Linda Lira v. Michael J. Astrue, No. 5:2009cv01490 - Document 19 (C.D. Cal. 2010)
Court Description: MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF THE COMMISSIONER OF SOCIAL SECURITY by Magistrate Judge John E. McDermott. IT IS HEREBY ORDERED that the Decision of the Commissioner of Social Security is AFFIRMED. LET JUDGMENT BE ENTERED ACCORDINGLY. (See attached order for further details.) (es)
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Linda Lira v. Michael J. Astrue Doc. 19 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 9 10 11 LINDA LIRA, 12 Plaintiff, 13 v. 14 MICHAEL J. ASTRUE, 15 Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. EDCV 09-1490-JEM MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF THE COMMISSIONER OF SOCIAL SECURITY 17 18 19 PROCEEDINGS On August 20, 2009, Linda Lira (“Plaintiff” or “Claimant”) filed a complaint seeking 20 review of the decision by the Commissioner of Social Security (“Commissioner”) denying 21 Plaintiff’s application for Supplemental Security Income (“SSI”) benefits. The Commissioner 22 filed an Answer on February 23, 2010. On May 5, 2010, the parties filed a Joint Stipulation 23 (“JS”). The matter is now ready for decision. 24 Pursuant to 28 U.S.C. § 636(c), both parties consented to proceed before the 25 Magistrate Judge. After reviewing the pleadings, transcripts, and administrative record 26 (“AR”), the Court concludes that the Commissioner’s decision should be affirmed. 27 28 Dockets.Justia.com BACKGROUND 1 2 Plaintiff is a 50 year old female who was found to have the medically determinable 3 severe impairments of arthritis and degenerative disc disease. (AR 14.) Plaintiff alleged a 4 disability onset date of December 8, 1999. (AR 12.) The ALJ found that Plaintiff has not 5 engaged in substantial gainful activity since January 23, 2007, the application date. (Id.) 6 Plaintiff’s claim for SSI benefits was denied initially and on reconsideration. (AR 44- 7 54.) Plaintiff filed a written request for hearing (AR 56), which was held before Administrative 8 Law Judge (“ALJ”) Jay Levine on November 26, 2008, in San Bernardino, California. (AR 9 19-41.) Plaintiff appeared and testified. (AR 19-39.) Vocational expert Sandra Fioretti also 10 appeared and testified. (AR 39-40.) The ALJ issued an unfavorable decision on January 26, 11 2009. (AR 9-18.) Plaintiff filed a timely Request for Review of Hearing Decision. (AR 8.) 12 The Appeals Council denied review on June 16, 2009. (AR 1-3.) Thereafter, Plaintiff 13 commenced the present action. DISPUTED ISSUES 14 15 As reflected in the Joint Stipulation, the sole disputed issue that Plaintiff raises as a 16 ground for reversal is as follows: 17 18 19 Whether the ALJ properly considered Plaintiff’s subjective pain testimony? STANDARD OF REVIEW Under 42 U.S.C. § 405(g), this Court reviews the ALJ’s decision to determine whether 20 the ALJ’s findings are supported by substantial evidence and whether the proper legal 21 standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). 22 Substantial evidence means “‘more than a mere scintilla’. . . but less than a preponderance.” 23 Saelee v. Chater, 94 F.3d 520, 521-22 (9th Cir. 1996) (quoting Richardson v. Perales, 402 24 U.S. 389, 401 (1971)). Substantial evidence is “such relevant evidence as a reasonable 25 mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 401 26 (internal quotations and citation omitted). 27 This Court must review the record as a whole and consider adverse as well as 28 supporting evidence. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). 2 1 Where evidence is susceptible to more than one rational interpretation, the ALJ’s decision 2 must be upheld. Morgan v. Comm’r, 169 F.3d 595, 599 (9th Cir. 1999). “However, a 3 reviewing court must consider the entire record as a whole and may not affirm simply by 4 isolating a ‘specific quantum of supporting evidence.’” Robbins, 466 F.3d at 882 (quoting 5 Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)); see also Orn v. Astrue, 495 F.3d 6 625, 630 (9th Cir. 2007). SEQUENTIAL EVALUATION 7 8 The Social Security Act defines disability as the “inability to engage in any substantial 9 gainful activity by reason of any medically determinable physical or mental impairment which 10 can be expected to result in death or . . . can be expected to last for a continuous period of 11 not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Commissioner 12 has established a five-step sequential process to determine whether a claimant is disabled. 