Maria De La Cruz Yanez v. Michael J Astrue, No. 2:2011cv09069 - Document 16 (C.D. Cal. 2012)

Court Description: MEMORANDUM AND OPINION by Magistrate Judge Charles F. Eick. Plaintiff's motion for summary judgment is denied and Defendant's motion for summary judgment is granted. (sp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 MARIA DE LA CRUZ YANES, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, COMMISSIONER ) OF SOCIAL SECURITY ADMINISTRATION, ) ) Defendant. ) ___________________________________) NO. CV 11-9069-E MEMORANDUM OPINION 17 18 PROCEEDINGS 19 20 Plaintiff filed a Complaint on November 1, 2011, seeking review 21 of the Commissioner s denial of benefits. The parties filed a consent 22 to proceed before a United States Magistrate Judge on February 3, 23 2012. 24 25 Plaintiff filed a motion for summary judgment on April 23, 2012. 26 Defendant filed a cross-motion for summary judgment on May 23, 2012. 27 The Court has taken both motions under submission without oral 28 argument. See L.R. 7-15; Order, filed November 4, 2011. BACKGROUND 1 2 3 Plaintiff, a former single needle sewing machine operator, 4 asserted disability since February 27, 2007, based primarily on 5 alleged T.K.R. [total knee replacement], lower back, hip, legs, 6 knees, and heels pain, chondromalacia grade 4, fatigue, [and] 7 osteoarthritis on right knee (Administrative Record ( A.R. ) 52, 141- 8 47, 161, 173). 9 medical record and heard testimony from Plaintiff and a vocational 10 The Administrative Law Judge ( ALJ ) examined the expert (A.R. 12-210, 217-703). 11 12 The ALJ found that Plaintiff suffers from severe degenerative 13 disc disease of the lumbar spine, diabetic neuropathy, and 14 osteoarthritis of the right knee, but retains the residual functional 15 capacity to perform the full range of light work (A.R. 14-20).1 16 ALJ found not credible Plaintiff s testimony regarding the alleged 17 severity of her physical problems (A.R. 16-19). 18 that a person having the capacity to perform the full range of light 19 work could perform Plaintiff s past relevant work as a single needle The ALJ also found 20 21 22 23 24 25 26 27 28 1 Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. 20 C.F.R. § 416.967(b) (emphasis added). 2 The 1 sewing machine operator, as that work is generally performed (A.R. 20 2 (adopting vocational expert testimony at A.R. 43 (describing 3 exertional requirements for the job as light ))). 4 ALJ denied disability benefits (A.R. 12, 20-21). 5 denied review (A.R. 1-3). Accordingly, the The Appeals Council 6 7 Plaintiff argues that the ALJ: (1) erred in rejecting the opinion 8 of Plaintiff s treating rheumatologist; (2) erred in discounting 9 Plaintiff s credibility; and (3) lacked substantial evidence to 10 support the finding that Plaintiff can perform her past relevant work 11 See Plaintiff s Motion, pp. 3-10. 12 13 STANDARD OF REVIEW 14 15 Under 42 U.S.C. section 405(g), this Court reviews the 16 Administration s decision to determine if: (1) the Administration s 17 findings are supported by substantial evidence; and (2) the 18 Administration used correct legal standards. 19 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 20 499 F.3d 1071, 1074 (9th Cir. 2007). 21 relevant evidence as a reasonable mind might accept as adequate to 22 support a conclusion. 23 (1971) (citation and quotations omitted); see also Widmark v. 24 Barnhart, 454 F.3d 1063, 1067 (9th Cir. 2006). See Carmickle v. Substantial evidence is such Richardson v. Perales, 402 U.S. 389, 401 25 26 This Court may not affirm [the Administration s] decision simply 27 by isolating a specific quantum of supporting evidence, but must also 28 consider evidence that detracts from [the Administration s] 3 1 conclusion. Ray v. Bowen, 813 F.2d 914, 915 (9th Cir. 1987) 2 (citation and quotations omitted); see Lingenfelter v. Astrue, 504 3 F.3d 1028 (9th Cir. 2007) (same). 4 findings supported by substantial evidence, even though there may 5 exist other evidence supporting Plaintiff s claim. 6 Richardson, 484 F.2d 59, 60 (9th Cir. 1973), cert. denied, 417 U.S. 7 933 (1974); Harvey v. Richardson, 451 F.2d 589, 590 (9th Cir. 1971). However, the Court cannot disturb See Torske v. 8 9 DISCUSSION 10 11 After consideration of the record as a whole, Defendant s motion 12 is granted and Plaintiff s motion is denied. The Administration s 13 findings are supported by substantial evidence and are free from 14 material2 legal error. 15 unavailing. Plaintiff s contrary contentions are 16 17 I. Substantial Evidence Supports the Conclusion Plaintiff Can Work. 18 Substantial medical and vocational evidence supports the ALJ s 19 20 conclusion that Plaintiff is not disabled. 21 this evidence to deny disability benefits. 