Karen Mildred Pedregon v. Michael J. Astrue, No. 5:2012cv00361 - Document 20 (C.D. Cal. 2013)

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

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 KAREN MILDRED PEDREGON, 10 Plaintiff, 11 vs. 12 13 CAROLYN W. COLVIN, Acting Commissioner of Social Security,1 14 Defendant. 15 ) Case No. EDCV 12-0361-JPR ) ) ) MEMORANDUM OPINION AND ORDER ) AFFIRMING THE COMMISSIONER ) ) ) ) ) ) ) 16 17 I. 18 PROCEEDINGS Plaintiff seeks review of the Commissioner s final decision 19 denying her application for Social Security disability insurance 20 benefits ( DIB ). The parties consented to the jurisdiction of 21 the undersigned U.S. Magistrate Judge pursuant to 28 U.S.C. 22 § 636(c). This matter is before the Court on the parties Joint 23 Stipulation, filed February 8, 2013, which the Court has taken 24 under submission without oral argument. For the reasons stated 25 26 1 On February 14, 2013, Colvin became the Acting 27 Commissioner of Social Security. Pursuant to Federal Rule of Civil Procedure 25(d), the Court therefore substitutes Colvin for Michael 28 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 7, 1961, and has a 12th-grade 5 education. (Administrative Record ( AR ) 37, 123.) She 6 previously worked in membership sales and as a cashier/checker 7 and material handler. 8 (AR 25, 56-57.) On June 27, 2008, Plaintiff filed an application for DIB. 9 (AR 62, 123-25.) Plaintiff alleged that she had been unable to 10 work since January 23, 2007,2 because of bilateral plantar 11 fasciitis and neck and back pain. (AR 64, 123.) Her application 12 was denied initially, on September 18, 2008 (AR 62, 64-68), and 13 upon reconsideration, on January 29, 2009 (AR 63, 69-73). 14 On March 12, 2009, Plaintiff requested a hearing before an 15 Administrative Law Judge ( ALJ ). (AR 90-91.) A hearing was 16 held on May 20, 2010, at which Plaintiff, who was represented by 17 counsel, appeared and testified. 18 expert ( VE ) also testified. (AR 32-56.) (AR 55-59.) A vocational In a written decision 19 issued on July 12, 2010, the ALJ determined that Plaintiff was 20 not disabled. (AR 19-26.) On July 19, 2010, Plaintiff requested 21 review of the ALJ s decision. (AR 15.) On January 13, 2012, the 22 Appeals Council denied Plaintiff s request for review. (AR 1-5.) 23 This action followed. 24 III. STANDARD OF REVIEW 25 Pursuant to 42 U.S.C. § 405(g), a district court may review 26 the Commissioner s decision to deny benefits. The ALJ s findings 27 2 Plaintiff subsequently amended her alleged disability (AR 53.) 28 onset date to March 1, 2008. 2 1 and decision should be upheld if they are free of legal error and 2 supported by substantial evidence based on the record as a whole. 3 § 405(g); Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 4 1420, 1427, 28 L. Ed. 2d 842 (1971); Parra v. Astrue, 481 F.3d 5 742, 746 (9th Cir. 2007). Substantial evidence means such 6 evidence as a reasonable person might accept as adequate to 7 support a conclusion. Richardson, 402 U.S. at 401; Lingenfelter 8 v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 9 a scintilla but less than a preponderance. It is more than Lingenfelter, 504 10 F.3d at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 11 882 (9th Cir. 2006)). To determine whether substantial evidence 12 supports a finding, the reviewing court must review the 13 administrative record as a whole, weighing both the evidence that 14 supports and the evidence that detracts from the Commissioner s 15 conclusion. 16 1996). Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. If the evidence can reasonably support either affirming 17 or reversing, the reviewing court may not substitute its 18 judgment for that of the Commissioner. Id. at 720-21. 19 IV. THE EVALUATION OF DISABILITY 20 People are disabled for purposes of receiving Social 21 Security benefits if they are unable to engage in any substantial 22 gainful activity owing to a physical or mental impairment that is 23 expected to result in death or which has lasted, or is expected 24 to last, for a continuous period of at least 12 months. 