judgment be entered AFFIRMING the 15 decision of the Commissioner. 16 \\ 17 \\ 18 \\ 19 \\ 20 \\ 21 \\ 22 \\ 23 \\ 24 \\ 25 \\ 26 IT IS FURTHER ORDERED that the Clerk of 1 This sentence provides: The [district] court shall have power 27 to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of 28 Social Security, with or without remanding the cause for a rehearing. 29 1 the Court serve copies of this Order and the Judgment on counsel for 2 both parties. 3 4 DATED: December 27, 2011 5 6 /S/ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 7 8 9 THIS MEMORANDUM IS NOT INTENDED FOR PUBLICATION NOR IS IT INTENDED 10 TO BE INCLUDED IN OR SUBMITTED TO ANY ONLINE SERVICE SUCH AS WESTLAW OR 11 LEXIS. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30

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