James Nunez v. Michael J Astrue, No. 2:2011cv10219 - Document 19 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER AFFIRMING THE COMMISSIONER by Magistrate Judge Jean P Rosenbluth: (See document for details.) Consistent with the foregoing, and pursuant to sentence four of 42 U.S.C. 405(g), IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner and dismissing this action with prejudice. IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment on counsel for both parties. (rla)
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 JAMES NUNEZ, 10 Plaintiff, 11 12 13 vs. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 14 Defendant. 15 ) Case No. CV 11-10219-JPR ) ) ) MEMORANDUM OPINION AND ORDER ) AFFIRMING THE COMMISSIONER ) ) ) ) ) ) ) 16 17 I. PROCEEDINGS 18 Plaintiff seeks review of the Commissioner s final decision 19 denying his application for Social Security Supplemental Security 20 Income ( SSI ). The parties consented to the jurisdiction of the 21 undersigned U.S. Magistrate Judge pursuant to 28 U.S.C. § 636(c). 22 This matter is before the Court on the parties Joint 23 Stipulation, filed September 28, 2012, which the Court has taken 24 under submission without oral argument. For the reasons stated 25 below, the Commissioner s decision is affirmed and this action is 26 dismissed. 27 II. BACKGROUND 28 Plaintiff was born on November 17, 1969. 1 (Administrative 1 Record ( AR ) 173.) He has a high school education and is able 2 to communicate in English. (AR 38.) Plaintiff worked beginning 3 in approximately 1985 as a parts clerk and delivery-route driver. 4 (AR 67, 178.) 5 2008.1 He stopped working sometime between 2005 and (See AR 39-40, 578, 743.) On March 12, 2008, Plaintiff 6 filed an application for SSI, alleging a disability onset date of 7 February 1, 2007.2 (AR 168-74, 182.) The application was 8 initially denied on April 18, 2008 (AR 81), and again upon 9 reconsideration on August 29, 2008 (AR 88).3 10 After Plaintiff s application was denied, he requested a 11 hearing before an Administrative Law Judge ( ALJ ); an initial 12 hearing was held on August 19, 2009, during which the ALJ found 13 that the record was not sufficiently developed and ordered that 14 further evidence be obtained. (AR 33-34.) A full hearing was 15 16 17 18 19 20 21 22 1 Plaintiff testified that he stopped working in March 2005, when he was diagnosed with lupus (AR 39-40), but there is evidence in the record that he continued to work until at least December 2007, when he was hospitalized with complications from lupus and had a stroke (see AR 743), and possibly all the way until September 2008 (see AR 578 (September 18, 2008 treatment notes noting doctor is having the nurse try to contact [Plaintiff] at work ); see also AR 480 (June 5, 2008 treatment notes noting Plaintiff is having some return of dermatitis with increasing sun exposure during the day and travels to and from work when he started work again )). 2 Plaintiff s Disability Report states that the alleged onset 23 date is December 1, 1999. (AR 182.) The interview notes 24 further state that Claimant has been disabled however the 25 26 27 28 doctors could not diagnose him until 2005 and [h]e last worked in 1999 due to his disability he could no longer work. (AR 185.) As discussed below, it is unclear when, or if, Plaintiff actually stopped working. 3 Plaintiff also applied for Disability Insurance Benefits on March 12, 2008. (AR 173-74.) He has not appealed any denial of those benefits to this Court. (See generally Compl., J. Stip.) 2 1 held on December 17, 2009, at which Plaintiff, who was 2 represented by counsel, appeared and testified on his own behalf. 3 (AR 37-56.) Medical Expert ( ME ) Steven Gerber, M.D., and 4 Vocational Expert ( VE ) Gail Maron also testified. (AR 56-72.) 5 In a written decision issued on July 19, 2010, the ALJ determined 6 that Plaintiff was not disabled. (AR 14-24.) Plaintiff then 7 requested review of the ALJ s decision, and on October 20, 2011, 8 the Appeals Council denied review. (AR 1-5.) This action 9 followed. 10 III. STANDARD OF REVIEW 11 Pursuant to 42 U.S.C. § 405(g), a district court may review 12 the Commissioner s decision to deny benefits. The ALJ s findings 13 and decision should be upheld if they are free from legal error 14 and are supported by substantial evidence based on the record as 15 a whole. § 405(g); Richardson v. Perales, 402 U.S. 389, 401, 91 16 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971); Parra v. Astrue, 481 17 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means such 18 evidence as a reasonable person might accept as adequate to 19 support a conclusion. Richardson, 402 U.S. at 401; Lingenfelter 20 v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 21 a scintilla but less than a preponderance. It is more than Lingenfelter, 504 22 F.3d at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 23 882 (9th Cir. 2006)). To determine whether substantial evidence 24 supports a finding, the reviewing court must review the 25 administrative record as a whole, weighing both the evidence that 26 supports and the evidence that detracts from the Commissioner s 27 conclusion. 28 1996). Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. If the evidence can reasonably support either affirming 3 1 or reversing, the reviewing court may not substitute its 2 judgment for that of the Commissioner. Id. at 720-21. 3 IV. THE EVALUATION OF DISABILITY 4 People are disabled for purposes of receiving Social 5 Security benefits if they are unable to engage in any substantial 6 gainful activity owing to a physical or mental impairment that is 7 expected to result in death or which has lasted, or is expected 8 to last, for a continuous period of at least 12 months. 42 9 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 10 (9th Cir. 1992). 11 A. 12 The ALJ follows a five-step sequential evaluation process in The Five-Step Evaluation Process 13 assessing whether a claimant is disabled. 20 C.F.R. 14 § 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 15 1995) (as amended Apr. 9, 1996). In the first step, the 16 Commissioner must determine whether the claimant is currently 17 engaged in substantial gainful activity; if so, the claimant is 18 not disabled and the claim must be denied. § 416.920(a)(4)(i). 19 If the claimant is not engaged in substantial gainful activity, 20 the second step requires the Commissioner to determine whether 21 the claimant has a severe impairment or combination of 22 impairments significantly limiting his ability to do basic work 23 activities; if not, a finding of not disabled is made and the 24 claim must be denied. § 416.920(a)(4)(ii). If the claimant has 25 a severe impairment or combination of impairments, the third 26 step requires the Commissioner to determine whether the 27 impairment or combination of impairments meets or equals an 28 impairment in the Listing of Impairments ( Listing ) set forth at 4 1 20 C.F.R., Part 404, Subpart P, Appendix 1; if so, disability is 2 conclusively presumed and benefits are awarded. 3 § 416.920(a)(4)(iii). If the claimant s impairment or 4 combination of impairments does not meet or equal an impairment 5 in the Listing, the fourth step requires the Commissioner to 6 determine whether the claimant has sufficient residual functional 7 capacity ( RFC )4 to perform his past work; if so, the claimant 8 is not disabled and the claim must be denied. 9 § 416.920(a)(4)(iv). The claimant has the burden of proving that 10 he is unable to perform past relevant work. 11 1257. Drouin, 966 F.2d at If the claimant meets that burden, a prima facie case of 12 disability is established. Id. If that happens or if the 13 claimant has no past relevant work, the Commissioner then bears 14 the burden of establishing that the claimant is not disabled 15 because he can perform other substantial gainful work available 16 in the national economy. § 416.920(a)(4)(v). That determination 17 comprises the fifth and final step in the sequential analysis. 18 § 416.920; Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257. 19 B. 20 At step one, the ALJ found that Plaintiff had not engaged in The ALJ s Application of the Five-Step Process 21 any substantial gainful activity since March 12, 2008, the date 22 of his SSI application. (AR 16.) At step two, the ALJ concluded 23 that Plaintiff had the severe impairments of systemic lupus 24 erythematosis in remission, chronic hypertension, status-post 25 cardiovascular accident, obesity, and a mood disorder associated 26 27 28 4 RFC is what a claimant can still do despite existing exertional and nonexertional limitations. 