13 20 C.F.R. §§ 404.1520, 416.920. 14 The first step is to determine whether the claimant is presently engaging in 15 substantially gainful activity. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). If the 16 claimant is engaging in substantially gainful activity, disability benefits will be denied. Bowen 17 v. Yuckert, 482 U.S. 137, 140 (1987). Second, the ALJ must determine whether the claimant 18 has a severe impairment or combination of impairments. Parra, 481 F.3d at 746. Third, the 19 ALJ must determine whether the impairment is listed, or equivalent to an impairment listed, 20 in Appendix I of the regulations. Id. If the impediment meets or equals one of the listed 21 impairments, the claimant is presumptively disabled. Bowen, 482 U.S. at 141. Fourth, the 22 ALJ must determine whether the impairment prevents the claimant from doing past relevant 23 work. Pinto v. Massanari, 249 F.3d 840, 844-45 (9th Cir. 2001). Before making the step four 24 determination, the ALJ first must determine the claimant’s residual functional capacity 25 (“RFC”).1 20 C.F.R. § 416.920(e). The RFC must consider all of the claimant’s impairments, 26 27 28 1 Residual functional capacity (“RFC”) is what one “can still do despite [his or her] limitations” and represents an assessment “based on all the relevant evidence.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). 3 1 including those that are not severe. 20 C.F.R. §§ 416.920(e), 416.945(a)(2); Social Security 2 Ruling (“SSR”) 96-8p. If the claimant cannot perform his or her past relevant work or has no 3 past relevant work, the ALJ proceeds to the fifth step and must determine whether the 4 impairment prevents the claimant from performing any other substantial gainful activity. 5 Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000). 6 The claimant bears the burden of proving steps one through four, consistent with the 7 general rule that at all times the burden is on the claimant to establish his or her entitlement 8 to benefits. Parra, 481 F.3d at 746. Once this prima facie case is established by the 9 claimant, the burden shifts to the Commissioner to show that the claimant may perform other 10 gainful activity. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). To support a 11 finding that a claimant is not disabled at step five, the Commissioner must provide evidence 12 demonstrating that other work exists in significant numbers in the national economy that the 13 claimant an do, given the RFC, age, education, and work experience. 20 C.F.R. § 14 416.912(g). If the Commissioner cannot meet this burden, then the claimant is disabled and 15 entitled to benefits. Id. DISCUSSION 16 17 Plaintiff contends that the ALJ improperly rejected Plaintiff’s subjective pain testimony. 18 (JS 3.) Plaintiff’s contention is without merit. The ALJ properly considered Plaintiff’s 19 testimony and offered specific, clear and convincing reasons for rejecting it, including 20 Plaintiff’s lack of candor regarding when she last worked, the lack of evidence to support her 21 alleged disability onset date of December 1999, including her ability to work doing child care 22 through 2007, and the lack of consistent or aggressive treatment for her pain. The ALJ’s 23 determination that Plaintiff’s pain testimony was not credible is supported by substantial 24 evidence and must be upheld. 25 A. Legal Standards for Evaluating a Claimant’s Credibility 26 The test for deciding whether to accept a claimant’s subjective symptom testimony 27 turns on whether the claimant produces objective medical evidence of an impairment that 28 4 1 reasonably could be expected to produce the pain or other symptoms alleged. Bunnell v. 2 Sullivan, 947 F.2d 341, 346 (9th Cir. 1991); Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 3 1998); Smolen v. Chater, 80 F.3d 1273, 1281-82 esp. n. 2 (9th Cir. 1995); Cotton v. Bowen, 4 799 F.2d 1403, 1407 (9th Cir. 1986). Once the claimant produces objective medical 5 evidence of an underlying impairment, the ALJ may not discredit a claimant’s testimony on 6 the severity of symptoms merely because they are unsupported by objective medical 7 evidence. Reddick, 