Violet Faye Avila v. Michael J Astrue, No. 2:2011cv07670 - Document 17 (C.D. Cal. 2012)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Victor B. Kenton. The Court finds no error with regard to the ALJ's Decision, which will be affirmed. The Complaint will be dismissed with prejudice. IT IS SO ORDERED. 1 (SEE ORDER FOR FURTHER DETAILS) (gr)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 VIOLET FAYE AVILA, 12 Plaintiff, 13 14 15 v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) No. CV 11-07670-VBK MEMORANDUM OPINION AND ORDER (Social Security Case) 17 18 This matter is before the Court for review of the decision by the 19 Commissioner of Social Security denying Plaintiff s application for 20 disability benefits. 21 consented that the case may be handled by the Magistrate Judge. 22 action arises under 42 U.S.C. §405(g), which authorizes the Court to 23 enter judgment upon the pleadings and transcript of the record before 24 the Commissioner. 25 ( JS ), and the Commissioner has filed the certified Administrative 26 Record ( AR ). 27 the decision of the Commissioner must be affirmed. 28 // Pursuant to 28 U.S.C. §636(c), the parties have The The parties have filed the Joint Stipulation After reviewing the matter, the Court concludes that 1 2 PROCEEDINGS Plaintiff Violet Faye Avila (hereinafter Plaintiff ), 3 represented by counsel, filed this action pursuant to 42 U.S.C. 4 §405(g), seeking review of the decision of the Commissioner of Social 5 Security ( Commissioner ) denying her application for Title II and 6 Title XVI disability benefits. 7 Plaintiff filed her Complaint on September 22, 2011. The 8 Commissioner filed his Answer and the Certified Administrative Record 9 ( AR ) on March 23, 2012. 10 11 On June, 25, 2012, the parties filed a Joint Stipulation. The matter is now pending before the Court 12 decision. 13 and ready for Court s findings of fact and conclusions of law. This Memorandum Opinion and Order shall constitute the 14 15 I 16 BACKGROUND 17 On March 24, 2008, Plaintiff filed her application for Title II 18 and Title XVI disability benefits due to carpal tunnel syndrome, a 19 shoulder injury, and a knee replacement. (AR 125-34, 156.) Plaintiff 20 alleged an onset date of May 17, 2003. 21 denied administratively. 22 hearing before an Administrative Law Judge ( ALJ ). 23 (AR 80-84.) (AR 157.) The application was Plaintiff then requested a (AR 85.) The hearing before the ALJ commenced on October 13, 2009, at 24 which time Plaintiff appeared and testified. 25 was also taken from a vocational expert ( VE ), as well as Plaintiff s 26 daughter, Marie Torres ( Torres ). (AR 8-62.) Testimony (AR 48-62.) 27 On January 13, 2010, the ALJ issued an unfavorable decision (AR 28 65-76.), and Plaintiff appealed. (AR 6, 206 09.) The Appeals Council 2 1 denied review, thus making the ALJ s decision the final decision of 2 the Commissioner.1 3 review. Plaintiff then filed this action seeking judicial 4 In the Joint Stipulation, Plaintiff raises the following issues: 5 1. 6 The ALJ s residual functional capacity assessment is not supported by substantial evidence; 7 2. The ALJ improperly discredited Plaintiff s credibility; 8 3. The ALJ did not properly consider lay testimony from the 9 Plaintiff s daughter, Marie Torres. 10 11 II 12 DISCUSSION 13 The Court, pursuant to 42 U.S.C. §405(g), has the authority to 14 review the Commissioner s decision denying Plaintiff s disability 15 benefits 16 substantial evidence and whether the Commissioner used the proper 17 legal standards in reaching her decision. 18 1111, 1113 (9th Cir. 1999); Reddick v. Chater, 157 F.3d 715, 720 (9th 19 Cir. 1998). to determine whether her findings are supported by Meanel v. Apfel, 172 F.3d 20 A claimant is disabled for the purpose of receiving benefits 21 under the Social Security Act if the claimant is unable to engage in 22 any substantial gainful activity due to an impairment which has 23 lasted, or is expected to last, for a continuous period of at least 24 twelve months. 