42 25 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 26 (9th Cir. 1992). 27 A. 28 The ALJ follows a five-step sequential evaluation process in The Five-Step Evaluation Process 3 1 assessing whether a claimant is disabled. 20 C.F.R. 2 § 404.1520(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th 3 Cir. 1995) (as amended Apr. 9, 1996). In the first step, the 4 Commissioner must determine whether the claimant is currently 5 engaged in substantial gainful activity; if so, the claimant is 6 not disabled and the claim must be denied. § 404.1520(a)(4)(i). 7 If the claimant is not engaged in substantial gainful activity, 8 the second step requires the Commissioner to determine whether 9 the claimant has a severe impairment or combination of 10 impairments significantly limiting his ability to do basic work 11 activities; if not, the claimant is not disabled and the claim 12 must be denied. § 404.1520(a)(4)(ii). If the claimant has a 13 severe impairment or combination of impairments, the third step 14 requires the Commissioner to determine whether the impairment or 15 combination of impairments meets or equals an impairment in the 16 Listing of Impairments ( Listing ) set forth at 20 C.F.R., Part 17 404, Subpart P, Appendix 1; if so, disability is conclusively 18 presumed and benefits are awarded. § 404.1520(a)(4)(iii). If 19 the claimant s impairment or combination of impairments does not 20 meet or equal an impairment in the Listing, the fourth step 21 requires the Commissioner to determine whether the claimant has 22 sufficient residual functional capacity ( RFC )3 to perform his 23 past work; if so, the claimant is not disabled and the claim must 24 be denied. § 404.1520(a)(4)(iv). The claimant has the burden of 25 proving that he is unable to perform past relevant work. Drouin, 26 27 28 3 RFC is what a claimant can still do despite existing exertional and nonexertional limitations. 20 C.F.R. § 404.1545; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 4 1 966 F.2d at 1257. If the claimant meets that burden, a prima 2 facie case of disability is established. Id. If that happens or 3 if the claimant has no past relevant work, the Commissioner then 4 bears the burden of establishing that the claimant is not 5 disabled because he can perform other substantial gainful work 6 available in the national economy. § 404.1520(a)(4)(v). That 7 determination comprises the fifth and final step in the 8 sequential analysis. § 404.1520; Lester, 81 F.3d at 828 n.5; 9 Drouin, 966 F.2d at 1257. 10 B. 11 At step one, the ALJ found that Plaintiff had not engaged in The ALJ s Application of the Five-Step Process 12 any substantial gainful activity since March 1, 2008, her amended 13 alleged onset date. (AR 21.) At step two, the ALJ concluded 14 that Plaintiff had the severe impairments of history of 15 bilateral plantar fasciitis; and degenerative disk disease of the 16 cervical spine, status post fusion. (Id. (citation omitted).) 17 At step three, the ALJ determined that Plaintiff s impairments 18 did not meet or equal any of the impairments in the Listings, 19 focusing specifically on Listing 1.00. (AR 21-22.) At step 20 four, the ALJ found that Plaintiff retained the RFC to perform 21 light work4 but was limited to occasionally performing postural 22 23 24 25 26 27 28 4 Light work is defined as involving lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. 20 C.F.R. § 404.1567(b). The regulations further specify that [e]ven though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. Id. A person capable of light work is also capable of sedentary work, which involves lifting no more than 10 pounds at a time and occasionally lifting or carrying [small articles] and may involve 5 1 activities; no ladders, ropes or scaffolds; occasional over 2 shoulder/over head reaching bilaterally; no unprotected heights; 3 no dangerous machinery; and she must avoid extreme cold and 4 vibration. (AR 22.) Based on the VE s testimony, the ALJ 5 concluded that Plaintiff could perform her past relevant work in 6 membership sales and as a cashier. (AR 25.) Accordingly, the 7 ALJ determined that Plaintiff was not disabled without reaching 8 step five of the evaluation process. 