Victor M Rubino v. Michael J Astrue, No. 5:2012cv00250 - Document 13 (C.D. Cal. 2013)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Jean P Rosenbluth, AFFIRMING THE COMMISSIONER: (See document for details.) Consistent with the foregoing, and pursuant to sentence four of 42 U.S.C. 405(g),20 IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner and dismissing this action with prejudice. IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment on counsel for both parties. (rla)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 VICTOR M. RUBINO, 10 Plaintiff, 11 vs. 12 13 CAROLYN W. COLVIN, Acting Commissioner of Social Security,1 14 Defendant. 15 ) Case No. EDCV 12-0250-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 applications for Social Security disability insurance 20 benefits ( DIB ) and Supplemental Security Income benefits 21 ( SSI ). The parties consented to the jurisdiction of the 22 undersigned U.S. Magistrate Judge pursuant to 28 U.S.C. § 636(c). 23 This matter is before the Court on the parties Joint 24 Stipulation, filed October 25, 2012, which the Court has taken 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 under submission without oral argument. For the reasons stated 2 below, the Commissioner s decision is affirmed and this action is 3 dismissed. 4 II. BACKGROUND 5 Plaintiff was born on October 23, 1960. (AR 282.) He has a 6 high-school education and previously worked as an electrician. 7 (AR 37, 76, 312.) 8 On November 29, 2005, Plaintiff filed applications for DIB 9 and SSI. (AR 150, 282-87.) Plaintiff alleged that he had been 10 unable to work since November 15, 1999, because of hepatitis B 11 and C, psoriasis, renal problems, severe joint pain, and migraine 12 headaches, among other things. 13 (AR 39-40, 311.) After Plaintiff s applications were denied, he requested a 14 hearing before an ALJ. (AR 194.) A hearing was held before ALJ 15 Thomas J. Gaye on August 22, 2008, at which Plaintiff, who was 16 represented by counsel, appeared and testified, as did vocational 17 expert ( VE ) Alan L. Ey. (AR 30-57.) In a written decision 18 issued September 22, 2008, ALJ Gaye found that Plaintiff was not 19 disabled. (AR 150-58.) On May 21, 2009, the Appeals Council 20 granted Plaintiff s request for review, vacated the hearing 21 decision, and remanded the case for further review. 22 (AR 159-62.) Another hearing was held, before ALJ David M. Ganly, on 23 August 26, 2009, at which Plaintiff, who was represented by 24 counsel, appeared and testified. (AR 58-95.) A medical expert, 25 Dr. Samuel Landau, and VE David A. Rinehart also appeared and 26 testified. (Id.) In a written decision issued October 27, 2009, 27 ALJ Ganly found that Plaintiff was not disabled. (AR 166-73.) 28 On June 22, 2010, the Appeals Council again granted Plaintiff s 2 1 request for review, vacated the hearing decision, and remanded 2 the case for further review. 3 (AR 174-76.) A third hearing was held, before ALJ Ganly, on November 30, 4 2010, at which Plaintiff, who was represented by counsel, 5 appeared and testified.2 (AR 96-130.) Also appearing and 6 testifying were medical expert Landau; psychological expert 7 Joseph Malancharuvil, Ph.D.; and VE Sandra M. Fioretti. (Id.) 8 In a written decision issued February 4, 2011, ALJ Ganly found 9 that Plaintiff was not disabled.3 (AR 14-24.) On December 20, 10 2011, the Appeals Council denied Plaintiff s request for review. 11 (AR 1-5.) This action followed. 12 III. STANDARD OF REVIEW 13 Pursuant to 42 U.S.C. § 405(g), a district court may review 14 the Commissioner s decision to deny benefits. The ALJ s findings 15 and decision should be upheld if they are free of legal error and 16 supported by substantial evidence based on the record as a whole. 17 § 405(g); Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 18 1420, 1427, 28 L. Ed. 2d 842 (1971); Parra v. Astrue, 481 F.3d 19 20 21 2 The ALJ stated that Plaintiff had a non-attorney representative (AR 14) but the record reflects that his representative was in fact an attorney (AR 216). 22 3 At the August 2008 hearing, Plaintiff, through counsel, 23 withdrew his DIB claim and amended his onset date to the date of his application, November 29, 2005. (AR 35-37.) In the 24 September 2008 decision, the ALJ noted Plaintiff s stipulation 25 and considered only Plaintiff s entitlement to SSI. 26 27 28 (AR 150-58.) In the two subsequent decisions, however, the ALJ considered Plaintiff s entitlement to both DIB and SSI and stated that Plaintiff s onset date was November 15, 1999. (AR 14-24, 16673.) These discrepancies are inconsequential, however, given that the ALJ s ultimate disability determination is entitled to affirmance. 3 1 742, 746 (9th Cir. 2007). Substantial evidence means such 2 evidence as a reasonable person might accept as adequate to 3 support a conclusion. Richardson, 402 U.S. at 401; Lingenfelter 4 v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 5 a scintilla but less than a preponderance. It is more than Lingenfelter, 504 6 F.3d at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 7 882 (9th Cir. 2006)). To determine whether substantial evidence 8 supports a finding, the reviewing court must review the 9 administrative record as a whole, weighing both the evidence that 10 supports and the evidence that detracts from the Commissioner s 11 conclusion. 12 1996). Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. If the evidence can reasonably support either affirming 13 or reversing, the reviewing court may not substitute its 14 judgment for that of the Commissioner. Id. at 720-21. 15 IV. THE EVALUATION OF DISABILITY 16 People are disabled for purposes of receiving Social 17 Security benefits if they are unable to engage in any substantial 18 gainful activity owing to a physical or mental impairment that is 19 expected to result in death or which has lasted, or is expected 20 to last, for a continuous period of at least 12 months. 42 21 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 22 (9th Cir. 1992). 23 A. 24 The ALJ follows a five-step sequential evaluation process in The Five-Step Evaluation Process 25 assessing whether a claimant is disabled. 20 C.F.R. 26 §§ 404.1520(a)(4), 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 27 828 n.5 (9th Cir. 1995) (as amended Apr. 9, 1996). In the first 28 step, the Commissioner must determine whether the claimant is 4 1 currently engaged in substantial gainful activity; if so, the 2 claimant is not disabled and the claim must be denied. 3 §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not 4 engaged in substantial gainful activity, the second step requires 5 the Commissioner to determine whether the claimant has a severe 6 impairment or combination of impairments significantly limiting 7 his ability to do basic work activities; if not, a finding of not 8 disabled is made and the claim must be denied. 9 §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a 10 severe impairment or combination of impairments, the third step 11 requires the Commissioner to determine whether the impairment or 12 combination of impairments meets or equals an impairment in the 13 Listing of Impairments ( Listing ) set forth at 20 C.F.R., Part 14 404, Subpart P, Appendix 1; if so, disability is conclusively 15 presumed and benefits are awarded. 16 416.920(a)(4)(iii). §§ 404.1520(a)(4)(iii), If the claimant s impairment or combination 17 of impairments does not meet or equal an impairment in the 18 Listing, the fourth step requires the Commissioner to determine 19 whether the claimant has sufficient residual functional capacity 20 ( RFC )4 to perform his past work; if so, the claimant is not 21 disabled and the claim must be denied. 22 416.920(a)(4)(iv). §§ 404.1520(a)(4)(iv), The claimant has the burden of proving that 23 he is unable to perform past relevant work. 24 1257. Drouin, 966 F.2d at If the claimant meets that burden, a prima facie case of 25 26 4 RFC is what a claimant can still do despite existing 27 exertional and nonexertional limitations. 20 C.F.R. §§ 404.1545, 416.945; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th 28 Cir. 1989). 5 1 disability is established. Id. If that happens or if the 2 claimant has no past relevant work, the Commissioner then bears 3 the burden of establishing that the claimant is not disabled 4 because he can perform other substantial gainful work available 5 in the national economy. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 6 That determination comprises the fifth and final step in the 7 sequential analysis. §§ 404.1520, 416.920; Lester, 81 F.3d at 8 828 n.5; Drouin, 966 F.2d at 1257. 9 10 B. The ALJ s Application of the Five-Step Process At step one, the ALJ found that Plaintiff had not engaged in 11 any substantial gainful activity since November 15, 1999. 