25 §§404.1505(a), 42 U.S.C. §§423(d)(1)(A), 1382c(a)(3)(A); 20 CFR 416.905(a). The claimant bears the burden of 26 27 28 1 The parties both agree in their Joint Stipulation that the Appeals Council denied review of the ALJ s decision (JS 2); however, this denial is not included in the Administrative Record. 3 1 establishing a prima facie case of disability. 2 66 F.3d 179, 182 (9th Cir. 1995), cert. denied, 517 U.S. 1122 (1996); 3 Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996). 4 Roberts v. Shalala, Regulations promulgated by the Commissioner establish a five-step 5 sequential 6 disability case. 7 the ALJ must determine whether the claimant is currently engaged in 8 substantial gainful activity; if so, a finding of nondisability is 9 made and the claim is denied. evaluation process to be followed 20 C.F.R. §§404.1520, 416.920. by the ALJ in a In the First Step, 20 C.F.R. §§404.1520(b), 416.920(b). 10 If 11 activity, in the Second Step, the ALJ must determine whether the 12 claimant 13 significantly 14 activities; if not, a finding of nondisability is made and the claim 15 is denied. 16 if the claimant has a severe impairment, the ALJ must compare the 17 impairment 18 ( Listing ), 20 C.F.R. §404, Subpart P, App. 1. 19 meets 20 conclusively 21 §404.1520(d), 416.920(d). 22 meet or equal an impairment in the Listing, in the Fourth Step, the 23 ALJ must determine whether the claimant has sufficient residual 24 functional capacity despite the impairment or various limitations to 25 perform the claimant s past work; if so, a finding of nondisability is 26 made and the claim is denied. 27 When the claimant shows an inability to perform past relevant work, a 28 prima facie case of disability is established and, in Step Five, the the claimant is not currently engaged in substantial gainful or has a severe limiting impairment the or claimant combination from performing 20 C.F.R. §§404.1520(c), (416.920(c). to those equals an presumed impairments impairment and in the in the benefits When the are of impairments basic work In the Third Step, Listing of Impairments If the impairment Listing, awarded. disability 20 is C.F.R. claimant s impairment does not 20 C.F.R. §§404.1520(e), 416.920(e). 4 1 burden shifts to the Commissioner to show the claimant can perform 2 other work that exists in significant numbers in the national economy. 3 20 C.F.R. §§404.1520(f), 416.920(f). 4 Following this sequential evaluation process, at Step One, the 5 ALJ determined that Plaintiff had not engaged in any substantial 6 gainful activity since her alleged disability onset date of May 17, 7 2003. (AR 71, Finding 2.) 8 has an impairment or combination of impairments considered severe, 9 determined in the decision to be musculoskeletal impairments, obesity, At Step Two, the ALJ found that Plaintiff 10 diabetes mellitus, and hypertension. 11 Three, it was found that these severe impairments do not meet or 12 medically equal one of the Listings. 13 noted that though there are no Listing criteria specific to the 14 evaluation 15 Plaintiff s obesity impairments have been taken into account in 16 reaching the conclusions in Steps Two through Five. 17 4.) 18 ( RFC ) (AR 23, Finding 7), the ALJ determined at Step Four that 19 Plaintiff 20 requiring lifting/carrying of up to twenty pounds occasionally and ten 21 pounds frequently; alternate sitting and standing/walking in one-hour 22 intervals; and that she would be precluded from performing work 23 requiring overhead reaching. 24 the ALJ found that Plaintiff was capable of performing her past 25 relevant work as an office assistant/seasonal clerk (AR 75, Finding 26 6), thus rendering Plaintiff not disabled as defined in the Social 27 Security Act ( Act ). of After obesity determining has the (AR 71, Finding 3.) (AR 71, Finding 4.) impairments, Plaintiff s residual considerations residual functional to (AR 72-75, Finding 5.) (AR 76, Finding 7.) 