20 C.F.R. § 416.945; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 5 1 with a general medical condition. (AR 17 (citations omitted).) 2 He also found that Plaintiff claimed to have the additional 3 impairments of autoimmune hepatitis, polyneuropathy, and 4 fatigue, but there was insufficient evidence in the record 5 showing that those impairments caused significant limitations on 6 Plaintiff s ability to perform basic work activities.5 (Id.) At 7 step three, the ALJ determined that Plaintiff s impairments did 8 not meet or equal any of the impairments in the Listing. 9 19.) (AR 17- At step four, the ALJ found that Plaintiff retained the RFC 10 to perform light work 6 with the limitations that Plaintiff 11 cannot have prolonged exposure to sunlight, he is limited to 12 simple, routine, repetitive tasks, he can have only occasional 13 contact with co-workers, supervisors, or the public, and he have 14 [sic] only occasional changes in his work environment. (AR 19.) 15 Based on the VE s testimony, the ALJ concluded that Plaintiff was 16 not able to perform his past relevant work as a parts clerk or 17 delivery-route driver. (AR 23.) At step five, the ALJ found 18 19 20 21 22 23 24 25 26 27 28 5 In the ALJ s opinion, the two sentences directly following his findings that insufficient evidence supported Plaintiff s claims of hepatitis, polyneuropathy, and fatigue state, The above listed physical and mental impairments cause the claimant significant limitations in her ability to perform basic work activities. I therefore find that the impairments are severe. (AR 17.) These sentences, which do not logically follow from the statement directly before them and which incorrectly refer to Plaintiff as her, appear to result from transcription error. 6 Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds, a good deal of walking or standing or sitting, with some pushing and pulling of arm or leg controls. 20 C.F.R. § 416.967(b). A person capable of performing light work is also capable of performing sedentary work, as defined in § 416.967(a). Id. 6 1 that jobs existed in significant numbers in the national economy 2 that Plaintiff could perform. (Id.) The ALJ agreed with the VE 3 that Plaintiff could perform the jobs of housekeeping cleaner, 4 inspector hand packager, and blind-stitch sewing-machine 5 operator. (AR 24.) Accordingly, the ALJ determined that 6 Plaintiff was not disabled. (Id.) 7 V. DISCUSSION 8 Plaintiff alleges that the ALJ erred in (1) evaluating the 9 opinions of Plaintiff s treating physicians; (2) evaluating 10 Plaintiff s mental impairments; and (3) finding Plaintiff s 11 subjective symptom testimony not credible. 12 A. 13 14 (J. Stip. at 3.)7 The ALJ Did Not Err in His Consideration of the Opinions of Plaintiff s Treating Physicians Plaintiff contends that the ALJ did not properly evaluate 15 rheumatologist Dr. Paul Sussman s RFC analysis and treating notes 16 or the treating notes of Plaintiff s other rheumatologists at the 17 Facey Medical Group, all of which allegedly showed that Plaintiff 18 had several additional severe impairments that prevented him from 19 working. (J. Stip. at 5-8, 18-21.) Reversal is not warranted on 20 this basis because the ALJ gave clear and convincing reasons for 21 rejecting the opinions at issue, and the ALJ s evaluation of the 22 medical evidence was consistent with substantial evidence in the 23 record. 24 25 1. Applicable law Three types of physicians may offer opinions in social 26 27 28 7 In the Joint Stipulation, the first and second issues are addressed together. For clarity, the Court addresses them separately. 7 1 security cases: (1) those who treat[ed] the claimant (treating 2 physicians); (2) those who examine[d] but d[id] not treat the 3 claimant (examining physicians); and (3) those who neither 4 examine[d] nor treat[ed] the claimant (non-examining 5 physicians). Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) 6 (as amended Apr. 9, 1996). A treating physician s opinion is 7 generally entitled to more weight than the opinion of a doctor 8 who examined but did not treat the claimant, and an examining 9 physician s opinion is generally entitled to more weight than 10 that of a nonexamining physician. 11 Id. The opinions of treating physicians are generally afforded 12 more weight than the opinions of nontreating physicians because 13 treating physicians are employed to cure and have a greater 14 opportunity to know and observe the claimant. 15 80 F.3d 1273, 1285 (9th Cir. 1996). Smolen v. Chater, The weight given a treating 16 physician s opinion depends on whether it was supported by 17 sufficient medical data and was consistent with other evidence in 18 the record. See 20 C.F.R. § 416.927(c)(2). If a treating 19 physician s opinion was well supported by medically acceptable 20 clinical and laboratory diagnostic techniques and is not 21 inconsistent with the other substantial evidence in the record, 22 it should be given controlling weight and rejected only for 23 clear and convincing reasons. 24 § 416.927(c)(2). See Lester, 81 F.3d at 830; When a treating physician s opinion conflicts 25 with other medical evidence or was not supported by clinical or 26 laboratory findings, the ALJ must provide only specific and 27 legitimate reasons for discounting that doctor s opinion. 28 v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). 8 Orn Factors relevant 1 to the evaluation of a treating physician s opinion include the 2 [l]ength of the treatment relationship and the frequency of 3 examination as well as the [n]ature and extent of the treatment 4 relationship between the patient and the physician. 5 § 416.927(c)(2)(i)-(ii). 6 The ALJ may discredit treating-doctor opinions that are 7 conclusory, brief, and unsupported by the record as a whole or by 8 objective medical findings. See Batson v. Comm r of Soc. Sec. 9 Admin., 359 F.3d 1190, 1195 (9th Cir. 2004); Thomas v. Barnhart, 10 278 F.3d 947, 957 (9th Cir. 2002). On the other hand, the ALJ 11 may give more weight to doctors, nonexamining or otherwise, who 12 testify because they have been subject to cross-examination. See 13 Andrews v. Shalala, 53 F.3d 1035, 1042 (9th Cir. 1995). 14 15 2. Relevant facts Plaintiff was hospitalized and diagnosed with lupus in 16 October 2005. (AR 579.) In March 2006 he had some joint 17 pains, which improved with medication, but no synovitis, skin 18 lesions, or other symptoms indicating active lupus. 19 795, 806-87.) (AR 774, In September 2006 Plaintiff s rheumatologist noted 20 that his pain and stiffness of joints has markedly improved 21 since on prednisone and [t]here is no evidence of synovitis of 22 small and large joints of upper and lower extremeties on either 23 side. (AR 858.) By the end of 2006, however, Plaintiff s 24 symptoms began to worsen. 25 Plaintiff was hospitalized in November 2007 because of 26 complications from severe lupus, including a history of 27 pancytopenia, focal renal glomerulonephritis, severe subacute 28 dermatitis, organic brain syndrome with cognitive defects, 9 1 generalized skin leukocytoclastic vasculitis, polyarthritis, 2 polymyositis, and polyneuritis. (AR 563.) In December 2007, 3 apparently while he was hospitalized, Plaintiff also had a 4 stroke. 5 (AR 929.) In February 2008, Plaintiff had a dramatically beneficial 6 effect from receiving two monthly doses of Cytoxan. 7 39.) (AR 338- His hyperuricemia and hypertension were under control, 8 decubitus on his thoracic spine and skin were almost totally 9 healed, and his bleeding internal hemorrhoids were resolved. 10 (Id.) His doctor, rheumatologist Dr. Richard Hollcraft, noted 11 that he has been very active and running around a lot. 12 338.) (AR On March 19, 2008, Dr. Hollcraft noted that Plaintiff s 13 lupus, focal membranous glomerular nephritis, polyarthritis, 14 polymyositis, and polyneuritis were resolved and in remission. 