Salvador Dominguez, Jr. v. Michael J. Astrue, No. 5:2012cv00301 - Document 16 (C.D. Cal. 2013)

Court Description: MEMORANDUM OPINION AND ORDER AFFIRMING THE COMMISSIONER by Magistrate Judge Jean P Rosenbluth. (See document for details.) Consistent with the foregoing, and pursuant to sentence four of 42 U.S.C. 405(g),14 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 O 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 9 SALVADOR DOMINGUEZ, JR., 10 Plaintiff, 11 vs. 12 13 CAROLYN W. COLVIN, Acting Commissioner of Social Security,1 14 Defendant. 15 ) Case No. EDCV 12-0301-JPR ) ) ) MEMORANDUM OPINION AND ORDER ) AFFIRMING THE COMMISSIONER ) ) ) ) ) ) ) 16 17 18 19 20 21 22 23 24 25 I. PROCEEDINGS Plaintiff seeks review of the Commissioner s final decision denying his application for Social Security disability insurance benefits ( DIB ) and Supplemental Security Income benefits ( SSI ). The parties consented to the jurisdiction of the undersigned U.S. Magistrate Judge pursuant to 28 U.S.C. § 636(c). This matter is before the Court on the parties Joint Stipulation, filed October 22, 2012, which the Court has taken under submission without oral argument. For the reasons stated 26 1 On February 14, 2013, Colvin became the Acting 27 Commissioner of Social Security. Pursuant to Federal Rule of Civil Procedure 25(d), the Court therefore substitutes Colvin for 28 Michael J. Astrue as the proper Respondent. 1 1 below, the Commissioner s decision is affirmed and this action is 2 dismissed. 3 II. BACKGROUND 4 Plaintiff was born on February 21, 1968. 5 Record ( AR ) 211.) (Administrative He has a high-school education. (Id.) 6 Plaintiff previously worked as a collection supervisor at a 7 collection agency and as a self-employed collector and server of 8 delinquency letters. 9 (AR 212-13.) On November 14, 2007, Plaintiff filed an application for 10 DIB, and on December 5, 2007, he filed an application for SSI. 11 (AR 22, 277-79, 281-85.) Plaintiff alleged that he had been 12 unable to work since October 5, 2007, because of a stroke, 13 recurring transient ischemic attacks ( TIA ), depression, and 14 fibromyalgia, among other things.2 15 (AR 277, 281, 335, 345, 387.) After Plaintiff s applications were denied, he requested a 16 hearing before an ALJ. (AR 236-40, 245-49, 251.) A hearing was 17 held on September 23, 2009, at which Plaintiff, who was 18 represented by counsel, appeared and testified, as did a 19 vocational expert ( VE ). (AR 208-31.) The ALJ, however, 20 determined that the record was not complete and postponed the 21 case. (AR 230.) A supplemental hearing was held on January 20, 22 23 24 25 26 27 28 2 A TIA occurs when blood flow to a part of the brain stops for a brief period of time. Transient ischemic attack, PubMed Health, U.S. Nat l Library of Medicine (May 21, 2012), http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0001743/. A person who suffers a TIA will have stroke-like symptoms for up to 24 hours, but in most cases for 1 - 2 hours. Id. After a TIA, the blockage breaks up quickly and dissolves; unlike a stroke, it does not cause brain tissue to die. Id. A TIA may be a warning sign of a coming stroke and is considered a medical emergency. Id. 2 1 2010, at which Plaintiff, who was still represented by counsel, 2 appeared and testified, as did a different VE and medical expert 3 Dr. Arnold Ostrow. (AR 173-207.) In a written decision issued 4 on April 1, 2010, the ALJ determined that Plaintiff was not 5 disabled. (AR 22-32.) On January 4, 2012, the Appeals Council 6 denied Plaintiff s request for review. (AR 1-5.) This action 7 followed. 8 III. STANDARD OF REVIEW 9 Pursuant to 42 U.S.C. § 405(g), a district court may review 10 the Commissioner s decision to deny benefits. The ALJ s findings 11 and decision should be upheld if they are free of legal error and 12 supported by substantial evidence based on the record as a whole. 13 § 405(g); Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 14 1420, 1427, 28 L. Ed. 2d 842 (1971); Parra v. Astrue, 481 F.3d 15 742, 746 (9th Cir. 2007). Substantial evidence means such 16 evidence as a reasonable person might accept as adequate to 17 support a conclusion. Richardson, 402 U.S. at 401; Lingenfelter 18 v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 19 a scintilla but less than a preponderance. It is more than Lingenfelter, 504 20 F.3d at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 21 882 (9th Cir. 2006)). To determine whether substantial evidence 22 supports a finding, the reviewing court must review the 23 administrative record as a whole, weighing both the evidence that 24 supports and the evidence that detracts from the Commissioner s 25 conclusion. 26 1996). Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. If the evidence can reasonably support either affirming 27 or reversing, the reviewing court may not substitute its 28 judgment for that of the Commissioner. 3 Id. at 720-21. 1 IV. THE EVALUATION OF DISABILITY 2 People are disabled for purposes of receiving Social 3 Security benefits if they are unable to engage in any substantial 4 gainful activity owing to a physical or mental impairment that is 5 expected to result in death or which has lasted, or is expected 6 to last, for a continuous period of at least 12 months. 42 7 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 8 (9th Cir. 1992). 9 10 A. The Five-Step Evaluation Process The ALJ follows a five-step sequential evaluation process in 11 assessing whether a claimant is disabled. 20 C.F.R. 12 §§ 404.1520(a)(4), 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 13 828 n.5 (9th Cir. 1995) (as amended Apr. 9, 1996). In the first 14 step, the Commissioner must determine whether the claimant is 15 currently engaged in substantial gainful activity; if so, the 16 claimant is not disabled and the claim must be denied. 17 §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not 18 engaged in substantial gainful activity, the second step requires 19 the Commissioner to determine whether the claimant has a severe 20 impairment or combination of impairments significantly limiting 21 his ability to do basic work activities; if not, a finding of not 22 disabled is made and the claim must be denied. 23 §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a 24 severe impairment or combination of impairments, the third step 25 requires the Commissioner to determine whether the impairment or 26 combination of impairments meets or equals an impairment in the 27 Listing of Impairments ( Listing ) set forth at 20 C.F.R., Part 28 404, Subpart P, Appendix 1; if so, disability is conclusively 4 1 presumed and benefits are awarded. 2 416.920(a)(4)(iii). §§ 404.1520(a)(4)(iii), If the claimant s impairment or combination 3 of impairments does not meet or equal an impairment in the 4 Listing, the fourth step requires the Commissioner to determine 5 whether the claimant has sufficient residual functional capacity 6 ( RFC )3 to perform his past work; if so, the claimant is not 7 disabled and the claim must be denied. 8 416.920(a)(4)(iv). §§ 404.1520(a)(4)(iv), The claimant has the burden of proving that 9 he is unable to perform past relevant work. 10 1257. Drouin, 966 F.2d at If the claimant meets that burden, a prima facie case of 11 disability is established. Id. If that happens or if the 12 claimant has no past relevant work, the Commissioner then bears 13 the burden of establishing that the claimant is not disabled 14 because he can perform other substantial gainful work available 15 in the national economy. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 16 That determination comprises the fifth and final step in the 17 sequential analysis. §§ 404.1520, 416.920; Lester, 81 F.3d at 18 828 n.5; Drouin, 966 F.2d at 1257. 19 B. 20 At step one, the ALJ found that Plaintiff had not engaged in The ALJ s Application of the Five-Step Process 21 any substantial gainful activity since October 5, 2007. (AR 24.) 22 At step two, the ALJ concluded that Plaintiff had the severe 23 impairments of status post 1991 cervical spinal fracture, 24 status post posterior lumbar spinal fusion, morbid obesity, 25 26 3 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 obstructive sleep apnea, history of [TIAs], and psoriasis. 2 24-26.) (AR He concluded that Plaintiff s renal failure/sepsis, 3 diabetes mellitus, TIAs, depression, fibromyalgia, and 4 hypertension were nonsevere. (Id.) At step three, the ALJ 5 determined that Plaintiff s impairments did not meet or equal any 6 of the impairments in the Listing. (AR 26.) At step four, the 7 ALJ found that Plaintiff retained the RFC to perform sedentary 8 work with certain additional limitations. (Id.) Based on the 9 VE s testimony, the ALJ concluded that Plaintiff could perform 10 his past work as a collector at a collection agency as it was 11 generally performed. (AR 30-31.) Alternatively, at step five, 12 the ALJ concluded that Plaintiff was not disabled under the 13 framework of the Medical-Vocational Guidelines, 20 C.F.R. Part 14 404, Subpart P, Appendix 2, and that jobs existed in significant 15 numbers in the national economy that Plaintiff could perform. 16 (AR 31-32.) Accordingly, the ALJ determined that Plaintiff was 17 not disabled. (AR 32.) 18 V. RELEVANT FACTS 19 On October 5, 2007, Plaintiff was seen in the emergency room 20 for complaints of weakness and chest pain. (AR 422.) At 21 discharge, Plaintiff was noted to be ambulating without 22 assistance. (AR 424.) On October 19, 2007, Plaintiff was again 23 seen in the emergency room and was noted to be suffering from 24 nonischemic chest pain and anxiety. 25 (AR 415.) On January 14, 2008, Plaintiff was admitted to the hospital 26 for complaints of right-side weakness and slurred speech, both of 27 which had been going on for quite a long time. 28 21.) (AR 618, 620- Plaintiff also complained of back pain and was noted on 6 1 admission to have high blood pressure. (AR 618.) A brain MRI, 2 brain MR angiogram, and cervical-spine CT scan were normal, but a 3 lumbar-spine CT scan showed bilateral L5 spondylolysis. 