28 5 The ALJ regarding (AR 71, Finding functional capacity At Step capacity perform work At Step Five, 1 III 2 THE ALJ S RESIDUAL FUNCTIONAL CAPACITY ASSESSMENT 3 IS SUPPORTED BY SUBSTANTIAL EVIDENCE 4 Plaintiff s principal contention is that the ALJ failed to 5 properly consider two bilateral knee x-rays taken in 2008 and 2009 in 6 determining her RFC. 7 taken on July 1, 2008 revealed marked narrowing of both lateral joint 8 compartments, more pronounced on the left side. 9 bilateral knee (See AR 370, 366.) x-rays taken on May The bilateral knee x-rays 12, 2009, (AR 370.) revealed The severe 10 osteoarthritis with chondrocalcinosis. 11 Plaintiff points to the fact that the ALJ relied upon the non- 12 examining assessment of the State Agency medical consultant, Dr. Beig, 13 who did not take into consideration the 2008 and 2009 knee x-rays when 14 evaluating Plaintiff s exertional capabilities. 15 Plaintiff additionally contends (AR 366.) that the In particular, (AR 75, 358.) ALJ s RFC is not 16 supported by substantial evidence because he failed to properly 17 consider Plaintiff s obesity in the RFC assessment, in particular the 18 effect of severe osteoarthritis revealed in the 2008 and 2009 19 bilateral knee x-rays. 20 21 A. 22 Though Plaintiff is correct in her factual assertion that the ALJ 23 did not consider the 2008 and 2009 knee x-rays in determining her RFC, 24 his 25 significant effect on his exertional findings. 26 Analysis. failure to evaluate the x-rays had neither a probative or In addition to Dr. Beig s evaluation, the ALJ considered an 27 exertional examination conducted by Dr. Ram, dated May 8, 2008. 28 74-75, 351-56.) Dr. Ram found that: 6 (AR 1 There is evidence of osteoarthritis on the knees. 2 No scars. 3 muscle atrophy, swelling or warmth. 4 in both knees due to the osteoarthritis. 5 of motion is restricted with pain reported. 6 There is a valgus deformity but no There is pain The range (AR 354.) 7 8 9 Thus, contrary to Petitioner s contentions, the ALJ clearly did take into account Plaintiff s bilateral knee osteoarthritis. 10 Plaintiff contends, however, that whereas the 2008 and 2009 x- 11 rays reveal marked and severe osteoarthritis of the knees (AR 366, 12 370), Dr. Ram only noted evidence of osteoarthritis in his physical 13 evaluation. (AR 354.) 14 immaterial. Most notably, the x-rays address neither Plaintiff s RFC 15 or Plaintiff s exertional capacity to perform her work-related tasks. 16 As held by the Ninth Circuit, the ALJ is not required to discuss every 17 piece of evidence, as long as the disregarded evidence is neither 18 probative or significant. Howard v. Barnhart, 341 F.3d 1006, 1012 19 (9th Cir. 2003)(quoting Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 20 1998)); Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th 21 Cir. 2003). Plaintiff compares the ALJ s disregard of her knee x-rays 22 as akin to disregard[ing] an MRI of the brain showing lesions and 23 demyelinating 24 unpersuasive, because here, Plaintiff s bilateral knee osteoarthritis 25 was already taken into account by the ALJ in his consideration of Dr. 26 Ram s 27 information 28 present in the x-rays that is not present in Dr. Ram s evaluation are medical disease This disparity in terminology is ultimately (JS evaluation. regarding 9); (See Plaintiff s 7 however, AR 74.) bilateral this The knee comparison only is additional osteoarthritis 1 the modifying words severe and marked used to describe the degree 2 of bilateral knee osteoarthritis. Though Plaintiff contends that this 3 is sufficient to demonstrate that the ALJ s RFC is not supported by 4 substantial evidence, the 2008 and 2009 x-ray reports fail to give any 5 additional indication of the effect of these findings on Plaintiff s 6 exertional limitations. 