Bruce W Albertson Jr v. Michael J Astrue, No. 2:2012cv02508 - Document 13 (C.D. Cal. 2013)

Court Description: MEMORANDUM OPINION AND ORDER AFFIRMING THE COMMISSIONER by Magistrate Judge Jean P Rosenbluth. (rla)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 BRUCE W. ALBERTSON, JR., 10 Plaintiff, 11 vs. 12 13 CAROLYN W. COLVIN, Acting Commissioner of Social Security,1 14 Defendant. 15 ) Case No. CV 12-2508-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 disability insurance 20 benefits ( DIB ). The parties consented to the jurisdiction of 21 the undersigned U.S. Magistrate Judge pursuant to 28 U.S.C. 22 § 636(c). This matter is before the Court on the parties Joint 23 Stipulation, filed November 29, 2012, which the Court has taken 24 under submission without oral argument. For the reasons stated 25 26 1 On February 14, 2013, Colvin became the Acting 27 Commissioner of Social Security. Pursuant to Federal Rule of Civil Procedure 25(d), the Court therefore substitutes Colvin for 28 Michael J. Astrue as the proper Respondent. 1 1 below, the Commissioner s decision is affirmed and this action is 2 dismissed. 3 II. BACKGROUND 4 Plaintiff was born on February 6, 1970. 5 Record ( AR ) 134.) (Administrative He has a high school education and 6 vocational training as an automobile salesperson. 7 170.) He previously worked as a salesperson and general manager 8 for car dealerships. 9 (AR 46-47, (AR 48, 166.) On November 25, 2009, Plaintiff filed an application for 10 DIB. (AR 134, 161.) Plaintiff alleged that he had been unable 11 to work since January 1, 2009, because of Hypertensive Heart 12 Disease, Diabetes, Hypercholesterolemia, Palpitations, 13 Myocarditis, [and] Temp[o]ral A[r]teritis. 2 (AR 165.) His 14 application was denied initially, on February 17, 2010, and upon 15 reconsideration, on April 16, 2010. 16 (AR 78-83.) On April 22, 2010, Plaintiff requested a hearing before an 17 ALJ. (AR 84-85.) A hearing was held on January 10, 2011, at 18 which Plaintiff, who was represented by counsel, appeared and 19 testified; a vocational expert ( VE ) also testified. (AR 41- 20 21 2 Hypercholesterolemia is a condition characterized by 22 very high levels of cholesterol in the blood. Hypercholesterolemia, Genetics Home Reference, 23 http://ghr.nlm.nih.gov/condition/hypercholesterolemia (last updated May 6, 2013). Myocarditis is an inflammation of the 24 heart muscle and is an uncommon disorder usually caused by 25 viral, bacterial, or fungal infections that reach the heart. 26 27 28 Myocarditis, MedlinePlus, http://www.nlm.nih.gov/medlineplus/ ency/article/000149.htm (last updated Mar. 22, 2013). Temporal arteritis is a disorder causing inflammation and damage to the blood vessels that supply the head and neck. See Temporal arteritis, MedlinePlus, http://www.nlm.nih.gov/medlineplus/ ency/article/000448.htm (last updated Jan. 26, 2011). 2 1 73.) In a written decision issued on January 28, 2011, the ALJ 2 determined that Plaintiff was not disabled. (AR 16-29.) On 3 February 9, 2011, Plaintiff requested review of the ALJ s 4 decision and submitted additional medical evidence for the 5 Appeals Council to review. (AR 9, 15.) On January 25, 2012, the 6 Appeals Council considered the additional evidence but denied 7 Plaintiff s request for review. (AR 5-9.) This action followed. 8 III. STANDARD OF REVIEW 9 Pursuant to 42 U.S.C. § 405(g), a district court may review 10 the Commissioner s decision to deny benefits. The ALJ s findings 11 and decision should be upheld if they are free of legal error and 12 supported by substantial evidence based on the record as a whole. 13 § 405(g); Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 14 1420, 1427, 28 L. Ed. 2d 842 (1971); Parra v. Astrue, 481 F.3d 15 742, 746 (9th Cir. 2007). Substantial evidence means such 16 evidence as a reasonable person might accept as adequate to 17 support a conclusion. Richardson, 402 U.S. at 401; Lingenfelter 18 v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 19 a scintilla but less than a preponderance. It is more than Lingenfelter, 504 20 F.3d at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 21 882 (9th Cir. 2006)). To determine whether substantial evidence 22 supports a finding, the reviewing court must review the 23 administrative record as a whole, weighing both the evidence that 24 supports and the evidence that detracts from the Commissioner s 25 conclusion. 26 1996). Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. If the evidence can reasonably support either affirming 27 or reversing, the reviewing court may not substitute its 28 judgment for that of the Commissioner. 3 Id. at 720-21. 1 IV. THE EVALUATION OF DISABILITY 2 People are disabled for purposes of receiving Social 3 Security benefits if they are unable to engage in any substantial 4 gainful activity owing to a physical or mental impairment that is 5 expected to result in death or which has lasted, or is expected 6 to last, for a continuous period of at least 12 months. 42 7 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 8 (9th Cir. 1992). 9 10 A. The Five-Step Evaluation Process The ALJ follows a five-step sequential evaluation process in 11 assessing whether a claimant is disabled. 20 C.F.R. 12 § 404.1520(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th 13 Cir. 1995) (as amended Apr. 9, 1996). In the first step, the 14 Commissioner must determine whether the claimant is currently 15 engaged in substantial gainful activity; if so, the claimant is 16 not disabled and the claim must be denied. § 404.1520(a)(4)(i). 17 If the claimant is not engaged in substantial gainful activity, 18 the second step requires the Commissioner to determine whether 19 the claimant has a severe impairment or combination of 20 impairments significantly limiting his ability to do basic work 21 activities; if not, a finding of not disabled is made and the 22 claim must be denied. § 404.1520(a)(4)(ii). If the claimant has 23 a severe impairment or combination of impairments, the third 24 step requires the Commissioner to determine whether the 25 impairment or combination of impairments meets or equals an 26 impairment in the Listing of Impairments ( Listing ) set forth at 27 20 C.F.R., pt. 404, subpt. P, app. 1; if so, disability is 28 conclusively presumed and benefits are awarded. 4 1 § 404.1520(a)(4)(iii). If the claimant s impairment or 2 combination of impairments does not meet or equal an impairment 3 in the Listing, the fourth step requires the Commissioner to 4 determine whether the claimant has sufficient residual functional 5 capacity ( RFC )3 to perform his past work; if so, the claimant 6 is not disabled and the claim must be denied. 7 § 404.1520(a)(4)(iv). The claimant has the burden of proving 8 that he is unable to perform past relevant work. 9 F.2d at 1257. Drouin, 966 If the claimant meets that burden, a prima facie 10 case of disability is established. Id. If that happens or if 11 the claimant has no past relevant work, the Commissioner then 12 bears the burden of establishing that the claimant is not 13 disabled because he can perform other substantial gainful work 14 available in the national economy. § 404.1520(a)(4)(v). That 15 determination comprises the fifth and final step in the 16 sequential analysis. § 404.1520; Lester, 81 F.3d at 828 n.5; 17 Drouin, 966 F.2d at 1257. 18 B. 19 At step one, the ALJ found that Plaintiff had not engaged in The ALJ s Application of the Five-Step Process 20 any substantial gainful activity since January 1, 2009. (AR 21.) 21 At step two, the ALJ concluded that Plaintiff had the severe 22 impairments of chronic headaches and diabetes mellitus. (Id.) 23 At step three, the ALJ determined that Plaintiff s impairments 24 did not meet or equal any of the impairments in the Listing, but 25 he specifically focused on Listings 1.00 (musculoskeletal system) 26 27 28 3 RFC is what a claimant can still do despite existing exertional and nonexertional limitations. 20 C.F.R. § 404.1545; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 5 1 and 9.08 (endocrine disorders - diabetes mellitus).4 (AR 23.) 2 At step four, the ALJ found that Plaintiff retained the RFC to 3 perform the full range of light work.5 (Id.) Based on the VE s 4 testimony, the ALJ concluded that Plaintiff was able to perform 5 his past relevant work as an automobile salesperson and manager. 6 (AR 25.) 