12 16.) (AR At step two, the ALJ concluded that Plaintiff had the 13 severe impairments of hepatitis B and a healed hepatitis C 14 infection; chronic kidney disease stage one; healed bacterial 15 endocarditis; psoriasis; depressive disorder, not otherwise 16 specified; psychophysical reactions with chronic pain; 17 personality disorder, not otherwise specified; and history of 18 substance addiction, on methadone for maintenance. (AR 16-17.) 19 At step three, the ALJ determined that Plaintiff s impairments 20 did not meet or equal any of the impairments in the Listing. 21 17.) (AR At step four, the ALJ found that Plaintiff retained the RFC 22 to perform a range of light work. (AR 18.) Based on the VE s 23 testimony, the ALJ concluded that Plaintiff could not perform his 24 past work as an electrician but could perform jobs that existed 25 in significant numbers in the national economy. (AR 22-23.) 26 Accordingly, the ALJ determined that Plaintiff was not disabled. 27 (AR 23-24.) 28 6 1 V. RELEVANT FACTS 2 From July 31 to August 8, 2005, Plaintiff was hospitalized 3 with primary diagnoses of febrile illness, bacteremia, and 4 rule out meningitis and secondary diagnoses of hepatitis C and 5 heroin dependence. (AR 605-18.) At discharge, Plaintiff s 6 disability status was noted as no disability. 7 (AR 605.) On August 19, 2005, a Riverside County Regional Medical 8 Center ( RCRMC ) doctor noted that Plaintiff s bacteremia was 9 resolved and he was doing well except for occasional severe 10 headache. (AR 421.) The doctor noted that Plaintiff had been 11 using heroin occasionally for pain relief and was interested in 12 detox. 13 (Id.) From October 25 to November 14, 2005, Plaintiff was 14 hospitalized with primary diagnoses of acute renal failure, 15 fevers, and rule out endocarditis and secondary diagnoses of 16 hepatitis C and B, left-arm cellulitis, hypertension, and anemia. 17 (AR 550-604.) At discharge, Plaintiff s disability status was 18 noted to be [n]o disability. 19 (AR 550.) From November 18 to December 5, 2005, Plaintiff was 20 hospitalized with primary diagnoses of methicillin-resistant 21 staphylococcus aureus ( MRSA ) and bacteremia and secondary 22 diagnoses of infective endocarditis, chronic renal failure, 23 anemia, and hypertension.5 (AR 427-98, 533-49.) At discharge, 24 25 26 27 28 5 MRSA is a staph germ that does not get better with the first-line antibiotics that usually cure staph infections. MRSA, PubMed Health, http://www.ncbi.nlm.nih.gov/pubmedhealth/ PMH0004520/ (last updated Apr. 9, 2012). Endocarditis is inflammation of the inside lining of the heart chambers and heart valves (endocardium). Endocarditis, PubMed Health, http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0002088/ (last 7 1 Plaintiff was stable with normal temperature and stable BUN & 2 creatinine. 6 3 (AR 427.) On December 8, 2005, an RCRMC doctor noted that Plaintiff 4 had infective endocarditis, MRSA, bacteremia, a skin infection, 5 gastroesophageal disease, chronic anemia, and acute renal 6 failure. (AR 419-20.) The doctor noted that Plaintiff was 7 doing good and had stable BUN/creatinine. (Id.) On January 8 6, 2006, an RCRMC doctor noted that Plaintiff s infective 9 endocarditis was improved. 10 (AR 417-18.) On February 23, 2006, an RCRMC doctor assessed Plaintiff 11 with a history of MRSA, endocarditis, hepatitis B and C, 12 intravenous drug use, gastroesophageal reflux disease, and 13 tobacco abuse; the doctor also noted that Plaintiff had suffered 14 renal failure while in hospital. (AR 415.) The doctor found 15 that Plaintiff s hepatitis C viral load was not detectable. 16 (AR 416.) 17 On March 30, 2006, an RCRMC doctor noted that Plaintiff was 18 feeling well and had a history of hepatitis C, anemia, and 19 endocarditis. (AR 413.) On April 20, 2006, a lab report showed 20 that Plaintiff s hepatitis C viral load was less than 50, which 21 was within the normal reference range. (AR 422.) Plaintiff 22 23 updated July 16, 2012). 24 6 BUN stands for blood urea nitrogen. BUN - blood test, MedlinePlus, http://www.nlm.nih.gov/medlineplus/ency/article 25 26 27 28 /003474.htm (last updated May 30, 2011). A BUN test is often done to check kidney function. Id. Creatinine is a breakdown product of creatine, which is an important part of muscle. Creatinine blood, MedlinePlus, http://www.nlm.nih.gov/ medlineplus/ency/article/003475.htm (last updated Aug. 20, 2011). A creatinine test also checks kidney function. Id. 8 1 tested positive for hepatitis B. (AR 423.) On April 26, 2006, 2 an RCRMC doctor noted that Plaintiff doesn t have hep C based on 3 viral load but does have hepatitis B. 4 (AR 413.) On July 12, 2006, an RCRMC doctor noted that Plaintiff had 5 MRSA and endocarditis, hepatitis C with an RNA of less than 6 50,7 hepatitis B, normal liver function tests, and improved 7 ARF, or acute renal failure. 8 disability for one month. 9 (AR 411-12.) Plaintiff was given (AR 411.) On October 6, 2006, an RCRMC doctor noted that Plaintiff had 10 a history of hepatitis B and C infection, endocarditis, chronic 11 renal insufficiency, and MRSA infection; the doctor also noted 12 that Plaintiff had recently started using again because the 13 Riverside methadone clinic had closed. 14 (AR 410.) On October 18, 2006, Dr. Shahram Pourrabbani, a Board 15 Eligible Internist, examined Plaintiff at the Social Security 16 Administration s request. (AR 499-503.) Dr. Pourrabbani found 17 that Plaintiff had hepatomegaly with the liver palpated 18 approximately 8-cm below the costal margin. 8 (AR 501.) 19 Plaintiff had normal range of motion of the neck, back, 20 shoulders, elbows, wrists, hands, hips, and knees; a negative 21 straight-leg-raising test; and a normal gait. (AR 501-03.) He 22 had mild tenderness on abduction of the right shoulder past 23 approximately 75 [degrees], mild decrease in grip strength in 24 25 26 27 28 7 A blood test for Hepatitis C RNA measures a person s viral load. Hepatitis C, PubMed Health, http://www.ncbi.nlm. nih.gov/pubmedhealth/PMH0001329/ (last updated Oct. 16, 2011). 8 Hepatomegaly is swelling of the liver beyond its normal size. Hepatomegaly, MedlinePlus, http://www.nlm.nih.gov/ medlineplus/ency/article/003275.htm (last updated May 22, 2011). 9 1 both hands, and mild edema/euthesitis on the joints of the 2 fingers and hands. (AR 502.) Dr. Pourrabbani diagnosed 3 psoriasis with possible psoriatic arthritis and rule out 4 hepatitis B and C. (AR 503.) He opined that Plaintiff could 5 lift or carry 50 pounds occasionally and 25 pounds frequently, 6 stand or walk for approximately six to eight hours, and sit for 7 six to eight hours. (Id.) Dr. Pourrabbani found that Plaintiff 8 had no postural, visual, communicative, or environmental 9 limitations, but he did have mild manipulative limitation 10 including reaching above the head as well as fine manipulations 11 with above head [sic]. 12 (Id.) On November 3, 2006, consulting physician M.A. Mazuryk 13 reviewed Plaintiff s medical records and completed a physical RFC 14 assessment. (AR 506-10.) Dr. Mazuryk stated that Plaintiff s 15 primary diagnoses were hepatitis C and chronic fatigue, and his 16 secondary diagnoses were psoriatic arthritis and chronic renal 17 insufficiency. (AR 506.) Dr. Mazuryk opined that Plaintiff 18 could lift and carry 20 pounds occasionally and 10 pounds 19 frequently, stand and walk for a total of six hours in an eight20 hour day, and sit for about six hours in an eight-hour day. 21 507.) (AR Plaintiff could occasionally climb ramps, stairs, ladders, 22 ropes, and scaffolds; balance; stoop; kneel; crouch; and crawl. 23 (AR 508.) He could reach overhead with his right arm on a 24 frequent basis and had unrestricted use of his left arm. (Id.) 25 Dr. Mazuryk noted Dr. Pourrabbani s finding that Plaintiff was 26 able to perform medium work, but Dr. Mazuryk concluded that an 27 RFC for light work was more appropriate. 28 (AR 510.) On November 5, 2006, Dr. Romaldo R. Rodriguez, a Board 10 1 Eligible Psychiatrist, examined Plaintiff at the Social Security 2 Administration s request. (AR 511-16.) Dr. Rodriguez noted that 3 Plaintiff had been addicted to heroin, which he injected 4 intravenously, and had last used illegal drugs in May 2006.9 5 512-13.) Plaintiff had never seen a psychiatrist, never taken an 6 antidepressant, and never been psychiatrically hospitalized. 7 512.) (AR (AR Dr. Rodriguez noted that Plaintiff complained of being 8 depressed, angry, and irritated because he keeps getting 9 rejected for Disability funds but had no interest in seeing 10 psychiatrists or psychologists. (AR 516.) Plaintiff reported 11 that he drove his own car, dressed and bathed himself, ran 12 errands, went to the store, cooked and made snacks, watched 13 television, and did yard work, gardening, and household chores. 