John Francis Masgula v. Michael J. Astrue, No. 5:2010cv01981 - Document 16 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Oswald Parada: IT IS THEREFORE ORDERED, that judgment be entered affirming the decision of the Commissioner of Social Security and dismissing this action with prejudice. (am)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 JOHN FRANCIS MASGULA, ) Case No. EDCV 10-01981 (OP) ) Plaintiff, ) v. ) MEMORANDUM OPINION; ORDER ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ) 17 The Court1 now rules as follows with respect to the disputed issues listed in 18 the Joint Stipulation ( JS ).2 19 / / / 20 / / / 21 / / / 22 23 1 24 25 Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the United States Magistrate Judge in the current action. (ECF Nos. 8, 9.) 2 As the Court stated in its Case Management Order, the decision in this case is made on the basis of the pleadings, the Administrative Record, and the 27 Joint Stipulation filed by the parties. In accordance with Rule 12(c) of the Federal 28 Rules of Civil Procedure, the Court has determined which party is entitled to judgment under the standards set forth in 42 U.S.C. § 405(g). 26 1 1 I. 2 DISPUTED ISSUES 3 As reflected in the Joint Stipulation, the disputed issues raised by Plaintiff 4 as the grounds for reversal and/or remand are as follows: 5 (1) 6 7 Whether the administrative law judge ( ALJ ) properly considered the opinions of treating physicians; and (2) 8 Whether the ALJ properly considered Plaintiff s subjective complaints and properly assessed Plaintiff s credibility. 9 (JS at 3.) 10 II. 11 STANDARD OF REVIEW 12 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s decision 13 to determine whether the Commissioner s findings are supported by substantial 14 evidence and whether the proper legal standards were applied. DeLorme v. 15 Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means more 16 than a mere scintilla but less than a preponderance. Richardson v. Perales, 402 17 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971); Desrosiers v. Sec y of 18 Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial 19 evidence is such relevant evidence as a reasonable mind might accept as adequate 20 to support a conclusion. Richardson, 402 U.S. at 401 (citation omitted). The 21 Court must review the record as a whole and consider adverse as well as 22 supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986). 23 Where evidence is susceptible of more than one rational interpretation, the 24 Commissioner s decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 25 1452 (9th Cir. 1984). 26 / / / 27 / / / 28 / / / 2 1 III. 2 DISCUSSION 3 A. The ALJ s Findings. 4 The ALJ found that Plaintiff has the severe impairments of a mood disorder 5 and an anxiety disorder. (Administrative Record ( AR ) at 11.) The ALJ 6 concluded that Plaintiff has the residual functional capacity ( RFC ) to perform a 7 full range of work at all exertional levels with the following non-exertional 8 limitations: non-public; and occasional non-intense interaction with co-workers 9 and supervisors. (Id. at 12.) 10 Relying on the testimony of a Vocational Expert ( VE ), the ALJ 11 determined that Plaintiff was unable to perform his past relevant work of 12 Healthcare Administrator (Dictionary of Occupational Titles ( DOT ) No. 13 187.117-010), although he would have transferable computer skills from that work 14 that could transfer to jobs in data entry. (AR at 16.) The ALJ also relied on the 15 VE s testimony to determine that there were alternative occupations such as Linen 16 Room Attendant, (DOT No. 222.387-030) Mail Clerk, (DOT No. 209.687-026), 17 and Library Page (DOT No. 249.687-014) that exist in significant numbers in the 18 national economy. (AR at 17.) 19 B. The ALJ s Consideration of the Opinions of Plaintiff s Treating 20 Physicians. 21 Plaintiff contends that the ALJ failed to give specific reasons for rejecting 22 the opinions of his treating physicians in favor of non-examining non-treating 23 physicians. (JS at 4.) Specifically, Plaintiff contends that the ALJ failed to 24 properly reject the opinions of his treating psychiatrist at the Department of 25 Mental Health, who found Plaintiff to have numerous symptoms and limitations 26 and concluded . . . that Plaintiff was not capable of sustaining a 40 hour work 27 week as a result of those multiple symptoms and limitations. (Id. (citing AR at 28 257).) He also claims the ALJ failed to consider the opinions of those mental 3 1 healthcare providers who assessed low global assessment of functioning ( GAF ) 2 scores on at least two separate occasions. (Id. at 6 (citing AR at 530, 546).) 