7 disabled. At step five, the ALJ concluded that Plaintiff was not (AR 25-26.) 8 V. DISCUSSION 9 Plaintiff alleges that the ALJ erred in doing the following: 10 (1) failing to find that Plaintiff had additional severe 11 impairments; (2) evaluating the medical evidence of Plaintiff s 12 visit to the Mayo Clinic in January 2010; (3) assessing 13 Plaintiff s credibility; (4) determining that Plaintiff could 14 perform his past relevant work; and (5) evaluating Plaintiff s 15 RFC. (J. Stip. at 2.) None of these contentions warrant 16 17 4 Listing 9.08 was deleted effective June 7, 2011. See 18 Listing of Impairments - Adult Listings (Part A), http://www.ssa.gov/disability/professionals/bluebook/AdultListing 19 s.htm (last updated Apr. 10, 2013). Impairments resulting from disorders such as diabetes 20 endocrinefor other body systems. Seeare now evaluated under the listings 20 C.F.R. § 404, subpt. P, 21 app. 1, § 9.00B. 22 23 24 25 26 27 28 5 Light work is defined as involving lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. 20 C.F.R. § 404.1567(b). The regulations further specify that [e]ven 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. Id. A person capable of light work is also capable of sedentary work, which involves lifting no more than 10 pounds at a time and occasionally lifting or carrying [small articles] and may involve occasional walking or standing. § 404.1567(a)-(b). 6 1 reversal. 2 A. 3 Plaintiff contends that the ALJ failed to properly consider The ALJ Properly Evaluated the Medical Evidence 4 Plaintiff s additional impairments of anxiety, asthma, 5 depression, hypertension, cardiac condition, polymyalgia 6 rheumatic,6 [and] vascular abnormality, right temple area. 7 Stip. at 3-4, 7-9.) (J. He further contends that the ALJ failed to 8 consider evidence from the Mayo Clinic that he was diagnosed with 9 debilitating New Persistent Daily Headache syndrome, and he 10 argues that the ALJ erred in failing to consider additional 11 impairments in the Listings. (Id.) Remand is not warranted on 12 any of these bases, however, because the ALJ provided legally 13 sufficient reasons for his evaluation of the medical evidence. 14 15 1. Severity of additional impairments Plaintiff first contends that the ALJ erred in finding that 16 his additional impairments were nonsevere or by failing to 17 address them altogether. 18 (J. Stip. at 3-4, 7-9.) At step two of the sequential evaluation process, a 19 plaintiff has the burden to present evidence of medical signs, 20 symptoms, and laboratory findings that establish a medically 21 determinable physical or mental impairment that is severe and can 22 be expected to result in death or last for a continuous period of 23 24 25 26 27 28 6 Polymyalgia rheumatica is a condition that causes muscle pain and stiffness in the neck, shoulders, and hips. It sometimes occurs along with giant cell ateritis, a condition that causes swelling of the arteries in the head. It responds well to treatment; without treatment it will nonetheless generally go away within a year or more. See Polymyalgia Rheumatica, MedlinePlus, http://www.nlm.nih.gov/medlineplus/ polymyalgiarheumatica.html (last updated Apr. 10, 2013). 7 1 at least 12 months. Ukolov v. Barnhart, 420 F.3d 1002, 1004-05 2 (9th Cir. 2005) (citing 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D));7 3 see 20 C.F.R. §§ 404.1520, 404.1509. Substantial evidence 4 supports an ALJ s determination at step two that an impairment is 5 not severe when there are no medical signs or laboratory 6 findings to substantiate the existence of a medically 7 determinable physical or mental impairment. 8 1004-05 (citing SSR 96-4p). Ukolov, 420 F.3d at An impairment may never be found on 9 the basis of the claimant s subjective symptoms alone. Id. at 10 1005. 11 Step two is a de minimis screening device [used] to dispose 12 of groundless claims. 13 Cir. 1996). Smolen v. Chater, 80 F.3d 1273, 1290 (9th Applying the applicable standard of review to the 14 requirements of step two, a court must determine whether an ALJ 15 had substantial evidence to find that the medical evidence 16 clearly established that the claimant did not have a medically 17 severe impairment or combination of impairments. Webb v. 18 Barnhart, 433 F.3d 683, 687 (9th Cir. 2005); see also Yuckert v. 19 Bowen, 841 F.2d 303, 306 (9th Cir. 1988) ( Despite the deference 20 usually accorded to the Secretary s application of regulations, 21 numerous appellate courts have imposed a narrow construction upon 22 the severity regulation applied here. ). An impairment or 23 combination of impairments is not severe if the evidence 24 established only a slight abnormality that had no more than a 25 26 7 A medical sign is an anatomical, physiological, or 27 psychological abnormality that can be shown by medically acceptable clinical diagnostic techniques. Ukolov, 420 F.3d at 28 1005. 8 1 minimal effect on an individual s ability to work. Webb, 433 2 F.3d at 686 (citation omitted). 3 The ALJ found, based on substantial evidence in the record, 4 that Plaintiff s impairments of hypertension, arthritis and a 5 chronic cough were nonsevere impairments that respond easily to 6 treatment. (AR 22.) He noted that a November 30, 2010 physical 7 examination failed to show any significant problems relating to 8 those impairments; Plaintiff s blood pressure and heart 9 examination were normal, there were no signs of hypertensive end 10 organ damage, and the examining doctor noted that Plaintiff s 11 cough was likely a side effect of medication he was taking and 12 therefore changed the medication. (AR 22, 660.) The ALJ noted 13 that evidence in the record showed that Plaintiff had normal 14 blood-pressure readings and mostly normal cardiac test results, 15 with only slight abnormalities in Plaintiff s temporal artery. 16 (AR 22, 567-68, 636, 639.) 17 With respect to Plaintiff s alleged arthritis, the ALJ 18 found, consistent with substantial evidence in the record, that 19 it was nonsevere, noting that a September 25, 2008 MRI of 20 Plaintiff s right hand showed only mild osteoarthritis of the 21 first carpometacarpal joint and minimal degenerative cyst 22 formation in the second metacarpal head. (AR 22, 498, 564-65.) 23 Tests and examinations performed in January and December 2009 24 showed no evidence of rheumatoid or inflammatory arthritis, and 25 treatment for Plaintiff s hand pain was limited to conservative 26 measures, such as paraffin, analgesics, and not overusing the 27 hand. 28 (AR 22, 498, 520.) The ALJ also found, based on substantial evidence, that 9 1 Plaintiff s alleged depression and anxiety were nonsevere. He 2 noted that the record did not contain any credible evidence of 3 limitations in activities of daily living or social interactions, 4 showed only mild limitations in concentration, persistence or 5 pace, and contained no evidence that Plaintiff underwent any 6 episodes of decompensation. (AR 22.) Specifically, the ALJ 7 noted that consultative examining psychologist Dr. Lou Ellen 8 Sherrill s March 26, 2010 report found no signs of cognitive 9 dysfunction, memory problems, thought disturbances, impaired 10 processing or functioning, or IQ impairments. (AR 22, 588-93.) 11 He noted that Dr. Sherrill s functional assessment limited 12 Plaintiff to performing simple to moderately complex tasks, but 13 her observation that Plaintiff would have severe difficulty 14 tolerating ordinary work pressure and difficulty interacting with 15 others was not supported by the record. (AR 22, 593.) The ALJ 16 noted that endocrinologist Dr. Etie Moghissi s progress notes 17 observed that Plaintiff never had problems understanding 18 instructions, and no doctor had ever reported that Plaintiff had 19 memory deficits or difficulty interacting with others. 20 407-587, 661-75.) (AR 22, He also noted that in April 2010, the state 21 agency medical consultant concluded that Plaintiff s depression 22 and anxiety were nonsevere, which was consistent with the 23 objective results of Dr. Sherrill s consultative examination and 24 the remainder of the record. 25 (AR 22, 596-601.) Plaintiff argues that the ALJ erred in failing to credit Dr. 26 Sherrill s statements that Plaintiff has numerous symptoms of 27 depression that are totally associated with his medical 28 condition and would have severe difficulty tolerating ordinary 10 1 work pressures[,] severe difficulty interacting satisfactorily 2 with others in the workplace, including the general public, and 3 severe difficulty observing basic work and safety standards in 4 the workplace without difficulty. 