7 and 2009 bilateral knee x-rays did not have a significant or 8 probative effect on the conclusions made as to the RFC. Thus, the ALJ s failure to consider the 2008 9 Furthermore, in addition to finding that Plaintiff had evidence 10 of osteoarthritis in her knees, Dr. Ram also found that Plaintiff had 11 full range of motion in her shoulders, elbows, wrists, hands, hips, 12 ankles, and feet with no pain reported in these areas. 13 Dr. Ram concluded: (AR 353-54.) 14 [C]laimant is able to occasionally lift and carry 15 20 pounds and frequently lift and carry 20 pounds 16 over the course of an eight hour day. She is able 17 [sic] stand and walk at least four hours over the 18 course of an eight-hour day with normal breaks. 19 She is able to sit for at least four hours over the 20 course of an eight-hour day with normal breaks. 21 She is able to push and pull frequently with the 22 upper extremities. 23 occasionally with the lower extremities. 24 She is able to push and pull (AR 355.) 25 26 These exertional findings by Dr. Ram are in line with the ALJ s 27 RFC findings at Step Four. 28 limited to lifting/carrying of up to 20 pounds occasionally and 10 In fact, the ALJ found that Plaintiff was 8 1 pounds frequently, a more restrictive exertional limitation than was 2 indicated by Dr. Ram. 3 Plaintiff (AR 72.) additionally contends that the ALJ s RFC is not 4 supported by substantial evidence because he did not properly consider 5 the impact of Plaintiff s obesity on her RFC; however, the ALJ clearly 6 stated that these [obesity] considerations have been taken into 7 account in reaching the conclusions herein at the 2nd through 5th 8 steps of the sequential disability evaluation process. 9 Nevertheless, Plaintiff argues that because the ALJ did not consider 10 the marked and severe osteoarthritis of Plaintiff s knees, as 11 indicated in the 2008 and 2009 x-rays, the ALJ did not properly 12 consider Plaintiff s obesity at Step Four. (AR 72.) 13 As discussed previously, the ALJ s disregard of the 2008 and 2009 14 x-rays did not have a significant or probative effect on the ALJ s 15 RFC, 16 account. See Howard v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003). 17 Thus, because the ALJ took into account Plaintiff s knee injuries, as 18 reported by Dr. Ram, he properly considered the impact of Plaintiff s 19 obesity as it might have impacted her exertional capabilities. because Plaintiff s osteoarthritis was already taken into 20 21 IV 22 THE ALJ PROPERLY EVALUATED PLAINTIFF S CREDIBILITY 23 A. 24 Subjective Applicable Law. pain testimony is an important factor in the 25 disability determination process. Cotton v. Bowen, 799 F.2d 1403, 26 1407 Secretary 27 Services, 846 F.2d 581, 583 (9th Cir. 1987). Subjective complaints of 28 pain (9th must Cir. be 1986); Varney associated with v. medical 9 of Health impairments and that Human could 1 reasonably be expected to produce the pain or other symptoms alleged. 2 42 U.S.C. § 423(d)(5)(A). 3 In those cases where a claimant contends that he or she 4 experiences pain which, while associated with a medical impairment, is 5 greater than the impairment would normally be expected to produce, 6 this is referred to as excess pain testimony - defined as pain that 7 is unsupported by objective medical findings. 8 1407. 9 disregard such excess pain testimony, his decision must be supported Cotton, 799 F.2d at In order for the ALJ to have properly decided to disbelieve or 10 by specific findings. 11 (9th Cir. 1986); Cotton, 799 F.2d at 1407. 12 See, Martinez v. Heckler, 807 F.2d 771, 773 The existence of some pain does not constitute a disability, if 13 the claimant is not thereby prevented from working. 14 Schweiker, 694 F.2d 170, 171 (8th Cir. 1982). 15 objective support for claims of subjective pain can undermine such 16 testimony or claims of disabling pain. See, Tidwell v. Apfel, 161 17 F.3d ALJ 18 inconsistencies in a claimant s testimony. 19 597, 603-04 (9th Cir. 1989). 