3 Finally, he claims the ALJ ignored the opinion of Dr. Dorsey, who found certain 4 limitations with respect to lifting. (Id. at 7-8 (citing AR at 247).) 5 1. 6 It is well-established in the Ninth Circuit that a treating physician s opinion Applicable Law. 7 will be entitled to special weight, because a treating physician is employed to cure 8 and has a greater opportunity to know and observe the patient as an individual. 9 McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989). The treating 10 physician s opinion is not, however, necessarily conclusive as to either a physical 11 condition or the ultimate issue of disability. Magallanes v. Bowen, 881 F.2d 747, 12 751 (9th Cir. 1989). The weight given a treating physician s opinion depends on 13 whether it is supported by sufficient medical data and is consistent with other 14 evidence in the record. See 20 C.F.R. § 404.1527(d)(2). If the treating 15 physician s opinion is uncontroverted by another doctor, it may be rejected only 16 for clear and convincing reasons. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 17 1995); Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). If the treating 18 physician s opinion is controverted, it may be rejected only if the ALJ makes 19 findings setting forth specific and legitimate reasons that are based on the 20 substantial evidence of record. Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 21 2002); Magallanes, 881 F.2d at 751; Winans v. Bowen, 853 F.2d 643, 647 (9th 22 Cir. 1987). 23 The Ninth Circuit also has held that [t]he ALJ need not accept the 24 opinion of any physician, including a treating physician, if that opinion is brief, 25 conclusory, and inadequately supported by clinical findings. Thomas, 278 F.3d 26 at 957; see also Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 27 1992). A treating or examining physician s opinion based on the plaintiff s own 28 complaints may be disregarded if the plaintiff s complaints have been properly 4 1 discounted. Morgan v. Comm r of Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 2 1999); see also Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997); Andrews 3 v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995). Additionally, [w]here the opinion 4 of the claimant s treating physician is contradicted, and the opinion of a 5 nontreating source is based on independent clinical findings that differ from those 6 of the treating physician, the opinion of the nontreating source may itself be 7 substantial evidence; it is then solely the province of the ALJ to resolve the 8 conflict. Andrews, 53 F.3d at 1041; Magallanes, 881 F.2d at 751; Miller v. 9 Heckler, 770 F.2d 845, 849 (9th Cir. 1985). 10 11 12 13 2. Analysis. a. Narrative Report from Riverside County Mental Health Department. Plaintiff contends the ALJ completely disregarded a February 23, 2009, 14 one-page Narrative Report ( Report ) from the Riverside County Mental Health 15 Department, without providing any significant or legitimate reasons for doing so. 16 (JS at 5 (citing AR at 15, 257). The Court disagrees. 17 The Report, consisting of a series of criteria, with items to be circled if they 18 apply to the case, noted that Plaintiff is diagnosed with Major Depressive 19 Disorder, N.O., with Psychotic Features. (AR at 257.) It reported auditory and 20 visual psychosis influencing actions or behavior; mildly impaired memory; 21 moderately impaired judgment; evidence of confusion, depression, anxiety, 22 suicidal/homicidal ideation, isolation, and inappropriate affect; with symptoms of 23 apathy, social withdrawal, and poor grooming. (Id.) The Report indicated an 24 inability to maintain a sustained level of concentration, sustain repetitive tasks for 25 an extended period, or adapt to new or stressful situations; and an anxious and 26 tearful attitude. (Id.) Finally, the Report stated that Petitioner could not complete 27 a forty-hour work week without decompensating, and his prognosis was Very 28 Guarded. (Id.) A comment indicated that the physician [a]ttempted to gather 5 1 collab[o]rative information