22 /// 23 /// 24 /// 25 A. The ALJ properly relied on Summary of the Medical Record 26 2 27 28 The harmless error rule applies to the review of administrative decisions regarding disability. See McLeod v. Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 4 1 Plaintiff s primary care physician, Dr. Gary Brown, treated 2 Plaintiff since 1996 for hypertension, high cholesterol, diabetes 3 mellitus, and degenerative joint disease in Plaintiff s knees. 4 A.R. 259-68, 271-78, 283, 290-93, 296-308, 311-66, 557-58, 606-07 5 (treatment notes). 6 high glucose, and some high cholesterol readings (A.R. 367-74, 378-86, 7 389-90, 393-94, 398-415, 420-23, 425-27, 429, 436, 438-39, 441-45, 8 450). 9 sugar is controlled when checked at home (A.R. 298). See Lab work for Plaintiff showed high triglycerides, A treatment note from March 2006 indicates Plaintiff s blood 10 11 On March 19, 2007, Plaintiff reportedly told Dr. Brown that 12 Plaintiff thought she needed to be disabled (A.R. 283). Dr. Brown 13 observed Plaintiff using a cane on August 21, 2008, when Plaintiff 14 asked the doctor to fill out disability forms (A.R. 259). 15 January 30 and May 28, 2009, Dr. Brown noted that Plaintiff continued 16 to believe she is disabled (A.R. 557, 606). 17 that Plaintiff is disabled. On Dr. Brown never opined 18 19 Dr. Brown referred Plaintiff to rheumatologist Dr. Thomas Romano 20 in 2006 for an evaluation of Plaintiff s right knee pain (A.R. 295). 21 Dr. Romano had seen Plaintiff for her right knee in 2004, and had 22 diagnosed osteoarthritis (A.R. 295; see also A.R. 309-10 (earlier 23 treatment records); A.R. 463 (x-ray report from 2004 showing mild 24 degenerative changes to the right knee)). 25 Romano on June 29, 2006, that Plaintiff had fallen seven or eight 26 weeks ago and had been experiencing increased pain and swelling in her 27 right knee (A.R. 295). 28 in the right knee (id.). Plaintiff reported to Dr. Dr. Romano once again diagnosed osteoarthritis Dr. Romano recommended physical therapy, 5 1 corticosteroid injections, and daily medication (Orudis). (Id.). 2 Romano gave Plaintiff injections on August 8, 2006, February 14, 2007, 3 March 1, 2007, and March 8, 2007 (A.R. 287-89, 294). Dr. 4 5 On January 30, 2008, orthopaedic surgeon Dr. Luigi Galloni 6 performed arthroscopic surgery on Plaintiff s right knee to treat 7 Plaintiff s osteoarthritis, chondromalacia Grade IV medial femoral 8 condyle and medial tibial plateau, and a tear of the medial meniscus 9 (A.R. 221-23).3 After the surgery, Dr. Galloni started Plaintiff on 10 physical therapy (A.R. 220). On March 24, 2008, Dr. Galloni reported 11 that Plaintiff had not been improving since the surgery and that 12 nothing more could be done, except Plaintiff should continue with 13 exercises and physical therapy (A.R. 219). 14 Plaintiff eventually would require a total knee arthroplasty, but that 15 Plaintiff was overweight and too young for a total knee replacement Dr. Galloni indicated that 16 17 3 18 19 20 21 22 23 24 25 26 27 28 On initial examination in July 2007, Dr. Galloni reported that Plaintiff had decreased range of motion in the right knee with tenderness to palpation of the medial and lateral joint line and some crepitus at range of motion (A.R. 230). Xrays showed a collapse of the medial compartment of the right knee, and an MRI showed a tear to the medial meniscus of the right knee with degeneration of the cartilage of the medial compartment (A.R. 231; see also A.R. 458-59 (MRI report from June 12, 2007)). Dr. Galloni diagnosed osteoarthritis of the right knee and indicated that Plaintiff may be in need of a right knee replacement (A.R. 231). An MRI of Plaintiff s lumbosacral spine dated December 4, 2007, showed mild-to-moderate hypertrophy of the facet joints, which Dr. Galloni opined does not seem to be the situation that is causing the patient such problems (A.R. 225-27, 231). Earlier x-rays of the lumbar spine dated February 14 and August 20, 2007, showed only evidence of spasm and a normal lumbar spine, respectively (A.R. 229, 457). 6 1 (A.R. 219). By May 5, 2008, Dr. Galloni reported some minimal 2 improvement by Plaintiff post-surgery (A.R. 218). 3 continue with her exercises (A.R. 218). 4 Galloni reported that Plaintiff eventually had some improvement with 5 the arthroscopy, but was still having some problems and pain (A.R. 6 217). Plaintiff was to By August 4, 2008, Dr. 7 8 9 Plaintiff underwent consultative examinations, which found no disabling impairments. Consultative examiner Dr. A. Rahman Khaledy 10 Sultan prepared a Complete Internal Medicine Evaluation of Plaintiff 11 dated December 2, 2008 (A.R. 520-25). 12 back pain, high blood pressure, diabetes, high cholesterol, and right 13 knee pain, and Plaintiff also reported her January 2008 knee surgery 14 (A.R. 520-21). 