14 (AR 513.) Plaintiff denied any significant outside activities 15 but said that he had excellent relationships with family, 16 friends, and neighbors and good relationships with others. 17 (Id.) 18 Upon examination, Dr. Rodriguez noted that Plaintiff was 19 coherent and organized and his affect was polite and serious, 20 not sad or tearful. (AR 514.) Plaintiff was alert and 21 oriented and had at least average intelligence. (Id.) He could 22 recall three items immediately and after five minutes, perform 23 mathematical problems correctly and quickly, and spell the word 24 world forward and backward. (AR 514-15.) Dr. Rodriguez 25 diagnosed Plaintiff with [p]olysubstance dependence, supposedly 26 27 28 9 This appears to be inconsistent with the October 2006 report by an RCRMC doctor that Plaintiff was using again. (AR 410.) 11 1 in early sustained remission, with moderate psychosocial 2 stressors over the past year, and assigned a global assessment of 3 functioning score ( GAF ) of 70.10 (AR 515.) Dr. Rodriguez 4 found that Plaintiff was basically stable without any 5 psychiatric medications and had no functional limitations. 6 (AR 516.) 7 On November 9, 2006, consulting psychiatrist K.J. Loomis 8 reviewed Plaintiff s medical records and completed a psychiatric 9 review technique form. (AR 517-27.) Dr. Loomis noted that 10 Plaintiff had a mood disorder by history, anxiety disorder by 11 history, and polysubstance abuse/dependence. (AR 517-23.) Dr. 12 Loomis found that Plaintiff s mental condition resulted in no 13 restriction of activities of daily living; no difficulties in 14 maintaining social functioning; mild difficulties in maintaining 15 concentration, persistence, or pace; and no episodes of 16 decompensation. (AR 525.) Dr. Loomis concluded that Plaintiff s 17 mental impairments were not severe. 18 (AR 517.) On June 25, 2007, Dr. Nasa Valentine completed a multiple 19 impairment questionnaire, stating that the date of Plaintiff s 20 last exam was June 20, 2007, and that his date of first treatment 21 22 23 10 A GAF score represents a rating of overall 24 psychological functioning on a scale of 0 to 100. See Am. 25 Psychiatric Ass n, Diagnostic and Statistical Manual of 26 27 28 Disorders, Text Revision 34 (4th ed. 2000). A GAF score in the range of 61 to 70 indicates [s]ome mild symptoms (e.g. depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g. occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. Id. 12 1 was 10-07. 11 (AR 629-36.) Dr. Valentine, whose specialty was 2 family medicine, listed Plaintiff s diagnoses as fatigue, high 3 blood pressure, psoriasis, hepatitis B and C, and chronic low4 back pain. (AR 629.) Under clinical findings Dr. Valentine 5 wrote negative straight leg raise and noted that Plaintiff s 6 lumbar spine was positive for TTP presumably, tenderness to 7 palpation.12 (AR 629.) Under laboratory and diagnostic test 8 results, Dr. Valentine wrote positive for hepatitis B & C. 9 (AR 630.) Dr. Valentine listed Plaintiff s primary symptom[] 10 as fatigue and stated that Plaintiff had constant[] body and 11 joint pain in his hands, arms, legs, back, and neck. 12 31.) (AR 630- Dr. Valentine listed arthritis, psoriasis, and hepatitis B 13 and C as factors precipitating or relating to Plaintiff s pain. 14 (AR 631.) He estimated that Plaintiff s pain was a seven or 15 eight out of 10 and his fatigue was an eight or nine out of 10. 16 (Id.) Dr. Valentine opined that Plaintiff could sit for two 17 hours and stand or walk for one hour in an eight-hour day. (Id.) 18 He needed to get up and move each hour and could sit again after 19 15 minutes. (AR 631-32.) Plaintiff could lift or carry five 20 pounds frequently and 20 pounds occasionally, but he could never 21 22 11 The questionnaire appears to have been filled out by 23 someone, presumably Plaintiff, and then edited by Dr. Valentine, answers, writing error and his 24 who crossed out severalother answers. (See AR 629-36.) Dr. initials, and added to 25 Valentine apparently signed the form. 26 27 28 12 (AR 636.) Plaintiff asserts that Dr. Valentine listed clinical findings of lumbar tenderness to palpation (J. Stip. at 10), and the Court presumes he refers to the TTP acronym because a finding of tenderness to palpation does not appear elsewhere on the questionnaire (see AR 629-36). 13 1 lift or carry more than 20 pounds. (AR 632.) Dr. Valentine 2 stated that repetitive motions caused Plaintiff severe pain and 3 that he was moderately limited in his ability to grasp, turn, or 4 twist objects; use his fingers or hands for fine manipulations; 5 and use his arms for reaching. 6 (AR 632-33.) Dr. Valentine believed that Plaintiff s symptoms would 7 frequently interfere with his attention and concentration and 8 that depression contributed to the severity of his symptoms and 9 functional limitations. (AR 634.) He said that Plaintiff would 10 be absent from work more than three times a month because of his 11 impairments or treatment; he needed to avoid fumes, gases, 12 temperature extremes, and heights; and he could not push, pull, 13 kneel, bend, or stoop. (AR 635.) When asked whether his patient 14 was a malingerer, Dr. Valentine wrote unknown. 15 (AR 634.) On October 1, 2007, Dr. Antonio A. Tan assessed Plaintiff 16 with hypertension, hyperlipidemia, and degenerative joint disease 17 of the neck. (AR 622.) On November 1, 2007, Dr. Tan wrote a 18 note stating that in his best medical opinion Plaintiff was 19 totally disabled without consideration of any past or present 20 drug and/or alcohol use and that [d]rug and/or alcohol use is 21 not the material cause of this individual s disability. 13 (AR 22 618.) 23 24 25 26 27 28 13 In the September 2008 decision, the ALJ stated that Dr. Tan s report was dated November 1, 2007. (AR 154 (referring to agency exhibit B9F).) In the May 2009 order granting review and remanding the case to the ALJ, however, the Appeals Council referred to the report as being dated April 1, 2007. (AR 160 (referring to agency exhibit B9F).) The Court, like the ALJ, finds that the report was dated November 1, 2007, as that is the date the handwritten note most resembles. (See AR 618.) 14 1 On January 8, 2008, Dr. Tan noted that Plaintiff had left- 2 foot pain and a nonhealing ulcer on his left leg. (AR 621.) On 3 March 7, 2008, Dr. Tan noted that Plaintiff was doing well and 4 that the wound on his left leg was healing. (AR 645.) On April 5 9, 2008, Dr. Tan noted that Plaintiff complained of bilateral leg 6 pain and had poor ambulation; he was still on methadone and had a 7 nonhealing ulcer on his left leg. (AR 644.) In a 2008 note with 8 an illegible month and day, Dr. Tan noted that Plaintiff was 9 having a flare up of psoriasis on his arms and legs, his blood 10 pressure was well controlled, and his ulcer was about the same. 11 (AR 643.) In another 2008 note with an illegible month and day, 12 Dr. Tan noted that Plaintiff was having ongoing pain in his 13 left leg, his blood pressure was well controlled, and he had a 14 bad fungal infection on his fingernails. 15 (AR 642.) On October 9, 2008, Dr. Tan noted that Plaintiff had a cyst 16 on his neck and complained of bilateral shoulder pain and back 17 pain; Dr. Tan ordered x-rays. (AR 656.) On October 27, 2008, 18 Dr. Tan noted that Plaintiff had cellulitis on the left side of 19 his face. (AR 655.) On January 5, 2009, an x-ray of Plaintiff s 20 lumbar spine showed [s]pondylolisthesis with osteopenia greater 21 than expected for age. 14 22 shoulders were normal. (AR 652.) (AR 653-54.) X-rays of Plaintiff s On January 13, 2009, Dr. 23 Tan noted that Plaintiff had low-back pain and a nonhealing ulcer 24 on his left leg. (AR 651.) On April 2, 2009, Dr. Tan noted that 25 26 27 28 14 Spondylolisthesis is a condition in which a bone (vertebra) in the spine slips out of the proper position onto the bone below it. Spondylolisthesis, PubMed Health, http://www. ncbi.nlm.nih.gov/pubmedhealth/PMH0002240/ (last updated Aug. 11, 2012). 15 1 Plaintiff was relatively stable and that his leg ulcer was 2 healing with no sign of infection. (AR 650.) On July 7, 2009, 3 Dr. Tan noted that Plaintiff was complaining of worsening back 4 pain and was getting very depressed. (AR 648.) Dr. Tan 5 reviewed an x-ray of Plaintiff s back and diagnosed backache and 6 depression. 7 (AR 648-49.) On July 31, 2009, Dr. Tan noted that Plaintiff had arrived 8 at his appointment with the intention of having me fill out the 9 form for his disability, which was an issue that had been 10 discussed with him in the past. (AR 667.) Dr. Tan stated that 11 he would not be able to complete the form due to detailed 12 information needed. (Id.) He noted that Plaintiff got very 13 belliger[e]nt and very rude and stormed out of the office 14 talking obscenities. 15 his services. 