from family members regarding patient s symptom 2 response to treatment with limited success. Pt. presents guarded when approached 3 with above suggestion. (Id.) 4 In his decision, the ALJ stated the following about the Report: 5 I have read and considered the one page check-list format statement of 6 disability dated February 23, 2009 and give it no weight. The claimant 7 has no hospitalizations or emergency treatment other than the outpatient 8 treatment submitted. The claimant did not start treatment until almost 9 two years after he alleged his disability began. The very severe 10 symptoms reported in the check-list report are not reported anywhere in 11 the medical record. 12 (Id. at 15 (citations omitted).) 13 Consequently, the ALJ fully and properly considered this check-box type 14 Report from Riverside County Mental Health. He specifically noted that the very 15 severe symptoms listed on the check-list report were not supported anywhere in 16 the medical records. (Id.) This is a specific and legitimate reason for discounting 17 the opinion of a treating physician. Batson v. Comm r, 359 F.3d 1190, 1191 (9th 18 Cir. 2004) (holding that the ALJ reasonably accorded a treating physician opinion 19 minimal evidentiary weight because it was in the form of a checklist [and] did 20 not have supportive objective evidence ); see also Bray v. Comm r of Soc. Sec. 21 Admin., 554 F.3d 1219, 1228 (9th Cir. 2009) (citing Thomas, 278 F.3d at 957) 22 ( The ALJ need not accept the opinion of any physician, including a treating 23 physician, that is brief, conclusory, and inadequately supported by the medical 24 record. ). 25 Further, the ALJ reviewed numerous medical reports that were contrary to 26 this single medical source Report regarding Plaintiff s limitations. For example, 27 in a December 17, 2007, treatment note, Plaintiff was noted to be neat, with 28 appropriate affect and speech, and no issues of self harm or harm to others. (AR at 6 1 14.) The ALJ noted that other treatment notes in exhibits 10F and 11F of the AR 2 were mostly duplicate and repetitious of the same comments. (Id.) In short, the 3 ALJ found nothing to support the one-page check-list assessment opining that 4 Plaintiff exhibited suicidal/homicidal ideation, inappropriate affect, and an 5 inability to complete a forty-hour work week without decompensating. (Id. at 6 257.) Other notes reflected Plaintiff frequently cancelled or was late to 7 appointments, or failed to comply with treatment. (Id. at 14.) The ALJ 8 characterized the subsequent treatment records as benign and full of issues of 9 noncompliance with treatment. (Id. at 14-15); see also Tonapetyan v. Halter, 242 10 F.3d 1144, 1149 (9th Cir. 2001) ( When confronted with conflicting medical 11 opinions, an ALJ need not accept a treating physician s opinion that is conclusory 12 and brief and unsupported by clinical findings ). 13 Based on the foregoing, the Court finds that The ALJ provided sufficiently 14 specific and legitimate reasons for rejecting the conclusions set forth on this 15 check-list Report. Thus, there was no error. 16 17 b. GAF Scores. Plaintiff contends the ALJ failed to provide specific and legitimate reasons 18 for disregarding the opinions of those mental healthcare providers who assessed 19 low GAF scores on at least two separate occasions. (JS at 6 (citing AR at 530, 20 546).) Specifically, on December 3, 2007, Plaintiff was assessed as having a GAF 21 score of 50. (AR at 530).) On January 7, 2008, he was again assessed a GAF 22 score of 50. (Id. at 546).) Plaintiff contends that these scores were consistent with 23 the opinions of the treating source in the Report previously discussed and 24 improperly discounted by the ALJ. 25 26 With regard to the GAF scores, the ALJ stated: I give the GAF score of 50 no weight as reported by the 27 clinician.[FN 1] This score is based entirely on the subjective 28 complaints of the claimant and as described above he has been found to 7 1 be only partially credible. The GAF score is not consistent with the 2 overall picture of the claimant when reviewing his records. 3 [FN 1] I find the [GAF] scores in the claimant s record are of 4 limited evidentiary value. These subjectively assessed scores reveal only 5 snapshots of impaired and improved behavior. I give more weight to the 6 objective details and chronology of the record, which more accurately 7 describe the claimant s impairments and limitations. 