9 V. 10 (AR 26.) RELEVANT FACTS Plaintiff underwent two surgeries to treat her plantar 11 fasciitis, in 1999 and 2000, and continued to work on modified 12 duty for several years after the surgeries. (AR 417, 454.) Her 13 symptoms increased in 2007, and she received a series of off-work 14 orders from her treating podiatrist, Dr. Glenn Ocker, between 15 January 2007 and January 2008. 16 198-206, 208-09.) (AR 180-81, 185, 189, 192, 196, At the hearing, Plaintiff testified that 17 between January 2007 and March 1, 2008, her alleged onset date, 18 she would have been able to work in a seated job. 19 (AR 40.) In March 2008, Plaintiff began experiencing neck pain and 20 was initially treated with pain medication and physical therapy. 21 (AR 303-06, 419-21.) On April 21, 2008, Plaintiff was evaluated 22 by Dr. Sachin Patel for right shoulder pain, and he treated her 23 with a cortisone injection. (AR 423-24.) On May 7, 2008, 24 Plaintiff reported to Dr. Patel that her shoulder impingement was 25 1000 times better after the cortisone injection. (AR 422.) 26 Dr. Patel was happy with her progress and opined that Plaintiff 27 28 occasional walking or standing. § 404.1567(a)-(b). 6 1 might need another cortisone injection in the future if her 2 symptoms recurred. 3 (Id.) On July 18, 2008, an MRI of Plaintiff s cervical spine 4 revealed mild to moderate central canal stenosis and severe right 5 neural foramina stenosis at C4-5 secondary to a six-millimeter 6 right paracentral disc herniation/extrusion; minimal to mild 7 central canal stenosis and minimal to mild left neural foraminal 8 stenosis at C5-6 secondary to a three-millimeter left paracentral 9 broad-based disc protrusion; and minimal central canal stenosis 10 at C3-4 secondary to a two-millimeter bulging of the disc. 11 338-39.) (AR Plaintiff continued conservative treatment for her neck 12 pain for approximately six months, but her symptoms did not 13 improve. (AR 334.) As a result, on October 21, 2008, Plaintiff 14 underwent an anterior cervical discectomy, arthrodesis or spinal 15 fusion, and the insertion of titanium plates at C4-5 performed by 16 Dr. Jose Rodriguez, Plaintiff s treating neurosurgeon. 17 31.) (AR 329- On November 4, 2008, Plaintiff reported that her neck pain 18 had improved since surgery. (AR 332.) She had limited range of 19 motion in her right shoulder secondary to pain, with weakness in 20 the biceps but normal triceps function. 21 (Id.) On November 24, 2008, x-rays showed straightening of 22 Plaintiff s cervical spine, a plate and multiple screws through 23 C4-5 with bone dowel, status post-spinal fusion, mild 24 degenerative changes at C5-6 and C6-7, and mild levoscoliosis of 25 the cervical spine; the rest of the bones appeared unremarkable. 26 (AR 341.) Following surgery, Plaintiff continued conservative 27 treatment with Dr. Rodriguez, including physical therapy and pain 28 medications. (AR 380-89, 392-93.) 7 1 On September 18, 2008, consulting physician R. Bitonte 2 reviewed Plaintiff s medical records and completed a physical RFC 3 assessment; he opined that Plaintiff was capable of performing 4 light work except that she could only occasionally climb, stoop, 5 kneel, crouch, or crawl, and she should never balance. 6 26.) (AR 320- Moreover, Dr. Bitonte stated that Plaintiff s ability to 7 reach was limited and she should avoid concentrated exposure to 8 extreme cold, vibration, fumes, and hazards. (AR 322-23.) Dr. 9 Bitonte s findings were affirmed by consulting physician S. 10 Laiken on January 27, 2009. 