16 (Id.) Dr. Tan terminated Plaintiff from (Id.) On August 28, 2009, Dr. Mohammed Ibrahaim noted that 17 Plaintiff had a history of hepatitis B and C, psoriasis, chronic 18 back pain, shoulder pain, and DJD, or degenerative joint 19 disease, of the spine. (AR 676.) On September 28, 2009, Dr. 20 Ibrahaim assessed Plaintiff with hepatitis C, hyperlipidemia, and 21 DJD. (AR 675.) On November 24, 2009, Dr. Ibrahaim noted that 22 Plaintiff had a history of hepatitis and psoriasis and assessed 23 him with DJD. (AR 674.) 24 again noted DJD. On December 22, 2009, Dr. Ibrahaim (AR 673.) On September 2, 2010,15 Dr. Ibrahaim 25 noted that Plaintiff complained of kidney stone and psoriasis; 26 he prescribed Dovonex cream and referred Plaintiff to 27 15 Plaintiff apparently did not see any doctor in the nine 28 months between December 2009 and September 2010. 16 1 dermatology. 2 (AR 672.) On October 13, 2010, Dr. Joseph Nassir, who specialized in 3 internal medicine, completed a multiple impairment questionnaire 4 and dictated a report. (AR 681-92.) Dr. Nassir, who had never 5 before seen Plaintiff (AR 681), performed a one-and-a-half-hour 6 examination and a medical-records review before diagnosing 7 Plaintiff with back pain with lumbar radioculopathy, status-post 8 motor vehicle accident in 1989 with right femur fracture and rod 9 placement, hepatitis B and C secondary to intravenous heroin 10 abuse in the past, weakness, fatigue, psoriasis with psoriatic 11 arthritis, insomnia, depression, anxiety, methadone therapy, 12 migraine headache, gastroesphageal disease, kidney stones, 13 gallstones, constipation, impotence with erectile dysfunction, 14 benign prostatic hyperplasia, neck pain with stiffness, bilateral 15 shoulder bursitis, wrist pain with carpal tunnel syndrome on the 16 right, acquired history of endocarditis, chronic renal 17 insufficiency, and anemia (AR 681, 690-61). 18 In his dictated report, Dr. Nassir stated that Plaintiff had 19 a history of psoriasis and hypertension and had been involved in 20 a motor vehicle accident in 1989, which apparently resulted in a 21 right-femur fracture and subsequent surgical repair. (AR 690.) 22 Dr. Nassir noted that a physical exam revealed psoriatic 23 breakouts of rashes throughout the body, more prominent on the 24 extensor surfaces of the body, that appeared to be somewhat in 25 remission. (AR 691.) He noted that Plaintiff had decreased 26 range of motion in both shoulders secondary to bursitis, right 27 worse than left, and was showing signs and symptoms of the 28 carpal tunnel syndrome in the upper extremities, more prominent 17 1 on the right than on the left side. (Id.) Dr. Nassir found 2 that Plaintiff had stiffness of the neck with decreased neck 3 movement and lower back and right hip and femur movement 4 secondary to surgery. (Id.) He noted that Plaintiff had pain 5 in his neck, back, right femur, and hand and arm joints secondary 6 to psoriatic arthritis. Dr. Nassir noted that Plaintiff (Id.) 7 was eliciting neuro symptoms in the lower extremities, more on 8 the right than left. (Id.) He opined that Plaintiff s medical 9 conditions prevented him from performing required daily personal 10 needs or any daily work activities and that Plaintiff should be 11 considered disabled. 12 (AR 692.) In the questionnaire, Dr. Nassir estimated Plaintiff s pain 13 to be a seven or eight out of 10 and his fatigue to be an eight 14 out of 10. (AR 683.) Dr. Nassir opined that Plaintiff could sit 15 for one hour and stand or walk for zero to one hour in an eight16 hour day and must get up and move around for 10 to 15 minutes 17 every 45 to 60 minutes. (AR 683-84.) Plaintiff could lift and 18 carry five pounds frequently and 20 pounds occasionally but never 19 more than that. (AR 684.) Dr. Nassir believed that Plaintiff 20 was moderately limited in his ability to use his arms for 21 reaching, including overhead reaching, and he was markedly 22 limited in his ability to grasp, turn, or twist objects or 23 perform fine manipulations. (AR 684-85.) Dr. Nassir believed 24 that Plaintiff s symptoms would increase if he were placed in a 25 competitive work environment. (Id.) Dr. Nassir stated that 26 Plaintiff constantly experienced pain, fatigue, or other 27 symptoms severe enough to interfere with attention and 28 concentration. (AR 686.) He believed that depression and 18 1 anxiety contributed to Plaintiff s symptoms and functional 2 limitations but that Plaintiff was able to tolerate low work 3 stress. 4 (Id.) Dr. Nassir opined that Plaintiff would miss more than three 5 days of work a month because of his impairments or treatment and 6 needed to avoid wetness, fumes, gases, temperature extremes, 7 humidity, and heights. (AR 687.) He stated that Plaintiff had 8 limited vision and could not push, pull, kneel, bend, or stoop. 9 (Id.) Dr. Nassir believed that the earliest date that his 10 descriptions of Plaintiff s symptoms and limitations applied was 11 December 2003. 12 (Id.) On November 30, 2010, at Plaintiff s third hearing before an 13 ALJ, psychologist Malancharuvil noted that he had reviewed the 14 psychological evidence. (AR 103.) He then questioned Plaintiff 15 before testifying that he had a depressive disorder, not 16 otherwise specified; psychological reactions with chronic pain; 17 and personality disorder not otherwise specified. (AR 103-06.) 18 Malancharuvil opined that Plaintiff s mental impairments resulted 19 in mild limitations in performing activities of daily living; 20 mild to moderate limitations in social functioning; and moderate 21 limitations in persistence and pace. (AR 106-07.) He believed 22 that Plaintiff should be limited to moderately complex tasks 23 with up to five-step instructions and routine work that does not 24 change constantly, and that Plaintiff should be precluded from 25 safety operations, very fast-paced work, and operating 26 hazardous or fast-moving machinery. 27 (Id.) Dr. Landau, who was board certified in internal medicine and 28 cardiovascular disease (AR 63), testified that he had reviewed 19 1 all the medical evidence and that Plaintiff suffered from 2 hepatitis B, healed hepatitis C infection, chronic stage-one 3 kidney disease, healed bacterial endocarditis, psoriasis, and a 4 psychiatric diagnosis (AR 114-15). Dr. Landau noted that 5 Plaintiff s psoriasis had never been aggressively treated with 6 a systemic medication and that there was really no objective 7 evidence of psoriatic arthritis. (AR 115-16.) He noted that 8 Plaintiff complained of chronic back pain and that lumbar-spine 9 x-rays showed spondylolisthesis and osteopenia but no 10 significant arthritis. (AR 115.) He noted that Plaintiff 11 complained of shoulder pain but x-rays were normal. (Id.) Dr. 12 Landau opined that Plaintiff should be limited to two hours of 13 standing and walking in an eight-hour day but had no limitations 14 on sitting. (AR 117.) Plaintiff could lift and carry 10 pounds 15 frequently and 20 pounds occasionally, occasionally stoop and 16 bend, and occasionally operate foot pedals and controls. (Id.) 17 Plaintiff could climb stairs but could not climb ladders, 18 balance, operate heavy equipment, or work around unprotected 19 machinery. (Id.) 20 conditioned. 21 Plaintiff s work environment should be air (Id.) In his written decision dated February 4, 2011, the ALJ 22 found that Plaintiff retained the RFC to perform a range of 23 light work. (AR 18.) Specifically, Plaintiff could 24 stand/walk 2 hours in an 8 hour workday with normal 25 breaks such as every 2 hours; sit 8 hours in an 8 hour 26 workday 27 frequently, 20 pounds occasionally; occasionally stoop 28 and bend; no ladders, work at heights, or balance; with normal breaks; 20 lift/carry 10 pounds 1 occasional operation of foot controls or pedals; he 2 cannot 3 unprotected machinery; his work environment should be air 4 conditioned; he can perform moderately complex tasks, up 5 to 6 responsibility for the safety of others; no fast paced 7 work; and no work around machinery. 8 (Id.) operate 4-5 steps, motorized which equipment should be or work around habituated; no In so finding, the ALJ accorded little weight to Drs. 9 Tan s, Valentine s, and Nassir s assessments and instead relied 10 upon the opinions of Dr. Landau and psychologist Malancharuvil. 11 (AR 20-22.) 12 VI. DISCUSSION 13 Plaintiff alleges that the ALJ erred in (1) failing to give 14 proper weight to the functional-capacity opinions of Drs. 15 Valentine and Nassir and (2) finding that Plaintiff s subjective 16 complaints were not fully credible. (J. Stip. at 7.) 17 A. 18 Plaintiff contends that the ALJ failed to properly consider The ALJ Properly Evaluated the Medical Evidence 19 the opinions of treating physician Valentine and examining 20 physician Nassir. (J. Stip. at 8-14.) Remand is not warranted 21 on that basis, however, because the ALJ provided legally 22 sufficient reasons for according little weight to those opinions. 