4 460-61, 639-40.) (AR 132, Dr. Chenna Reddy Mallu diagnosed possible 5 transient ischemic attack, slurred speech which is 6 longstanding, [r]ight-sided weakness which is longstanding, 7 and back pain.4 (AR 618.) 8 overnight stay. (AR 618-19.) Plaintiff was discharged after an On January 25, 2008, Dr. Reddy 9 noted that Plaintiff had chronic back pain, obesity, 10 hypertension, elevated triglycerides, and a two-year history of 11 slow speech. 12 (AR 531.) On February 24, 2008, Dr. Reddy noted that Plaintiff had 13 slow speech and sent him to the emergency room. (AR 530.) 14 Plaintiff was admitted to the hospital with slurred speech and 15 right-leg weakness. (AR 436, 441-42, 448-49.) He was noted to 16 have a history of hypertension, hyperlipidemia, morbid obesity, 17 possible sleep apnea, and hypertriglyceridemia. (AR 441.) A 18 brain MRI, cerebral MR angiogram, and cervical-spine MRI were 19 normal. (AR 131, 459, 463-64.) On February 25, 2008, Dr. Bhupat 20 H. Desai performed a neurology consultation, noting that 21 Plaintiff reported developing right-side weakness and numbness 22 and abnormal and stuttering speech after October 2007, had 23 dizziness, and had started using a cane. (AR 444.) Dr. Desai 24 noted that Plaintiff had mild drift of extended right arm, 25 26 27 28 4 Notes in the record variously refer to a doctor named Mallu C. Reddy (see, e.g., AR 531), Chenna Reddy Mallu (see, e.g., AR 605), and Chenna R. Mallu (see, e.g., AR 618). Because these names all appear to refer to the same doctor, the Court refers to him uniformly as Dr. Reddy. 7 1 moderate weakness in right-lower extremity, reduced [r]apid 2 alternating movements on the right side, and slightly brisk 3 deep tendon reflexes. (AR 445.) Dr. Desai concluded that 4 Plaintiff s history and findings were consistent with acute 5 ischemic stroke, possibly brain stem with residual neurological 6 deficit. 7 (AR 444-46.) On February 26, 2008, Dr. Reddy noted that MRIs of 8 Plaintiff s brain and cervical spine were negative and a lumbar 9 puncture was essentially negative except for elevated protein. 10 (AR 436, 605.) Dr. Reddy s discharge diagnoses were [p]ossible 11 cerebrovascular accident in the brainstem with residual 12 neurological defects, morbid obesity, hyperlipidemia, 13 hypertension, and metabolic syndrome. 14 (AR 436.) On February 29, 2008, Dr. Sarah L. Maze examined Plaintiff 15 at the Social Security Administration s request. (AR 467-70.) 16 She noted that Plaintiff had weakness in the right side of his 17 body, was forgetful, and had poor balance in his hands. 18 467.) (AR Dr. Maze observed that Plaintiff had a very bizarre 19 speech pattern at times speaking in a normal matter and at times 20 speaking with a stutter that is not consistent, chang[ing] from 21 word to word, and that Plaintiff s speech pattern improved 22 considerably when he was distracted. (AR 468.) 23 that Plaintiff s language could be understood. She also noted (Id.) She found 24 that Plaintiff had normal intelligence, intact sensation, and 25 decreased reflexes on the left. (AR 468-69.) Plaintiff s motor 26 function was 5/5 throughout except for finger abduction on the 27 right, which was 5-/5. (Id.) His grip strength was 35/35/35 28 on the right and 95/95/95 on the left. 8 (AR 469.) He brought a 1 walker to the examination but left it outside and walked to a 2 chair in the examination room. 3 was able to walk independently. 4 (Id.) She noted that Plaintiff (Id.) Dr. Maze concluded that Plaintiff had an unusual speech 5 pattern not resembling dysarthria or aphasia and reflex 6 asymmetry suggesting that there was a small cerebral event. 7 469.) (AR She believed that there was a component of non-organic 8 overlay in the clinical presentation. 5 (Id.) Dr. Maze 9 diagnosed [h]istory of stroke and opined that Plaintiff could 10 lift 20 pounds occasionally and 10 pounds frequently, stand and 11 walk for two hours in an eight-hour day, and perform fine motor 12 activities with his arms and legs. 13 (AR 470.) On March 10, 2008, Dr. Reddy noted that Plaintiff had a 14 history of CVA, or cerebro-vascular accident, see Luis R. 15 DeSousa et al., Common Medical Abbreviations 58 (1995), and 16 complained of stuttering speech (AR 158). Dr. Reddy noted that 17 Plaintiff had diet-controlled diabetes and referred him to Dr. 18 Ali Mesiwala, at the Southern California Center for Neuroscience 19 and Spine, for treatment of disc prolapse, and to neurology and 20 physical therapy. 21 (Id.) On March 25, 2008, state-agency consultant Dr. Franklin 22 Kalmar reviewed the medical evidence in Plaintiff s file and 23 completed a Physical Residual Functional Capacity Assessment. 24 (AR 471-77.) Dr. Kalmar opined that Plaintiff could lift and 25 carry 20 pounds occasionally and 10 pounds frequently, stand or 26 walk for at least two hours in an eight-hour day, sit for about 27 5 Overlay is [a]n addition to an already existing Stedman s Medical Dictionary 1290 (27th ed. 2000). 28 condition. 9 1 six hours in an eight-hour day, and perform unlimited pushing and 2 pulling. (AR 472.) He could never climb ladders, ropes, or 3 scaffolds, but he could occasionally climb ramps and stairs, 4 balance, stoop, kneel, crouch, and crawl. (AR 473.) Plaintiff 5 also needed to avoid concentrated exposure to extreme heat and 6 cold, vibration, and hazards. 7 (AR 474.) On April 17, 2008, a CT of Plaintiff s head was normal. 8 130.) (AR On April 29, 2008, Dr. Reddy noted that Plaintiff 9 complained of right-side weakness and slow speech that had been 10 going on for four months. (AR 157.) Dr. Reddy s assessment was 11 brain stem CVA, diet-controlled diabetes, elevated lipids, 12 hypertension, and ? OSA, or questionable obstructive sleep 13 apnea.6 14 (Id.) On May 13, 2008, Dr. Mesiwala noted that Plaintiff 15 complained of neck and low-back pain radiating into both legs, 16 with associated numbness and tingling. (AR 110.) Dr. Mesiwala 17 examined Plaintiff and found that he had slow and broken speech 18 but intact memory. (Id.) Plaintiff had 4+/5 strength diffusely 19 on the right side and 5/5 strength on the left. (Id.) His 20 sensation on the right side was decreased to light touch and 21 pinprick. (Id.) He had no evidence of cerebellar dysfunction, 22 his gait was slow, and he used a cane. (AR 110-11.) 23 reflexes were 1+ on the left and absent on the right. Plaintiff s (AR 111.) 24 Dr. Mesiwala noted that a CT of Plaintiff s spine showed L5 25 spondylolysis that may be causing low back pain and 26 27 28 6 OSA is a common medical abbreviation for obstructive sleep apnea. DeSousa, supra, at 165. The symbol ? indicates doubtful or questionable. Id. at 257. 10 1 radiculopathy, whereas Plaintiff s neck and right-hemisphere 2 abnormalities were likely a result of his stroke. 3 Mesiwala ordered a lumbar-spine MRI. 4 (Id.) Dr. (Id.) On June 23, 2008, state-agency consultant Dr. Leonore C. 5 Limos affirmed Dr. Kalmar s March 2008 RFC. (AR 484.) On July 6 7, 2008, Dr. Reddy noted that Plaintiff suffered from 7 fibromyalgia, obesity, depression, and elevated lipids. 8 156.) (AR On August 12, 2008, Dr. Mesiwala noted that an MRI of 9 Plaintiff s lumbar spine showed an L5 pars defect with resultant 10 L5-S1 facet degeneration and hypertrophy, which caused moderate 11 to severe bilateral L5-S1 foraminal stenosis. (AR 108, 125-26.) 12 Dr. Mesiwala recommended an operation in which [Plaintiff s] L5 13 posterior elements are removed, his spinal nerves are 14 decompressed, and he has a fusion. 15 (Id.) In an undated note that appears to have been faxed to the 16 Social Security Administration on August 19, 2008, Dr. Reddy 17 stated that Plaintiff had a history of stroke and suffered from 18 fibromyalgia, spine disk prolapsed, diabetes, and depression. 19 (AR 500.) Dr. Reddy opined that because of Plaintiff s health 20 condition he is not able to work. (Id.) On September 5, 2008, 21 Dr. Reddy wrote a note to whom it may concern, stating that 22 Plaintiff had multiple medical problems and was permanently 23 disabled. 7 24 (AR 154.) On September 8, 2008, Dr. Mesiwala performed the recommended 25 26 7 The ALJ and the parties referred to this note as being 27 dated April 5, 2008 (AR 27-28; J. Stip. at 5, 14), but the best of several copies in the record clearly reflects a date of 9-528 08 (compare AR 154 with AR 537). 11 1 surgery on Plaintiff s lumbar spine. (AR 133-36.) On September 2 10, 2008, a physical therapist noted that Plaintiff had been 3 walking with a cane and that his physical-therapy goals included 4 ambulating 50 feet with a front-wheeled walker within one week 5 and 150 feet within two weeks. (AR 802-03.) 6 2008, x-rays showed L5-S1 posterior fusion. On September 12, (AR 123, 577.) Dr. 7 Mesiwala noted that Plaintiff had made an uneventful recovery 8 and discharged him from the hospital. (AR 141.) Dr. Mesiwala 9 instructed Plaintiff to participate in activities as tolerated 10 but to wear a brace when out of bed. (Id.) That same day, a 11 front-wheeled walker was delivered to Plaintiff. 12 (AR 731.) On September 25, 2008, Dr. Mesiwala wrote a letter to the 13 Social Security Administration, stating that Plaintiff had 14 undergone major spine surgery in September 2008 and would 15 likely be unable to work for approximately three months. 16 678.) (AR Dr. Mesiwala believed that as a result of the surgery, 17 Plaintiff would likely have a 90% improvement in pain and 18 tingling in his legs but noted that there was no guarantee that 19 Plaintiff s low-back pain would be relieved. 20 (Id.) On October 7, 2008, Plaintiff was admitted to the hospital 21 for treatment of an infection of his surgical wound. 22 647-48, 653-54, 657-58, 663-64.) (AR 137-39, Dr. Luong Thanh Ly performed an 23 infectious-disease consultation and found that Plaintiff had an 24 infection of his surgery site; psoriasis; [c]erebrovascular 25 accident weakness of the extremities, chronic and stable ; and 26 hypercholesterolemia. (AR 658.) 