15 office, and the doctor observed that Plaintiff had no difficulty 16 getting into and out of a chair (A.R. 520-21). Plaintiff reported a history of Dr. Sultan stated that Plaintiff drove herself to the 17 18 On examination, Dr. Sultan found moderate limitation of back 19 movement, with no loss of lordosis, no paralumbar muscle spasm, 20 no tenderness to palpation, and negative straight leg raising tests 21 (A.R. 523). 22 osteoarthritis, but range of motion was intact (A.R. 524). 23 noted no other issues (A.R. 520-24). 24 and right knee x-rays, which revealed mild disc degeneration at 25 /// 26 /// Dr. Sultan also found Plaintiff s right knee had 27 28 7 Dr. Sultan Dr. Sultan ordered lumbar spine 1 the L2-L3 vertebrae and generalized osteopenia,4 and mild to moderate 2 osteoarthritis in the right knee (A.R. 524, 526). 3 4 Dr. Sultan opined that Plaintiff could perform medium work, i.e., 5 she could lift and carry 50 pounds occasionally, 25 pounds frequently, 6 could stand or walk six hours in an eight-hour day, and could sit for 7 six hours in an eight-hour day with normal breaks (A.R. 525). 8 Sultan imposed no postural, manipulative, visual, communicative or 9 environmental limitations (A.R. 525). Dr. Dr. Sultan stated that 10 Plaintiff would not need a cane for short distances, but Plaintiff 11 told Dr. Sultan she uses a cane for long distances (A.R. 525). 12 13 Consultative psychologist Rosa Colonna examined Plaintiff and 14 prepared a Psychological Evaluation of Plaintiff dated January 7, 2009 15 (A.R. 529-33). Dr. Colonna observed that Plaintiff was 16 overweight/obese, and ambulated with a cane (A.R. 529, 533). 17 examination, Plaintiff s intellectual functioning fell in the 18 borderline to low-average range (A.R. 531-32). 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// Dr. Colonna assigned 25 26 4 27 28 Osteopenia is a reduction in bone volume to below normal levels. See Medline Plus Medical dictionary entry for osteopenia, available online at www.merriam-webster.com/ medlineplus/osteopenia (last visited July 5, 2012). 8 On 1 plaintiff a GAF score of 65.5 2 be able to understand, remember, and carry out short and simplistic 3 instructions without difficulty. 4 understand, remember, and carry out detailed instructions. 5 could make simplistic work-related decisions without special 6 supervision. Dr. Colonna opined that Plaintiff would She would have a mild inability to Dr. Colonna found no other limitations. Plaintiff See A.R. 533. 7 8 9 Plaintiff thereafter returned to Dr. Romano with complaints of bilateral knee pain (A.R. 596, 598, 603, 608, 611). Dr. Romano 10 examined Plaintiff on March 9, 2009, and found marked crepitus and 11 decreased range of motion in the right knee, a fairly normal range of 12 motion in the left knee, and some discomfort in Plaintiff s right heel 13 (A.R. 611). 14 osteoarthritis in her right knee and probable Achilles tendinitis in 15 her right heel (A.R. 611).6 16 arthroscopic surgery did not help Plaintiff s right knee, nor did 17 treatment with multiple NSAIDS, physical therapy, injections of 18 corticosteroids and injections of Euflexxa (A.R. 611). 19 agreed with Dr. Galloni that Plaintiff was too young for a right total Dr. Romano opined that Plaintiff has severe Dr. Romano stated that Plaintiff s Dr. Romano 20 21 22 23 24 25 26 27 28 5 Clinicians use the GAF scale to report an individual s overall level of functioning. A GAF of 61-70 indicates some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. Siegel v. Astrue, 2009 WL 2365693, at *6 n.6 (E.D. Cal. July 31, 2009) (quoting from American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 32 (4th Ed. 1994)). 6 A week later, podiatrist Dr. Stanley Mathis diagnosed tendinitis (A.R. 610). Dr. Mathis prescribed physical therapy and heel lifts for both of Plaintiff s feet (A.R. 610). 9 1 knee replacement (A.R. 611). Dr. Romano prescribed Lyrica, a Flector 2 Patch, and additional Euflexxa injections (A.R. 611). 3 injected Plaintiff s right knee with Euflexxa on April 23 and May 7, 4 2009, and her left knee with Euflexxa on July 10, 20, and 27, 2009 5 (A.R. 603-05, 608-09). Dr. Romano 6 7 On September 23, 2009, Plaintiff reported that her right heel was 8 swollen with pain, but that Euflexxa injections had helped her left 9 knee (A.R. 598). Dr. Romano noted right patellar tendinitis helped by 10 a patch (A.R. 598). On January 26, 2010, Plaintiff reported that the 11 injections had helped, she was happy with Celebrex, and she did not 12 need additional injections at that time (A.R. 596). 