15 (AR 379-80.) Plaintiff also reported to his doctors that his 16 symptoms had significantly improved; in April 2008, he stated 17 that he was doing well, had few active symptoms, and had good 18 energy levels. (AR 501-02.) Dr. Hollcraft noted at that time 19 that Plaintiff was doing extremely well and almost all other 20 symptoms have disappeared completely. (AR 501.) The record 21 does not contain any rheumatology treatment notes from April 2008 22 to September 2009, so Plaintiff presumably did not seek treatment 23 during that time. In September and October 2009, Plaintiff s new 24 rheumatologist, Dr. Paul Sussman, who apparently took over 25 Plaintiff s case after Dr. Hollcraft retired (AR 584), described 26 Plaintiff s lupus as quiescent. (AR 927-31.) In December 27 2009, Plaintiff reported that he was stable and had had no 28 lupus flares. (AR 925.) 10 1 On November 18, 2009, Dr. Sussman filled out a check-box RFC 2 Questionnaire. (AR 750-56.) He indicated that he had first seen 3 Plaintiff on September 30, 2009. (AR 750.) He circled Yes 4 when asked if Plaintiff fulfill[ed] the diagnostic criteria for 5 systemic lupus erythematosus (SLE) and wrote that Plaintiff also 6 had Autoimmune hepatitis and CVA. (Id.) He then checked 7 boxes indicating that Plaintiff had Malar rash (over the 8 cheeks), Photosensitivity, and Oral ulcers, and he wrote 9 that Plaintiff had pain in the hands and hips. (AR 750.) He 10 also checked boxes indicating that Plaintiff had Cardiopulmonary 11 involvement, Renal involvement, Central nervous system 12 involvement, Positive LE cell preparation or anti-DNA or anti13 Sm anti-body or false positive serum test for syphilis known to 14 be positive for at least six months, and Positive test for ANA 15 at any point in time. (AR 751.) He further checked boxes 16 indicating that Plaintiff had Gastrointestinal complaints with 17 diarrhea or constipation and severe fatigue, weight loss, 18 fever, and malaise, as well as Muscle weakness, Poor sleep, 19 Peripheral neuropathy, and Raynaud s phenomenon. (Id.) He 20 indicated that Plaintiff was not a malingerer, emotional 21 factors contributed to the severity of Plaintiff s symptoms, and 22 Plaintiff s impairments were reasonably consistent with the 23 symptoms and functional limitations described in the evaluation. 24 (AR 752.) He stated that Plaintiff s symptoms would constantly 25 interfere with his ability to concentrate but that Plaintiff was 26 capable of low stress jobs. (Id.) He stated that Plaintiff 27 could walk one city block before needing to rest; could sit or 28 stand 10 minutes at a time before needing to change positions; 11 1 could sit, stand, or walk for less than two hours total in an 2 eight-hour workday; and would need to take 30- to 60-minute rest 3 breaks often throughout the workday. (AR 753.) Plaintiff 4 could never lift or carry even 10 pounds; could never twist, 5 stoop, crouch, climb ladders, or climb stairs; and would have 6 significant limitations in doing repetitive reaching, handling, 7 or fingering. (AR 754.) He further stated that Plaintiff must 8 avoid all exposure to extreme cold and concentrated exposure to 9 other environmental factors such as extreme heat, gases, and 10 chemicals. (AR 755.) He also stated that Plaintiff would likely 11 be absent from work [m]ore than four days per month. 12 (Id.) At the hearing, the ME, Dr. Gerber, testified that based on 13 his review of the medical record, between September 2007 and 14 March 2008, Plaintiff likely would have met Listing 14.02 15 (systemic lupus erythematosus)8 and thus would have been 16 17 8 To meet Listing 14.02, a claimant must produce objective medical evidence of a diagnosis of SLE, with: 18 19 A. Involvement of two or more organs/body systems, with: 20 1. One of the organs/body systems involved to at least a moderate level of severity; and 21 22 23 2. At least two of the constitutional symptoms or signs (severe fatigue, fever, malaise, or involuntary weight loss). 24 or 25 B. Repeated manifestations of SLE, with at least two of the constitutional symptoms or signs (severe fatigue, fever, malaise, or involuntary weight loss) and one of the following at the marked level: 26 27 28 1. Limitation of activities of daily living. 12 1 disabled, but since March 2008 Plaintiff s symptoms were in 2 remission and the record supports ability to perform the full 3 range of light level of activity with no prolonged exposure to 4 sunlight. (AR 57.) Dr. Gerber testified that he based his 5 conclusion on several indications in the record that Plaintiff s 6 lupus was in remission and there were no symptoms documented. 7 (AR 58 (citing AR 377, 467, 576).) He also testified that 8 Plaintiff s hypernatremia and associated fatigue and confusion 9 [did] not appear to be a chronic condition but instead an 10 acute condition that was treated. (AR 59.) He further 11 testified that to the extent Plaintiff alleged that he had 12 hepatitis, the record did not show any abnormalities in liver 13 function (AR 60); Plaintiff s mild neuropathy did not appear to 14 affect his ability to stand or walk (AR 60-61); and there was no 15 consistent documentation of very noteworthy fatigue in the 16 record (AR 62). When questioned about Dr. Sussman s RFC 17 questionnaire, Dr. Gerber noted that it did not appear to be 18 based on any physical examination or laboratory results. (AR 19 64.) 20 The ALJ found that Dr. Gerber, although he did not have 21 access to the exhibits that were submitted after the hearing 22 (Exhibits 27-30), had the majority of the medical record, 23 including the claimant s testimony, and thus his opinion was 24 25 26 27 2. Limitation in maintaining social functioning. 3. Limitation in completing tasks in a timely manner due to deficiencies in concentration, persistence, or pace. 28 20 C.F.R. § 404, Subpart P, App. 1, 14.02. 13 1 entitled to great weight. (AR 17.) The ALJ also found that 2 Exhibits 27-30, the new treatment notes from Dr. Sussman dated 3 September to December 2009, do not include any evidence that 4 indicates that the claimant s condition worsened after January 5 2009. (Id.) He further found that Dr. Gerber s opinion that 6 Plaintiff could perform a full range of light work without 7 prolonged exposure to sunlight was consistent with the state 8 agency medical consultants opinions and with the longitudinal 9 record, and thus it was entitled to controlling weight. (AR 10 22.) 11 As to Dr. Sussman s opinions, the ALJ made the following 12 findings: 13 Dr. Sussman began treating the claimant on September 14 30, 15 claimant was capable of low stress jobs, that he could 16 stand, walk, and/or sit for less than two hours in an 17 eight-hour workday, that he must be able to shift between 18 sitting, 19 unscheduled breaks of between 30-60 minutes, that he must 20 avoid all exposure to extreme temperatures or hazards, 21 that he must avoid concentrated exposure to environmental 22 irritants, and that he will likely be absent more than 23 four days per month due to health-related issues [(AR 24 750-56)]. 25 record does not indicate the frequency of the claimant s 26 visits to Dr. Sussman during the two-month period between 27 when Dr. Sussman began treating the claimant and when he 28 offered this opinion. 2009 and opined standing, on and November walking, 18, that 2009 he I give this opinion less weight. that the requires First, the Secondly, the record does not 14 1 indicate Dr. Sussman s specialization and it is therefore 2 difficult to weigh his relative expertise. 3 these 4 extensive objective evidence. extreme limitations are not supported Finally, by the 5 (AR 22.) 6 7 3. Analysis Plaintiff argues that the ALJ improperly discounted Dr. 8 Sussman s opinion. (J. Stip. at 5-7.) As an initial matter, Dr. 9 Sussman did not opine that Plaintiff was unable to work; rather, 10 he found that Plaintiff was [c]apable of low stress jobs. 11 752.) (AR But to the extent that Dr. Sussman s RFC Questionnaire 12 failed to recognize the improvement in Plaintiff s symptoms after 13 March 20089 (see AR 338-39, 379-80, 457-58, 471-72, 501-02, 50314 04, 579-83, 584-86), which Dr. Sussman himself explicitly 15 recognized in his treatment notes (see AR 925-31 (repeatedly 16 referring to Plaintiff s lupus as currently quiescent and 17 noting that Plaintiff reported feeling well and having no acute 18 symptoms)), it was appropriate for the ALJ to discount it on that 19 basis. See Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 20 2005) (ALJ may reject treating physician s assessment of 21 plaintiff s limitations when physician s notes and other recorded 22 observations contradict assessment). Dr. Sussman s conclusion 23 that Plaintiff would likely be absent for health-related reasons 24 more than four days a month also conflicted with Plaintiff s own 25 26 9 To establish eligibility for SSI benefits, Plaintiff must 27 show that he was disabled on or after the date of his SSI 28 application, March 12, 2008. (AR 168); see 20 C.F.R. §§ 416.330, 416.335. 