8 (Id. at 15 (citation omitted).) 9 Plaintiff s GAF scores of 50 fail to establish that Plaintiff s impairment was 10 severe.3 As a threshold matter, the Commissioner has no obligation to credit or 11 even consider GAF scores in the disability determination. See 65 Fed. Reg. 12 50746, 50764-65 (Aug. 21, 2000) ( The GAF scale . . . is the scale used in the 13 multiaxial evaluation system endorsed by the American Psychiatric Association. 14 It does not have a direct correlation to the severity requirements in our mental 15 disorders listings. ); see also Howard v. Comm r of Soc. Sec., 276 F.3d 235, 241 16 (6th Cir. 2002) ( While a GAF score may be of considerable help to the ALJ in 17 formulating the RFC, it is not essential to the RFC s accuracy. Thus, the ALJ s 18 failure to reference the GAF score in the RFC, standing alone, does not make the 19 RFC inaccurate. ). 20 Even if consideration of such scores was required, Plaintiff s scores are not 21 sufficiently low that they raise any serious question about the ALJ s determination 22 that Plaintiff s mental condition did not significantly limit his ability to work, or 23 his determination of limitations with respect to non-public work, and only 24 25 3 A GAF score of 50 falls at the upper end of the serious symptom category, described as (suicidal ideation, severe obsessional rituals, frequent 27 shoplifting) OR any serious impairment in social, occupational, or school 28 functioning (e.g., no friends, unable to keep a job). DSM-IV 34. Scores of 51-60 fall into the moderate symptom category. 26 8 1 occasional non-intense interaction with co-workers and supervisors. As the ALJ 2 stated, he gave Plaintiff some benefit of [the] doubt in assessing these 3 limitations as they were not actually supported by the objective record, but only by 4 Plaintiff s current subjective complaints. (AR at 13.) Moreover, each score was 5 assessed as part of an Initial Psychiatric Assessment. (Id. at 530, 546 (emphasis 6 added).) As such, they also were based entirely on Plaintiff s subjective 7 complaints to the clinician, not on any treatment or treatment history at the facility. 8 Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (an ALJ may reject a 9 treating physician s opinion if it is based to a large extent on plaintiff s self10 reports that have been properly discounted as incredible).4 11 Based on the foregoing, the Court finds that the ALJ provided specific and 12 legitimate reasons for discounting the GAF scores. Thus, there was no error. 13 14 c. Dr. Dorsey. Plaintiff contends the ALJ ignored the opinion of Dr. Dorsey, a consultative 15 examiner, who found certain limitations with respect to lifting. (JS at 7-8 (citing 16 AR at 247).) Specifically, Plaintiff saw Dr. Dorsey, on April 3, 2007, and 17 complained of left small, ring, and middle finger numbness, and an inability to 18 extend the fingers of his right hand. (AR at 244.) He told Dr. Dorsey that 19 although he is actively unable to extend the fingers, he has no problem passively 20 extending the fingers with the other hand. (Id.) In his report, Dr. Dorsey 21 diagnosed Plaintiff with left thoracic outlet syndrome, and commented: 22 The claimant is not showing any evidence of specific neurological 23 compromise, either peripherally or centrally of the right upper extremity. 24 All of the evidence points to a nonorganic cause of the claimant s right 25 upper extremity complaints. With regard to the left upper extremity, he 26 clearly has thoracic outlet syndrome. However, it should be noted that 27 28 4 The ALJ s properly discounted credibility determination is discussed infra in Part III.C. 9 1 the claimant indicates that his left upper extremity symptoms have not 2 been functionally limiting in the past. . . . [¶] The right upper extremity 3 shows no objective findings which would indicate any limitation in 4 manipulative activities. The left upper extremity gripping, grasping, 5 feeling, and fingering activities could be done on a frequent but not 6 continuous basis. There are no other limitations. 7 (Id. at 247-48.) Dr. Dorsey opined that Plaintiff could lift and carry twenty pounds 8 occasionally and ten pounds frequently, and should be doing no overhead 9 activities. (Id. at 248.) 