13 reported worse pain when bending her knees for an extended time and 14 pain moving up her leg when walking, however (A.R. 596). Plaintiff 15 16 B. Analysis 17 18 In determining that Plaintiff retains the residual functional 19 capacity to perform the full range of light work, the ALJ gave weight 20 to Dr. Sultan s internal medicine evaluation, but ultimately assigned 21 Plaintiff a more restrictive capacity than Dr. Sultan found to exist. 22 See A.R. 16, 19 ( The undersigned gives significant weight to the 23 above opinions; however, notes that the residual functional capacity 24 finding contained herein is more restrictive than any other opinion 25 throughout the record. ). 26 light of the claimant s medical history she is limited in her ability 27 to lift and/or carry, and these limitations are reflected in the 28 [residual functional capacity] identified above (A.R. 18). The ALJ stated, the undersigned finds in 10 1 The ALJ assigned no mental restrictions, citing Dr. Colonna s 2 assessment that Plaintiff would have only mild limitations in her 3 ability to carry out detailed instructions (A.R. 15). 4 Plaintiff s mental condition non-severe because the condition would 5 cause no more than a minimal limitation on Plaintiff s ability to 6 perform basic mental work activities. 7 §§ 404.1521, 416.921 (defining non-severity). 8 appear to dispute this conclusion. The ALJ deemed See A.R. 15; see also 20 C.F.R. Plaintiff does not 9 10 The consultative examiners findings constitute substantial 11 evidence supporting the ALJ s decision. See Tonapetyan v. Halter, 242 12 F.3d 1144, 1149 (9th Cir. 2001) (consulting examiner s opinion is 13 substantial evidence that can support an ALJ s finding of 14 nondisability); see also Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 15 2007) (examining physician s independent clinical findings are 16 substantial evidence). 17 18 Additional support for the ALJ s decision is found in the See Tonapetyan 19 opinions of the non-examining State agency physician. 20 v. Halter, 242 F.3d at 1149 (non-examining physician s opinion may 21 constitute substantial evidence when opinion is consistent with 22 independent evidence of record); Lester v. Chater, 81 F.3d 821, 831 23 (9th Cir. 1995) (same). 24 Physical Residual Functional Capacity Assessment form for Plaintiff 25 dated January 26, 2009 (A.R. 548-52). 26 found that Plaintiff has the capacity to perform medium work. 27 /// 28 /// State agency physician P.N. Ligot completed a 11 Like Dr. Sultan, Dr. Ligot Id. 1 To the extent the record contains conflicting medical evidence, 2 it was the prerogative of the ALJ to resolve the conflicts. See Lewis 3 v. Apfel, 236 F.3d 503, 509 (9th Cir. 2001). 4 evidence is susceptible to more than rational interpretation, the 5 Court must uphold the administrative decision. 6 Shalala, 53 F.3d 1035, 1039-40 (1995); accord Thomas v. Barnhart, 278 7 F.3d 947, 954 (9th Cir. 2002); Sandgathe v. Chater, 108 F.3d 978, 980 8 (9th Cir. 1997). Where, as here, the See Andrews v. 9 10 Having found that Plaintiff retains the residual functional 11 capacity to perform the full range of light work, the ALJ properly 12 relied on the Dictionary of Occupational Titles ( DOT ) and vocational 13 expert testimony to conclude that Plaintiff can perform her past 14 relevant work as a single needle sewing machine operator as generally 15 performed (A.R. 20). 16 (garment) (alternatively titled single-needle operator ) describes 17 the job as requiring light exertion. 18 A.R. 43 (vocational expert testifying that the normal exertional level 19 for a sewing machine operator is light). 20 ALJ s conclusion that Plaintiff can work. 21 ( SSR ) 82-62 ( The [residual functional capacity] to meet the 22 physical and mental demands of jobs a claimant has performed in the 23 past (either the specific job a claimant performed or the same kind of 24 work as it is customarily performed throughout the economy) is 25 generally a sufficient basis for a finding of not disabled. . . . 26 Determination of the claimant s ability to do [past relevant work] 27 requires a careful appraisal of . . . in some cases, supplementary or 28 corroborative information from other sources such as employers, the The DOT listing for lockstitch-machine operator 12 See DOT 786.682-170; see also This evidence supports the See Social Security Ruling 1 Dictionary of Occupational Titles, etc., on the requirements of the 2 work as generally performed in the economy. ); see also Kennedy v. 3 Astrue, 2012 WL 2131870, at *12 (D. Nev. May 4, 2012), adopted, 2012 4 WL 2131458 (D. Nev. June 11, 2012) (DOT listing and vocational expert 5 testimony that past relevant work required light exertion amply 6 supported ALJ s determination that a claimant who could perform a full 7 range of light work was capable of performing the claimant s past 8 relevant work).7 9 10 11 II. The ALJ Did Not Materially Err in Evaluating Dr. Romano s Opinions. 