15 1 testimony that in the past year he had had only three lupus2 related flare ups and had spent no more than four hours in the 3 hospital each time before he was discharged. (AR 52.) Moreover, 4 the ALJ s findings that Plaintiff could not sit, stand, or walk 5 for more than 10 minutes at a time and could never lift even 10 6 pounds (AR 753-54) conflict with Plaintiff s testimony that he 7 could sit, stand, and walk at least 15 minutes at a time, longer 8 with his medication, and he could lift at least 20 pounds (AR 9 51). Dr. Sussman s finding that Plaintiff suffered from severe 10 weight loss (AR 750) is also belied by the record, which shows 11 that Plaintiff gained significant weight as a result of taking 12 Prednisone (see AR 47, 735) and then lost 23 pounds when his 13 dosage was reduced (AR 46). The ALJ was also entitled to reject 14 the RFC Questionnaire because it was in a check-box form, did not 15 appear to be based on any objective medical findings or an 16 examination, and was filled out after Dr. Sussman had seen 17 Plaintiff only two times in little over a month. See Batson, 359 18 F.3d at 1195 ( The ALJ need not accept the opinion of any 19 physician, including a treating physician, if that opinion is 20 brief, conclusory, and inadequately supported by clinical 21 findings. ); Thomas, 278 F.3d at 957; cf. 20 C.F.R. 22 § 416.927(c)(2) (treating source opinion entitled to greater 23 weight [w]hen the treating source has seen [claimant] a number 24 of times and long enough to have obtained a longitudinal picture 25 of [claimant s] impairment ). 26 Plaintiff also asserts that to the extent the ALJ was unsure 27 whether Dr. Sussman was indeed a rheumatologist, he had a duty to 28 recontact him and expand the record. 16 (J. Stip. at 21.) The ALJ 1 did not discount Dr. Sussman s opinion solely because he did not 2 know whether Dr. Sussman was a rheumatologist, however he 3 discounted it primarily because it was drastically inconsistent 4 with the other evidence of record, and he gave specific and 5 legitimate reasons why. Thus, any error the ALJ made in failing 6 to recognize that Dr. Sussman was a rheumatologist was harmless 7 and does not require reversal. See Stout v. Comm r, Soc. Sec. 8 Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) (nonprejudicial or 9 irrelevant mistakes harmless). 10 Plaintiff also faults the ALJ for giving controlling 11 weight to the ME s testimony because the ME, Dr. Gerber, was not 12 a rheumatologist and only reviewed the majority of the medical 13 record without having access to key rheumatology treatment 14 records from Dr. Sussman dated September 30, 2009, October 14, 15 2009, and December 9, 2009. (J. Stip. at 5-6.) Plaintiff 16 similarly argues that the ALJ erred in relying on the state 17 agency medical consultant s opinion that Plaintiff was capable of 18 performing light work as of April 2008 (AR 441-45) because [t]he 19 medical consultant was not privy to medical records after that 20 date, and as such, his assessment that Mr. Nuñez was capable of 21 light work on April 18, 2008, does not mean Mr. Nuñez was capable 22 of light work after that date. (J. Stip. at 6.) Plaintiff also 23 argues that Dr. Gerber s assessment was unreliable because he 24 admitted that he had never treated anyone for lupus. (J. Stip. 25 at 5-6.) 26 First, as previously discussed, Dr. Sussman s September and 27 October 2009 treatment notes representing the only times Dr. 28 Sussman saw Plaintiff before filling out the RFC Questionnaire 17 1 were inconsistent with that questionnaire and consistent with Dr. 2 Gerber s testimony that Plaintiff s lupus was in remission and he 3 currently was suffering no acute symptoms. (See AR 927-31.) 4 Moreover, the ALJ did not err in giving Dr. Gerber s opinion 5 controlling weight because, as the ALJ correctly noted, it was 6 consistent with the longitudinal record. (AR 22.) Further, 7 because Dr. Gerber testified at the hearing and was subject to 8 cross-examination, the ALJ was entitled to give even more weight 9 to his opinion. Andrews, 53 F.3d at 1042. Moreover, there was 10 ample evidence in the record from several doctors, including 11 Plaintiff s treating rheumatologists, that Plaintiff s lupus was 12 in remission as of March 2008 and remained so until at least the 13 time of the hearing in December 2009. (See AR 338-39, 379-80, 14 457-58, 471-72, 501-02, 503-04, 579-83, 584-86, 925-31.) 15 thus properly relied on Dr. Gerber s testimony. The ALJ He also properly 16 relied on the medical consultant s RFC analysis because the 17 evidence showed that Plaintiff s symptoms remained in remission 18 between the time the medical consultant evaluated Plaintiff, in 19 April 2008, and the time of the hearing, December 2009. 20 id.) Reversal is therefore not warranted on this basis. (See See 21 Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) 22 (opinion of nonexamining medical expert may constitute 23 substantial evidence when it is consistent with other independent 24 evidence in the record ). 25 Plaintiff further argues that the ALJ erred in not making 26 in-depth findings as to the limiting effects of the following 27 impairments: autoimmune hepatitis, polyneuropathy, fatigue, 28 severe urinary frequency, back pain, numbness, chronic 18 1 hyponatremia, chronic anemia, lupus nephritis, and history of 2 skin ulcerations including cellulitis. (J. Stip. at 4-5.) In 3 determining a claimant s RFC, an ALJ must consider the 4 limitations and restrictions imposed by all of the claimant s 5 impairments. SSR 96 8p, 1996 WL 374184, at *5. An ALJ is not 6 required to discuss all the evidence presented in a case, but 7 must explain why he chooses to discount significant probative 8 evidence. Houghton v. Comm r, Soc. Sec. Admin., No. 11 35623, 9 ___ F. App x ___, 2012 WL 3298201, at *1 (9th Cir. Aug. 14, 2012) 10 (quoting Vincent v. Heckler, 739 F.2d 1393, 1394 95 (9th Cir. 11 1984)). 12 Here, the ALJ properly found that there was no significant 13 probative evidence underlying Plaintiff s claims that his 14 functional capacity was significantly limited by autoimmune 15 hepatitis, polyneuropathy, or fatigue (AR 17); thus, the ALJ did 16 not err in failing to further address those claims. Although Dr. 17 Sussman noted in his RFC Questionnaire that Plaintiff had 18 autoimmune hepatitis (AR 750), Dr. Gerber testified that there 19 was no evidence of active clinically significant hepatitis in 20 the record such as abnormal liver function studies and if severe 21 enough liver biopsy, and thus to the extent Plaintiff had 22 hepatitis, it did not limit his ability to work. (AR 60.) 23 Plaintiff does not point to any evidence of abnormal liver 24 functioning, and indeed, the record does not appear to contain 25 any. Dr. Gerber also noted that Plaintiff was diagnosed with 26 mild neuropathy in February 2007, but the neurologic 27 examinations did not show any significant impairment of 28 Plaintiff s motor functions. (AR 61; see AR 534-35.) 19 Plaintiff 1 again does not point to any evidence to the contrary. 2 With respect to Plaintiff s claims of fatigue, the ALJ found 3 that there was no documentation of fatigue after March 2008. 4 (AR 17.) But in October 2008 and January 2009, Dr. Howard Young 5 noted that Plaintiff had fatigue . . . [p]robably due to the 6 combination of above [lupus-related] medical problems. 7 577.) (AR 575, To the extent the ALJ erred, however, the error was 8 harmless because there was no evidence in the record that 9 Plaintiff s ability to work was significantly limited by fatigue. 