27 intravenous antibiotics. Plaintiff was treated with (AR 647, 658.) On October 8, 2008, Dr. 28 Mesiwala noted that Plaintiff had fluent speech and intact 12 1 memory and that he was feeling much better since starting 2 antibiotics. (AR 137-39.) Dr. Mesiwala noted that Plaintiff had 3 no new neurologic deficits, in terms of lower extremity strength 4 and sensation. (AR 138.) On October 10, 2008, Dr. Reddy noted 5 that Plaintiff s infection was under control, and he was 6 discharged from the hospital. 7 (AR 647.) On October 14, 2008, Dr. Reddy wrote a letter to the Social 8 Security Administration, stating that Plaintiff had suffered a 9 TIA stroke on October 5, 2007, had been diagnosed with 10 fibromyalgia and hypertension, and was [c]linically 11 [d]epressed. (AR 502.) Dr. Reddy stated that Plaintiff 12 experienced minor TIA strokes constantly, which causes the left 13 side of his head to swell instantly, it becomes very warm to the 14 touch and the body shakes in controllably [sic] for several 15 minutes. (Id.) He stated that Plaintiff has been determined 16 to be permanently disabled due these [sic] conditions. (Id.) 17 Dr. Reddy stated that Plaintiff cannot be restored to health 18 and will experience discomfort, pain and always have the fear 19 that he will have a major or a series of major TIA Strokes. 20 503.) (AR Dr. Reddy noted that Plaintiff had undergone spinal 21 surgery in September 2008, which limited his ability to perform 22 daily activities, such as sitting or standing for long periods of 23 time, and his range to bend, to lift heavy objects or twist 24 [was] very limited. 25 (Id.) On October 15, 2008, Dr. Reddy noted that Plaintiff reported 26 experiencing mood swings. (AR 153.) On January 8, 2009, Dr. 27 Reddy noted that Plaintiff had obesity, obstructive sleep apnea, 28 and hypertension. (AR 152.) 13 1 On March 3, 2009, Dr. Reddy noted that Plaintiff weighed 304 2 pounds and suffered from obesity, SZ, or seizure, see DeSousa, 3 supra, at 218, and hypertension. (AR 151.) In April 2009, Dr. 4 Reddy noted that Plaintiff weighed 306 pounds and suffered from 5 obesity, chronic back pain, hypertension, and ? SZ, presumably, 6 questionable seizure. 7 (AR 150.) On May 5, 2009, in a note cosigned by Dr. Mesiwala, 8 physician s assistant John DeVere assessed Plaintiff as having 9 [s]tatus post posterior lumbar spinal fusion due to spondylotic 10 spondylolisthesis at L5-S1 and noted that x-rays showed good 11 positioning of the hardware. (AR 755.) Physical examination 12 revealed that Plaintiff was severely, grossly obese. (Id.) 13 Plaintiff was having ongoing back and left-leg pain and had 14 restricted range of motion of the lumbar spine and difficulty 15 twisting and turning because of pain and because of [his] size. 16 (Id.) Plaintiff, however, was ambulating without difficulty 17 and had a negative straight-leg raise, 5/5 strength, and 18 grossly intact sensation and motor function. (Id.) DeVere noted 19 that they would continue monitoring Plaintiff and had encouraged 20 him to lose weight or undergo a procedure like lap-band or 21 gastric-bypass surgery. 22 (Id.) In another note that was also dated May 5, 2009, and 23 cosigned by Dr. Mesiwala, DeVere noted that the excessive weight 24 that [Plaintiff] has been gaining and the amount of weight that 25 he has at this point in time is hindering his recovery and 26 increasing the potential probability of not healing as well. 27 (AR 103, 730.) They were quite concerned because Plaintiff s 28 bone did not appear to be completely fused, and he may later 14 1 this year need further studies to verify the osseous fusion has 2 occurred. (Id.) If not, and if pain continued to be a 3 pressing issue, then they may be considering anterior lumbar 4 interbody at L5-S1. (Id.) DeVere noted that they hoped to 5 avoid that surgery, however, by having Plaintiff go through a 6 procedure such as lap band or gastric bypass surgery in which he 7 can reduce his weight. (Id.) He concluded that Plaintiff s 8 weight was causing increasing pressure and we are concerned 9 about possible non-union at this time. 10 (Id.) On May 6, 2009, Dr. Reddy completed a Functional Capacity 11 Questionnaire, stating that he had been treating Plaintiff since 12 January 2008. (AR 549.) He listed Plaintiff s diagnoses as 13 CVA, obesity, chronic back pain, hypertension, and depression. 14 (Id.) Dr. Reddy listed Plaintiff s symptoms as depression and 15 muscle weakness. (Id.) He did not check the box that 16 indicated that Plaintiff had been prescribed [a] cane or other 17 walking device. (Id.) Dr. Reddy opined that Plaintiff could 18 rarely lift and carry less than 10 pounds and never more than 19 that; his pain would frequently interfere with the attention 20 and concentration needed to perform even simple work tasks; and 21 he would miss more than four days of work a month because of his 22 impairments or medical treatment. (Id.) Dr. Reddy believed that 23 Plaintiff was unable to work in any occupation. 24 (Id.) On May 22, 2009, Dr. Gisella V. Olivares noted that 25 Plaintiff s complaints included a history of prior stroke and 26 high blood pressure, back problems and a possible need for 27 another back surgery, and fibromyalgia. (AR 727.) Under 28 assessment, Dr. Olivares listed benign essential hypertension, 15 1 transient cerebral ischemia, and myalgia and myositis 2 unspecified. 3 (Id.) On June 29, 2009, Dr. Olivares noted that Plaintiff thought 4 that he had been having seizures and wanted disability forms 5 filled out. (AR 725.) Her assessment was diabetes mellitus 6 without complication, myalgia and myositis unspecified, and 7 localization-related epilepsy and epileptic syndromes with 8 simple partial seizures. (Id.) She noted that Plaintiff needed 9 authorization for a neurologist, started him on glucophage for 10 his diabetes, and filled out his disability forms. 11 (Id.) On July 9, 2009, Dr. Olivares completed a Medical Source 12 Statement Concerning the Nature and Severity of an Individual s 13 Impairments Results from a Stroke. (AR 543-48.) Dr. Olivares 14 stated that Plaintiff had had a stroke and that he suffered from 15 loss of manual dexterity, weakness, unstable walking, falling 16 spells, numbness or tingling, pain, fatigue, bladder problems, 17 vertigo or dizziness, headaches, difficulty remembering, 18 confusion, depression, emotional lability, personality change, 19 blurred vision, and a shaking tremor. (AR 543.) She indicated 20 that Plaintiff had significant and persistent disorganization of 21 motor function in two extremities resulting in sustained 22 disturbance of gross and dexterous movement or gait and station. 23 (AR 544.) She believed that emotional factors contributed to the 24 severity of Plaintiff s symptoms and functional limitations, his 25 impairments were reasonably consistent with his symptoms and 26 limitations, and his pain and other symptoms constantly 27 interfered with his attention and concentration. (Id.) She 28 opined that Plaintiff could walk one block before resting, sit 16 1 for 15 minutes before having to get up, stand for 15 minutes 2 before needing to move or sit down, and stand and walk for a 3 total of less than two hours in an eight-hour day. (AR 544-45.) 4 She believed Plaintiff would need to take unscheduled 15-minute 5 breaks every 15 minutes of an eight-hour workday and that 6 Plaintiff s legs should be elevated 30 degrees for 75% of an 7 eight-hour sedentary workday. (AR 545-46.) Dr. Olivares stated 8 that Plaintiff needed to use a cane or assistive device for 9 occasional standing and walking; could never lift 10 pounds or 10 less; could never twist, stoop, crouch, or climb ladders or 11 stairs; and had significant limitations in reaching, handling, 12 and fingering. (Id.) When asked to what degree Plaintiff could 13 tolerate work stress, Dr. Olivares indicated that Plaintiff was 14 capable of low stress jobs. (AR 547.) She stated that 15 Plaintiff would be absent from work more than four days a month 16 as a result of his impairments or treatment. (AR 548.) She 17 stated that 2007 was the earliest date that her description of 18 Plaintiff s symptoms and limitations applied. 19 (Id.) On August 17, 2009, an x-ray of Plaintiff s lumbar spine 20 showed [s]atisfactory post-op appearance. (AR 724.) On August 21 18, 2009, physician s assistant DeVere noted that the x-rays 22 showed good positioning of hardware but that they were unable 23 to tell if [Plaintiff] had osseous fusion. (AR 887.) DeVere 24 noted that Plaintiff reported that he feels well and has no 25 pain. (Id.) Upon exam, Plaintiff had restricted range of 26 motion of the lumbar spine, his sensation and motor function were 27 grossly intact, and he had no gross motor or neurologic deficit. 28 (Id.) DeVere noted that they would follow up with x-rays in 17 1 three months. 2 (Id.) On October 14, 2009, Dr. Olivares noted that Plaintiff 3 reported that his blood sugar remained high, he had an infection 4 on the side of his abdomen, and he was still with numbness to 5 hands and feet and unable to work. (AR 861.) Her assessment 6 was diabetes mellitus without complication and cellulitis and 7 abscess of the trunk. 8 (Id.) On November 14, 2009, Plaintiff was admitted to the hospital 9 for acute renal failure. (AR 843-60.) That day, a CT of his 10 head showed no acute intracranial disease. (AR 839.) Plaintiff 11 was noted to have sepsis, possible fluid volume depletion, and 12 possible influenza or viral syndrome, among other things; he was 13 admitted for treatment. (AR 850-51.) The record does not appear 14 to reflect when Plaintiff was discharged. 