12 13 Plaintiff argues that the ALJ erred in rejecting the opinions of 14 treating rheumatologist Dr. Romano. See Plaintiff s Motion, pp. 3-7. 15 Dr. Romano provided Plaintiff with a letter dated January 26, 2010, 16 urging that Plaintiff s MediCal not be taken away (A.R. 584). 17 Romano also completed a Multiple Impairment Questionnaire dated 18 February 10, 2010 (A.R. 586-93). 19 osteoarthritis in both knees and status post-arthroscopic debridement 20 of the right knee, and gave Plaintiff a poor prognosis (A.R. 586). 21 Dr. Romano reported clinical findings supposedly showing severe 22 crepitus and decreased range of motion in both knees with positive 23 McMurray in her right knee, and marked quadricep atrophy in her thighs 24 bilaterally, and laboratory testing showing grade IV chondromalacia in 25 both knees from x-rays, assertedly confirmed by the arthroscopic Dr. Dr. Romano diagnosed severe 26 27 28 7 Social Security rulings are binding on the Administration. See Terry v. Sullivan, 903 F.2d 1273, 1275 n.1 (9th Cir. 1990). 13 1 surgery (A.R. 586-87). Dr. Romano opined that Plaintiff s condition 2 causes severe pain in her knees, stiffness, and locking and buckling 3 of the knee (A.R. 587). 4 worsened by prolonged rest and prolonged walking (A.R. 587). 5 Romano ranked Plaintiff s pain and fatigue at nine on a scale of zero 6 to ten (A.R. 588). The pain reportedly is severe and constant, Dr. 7 8 9 Dr. Romano opined that Plaintiff would be able to sit one hour a day and stand and walk less than one hour a day, and indicated that it 10 would be necessary or medically recommended that Plaintiff not sit 11 continuously or stand/walk continuously in a work setting (A.R. 588- 12 89). 13 move around for 15 minutes (A.R. 588-89). 14 that Plaintiff could occasionally lift and carry less than five 15 pounds, and would have moderate upper extremity limitations (A.R. 589- 16 90). 17 causes drowsiness, and also was taking Celebrex (A.R. 590). 18 Romano indicated that Plaintiff s symptoms would increase if she 19 worked, and that her condition would interfere with her ability to 20 keep her neck in a constant position (A.R. 590). 21 that Plaintiff would need to take unscheduled breaks every 15 minutes 22 for 30 minutes or more, and would be absent from work more than three 23 times each month (A.R. 591-92). 24 would need a job that permits ready access to a restroom (A.R. 592). 25 Dr. Romano stated, Pt has failed numerous therapies. 26 require bilateral total knee arthroplasties soon (A.R. 592). 27 /// 28 /// Every 30 minutes, Plaintiff reportedly would need to get up and Dr. Romano further opined Plaintiff was taking tramadol for her pain, which supposedly Dr. Dr. Romano opined Dr. Romano indicated that Plaintiff 14 She will 1 2 The ALJ considered, but gave limited weight to Dr. Romano s opinion (A.R. 19-20). The ALJ explained: 3 4 Dr. Romano opined that the claimant suffers from extreme 5 limitations; however, his own progress reports fail to 6 reveal the type of significant clinical and laboratory 7 abnormalities one would expect if the claimant did, in fact, 8 have such limitations and the doctor did not specifically 9 address this weakness. While Dr. Romano noted on 10 examination in March 2009 that the claimant had decreased 11 range of motion with crepitus, the remainder of progress 12 notes until September 2009 consist only of reports that the 13 claimant received injections to her knees. 14 Dr. Romano asserted that the injections and pain patches 15 did help her knee. 16 January 2010, when Dr. Romano noted only mildly swollen and 17 tender knees with joint space narrowing. 18 noted above, the claimant admitted that the injections 19 helped and she is happy with the [anti-inflammatory] and 20 does not need injections at this time. 21 also finds that there is no medical evidence supporting 22 limitations related to keeping the neck in a constant 23 position, sitting for only [one] hour in an 8-hour workday; 24 and requiring a job that permits ready access to the 25 restroom. 26 assessment apparently relied quite heavily on the subjective 27 report of symptoms and limitations provided by the claimant, 28 and seemed to uncritically accept as true most, if not all, In September, The claimant did not return until Furthermore, as The undersigned Given the lack of objective support, Dr. Romano s 15 1 of what the claimant reported. Yet, as explained elsewhere 2 in this decision, there exist good reasons for questioning 3 the reliability of the claimant s subjective symptoms. 4 5 (A.R. 19-20 (internal citations omitted)). 