5 593.) (J. Stip. at 8; see AR 591, An ALJ is not bound by the findings and other opinions of 6 state-agency psychological consultants. 7 § 404.1527(e)(2)(i). 20 C.F.R. The ALJ properly cited substantial evidence 8 in the record showing that, despite Dr. Sherrill s comments, 9 Plaintiff s mental impairment was not severe. 10 90, 588-93, 661-75.) (See AR 350, 489- Moreover, Dr. Sherrill s opinion was 11 inconsistent with her examination results, and the ALJ therefore 12 did not err in rejecting it. See Allen v. Comm r of Soc. Sec., 13 498 F. App x 696, 697 (9th Cir. 2012) (ALJ did not err in 14 rejecting consulting psychologist s opinion when ALJ found 15 evidence in the record indicating that [claimant s] mental 16 impairment was not severe ); cf. Connett v. Barnhart, 340 F.3d 17 871, 875 (9th Cir. 2003) (treating doctor s opinion properly 18 rejected when treatment notes provide no basis for the 19 functional restrictions he opined should be imposed on 20 [claimant] ); Valentine v. Comm r, Soc. Sec. Admin., 574 F.3d 21 685, 692-93 (9th Cir. 2009) (contradiction between treating 22 physician s opinion and his treatment notes constitutes specific 23 and legitimate reason for rejecting treating physician s 24 opinion). 25 Plaintiff also argues that he saw treating physician Dr. 26 Roland Wallen in November 2006 for discussion of his severe 27 anxiety syndrome and stomach pain and his recent hospitalization 28 for diagnosis and chest pain, which he cites as evidence that 11 1 his anxiety and depression were severe. (J. Stip. at 8; AR 260.) 2 Dr. Wallen noted at that time that Plaintiff s [a]nxiety 3 syndrome was from business issues and family issues and 4 prescribed him Klonopin8 as needed for his management of 5 anxiety. (AR 260.) Dr. Wallen also noted that Plaintiff s 6 cardiac test results were perfectly normal, he showed no signs 7 of arrhythmia or other heart conditions, and his hypertension 8 and diabetes type II were under control. (Id.) But as the 9 ALJ properly found, substantial evidence in the record showed 10 that Plaintiff s mental functioning was normal and that he had no 11 difficulty interacting with others or performing various daily 12 activities. (AR 22; see AR 588-93, 661-75.) Indeed, in June 13 2008, nearly two years after the notes Plaintiff relies on, Dr. 14 Wallen found that Plaintiff s mental status was [a]lert, 15 normal, Plaintiff [a]nswers all questions appropriately, he 16 had [n]o severe depression or suicidal ideation, and his other 17 vital signs were also normal. (AR 350.) The ALJ s finding that 18 Plaintiff s depression and anxiety were nonsevere was consistent 19 with the record. (See also, e.g., AR 489-90 (noting in August 20 2009 that Plaintiff reports . . . that his mood has been 21 unaffected, does appear in good spirits, was very pleasant, 22 and reported [n]o feeling depressed ).) 23 Although evidence in the record shows that Plaintiff likely 24 suffered from some degree of hypertension, cough, cardiac 25 26 27 28 8 Klonopin, also known as Clonazepam, is a medication that decreases abnormal electrical activity in the brain and is used to relieve panic attacks, among other uses. Clonazepam, MedlinePlus, http://www.nlm.nih.gov/medlineplus/druginfo/ meds/a682279.html (last updated May 2, 2013). 12 1 condition, arthritis, depression, and anxiety, Plaintiff has not 2 pointed to any evidence in the record that those impairments 3 significantly limited his ability to work. See 20 C.F.R. 4 § 404.1520(c) (severe impairment is one that significantly 5 limits [claimant s] physical or mental ability to do basic work 6 activities ). Thus, Plaintiff has not met his burden to present 7 evidence of medical signs, symptoms, and laboratory findings 8 establishing that those conditions were severe. Indeed, 9 Plaintiff admitted that he did not see a mental-health 10 professional for his depression or anxiety and that he treated 11 those conditions with anti-anxiety medicine prescribed by his 12 primary-care physician, which further indicates that his 13 depression and anxiety were not severe.9 (AR 51.) He also 14 admitted that he did not see his cardiologist on a regular basis, 15 indicating that his cardiac condition was also not severe. 16 (Id.) To the extent he claims he had asthma, Plaintiff does not 17 cite to any objective evidence in the record confirming that 18 diagnosis; a CT scan of Plaintiff s lungs in April 2007 showed no 19 20 21 22 23 24 25 26 27 28 9 Failure to seek mental-health treatment may not be a valid reason for rejecting a claimant s mental-health claims. See Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996) (holding that although a claimant may have failed to seek psychiatric treatment for his mental condition, it is a questionable practice to chastise one with a mental impairment for the exercise of poor judgment in seeking rehabilitation ) (internal quotation marks and citation omitted). To the extent the ALJ relied on that as evidence that Plaintiff s mental impairment was not severe, however, any error was harmless because the vast weight of the evidence in the record supports the ALJ s finding that Plaintiff s mental impairment was not severe. See Stout v. Comm r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) (ALJ s error harmless when inconsequential to the ultimate nondisability determination ). 13 1 evidence of lung disease. (AR 580-81.) Moreover, in November 2 2010 Plaintiff s new primary-care physician, Dr. Navid Hakimian, 3 noted that Plaintiff had [n]o history of asthma. (AR 660.) 4 Accordingly, Plaintiff did not carry his burden at step two of 5 the analysis to show that the other impairments of which he 6 complains were severe. 7 In any event, even if the ALJ erred by finding the 8 additional impairments nonsevere, that error was harmless because 9 he considered all of Plaintiff s impairments, both severe and 10 nonsevere, when determining his RFC at step four. See Lewis v. 11 Astrue, 498 F.3d 909, 911 (9th Cir. 2007) (failure to address 12 particular impairment at step two harmless if ALJ fully evaluates 13 claimant s medical condition in later steps of sequential 14 evaluation process); see also Stout v. Comm r, Soc. Sec. Admin., 15 454 F.3d 1050, 1055 (9th Cir. 2006) (ALJ s error harmless when 16 inconsequential to the ultimate nondisability determination ). 17 Specifically, the ALJ analyzed Plaintiff s claims of depression 18 and anxiety, joint pain, stiffness, and problems with gait at 19 step four and concluded, consistent with the record, that they 20 did not affect his ability to perform light work. 21 (AR 24-25.) With respect to Plaintiff s alleged polymyalgia rheumatica 22 and right-temple vascular abnormality, the ALJ properly accounted 23 for those conditions in finding that Plaintiff s headaches were a 24 severe impairment. The ALJ noted, consistent with the record, 25 that Plaintiff had swelling in the right side of the forehead and 26 chronic headaches but that his neurological examinations revealed 27 only mild abnormalities. (AR 21; see AR 351-52, 393, 409-14, 28 420-22, 488-95, 579, 627-28.) Plaintiff notes that evidence in 14 1 the record showed he had symptoms associated with these 2 conditions (J. Stip. at 3), but he fails to explain how the ALJ s 3 evaluation of the severity of Plaintiff s symptoms was 4 inconsistent with the record as a whole. 5 entitled to remand on this ground. Plaintiff is thus not See Bayliss v. Barnhart, 427 6 F.3d 1211, 1217 (9th Cir. 2005) (quoting Meanel v. Apfel, 172 7 F.3d 1111, 1113 (9th Cir. 1999) ( The claimant bears the burden 8 of proving that she is disabled. )). 9 10 2. Mayo Clinic evidence Plaintiff next contends that the ALJ erred in failing to 11 consider evidence from the Mayo Clinic that Plaintiff suffered 12 from New Persistent Daily Headache, a debilitating condition. 13 (J. Stip. at 4, 9.) As explained below, the ALJ properly 14 considered the Mayo Clinic evidence as well as other evidence in 15 the record regarding Plaintiff s chronic headaches, and reversal 16 is therefore not warranted on this basis. 