15 On November 24, 2009, in a note that appeared to have been 16 initialed by physician s assistant DeVere, Plaintiff was noted to 17 have pain with range of movement and a negative straight-leg 18 raise. (AR 886.) On January 19, 2010, Dr. Olivares completed a 19 Medical Source Statement Concerning the Nature and Severity of an 20 Individual s Physical Impairment. (AR 935-41.) She stated that 21 she had been treating Plaintiff as needed/monthly since May 22, 22 2009. (AR 935.) She noted that Plaintiff had localized 23 epilepsy, transient cerebral ischemia, and fibromyalgia, and she 24 estimated Plaintiff s pain to be eight out of 10 and his fatigue 25 to be nine out of 10. (Id.) Dr. Olivares believed that 26 Plaintiff could sit for zero to two hours in an eight-hour day, 27 stand or walk for zero to two hours in an eight-hour day, and 28 never lift or carry 10 pounds or more. 18 (AR 936.) Plaintiff had 1 significant limitations in doing repetitive reaching, handling, 2 fingering, and lifting, and he needed to use an assistive device 3 for occasional standing or walking. (Id.) Dr. Olivares stated 4 that Plaintiff was incapable of tolerating even low stress but 5 had no emotional factors that contributed to the severity of 6 his symptoms and functional limitations. (AR 937.) She 7 indicated that Plaintiff had limited vision ; needed to avoid 8 noise, temperature extremes, humidity, dust, and heights; and 9 could not stoop, push, kneel, pull, or bend. (Id.) Finally, Dr. 10 Olivares noted that Plaintiff would be absent from work about two 11 or three times a month as a result of his impairments or 12 treatment. 13 (AR 938.) At the January 20, 2010 hearing before the ALJ, Dr. Ostrow, 14 a board-certified internist, testified that Plaintiff s medically 15 determinable impairments included status post spinal fracture in 16 1991 with subsequent fusion surgery, anxiety, morbid obesity, 17 obstructive sleep apnea, possible ischemic strokes, diabetes 18 mellitus, bilateral L5 radiculopathy, and psoriasis. (AR 178.) 19 Dr. Ostrow also noted that Plaintiff had been diagnosed with 20 fibromyalgia, which he believed was not well documented or 21 substantiated and in light of [Plaintiff s] other underlying 22 medical problems was probably incorrect. (Id.) Dr. Ostrow 23 opined that Plaintiff could lift 20 pounds occasionally and 10 24 pounds repetitively, stand or walk for two hours in an eight-hour 25 day, and sit for six hours in an eight-hour day. (AR 179.) 26 Plaintiff was unable to use his upper extremities above shoulder 27 height, could only occasionally turn his head, could use his 28 lower extremities as guides only, and could not use foot 19 1 pedals. (AR 179-81.) Dr. Ostrow opined that Plaintiff could 2 occasionally bend, stoop, or climb stairs but could not climb 3 ropes, ladders, or scaffolding or work at unprotected heights. 4 (AR 179.) 5 On January 22, 2010, Dr. Olivares noted that Plaintiff 6 weighed 290 pounds and had reported that his blood sugar was 7 running much better since taking medication for diabetes but 8 that he had gained weight since his weight-loss supplement had 9 been denied; he still complained of numbness to hands and feet, 10 all over body pain, and an inability to sit or stand for a 11 long period of time. (AR 891.) Plaintiff reported that he had 12 been evaluated by a neurosurgeon to have a device inserted into 13 his back for better pain control instead of regular back 14 surgery. (Id.) Plaintiff also reported that he was awaiting 15 decision by Social Security. (Id.) Dr. Olivares s assessment 16 was diabetes mellitus without complication, benign essential 17 hypertension, myalgia and myositis unspecified, and lumbago. 18 (Id.) 19 In an Assistive Device Medical Source Statement with an 20 illegible date, Dr. Mesiwala stated that Plaintiff intermittently 21 required a cane for standing and walking, and he recommended that 22 Plaintiff continue using his cane as needed with extended 23 walking. (AR 934.) Dr. Mesiwala stated that the earliest date 24 Plaintiff had required use of an assistive device for standing 25 and walking was his surgery date of September 8, 2008. 26 (Id.) In his April 2, 2010 decision, the ALJ determined that 27 28 20 1 Plaintiff retained the RFC to perform sedentary work. 8 2 26.) (AR Specifically, he could 3 lift and carry 20 pounds occasionally and 10 pounds 4 frequently; sit 6 hours in an 8 hour day; stand/walk 2 5 hours in an 8 hour day; occasionally climb stairs, bend, 6 and stoop but avoid climbing of ropes, ladders, or 7 scaffolds; avoid use of upper extremities above shoulder 8 height; 9 extremities as guides only; avoid unprotected heights; 10 avoid use of foot pedals and use lower and occasionally move his neck. 11 (Id.) In so finding, the ALJ relied on the opinion of Dr. 12 Ostrow, who, the ALJ noted, was a board-certified internist and 13 had had an opportunity to review the entire medical records and 14 hear Plaintiff s testimony. (AR 24-25.) The ALJ also 15 generally accepted the opinions of examining physician Maze and 16 consulting physician Kalmar to the extent they [were] consistent 17 with the opinions of Dr. Ostrow because they were not 18 inconsistent with the medical evidence as a whole. 19 (AR 29.) The ALJ gave less weight to Dr. Reddy s opinions because 20 the issue of disability is reserved to the Commissioner and 21 because Dr. Reddy s opinions were not well supported by the 22 entire medical evidence. (AR 28.) The ALJ also gave less 23 24 25 26 27 28 8 Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. 20 C.F.R. §§ 404.1567(a), 416.967(a). Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Id. Thus, [j]obs are sedentary if walking and standing are required occasionally and other sedentary criteria are met. Id. 21 1 weight to Dr. Mesiwala s opinions because they were not 2 entirely consistent with his treatment notes. (Id.) Finally, 3 the ALJ gave little weight to Dr. Olivares s opinions because 4 she had seen Plaintiff only a few times when she rendered them 5 and because they were inherently inconsistent and unsupported 6 by the medical records. (AR 29.) 7 VI. DISCUSSION 8 Plaintiff alleges that the ALJ erred in failing to properly 9 assess (1) the relevant medical evidence of record including 10 treating physician opinions and (2) Plaintiff s subjective 11 complaints and credibility. (J. Stip. at 3-4.) 12 A. 13 Plaintiff contends that the ALJ failed to properly consider The ALJ Properly Evaluated the Medical Evidence 14 the opinions of treating physicians Drs. Olivares, Reddy, and 15 Mesiwala. (J. Stip. at 4-10.) Plaintiff further argues that the 16 ALJ erred by failing to consider Plaintiff s need to use a cane 17 when assessing his RFC. (J. Stip. at 10-12.) Finally, Plaintiff 18 argues that the ALJ should have found the opinion of examining 19 physician Dr. Maze to be invalid and of no weight whatsoever 20 because she rendered her opinion before Plaintiff underwent 21 lumbar spine surgery. 22 (J. Stip. at 12-13.) Three types of physicians may offer opinions in social 23 security cases: (1) those who treat[ed] the claimant (treating 24 physicians); (2) those who examine[d] but d[id] not treat the 25 claimant (examining physicians); and (3) those who neither 26 examine[d] nor treat[ed] the claimant (non-examining 27 physicians). Lester, 81 F.3d at 830. A treating physician s 28 opinion is generally entitled to more weight than the opinion of 22 1 a doctor who examined but did not treat the claimant, and an 2 examining physician s opinion is generally entitled to more 3 weight than that of a nonexamining physician. 4 Id. The opinions of treating physicians are generally afforded 5 more weight than the opinions of nontreating physicians because 6 treating physicians are employed to cure and have a greater 7 opportunity to know and observe the claimant. 8 80 F.3d 1273, 1285 (9th Cir. 1996). Smolen v. Chater, If a treating physician s 9 opinion was well supported by medically acceptable clinical and 10 laboratory diagnostic techniques and is not inconsistent with the 11 other substantial evidence in the record, it should be given 12 controlling weight. 20 C.F.R. §§ 404.1527(c)(2); 416.927(c)(2). 13 If a treating physician s opinion is not given controlling 14 weight, its weight is determined by length of the treatment 15 relationship, frequency of examination, nature and extent of the 16 treatment relationship, amount of evidence supporting the 17 opinion, consistency with the record as a whole, the doctor s 18 area of specialization, and other factors. 20 C.F.R. 19 §§ 404.1527(c)(3)-(6); 416.927(c)(3)-(6). 20 When a treating doctor s opinion is not contradicted by 21 another doctor s, it may be rejected only for clear and 22 convincing reasons. See Lester, 81 F.3d at 830. When a 23 treating physician s opinion conflicts with another doctor s, the 24 ALJ must provide only specific and legitimate reasons for 25 discounting the treating doctor s opinion. 26 F.3d 625, 632 (9th Cir. 2007). Orn v. Astrue, 495 Indeed, the ALJ may discredit 27 treating-doctor opinions that are conclusory, brief, and 28 unsupported by the record as a whole or by objective medical 23 1 findings. See Batson v. Comm r of Soc. Sec. Admin., 359 F.3d 2 1190, 1195 (9th Cir. 2004); Thomas v. Barnhart, 278 F.3d 947, 957 3 (9th Cir. 2002). 4 5 1. Dr. Olivares s opinion Contrary to Plaintiff s contentions (J. Stip. at 10), the 6 ALJ provided specific and legitimate reasons for according 7 little weight to Dr. Olivares s controverted opinions. The ALJ 8 correctly noted that Dr. Olivares completed the July 2009 Medical 9 Source Statement after seeing Plaintiff only twice in May and 10 June 2009 and she completed the January 2010 Medical Source 11 Statement after seeing Plaintiff only one additional time in 12 October 2009. (AR 29, 725-727, 861.) The ALJ was entitled to 13 consider the length of treatment and frequency of examination in 14 assessing the doctor s opinion. 20 C.F.R. §§ 404.1527(c)(2)(i), 15 416.927(c)(2)(i); Edlund v. Massanari, 253 F.3d 1152, 1157 (9th 16 Cir.) (as amended Aug. 9, 2001). 17 The ALJ also reasonably accorded less weight to Dr. 18 Olivares s opinions because her treatment notes merely noted 19 [Plaintiff s] past medical history with minimal physical 20 examinations. (AR 29.) Indeed, Dr. Olivares made very few 21 findings during the two or three visits that predated her 22 disability opinions. In May 2009, Dr. Olivares noted only 23 Plaintiff s medical history and complaints of toe fungus and 24 briefly summarized an apparently normal physical exam. (AR 727.) 