6 7 The ALJ s stated reasons adequately support the rejection of Dr. 8 Romano s contradicted opinions regarding the severity of Plaintiff s 9 limitations. See Valentine v. Commissioner, 574 F.3d 685, 692 (9th 10 Cir. 2009) (an ALJ must provide specific, legitimate reasons based 11 on substantial evidence in the record for rejecting a treating 12 physician s contradicted opinion); Orn v. Astrue, 495 F.3d at 631-33 13 (same). 14 regarding severity as unsupported by progress notes or clinical 15 findings. 16 2005) (contradiction between treating physician s assessment and 17 clinical notes justifies rejection of assessment); Batson v. 18 Commissioner, 359 F.3d 1190, 1195 (9th Cir. 2004) ( an ALJ may 19 discredit treating physicians opinions that are conclusory, brief, 20 and unsupported by the record as a whole . . . or by objective medical 21 findings ); Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 2003) 22 (treating physician s opinion properly rejected where treating 23 physician s treatment notes provide no basis for the functional 24 restrictions he opined should be imposed on [the claimant]. ). First, the ALJ properly rejected Dr. Romano s opinions See Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 25 26 Second, the ALJ properly rejected Dr. Romano s opinions as 27 reliant on Plaintiff s subjective complaints. 28 disregard a treating physician opinion that is based on a claimant s 16 An ALJ is free to 1 subjective complaints where the ALJ has properly discounted those 2 subjective complaints. 3 Fair v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989) (disregarding opinion 4 premised on claimant s properly-discounted subjective complaints is a 5 specific, legitimate reason for rejecting a treating physician s 6 opinion); see also Mattox v. Commissioner of Social Security, 371 Fed. 7 App x 740, 742 (9th Cir. 2010) ( a physician s opinion of disability 8 premised to a large extent upon the claimant s own accounts of his 9 symptoms and limitations may be disregarded where those complaints 10 have been properly discounted ) (internal quotations and citations 11 omitted).8 12 Plaintiff s subjective complaints. See Tonapetyan v. Halter, 242 F.3d at 1149; As discussed below, the ALJ properly discounted 13 14 15 III. The ALJ Did Not Materially Err By Deeming Plaintiff s Testimony Less Than Fully Credible. 16 17 Plaintiff argues that the ALJ did not properly assess Plaintiff s 18 testimony regarding her alleged limitations. See Plaintiff s Motion, 19 pp. 7-9. 20 to great weight. 21 Cir. 1990); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985). 22 discounting of a claimant s testimony regarding subjective symptoms 23 must be supported by specific, cogent findings. 24 81 F.3d at 834; see also Berry v. Astrue, 622 F.3d 1228, 1234 (9th 25 Cir. 2010) (reaffirming same); Varney v. Secretary of Health and Human An ALJ s assessment of a claimant s credibility is entitled Anderson v. Sullivan, 914 F.2d 1121, 1124 (9th See Lester v. Chater, 26 27 28 8 The Court may cite to unpublished Ninth Circuit opinions issued on or after January 1, 2007. See U.S. Ct. App. 9th Cir. Rule 36-3(b). 17 The 1 Serv., 846 F.2d 581, 584 (9th Cir. 1988) (generally discussing 2 specificity requirement); but see Smolen v. Chater, 80 F.3d 1273, 3 1282-84 (9th Cir. 1996) (indicating that ALJ must offer specific, 4 clear and convincing reasons to reject a claimant s testimony where 5 there is no evidence of malingering).9 6 argument, the ALJ stated sufficient reasons for deeming Plaintiff s 7 testimony less than fully credible. Contrary to Plaintiff s 8 9 Plaintiff testified that she has problems walking. Plaintiff 10 said that she could walk only 10 minutes before needing rest (A.R. 11 46). 12 been prescribed for her (A.R. 47). 13 20 to 30 minutes before having to get up, and stand for five minutes 14 at most (A.R. 47-48). 15 when she takes her medication (A.R. 48). 16 Romano told her that with the knee injections she would be able to 17 walk and feel well, but she supposedly was not able to do so (A.R. 18 49). Plaintiff began using a cane in 2006, although a cane has never Plaintiff said she could sit for Plaintiff said she lies down during the day Plaintiff testified that Dr. 19 20 21 In an undated Disability Report - Adult form, Plaintiff reported that she stopped working because she was limited to standing no more 22 9 23 24 25 26 27 28 In the absence of evidence of malingering, most recent Ninth Circuit cases have applied the clear and convincing standard. See, e.g., Molina v. Astrue, 674 F.3d 1104 (9th Cir. 2012); Taylor v. Commissioner, 659 F.3d 1228, 1234 (9th Cir. 2011); Valentine v. Commissioner, 574 F.3d at 693; Carmickle v. Commissioner, 533 F.3d 1155, 1160 (9th Cir. 2008); Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007); Ballard v. Apfel, 2000 WL 1899797, at *2 n.1 (C.D. Cal. Dec. 19, 2000) (collecting cases). In the present case, the ALJ s findings are sufficient under either standard, so the distinction between the two standards (if any) is academic. 