17 18 a. Applicable law Three types of physicians may offer opinions in social 19 security cases: (1) those who treat[ed] the claimant (treating 20 physicians); (2) those who examine[d] but d[id] not treat the 21 claimant (examining physicians); and (3) those who neither 22 examine[d] nor treat[ed] the claimant (non-examining 23 physicians). Lester, 81 F.3d at 830. A treating physician s 24 opinion is generally entitled to more weight than the opinion of 25 a doctor who examined but did not treat the claimant, and an 26 examining physician s opinion is generally entitled to more 27 weight than that of a nonexamining physician. 28 Id. The opinions of treating physicians are generally afforded 15 1 more weight than the opinions of nontreating physicians because 2 treating physicians are employed to cure and have a greater 3 opportunity to know and observe the claimant. 4 1285. Smolen, 80 F.3d at If a treating physician s opinion is well supported by 5 medically acceptable clinical and laboratory diagnostic 6 techniques and is not inconsistent with the other substantial 7 evidence in the record, it should be given controlling weight. 8 20 C.F.R. § 404.1527(c)(2). If a treating physician s opinion is 9 not given controlling weight, its weight is determined by length 10 of the treatment relationship, frequency of examination, nature 11 and extent of the treatment relationship, amount of evidence 12 supporting the opinion, consistency with the record as a whole, 13 the doctor s area of specialization, and other factors. 20 14 C.F.R. § 404.1527(c)(2)-(6). 15 When a treating or examining doctor s opinion is not 16 contradicted by another doctor, it may be rejected only for 17 clear and convincing reasons. Carmickle v. Comm r, Soc. Sec. 18 Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) (quoting Lester, 81 19 F.3d at 830-31). When a treating or examining physician s 20 opinion conflicts with another doctor s, the ALJ must provide 21 only specific and legitimate reasons for discounting the 22 treating doctor s opinion. Further, the ALJ need not Id. 23 accept the opinion of any physician, including a treating 24 physician, if that opinion is brief, conclusory, and inadequately 25 supported by clinical findings. Thomas v. Barnhart, 278 F.3d 26 947, 957 (9th Cir. 2002); accord Batson v. Comm r of Soc. Sec. 27 Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). The weight given an 28 examining physician s opinion, moreover, depends on whether it is 16 1 consistent with the record and accompanied by adequate 2 explanation, among other things. 3 4 b. 20 C.F.R. § 404.1527(c)(3)-(6). Relevant facts On October 24, 2007, Plaintiff saw Dr. Wallen after visiting 5 the emergency room two days prior for sudden swelling in the 6 forehead the size of a golf ball with severe pain. (AR 587.) 7 Dr. Wallen noted that the right side of Plaintiff s forehead 8 showed some elevation and some tenderness and soft swelling, 9 non-throbbing but it is tender, but all of Plaintiff s vital 10 signs and other examination results were normal. (Id.) 11 referred Plaintiff for an MRA10 and further testing. 12 He (Id.) On October 30, 2007, Plaintiff underwent MRI and MRA 13 examinations of his brain, head, and neck. (AR 576-79.) 14 exams revealed no significant abnormalities. (Id.) The On December 15 17, 2007, Plaintiff underwent another MRA of his neck, which 16 showed that his arteries were normal. (AR 575.) On March 6, 17 2008, Plaintiff had an MRI of his brain, which revealed a minute 18 mucus retention cyst in the base of the right maxillary sinus ; 19 all other results were normal. (AR 573-74.) It was noted that 20 there was no abnormality of the right frontal scalp or cranium. 21 (AR 574.) On March 25, 2008, Plaintiff underwent a scan of a 22 bump on his right frontal scalp. (AR 571-72.) It showed no 23 aneurysms or vascular malformations, and Plaintiff s 24 intracranial vascular anatomy was noted as essentially 25 26 27 28 10 A Magnetic Resonance Angiogram ( MRA ) is a type of MRI scan that uses a magnetic field and pulses of radio wave energy to provide pictures of blood vessels. Magnetic Resonance Angiogram (MRA), WebMD, http://www.webmd.com/heart-disease/ magnetic-resonance-angiogram-mra (last updated June 30, 2010). 17 1 normal. (AR 571.) On April 23, 2008, Plaintiff had an 2 ultrasound evaluation of his scalp in the right frontal area. 3 (AR 570.) It revealed normal appearance of subgaleal soft 4 tissues and [n]o significant abnormal vascularity. 5 (Id.) On June 27, 2008, Dr. Wallen referred Plaintiff to surgery 6 at Saint John s Health Center in Santa Monica to remove a 7 vascular abnormality from his right temple area which appeared 8 initially like temporal arteritis until an angiogram was 9 performed. (AR 349.) On July 9, 2008, Plaintiff had the mass 10 on his right scalp and forehead surgically removed; a biopsy was 11 also performed on the mass. (AR 351.) The surgeon noted that 12 Plaintiff felt that the mass is significantly contributing 13 towards the pain in his head, but the doctor was somewhat leery 14 of this diagnosis because he did not feel that biopsy of this 15 will likely affect [Plaintiff s] pain symptoms in a significant 16 manner. (Id.) The biopsy showed that the veins in the mass had 17 reactive endothelial changes and mild intimal fibrosis, but the 18 mass was not malignant. 19 (AR 393.) On December 3, 2008, Plaintiff saw Dr. Alexander Hersel for 20 an occipital nerve block to relieve his headaches. (AR 505-06.) 21 Dr. Hersel performed the procedure and noted that Plaintiff 22 tolerated it well and stated that he had significant reduction 23 in the radiating pain above the scalp to the eye as well as the 24 hyperalgesia overlying the skin of the scalp. 25 (AR 506.) On August 4, 2009, Plaintiff was referred by Dr. Wallen to 26 Dr. Talin Evazyan at UCLA Medical Center. (AR 488.) Dr. Evazyan 27 recounted Plaintiff s medical history of headaches, beginning in 28 October 2007; he noted that Plaintiff s past neurological test 18 1 results were generally normal and Plaintiff s headaches continued 2 after biopsy of his temporal artery. (Id.) Dr. Evazyan 3 diagnosed Plaintiff with a neuroma 11 and recommended local 4 infiltration of the site, lidocaine patches for symptomatic 5 relief, Voltaren gel for local pain relief, and supratrochlear 6 and supraorbital nerve blocks. (AR 490.) He also noted that 7 Plaintiff might even benefit from a visit to Mayo Clinic where a 8 specialist can offer a more definite diagnosis for him. 9 (Id.) On January 4, 2010, Plaintiff visited the Mayo Clinic, where 10 he had MRI exams of his face, head, and neck. (AR 616.) They 11 revealed [n]o evidence of a right frontal subcutaneous vascular 12 malformation. (Id.) On January 5, 2010, Plaintiff saw Dr. 13 Jaspreet K. Dhaliwal at the Mayo Clinic. (AR 627-29.) Dr. 14 Dhaliwal recounted Plaintiff s history of headaches since October 15 2007 and his description of his subjective symptoms, noting that 16 Plaintiff rated his constant headache a 4/10 in severity but 17 [t]hree to four times per week, he will notice enlargement of 18 the right forehead lesion, and his pain will increase to a 10/10 19 in severity. (AR 627.) Dr. Dhaliwal performed a physical 20 examination of Plaintiff and noted that Plaintiff had some 21 slight asymmetry about the size of a quarter on the right 22 forehead just above the lateral aspect of his eyebrow that was 23 soft and nonpulsatile in nature, but all other signs were 24 normal. (AR 628.) He then made the following notes regarding 25 26 11 A neuroma is a benign tumor that arises from a nerve. 27 Neuroma definition, eMedicineHealth, http://www.emedicinehealth.com/script/main/art.asp?articlekey=455 28 4 (last visited May 10, 2013). 19 1 his treatment plan for Plaintiff: 2 Mr. Albertson gives a history of a pulsatile 3 forehead lesion and headaches, which is suspicious for a 4 vascular malformation. 5 see anything obvious for that. 6 chronic daily headaches, which are debilitating. I would 7 appreciate input from our neurologists. 8 that the patient has had surgery since his March 2008 MRI 9 scan, I will repeat an MRI and compare it to his previous In reviewing his MRI, I do not He is experiencing Given the fact 10 scan. 11 artery biopsy. 12 temporal arteritis, and I also am having some difficulty 13 attributing to [sic] the magnitude of his symptoms to his 14 forehead lesion. 15 neurology evaluation and MRI. I will also request his slides from his temporal I do not feel this is consistent with I will see him back following the 16 (AR 628.) 