23 Three types of physicians may offer opinions in social 24 security cases: (1) those who treat[ed] the claimant (treating 25 physicians); (2) those who examine[d] but d[id] not treat the 26 claimant (examining physicians); and (3) those who neither 27 examine[d] nor treat[ed] the claimant (non-examining 28 physicians). Lester, 81 F.3d at 830. 21 A treating physician s 1 opinion is generally entitled to more weight than the opinion of 2 a doctor who examined but did not treat the claimant, and an 3 examining physician s opinion is generally entitled to more 4 weight than that of a nonexamining physician. 5 Id. The opinions of treating physicians are generally afforded 6 more weight than the opinions of nontreating physicians because 7 treating physicians are employed to cure and have a greater 8 opportunity to know and observe the claimant. 9 80 F.3d 1273, 1285 (9th Cir. 1996). Smolen v. Chater, If a treating physician s 10 opinion is well supported by medically acceptable clinical and 11 laboratory diagnostic techniques and is not inconsistent with the 12 other substantial evidence in the record, it should be given 13 controlling weight. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). 14 If a treating physician s opinion is not given controlling 15 weight, its weight is determined by length of the treatment 16 relationship, frequency of examination, nature and extent of the 17 treatment relationship, amount of evidence supporting the 18 opinion, consistency with the record as a whole, the doctor s 19 area of specialization, and other factors. 20 C.F.R. 20 §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6). 21 When a treating or examining doctor s opinion is not 22 contradicted by another doctor, it may be rejected only for 23 clear and convincing reasons. Carmickle v. Comm r, Soc. Sec. 24 Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) (quoting Lester, 81 25 F.3d at 830-31). When a treating or examining physician s 26 opinion conflicts with another doctor s, the ALJ must provide 27 only specific and legitimate reasons for discounting the 28 treating doctor s opinion. Id. Indeed, the ALJ need not accept 22 1 the opinion of any physician, including a treating physician, if 2 that opinion is brief, conclusory, and inadequately supported by 3 clinical findings. Thomas v. Barnhart, 278 F.3d 947, 957 (9th 4 Cir. 2002); accord Batson v. Comm r of Soc. Sec. Admin., 359 F.3d 5 1190, 1195 (9th Cir. 2004). The weight given an examining 6 physician s opinion, moreover, depends on whether it is 7 consistent with the record and accompanied by adequate 8 explanation, among other things. 20 C.F.R. §§ 404.1527(c)(3)- 9 (6), 416.927(c)(3)-(6). 10 11 1. Dr. Valentine s opinion Plaintiff refers to Dr. Valentine as his treating family 12 practitioner (J. Stip. at 8), but the record fails to establish 13 that Dr. Valentine ever treated Plaintiff. Rather, it appears 14 that Dr. Valentine merely reviewed and signed a form that had 15 been completed by someone else, presumably Plaintiff. 16 629-36.) (See AR Even assuming that Dr. Valentine was a treating source, 17 however, the ALJ properly considered his sparse or perhaps 18 nonexistent treatment of Plaintiff when determining that his 19 opinion should be accorded less weight. (AR 20); see Orn v. 20 Astrue, 495 F.3d 625, 631 (9th Cir. 2007) (factors in assessing 21 treating physician s opinion include length of treatment 22 relationship, frequency of examination, and nature and extent of 23 treatment relationship); accord 20 C.F.R. §§ 404.1527(c)(2), 24 416.927(c)(2). 25 On the questionnaire, Dr. Valentine listed Plaintiff s 26 [d]ate of first treatment as 10-07, which, if interpreted to 27 mean October 2007, would postdate the questionnaire by four 28 months. (AR 629.) Dr. Valentine listed Plaintiff s last 23 1 examination date as June 20, 2007 just five days before the 2 questionnaire was completed but he left blank the space for 3 indicating frequency of treatment and wrote unknown as the 4 earliest date to which his description of Plaintiff s condition 5 applied. (AR 629, 635.) Moreover, none of the notes from the 6 RCRMC, where Dr. Valentine worked, appear to have been completed 7 by him (see AR 409-98, 533-616), and at the August 2008 hearing, 8 Plaintiff testified that he thought he had met Dr. Valentine 9 only once.16 (AR 49.) The ALJ therefore permissibly discounted 10 Dr. Valentine s opinion based on his apparently minimal or 11 nonexistent treatment relationship with Plaintiff. 12 The ALJ was also entitled to discount Dr. Valentine s 13 finding that Plaintiff had extreme limitations because it was 14 not supported by objective evidence or even Dr. Valentine s own 15 treatment record. (AR 20.) Dr. Valentine cited Plaintiff s 16 hepatitis B and C lab results, but as the ALJ noted (AR 170), 17 those lab results actually partially undermined the doctor s 18 assessment.17 Around the time that Dr. Valentine rendered his 19 opinion, Plaintiff s hepatitis C viral load was undetectable, and 20 one RCRMC doctor had noted that Plaintiff doesn t have hep C 21 based on viral load. (AR 416, 422-23.) The medical expert, Dr. 22 Landau, also testified that Plaintiff seem[ed] to have cleared 23 16 Plaintiff also testified that 24 RCRMC and that nobody could seem to gethe usually saw interns at on the same page with anything, which is why he switched to a new doctor. (AR 49.) 25 26 27 28 17 Specifically, in the October 2009 decision, the ALJ noted that Dr. Valentine s hepatitis C findings were incorrect as documented by the laboratory findings. (AR 170.) The October 2009 findings were incorporated into the February 2011 decision. (AR 14.) 24 1 the hepatitis C virus and found that Plaintiff s hepatitis C 2 virus was healed. (AR 80, 85-86, 115.) Dr. Valentine noted 3 that Plaintiff had a negative or normal straight-leg-raising 4 test, which also undermined his disability opinion. (AR 629.) 5 Finally, Dr. Valentine stated that Plaintiff s lumbar spine was 6 positive for TTP, presumably referring to tenderness to 7 palpation, but that seemingly mild finding does not support the 8 significant limitations he found such as Plaintiff s inability 9 to sit for more than two hours or stand or walk for more than one 10 hour or his reduced ability to grasp or reach. 11 Plaintiff s other medical records also fail to support Dr. 12 Valentine s findings. Although Plaintiff was hospitalized three 13 times for infections and kidney failure, those conditions 14 apparently largely resolved with treatment. (See AR 605 (Aug. 15 2005 discharge note from hospitalization for febrile illness 16 listing disability status as no disability ), AR 550 (Nov. 2005 17 discharge note from hospitalization for acute renal failure, 18 fevers, and rule out endocarditis listing disability status as 19 no disability ); AR 427 (Dec. 2005 discharge note from 20 hospitalization for MRSA and bacteremia, Plaintiff stable with 21 normal temperature and stable BUN & creatinine ).) As the ALJ 22 and Dr. Landau noted (AR 21, 115), the objective evidence did not 23 establish that Plaintiff had arthritis; rather, x-rays of 24 Plaintiff s shoulders were normal, and an x-ray of Plaintiff s 25 lumbar spine showed only spondylolisthesis and osteopenia (AR 26 652-54). Dr. Pourrabbani examined Plaintiff and found only mild 27 symptoms; he concluded, as did the nonexamining doctors, that 28 Plaintiff was far less limited than Dr. Valentine had found. 25 (AR 1 117, 501-03, 507-09.) 2 The ALJ also discounted Dr. Valentine s assessment because 3 it appeared to be premised on Plaintiff s discredited subjective 4 complaints. Indeed, Plaintiff likely filled out the form himself 5 and then gave it to Dr. Valentine to sign. The ALJ noted, 6 moreover, that Dr. Valentine found that Plaintiff had a pain 7 level of seven or eight of 10, which was an opinion that only 8 [Plaintiff] could have given to Dr. Valentine and was likely not 9 based on objective testing. (AR 20.) When asked whether 10 Plaintiff was a malingerer, Dr. Valentine answered unknown, 11 which also seems to indicate that he was relying on Plaintiff s 12 own account of his symptoms rather than objective data. 13 634.) (AR As discussed, Dr. Valentine listed little evidence in 14 support of his assessment, and some of the cited evidence failed 15 to support his assessment. Moreover, as discussed infra in 16 subsection B, the ALJ gave legally sufficient reasons for 17 discrediting Plaintiff s subjective symptom testimony to the 18 extent it was inconsistent with the RFC assessment. Dr. 19 Valentine s apparently almost exclusive reliance on Plaintiff s 20 subjective complaints was a specific and legitimate reason for 21 according his opinion less weight. See Tonapetyan v. Halter, 242 22 F.3d 1144, 1149 (9th Cir. 2001) (when ALJ properly discounted 23 claimant s credibility, he was free to disregard doctor s 24 opinion that was premised on claimant s subjective complaints); 25 Morgan v. Comm r of Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 26 1999) (when physician s opinion of disability premised to a 27 large extent upon claimant s own accounts of symptoms, 28 limitations may be disregarded if complaints have been properly 26 1 discounted ). 