25 In June 2009, Dr. Olivares completed Plaintiff s disability 26 forms, conducted a urinalysis to see if he had a urinary tract 27 infection, briefly summarized another apparently normal physical 28 exam, and prescribed diabetes medication. 24 (AR 725-26.) Dr. 1 Olivares noted that Plaintiff thought he was having seizures but 2 recorded no observations or clinical findings about them and 3 stated only that he needed authorization for a neurologist. 4 725.) (AR In October 2009, Dr. Olivares noted that Plaintiff 5 reported high blood sugar, improved urination, a healing 6 infection on the side of his abdomen, and numbness to hands and 7 feet. (AR 861.) She tested Plaintiff s blood sugar and wound 8 and prescribed additional diabetes medications. (Id.) With the 9 exception of Plaintiff s wound, a physical exam appeared to be 10 normal. (Id.) Those brief, routine notes fail to support Dr. 11 Olivares s finding that Plaintiff suffered from significant 12 functional limitations and was unable to work. See Connett v. 13 Barnhart, 340 F.3d 871, 875 (9th Cir. 2003) (treating doctor s 14 opinion properly rejected when treatment notes provide no basis 15 for the functional restrictions he opined should be imposed on 16 [claimant] ); Valentine v. Comm r, Soc. Sec. Admin., 574 F.3d 17 685, 692-93 (9th Cir. 2009) (contradiction between treating 18 physician s opinion and his treatment notes constitutes specific 19 and legitimate reason for rejecting treating physician s 20 opinion); Batson, 359 F.3d at 1195 ( an ALJ may discredit 21 treating physicians opinions that are conclusory, brief, and 22 unsupported by the record as a whole . . . or by objective 23 medical findings ); Rollins v. Massanari, 261 F.3d 853, 856 (9th 24 Cir. 2001) (ALJ permissibly rejected treating physician s opinion 25 when opinion was contradicted by or inconsistent with treatment 26 reports). 27 The ALJ also correctly found that Dr. Olivares s July 2009 28 and January 2010 opinions were inherently inconsistent. 25 (AR 1 29.) For example, in July 2009, Dr. Olivares opined that 2 Plaintiff had emotional factors that contributed to his symptoms 3 and functional limitations. (AR 544.) Six months and a single 4 visit later, however, Dr. Olivares found that Plaintiff had no 5 emotional factors that contributed to his symptoms or functional 6 limitations. (AR 937.) Similarly, in July 2009, Dr. Olivares 7 opined that Plaintiff was capable of low stress jobs and would 8 miss more than four days of work per month (AR 547-48); in 9 January 2010, she opined that he was [i]ncapable of low stress 10 work but would miss only about two or three days of work per 11 month (AR 937-38). 12 differences. Her notes do not explain or account for these The ALJ was entitled to discount Dr. Olivares s 13 opinions based on those inconsistencies. See Matney ex rel. 14 Matney v. Sullivan, 981 F.2d 1016, 1020 (9th Cir. 1992) 15 ( inconsistencies and ambiguities in doctor s opinion were 16 specific and legitimate reasons for rejecting it); Houghton v. 17 Comm r of Soc. Sec. Admin., No. 11 35623, ___ F. App x ___, 2012 18 WL 3298201, at *1 (9th Cir. Aug. 14, 2012) (ALJ s finding that 19 doctors opinions were internally inconsistent, unsupported by 20 their own treatment records or clinical findings, [and] 21 inconsistent with the record as a whole constituted specific and 22 legitimate bases for discounting them). 23 Plaintiff summarily asserts that differences in Dr. 24 Olivares s July 2009 and January 2010 opinions were attributable 25 to the significant amount of treatment he underwent during the 26 intervening six months. (J. Stip. at 9-10.) As noted, however, 27 Dr. Olivares saw Plaintiff only once during those six months, to 28 treat only Plaintiff s longstanding diabetes and an abdominal 26 1 wound. (AR 861.) Other than Dr. Olivares, Plaintiff saw only 2 physician s assistant DeVere during the period, who apparently 3 examined Plaintiff without providing treatment. (AR 886-87.) 4 Plaintiff was also hospitalized for treatment of what appeared to 5 be an unrelated infection or virus. (AR 843-60.) Contrary to 6 Plaintiff s assertion, therefore, the record does not reflect a 7 significant amount of treatment during the six months in 8 question or account for the differences in Dr. Olivares s two 9 opinions. 10 The ALJ also permissibly discounted Dr. Olivares s 11 conclusions because the medical records did not support them. 12 (AR 29.) The ALJ noted that on May 5, 2009, x-rays of 13 Plaintiff s lumbar spine showed good positioning of the hardware 14 and no evidence of non-union. (AR 28, 755.) At that time, 15 DeVere and Dr. Mesiwala noted that they could not tell whether 16 Plaintiff s lumbar spine was fully fused and that Plaintiff had 17 back and left-leg pain and restricted range of motion of the 18 lumbar spine, but he was nevertheless ambulating without 19 difficulty and had a negative straight-leg-raising test, 5/5 20 strength, and grossly intact sensation and motor function. 21 755.) (AR As the ALJ also noted (AR 29), by August 2009, Plaintiff 22 reported that he feels well and has no pain (AR 887). At that 23 time, Plaintiff s sensation and motor function were grossly 24 intact, he had no gross motor or neurologic deficit, and x-rays 25 of his lumbar spine showed good positioning of the hardware. 26 (Id.) And although Dr. Olivares noted that Plaintiff had 27 fibromyalgia, the ALJ reasonably concluded that that diagnosis 28 was not well documented because no physician indicated number 27 1 of tender trigger points to confirm the diagnosis. 9 (AR 25.) 2 Dr. Maze also examined Plaintiff and found that despite the 3 residuals of Plaintiff s October 2007 stroke, he was still able 4 to lift 20 pounds occasionally and 10 pounds frequently, stand 5 and walk for two hours in an eight-hour day, and perform fine 6 motor activities. (AR 469-70.) Dr. Ostrow, the testifying 7 medical expert, reviewed Plaintiff s medical records and opined 8 that he retained the RFC adopted by the ALJ. (AR 179-81.) And 9 finally, contrary to Dr. Olivares s finding that Plaintiff needed 10 a cane for even occasional standing or walking (AR 546), 11 Plaintiff s neurosurgeon, Dr. Mesiwala, recommended that 12 Plaintiff use a cane only as needed for extended walking (AR 13 934), and his other treating physician, Dr. Reddy, did not 14 indicate that Plaintiff needed to use an assistive device at all 15 (see, e.g., AR 549). The ALJ was therefore permitted to discount 16 Dr. Olivares s opinion because it was inconsistent with the 17 record as a whole. See Batson, 359 F.3d at 1195 (ALJ may 18 discredit treating physicians opinions that are conclusory, 19 brief, and unsupported by the record as a whole or by objective 20 medical findings); 20 C.F.R. §§ 404.1527(c)(4) ( Generally, the 21 22 9 Fibromyalgia is a [r]heumatic syndrome of pain in 23 connective tissues and muscles without muscle weakness, characterized by general body aches, multiple tender areas, 24 fatigue, sleep disturbances, and reduced exercise tolerance; seen 25 most frequently among women 20 to 50 years of age; cause is 26 27 28 unknown. Ida G. Dox et al., Attorney s Illustrated Medical Dictionary 55 (Supp. 2004). Diagnosis is made based on widespread pain for at least three months and pain on digital palpation present in at least 11 of 18 specific sites on the body. Id.; see also SSR 12-2P, 2012 WL 3104869, at *2-3 (listing diagnostic criteria for fibromyalgia). 28 1 more consistent an opinion is with the record as a whole, the 2 more weight we will give to that opinion. ), 416.927(c)(4) 3 (same). 4 5 2. Dr. Reddy s Opinion Plaintiff argues that the ALJ failed to cite any 6 significant or legitimate reasons for rejecting treating 7 physician Reddy s opinions and committed reversible error by 8 failing to discuss, or even acknowledge, Dr. Reddy s May 2009 9 Functional Capacity Questionnaire. 10 (J. Stip. at 4-6.) In August 2008, Dr. Reddy stated that Plaintiff had a 11 history of stroke, fibromyalgia, spine disk prolapsed, 12 diabetes, and depression and was unable to work. (AR 500.) In 13 September 2008, Dr. Reddy stated that Plaintiff had multiple 14 medical problems and was permanently disabled. (AR 154.) In 15 October 2008, Dr. Reddy stated that Plaintiff had a history of 16 stroke and suffered from constant TIA strokes, 17 hypertension, and depression. (AR 502.) fibromyalgia, Dr. Reddy stated that 18 Plaintiff had a limited ability to sit or stand for long periods 19 of time, lift heavy objects, bend, and twist and was permanently 20 disabled. (AR 503.) Finally, in May 2009, Dr. Reddy completed 21 a Functional Capacity Questionnaire, stating that Plaintiff could 22 rarely lift and carry less than 10 pounds and never more than 23 that; his pain would frequently interfere with the attention and 24 concentration needed to perform even simple work tasks; and he 25 would miss more than four days of work a month because of his 26 impairments or medical treatment. 27 (AR 549.) The ALJ summarized some of Dr. Reddy s notes and his August, 28 September, and October 2008 disability opinions before concluding 29 1 that [t]he opinions of Dr. Reddy are given less weight since the 2 issue of disability is reserved to the Commissioner and his 3 opinions are not well supported by the entire medical evidence. 4 (AR 27-28.) It is true that a treating physician s statement on 5 an issue reserved to the Commissioner, such as the determination 6 of a claimant s ultimate disability, is not binding on the ALJ or 7 entitled to special weight. 