17 On January 7, 2010, Plaintiff returned to the Mayo Clinic 18 for a follow-up visit with Dr. Dhaliwal. (AR 619-24.) Dr. 19 Dhaliwal reported that Plaintiff s MRI does not demonstrate any 20 focal acute abnormality to account for his headaches and agreed 21 with past assessments that Plaintiff suffered from chronic daily 22 headache and the forehead asymmetry is likely unrelated. (AR 23 619.) 24 25 c. Analysis The ALJ cited the Mayo Clinic reports in his written 26 decision when noting that Plaintiff reports a history of a mass 27 on the right side of the forehead and chronic headaches since 28 October 2007. (AR 21 (citing AR 627).) 20 Consistent with Dr. 1 Dhaliwal s evaluation, he then recounted the MRI results and 2 physician s reports from 2008 and 2009 showing no significant 3 abnormalities, no connection between the mass on Plaintiff s 4 forehead and his headaches, and no other explanation for 5 Plaintiff s headaches. (AR 21 (citing AR 614-28).) He also 6 cited the Mayo Clinic reports in noting that Plaintiff s daily 7 activities and social interactions were not impaired by his 8 mental or physical conditions. (AR 24 (citing AR 614-28 (showing 9 that Plaintiff did not report impairment in activity or social 10 interactions)).) 11 The ALJ s opinion was consistent with the evidence from the 12 Mayo Clinic. As the ALJ noted, Plaintiff s MRI results revealed 13 no significant abnormalities (AR 616), and Plaintiff s headaches 14 appeared unrelated to the mass on his forehead (AR 619). Like 15 the other evidence that the ALJ discussed in more detail, the 16 records from the Mayo Clinic ultimately show that despite 17 extensive testing, doctors could not find an explanation for 18 Plaintiff s headaches. (See AR 619, 628.) Dr. Dhaliwal even 19 expressed some skepticism concerning Plaintiff s subjective 20 symptoms, stating that he was having some difficulty attributing 21 to [sic] the magnitude of [Plaintiff s] symptoms to his forehead 22 lesion and expressing doubt that Plaintiff s headaches were 23 attributable to a vascular malformation or temporal arteritis, as 24 Plaintiff appears to have claimed. 25 (See AR 628.) Plaintiff argues that the ALJ erred in failing to credit Dr. 26 Dhaliwal s characterization of his headaches as debilitating 27 and failing to note a diagnosis of New Persistent Daily 28 Headache. (J. Stip. at 4.) These contentions do not warrant 21 1 reversal. Dr. Dhaliwal s use of the word debilitating appears 2 to reference Plaintiff s own description of his symptoms. 3 AR 628.) (See In any event, as discussed below, the ALJ properly 4 discounted Plaintiff s credibility, and thus he did not need to 5 credit any medical opinions based on Plaintiff s subjective 6 complaints. See Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th 7 Cir. 2001) (when ALJ properly discounted claimant s credibility, 8 he was free to disregard doctor s opinion that was premised on 9 claimant s subjective complaints); Morgan v. Comm r of Soc. Sec. 10 Admin., 169 F.3d 595, 602 (9th Cir. 1999) (when physician s 11 opinion of disability premised to a large extent upon 12 claimant s own accounts of symptoms, limitations may be 13 disregarded if complaints have been properly discounted ). 14 Moreover, to the extent Dr. Dhaliwal s characterization of 15 Plaintiff s headaches as debilitating was intended to be an 16 evaluation of Plaintiff s ability to work, the ALJ was free to 17 disregard it. See 20 C.F.R. § 404.1545(e); SSR 96-5p, 1996 WL 18 374183, at *5 (Commissioner must make ultimate disability 19 determination; opinions from medical sources about whether a 20 claimant is disabled or unable to work can never be entitled 21 to controlling weight or given special significance ); McLeod v. 22 Astrue, 640 F.3d 881, 885 (9th Cir. 2011) (noting that a 23 treating physician ordinarily does not consult a vocational 24 expert or have the expertise of one ; treating physician s 25 evaluation of claimant s ability to work thus not entitled to 26 deference because [t]he law reserves the disability 27 determination to the Commissioner ). 28 Regarding the diagnosis of New Persistent Daily Headache, 22 1 Plaintiff fails to explain how that term carries a different 2 meaning than chronic headaches, the term the ALJ used to 3 describe Plaintiff s condition. Indeed, although Dr. Dhaliwal 4 described Plaintiff s condition as New Persistent Daily 5 Headache on one page of his notes (AR 623), on several other 6 pages he refers to it as simply headaches or chronic daily 7 headaches (AR 619-20, 627, 628). Plaintiff even used the two 8 terms interchangeably in his testimony. 9 (See AR 60.) Plaintiff has failed to show how the ALJ s decision was 10 inconsistent with the record. His contentions therefore do not 11 warrant reversal. 12 13 3. Application of Listings Plaintiff also argues that the ALJ improperly failed to 14 consider Listings 4.00 et seq. and 12.06 in determining that 15 Plaintiff s impairments did not meet or equal a listed 16 impairment. (J. Stip. at 7.) Reversal is not warranted on this 17 basis. 18 Listed impairments are those that are so severe that they 19 are irrebuttably presumed disabling, without any specific finding 20 as to the claimant s ability to perform his past relevant work or 21 any other jobs. Lester, 81 F.3d at 828. A step-three finding 22 of disability must be based on medical evidence from acceptable 23 medical sources only, i.e., licensed psychologists or physicians 24 designated by the Commissioner. 25 404.1526(c), (d). 20 C.F.R. §§ 404.1529(d)(3), The claimant has the initial burden to prove 26 an impairment under an identified Listing. Sullivan v. Zebley, 27 493 U.S. 521, 530-33, 110 S. Ct. 885, 891-92, 107 L. Ed. 2d 967 28 (1990). 23 1 An ALJ s decision that a plaintiff did not meet a Listing 2 must be upheld if it was supported by substantial evidence. 3 See Warre v. Comm r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th 4 Cir. 2006). Substantial evidence is more than a mere scintilla 5 but less than a preponderance; it is such relevant evidence as a 6 reasonable mind might accept as adequate to support a 7 conclusion. 8 1997). Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. When evidence was susceptible to more than one rational 9 interpretation, the Court must uphold the ALJ s conclusion as 10 long as substantial evidence existed to support it. 11 Id. An ALJ must evaluate the relevant evidence before 12 concluding that a claimant s impairments do not meet or equal a 13 listed impairment. 14 2001). Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. The ALJ, however, need not state why a claimant failed 15 to satisfy every different section of the listing of 16 impairments. Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th 17 Cir. 1990) (finding ALJ did not err in failing to state what 18 evidence supported conclusion that, or discuss why, claimant s 19 impairments did not satisfy a Listing). Moreover, the ALJ is 20 not required to discuss the combined effects of a claimant s 21 impairments or compare them to any listing in an equivalency 22 determination, unless the claimant presents evidence in an effort 23 to establish equivalence. Burch v. Barnhart, 400 F.3d 676, 683 24 (9th Cir. 2005) (citing Lewis, 236 F.3d at 514). 25 As an initial matter, Plaintiff has not presented any 26 evidence that he argued to the ALJ that his impairments met or 27 equaled Listings 4.00 et seq. or 12.06. It is unnecessary to 28 require the Secretary, as a matter of law, to state why a 24 1 claimant failed to satisfy every different section of the listing 2 of impairments. Gonzalez, 914 F.2d at 1201. The ALJ did not 3 err in failing to consider listings that Plaintiff never 4 identified were at issue. Burch, 400 F.3d at 683 ( An ALJ is not 5 required to discuss the combined effects of a claimant s 6 impairments or compare them to any listing in an equivalency 7 determination, unless the claimant presents evidence in an effort 8 to establish equivalence. ); Bowman v. Astrue, 2011 WL 3323383, 9 at *4 (C.D. Cal. Aug. 2, 2011) (rejecting plaintiff s argument 10 that ALJ erred in not considering identified Listing when 11 plaintiff [did] not present any evidence that he argued to the 12 ALJ that the combination of his impairments met [that Listing] ). 