20 testimony of subjective pain, and deny disability benefits solely 21 because the degree of pain alleged by the claimant is not supported by 22 objective medical evidence. 23 47 (9th Cir. 1991). 24 inconsistency between a claimant s testimony and the objective medical 25 evidence. 26 reasons cited in the decision. 27 750 (9th Cir. 1995). 28 599, 602 (9th Cir. 1998). An may See, Thorn v. In addition, weak properly rely on Fair v. Bowen, 885 F.2d An ALJ may not discredit a claimant s Bunnell v. Sullivan, 947 F.2d 341, 346- Thus, an ALJ may not solely rely on the The ALJ may, however, rely on other inconsistencies and Orteza v. Shalala, 50 F.3d 748, 749- For example, a claimant s inadequately explained failure to seek 10 1 medical treatment may be relevant grounds for the ALJ to reject the 2 credibility of a claimant s pain testimony. 3 597 (9th Cir. 1989); Burch v. Barnhart, 400 F.3d 676 (9th Cir. 2005) 4 ( The 5 credibility determination. ). ALJ is permitted to consider Fair v. Bowen, 885 F.2d lack of treatment in his 6 7 B. 8 The ALJ specifically cited to a variety of reasons that, when 9 10 Analysis. considered in total, support his discrediting of Plaintiff s subjective complaints of disabling pain. 11 First, the ALJ pointed to the fact that Plaintiff only pursued 12 minimal treatment for her pain. 13 that an ALJ is permitted to use inadequately explained absence of 14 treatment to discredit a claimant s subjective complaints of pain. 15 See Fair v. Bowen, 885 F.2d 597 (9th Cir. 1989); Burch v. Barnhart, 16 400 F.3d 676 (9th Cir. 2005) ( The ALJ is permitted to consider lack 17 of 18 demonstrates that Plaintiff only sought infrequent treatment for her 19 pain from her primary care physician, Dr. Willis. 20 393.) 21 Plaintiff has not been in clinic for one year. 22 Furthermore, many of Plaintiff s more recent visits to Dr. Willis were 23 primarily for her hypertension and diabetes, both of which were under 24 adequate control. treatment in his (AR 74.) credibility The Ninth Circuit has held determination. ). The record (AR 74, 330-38, In a report dated July 10, 2007, Dr. Willis reported that (AR 74, 334.) (AR 74, 330-38, 398, 401.) 25 Plaintiff contends that the reason that she was unable to seek 26 more frequent treatment for her pain was her inability to afford 27 visits to Dr. Willis. 28 inability to afford treatment may be a valid excuse for not following Though, Plaintiff correctly notes that an 11 1 treatment, she had been visiting Dr. Willis fairly regularly for her 2 hypertension and diabetes, both of which were under adequate control. 3 If Plaintiff s pain was indeed as severe as alleged, Plaintiff would 4 undoubtedly have been more diligent in raising these pain complaints 5 on her scheduled visits with Dr. Willis. 6 Plaintiff alternatively had access to county services that would have 7 been available to her given the alleged severity of her symptoms. (AR 8 74.) 9 plaintiff s claim, it is outweighed by the overall strength of the 10 Though this fact in itself is not alone enough to discredit ALJ s other credibility conclusions. 11 12 The ALJ mentioned that Additionally, the ALJ employed the following reasoning in making his credibility determination: 13 Claimant s allegations of vertigo and pain at a 14 level of 11 on a scale from 1 to 10 are not 15 credible based upon the absence of labyrinth or 16 other 17 absence 18 hospitalizations for treatment of vertigo and/or 19 pain symptoms. 20 diagnostic of testing emergency for vertigo room and the records or (AR 75.) 21 22 The Ninth Circuit has held that the ALJ may rely on 23 inconsistencies in the claimant s testimony in making a credibility 24 determination. 25 Here, the ALJ is correct in concluding that Plaintiff s allegations of 26 pain at a level of 11 on a scale from 1 to 10, do not appear credible, 27 not 28 hospitalizations, but more importantly, due to the aforementioned lack only due Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995). to the absence 12 of emergency room visits or 1 of frequent visits to her primary care doctor or other available 2 services for pain treatment. 