20 C.F.R. §§ 404.1527(d)(1) ( A 8 statement by a medical source that you are disabled or unable 9 to work does not mean that we will determine that you are 10 disabled. ), 416.927(d)(1) (same); SSR 96-5p, 1996 WL 374183, at 11 *5 (treating-source opinions that a person is disabled or unable 12 to work can never be entitled to controlling weight or given 13 special significance ); see also McLeod v. Astrue, 640 F.3d 881, 14 885 (9th Cir. 2011) ( A disability is an administrative 15 determination of how an impairment, in relation to education, 16 age, technological, economic, and social factors, affects ability 17 to engage in gainful activity. ). Thus, the ALJ was not 18 obligated to accept it. 19 Moreover, as the ALJ found, the objective medical evidence 20 did not support Dr. Reddy s finding that Plaintiff s functional 21 limitations were so great as to preclude all work. Indeed, the 22 evidence that supported the ALJ s rejection of Dr. Olivares s 23 opinion also supported his rejection of Dr. Reddy s opinions, 24 which were very similar. (See AR 544 (Dr. Olivares s finding 25 that Plaintiff s pain interfered with concentration); AR 548 (Dr. 26 Olivares s finding that Plaintiff would miss more than four days 27 of work a month); AR 936 (Dr. Olivares s finding that Plaintiff 28 could never lift 10 pounds); AR 938 (Dr. Olivares s finding that 30 1 Plaintiff would miss two or three days of work a month).) 2 As Plaintiff argues (J. Stip. at 6), the ALJ failed to 3 specifically discuss Dr. Reddy s May 2009 Functional Capacity 4 Questionnaire. The ALJ, however, was not required to discuss 5 every piece of evidence. See Howard ex rel. Wolff v. Barnhart, 6 341 F.3d 1006, 1012 (9th Cir. 2003). Instead, whether the ALJ 7 was required to explain why he rejected the limitations suggested 8 by Dr. Reddy depends on whether the opinion constituted 9 significant probative evidence. Vincent ex rel. Vincent v. 10 Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984); accord Howard, 341 11 F.3d at 1012; Houghton, 2012 WL 3298201, at *1 (citation 12 omitted). Here, the limitations that Dr. Reddy listed in the May 13 2009 questionnaire were not significant or probative. First, 14 much of what Dr. Reddy reported was cumulative of his October 15 2008 opinion that Plaintiff was depressed; very limited in his 16 ability to lift heavy objects, twist, and bend; and permanently 17 disabled. (AR 502.) Second, as previously mentioned, Dr. 18 Reddy s findings were also cumulative of those in Dr. Olivares s 19 July 2009 and January 2010 opinions, which the ALJ properly 20 discounted as unsupported by the evidence as a whole. (AR 29); 21 see Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989) (ALJ 22 not required to recite magic words when rejecting evidence and 23 court may draw specific and legitimate inferences from the ALJ s 24 opinion); Mondragon v. Astrue, 364 F. App x 346, 349 (9th Cir. 25 2010) (ALJ not required to discuss doctors specific statements 26 when their substance was adequately represented by the evidence 27 the ALJ did discuss ). 28 Moreover, Dr. Reddy s finding that Plaintiff could lift and 31 1 carry less than 10 pounds rarely and never lift 10 pounds or 2 more was consistent with the ALJ s conclusion that Plaintiff 3 could perform sedentary work, which requires only occasional[] 4 lifting and carrying of very lightweight items like files, 5 ledgers, and small tools and never requires lifting more than 10 6 pounds. See 20 C.F.R. §§ 404.1567(a) (sedentary work involves 7 lifting no more than 10 pounds at a time and occasionally lifting 8 or carrying articles like docket files, ledgers, and small 9 tools ), 416.967(a) (same). Thus, while it may have made a 10 better record for the ALJ to have explicitly addressed Dr. 11 Reddy s May 2009 findings, he was not required to do so. 12 Plaintiff is not entitled to reversal on this ground. 13 3. 14 Dr. Mesiwala s opinion and Plaintiff s use of a cane 15 Plaintiff argues that the ALJ erred by rejecting Dr. 16 Mesiwala s opinion that Plaintiff sometimes needed to use a cane 17 for extended walking and by failing to consider Plaintiff s use 18 of a cane when assessing his RFC. (J. Stip. at 6-8, 10-12.) The 19 ALJ accorded less weight to Dr. Mesiwala s opinions because 20 they were not entirely consistent with his treating notes. 21 28.) (AR Indeed, x-rays of Plaintiff s lumbar spine in May 2009 22 showed good positioning of the hardware (AR 755), and x-rays in 23 August 2009 showed satisfactory post-op appearance (AR 724).10 24 In May 2009, moreover, Dr. Mesiwala noted that Plaintiff had back 25 and left-leg pain and reduced range of motion of his back but 26 27 28 10 The ALJ mistakenly stated that these x-rays were dated March 9, 2009. (AR 28 (citing agency exhibit 19F); AR 724 (agency exhibit 19F, listing date of service as 8/17/2009 ).) 32 1 also found that Plaintiff was ambulating without difficulty and 2 had 5/5 strength and grossly intact sensation and motor 3 function. (AR 755.) Those findings were consistent with Dr. 4 Reddy s May 2009 Functional Capacity Questionnaire, on which Dr. 5 Reddy did not check the box indicating that Plaintiff needed to 6 use a prescribed cane or other walking device or had any 7 walking or standing limitations. (AR 549.) In August 2009, 8 physician s assistant DeVere, who worked with Dr. Mesiwala, noted 9 that Plaintiff feels well and has no pain and had grossly 10 intact sensation and motor function and no gross motor or 11 neurologic defect. (AR 887.) Finally, in November 2009, DeVere 12 noted that Plaintiff had pain but a negative straight-leg-raising 13 test. (AR 886.) Those findings indicated that Plaintiff was 14 able to walk without difficulty and had acceptable strength and 15 motor function, in contrast to Dr. Mesiwala s finding that 16 Plaintiff needed a cane to walk. An ALJ may reject a doctor s 17 medical opinions that are inconsistent with the underlying 18 treatment notes. Connett, 340 F.3d at 875; Valentine, 574 F.3d 19 at 692-93; Rollins, 261 F.3d at 856. 20 In any event, even if the ALJ erred by rejecting Dr. 21 Mesiwala s opinion, that error was harmless. As the ALJ noted 22 (AR 28), the VE testified in response to the ALJ s questioning 23 that Plaintiff could perform sedentary work even with the use of 24 a cane, though a walker, by contrast, would preclude it: 25 Q: With regard to the hypotheticals posed if the 26 individual needed to use a cane or walker for 27 ambulation would that effect [sic] his ability to 28 do the sedentary work? 33 1 A: Yes, Your Honor, I believe it would. 2 Q: How? 3 A: . . . [O]n occasion the sedentary workers will have 4 to go retrieve materials or . . . move about to a 5 different 6 required to use a walker it s going to impede their 7 ability to perform at the normal pace. 8 believe 9 competitive employment. 10 Q: 11 work they setting. would not And be if, able if to they re So I sustain Okay, that would be a walker not a cane, is that what you re saying? 12 A: Yes. 13 Q: Using two hands? 14 A: Um-hum. 15 Q: All right. So that would impede both the past work 16 and the other work that you indicated, is that 17 right? 18 A: Yes, Your Honor. 19 (AR 197-98.) Contrary to Plaintiff s argument that the VE 20 appear[ed] to state that Plaintiff could not work if he had to 21 use a walker or a cane (J. Stip. at 11-12), the VE in fact 22 indicated that it was the use of a walker with two hands, not a 23 cane, that would be prohibitive (AR 197-98).11 Thus, Plaintiff s 24 25 26 27 28 11 Indeed, the VE s conclusion is consistent with Social Security policy, particularly because Dr. Mesiwala believed Plaintiff needed a cane only intermittently, for extended walking. See SSR 96-9p, 1996 WL 374185, at *7 (stating that individual who uses hand-held assistive device in one hand may still have the ability to perform the minimal lifting and carrying requirements of many sedentary unskilled occupations 34 1 asserted need for a cane would not preclude him from performing 2 the sedentary jobs identified by the VE and the ALJ. Any error 3 in rejecting Dr. Mesiwala s opinion was therefore harmless. See 4 Stout v. Comm r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 5 2006) (nonprejudicial or irrelevant mistakes harmless). 6 7 4. Dr. Maze s opinion Plaintiff also argues, with no citation to authority, that 8 [t]he simple fact that Dr. Maze rendered her consultative 9 opinion . . . on February 29, 2008 and the Plaintiff ended up 10 undergoing major lumbar spine surgery on September 8, 2008 should 11 in and of itself render [her opinions] invalid and of no weight 12 whatsoever. (J. Stip. at 12.) The ALJ, however, was obligated 13 to consider all medical opinion evidence. Tommasetti v. 14 Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008); see also 20 C.F.R. 15 §§ 404.1527(c) (noting that ALJ will evaluate every medical 16 opinion received using all of several factors, including 17 examining or treating relationship, supportability, 18 specialization, and consistency with the record as a whole), 19 416.927(c) (same). Moreover, Dr. Maze s opinion postdated 20 Plaintiff s stroke and his alleged disability onset date of 21 October 5, 2007, and was therefore relevant to determining his 22 disability status during the time period at issue in this case. 23 Compare Carmickle v. Comm r, Soc. Sec. Admin., 533 F.3d 1155, 24 1165 (9th Cir. 2008) ( Medical opinions that predate the alleged 25 26 with the other hand, and if a medically required hand-held 27 assistive device is needed only for prolonged ambulation . . . the unskilled sedentary occupational base will not ordinarily be 28 significantly eroded ). 35 1 onset of disability are of limited relevance especially when 2 disability is allegedly caused by a discrete event ). 3 Indeed, Dr. Maze s opinion was supported by independent 4 clinical findings and thus constituted substantial evidence upon 5 which the ALJ could properly rely. See Tonapetyan v. Halter, 242 6 F.3d 1144, 1149 (9th Cir. 2001); Andrews v. Shalala, 53 F.3d 7 1035, 1041 (9th Cir. 1995). Dr. Maze performed physical and 8 neurological examinations, noting that Plaintiff had mostly 9 normal motor functioning, reduced grip strength on the right, 10 reduced reflexes on the left, intact sensation, and normal 11 coordination, among other things. (AR 467-70.) She diagnosed 12 [h]istory of stroke and opined that Plaintiff was limited to 13 lifting 20 pounds occasionally and 10 pounds frequently and 14 standing or walking for two hours in an eight-hour day. 15 70.) (AR 469- Thus, at least as to Plaintiff s limitations resulting from 16 his October 2007 stroke, the ALJ was entitled to rely on Dr. 17 Maze s opinion rather than the other physicians . 