157 F.3d at 722; Bunnell, 947 F.2d at 343, 345. If the ALJ finds the 8 claimant’s subjective symptom testimony not credible, the ALJ must make specific findings 9 that support this conclusion. Bunnell, 947 F.2d at 345. The ALJ must set forth “findings 10 sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit 11 claimant’s testimony.” Thomas v. Barnhart, 278 F.3d 949, 958 (9th Cir. 2002); Rollins v. 12 Massanari, 261 F.3d 853, 856-57 (9th Cir. 2001); Bunnell, 947 F.2d at 345. Unless there is 13 evidence of malingering, the ALJ can reject the claimant’s testimony about the severity of a 14 claimant’s symptoms only by offering “specific, clear and convincing reasons for doing so.” 15 Reddick, 157 F.3d 722; Smolen, 80 F.3d at 1283-84. The ALJ must identify what testimony 16 is not credible and what evidence discredits the testimony. Reddick, 157 F.3d at 722; 17 Smolen, 80 F.3d at 1284. 18 In evaluating a claimant’s credibility, the ALJ may consider various factors, including: 19 “the nature, location, onset, duration, frequency, radiation, and intensity” of any pain or other 20 symptoms; “precipitating and aggravating factors;” “type, dosage, effectiveness, and adverse 21 side-effects” of any medication; “treatment, other than medication;” “functional restrictions;” 22 “the claimant’s daily activities;” “unexplained, or inadequately explained, failure to seek 23 treatment or follow a prescribed course of treatment;” and “ordinary techniques of credibility 24 evaluation.” Bunnell, 947 F.2d at 345-47; see also 20 C.F.R. § 416.929; SSR 96-7p. 25 Additional factors that the ALJ may consider include the claimant's prior inconsistent 26 statements or other inconsistent testimony and physician and third-party testimony about the 27 nature, severity, and effect of the claimant’s symptoms. See Smolen, 80 F.3d at 1284 28 5 1 (citations omitted); see also Thomas, 278 F.3d at 958-59. If the claimant testifies as to 2 symptoms greater than normally would be produced by a given impairment, the ALJ may 3 disbelieve that testimony provided specific findings are made. See Carmickle v. 4 Commissioner, Social Security, 533 F.3d 1155, 1161 (9th Cir. 2008) (citing Swenson v. 5 Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)). 6 Questions of credibility and resolution of conflicts in the testimony are solely within the 7 province of the Commissioner. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). 8 The Court should not second-guess this credibility determination. See Allen v. Heckler, 749 9 F.2d 577, 580 (9th Cir. 1984). The Court may not reverse a credibility determination where 10 that determination is based on contradictory or ambiguous evidence. See id. at 579. Even if 11 some of the reasons given by the ALJ for discrediting a claimant's testimony should be 12 discounted, the ALJ's determination is still valid as long as it is supported by substantial 13 evidence. Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). 14 B. 15 The ALJ summarized Plaintiff’s hearing testimony as follows: 16 Plaintiff’s Hearing Testimony The claimant testified that she cannot work now because of hand pain. 17 She has hand pain every day. The pain does not involve [the] wrist and will 18 sometimes go up to the elbow. 19 The claimant testified that she has low back pain every day and that the 20 medications take the edge off of the pain. She has had back pain for over 15 21 years. She has a cane in her car and has used it off and on for 10 years. She 22 has had pain in the back of her leg as a result of a fall two years ago. The 23 claimant has never had any operation on the back, physical therapy, steroidal 24 injections or other treatment. She takes Tylenol 3, Motrin and ibuprofen for her 25 pain but these medications only take the edge off the pain. 26 She walks a little to ease her back pain, about twice a month. She is 27 able to walk a couple of blocks at a time. She can lift a gallon of milk, which 28 6 1 weights approximately 8 pounds. She has no problems with personal care 2 activities. She can read and does exercises at home. She shops for groceries 3 with her daughter and can do light cooking. Her daughter does the laundry, 4 cleaning and heavy cooking. The claimant attends church every Sunday. The 5 claimant testified that she drove to the hearing but does not drive much. 6 (AR 15-16.) 