10 See Stout, 454 F.3d at 1055. Plaintiff did not cite fatigue as a 11 debilitating condition in either his SSI application or his 12 hearing testimony. (See AR 42-55, 187, 198, 201, 212.) The only 13 documentation in the record that Plaintiff s fatigue limited his 14 ability to work is Dr. Sussman s RFC Questionnaire, on which he 15 checked a box next to severe fatigue. (AR 751.) As explained 16 above, the ALJ properly discounted that questionnaire. Dr. 17 Gerber noted that fatigue can be related to lupus and [i]f 18 untreated it could be profound but that there was no evidence in 19 the record of very noteworthy fatigue. (AR 62.) He also 20 acknowledged that fatigue could be a side effect of the narcotic 21 medications that Plaintiff had been prescribed, but the doses he 22 was prescribed don t seem to be very high, and there was no 23 evidence of severe fatigue in the record as a result of taking 24 them. (AR 62-63.) 25 the contrary. Plaintiff has not pointed to any evidence to Thus, the ALJ did not err in not further 26 discussing Plaintiff s fatigue. 27 Similarly, Plaintiff provided no objective evidence of his 28 claims of urinary frequency, back pain, or numbness other than 20 1 his own self-serving statements. As discussed below, the ALJ 2 properly rejected Plaintiff s subjective symptom testimony. In 3 the absence of objective medical evidence supporting these 4 claims, he was not required to further address them. See Hopkins 5 v. Astrue, 227 F. App x 656, 657 (9th Cir. 2007) ( The ALJ was 6 not obligated to consider Hopkins s claim that his medication 7 made him drowsy because Hopkins provided no evidence to support 8 this claim other than a statement in his daily activities 9 questionnaire. (citing Nyman v. Heckler, 779 F.2d 528, 531 (9th 10 Cir. 1985) ( [A] claimant s self-serving statements may be 11 disregarded to the extent they are unsupported by objective 12 findings. )); see also Johnson v. Shalala, 60 F.3d 1428, 1432 13 (9th Cir. 1995) (claimant has burden to produce evidence 14 regarding claimed disability). There was also no significant 15 evidence in the record that Plaintiff s ability to work was 16 impaired by chronic hyponatremia, chronic anemia, lupus 17 nephritis, or skin ulcerations; indeed, the record showed that 18 these conditions were healed or well-controlled with medication 19 by March 2008 and remained under control from 2008 through the 20 time of the hearing (see AR 338-39, 379-80, 471-72, 584-86, 92321 24), and thus the ALJ was not required to discuss them. See 22 Houghton, 2012 WL 3298201, at *1 (holding that ALJ was not 23 required to discuss plaintiff s alleged limitations arising 24 from depression, a heart condition, sleep apnea, a right heel 25 injury, diabetes with neuropathy in the right leg, or obesity 26 in the absence of significant probative evidence that they had 27 some functional impact on [plaintiff s] ability to work ). 28 The Court must consider the ALJ s decision in the context of 21 1 the entire record as a whole, and if the evidence is 2 susceptible to more than one rational interpretation, the ALJ s 3 decision should be upheld. Ryan v. Comm r of Soc. Sec., 528 4 F.3d 1194, 1198 (9th Cir. 2008) (internal quotation marks 5 omitted). Plaintiff selectively points out places in the 6 treatment notes where he complained of various ailments (see J. 7 Stip. at 7-9), but read in the context of the record as a whole, 8 Plaintiff s symptoms clearly were controlled with medication and 9 his health had dramatically improved by March 2008; the ALJ 10 reasonably found that Plaintiff s limitations did not prevent him 11 from being able to work. Reversal is therefore not warranted on 12 this basis. 13 B. 14 15 The ALJ Did Not Err in Evaluating Plaintiff s Mental Impairments Plaintiff argues that the ALJ erred in rejecting the 16 psychological evaluation of Dr. Gale Schuler in favor of the 17 evaluations performed by consultative evaluator Dr. Rosa Colonna. 18 (J. Stip. at 7-9.) 19 20 1. Reversal is not warranted on this basis. Relevant facts Plaintiff was initially examined by consultative 21 psychological examiner Dr. Colonna on August 8, 2008. 22 10.) (AR 506- She administered the following five tests: Complete 23 Psychological Evaluation; Bender Visual Motor Gestalt Test 24 second edition ( Bender Gestalt 2 ); Trail Making Test, Parts A 25 and B; Wechsler Adult Intelligence Scale, third edition ( WAIS26 III ); and Weschler Memory Scale, third edition ( WMS-III ). 27 506.) (AR She noted that Plaintiff reported being highly anxious 28 and that his speech is slurred and he has short term memory 22 1 loss. (AR 506-07.) She further noted that Plaintiff reported 2 getting along generally well with others and was generally 3 pleasant and cooperative. (AR 507-08.) She determined that he 4 had low average intellectual functioning; his mood was 5 dysthymic and his affect was anxious ; he had no psychotic 6 indicators; his memory was mildly diminished for immediate 7 recall but [i]ntermediate and remote memory is intact ; his 8 attention and concentration span were mildly diminished ; his 9 fund of knowledge was fair ; and his insight and judgment were 10 average. (AR 508.) Based on the tests she administered, she 11 concluded that Plaintiff s overall cognitive ability falls 12 within the low average range. (AR 509, 510.) She then made the 13 following findings regarding Plaintiff s ability to work, based 14 on her examination: 15 Based on today s assessment, the claimant would be 16 able 17 simplistic instructions without difficulty. 18 with a moderate inability to understand, remember and 19 carry out detailed instructions. 20 make simplistic work-related decisions without special 21 supervision. 22 to understand, remember and carry out short, He presents He would be able to The claimant is essentially socially appropriate 23 with the examiner. 24 market he presents with a mild inability to consistently 25 interact appropriately with supervisors, coworkers and 26 peers. 27 on his own behalf. However, in the competitive job The claimant does appear able to manage finances 28 (AR 510.) 23 1 Dr. Colonna examined Plaintiff again on November 8, 2009. 2 (AR 761-71.) She administered the following eight tests: 3 Complete Psychological Evaluation; Bender Gestalt 2; Minnesota 4 Multiphasic Personality Inventory-2 ( MMPI-2 ); Rey 15-Item 5 Memory Test, second edition; Test of Memory Malingering ( TOMM ); 6 WAIS-III; WMS-III; and OHA Assistance Request. (AR 765.) She 7 noted that Plaintiff asked her to draw the shades because the sun 8 hurt his face, that he was slightly anxious with dysarthric and 9 slurred speech, and his effort was fair to poor on psychometric 10 testing. (AR 765-66.) She described his mood as dysthymic 11 and his affect as slightly labile and noted that he had no 12 psychotic indicators; his memory is moderately diminished for 13 immediate recall, intermediate and remote recall ; his attention 14 and concentration span are moderately diminished ; and his fund 15 of knowledge, insight, and judgment were fair. (AR 768.) She 16 noted that the MMPI-2 test produced an unreliable and invalid 17 profile because Plaintiff probably in an attempt for [sic] cry 18 for help, endorses items of severe psychopathology that are not 19 evidenced at time of examination. (AR 769.) She concluded that 20 Plaintiff s test results are an underestimation of the 21 claimant s ability at this time and are of mixed reliability and 22 validity. (Id.) Based on her examination, Dr. Colonna made the 23 following findings as to Plaintiff s ability to work: 24 Based on today s assessment, the claimant would be 25 able 26 simplistic instructions without difficulty. 27 with a moderate inability to understand, remember and 28 carry out detailed instructions. to understand, remember 24 and carry out short, He presents He would be able to 1 make simplistic work-related decisions without special 2 supervision. 3 The claimant is generally appropriate with this 4 examiner. 5 with a mild inability to interact appropriately with 6 supervisors, coworkers and peers in the job market. 7 claimant does appear able to manage finances on his own 8 behalf. However, on a consistent basis he presents The 9 (AR 770.) 10 On August 28, 2008, consultative examiner Dr. R. Tyl 11 performed a Mental Residual Functional Capacity Assessment. 