18 Moreover, Dr. Maze s assessment may actually have been more 19 sympathetic to Plaintiff than if it had been made at a later date 20 because Plaintiff s back condition appears to have improved after 21 his lumbar-spine surgery. For example, in September 2008, Dr. 22 Mesiwala noted that the surgery would likely result in a 90% 23 improvement in pain and tingling in Plaintiff s legs (AR 678), 24 and in May 2009, Dr. Mesiwala noted that Plaintiff was ambulating 25 without difficulty and had 5/5 strength and grossly intact 26 sensation and motor function (AR 755). In August 2009, moreover, 27 a lumbar-spine x-ray showed satisfactory post-op appearance (AR 28 724), and DeVere noted that Plaintiff felt well, had no pain or 36 1 gross motor or neurologic defect, and had grossly intact 2 sensation and motor function (AR 887). 3 In any event, the ALJ accommodated the possibility that Dr. 4 Maze s opinion may not have encompassed Plaintiff s later 5 limitations by crediting it only to the extent that it was 6 consistent with the opinion of testifying medical expert Dr. 7 Ostrow. (AR 29.) The ALJ found that Dr. Ostrow s opinion was 8 consistent with the medical record, and Plaintiff does not 9 challenge that conclusion or the ALJ s reliance on Dr. Ostrow s 10 opinion. See Thomas, 278 F.3d at 957 ( The opinions of 11 non-treating or non-examining physicians may also serve as 12 substantial evidence when the opinions are consistent with 13 independent clinical findings or other evidence in the record. ); 14 Morgan v. Comm r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 15 1999) ( Opinions of a nonexamining, testifying medical advisor 16 may serve as substantial evidence when they are supported by 17 other evidence in the record and are consistent with it (citing 18 Andrews, 53 F.3d at 1041)); see 20 C.F.R. §§ 404.1527(c)(4) (ALJ 19 will generally give more weight to opinions that are more 20 consistent . . . with the record as a whole ), 416.927(c)(4) 21 (same). Dr. Ostrow, unlike the other doctors, reviewed all of 22 the medical evidence and heard Plaintiff testify before rendering 23 his opinion. See 20 C.F.R. §§ 404.1527(c)(3) (in weighing 24 medical opinions, ALJ will evaluate the degree to which these 25 opinions consider all of the pertinent evidence in [claimant s] 26 claim, including opinions of treating and other examining 27 sources ), 416.927(c)(3) (same). Moreover, the ALJ could credit 28 Dr. Ostrow s opinion because he testified at the hearing and was 37 1 subject to cross-examination. See Andrews, 53 F.3d at 1042 2 (greater weight may be given to nonexamining doctors who are 3 subject to cross-examination). Any conflict in the properly 4 supported medical-opinion evidence was therefore the sole 5 province of the ALJ to resolve. See id. at 1041. Plaintiff is 6 not entitled to reversal on this ground. 7 B. 8 9 The ALJ s Errors in Assessing Plaintiff s Credibility Do Not Warrant Reversal Plaintiff argues that the ALJ failed to provide clear and 10 convincing reasons for discounting his credibility. 11 17-20.) (J. Stip. at Because the ALJ did provide clear and convincing reasons 12 supporting his evaluation of Plaintiff s testimony and they were 13 supported by substantial evidence in the record, reversal is not 14 warranted on this basis. 15 An ALJ s assessment of pain severity and claimant 16 credibility is entitled to great weight. See Weetman v. 17 Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. Heckler, 779 18 F.2d 528, 531 (9th Cir. 1986). [T]he ALJ is not required to 19 believe every allegation of disabling pain, or else disability 20 benefits would be available for the asking, a result plainly 21 contrary to 42 U.S.C. § 423(d)(5)(A). Molina v. Astrue, 674 22 F.3d 1104, 1112 (9th Cir. 2012) (internal quotation marks and 23 citation omitted). In evaluating a claimant s subjective symptom 24 testimony, the ALJ engages in a two-step analysis. 25 Lingenfelter, 504 F.3d at 1035-36. See First, the ALJ must 26 determine whether the claimant has presented objective medical 27 evidence of an underlying impairment [that] could reasonably be 28 expected to produce the pain or other symptoms alleged. 38 Id. at 1 1036 (internal quotation marks omitted). If such objective 2 medical evidence exists, the ALJ may not reject a claimant s 3 testimony simply because there is no showing that the impairment 4 can reasonably produce the degree of symptom alleged. 5 80 F.3d at 1282 (emphasis in original). Smolen, When the ALJ finds a 6 claimant s subjective complaints not credible, the ALJ must make 7 specific findings that support the conclusion. 8 Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). See Berry v. Absent affirmative 9 evidence of malingering, those findings must provide clear and 10 convincing reasons for rejecting the claimant s testimony. 11 Lester, 81 F.3d at 834. If the ALJ s credibility finding is 12 supported by substantial evidence in the record, the reviewing 13 court may not engage in second-guessing. Thomas, 278 F.3d at 14 959. 15 In an Exertional Daily Activity Questionnaire dated December 16 17, 2007, Plaintiff stated that he gets tired walking short 17 distances, wakes up with nausea and dizziness, and has headaches; 18 he also claimed that the left side of his head gets hot with 19 fever. (AR 332.) Plaintiff stated that he tried to vacuum, 20 dust, or do dishes when he could, but he also said that he 21 couldn t do much anymore and that when he tried to vacuum, he 22 would lose his balance. (AR 332-33.) He could walk only a 23 short distance and stand for 10 minutes. (AR 332, 334.) He 24 could lift a grocery bag once every two weeks and carry laundry 25 20 feet twice a week. 26 told him not to drive. 27 (AR 333.) He said that his doctor had (Id.) In a Disability Report Appeal dated May 16, 2008, 28 Plaintiff stated that his slurred speech affected his 39 1 communication with others and that he had headaches daily and 2 nausea and vomiting throughout the day, memory and vision loss, 3 dizziness, tremors, urination problems, right-side numbness, 4 swelling on the left side of his head, and fatigue. (AR 345.) 5 He said he could not walk far or sit or stand for long periods 6 of time and had been given a cane and a walker by his doctor and 7 a physical therapist. (Id.) He indicated that he needed help 8 showering and getting his medications and couldn t cook or clean. 9 (AR 353.) 10 In a Function Report dated June 2, 2008, Plaintiff wrote 11 that he did not do chores because he was not able to bend and 12 would tire fast if he tried to dust or vacuum. (AR 377.) He 13 said that he did not do house or yard work because it was hard 14 to do with cane or walker. (AR 378.) Plaintiff said he did not 15 go outside alone because he had fallen on account of TIA mini 16 seizures. (Id.) Plaintiff wrote that his conditions affected 17 his ability to lift, squat, bend, stand, reach, walk, sit, kneel, 18 talk, climb stairs, see, remember, complete tasks, concentrate, 19 understand, follow instructions, and use his hands. (AR 380.) 20 He could walk for about 10 minutes before he had to rest for 10 21 to 15 minutes. (Id.) He said that stress made his head hurt 22 and that he used a walker and cane, which were prescribed in 23 October 2007. 24 (AR 381.) At the September 2009 hearing, Plaintiff testified that his 25 low-back condition prevented him from sitting for more than 15 or 26 20 minutes at a time. (AR 213.) He said that he had suffered a 27 stroke that had affected his memory, peripheral vision, and 28 hearing. (AR 214.) He said that he was five feet, six inches 40 1 tall and weighed 260 pounds, whereas his average weight had been 2 316 pounds. (AR 214-15.) Plaintiff testified that his back pain 3 stayed the same after his surgery and that he used a cane for 4 standing and walking every day, as prescribed by Drs. Mesiwala 5 and Reddy. (AR 216.) He testified that his fibromyalgia caused 6 an aching pain throughout the whole body and that he usually 7 took about a two-hour nap each day because of the pain and 8 because his medication made him tired. (AR 217-18.) He said 9 that he had TIAs three to four times a week even when taking his 10 medication, during which he had a seizure feeling, his body 11 would shake, and he would black out for a brief moment. 12 218.) (AR Plaintiff testified that he didn t do any household 13 chores, could walk about a block and stand for only 15-20 14 minutes, and could carry at most the equivalent of a jug of milk. 15 (AR 219-21.) 16 Reversal is not warranted based on the ALJ s alleged failure 17 to make proper credibility findings or properly consider 18 Plaintiff s subjective symptoms. As an initial matter, the ALJ s 19 RFC assessment is consistent with much of Plaintiff s testimony. 20 For example, the ALJ accommodated Plaintiff s claim that he could 21 lift only the equivalent of a jug of milk by limiting him to 22 sedentary work, which requires occasionally lifting lightweight 23 objects like files or small tools and never lifting objects that 24 weigh more than 10 pounds. (AR 26.) To some extent, the ALJ 25 also accommodated Plaintiff s complaints of difficulty walking 26 and back pain by limiting him to, among other things, only two 27 hours of walking in an eight-hour day, only occasionally moving 28 his neck, never using his arms above shoulder height, never using 41 1 foot pedals, never working at unprotected heights, and never 2 climbing. 