11 (AR 363-64.) On January 12, 2010, Plaintiff was examined by consulting 12 orthopedist Dr. Bunsri Sophon. (AR 367-72.) Dr. Sophon found 13 that Plaintiff was obese but not in any acute distress; her 14 posture and gait were normal; and examination of her cervical 15 spine revealed a well-healed non-tender 4 cm right transverse 16 surgical scar on the neck and no evidence of tenderness or 17 muscle spasm, with 30/70-degree flexion, 30/60-degree extension, 18 20/45-degree lateral bending bilaterally, and 45/80-degree 19 rotation bilaterally. (AR 369-70.) Further, her thoracic and 20 lumbar spine showed no evidence of tenderness or muscle spasm, 21 with 60/90-degree flexion, 25/30-degree extension, and 25/2522 degree lateral bending bilaterally; her straight-leg-raising test 23 was normal; her upper and lower extremities were all normal, with 24 no decreased range of motion and no deformity, swelling, palpable 25 mass, inflamation, or tenderness; and her neurological 26 examination and motor strength were normal. (AR 370-71.) Dr. 27 Sophon diagnosed Plaintiff with lumbosacral strain and cervical 28 disc disease, status post-C4-5 spinal fusion. 8 (AR 372.) 1 Finally, Dr. Sophon concluded that Plaintiff was capable of 2 lifting and carrying 50 pounds occasionally, 20 pounds 3 frequently, and is restricted to sitting, standing and walking 4 6 hours out of an 8-hour workday. 5 (Id.) On February 1, 2010, Dr. Rodriguez reported that Plaintiff 6 was in good spirits and her cervical spine had full range of 7 motion. (AR 378-79.) She still experienced some pain, but it 8 was reduced by physical therapy, massage, and the application of 9 heat and ice. (AR 378.) Dr. Rodriguez compared an MRI done on 10 December 9, 2009, to her old MRI and noted resolution of her 11 previous herniated disc at C4-5. (AR 379.) He also noted his 12 belief that Plaintiff had a right paracentral disc herniation at 13 C5-6 and a small disc protrusion at C3-4. (Id.) On April 5, 14 2010, Plaintiff reported that on a scale of one to 10, her pain 15 was a four. (AR 376.) The range of motion of her cervical spine 16 had some limitations, but she had full range of motion in her 17 right shoulder girdle. (Id.) Dr. Rodriguez opined that no 18 further surgery was recommended and Plaintiff should continue 19 with conservative care. 20 (AR 377.) On April 19, 2010, Dr. William Landrey, Plaintiff s treating 21 podiatrist, noted that x-rays of Plaintiff s feet were positive 22 for both plantar calcaneal spurs and posterior spurs; an 23 excessive amount of pronation was evident on the right; and the 24 talus was anteriorly displaced as well as excessively closer to 25 the median plane of the body than normal compared to the 26 calcaneus. (AR 455.) The same day, Dr. Landrey completed a 27 Medical Statement Regarding Foot Problem for Social Security 28 Disability Claim, on which he noted that Plaintiff had had 9 1 painful feet for over 10 years and had been diagnosed with 2 plantar fasciitis, achilles tendonitis, and heel spurs. 3 456.) (AR He opined that Plaintiff could stand or walk for less than 4 90 minutes in an eight-hour day for up to 30 minutes at a time 5 and that she needed to elevate her legs occasionally in the 6 morning and most of the time in the afternoon. (AR 456-57.) 7 Moreover, she could sit for up to two hours in an eight-hour day 8 and had to be able to walk around every hour during the day for 9 about 15 minutes at a time. (AR 457.) Dr. Landrey also 10 indicated that Plaintiff would be unable to walk one block at a 11 reasonable pace on uneven or unstable ground and had mild foot 12 pain that increased to severe with prolonged weight-bearing. 13 (Id.) Additionally, Plaintiff needed 15-minute breaks every hour 14 during an eight-hour workday and could lift 10 pounds 15 occasionally and 20 pounds rarely. (Id.) Dr. Landrey further 16 opined that Plaintiff could rarely twist, stoop, or crouch but 17 should never climb ladders or stairs. (AR 458.) Finally, he 18 stated that Plaintiff would likely have good days and bad days 19 and miss more than four days a month because of her impairments. 