3 her assertion that the lack of medical documentation in regards to her 4 vertigo is irrelevant to the credibility of her pain testimony. 5 disparity between the claimed severity of Plaintiff s vertigo and 6 Plaintiff s lack of any formal diagnostic vertigo testing, though 7 alone not dispositive, supports the ALJ s credibility findings. 8 9 Furthermore, Plaintiff is mistaken in The Furthermore, in her July 10, 2007, report, Dr. Willis noted the following observations: 10 She [Plaintiff] tells me that today that she won 11 her Workmen s Comp case. 12 money. She seems happy at this time. 13 trying to 14 traveling somewhere to visit relatives. 15 working out while she was there in the YMCA, etc. 16 She is ambulating with her cane, but not as often, 17 she states. 18 doing much better since she won her case. 19 lose weight. She is waiting to have She just She has been came from She was It is certainly interesting how she is (AR 334.) 20 21 The ALJ observed that Plaintiff s significant difference in 22 demeanor following the settlement of her Worker s Compensation case 23 suggests that Plaintiff has a tendency to exaggerate her symptoms to 24 at least some extent. 25 improvement was a reasonable reaction to her legal victory (JS 26 12.), this evidence does call into question Plaintiff s credibility, 27 and was a reasonable inference in the context of the credibility 28 determination. (AR 75.) Though Plaintiff contends that her 13 1 In addition to the aforementioned inconsistencies, the ALJ also 2 considered 3 credibility of Plaintiff s pain testimony. 4 discredit a claimant s testimony of subjective pain solely because the 5 degree of pain alleged by the claimant is not supported by objective 6 medical evidence, here the objective medical evidence supports the 7 ALJ s aforementioned credibility findings. 8 947 F.2d 341, 346-47 (9th Cir. 1991). the objective medical evidence in discounting the Though an ALJ may not See Bunnell v. Sullivan, 9 The ALJ noted that [a]lthough Ms. Avila s daughter testified 10 that Ms. Avila is unable to sit or walk for extended periods of time, 11 there is no objective medical evidence and/or opinions from any 12 physicians in the record corroborating such severe allegations . . . 13 (AR 73.) 14 stand for only maybe five or 10 minutes at the most, I have to hold 15 on to somebody or sit down, lean against a wall. 16 inconsistent with two doctors exertional reports in the record which 17 found that Plaintiff can stand for four or six hours with normal 18 breaks. 19 account Plaintiff s pain testimony as demonstrated by the imposition 20 of further limitations alternating one-hour intervals of sitting and 21 standing. In particular, Plaintiff testified that she was able to (AR 355, 358.) (AR 46.) This is Moreover, the ALJ did in fact take into (AR 73-75.) 22 The ALJ additionally noted that though Plaintiff claims to be 23 under such severe pain that she stay[s] in bed most of the day, (AR 24 37.), there is no evidence to establish any recent emergency room 25 treatments and/or hospitalizations for treatment of severe knee pain. 26 (AR 73.) 27 claimant s pain testimony, the lack of objective medical evidence 28 verifying Plaintiff s subjective pain testimony does not weigh in Though lack of treatment alone is not enough to discredit a 14 1 Plaintiff s favor. 2 concludes that the ALJ properly evaluated Plaintiff s credibility. Due to the aforementioned reasons, the Court 3 4 V 5 THE ALJ PROPERLY CONSIDERED LAY TESTIMONY FROM THE PLAINTIFF S 6 DAUGHTER, MARIE TORRES 7 8 A. 9 An ALJ must consider lay testimony concerning a claimant s Applicable Law 10 ability to work. 11 2006); Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993). 12 testimony as to a claimant s symptoms or how an impairment affects 13 ability to work is competent evidence . . . and therefore cannot be 14 disregarded without comment. 