7 C. The ALJ’s Findings Regarding Plaintiff’s Credibility 8 The ALJ tacitly acknowledged that Plaintiff’s impairments reasonably could be 9 expected to produce the alleged symptoms. However, the ALJ found that Plaintiff’s 10 testimony was not credible: 11 The claimant’s testimony was inconsistent with other evidence of record 12 and is not credited. First, she alleges disability since 1999 but produces no 13 evidence of her condition as of that date. Second, she was able to perform 14 child care work at the substantial gainful activity level throughout the year 2007. 15 At [the] hearing she could not provide a reasonable explanation of her 16 allegation that her condition changed suddenly in 2008 except to say that her 17 26-year-old son did not want to help her anymore. This is not consistent with 18 disabling functional limitations. 19 Third[,] she said that she has had back pain for at least 10 [years] but 20 has not had treatment for it other than medications, nor does the record show 21 regular visits to medical sources for treatment. Fourth, the claimant admitted 22 being able to drive, shop, do light housework, go for walks, cook and maintain 23 personal care activities such as dressing and bathing. 24 Fifth, the claimant was not completely honest about when she stopped 25 working. At first she cited 2005 but her earnings record showed that she 26 worked subsequently, earning $11,083 in 2007. 27 (AR 16.) 28 7 1 2 3 D. The ALJ Offered Specific, Clear and Convincing Reasons for Rejecting Plaintiff’s Subjective Pain Testimony, Which Were Supported by Substantial Evidence The ALJ offered several specific, clear and convincing reasons for rejecting Plaintiff’s 4 subjective pain testimony, which were supported by substantial evidence. Thus, the ALJ’s 5 decision must be upheld. 6 7 1. Disability Onset Date of 1999 and Work Activity Through 2007 Plaintiff alleged a disability onset date of December 8, 1999. (AR 12, 103, 108.) The 8 ALJ found Plaintiff not credible based, in part, on the lack of support for this alleged onset 9 date. (AR 16.) The ALJ’s finding is supported by substantial evidence in the record. Plaintiff 10 worked doing child care in 2005 and 2007. (See, e.g., AR 99.) The ALJ found that this work 11 activity in 2005 and 2007 undermined the credibility of her allegations that she had been 12 disabled since 1999. (AR 14, 16, 103, 108.) As noted by the ALJ, Plaintiff earned $7,801 in 13 2005 and $11,083 in 2007 for child care work. (AR 14,16, 91.) She specifically testified that 14 she watched 3 or 4 children, ten hours per day, at least five days per week, during the entire 15 year of 2007. (AR 26.) See Thomas, 278 F.3d at 958-59 (claimant’s activities may 16 constitute a clear and convincing reason for discounting claimant’s credibility). The ALJ 17 properly found that Plaintiff could not reconcile an alleged disability onset date in 1999 with 18 her 2005 and 2007 child care work, which is classified as medium work. (AR 16, 39.) 19 Moreover, the medical records failed to support a disability onset date of December 20 1999. The ALJ properly relied on the medical records in assessing Plaintiff’s credibility. 21 Rollins, 261 F.3d at 857; see also 20 C.F.R. § 416.929(c)(1)&(2) (2009) (requiring 22 consideration of medical history, medical signs and laboratory findings, and objective medical 23 evidence in evaluating the extent and impact of alleged pain); Batson v. Comm’r, 359 F.3d 24 1190, 1196 (9th Cir. 2003). 25 Plaintiff testified to constant pain in her fingers and back. (AR 28-33.) The ALJ 26 considered the medical records, which did not support a finding of disabling pain. The ALJ 27 discussed the testimony of Dr. Dorsey, the examining physician, who arranged for x-rays of 28 8 1 the lumbar spine, which showed moderately decreased disc space size of the lumbar spine 2 “although little else” and “no decreased range of motion or neurological abnormalities were 3 noted; he found no objective evidence concerning her lower back pain complaints.” (AR 144 15, 191.) Dr. Dorsey diagnosed minimal carpometacarpal joint degenerative disease of the 5 thumbs, minimal degenerative joint disease of the index and small finger DIP joints of the left 6 hand, and back pain, subjective symptoms only. (AR 15, 191.) 