18 1 than three minutes and walking only with a cane or crutches (A.R. 2 173). 3 heels, allegedly making it very difficult and painful to walk (A.R. 4 174). Plaintiff reported severe pain in her hip, low back, knees, and 5 6 Yet, in an Exertion Questionnaire dated October 28, 2008, 7 Plaintiff reported that she spends her days cleaning her house (A.R. 8 169). 9 needing to rest for at least 30 minutes due to pain in her hip, lower Plaintiff reportedly could clean for about 15 minutes before 10 back, and knees (A.R. 171). Plaintiff reported that her Tramadol, 11 which she takes four times a day for pain, makes her sleepy (A.R. 169, 12 171). Plaintiff reported that she slowly walks 30 to 40 minutes to a 13 bus stop when she has doctor appointments (A.R. 169). Plaintiff also 14 reported that she sit[s] mostly all day (A.R. 170). Plaintiff 15 indicated that she drives a manual car, but claimed that she does not 16 have a license and cannot drive anymore because of her knee pain (A.R. 17 170). 18 (A.R. 171). 19 and a wheelchair when she goes to the market (A.R. 171). 20 reported that her condition had gotten worse since her surgery (A.R. 21 171). Plaintiff reported taking one nap per day for 15 to 30 minutes Plaintiff reported using a cane every day; every where Plaintiff 22 23 The ALJ found that Plaintiff s medically determinable impairments 24 could reasonably cause Plaintiff s alleged symptoms (A.R. 16). 25 ALJ found Plaintiff s testimony concerning the extent of her 26 limitations less than fully credible, however. 27 that Plaintiff s testimony concerning her need for a cane and her 28 other exertional limitations are notably without support from the 19 Id. The The ALJ explained 1 medical record, which are conspicuously absent severe medical 2 abnormalities that would account for consistent significant problems 3 with standing and/or walking (A.R. 16-17). 4 cane was not prescribed, the medical record was devoid of any evidence 5 that Plaintiff uses her cane on a daily basis or brought her cane to 6 her doctors visits,10 and Dr. Sultan observed that Plaintiff could 7 get into and out of a chair without difficulty, get on and off the 8 examination table without difficulty, and walk across the room without 9 difficulty (A.R. 17).11 The ALJ observed that the The ALJ also stated that Plaintiff s 10 allegations were not fully credible in light of the evidence showing 11 Plaintiff s eventual knee improvement with arthroscopy and injections, 12 the relatively mild findings with respect to Plaintiff s lumbar spine, 13 and the lack of medical treatment one would expect for allegedly 14 disabling pain (A.R. 17-18). 15 cannot be rejected on the sole ground that it is not fully 16 corroborated by objective medical evidence, the medical evidence is 17 still a relevant factor. . . . 18 857 (9th Cir. 2001); see also Burch v. Barnhart, 400 F.3d 676, 681 19 (9th Cir. 2005) ( lack of medical evidence can be a factor in 20 /// 21 /// 22 /// 23 /// Although a claimant s credibility Rollins v. Massanari, 261 F.3d 853, 24 25 26 27 28 10 The only regular doctor visit at which Plaintiff reportedly used a cane occurred on August 21, 2008, when Plaintiff asked Dr. Brown to fill out disability forms. See A.R. 259. Plaintiff also used a cane for her psychological consultative examination (A.R. 529). 11 See A.R. 521, 524 (Dr. Sultan s observations). 20 1 rejecting credibility, but cannot form the sole basis ).12 2 3 The ALJ also cited Plaintiff s failure to follow up on 4 recommendations made by treating doctors, such as recommendations for 5 additional physical therapy (A.R. 18). 6 did not receive physical therapy apart from therapy for one month 7 after her knee surgery in 2008, notwithstanding the recommendation for 8 physical therapy a year later by her treating podiatrist (A.R. 40; see 9 also A.R. 610 (podiatrist s recommendation)). Plaintiff testified that she Failure to seek medical 10 treatment can justify an adverse credibility determination. See 11 Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991); Fair v. Bowen, 12 885 F.2d 597, 603-04 (9th Cir. 1989); see also Molina v. Astrue, 674 13 F.3d 1104, 1112 (9th Cir. 2012) ( ALJ may consider. . . unexplained or 14 inadequately explained failure to seek treatment or to follow a 15 prescribed course of treatment in evaluating claimant s credibility). 