13 In any event, the evidence of record was insufficient to 14 show that Plaintiff met either Listing. Plaintiff asserts that 15 his hypertension, mass on his head, and coronary angiography 16 mandated a finding of disability under Listings 4.00 et seq. and 17 12.06. (J. Stip. at 7 (citing AR 616-24, 630-44).) He has 18 failed to meet his burden to show how these listings were 19 satisfied. 20 Listing 4.00 covers impairments of the cardiovascular 21 system. 20 C.F.R. § 404, subpt. P, app. 1, § 4.00 et seq. A 22 claimant can meet Listing 4.04C (Coronary artery disease) if he 23 can demonstrate by angiography (obtained independent of Social 24 Security disability evaluation) evidence showing: 25 a. 26 27 28 50 percent or more narrowing of a nonbypassed left main coronary artery; or b. 70 percent or more narrowing of another nonbypassed coronary artery; or 25 1 c. 50 percent or more 2 (greater 3 narrowing involving a long coronary artery; or 4 d. 50 5 6 than percent or 1 cm) of a narrowing more segment nonbypassed of at least two nonbypassed coronary arteries; or e. 70 percent or more narrowing of a bypass graft 7 vessel; and 8 2. Resulting in very serious limitations in the ability 9 to independently 10 initiate, sustain, or complete activities of daily living. 11 Id. § 4.04C. To meet a Listing based on hypertension (high blood 12 pressure), a claimant must show that it has affected other body 13 systems, such as the heart, brain, kidneys, or eyes. 14 § 104.00F. Id. In the case of the heart, a claimant must present 15 evidence of heart disease resulting in one or more of the 16 following four consequences: 17 (i) 18 19 heart failure or ventricular dysfunction. (ii) 20 21 Chronic Discomfort or pain due to myocardial ischemia, with or without necrosis of heart muscle. (iii) Syncope, or near syncope, due to inadequate 22 cerebral perfusion from any cardiac cause, 23 such as obstruction of flow or disturbance in 24 rhythm or conduction resulting in inadequate 25 cardiac output. 26 (iv) Central cyanosis due to right-to-left shunt, 27 reduced oxygen concentration in the arterial 28 blood, or pulmonary vascular disease. 26 1 Id. § 4.00A. 2 Plaintiff has not met his burden to show that he met or 3 equaled any of the impairments in Listing 4.00 et seq. As the 4 ALJ correctly found, tests performed in 2008, 2009, and 2010 5 showed that Plaintiff s blood pressure was normal and he had no 6 cardiac dysfunction. (AR 22, 567-68, 632, 636-39.) A June 6, 7 2008 angiogram showed only slight abnormalities in Plaintiff s 8 temporal artery. (AR 22, 567-68.) A physical examination 9 performed in November 2010 revealed normal blood pressure and 10 normal heart functioning. (AR 636-39.) Plaintiff has not met 11 his burden to present evidence showing that he satisfies any of 12 the above-listed criteria. 13 Listing 12.06 covers anxiety-related disorders. 14 § 12.06. Id. To meet Listing 12.06, a claimant must present the 15 following evidence: 16 A. 17 following: 18 19 Medically documented findings of at least one of the 1. Generalized persistent anxiety accompanied by three out of four of the following signs or symptoms: 20 a. Motor tension; or 21 b. Autonomic hyperactivity; or 22 c. Apprehensive expectation; or 23 d. Vigilance and scanning; 24 or 25 2. 26 object, 27 compelling desire to avoid the dreaded object, activity, 28 or situation; or A persistent irrational fear of a specific activity, or situation 27 which results in a 1 3. Recurrent severe panic attacks manifested by a 2 sudden unpredictable onset of intense apprehension, fear, 3 terror and sense of impending doom occurring on the 4 average of at least once a week; or 5 6 4. Recurrent obsessions or compulsions which are a source of marked distress; or 7 5. 8 traumatic 9 Recurrent and intrusive recollections of a distress; 10 B. which are a source of marked And 11 experience, 12 13 1. 2. restriction Marked difficulties of activities of daily in maintaining social difficulties in maintaining functioning; or 16 17 Marked living; or 14 15 Resulting in at least two of the following: 3. Marked concentration, persistence, or pace; or 18 4. Repeated episodes of decompensation, each of 19 extended duration. 20 OR 21 C. 22 independently outside the area of one s home. Resulting in complete inability to function 23 20 C.F.R. § 404, subpt. P, app. 1, § 12.06. 24 Plaintiff has not met his burden to show that he met or 25 equaled Listing 12.06. As discussed above, there is no evidence 26 that Plaintiff underwent any psychiatric treatment for his 27 anxiety or that it was debilitating in any way; indeed, most of 28 the evidence in the record suggests that Plaintiff s mental 28 1 functioning was normal. 2 (See AR 350, 489-90, 588-93, 661-75.) Plaintiff has therefore failed to meet his burden to show 3 how any listings were satisfied. Reversal is not warranted on 4 this basis. 5 B. 6 7 The ALJ Did Not Err in Assessing Plaintiff s Credibility Plaintiff argues that the ALJ failed to provide clear and 8 convincing reasons for discounting his credibility. 9 10-13, 16-17.) (J. Stip. at Because the ALJ did provide clear and convincing 10 reasons supporting his evaluation of Plaintiff s testimony and 11 those reasons were supported by substantial evidence in the 12 record, reversal is not warranted on this basis. 13 14 1. Applicable law An ALJ s assessment of pain severity and claimant 15 credibility is entitled to great weight. See Weetman v. 16 Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. Heckler, 779 17 F.2d 528, 531 (9th Cir. 1986). [T]he ALJ is not required to 18 believe every allegation of disabling pain, or else disability 19 benefits would be available for the asking, a result plainly 20 contrary to 42 U.S.C. § 423(d)(5)(A). 21 F.3d 1104, 1122 (9th Cir. 2012). Molina v. Astrue, 674 In evaluating a claimant s 22 subjective symptom testimony, the ALJ engages in a two-step 23 analysis. See Lingenfelter, 504 F.3d at 1035-36. First, the 24 ALJ must determine whether the claimant has presented objective 25 medical evidence of an underlying impairment [that] could 26 reasonably be expected to produce the pain or other symptoms 27 alleged. Id. at 1036 (internal quotation marks omitted). If 28 such objective medical evidence exists, the ALJ may not reject a 29 1 claimant s testimony simply because there is no showing that the 2 impairment can reasonably produce the degree of symptom alleged. 3 Smolen, 80 F.3d at 1282 (emphasis in original). When the ALJ 4 finds a claimant s subjective complaints not credible, the ALJ 5 must make specific findings that support the conclusion. 6 Berry v. Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). See Absent 7 affirmative evidence of malingering, those findings must provide 8 clear and convincing reasons for rejecting the claimant s 9 testimony.12 Lester, 81 F.3d at 834. If the ALJ s credibility 10 finding is supported by substantial evidence in the record, the 11 reviewing court may not engage in second-guessing. Thomas, 278 12 F.3d at 959. 13 14 2. Relevant facts In an undated Disability Report, Plaintiff claimed that his 15 headaches made it impossible for him to walk around the agency 16 or to sit in an office with the lights on for long periods of 17 time or use the computer to due [sic] any paperwork ; Plaintiff 18 was in constant pain, so he is unable to concentrate and is 19 always fatigued due to lack of sleep caised [sic] by the pain ; 20 and Plaintiff feels depressed because has [sic] gone through 21 many treatments and have [sic] been unable to solve his illness. 22 (AR 165.) In a later Disability Report, Plaintiff stated that 23 12 There is arguably some evidence in the record of 24 malingering. For example, in January 2010, Dr. Dhaliwal noted 25 that he was having some difficulty attributing to [sic] the 26 27 28 magnitude of [Plaintiff s] symptoms to his forehead lesion and expressed doubt that Plaintiff s headaches were attributable to a vascular malformation or temporal arteritis, as Plaintiff appears to have claimed. (See AR 628.) In any event, as discussed herein, the ALJ provided clear and convincing reasons for rejecting Plaintiff s credibility. 30 1 his migraines had gotten worse, his blood pressure had gotten 2 higher, and he had developed severe arthritis in my hands and 3 my back from taking high doses of Prednisone to try to control my 4 headaches. (AR 188.) He also stated that his heart 5 palpitations have gotten worse from my high blood pressure, his 6 eyes have become photosensitive from the new medication I was 7 prescribed, and his arthritis has gotten worse since they took 8 me off some of my painkillers. (Id.) He further stated that he 9 had trouble concentrating since my migraines have gotten worse 10 and had trouble with my heart since my pain has become worse. 