10 With respect to Dr. Dorsey s report, the ALJ stated: 11 Although the clinical findings of the consultative examiner are 12 given significant weight, the conclusions are not given any weight. The 13 undersigned outright rejects the diagnosis and limitations noted by Dr. 14 Dorsey. Except for motion problems with the right hand, the claimant s 15 physical examination was completely normal. The claimant alleged he 16 woke up with his right hand clenched and an inability to extend the 17 fingers of the right hand. The claimant alleged treatment from his 18 physician for this, but there are no records of treatment to support the 19 claimant s allegation.[5] The claimant s ability to flex his fingers is 20 within his control. The claimant did not testify to any of these 21 22 23 24 25 26 27 28 5 This appears to be an inaccurate statement. The Court notes records of treatment dated from February 2006 to February 2007 relating to follow-up for his hands. Thus, it appears that Plaintiff at least sought treatment. (See AR at 21418.) Indeed, the ALJ mentions those records elsewhere in his report. (Id. at 14 (citation omitted) ( The claimant was treated for symptoms of pain in his hands and wrists with a diagnosis of possible carpal tunnel syndrome from February 2006 through November 2006. ). 10 1 symptoms at the hearing[6] and there are no medical records to support 2 a diagnosis of left upper extremity problems. The conclusions of Dr. 3 Dorsey that the claimant has left thoracic outlet syndrome and voluntary 4 dysfunction of the right upper extremity is not supported anywhere in 5 the record including the findings from the Board certified neurological 6 examiner. 7 (Id. at 15 (citations omitted).) 8 Although some of the ALJ s reasons for rejecting Dr. Dorsey s report 9 appear inaccurate (see supra notes 5, 6), the Court finds that the ALJ nevertheless 10 provided sufficient specific and legitimate reasons for discounting the findings of 11 Dr. Dorsey. Dr. Dorsey s comments regarding the cause of Plaintiff s right upper 12 extremity complaints were speculative, and his diagnosis of thoracic outlet 13 syndrome and resulting functional limitations, were not supported anywhere in the 14 record.7 The ALJ also properly gave great weight to the report and diagnosis of 15 16 17 18 19 20 21 22 23 24 25 6 This is also an inaccurate statement. On May 1, 2009, Plaintiff, unrepresented by counsel, did testify to the problem with his right hand at the first of the two hearings held. (AR at 76-77.) Of note, however, he also testified that he had recently been to a warehouse to sign up just to do some lifting, thinking that maybe it would be an isolated job, no people around and . . . they could give me a shovel and ask me to dig a hole somewhere. (Id. at 69-70.) At the first hearing, the ALJ determined to send Plaintiff for additional neurological and psychological evaluations and to schedule a second hearing, later held on September 21, 2009. (Id. at 80-83.) The consulting psychologist in his report also noted his surprise that Plaintiff appeared for his evaluation with soiled hands given his complaints of inability to work due to peripheral neuropathy. (Id. at 225.) 7 During the second hearing, the ALJ and Plaintiff s attorney specifically discussed the diagnosis of thoracic outlet syndrome: 27 ATTY: . . . You know, the first physical doctor that he saw made a statement that he definitely has a clear case of thoracic outlet 28 (continued...) 26 11 1 Dr. Sarah Maze, a Board certified consulting neurologist, who found no 2 limitations and only noted a history of right-sided weakness.8 (AR at 15 (citing 3 id. at 515-26).) He noted that Dr. Maze s report was one of those that failed to 4 support Dr. Dorsey s diagnosis or functional limitations. (Id.) Plaintiff does not 5 dispute the ALJ s reliance on Dr. Maze s report. 6 Based on the foregoing, the Court finds no error in the ALJ s consideration 7 of Dr. Dorsey s opinion. 8 C. The ALJ s Consideration of Plaintiff s Subjective Complaints and 9 Plaintiff s Credibility. 