20 (Id.) 21 On April 23, 2010, four days after Dr. Landrey had filled 22 out his medical statement, Dr. David Tran, who had been treating 23 Plaintiff for about a year (AR 44), completed a Physical Residual 24 Functional Capacity Questionnaire and indicated that Plaintiff 25 had had neck pain since October 2008, low-back pain since 2001, 26 and bilateral plantar fasciitis since 1998. (AR 460-64.) He 27 stated that Plaintiff s diagnoses included neck pain with 28 cervical radiculopathy, chronic low-back pain, bilateral plantar 10 1 fasciitis, depression, and anxiety. (AR 460.) Dr. Tran opined 2 that Plaintiff s prognosis was poor and noted that she 3 experienced symptoms of chronic pain in her neck, low back, and 4 feet, as well as headaches, dizziness, and fatigue. (Id.) He 5 also stated that Plaintiff s treatment had consisted of 6 medications, and psychological symptoms affecting her physical 7 condition included depression, anxiety, personality disorder, and 8 sleep deprivation. (AR 460-61.) Moreover, Dr. Tran opined that 9 Plaintiff frequently experienced pain that would interfere with 10 her attention and concentration and was incapable of performing 11 even a low-stress job because stress triggered her pain and 12 headaches. (AR 461.) He explained that Plaintiff could sit or 13 stand for 15 minutes at a time; sit, stand, or walk for up to two 14 hours in an eight-hour workday; and rarely lift and carry less 15 than ten pounds. (AR 461-62.) In addition, Dr. Tran stated that 16 Plaintiff could rarely look down, occasionally turn her head 17 right or left and look up, and frequently hold her head in a 18 static position. (AR 463.) He also provided that she could 19 rarely twist, stoop, or crouch, never climb ladders, and 20 occasionally climb stairs. (Id.) Finally, for several of the 21 questions on the form regarding Plaintiff s specific functional 22 limitations, Dr. Tran simply wrote, unable to work now. (AR 23 462-63.) 24 In his decision, the ALJ gave limited weight to the 25 opinions of Drs. Landrey and Tran because both opinions were (1) 26 unsupported by any treatment notes; (2) not supported by the 27 objective medical evidence ; (3) inconsistent with one another 28 despite being opined days apart ; (4) inconsistent with the 11 1 claimant s activities of daily living and her reports of reduced 2 pain ; (5) not consistent with the opinion that only 3 conservative care is needed ; and (6) inconsistent with findings 4 of Dr. Sophon who examined the claimant three months earlier. 5 (AR 24.) The ALJ also found that neither doctor specialized in 6 psychology and that there was no evidence of a medically 7 determinable mental impairment. (Id.) The ALJ gave great 8 weight to Dr. Sophon s opinion because he had the opportunity 9 to examine the claimant, reviewed some of her records, and is a 10 qualified expert in the field in which his opinions are based 11 upon. (AR 25.) The ALJ also gave great weight to the 12 reviewing nonexamining physicians opinions because they 13 reviewed the claimant s records and are familiar with the 14 [Social Security Administration s] rules and regulations. 15 VI. DISCUSSION 16 (Id.) Plaintiff alleges that the ALJ erred by (1) failing to 17 consider the severity of Plaintiff s anxiety, depression, weight, 18 right-shoulder impingement, and lower-back injury with disc 19 damage; (2) failing to properly assess whether her condition met 20 or equaled a Listing; (3) determining Plaintiff could perform her 21 past relevant work; (4) failing to consider all the relevant 22 factors in assessing Plaintiff s RFC; (5) failing to consider 23 whether Plaintiff was disabled under the Medical Vocational 24 Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2; and (6) 25 finding that Plaintiff s subjective allegations were not fully 26 credible. (J. Stip. at 3-4, 10-12, 17-20, 22-24, 33-36, 38, 44- 27 28 12 1 45.) None of these