12 524-26.) (AR He found that Plaintiff was moderately limited in his 13 ability to understand and remember detailed instructions ; 14 ability to carry out detailed instructions ; ability to 15 maintain attention and concentration for extended periods ; 16 ability to work in coordination with or proximity to others 17 without being distracted by them ; ability to complete a normal 18 workday and workweek without interruptions from psychologically 19 based symptoms and to perform at a consistent pace without an 20 unreasonable number and length of rest periods ; ability to 21 interact appropriately with the general public ; ability to 22 accept instructions and respond appropriately to criticism from 23 supervisors ; ability to get along with coworkers or peers 24 without distracting them or exhibiting behavioral extremes ; 25 ability to respond appropriately to changes in the work 26 setting ; and ability to be aware of normal hazards and take 27 appropriate precautions. (AR 524-25.) He did not find that 28 Plaintiff had any limitations in any other categories. 25 (Id.) He 1 concluded that Plaintiff was capable of adaptation for 1-2 step 2 tasks with limited contact with others and tasks within 3 physical tolerance. 4 (AR 526.) On August 14, 2009, Plaintiff was examined by Dr. Schuler, a 5 privately retained psychological examiner. (AR 732-48.) She 6 noted that Plaintiff reported feeling depressed and frustrated 7 because of his medical conditions, frequently angry and 8 apprehensive, and impatient and irritable. (AR 734-35.) 9 Based on her examination of Plaintiff, she diagnosed him with 10 Major Depressive Disorder, Severe Without Psychotic Features, 11 Anxiety Disorder Due to a General Medical Condition, and Rule 12 Out Dementia Due to Cerebral Vascular Complications of Systemic 13 Lupus Erythematosus versus Long Term Effects of Chemotherapy. 14 (AR 742.) She assigned him a Global Assessment of Function score 15 of 35, which suggests some impairment in communication and major 16 impairment in several areas, including family relations, 17 judgment, thinking and mood. (AR 743.) She concluded that 18 Plaintiff 19 is totally psychiatrically disabled and has likely been 20 so for the past 12 months and quite probably for a longer 21 period of time. 22 disability will continue for the next 12 months and for 23 a longer indeterminate period of time. The prognosis for 24 this illness is deferred to the appropriate treating 25 medical doctors. 26 (AR 744.) It is medically probable that this There is no evidence that Dr. Schuler ever saw 27 Plaintiff more than once. 28 The ALJ provided the following analysis of the psychiatric 26 1 evidence: 2 The consultative, examining psychologist, Dr. 3 Colonna, opined in August 2008 that the claimant could 4 understand, 5 instructions and he had a mild inability to interact 6 consistently appropriately with supervisors, coworkers, 7 and peers [(AR 510)]. She reached the same conclusion in 8 November 2009 [(AR 770)]. 9 generally consistent opinion [(AR 524-26)]. I give these 10 opinions controlling weight as they are supported by the 11 record as a whole. remember, and carry out short, simple The State Agency provided a 12 The private psychological evaluator opined that the 13 claimant was, among other things, between moderately-and- 14 markedly 15 remember simple or detailed instructions and between 16 slightly-and-moderately limited in his ability to carry 17 out short and simple instructions or interact with the 18 general public [(AR 732-48)]. 19 weight as it was made by a private psychologist who was 20 apparently hired by the claimant s attorney in connection 21 with 22 objective. 23 supported 24 testimony, 25 interacting with others. limited this case in and his who ability to understand and I give this opinion less therefore was not entirely Further, these extreme limitations are not by the which evidence, does including not the reference claimant s difficulty 26 (AR 22.) 27 28 2. Analysis The ALJ did not err in his evaluation of Plaintiff s mental 27 1 impairments. First, Dr. Schuler s opinion was not entitled to 2 any greater weight than the other opinions because Dr. Schuler 3 was not Plaintiff s treating physician. 4 § 416.927(c)(2). See 20 C.F.R. Indeed, Dr. Schuler apparently saw Plaintiff 5 only once, whereas Dr. Colonna examined him twice. 6 48; AR 506-10, 761-71.) (See AR 732- Second, as the ALJ correctly found, Dr. 7 Schuler s opinion that Plaintiff was totally psychiatrically 8 disabled was inconsistent with the other evidence in the record. 9 Dr. Schuler opined that Plaintiff was moderately to markedly 10 limited in his ability to understand and remember short and 11 simple or detailed instructions; was slightly to moderately 12 limited in his ability to carry out short and simple instructions 13 or interact with the general public; was moderately limited in 14 his ability to interact with supervisors and coworkers; was 15 moderately to markedly limited in the ability to make simple 16 work-related decisions; and had major impairment in, among other 17 things, family relations, judgment, thinking, and mood. 18 48.) (AR 731- But Plaintiff s testimony did not reflect such severe 19 difficulties. Plaintiff testified generally that he had 20 problems communicating and talking and remembering certain 21 things (AR 43) and that dealing with his medical condition made 22 him irritable (AR 53), but he did not testify to any 23 significant difficulty in interacting with others. He testified 24 to getting along well with his family and helping his children 25 get ready for school and do their homework; there was no 26 indication in the record that he had major impairment in 27 family relations or any other type of relations. (See AR 49- 28 50; see also AR 582 (noting Plaintiff was pleasant in 28 1 demeanor); AR 585 (noting Plaintiff was alert ).) Moreover, the 2 record contains no evidence that Plaintiff suffered from any 3 severe mental disorders. (See AR 534-35 (neurological exam 4 results showing only mild neuropathy).) The hearing transcript 5 reflects that Plaintiff was able to understand the questions 6 posed to him and respond appropriately. (See AR 42-55.) The ALJ 7 was thus entitled to reject Dr. Schuler s opinion in favor of 8 those rendered by Drs. Colonna and Tyl because the latter two 9 were consistent with significant medical evidence in the record, 10 whereas the former was not. 11 See Tonapetyan, 242 F.3d at 1149.10 Plaintiff s argument that Dr. Colonna s evaluation was 12 invalid because it was short and cursory and she treated him 13 rudely during the examination (J. Stip. at 8-9) is unavailing. 14 To the extent that argument is based on Plaintiff s own self15 serving testimony, the ALJ was entitled to reject his testimony 16 for the reasons outlined below. Moreover, there is no evidence 17 that Dr. Colonna relied on any invalid data. Dr. Colonna 18 completed several tests of Plaintiff and made several 19 observations supporting her conclusions. (AR 506-10, 761-71.) 20 21 10 Because the ALJ gave specific and legitimate reasons for 22 rejecting Dr. Schuler s opinion that were supported by substantial evidence in the record, any error he made in noting 23 that Dr. Schuler s opinion was unreliable because she was the claimant s attorney in connection wth 24 apparently hired bytherefore was not entirely objective (AR 22) this case and . . . 25 was harmless. 26 27 28 See Stout, 454 F.3d at 1055; but see Matney v. Sullivan, 981 F.2d 1016, 1020 (9th Cir. 1992) (ALJ properly discounted physician s opinion because he had agreed to become an advocate and assist in presenting a meaningful petition for Social Security benefits ). In any event, the ALJ s remark could reasonably be interpreted to mean simply that Dr. Schuler was not a treating physician. 29 1 Only one test, the MMPI-2, produced an invalid result (AR 769), 2 and that may have been the result of Plaintiff s exaggerating his 3 symptoms, as Dr. Colonna reasonably concluded. In any event, 4 there is no evidence that Dr. Colonna relied on that result in 5 reaching her ultimate conclusions, nor is there evidence that Dr. 6 Colonna s evaluation could not have been valid without reliable 7 MMPI-2 test results. Finally, the record contains indicia that 8 Dr. Colonna s evaluation of Plaintiff was more thorough than Dr. 9 Schuler s she saw Plaintiff twice and Dr. Schuler saw him only 10 once, and she reviewed medical records (AR 766-67) whereas Dr. 11 Schuler did not (AR 732) so any complaint that Dr. Colonna s 12 evaluation was cursory rings hollow. The ALJ thus did not err in 13 relying on Dr. Colonna s opinion and reversal is not warranted on 14 that basis. 15 16 17 C. The ALJ Did Not Improperly Discount Plaintiff s Subjective Symptom Testimony Plaintiff next argues that the ALJ erred in evaluating his 18 credibility. (J. Stip. at 21-23, 29-31.) Reversal is not 19 warranted on this basis, however, because the ALJ made specific, 20 clear findings as to Plaintiff s credibility that were consistent 21 with the medical evidence of record. 