2 The ALJ also noted that Dr. Valentine s assessment was a 3 checklist style disability questionnaire and that he may not 4 have reviewed Plaintiff s medical records before rendering his 5 assessment. (AR 20.) Dr. Valentine left blank several of the 6 spaces for explanation or further comment. (See AR 634 ( Please 7 explain the basis for your conclusions ), 635 ( Additional 8 comments ).) Those are permissible reasons for according less 9 weight to Dr. Valentine s statements. See Molina v. Astrue, 674 10 F.3d 1104, 1111 (9th Cir. 2012) (ALJ may permissibly reject 11 check-off reports that do not contain explanation of basis for 12 conclusions); Batson, 359 F.3d at 1195 ( an ALJ may discredit 13 treating physicians opinions that are conclusory, brief, and 14 unsupported by the record as a whole . . . or by objective 15 medical findings ); Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 16 1996) (ALJ permissibly rejected doctor s evaluations because they 17 were check-off reports that did not contain explanation of bases 18 for conclusions); 20 C.F.R. §§ 404.1527(c)(6) (extent to which 19 doctor is familiar with record is relevant factor in deciding 20 weight to give opinion), 416.927(c)(6) (same). The ALJ s 21 conclusion that Dr. Valentine did not review Plaintiff s medical 22 records is supported by the evidence. Dr. Valentine apparently 23 met with Plaintiff only once before rendering his opinion, and 24 it is unclear whether he actually treated him. When asked to 25 list Plaintiff s laboratory results and treatments, Dr. Valentine 26 stated only that Plaintiff had lumbar tenderness, was positive 27 for hepatitis B & C, and took the medications methadone and 28 27 1 clonidine.18 (AR 629-30.) Dr. Valentine failed to mention any 2 other laboratory report, test, treatment, or hospitalization that 3 was reflected in Plaintiff s medical records. (AR 630.) He left 4 blank the question calling for a list of the patient s other 5 treatment. (AR 633.) The ALJ was entitled to consider Dr. 6 Valentine s apparent unfamiliarity with the complete record when 7 determining how much weight to accord his opinion. 8 Finally, the ALJ was entitled to rely on testifying medical 9 expert Dr. Landau s opinion rather than Dr. Valentine s because 10 Dr. Landau s opinion was consistent with the objective evidence. 11 Thomas, 278 F.3d at 957 ( The opinions of non-treating or 12 non-examining physicians may also serve as substantial evidence 13 when the opinions are consistent with independent clinical 14 findings or other evidence in the record. ); Morgan, 169 F.3d at 15 600 ( Opinions of a nonexamining, testifying medical advisor may 16 serve as substantial evidence when they are supported by other 17 evidence in the record and are consistent with it (citing 18 Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995))); see 20 19 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4) (ALJ will generally give 20 more weight to opinions that are more consistent . . . with the 21 record as a whole ). For example, Dr. Landau noted that 22 Plaintiff s hepatitis C was healed and that no objective 23 evidence supported Plaintiff s diagnosis of psoriatic arthritis, 24 opinions that were, as previously discussed, consistent with the 25 evidence. (AR 115-16.) Dr. Landau also noted that the evidence 26 27 28 18 Clonidine is used to treat high blood pressure. Clonidine, MedlinePlus, http://www.nlm.nih.gov/medlineplus/ druginfo/meds/a682243.html#why (last updated Oct. 1, 2010). 28 1 did not support Plaintiff s claim that he had headaches two or 2 three times a week (AR 119); in fact, Drs. Tan (who treated 3 Plaintiff over a span of 20 months), Valentine, and Ibrahaim (who 4 treated Plaintiff over a span of a year) all failed to note that 5 Plaintiff suffered from headaches, let alone frequent headaches 6 (see AR 618-22, 629-36, 642-46, 648-60, 667-70, 672-77), and 7 Plaintiff testified that his only medication for them was 8 naproxyn (AR 67), which is actually a nonsteroidal anti9 inflammatory drug.19 10 Moreover, Dr. Landau, unlike Dr. Valentine, reviewed all the 11 medical evidence up to the date of the hearing before rendering 12 his opinion. (AR 114-15); see 20 C.F.R. §§ 404.1527(c)(6) 13 (extent to which doctor is familiar with the other information 14 in [claimant s] case record is relevant factor in determining 15 weight given to opinion), 416.927(c)(6) (same). The ALJ could 16 also credit Dr. Landau s opinion because he testified at the 17 hearing, heard Plaintiff s testimony, and was subject to cross18 examination. See Andrews, 53 F.3d at 1042 (greater weight may be 19 given to nonexamining doctors who are subject to 20 cross-examination). Any conflict in the properly supported 21 medical-opinion evidence was the sole province of the ALJ to 22 resolve. 23 See id. at 1041. The ALJ erred in finding that Dr. Valentine did not state 24 his area of specialization (AR 20) because on the questionnaire 25 he listed family medicine as his specialty (AR 636). That 26 27 28 19 Naproxen, MedlinePlus, http://www.nlm.nih.gov/ medlineplus/druginfo/meds/a681029.html (last updated June 15, 2012). 29 1 error, however, was harmless in light of the ALJ s other specific 2 and legitimate reasons for rejecting Dr. Valentine s opinion and 3 the fact that a background in family medicine did not 4 particularly qualify Dr. Valentine to assess the severity of 5 Plaintiff s impairments. See Carmickle, 533 F.3d at 1162 63. 6 Moreover, Dr. Landau was board-certified in internal medicine and 7 therefore at least as qualified as Dr. Valentine to render an 8 opinion on Plaintiff s conditions and functional limitations. 9 See 20 C.F.R. §§ 404.1527(c)(5) ( We generally give more weight 10 to the opinion of a specialist about medical issues related to 11 his or her area of specialty than to the opinion of a source who 12 is not a specialist. ), 416.927(c)(5) (same); Smolen, 80 F.3d at 13 1285 (same). 14 Plaintiff is not entitled to reversal on this ground. 15 16 2. Dr. Nassir s opinion The ALJ rejected Dr. Nassir s opinion for several reasons, 17 all of which were legally sufficient and supported by substantial 18 evidence. 19 The ALJ was entitled to discount Dr. Nassir s opinion 20 because it was not supported by his own examination findings or 21 the objective medical evidence. 22 Thomas, 278 F.3d at 957. See Batson, 359 F.3d at 1195; The ALJ noted that Dr. Nassir 23 refer[red] to a dictated report as the basis for his extreme 24 opinions on the questionnaire, yet the report does not contain 25 objective evidence or evidence supported by [Plaintiff s] records 26 for the extreme limitations opined by Dr. Nassir. (AR 20.) Dr. 27 Nassir s report states that he conducted a physical exam and that 28 Plaintiff had psoriatic breakouts of rashes throughout the body 30 1 that were somewhat in remission ; [d]ecreased range of motion 2 in the shoulders, right greater than left; signs and symptoms 3 of carpal tunnel, right greater than left; stiffness of the 4 neck ; decreased neck movement as well as the lower back and 5 right hip and femur movement secondary to surgery ; neuro 6 symptoms in the lower extremities, right greater than left; and 7 [w]eakness on the right side. (AR 691.) Although Dr. Nassir 8 found that Plaintiff had reduced ranges of motion, he failed to 9 state the degree or severity of those limitations. Dr. Nassir 10 also simply referred to symptoms or signs of conditions, 11 without explaining what those symptoms and signs were. Moreover, 12 under diagnostic examination, Dr. Nassir wrote, [p]lease refer 13 to [Plaintiff s] extensive medical records, without citing to 14 any particular evidence, test result, or clinical finding or 15 explaining how the records supported his conclusions. (Id.) The 16 ALJ reasonably concluded that Dr. Nassir s vague findings failed 17 to adequately support his conclusion that Plaintiff suffered from 18 extensive medical impairments that were so significant as to 19 preclude all work and self-care activity. See 20 C.F.R. 20 §§ 404.1527(c)(3) (more weight accorded to opinion of medical 21 source who presents relevant evidence to support an opinion, 22 particularly medical signs and laboratory findings, and provides 23 explanation for opinion), 416.927(c)(3) (same). 