7 The ALJ also considered the treatment records, including x-rays from January 2006 8 and May 2007, which revealed significant degenerative joint disease of the first and fifth left 9 carpal-metacarpal joints of the left hand and minor degenerative change in the first carpal10 metacarpal joint of the right hand. (AR 15, 138, 139, 140.) Dr. Dorsey found some 11 tenderness and mild swelling but full range of motion of all fingers and both thumbs, with 12 “[n]o deficits in motor strength, sensation or reflexes.” (AR 15; see also AR 189-91.) “While 13 subjective pain testimony cannot be rejected on the sole ground that it is not fully 14 corroborated by objective medical evidence, the medical evidence is still a relevant factor in 15 determining the severity of the claimant’s pain and its disabling effects.” Rollins, 261 F.3d at 16 857. Thus, the ALJ properly based his rejection of Plaintiff’s testimony, in part, on the lack of 17 support in the medical evidence to indicate disabling pain. 18 The ALJ also referenced progress notes from Plaintiff’s treating physician Benny 19 Guzman, M.D. (AR 15.) The ALJ stated: 20 Notes from Dr. Guzman, the claimant’s treating physician, from April, 21 2003-October, 2006 show that in October, 2006 he rated her “incapacitated 22 from work due to her hand, not her back” (Exhibit 1F). His notes of office visits 23 do not reflect signs sufficient to support this opinion. Further, his opinion 24 cannot be given great weight as it is on an issue reserved for the 25 Commissioner. 26 (AR 15.) The ALJ was correct to reject a finding of “incapacitated” by Dr. Guzman because, 27 in fact, Dr. Guzman did not make such a finding. Dr. Guzman’s handwritten notes are 28 9 1 difficult to decipher. However, it appears that Dr. Guzman actually wrote the following in his 2 October 13, 2006, notes: Refill on Ibuprofen, pain in both hands. Lower back pain. Patient very 3 4 abus[ive] verbally. Pt. states can’t use her left hand + that is why she is unable 5 to use her hand. Discussed in detail that x-rays of left hand [] x-rays [] arthritis 6 in one hand 1st finger. Patient wants me to sign papers stating she is totally 7 incapacitated from work due to her hand, not her back. Patient states that I am 8 incompetent for not agreeing with her + that she will sue. Discussed referral to 9 orthopedics for evaluation + she states wants me to sign stating her hands 10 make her permanently disabled. I told her I would not + that a specialist needs 11 to determine the status on her hands. Pt. very upset + stated I was the worst 12 doctor in the world + for some reason she kept coming back to me. Discussed 13 w/ her if she felt that way that she + her daughter should find another doctor. 14 She agrees + states she will sue. I discussed w/ her I will call the insurance + 15 file a complaint as well. I will no longer care for her or her daughter + will 16 inform the insurance. 17 (AR 158.) Thus, it appears that Dr. Guzman did not find Plaintiff to be incapacitated. Rather, 18 he refused to make such a finding and refused to sign papers stating that Plaintiff was 19 unable to work. 20 The ALJ also based his adverse credibility finding on Plaintiff’s lack of a reasonable 21 explanation for why her condition suddenly changed in 2008 when she stopped doing child 22 care work “except to say that her 26-year-old son did not want to help her anymore.” (AR 23 16.) The ALJ’s reasoning was supported by substantial evidence. In response to 24 questioning from the ALJ as to why she stopped doing child care work at the end of 2007, 25 Plaintiff’s responses were vague, halting, and inconsistent. When the ALJ first asked why 26 Plaintiff stopped working, she testified, “I don’t know. I didn’t babysit anymore.” (AR 26.) 27 When the ALJ asked, “Why?” Plaintiff responded, “I don’t know. I don’t feel good to babysit. 28 That’s why.” (Id.) After receiving these vague responses, the ALJ again asked: “Well, what 10 1 happened that you stopped watching them? That’s my question.” Plaintiff responded: “I just 2 didn’t watch them anymore because I don’t, I’m too sick to watch them, and my son, he 3 don’t, he has a job doing other stuff. He don’t want to help, you know. He don’t want to.” 4 (AR 27.) Plaintiff also later testified, “I just didn’t, I didn’t do it anymore. I just . . . I just didn’t 5 do it anymore because, I don’t know, I’m sick.” (AR 27.) When the ALJ asked Plaintiff to 6 elaborate on her testimony that she was “sick,” Plaintiff testified that the children were “too 7 loud” and it was “too much.” (AR 27-28.) 