22 23 1. Applicable law An ALJ s assessment of pain severity and claimant 24 credibility is entitled to great weight. See Weetman v. 25 Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. Heckler, 779 26 F.2d 528, 531 (9th Cir. 1986). When the ALJ finds a claimant s 27 subjective complaints not credible, the ALJ must make specific 28 findings that support the conclusion. 30 See Berry v. Astrue, 622 1 F.3d 1228, 1234 (9th Cir. 2010). Absent affirmative evidence of 2 malingering, the ALJ must give clear and convincing reasons for 3 rejecting the claimant s testimony. Lester, 81 F.3d at 834. At 4 the same time, the ALJ is not required to believe every 5 allegation of disabling pain, or else disability benefits would 6 be available for the asking, a result plainly contrary to 42 7 U.S.C. § 423(d)(5)(A). Molina v. Astrue, 674 F.3d 1104, 1112 8 (9th Cir. 2012) (internal quotation marks and citation omitted). 9 If the ALJ s credibility finding was supported by substantial 10 evidence in the record, the reviewing court may not engage in 11 second-guessing. 12 13 2. Thomas, 278 F.3d at 959. Relevant facts In connection with his SSI application, Plaintiff alleged 14 that he was unable to work because of Lupus/stroke, I also have 15 had kidney failure. (AR 187.) He further stated that he had 16 had two kidney failures, was constantly sick, and could not 17 be in the sun, be in front of the computer, or lift anything 18 heavy. (Id.) He also claimed that he could not stand for long 19 periods of time (AR 198) and alleged the following regarding his 20 daily activities: 21 Have to stay out of sun because of medication and of 22 oral chemo. 23 always tingling. 24 and arms are red from chemo. 25 in one day. 26 daily basis because of pills. Because of stroke, speech 27 and writing skills are bad. I havent got back some 28 memory. Have no strength to do pushup, legs are Have problem with stairs. Cant do a lot of movement It will take 3 days to recover. Cant put 3 good days together. 31 Face, scalp Cant eat on Kidneys arent 1 100%. 2 calling hospital who I only see once every couple of 3 months, I call my doctor whom I see monthly. 4 (AR 201.) I go to the bathroom all night. Instead of He further alleged that he had difficulty get[ting] 5 in and out of appointments if elevator isnt working and have to 6 use stairs or any walks over a couple hundred yards or 7 concentrate on thing[s] for a period of time. (AR 212.) He 8 continued: 9 still have problems with feeling in feet and fingers 30% 10 stregth in right arm and left leg still have a problem 11 with stairs or long walks cant be in sun still have 12 troble watching anything or paying attention to things 13 for a medium period of time lack in interest in reading 14 cant work to hard without being out for a couple of days 15 at home have no problem driving because im setting as 16 long as im out of sun. 17 (Id.) 18 At the hearing, Plaintiff testified that he had not worked 19 since being diagnosed with lupus in approximately 2005. (AR 42.) 20 He stated that without his pain medication he was in very good 21 pain discomfort at least 5 between 1 and 10 ; his back was in 22 discomfort ; he could not be exposed to the sun because he had a 23 rash on his face and head; and he could not lift anything 24 because of the stroke he had in December 2007, which caused 25 weakness in his right arm and left leg. (AR 43.) He also stated 26 that he had problems communicating and talking and remembering 27 certain things. (Id.) He further testified that he had a lupus 28 rash on his back but that it had mostly healed, though it was 32 1 still sensitive, and he could only wear certain types of 2 material on his skin because of the sensitivity. (AR 43-44, 46.) 3 He testified that the rash could be very irritable and he 4 needed to protect his skin from the sun because of it. (AR 52.) 5 He stated that he was prone to infections because of the lupus 6 and claimed to be in pain in his back and legs during the 7 hearing. (AR 45, 49.) He also stated that he had numbness in 8 his legs for the past three years. (Id.) He then testified that 9 his pain medications made him gain weight and made his stomach 10 upset, but when he took his medication his pain level was a 11 three. (AR 47-48.) He testified that dealing with pain from 12 his medical condition made him irritable. 13 (AR 53.) As to his daily activities, Plaintiff testified that he 14 helped his kids get ready for school, drove them to school, 15 picked them up from school, and helped them with their homework 16 in the evenings. (AR 49-50.) He stated that he made his own bed 17 but could not take out the garbage because the garbage bags were 18 too heavy for him to lift with six or seven people living in his 19 house. (AR 50.) He also stated that he could not use stairs 20 because he had trouble with his balance following his stroke, and 21 that he did not help with any other household chores. (Id.) He 22 stated that he could not go grocery shopping because he could not 23 tolerate extreme cold. 24 (Id.) The transcript is unclear as to what amount of time 25 Plaintiff stated that he could stand and walk without his 26 medication, though he testified that he could stand and walk 15 27 minutes longer with his medication; he stated that he could sit 28 for at least 15 minutes at a time and could lift roughly 20 33 1 pounds. (AR 51.) He testified that he had had three flare 2 ups of lupus in the past year; during a flare up, he testified, 3 he would have to go to the hospital to get an IV for about four 4 hours and I was done. (AR 52.) At the close of his testimony, 5 Plaintiff asked to be excused to go to the restroom. 6 (AR 55.) In his written opinion, the ALJ discussed Plaintiff s 7 testimony as follows: 8 Mr. Nunez testified that he is unable to work due 9 to: back discomfort, sensitivity to sunlight, problems 10 with 11 difficulty communicating and with his memory, skin rashes 12 and sensitivity, irritability, and urinary frequency. He 13 further testified that he has gained weight as a side 14 effect of taking Prednisone, his medications cause him 15 stomach problems, and he cannot lift his children who are 16 six and seven years old. 17 that he had two kidney failures, he cannot be in front of 18 a 19 constantly tingle, his speech and writing skills were 20 affected by his stroke, his eyesight is decreased, and 21 his lungs lack full capacity due to pneumonia. [(AR 186- 22 93, 197-203, 207-14.)] his right computer, he arm and cannot left leg due to a stroke, Previously, Mr. Nunez stated lift heavy items, his legs 23 With respect to activities of daily living, the 24 claimant states that he is able to drive as long as he 25 does not have sun exposure [(AR 212)], he helps to care 26 for his children, including helping them with their 27 homework, he cannot walk up stairs, he does not shop for 28 groceries or perform household chores, he socializes with 34 1 his family when they visit him, and he has to choose 2 clothing and hats that protect him from the sun or air 3 conditioning. 4 After careful consideration of the evidence, I find 5 that the claimant s medically determinable impairments 6 could 7 symptoms; however, the claimant s statements concerning 8 the intensity, persistence and limiting effects of these 9 symptoms reasonably are be not expected credible to to cause the the extent alleged they are 10 inconsistent with the above residual functional capacity 11 assessment. 12 (AR 19-20.) After summarizing the medical evidence in the 13 record, the ALJ made the following specific findings regarding 14 Plaintiff s credibility: 15 The claimant is not entirely credible. Mr. Nunez 16 testified that he last worked five years ago [in 2005] 17 when he was diagnosed with lupus. 18 told his treating doctor on June 5, 2008 that he was 19 experiencing greater sun exposure when traveling to and 20 from work [(AR 480)]. 21 provider mentioned in September 2008 that they attempted 22 to reach Mr. Nunez at his work telephone number [(AR 23 578)]. 24 consultative psychologist observed in August 2008 that 25 the claimant was muscularly built [(AR 506)]. This, too, 26 indicates that the claimant was capable of exerting more 27 physical effort than he alleges. 