24 The ALJ also correctly noted that Plaintiff s records do 25 not support a finding that [Plaintiff s] symptoms and extreme 26 limitations have been present since December 2003 as opined by 27 Dr. Nassir. (AR 20.) As previously discussed, the evidence did 28 not show that Plaintiff suffered from repeated migraine 31 1 headaches, and lab reports showed that Plaintiff s hepatitis C 2 viral load was undetectable. (AR 416, 422-23.) No objective 3 evidence established that Plaintiff had arthritis; rather, x-rays 4 of Plaintiff s shoulders were normal, and an x-ray of Plaintiff s 5 lumbar spine showed only spondylolisthesis and osteopenia. 6 652-54.) (AR Dr. Pourrabbani examined Plaintiff and found that 7 Plaintiff had, at most, mild symptoms as a result of his 8 impairments, and Drs. Pourrabbani and Valentine both noted that 9 Plaintiff had a negative or normal straight-leg test. 10 502-03, 629.) (AR That lack of objective evidence was a specific and 11 legitimate reason for rejecting Dr. Nassir s opinion that 12 Plaintiff had suffered from significant limitations since 2003. 13 Further, the ALJ was permitted to discount Dr. Nassir s 14 finding of extreme limitations because they were inconsistent 15 with Plaintiff s own reported activities of daily living. 16 20-21.) (AR See Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 17 2001) (ALJ s finding that doctor s restrictions appear to be 18 inconsistent with the level of activity that [plaintiff] engaged 19 in by maintaining a household and raising two young children, 20 with no significant assistance from her ex husband was specific 21 and legitimate reason for discounting opinion); Morgan, 169 F.3d 22 at 601-02 (ALJ permissibly rejected treating physician s opinion 23 when it conflicted with plaintiff s activities); see also Fisher 24 v. Astrue, 429 F. App x 649, 652 (9th Cir. 2011) (conflict 25 between doctor s opinion and claimant s daily activities was 26 specific and legitimate reason to discount opinion). Dr. Nassir, 27 who apparently saw Plaintiff only once, found that Plaintiff 28 could sit for only one hour and stand and walk for less than one 32 1 hour in an eight-hour day. (AR 683.) He believed Plaintiff s 2 medical problems would constantly interfere with his attention 3 and concentration and not only prevent him from performing 4 required daily work activities but also required daily personal 5 needs. (AR 686, 692.) Dr. Nassir stated that the earliest date 6 his descriptions of Plaintiff s symptoms and limitations applied 7 was December 2003, more than seven years before his examination. 8 (AR 687.) Dr. Nassir s assessments were inconsistent with 9 Plaintiff s reported activities of daily living, including 10 driving his own car, performing his own personal care, walking 11 his pets, going to the movies, shopping for groceries for two 12 hours at a time, doing his laundry, preparing simple meals, 13 performing light housework, doing yard work like pulling weeds 14 and watering, and playing cards or board games with friends a 15 couple times a week. (AR 75-76, 341-45.) Plaintiff originally 16 filled out a function report reporting these activities in late 17 2006 (AR 341-45), three years after the effective date of Dr. 18 Nassir s assessment, and at the August 2009 hearing, Plaintiff 19 reconfirmed that he was still doing most of these things (AR 7520 76). 21 The ALJ also discounted Dr. Nassir s opinion because it 22 appeared to have been rendered solely for the purpose of 23 Plaintiff s Social Security claims. (AR 21.) [I]n the absence 24 of other evidence to undermine the credibility of a medical 25 report, the purpose for which the report was obtained does not 26 provide a legitimate basis for rejecting it. Reddick, 157 F.3d 27 at 726; accord Case v. Astrue, 425 F. App x 565, 566 (9th Cir. 28 2011). As discussed above, here the ALJ cited other evidence 33 1 that undermined the credibility of Dr. Nassir s report, and 2 consideration of the report s purpose was therefore appropriate. 3 Even if the ALJ s reliance on this factor was error, however, it 4 was harmless in light of the ALJ s other specific and legitimate 5 reasons for rejecting Dr. Nassir s report. See Stout v. Comm r, 6 Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) 7 (nonprejudicial or irrelevant mistakes harmless). 8 Finally, as discussed above, the ALJ was entitled to rely on 9 Dr. Landau s opinion instead of Dr. Nassir s because it was 10 consistent with the objective evidence and because he testified 11 at the hearing and was subject to cross-examination. 12 F.3d at 600; Andrews, 53 F.3d at 1042. Morgan, 169 Plaintiff is not entitled 13 to reversal on this ground. 14 B. 15 Plaintiff argues that the ALJ s decision should be reversed The ALJ Properly Assessed Plaintiff s Credibility 16 because he found that Plaintiff was not fully credible but never 17 set[] forth an analysis of [Plaintiff s] veracity or 18 explain[ed] specifically why [Plaintiff s] testimony of greater 19 limitations cannot be believed. 20 (J. Stip. at 19-20.) An ALJ s assessment of pain severity and claimant 21 credibility is entitled to great weight. See Weetman v. 22 Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. Heckler, 779 23 F.2d 528, 531 (9th Cir. 1986). [T]he ALJ is not required to 24 believe every allegation of disabling pain, or else disability 25 benefits would be available for the asking, a result plainly 26 contrary to 42 U.S.C. § 423(d)(5)(A). Molina, 674 F.3d at 1112 27 (internal quotation marks and citation omitted). In evaluating a 28 claimant s subjective symptom testimony, the ALJ engages in a 34 1 two-step analysis. See Lingenfelter, 504 F.3d at 1035-36. 2 First, the ALJ must determine whether the claimant has presented 3 objective medical evidence of an underlying impairment [that] 4 could reasonably be expected to produce the pain or other 5 symptoms alleged. 6 omitted). Id. at 1036 (internal quotation marks If such objective medical evidence exists, the ALJ may 7 not reject a claimant s testimony simply because there is no 8 showing that the impairment can reasonably produce the degree of 9 symptom alleged. 10 original). Smolen, 80 F.3d at 1282 (emphasis in When the ALJ finds a claimant s subjective complaints 11 not credible, the ALJ must make specific findings that support 12 the conclusion. 13 Cir. 2010). See Berry v. Astrue, 622 F.3d 1228, 1234 (9th Absent affirmative evidence of malingering, those 14 findings must provide clear and convincing reasons for 15 rejecting the claimant s testimony. Lester, 81 F.3d at 834. If 16 the ALJ s credibility finding is supported by substantial 17 evidence in the record, the reviewing court may not engage in 18 second-guessing. 19 Thomas, 278 F.3d at 959. In a function report dated October 10, 2006, Plaintiff 20 stated that his daily activities included eating meals, watching 21 television, going to the store, going to the movies, and visiting 22 friends or family. (AR 341.) He took care of his mother by 23 cleaning the house and driving to appointments or the store. 24 342.) He and his mother walked and fed their pets. (Id.) (AR He 25 had no problems with personal care, prepared his own simple meals 26 every day, and shopped for food once a month for two hours at a 27 time. (AR 342-44.) He did laundry once a week for two hours, 28 light housekeeping for three or four hours a week, and very 35 1 light yard work for about two hours a week. (AR 343.) He went 2 outside for short periods almost every day and traveled by 3 walking or driving. (AR 344.) He watched television every day 4 and played cards or board games a couple times a week. (AR 345.) 5 He spent time with others one or two times a week by visiting, 6 playing games, or going to lunch or dinner. 7 problems getting along with people. 8 (Id.) He had no (AR 346-47.) Plaintiff stated that his conditions affected his ability to 9 lift, squat, bend, stand, reach, walk, sit, kneel, climb stairs, 10 complete tasks, concentrate, and use his hands. (AR 346.) He 11 could walk a half block or a block before needing to rest for 12 five or 10 minutes. (Id.) 13 and didn t like change. He was not able to handle stress well (AR 347.) Plaintiff stated that he 14 tired easily and got headaches when he was under stress. (AR 15 348.) 16 At the August 2008 hearing, Plaintiff testified that he 17 could not work because he had severe aches throughout his 18 joints, including his knees, hips, back, shoulders, wrists, and 19 fingers, with the worst pain in his lower back and knees. 20 39, 45.) Plaintiff tired extremely fast and became dizzy at 21 times, which would bring on migraine headaches. 