11 (Id.) He stated that he was unable to do my job anymore because 12 I can no longer concentrate like I use [sic] to working with 13 numbers and financing. 14 (AR 195.) When Dr. Sherrill examined Plaintiff in March 2010, she 15 noted that he drove himself to the clinic for his evaluation and 16 that he reported that he was able to perform all basic household 17 chores unassisted and is capable of running errands and going 18 shopping alone, but prefers not to do so. (AR 588, 590.) He 19 reported good relationships with family members and good 20 relationships with friends, acquaintances and neighbors. 21 590.) (AR She noted that he stated that he is able to cook meals 22 without help, but does not like doing so, and [h]is current 23 preferred activities include watching television. (AR 590.) 24 Plaintiff also reported that he was able to perform all self25 care activities independently, including dressing and bathing 26 himself, and was able to manage his own finances and drive his 27 own car. 28 (AR 590.) Dr. Sherrill noted that Plaintiff reported the following 31 1 symptoms: 2 According to the claimant, his primary problems and 3 disabilities are medical. 4 disability is that he has catastrophic medical problems. 5 The 6 headaches every day. 7 disability because he was in such extraordinary pain that 8 he was not able to do his job. 9 numerous physicians including physicians at the Mayo claimant has He stated that his primary severe and debilitating migraine The claimant has been placed on The claimant has seen 10 Clinic. 11 every physician. 12 he is chronically frustrated and distracted, resulting in 13 an inability to concentrate and focus. 14 He received a different diagnosis from almost The claimant stated that as a result, Additionally, the claimant stated that he 15 experiences routine lapses in memory. 16 recognizes that he has an excellent memory but he is 17 extraordinarily 18 problems. 19 anxiety and depression. 20 financial worries because of his medical condition and 21 lack of employment. 22 claimant is now chronically depressed because of the 23 catastrophic medical problems and his pain along with 24 pain management problems. However, he denied any history 25 of suicidal ideation. 26 thoughts. 27 and appetite. distracted because of The claimant his medical The claimant reported that he now has chronic The claimant has extraordinary He has three small children. The He has no history of homicidal The claimant further reported impaired sleep 28 (AR 589.) 32 1 At the hearing, Plaintiff testified that he had not worked 2 since January 1, 2009. (AR 47.) He stated that Dr. Wallen 3 advised him to stop working at that time because the stress was 4 showing too much on me; the strain because I was getting sicker. 5 (AR 48.) He testified that he saw a primary-care physician, a 6 neurologist, and a pulmunologist but did not see a mental-health 7 professional and did not see his cardiologist on a regular 8 basis. (AR 48-51.) He stated that he stopped working because 9 of absolutely unbearable pain on the right side of his head 10 that just never stops. (AR 51.) He stated that he also had 11 hypertension that was controlled to an extent with medication 12 but flared up when he had severe pain, and he also had heart 13 palpitations caused by his headache pain. (AR 53, 66.) He 14 stated that his headache had not gone away since his symptoms 15 began, and he recounted that the medical tests he underwent 16 between 2008 and 2010 did not produce a conclusive diagnosis. 17 (AR 53-56.) He testified that his doctors told him there was no 18 cure for his headaches and that they were becoming more severe 19 over time. 20 (AR 60-61.) As to his daily activities, Plaintiff testified that he 21 [didn t] really do too much of anything during the day but was 22 able to drive to the grocery store, post office, and pharmacy. 23 (AR 56-57.) He stated that he did not do yard work or laundry 24 and took care of his children only on days when the nanny did not 25 work. (AR 57-58, 69.) He stated, however, that he drove to his 26 eldest daughter s school to meet with the vice principal once 27 every four months because his daughter had a learning disability. 28 (AR 58.) He stated that he did not socialize with friends or 33 1 family and stayed home while his wife participated in social 2 activities, but he saw his family at home to have dinner with 3 them and talk to them and stuff. (AR 58-59, 69.) He claimed 4 that he lied down and slept most of the day and did not read or 5 watch TV because that s more of a distraction and actually 6 causes more of a headache. (AR 64.) 7 medications made him drowsy. (AR 65.) He stated that some of his He testified that he 8 slept several hours during the day, from approximately 1 to 5 9 p.m. 10 (AR 68.) Plaintiff also testified that he had difficulty standing and 11 walking because of osteoarthritis, which was diagnosed in June 12 2009 and was caused by taking Prednisone. (AR 61.) He testified 13 that he could stand and walk for [t]wenty or thirty minutes 14 before needing to sit, could sit for at least an hour, and 15 could carry or lift [l]ess than five to ten pounds. (AR 62.) 16 He testified that his diabetes was out of control and his blood 17 sugars were [i]ncredibly high, which made him feel very 18 shaky. 19 (AR 66-67.) With respect to his headaches, Plaintiff testified that on 20 his best day his pain was a three and on his worst day it 21 was at a 10, and his pain reached level 10 about twice a 22 week. (AR 64.) He stated that he was like a five to seven 23 most of the time. (Id.) He testified that he could not work 24 because his headache pain would cause him to lose concentration, 25 and with the medication I take that caused it just to be that 26 much worse. 27 28 3. (AR 68.) Analysis The ALJ found that Plaintiff s medically determinable 34 1 impairments could reasonably be expected to cause the alleged 2 symptoms, but his statements concerning the intensity, 3 persistence and limiting effects of these symptoms are not 4 credible to the extent they are inconsistent with the ALJ s RFC 5 assessment. (AR 24.) The ALJ noted that despite Plaintiff s 6 claims of severe depression and anxiety, he had never sought 7 mental-health treatment, and Dr. Sherrill s examination revealed 8 no cognitive dysfunctions, memory problems, or thought 9 impairments. (AR 22, 24.) He then made the following findings 10 regarding Plaintiff s daily activities: 11 In addition to the objective findings of no severe 12 mental impairment, neither activities of daily living nor 13 social interactions were restricted by either mental or 14 physical conditions (Testimony; [(AR 614-28, 659-75)]). 15 The claimant does basic household chores, shops, cooks, 16 and drives three times a week [(AR 590).]13 He spends 17 much sedentary 18 activity. 19 claimant reports good relations with family and friends 20 when he described his medical-social history to Dr. 21 Sherrill. 22 child s IEP (Testimony). of his time watching television, a He likes to play the guitar [(AR 498)].14 The He goes to his child s school to review the 23 24 25 26 27 28 13 The ALJ cited Exhibit 9F/3 in support of this assertion. That appears to have been a typographical error the evidence to which the ALJ referred in fact appears on page 3 of Exhibit 6F (AR 590). 14 This citation also contains a typographical error. The ALJ cited Exhibit 11F/92, but the evidence he discusses appears on page 92 of Exhibit 5F (AR 498). 35 1 (AR 24.) The ALJ then discussed the lack of support in the 2 record for Plaintiff s claims regarding his medical conditions. 3 (AR 24-25.) 