28 the medical expert testified that, after March 2008, he However, the claimant The claimant s medical care This is a clear contradiction. 35 Moreover, a It is significant that 1 did not find a good correlation between the claimant s 2 subjective complaints and the objective evidence. 3 I note that the claimant alleges an onset date of 4 December 1, 1999. 5 to why he chose this date when his lupus-related symptoms 6 did not begin until at least October 2005. Similarly, it 7 is noted that the claimant has a very poor earnings 8 record, with no earnings reported in 15 of the last 20 9 years since 1990 when he was 20 years old [(AR 177-81)]. 10 Yet Mr. Nunez told a private psychological evaluator that 11 he continued to work until December 2007 but this was 12 eight years after his alleged onset date and the record 13 contains no reported earnings for this year [(AR 743)]. 14 Thus, it appears both that the claimant did not report 15 his earnings to the Social Security Administration and 16 that he was able to work until he was hospitalized in 17 November 2007, if not later as discussed above. 18 highly significant and certainly calls the claimant s 19 credibility into question. There is absolutely no indication as This is 20 (AR 21-22.) 21 22 3. Analysis Reversal is not warranted based on the ALJ s alleged failure 23 to make proper credibility findings or properly consider 24 Plaintiff s subjective symptoms. The ALJ correctly noted that 25 Plaintiff s testimony and statements in the record provided 26 inconsistent reports as to the date on which he last worked, 27 which indicated that he was not truthful as to his work history. 28 (AR 21-22.) Plaintiff s SSI application states that he last 36 1 worked on February 1, 2007. (AR 168.) His Disability Report, 2 however, notes an alleged onset date of December 1, 1999 and 3 further notes that in the interview Plaintiff claimed he was 4 disabled before his formal diagnosis but the doctors could not 5 diagnose him until 2005, and [h]e last worked in 1999 due to 6 his disability he could no longer work. (AR 182, 185.) At the 7 hearing, Plaintiff testified that he last worked in about March 8 2005, when he was diagnosed with lupus. (AR 39.) But, as the 9 ALJ noted, on June 5, 2008, Plaintiff told his doctor that he was 10 having trouble with sun exposure when traveling to and from work. 11 (AR 480.) On September 18, 2008, his physician noted that a 12 nurse had tried to contact Plaintiff at work. (AR 578.) In 13 August 2009, Plaintiff told Dr. Colonna that he last worked in 14 December 2007. (AR 732, 743.) Moreover, Plaintiff s earnings 15 record shows that he had no reported income after the year 1999, 16 suggesting, as the ALJ noted, that Plaintiff had not been 17 truthful in reporting his earnings. 18 (AR 177-81.) The ALJ properly discounted Plaintiff s credibility based on 19 the inconsistencies in Plaintiff s testimony and prior statements 20 regarding his work history. See Light v. Soc. Sec. Admin., 119 21 F.3d 789, 792 (9th Cir. 1997) (as amended) (in weighing 22 plaintiff s credibility, ALJ may consider inconsistencies either 23 in [plaintiff s] testimony or between his testimony and his 24 conduct ); see also Fair v. Bowen, 885 F.2d 597, 603, 604 n.5 25 (9th Cir. 1989) (ALJ can reject pain testimony based on 26 contradictions in plaintiff s testimony); Tommasetti v. Astrue, 27 533 F.3d 1035, 1040 (9th Cir. 2008) (ALJ may discredit 28 plaintiff s subjective statements using ordinary techniques of 37 1 credibility evaluation). Moreover, to the extent Plaintiff s 2 testimony conflicted with the medical evidence that his lupus was 3 in remission and his condition was stable, the ALJ properly 4 discounted it. See, e.g., 20 C.F.R. § 416.929(c)(4)(iv) (ALJ may 5 consider effectiveness of medication in evaluating severity and 6 limiting effects of an impairment); SSR 96-7p, 1996 WL 374186, at 7 *6 ( medical signs and laboratory findings that . . . demonstrate 8 worsening or improvement of the underlying medical condition . . 9 . may also help an adjudicator to draw appropriate inferences 10 about the credibility of an individual s statements ); 11 Tonapetyan, 242 F.3d at 1148 (credibility determination based on, 12 among other things, plaintiff s tendency to exaggerate proper 13 when supported by substantial evidence ); Johnson v. Shalala, 60 14 F.3d 1428, 1434 (9th Cir. 1995) (holding that contradictions 15 between claimant s testimony and the relevant medical evidence 16 provided clear and convincing reasons for ALJ to reject 17 plaintiff s subjective symptom testimony). 18 The ALJ stated in his written opinion that Plaintiff s 19 alleged onset date was December 1, 1999 (AR 22); Plaintiff faults 20 him for not recognizing the discrepancy between the February 1, 21 2007 onset date noted in Plaintiff s SSI application and the 22 December 1, 1999 onset date noted in the Disability Report. 23 Stip. at 22-23.) No error occurred. (J. The ALJ did not find 24 Plaintiff not credible simply because he determined Plaintiff 25 falsely alleged an onset date of December 1, 1999; rather, the 26 ALJ properly found that there were several inconsistencies 27 between Plaintiff s testimony and the evidence in the record as 28 to when Plaintiff actually stopped working. 38 (See AR 22.) The 1 December 1, 1999 onset date was just one such example noted by 2 the ALJ. 3 Plaintiff also argues that the ALJ erred in finding that 4 Plaintiff was not being truthful because there was evidence that 5 Plaintiff had memory impairment; thus, Plaintiff argues, any 6 discrepancies in what Plaintiff alleged were caused by his poor 7 memory. (J. Stip. at 30.) Plaintiff was diagnosed with mild 8 neuropathy, but there is no evidence in the record that it was a 9 significant impairment. (See AR 534-35.) Dr. Colonna also noted 10 that Plaintiff had mild to moderate memory loss. 11 768.) (AR 506-08, But even if Plaintiff s mild neuropathy or mild to 12 moderate memory loss accounted for some of his uncertainty as 13 to the dates when certain events occurred, nowhere in the record 14 is there evidence that his mental functioning was so deficient 15 that he would tell a doctor that he was still working when in 16 fact he hadn t worked for several years or would not know the 17 difference between events that occurred in 1999 and those that 18 occurred around the time of the hearing, ten years later. In 19 fact, as noted above, the evidence showed just the opposite 20 that Plaintiff s mental functioning was grossly intact. (See AR 21 506-08, 534-35, 768; see also AR 18 (noting that Plaintiff at the 22 hearing was able to recite from memory a large number of 23 prescription pain medications that he takes ); AR 582 (noting 24 that Plaintiff is a pleasant, nontoxic, well-hydrated, well25 nourished male who is comfortably seated in no acute distress ); 26 AR 585 (noting that Plaintiff was awake and alert and in 27 [n]o acute distress ).) Moreover, Plaintiff s memory problems 28 do not account for his persistent failure to report his earnings 39 1 to the Social Security Administration beginning in 2000, years 2 before his alleged onset date, which was another valid reason for 3 the ALJ to reject Plaintiff s credibility. See Maxwell v. 4 Astrue, No. EDCV 10 1579 CW, 2011 WL 2940701, at *6 (C.D. Cal. 5 July 20, 2011) (holding that ALJ properly relied on 6 inconsistencies between plaintiff s testimony regarding her work 7 history and her reported earnings in finding plaintiff not 8 credible). 9 The ALJ provided legally sufficient reasons for rejecting 10 Plaintiff s testimony and specific examples of how Plaintiff s 11 testimony was contradicted by the record. He thus did not 12 materially err in assessing Plaintiff s credibility and reversal 13 is not warranted on this basis. 14 VI. CONCLUSION 15 Consistent with the foregoing, and pursuant to sentence four 16 of 42 U.S.C. § 405(g),11 IT IS ORDERED that judgment be entered 17 AFFIRMING the decision of the Commissioner and dismissing this 18 action with prejudice. IT IS FURTHER ORDERED that the Clerk 19 serve copies of this Order and the Judgment on counsel for both 20 parties. 21 22 DATED: December 12, 2012 23 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 24 25 26 27 28 11 This sentence provides: The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. 40
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