15 (9th Cir. 1996). Thus, [i]f the ALJ wishes to discount the testimony 16 of the lay witnesses, he must give reasons that are germane to each 17 witness. 18 1211, 1218 (9th Cir. 2005) ( An ALJ need only give germane reasons for 19 discrediting the testimony of lay witnesses. ) (citing Lewis v. Apfel, 20 236 F.3d 503, 511 (9th Cir. 2001)). 21 Stout v. Comm r, 454 F.3d 1050, 1053 (9th Cir. Lay Nguyen v. Chater, 100 F.3d 1462, 1467 Dodrill, 12 F.3d at 919; Bayliss v. Barnhart, 427 F.3d The Ninth Circuit has held that inconsistency with medical 22 evidence is a germane reason for rejecting lay testimony. 23 427 F.3d at 1218. 24 limitations not already described by the claimant, it is not harmful 25 error for the ALJ to fail to discuss lay witness testimony where the 26 ALJ has provided sufficient reasons for rejecting similar testimony. 27 Valentine v. Comm r Social Sec. Admin., 574 F.3d 685, 694 (9th Cir. 28 2009). Bayliss, When lay witness testimony does not introduce any 15 1 B. 2 Plaintiff contends that the ALJ did not properly consider lay 3 testimony from Plaintiff s daughter, Marie Torres ( Torres ). (AR 55- 4 58, 73.) Analysis The ALJ concluded: 5 Although Ms. Avila s daughter testified that Ms. 6 Avila is unable to sit or walk for extended periods 7 of time, there is no objective medical evidence 8 and/or opinions from any physicians in the record 9 corroborating such severe allegations, and there is 10 no evidence to establish any recent emergency room 11 treatments and/or hospitalizations for treatment of 12 severe knee pain. 13 testimony is somewhat inconsistent inasmuch as she 14 originally testified that she tries to exercise on 15 a regular basis , but that she has problems after 16 exercising for a period of approximately 2 days 17 whereas claimant s subsequent testimony and the 18 testimony of her daughter suggest that she lays 19 dormant in bed most of the day every day. 20 It also appears that claimant s (AR 73.) 21 22 The ALJ found that Plaintiff s daughter s testimony was 23 inconsistent with the objective medical evidence. 24 Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) ( An ALJ need only give 25 germane reasons for discrediting the testimony of lay witnesses. ). 26 Plaintiff contends that Torres s testimony was not inconsistent with 27 the objective medical record because the ALJ did not properly consider 28 the 2008 and 2009 bilateral knee x-rays revealing severe bilateral 16 See Bayliss v. 1 knee osteoarthritis. (AR 366, 370.) As already discussed, the ALJ did 2 not err in disregarding this evidence because the 2008 and 2009 knee 3 x-rays were neither probative or significant . 4 Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (quoting Black v. Apfel, 5 143 F.3d 383, 386 (8th Cir. 1998)); Howard ex rel. Wolff v. Barnhart, 6 341 F.3d 1006, 1012 (9th Cir. 2003). 7 Torres s testimony was inconsistent with the objective medical record 8 was a germane reason to discredit her testimony. 9 Moreover, Torres s testimony See Howard v. Thus, the ALJ s finding that was largely reflective of 10 Plaintiff s own testimony. Torres testified that Plaintiff spent most 11 of her day in bed, could not perform most of the household chores 12 alone, and complained of pain. 13 ALJ s reasons for discounting the credibility of Plaintiff s own 14 testimony apply equally to her daughter s testimony as well. 15 Valentine v. Comm r Social Sec. Admin., 574 F.3d 685, 694 (9th Cir. 16 2009). 17 was substantially justified. 18 (AR 28-35, 55-57, 73.) Thus, the Therefore, the ALJ s depreciation of Torres s lay testimony For the foregoing reasons, the Court finds no error with regard 19 to the ALJ s Decision, which will be affirmed. 20 dismissed with prejudice. 21 The Complaint will be IT IS SO ORDERED. 22 23 24 See DATED: July 25, 2012 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 25 26 27 28 17

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