8 Plaintiff now attempts to rehabilitate her credibility by focusing on her testimony that 9 her son and daughter were helping her with the child care in 2007, and that she stopped 10 working in 2008 because her son did not want to help her any longer. (JS 8-10.) It was well 11 within the ALJ’s discretion to conclude that Plaintiff’s son no longer wanting to help her with 12 child care after 2007 was not a reasonable explanation for why she discontinued that work 13 (AR 16), especially in light of her initial inability to answer the ALJ’s questions directly. The 14 ALJ’s credibility determination should not be reversed where, as here, it was based on 15 contradictory or ambiguous evidence. Allen, 749 F.2d at 580; Johnson v. Shalala, 60 F.3d 16 1428, 1434 (9th Cir. 1995). 17 18 2. Lack of Candor Regarding When Plaintiff Stopped Working The ALJ also properly discounted Plaintiff’s credibility based on her lack of candor at 19 the hearing regarding her 2007 work activity. (AR 16.) Thomas, 278 F.3d at 959 (ALJ may 20 rely on lack of candor to discount claimant’s credibility as to severity of pain). As Plaintiff 21 admits, she initially answered “No” when the ALJ asked her if she had worked “at all” after 22 her 2004-2005 child care job. (AR 24-25.) After the ALJ confronted Plaintiff with her IRS 23 earnings report, she conceded that she worked throughout the “whole year” of 2007. (AR 24 25-26; see also AR 91.) Accordingly, the record is clear that Plaintiff was not candid when 25 she stated that she did not work after 2005. 26 Plaintiff’s lack of candor is further supported by other evidence in the record. In a 27 June 25, 2007, Pain Questionnaire (AR 143-45) and Exertional Daily Activities Questionnaire 28 (AR 135-137), Plaintiff answered numerous questions regarding her daily activities and the 11 1 extent of her pain, but never mentions that she was performing child care on a full time basis 2 during this period. In a Work History Report completed by Plaintiff on February 13, 2007, 3 Plaintiff indicated that she had worked in quality control in the clothing industry in 1998 to 4 1999, and worked in child care from 2004 to 2005. (AR 117.) She stated: “that’s all my job 5 history.” (Id.) She did not disclose the fact that she was doing child care work again. In 6 March 2007, when she was examined by Dr. Dorsey, Plaintiff also did not mention the fact 7 that she was doing child care work at the time, or that she had done such work in 2005. (AR 8 189.) Rather, she stated that she last had worked 15 years ago doing warehouse work. (Id.) 9 Plaintiff’s inconsistent testimony regarding when she last worked is a clear and convincing 10 reason for rejecting her credibility. Johnson, 60 F.3d at 1434. 11 12 3. Treatment History The ALJ also properly found that Plaintiff’s treatment history weighed against her 13 subjective complaints of disabling pain and contributed to her lack of credibility. (AR 16.) 14 See Macri v. Chater, 93 F.3d 540, 544 (9th Cir. 1996) (ALJ may consider conservative 15 treatment in making credibility determination); see also Burch v. Barnhart, 400 F.3d 676, 681 16 (9th Cir. 2005) (fact that claimant’s pain was not severe enough to motivate her to seek more 17 aggressive treatment is “powerful evidence” regarding the extent to which she was in pain). 18 The ALJ also noted that, despite Plaintiff’s contention that she had back pain since 1999, she 19 has not had treatment for it other than medication. (AR 16, 33, 36-37.) Plaintiff testified that 20 her medication helps, but does not eliminate, her pain. (AR 33-34.) When asked if she did 21 anything for her pain other than take medication, Plaintiff stated that she takes walks 2 or 3 22 times per month. (AR 34.) Plaintiff stated that physical therapy was recommended, but that 23 she lost her MediCal coverage and currently has no insurance. (AR 36-37.) She did not 24 state when she lost her insurance. She testified that she is “waiting for the MediCal to go 25 through” and then will undergo physical therapy. (AR 37.) 