10 Plaintiff contends that the ALJ erred by failing to provide specific reasons 11 for discrediting Plaintiff s testimony regarding his subjective complaints. (JS at 12 3.) Specifically, he contends the ALJ minimized Plaintiff s mental limitations and 13 [c]onsidering that the Plaintiff applied for benefits in February of 2007, and the 14 ALJ s decision was in November of 2009, it should not surprise anyone that this 15 Plaintiff may have had new impairments arise during the course of this terribly 16 17 18 19 20 21 22 23 24 25 7 (...continued) syndrome on the left and ALJ: Which he denied. ATTY: Which yeah, and the doctor now is saying there s no problem. . . . (AR at 42.) The Court has been unable to locate any evidence in the record that Dr. Dorsey later denied his original diagnosis. If in fact he did, then Dr. Dorsey s original opinion would be neither significant or probative. Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984 (ALJ need not discuss all evidence presented, but must explain why significant probative evidence has been rejected). 8 Dr. Maze reported that Plaintiff s level of cooperation during her neurological examination appeared suboptimal. (AR at 516.) She noted that 27 although Plaintiff had been told he has peripheral neuropathy, [h]is symptoms do 28 not resemble peripheral neuropathy at all. There is actually no functional residual. (Id. at 517.) 26 12 1 lengthy claims process. (Id. at 14.) He notes that he was sent for a psychological 2 consultative examination in March 2007, that his treatment records for mental 3 health date back to at least September of 2007, and that he consistently made 4 subjective statements regarding his mental health problems throughout the lengthy 5 claims process. (Id. at 15 (citations omitted).) 6 1. 7 An ALJ s assessment of pain severity and claimant credibility is entitled to Applicable Law. 8 great weight. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. 9 Heckler, 779 F.2d 528, 531 (9th Cir. 1986). When, as here, an ALJ s disbelief of a 10 claimant s testimony is a critical factor in a decision to deny benefits, the ALJ 11 must make explicit credibility findings. Rashad v. Sullivan, 903 F.2d 1229, 1231 12 (9th Cir. 1990); Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981); see also 13 Albalos v. Sullivan, 907 F.2d 871, 874 (9th Cir. 1990) (an implicit finding that 14 claimant was not credible is insufficient.) 15 An ALJ s credibility finding must be properly supported by the record and 16 sufficiently specific to ensure a reviewing court that the ALJ did not arbitrarily 17 reject a claimant s subjective testimony. Bunnell v. Sullivan, 947 F.2d 341, 18 345-47 (9th Cir. 1991). An ALJ may properly consider testimony from 19 physicians . . . concerning the nature, severity, and effect of the symptoms of 20 which [claimant] complains, and may properly rely on inconsistencies between 21 claimant s testimony and claimant s conduct and daily activities. See, e.g., 22 Thomas, 278 F.3d at 958-59 (citation omitted). An ALJ also may consider [t]he 23 nature, location, onset, duration, frequency, radiation, and intensity of any pain or 24 other symptoms; [p]recipitating and aggravating factors ; [t]ype, dosage, 25 effectiveness, and adverse side-effects of any medication ; [t]reatment, other than 26 medication ; [f]unctional restrictions ; [t]he claimant s daily activities ; 27 unexplained, or inadequately explained, failure to seek treatment or follow a 28 prescribed course of treatment ; and ordinary techniques of credibility 13 1 evaluation, in assessing the credibility of the allegedly disabling subjective 2 symptoms. Bunnell, 947 F.2d at 346-47; see also Soc. Sec. Ruling 96-7p; 20 3 C.F.R. § 404.1529 (2005); Morgan, 169 F.3d at 600 (ALJ may properly rely on 4 plaintiff s daily activities, and on conflict between claimant s testimony of 5 subjective complaints and objective medical evidence in the record); Tidwell v. 6 Apfel, 161 F.3d 599, 602 (9th Cir. 1998) (ALJ may properly rely on weak 7 objective support, lack of treatment, daily activities inconsistent with total 8 disability, and helpful medication); Johnson v. Shalala, 60 F.3d 1428, 1432 (9th 9 Cir. 1995) (ALJ may properly rely on the fact that only conservative treatment had 10 been prescribed); Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (ALJ may 11 properly rely on claimant s daily activities and the lack of side effects from 12 prescribed medication). 13 2. 14 The Court finds that the ALJ provided clear and convincing reasons for Analysis. 15 finding Plaintiff s subjective complaints less than credible. 