16 17 18 Finally, the ALJ also discounted Plaintiff s credibility based on inconsistencies (A.R. 19). The ALJ cited, inter alia, Plaintiff s 19 12 20 21 22 23 24 25 26 27 28 The ALJ cited Plaintiff s fairly limited daily activities as not objectively verified with any reasonable degree of certainty, and as difficult to attribute to Plaintiff s medical condition, as opposed to other reasons (A.R. 18-19). This reasoning does not add any appreciable support to the ALJ s credibility determination. A claimant s alleged limitations on daily activities need not be subject to independent verification. Cf. Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996) ( claimant need not . . . produce objective medical evidence of the causal relationship between the medically determinable impairment and the symptom ). If error, however, this part of the ALJ s credibility analysis was harmless error. See Carmickle v. Commissioner, 533 F.3d 1155, 1162-63 (9th Cir. 2008) (invalid reason given for credibility determination harmless where ALJ stated other, valid reasons for the determination). 21 1 testimony that she stopped driving in 1995, and Dr. Sultan s report 2 that Plaintiff drove herself to the appointment in 2008 (A.R. 19; see 3 also A.R. 37-39 (ALJ questioning Plaintiff re same during 4 administrative hearing); A.R. 520 (Dr. Sultan noting that Plaintiff 5 was able to drive herself to the office)). 6 claimant s testimony and conduct can support the rejection of a 7 claimant s credibility. 8 evaluating a claimant s credibility, an ALJ may consider 9 inconsistencies either in the claimant s testimony or between the An inconsistency between a See Molina v. Astrue, 674 F.3d at 1112 (in 10 testimony and the claimant s conduct ); Thomas v. Barnhart, 278 F.3d 11 947, 958-59 (9th Cir. 2002) (same); Verduzco v. Apfel, 188 F.3d 1087, 12 1090 (9th Cir. 1999) (same). 13 14 Because the ALJ s credibility findings were sufficiently specific 15 to allow this Court to conclude that the ALJ rejected Plaintiff s 16 testimony on permissible grounds, Moisa v. Barnhart, 367 F.3d 882, 885 17 (9th Cir. 2004), the Court defers to the ALJ s credibility findings. 18 See Lasich v. Astrue, 252 Fed. App x 823, 825 (9th Cir. 2007) (court 19 will defer to ALJ s credibility determination when the proper process 20 is used and proper reasons for the decision are provided); accord 21 Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1464 22 (9th Cir. 1995). 23 24 25 IV. The ALJ Did Not Materially Err in Finding that Plaintiff Can Perform Her Past Relevant Work. 26 27 Plaintiff argues that the ALJ erred in finding that Plaintiff 28 could perform her past relevant work because the ALJ supposedly failed 22 1 to account for the fact that the sewing machine operator job requires 2 the use of a pedal or knee lever. 3 (citing DOT 786.682-070 [sic]); see also DOT 786.682-170 (DOT listing 4 for Plaintiff s past relevant work incorporates by reference duties 5 described under Sewing-machine operator, regular equipment (any 6 industry) Master Title, which include using a pedal or knee lever ). 7 Plaintiff argues that the ALJ should have made separate findings 8 regarding whether Plaintiff is able to perform each of the activities 9 that Plaintiff s past relevant work requires. See Plaintiff s Motion, p. 9 10 11 As discussed above, substantial evidence supports the ALJ s 12 finding that Plaintiff is capable of performing the full range of 13 light work, without any further limitations regarding the use of her 14 lower extremities. 15 particular requirements of the light work job of sewing machine 16 operator as generally performed. 17 1438684, at *6 (D. Or. April 24, 2012) (affirming ALJ s finding that 18 claimant could perform past relevant work classified as unskilled, 19 light where Plaintiff retained residual functional capacity to 20 perform the full range of light work; claimant did not establish any 21 greater limitations, and the ALJ was not required further to develop 22 the demands of the claimant s past relevant work pertaining to alleged 23 limitations; the DOT and vocational expert s testimony provided 24 sufficient detail to support the ALJ s decision). 25 /// 26 /// 27 /// 28 /// Therefore, the ALJ need not have parsed the See, e.g., Dodd v. Astrue, 2012 WL 23 1 CONCLUSION 2 3 For all of the reasons discussed herein, Plaintiff s motion for 4 summary judgment is denied and Defendant s motion for summary judgment 5 is granted.13 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 DATED: July 16, 2012. 10 11 ______________/S/_________________ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 The Court has considered and rejected each of Plaintiff s arguments. Neither Plaintiff s arguments nor the circumstances of this case show any substantial likelihood of prejudice resulting from any error allegedly committed by the Administration. See generally McLeod v. Astrue, 634 F.3d 516, 522-23 (9th Cir. 2011) (discussing the standards applicable to evaluating prejudice). 24

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