26 It is error to rely on a claimant’s failure to seek treatment if the failure was because of 27 the claimant’s financial circumstances. See Regennitter v. Comm. of Social Security Admin, 28 166 F.3d 1294, 1297 (9th Cir. 1999); Smolen, 80 F.3d at 1284. Here, although Plaintiff did 12 1 not state when she lost her insurance, based on Dr. Guzman’s treatment notes it appears 2 that Plaintiff still had insurance at least through October 2006. (AR 158.) Plaintiff has 3 alleged disabling pain beginning in December 1999. However, she never received treatment 4 more extensive than pain medication during the time she did have insurance. It also appears 5 that Dr. Guzman attempted to refer Plaintiff to a specialist in October 2006, but that Plaintiff 6 became upset because Dr. Guzman would not sign a statement indicating that Plaintiff was 7 totally incapacitated from work and permanently disabled. (Id.) There is no indication that 8 Plaintiff ever pursued treatment by a specialist. Dr. Guzman subsequently stopped treating 9 Plaintiff because of her abusive behavior, rather than a lack of insurance. (Id.) In these 10 circumstances, the ALJ properly considered Plaintiff’s lack of more aggressive treatment, in 11 combination with other factors, in rejecting Plaintiff’s subjective pain testimony. 12 13 4. Daily Activities The ALJ also found that Plaintiff’s daily activities were inconsistent with disabling 14 limitations and undermined her credibility. (AR 16.) An ALJ may consider an inconsistency 15 between testimony and daily activities in determining a claimant’s credibility. Thomas, 278 16 F.3d at 958-59; Morgan v. Apfel, 169 F.3d 595, 599-600 (9th Cir. 1999) (ALJ may rely on 17 contradictions between claimant’s reported limitations and daily activities); Reddick, 157 F.3d 18 at 722 (relevant question is whether the level of work activity is inconsistent with the 19 claimant’s asserted limitations). “If a claimant is able to spend a substantial part of his day 20 engaged in pursuits involving the performance of physical functions that are transferable to a 21 work setting, a specific finding as to this fact may be sufficient to discredit a claimant’s 22 allegations.” Morgan v. Commissioner of the Social Sec. Admin., 169 F.3d 595, 600 (9th Cir. 23 1999) (citation omitted). 24 Plaintiff testified, and the ALJ found, that she was able to do some driving, shopping, 25 light housework, light cooking, and personal care activities. (AR 16, 35, 37-39; see also AR 26 135-36, 143-45.) There is no indication that Plaintiff was able to spend a substantial part of 27 her day engaged in these activities. Accordingly, Plaintiff’s daily activities alone did not 28 provide a clear and convincing reason to reject her subjective pain complaints. However, it 13 1 was not improper for the ALJ to consider those activities in making his credibility 2 determination. The ALJ’s ultimate decision to reject Plaintiff’s subjective pain testimony was 3 also based on other specific, clear and convincing reasons, which were supported by 4 substantial evidence, and must be upheld. Tonapetyan, 242 F.3d at 1148 (ALJ’s credibility 5 determination should be upheld if supported by substantial evidence, even if some of ALJ’s 6 reasons for discrediting claimant's testimony should be discounted). 7 E. Conclusion 8 Questions of credibility and resolutions of conflict in the testimony are for the 9 Commissioner alone to resolve. Sample, 694 F.2d at 642. “An ALJ cannot be required to 10 believe every allegation of disabling pain, or else disability benefits would be available for the 11 asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).” Fair v. Bowen, 885 F.2d 597, 12 603 (9th Cir. 1989). The ALJ considered appropriate factors in assessing Plaintiff’s 13 subjective complaints. Credibility determinations are the province of the ALJ. Russell v. 14 Bowen, 856 F.2d 81, 83 (9th Cir. 1988). Where, as here, the ALJ offered specific, clear and 15 convincing reasons for rejecting Plaintiff’s subjective pain testimony, and substantial 16 evidence in the record supports those findings, the ALJ’s decision must be upheld. Fair, 885 17 F.2d at 604. 18 /// 19 /// 20 /// 21 /// 22 /// 23 24 25 26 27 28 14 ORDER 1 2 IT IS HEREBY ORDERED that the Decision of the Commissioner of Social Security is 3 AFFIRMED. 4 LET JUDGMENT BE ENTERED ACCORDINGLY. 5 6 DATED: September 27, 2010 7 /s/ John E. McDermott JOHN E. MCDERMOTT UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15
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