16 First, he discussed the inconsistent claims made by Plaintiff regarding the 17 basis for his disability: 18 The claimant s main reason for not working was reported as 19 problems using his right and left hand due to numbness and loss of 20 dexterity. He said he could not do the work in medical management that 21 he used to do. He also mentioned stress and anxiety, but these were not 22 the main reasons he listed for not working. This is not consistent with 23 his testimony, which was centered around psychiatric problems related 24 to stress and anxiety. 25 (AR at 13.) The ALJ concluded that Plaintiff s testimony and statements in the 26 function report are not consistent and [this] only reduces his overall credibility 27 further. (Id.) This is a clear and convincing reason for discounting Plaintiff s 28 credibility. Thomas, 278 F.3d at 959 (the ALJ properly drew an adverse 14 1 credibility inference based on inconsistent statements). 2 Next, the ALJ found that although Plaintiff was generally credible, the 3 record simply does not support his allegations. (AR at 13.) He discussed the 4 fact that there was no evidence to support the extent of impairment alleged by 5 Plaintiff, including that both the psychological and neurological consultative 6 examiners found nothing wrong with Plaintiff. (Id.) He commented on the 7 consultative psychologist s report, which noted that Plaintiff s quite soiled 8 hands were surprising because of his reported inability to work with [his] 9 hands. (Id. at 14 (citation omitted).) Again, these are clear and convincing 10 reasons for discounting credibility. Tidwell, 161 F.3d at 602; Batson, 359 F.3d at 11 1196 (the ALJ properly relied on objective findings and the physician s opinion to 12 discredit the claimant s testimony regarding functional limitations). 13 The ALJ also discussed Plaintiff s inconsistent treatment history and refusal 14 to go to any treatment other than his monthly outpatient visits, even to a doctor for 15 his high blood pressure; his lack of treatment for mental health issues until two 16 years after the alleged onset date; and the repeated reports of non-compliance with 17 treatment. (AR at 14.) He noted that most of the mental health treatment records 18 were benign. (Id.) Again, this is a clear and convincing reason for discounting 19 credibility. Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (an ALJ is 20 permitted to consider lack of treatment in his credibility determination); see also 21 Soc. Sec. Ruling 82-59 (when a disabling condition is amenable to treatment, 22 claimant must follow the course of treatment); Soc. Sec. Ruling 96-7p (an 23 individual may be less credible for failing to follow prescribed treatment without 24 cause); 20 C.F.R. § 416.930 (applicant must follow treatment.); Warre v. Comm r 25 of Soc. Sec., 439 F.3d 1001, 1006 (9th Cir. 2006) (impairments that can be 26 controlled effectively with medication are not disabling); Crane v. Shalala, 76 F.3d 27 251, 254 (9th Cir. 1996) (ALJ properly considered claimant s good response to 28 treatment). 15 1 Finally, the ALJ considered Plaintiff s function report in which he admitted 2 caring for himself, his wife, and his daughter; doing household chores and 3 cooking; and driving a car, grocery shopping, and going out to the library daily. 4 (AR at 13.) The ALJ noted that Plaintiff s statements in the function report were 5 not consistent with his allegations of disabling problems and served to reduce his 6 overall credibility further. (Id.) This is also a clear and convincing reason for 7 discounting Plaintiff s credibility. Burch, 400 F.3d at 681 (ALJ permissibly 8 considered evidence of claimant s ability to care for herself, cook, clean, and shop 9 in credibility analysis); Thomas, 278 F.3d at 959 (claimant s credibility was 10 properly rejected where, among other things, she could perform household chores 11 and shopping). 12 Based on the foregoing, the Court finds the ALJ s credibility finding was 13 supported by substantial evidence and was sufficiently specific to permit the Court 14 to conclude that the ALJ did not arbitrarily discredit Plaintiff s subjective 15 testimony. Thus, there was no error. 16 IV. 17 ORDER 18 Based on the foregoing, IT IS THEREFORE ORDERED, that judgment be 19 entered affirming the decision of the Commissioner of Social Security and 20 dismissing this action with prejudice. 21 22 23 24 Dated: October 11, 2011 HONORABLE OSWALD PARADA United States Magistrate Judge 25 26 27 28 16

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