22 45.) (AR 39, 44- He could not lift anything above shoulder height, and 23 lifting anything of substantial weight caused pain. 24 51.) (AR (AR 39, He had severe psoriasis on his scalp, elbows, arms, and 25 legs and around his fingernails. (AR 40-41.) As a result, 26 Plaintiff could not kneel or lean on his elbows and had problems 27 gripping, grasping, and fingering. (AR 41-42.) Plaintiff 28 testified that he could walk for only 10 to 15 minutes before 36 1 having to stop and rest for a few minutes; stand for 20 or 30 2 minutes before needing to sit down; and sit for 30 to 40 minutes 3 before needing to change positions. (AR 49-50.) He said he 4 could no longer climb ladders or scaffolding because he felt 5 unstable and fearful. 6 (AR 52.) At the August 2009 hearing, Plaintiff testified that he was 7 unable to work because of fatigue and extreme pain in his 8 shoulders and back. (AR 64.) He said that his joints were 9 constantly sore but the pain was relieved by methadone. 10 64, 71.) (AR He said that he had psoriasis over a large percentage 11 of his body, which was painful, prevented him from kneeling, and 12 made sitting uncomfortable. (AR 64-65.) Plaintiff testified 13 that his psoriasis also affected his fingernails, which made it 14 painful to grab something with the tips of his fingers. 15 69.) (AR 68- He said he got migraine headaches at least three to four 16 times a month, lasting two or three hours. (AR 65, 67.) He 17 tire[d] very quickly and would lie down four or five times a 18 day for about a half an hour at a time. (AR 65, 71.) He had to 19 reposition on a pretty constant basis because if he stayed in 20 one position for long things seem to lock in that position. 21 (AR 65.) Plaintiff testified he was unable to lift anything 22 above shoulder level and had difficulty reaching. (AR 66, 72.) 23 He said he could lift about 15 pounds at most and about 10 pounds 24 frequently, walk for about 15 minutes before needing to rest, and 25 sit for about an hour, although he needed to constantly 26 reposition himself. (AR 72-73, 79.) 27 license and was able to drive. Plaintiff had a driver s (AR 75.) He lived with his 28 mother and would fix meals and grocery shop with her. 37 (AR 75- 1 76.) Plaintiff dusted and did a little yard work, like 2 watering and pulling weeds; he could work in the yard for about 3 half an hour before needing a break. (AR 76, 79.) He had no 4 problems taking care of his own hygiene or dressing himself. (AR 5 78-79.) 6 At the December 2011 hearing, Plaintiff testified that his 7 physical and psychiatric conditions had worsened and that he was 8 constantly depressed, which he believed affected his attention. 9 (AR 101-02, 109.) 10 at a time. Plaintiff was able to sleep for only two hours (AR 103.) He had constant pain in his elbows, his 11 lower back and hips were painful 90% of the time, and he was 12 having two or three migraines a week. (AR 109.) He said that 13 his psoriasis had worsened and the skin on his elbows and knees 14 would crack and bleed. (AR 110.) He couldn t hold onto anything 15 with any weight, and the dexterity in his fingers was reduced. 16 (AR 110-11.) Plaintiff testified that he could be on his feet 17 for about half an hour before needing a break, and he had pain 18 when lifting a gallon of milk. 19 (AR 111-12.) Reversal is not warranted based on the ALJ s alleged failure 20 to make proper credibility findings or properly consider 21 Plaintiff s subjective symptoms. Plaintiff argues that the ALJ 22 failed to give any reasons for his credibility determination, but 23 in the September 2008 decision, the ALJ clearly found that 24 Plaintiff had fatigue and joint troubles but that the degree of 25 his alleged symptoms and resulting limitations was not 26 consistent with the objective studies and clinical findings, and 27 the range of his activities of living. (AR 156.) Those 28 findings, which Plaintiff does not challenge, were incorporated 38 1 into both later decisions (AR 14, 166) and supported the ALJ s 2 ultimate conclusion that Plaintiff s subjective symptom testimony 3 was not credible to the extent it was inconsistent with the 4 assigned RFC (AR 19). Thus, the ALJ explicitly assessed 5 Plaintiff s credibility and, as discussed below, gave clear and 6 convincing reasons for his credibility determination. 7 First, the ALJ properly discredited Plaintiff s subjective 8 complaints as inconsistent with his daily activities. See 9 Molina, 674 F.3d at 1113 ( Even where [claimant s] activities 10 suggest some difficulty functioning, they may be grounds for 11 discrediting the claimant s testimony to the extent that they 12 contradict claims of a totally debilitating impairment. ); see 13 also Thomas, 278 F.3d at 958 59 (inconsistency between claimant s 14 testimony and conduct supported rejection of her credibility); 15 Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999) 16 (inconsistencies between claimant s testimony and actions clear 17 and convincing reason for rejecting claimant s testimony). 18 Plaintiff claimed he could not work because of fatigue and 19 severe aches throughout his joints. 20 71.) (AR 39, 45, 52, 64-65, He said he had trouble concentrating, could walk for one 21 block at most before needing to rest for five or 10 minutes, 22 could not kneel, and had problems gripping, grasping, and 23 fingering. (AR 41-42, 64-65, 346.) Nevertheless, as the ALJ 24 noted, Plaintiff engaged in a wide range of activities of daily 25 living (AR 19, 156): he drove his own car, performed personal 26 care, walked his pets, went to the movies, shopped for groceries 27 once a month for two hours at a time, did his own laundry, 28 prepared simple meals, performed light housework, did yard work 39 1 like watering and pulling weeds, and played cards or board games 2 with friends a couple times a week (AR 75-76, 341-45). Plaintiff 3 reconfirmed at the August 2009 hearing that he was still doing 4 most of these things, as he had first indicated in the October 5 2006 function report. (AR 75-76.) The ALJ reasonably concluded 6 that those activities were inconsistent with Plaintiff s claims 7 of total disability and consistent with an RFC for a limited 8 range of light work. 9 (AR 156.) Second, the ALJ s finding that Plaintiff s alleged symptoms 10 were not supported by objective studies and clinical findings 11 was also a clear and convincing reason for discounting 12 Plaintiff s credibility. See Carmickle, 533 F.3d at 1161 13 ( Contradiction with the medical record is a sufficient basis for 14 rejecting the claimant s subjective testimony. ); Lingenfelter, 15 504 F.3d at 1040 (in determining credibility, ALJ may consider 16 whether the alleged symptoms are consistent with the medical 17 evidence ); Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) 18 ( Although lack of medical evidence cannot form the sole basis 19 for discounting pain testimony, it is a factor that the ALJ can 20 consider in his credibility analysis. ); Kennelly v. Astrue, 313 21 F. App x 977, 979 (9th Cir. 2009) (same). Throughout the three 22 decisions, the ALJ discussed the lack of objective support for 23 Plaintiff s subjective complaints. The ALJ noted that 24 Plaintiff s condition had improved after he was hospitalized for 25 acute kidney failure in 2005. (AR 155.) The ALJ also correctly 26 noted that although Plaintiff complained of joint pains and 27 arthritis, Dr. Pourrabbani noted only mild findings in the 28 October 2008 exam, such as mild edema, mild shoulder tenderness 40 1 with abduction, mild deformities of the fingernails, and mildly 2 decreased grip strength. (Id.) The ALJ noted that x-rays of 3 Plaintiff s shoulders were normal, and an x-ray of Plaintiff s 4 lumbar spine showed only spondylolisthesis and osteopenia. 5 170.) (AR The ALJ also noted that Plaintiff s records did not 6 support his claims of constant migraines (AR 21); indeed, as 7 previously noted, neither of Plaintiff s doctors who treated him 8 for the longest periods, Drs. Tan and Ibrahim, had even noted any 9 headache symptoms (AR 618-22, 642-46, 648-60, 667-70, 672-77). 10 The ALJ therefore reasonably found that Plaintiff s complaints 11 were not supported by the objective medical evidence. 12 Because the ALJ s credibility finding was supported by 13 substantial evidence, the Court may not engage in 14 second-guessing. Thomas, 278 F.3d at 959 (citation omitted). 15 Plaintiff is not entitled to reversal on this ground. 16 VII. CONCLUSION 17 Consistent with the foregoing, and pursuant to sentence four 18 of 42 U.S.C. § 405(g),20 IT IS ORDERED that judgment be entered 19 AFFIRMING the decision of the Commissioner and dismissing this 20 action with prejudice. IT IS FURTHER ORDERED that the Clerk 21 serve copies of this Order and the Judgment on counsel for both 22 parties. 23 DATED: March 21, 2013 24 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 25 26 27 28 20 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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