3 (Id.) The ALJ provided clear and convincing reasons for rejecting 4 Plaintiff s subjective symptom testimony to the extent it was 5 inconsistent with the RFC assessment.12 (AR 26-30.) The ALJ 6 noted that Plaintiff alleged that his slurred speech affects 7 communication with others (AR 30, 345) but that Plaintiff spoke 8 clearly in both hearings in September 2009 and January 2010 (AR 9 30). The ALJ also noted that in October 2008, Dr. Mesiwala 10 observed that Plaintiff was alert with fluent speech. (AR 30, 11 656.) The ALJ was entitled to rely on his personal observation 12 and conflicts with the medical evidence to discount Plaintiff s 13 testimony. See Orn, 495 F.3d at 639 (ALJ s personal observations 14 may be used in overall evaluation of credibility but cannot form 15 sole basis for credibility determination); Thomas, 278 F.3d at 16 960 (ALJ properly relied on claimant s demeanor at the hearing 17 in rejecting her credibility); Johnson v. Shalala, 60 F.3d 1428, 18 1434 (9th Cir. 1995) (holding that contradictions between 19 claimant s testimony and the relevant medical evidence provided 20 clear and convincing reasons for ALJ to reject plaintiff s 21 22 23 24 25 26 27 28 12 Dr. Maze s finding of a component of non-organic overlay in [Plaintiff s] clinical presentation (AR 469) may be evidence of malingering that would relieve the ALJ of the burden of providing clear and convincing reasons for discounting Plaintiff s credibility. Lester, 81 F.3d at 834; Bagoyan Sulakhyan v. Astrue, 456 F. App x 679, 682 (9th Cir. 2011) ( When there is affirmative evidence of malingering, which is present in this case, the ALJ is relieved of the burden of providing specific, clear, and convincing reasons to discount claimant s testimony. ). Nevertheless, as discussed herein, the ALJ provided clear and convincing reasons for not crediting Plaintiff s subjective symptom testimony. 42 1 subjective symptom testimony); SSR 96 7p, 1996 WL 374186, at *5 2 ( [T]he adjudicator may also consider his or her own recorded 3 observations of the individual as part of the overall evaluation 4 of the credibility of the individual s statements. ). 5 The ALJ also found that Plaintiff s longitudinal medical 6 history was not consistent with his allegation of disability. 7 (AR 27.) Specifically, Plaintiff alleged that he did not go 8 outside alone because of mini TIAs, but the ALJ correctly noted 9 that after [Plaintiff s] hospitalization in February 2008, no 10 evidence showed further hospitalization due to TIAs or a 11 sustained series of recent TIA attacks that have caused 12 additional dysfunction. (AR 25, 27, 30.) The evidence shows 13 that Plaintiff suffered from after-effects of his October 2007 14 stroke, at least for a period of time, but nothing shows that any 15 alleged subsequent TIA seizures had similar effects. After 16 February 2008, Drs. Reddy s and Olivares s treatment notes 17 occasionally noted that Plaintiff suffered from TIAs, seizures, 18 questionable seizures, or transient cerebral ischemia, but they 19 never advised Plaintiff to seek emergency treatment or recorded 20 any lasting results of those reported events. 21 03, 725, 727.) (AR 150-51, 502- Drs. Reddy and Olivares recommended only that 22 Plaintiff see a neurologist, which apparently he never did. 23 158, 725.) (AR Moreover, after Plaintiff s February 2008 24 hospitalization, two brain CTs were normal (AR 130, 839), and by 25 May 2009, Dr. Mesiwala noted that Plaintiff had normal strength 26 and grossly intact sensation and motor function (AR 755). In 27 August 2009, moreover, physician s assistant DeVere noted that 28 Plaintiff had grossly intact sensation and motor function with no 43 1 gross motor or neurologic deficit. 2 (AR 887.) Plaintiff also claimed that he had nausea and vomiting 3 throughout the day, but the ALJ correctly noted that none of 4 Plaintiff s treating physicians had noted those symptoms. 5 30.) (AR Elsewhere in his opinion, moreover, the ALJ noted that 6 Plaintiff s fibromyalgia diagnosis was not well documented 7 because he was not evaluated by a rheumatologist and no 8 physician indicated number of tender points to confirm the 9 diagnosis ; further, Plaintiff stated that he experienced 10 depression but was never treated by a specialist nor was he 11 hospitalized due to psychiatric problems. 13 (AR 25.) The ALJ 12 permissibly relied upon a lack of medical evidence as one factor 13 in his credibility evaluation. See Carmickle, 533 F.3d at 1161 14 ( Contradiction with the medical record is a sufficient basis for 15 rejecting the claimant s subjective testimony. ); Lingenfelter, 16 504 F.3d at 1040 (in determining credibility, ALJ may consider 17 whether the alleged symptoms are consistent with the medical 18 evidence ); Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) 19 ( Although lack of medical evidence cannot form the sole basis 20 for discounting pain testimony, it is a factor that the ALJ can 21 consider in his credibility analysis. ); Kennelly v. Astrue, 313 22 F. App x 977, 979 (9th Cir. 2009) (same). Indeed, that reason is 23 particularly persuasive here, because a lack of supporting 24 medical evidence persisted even though the ALJ continued the 25 hearing to allow for the submission of additional medical 26 27 28 13 The ALJ therefore found that Plaintiff s fibromyalgia and depression were nonsevere. (AR 25.) Plaintiff does not challenge those determinations. 44 1 records. 2 (See AR 221-24, 230.) Some of the ALJ s reasons for discounting Plaintiff s 3 credibility, however, may not be legally sufficient. First, the 4 ALJ found that in the May 2008 disability report, Plaintiff had 5 complained of weakness and numbness in his right side of the 6 body but that the record showed no neurologic deficits in terms 7 of strength and sensation. (AR 30.) But the portion of the 8 record cited by the ALJ, Dr. Mesiwala s October 7, 2008 note, 9 actually stated that Plaintiff had no new neurological deficits, 10 in terms of the lower extremity strength and sensation. 11 (emphasis added).) (AR 656 Dr. Mesiwala s previous note, in May 2008, 12 stated that Plaintiff had decreased sensation and 4+/5 strength 13 on the right and 5/5 strength on the left, which he attributed to 14 Plaintiff s October 2007 stroke. (AR 110-11.) Thus, Dr. 15 Mesiwala s subsequent finding of no new neurological deficits 16 does not support the ALJ s conclusion that Plaintiff s asserted 17 symptoms conflicted with the medical records. Although Dr. 18 Mesiwala later found that Plaintiff had normal strength and 19 grossly intact sensation and motor function (AR 755), other, 20 earlier records supported Plaintiff s claim of right-side 21 weakness (see, e.g., AR 110, 157, 445, 469, 658). 22 The ALJ also discounted Plaintiff s credibility because 23 Plaintiff claimed that he does not perform any of the household 24 chores due to inability to bend but also stated he vacuums. 25 (AR 29-30.) In the function report cited by the ALJ, however, 26 Plaintiff stated that he did not do chores but also wrote, on the 27 same page, I have tried to dust, vacuum but I tire fast. 28 377.) Plaintiff s statement that he had tried to vacuum, 45 (AR 1 apparently unsuccessfully, was not inconsistent with his asserted 2 inability to perform chores. 3 Finally, the ALJ discounted Plaintiff s credibility because 4 he claimed to use a cane and walker that were prescribed in 5 October 2007 (AR 30, 381), but the record was devoid of actual 6 prescription of a cane or a walker and Plaintiff was noted to be 7 ambulating without assistance when he was discharged from the 8 hospital in October 2007 (AR 30, 424). Indeed, it appears that 9 no medical professional advised Plaintiff to use an assistive 10 device until September 2008, when a physical therapist noted that 11 Plaintiff would be using a walker while recovering from back 12 surgery. (AR 731, 803.) Although the ALJ correctly found that 13 no prescription appeared in the record and that Plaintiff was 14 apparently not using a cane in October 2007, as he claimed, Drs. 15 Mesiwala and Olivares both later stated that Plaintiff needed to 16 use an assistive device to walk, at least intermittently (AR 553, 17 934, 936), and the record reflects that Plaintiff was using 18 assistive devices at his medical appointments (AR 111, 469). 19 Because Plaintiff s use of an assistive device is documented in 20 the record, at least as of late 2008, the fact that it does not 21 contain an actual prescription may not be a clear and convincing 22 reason for discounting Plaintiff s credibility, although 23 Plaintiff was apparently wrong about when he started using one. 24 Compare Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999) 25 (ALJ properly discounted credibility when claimant walked slowly 26 and used a cane at the hearing even though no doctors indicated 27 he used or needed assistive device and two doctors noted he did 28 not need one). 46 1 Although the ALJ s errors are troubling, the Court concludes 2 that they were harmless because the ALJ provided other valid 3 bases for his credibility determination. See Bray v. Comm r of 4 Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009); Carmickle, 5 533 F.3d at 1162. The ALJ permissibly discounted Plaintiff s 6 credibility because his complaints of slurred speech conflicted 7 with his presentation at the hearing and the medical evidence and 8 because Plaintiff s subjective symptom complaints were not 9 supported by the medical evidence. Because the ALJ s credibility 10 finding is supported by substantial evidence, the Court may not 11 engage in second-guessing. 12 omitted). Thomas, 278 F.3d at 959 (citation Plaintiff is not entitled to reversal on this claim. 13 VII. CONCLUSION 14 Consistent with the foregoing, and pursuant to sentence four 15 of 42 U.S.C. § 405(g),14 IT IS ORDERED that judgment be entered 16 AFFIRMING the decision of the Commissioner and dismissing this 17 action with prejudice. IT IS FURTHER ORDERED that the Clerk 18 serve copies of this Order and the Judgment on counsel for both 19 parties. 20 21 22 DATED: February 26, 2013 23 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 24 25 26 27 28 14 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. 47

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