4 Reversal is not warranted based on the ALJ s alleged failure 5 to make proper credibility findings or properly consider 6 Plaintiff s subjective symptoms. As discussed above, the ALJ s 7 evaluation of the medical evidence was consistent with the 8 record; his rejection of Plaintiff s testimony to the extent it 9 was inconsistent with the objective evidence was therefore 10 proper. See Carmickle, 533 F.3d at 1161 ( Contradiction with the 11 medical record is a sufficient basis for rejecting the claimant s 12 subjective testimony. ); Lingenfelter, 504 F.3d at 1040 (in 13 determining credibility, ALJ may consider whether the alleged 14 symptoms are consistent with the medical evidence ); Burch, 400 15 F.3d at 681 ( Although lack of medical evidence cannot form the 16 sole basis for discounting pain testimony, it is a factor that 17 the ALJ can consider in his credibility analysis. ); Kennelly v. 18 Astrue, 313 F. App x 977, 979 (9th Cir. 2009) (same); see also 19 Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (ALJ 20 may infer that claimant s response to conservative treatment 21 undermines [claimant s] reports regarding the disabling nature of 22 his pain ). Indeed, the ALJ s finding that the intensity of 23 Plaintiff s reported symptoms could not be reconciled with the 24 medical evidence was consistent with Dr. Dhaliwal s observation 25 that he was having some difficulty attributing to [sic] the 26 magnitude of [Plaintiff s] symptoms to his forehead lesion and 27 had doubts that Plaintiff s headaches were attributable to a 28 vascular malformation or temporal arteritis, as Plaintiff appears 36 1 to have claimed. 2 (See AR 24. 628.) Moreover, as the ALJ noted, Plaintiff admitted to Dr. 3 Sherrill that he was able to do a wide variety of daily 4 activities, including driving, doing household chores, cooking, 5 performing self-care functions, handling money, and socializing 6 with his family, but simply prefers not to do so. 7 590.) (AR 24, Plaintiff also reported to Dr. Wallen in January 2009 that 8 he played the guitar. (AR 498.) Plaintiff does not argue that 9 Dr. Sherrill s or Dr. Wallen s descriptions of his daily 10 activities were inaccurate in any way. Plaintiff also testified 11 that he was able to drive several times a week and regularly met 12 with administrators at his daughter s school to review her 13 education plan. (AR 56-58.) That Plaintiff s allegations of 14 disabling pain were inconsistent with evidence in the record as 15 to his daily activities was a valid reason for the ALJ to 16 discount his testimony. See Bray v. Comm r of Soc. Sec. Admin., 17 554 F.3d 1219, 1227 (9th Cir. 2009) (ALJ properly discounted 18 claimant s testimony because she leads an active lifestyle, 19 including cleaning, cooking, walking her dogs, and driving to 20 appointments ); Berry, 622 F.3d at 1234-35 (holding that when 21 claimant told medical staff he engaged in daily walks of a mile 22 or more, had various social engagements, drove his car and did 23 crossword puzzles, computer work, pet care, cooking, laundry and 24 other house-keeping, ALJ properly discounted claimant s 25 credibility based on inconsistencies in [claimant s] reported 26 symptoms and activities ); Molina, 674 F.3d at 1113 ( Even where 27 [claimant s] activities suggest some difficulty functioning, they 28 may be grounds for discrediting the claimant s testimony to the 37 1 extent that they contradict claims of a totally debilitating 2 impairment. ). 3 Because the ALJ gave clear and convincing reasons for his 4 credibility finding and those reasons were supported by 5 substantial evidence, the Court may not engage in 6 second-guessing. Thomas, 278 F.3d at 959 (citation omitted). 7 Plaintiff is not entitled to reversal on this claim. 8 C. 9 In issues four and five, Plaintiff contends that the ALJ The ALJ Did Not Err in Determining Plaintiff s RFC 10 erred in determining that he retained the RFC to perform light 11 work and could perform his past relevant work. 12 22). 13 (J. Stip. at 17- Reversal is not warranted on these bases. A district court must uphold an ALJ s RFC assessment when 14 the ALJ has applied the proper legal standard and substantial 15 evidence in the record as a whole supports the decision. 16 Bayliss, 427 F.3d at 1217. The ALJ must have considered all the 17 medical evidence in the record and explain in [his or her] 18 decision the weight given to . . . [the] opinions from treating 19 sources, nontreating sources, and other nonexamining sources. 20 20 C.F.R. § 404.1527(e)(2)(ii). In making an RFC determination, 21 the ALJ may consider those limitations for which there is support 22 in the record and need not consider properly rejected evidence or 23 subjective complaints. See Batson, 359 F.3d at 1197 98 ( ALJ was 24 not required to incorporate evidence from the opinions of 25 [plaintiff s] treating physicians, which were permissibly 26 discounted ); Bayliss, 427 F.3d at 1217 (upholding ALJ s RFC 27 determination because the ALJ took into account those 28 limitations for which there was record support that did not 38 1 depend on [claimant s] subjective complaints ). The Court must 2 consider the ALJ s decision in the context of the entire record 3 as a whole, and if the evidence is susceptible to more than one 4 rational interpretation, the ALJ s decision should be upheld. 5 Ryan v. Comm r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) 6 (internal quotation marks omitted). 7 Plaintiff argues, without elaborating, that the ALJ s RFC 8 finding was in error because it did not account for Plaintiff s 9 alleged depression, anxiety, or physical pain. 10 18, 20-22.) It is Plaintiff s burden at step four to prove that 11 he is unable to perform past relevant work. 12 1257. (J. Stip. at Drouin, 966 F.2d at Plaintiff s conclusory arguments without citation to the 13 record are insufficient to meet his burden. See Carmickle, 533 14 F.3d at 1161 n.2 (rejecting argument when claimant failed to 15 argue [it] with any specificity in his briefing ); see also Rogal 16 v. Astrue, No. C12 5158 RSL BAT, 2012 WL 7141260, at *3 (W.D. 17 Wash. Dec. 7, 2012) ( It is not enough merely to present an 18 argument in the skimpiest way, and leave the Court to do 19 counsel s work - framing the argument and putting flesh on its 20 bones through a discussion of the applicable law and facts. ), 21 accepted by 2013 WL 557172 (W.D. Wash. Feb. 12, 2013). As 22 discussed in Section V.A above, the ALJ s evaluation of 23 Plaintiff s impairments was supported by substantial evidence in 24 the record. The consulting examiner also found that Plaintiff 25 was capable of doing light work. (AR 403.) Plaintiff has not 26 met his burden to show that that finding was in error. 27 Plaintiff argues that the ALJ s hypothetical to the VE was 28 improper because it did not contain a true function-by-function 39 1 assessment of the plaintiff s limitations. (J. Stip. at 19.) 2 Plaintiff does not identify the specific functions that the ALJ 3 failed to include in the hypothetical, but to the extent he 4 argues that the ALJ should have included additional limitations 5 that were found to be not credible or not supported by the 6 record, the ALJ did not err. See Bayliss, 427 F.3d at 1217 7 (holding that [p]reparing a function-by-function analysis for 8 medical conditions or impairments that the ALJ found neither 9 credible nor supported by the record is unnecessary and that ALJ 10 may rely on VE response to hypothetical that contained all of 11 the limitations that the ALJ found credible and supported by 12 substantial evidence in the record ). 13 Plaintiff also argues that the hypothetical was lacking 14 because it did not take into account new medical evidence, in 15 particular the evidence from the Mayo Clinic. 16 AR 72.) (J. Stip. at 19, As detailed above, however, the Mayo Clinic evidence was 17 consistent with the other evidence of record demonstrating that 18 Plaintiff s test results did not show any significant 19 abnormalities and doctors could not find an explanation for 20 Plaintiff s headaches. (See AR 616, 619, 628.) Moreover, as 21 discussed above, to the extent Dr. Dhaliwal s statement that 22 Plaintiff s headaches were debilitating was meant to evaluate 23 his medical condition, the ALJ properly rejected it. 24 not warranted on this basis. 25 26 27 28 40 Reversal is 1 VI. CONCLUSION 2 Consistent with the foregoing, and pursuant to sentence four 3 of 42 U.S.C. § 405(g),15 IT IS ORDERED that judgment be entered 4 AFFIRMING the decision of the Commissioner and dismissing this 5 action with prejudice. IT IS FURTHER ORDERED that the Clerk 6 serve copies of this Order and the Judgment on counsel for both 7 parties. 8 9 DATED: May 22, 2013 10 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 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. 41

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