contentions warrant reversal.5 2 A. The ALJ Did Not Err in Determining Plaintiff s RFC 3 Plaintiff contends that the ALJ erred in determining that 4 she retained the RFC to perform a limited range of light work. 5 (J. Stip. at 22-24, 33-34.) Specifically, Plaintiff argues that 6 the ALJ erred by (1) failing to account for the fact [Plaintiff] 7 had to take leave from work prior to her alleged onset date (J. 8 Stip. at 23), (2) rejecting the opinions of her treating 9 physicians, Drs. Landrey and Tran (J. Stip. at 24, 33-34), and 10 (3) neglecting to consider testimony from the [VE] that 11 supported a finding of disabled (J. Stip. at 24). 12 13 1. Applicable law A district court must uphold an ALJ s RFC assessment when 14 the ALJ has applied the proper legal standard and substantial 15 evidence in the record as a whole supports the decision. 16 v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). Bayliss The ALJ must 17 have considered all the medical evidence in the record and 18 explain in [his or her] decision the weight given to . . . [the] 19 opinions from treating sources, nontreating sources, and other 20 nonexamining sources. 20 C.F.R. § 404.1527(e)(2)(ii). In 21 making an RFC determination, the ALJ may consider those 22 limitations for which there is support in the record and need not 23 consider properly rejected evidence or subjective complaints. 24 See Batson v. Comm r of the Soc. Sec. Admin., 359 F.3d 1190, 25 1197 98 (9th Cir. 2004) ( ALJ was not required to incorporate 26 27 28 5 The Court has rearranged the order in which it addresses Plaintiff s claims from that followed by the parties, to avoid repetition and for other reasons. 13 1 evidence from the opinions of the claimant s treating physicians, 2 which were permissibly discounted ); Bayliss, 427 F.3d at 1217 3 (upholding ALJ s RFC determination because the ALJ took into 4 account those limitations for which there was record support that 5 did not depend on [claimant s] subjective complaints ). 6 An ALJ does not need to adopt any specific medical source s 7 RFC opinion as his or her own. Vertigan v. Halter, 260 F.3d 8 1044, 1049 (9th Cir. 2001) ( It is clear that it is the 9 responsibility of the ALJ, not the claimant s physician, to 10 determine residual functional capacity. ); 20 C.F.R. 11 § 404.1546(c) ( [T]he administrative law judge . . . is 12 responsible for assessing your residual functional capacity. ). 13 The ALJ need not accept the opinion of any physician, including 14 a treating physician, if that opinion is brief, conclusory, and 15 inadequately supported by clinical findings. Thomas v. 16 Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); accord Batson, 359 17 F.3d at 1195. The Court must consider the ALJ s decision in the 18 context of the entire record as a whole, and if the evidence 19 is susceptible to more than one rational interpretation, the 20 ALJ s decision should be upheld. Ryan v. Comm r of Soc. Sec., 21 528 F.3d 1194, 1198 (9th Cir. 2008) (internal quotation marks 22 omitted). 23 24 2. Discussion The ALJ found that Plaintiff retained the RFC to perform 25 less than a full range of light work. (AR 22.) Specifically, 26 the ALJ determined that Plaintiff is limited to lifting/carrying 27 10 pounds frequently, 20 pounds occasionally; sitting without 28 restrictions but with normal breaks; standing and walking 6 hours 14 1 in an 8 hour workday, with appropriate breaks; occasionally 2 performing postural activities; no ladders, ropes or scaffolds; 3 occasional over shoulder/over head reaching bilaterally; no 4 unprotected heights; no dangerous machinery; and she must avoid 5 extreme cold and vibration. (Id.) He further stated that in 6 making that RFC finding, he considered all symptoms and the 7 extent to which these symptoms can reasonably be accepted as 8 consistent with the objective medical evidence and other 9 evidence and also considered opinion evidence. 10 (Id.) Plaintiff argues that the ALJ erred in his RFC finding 11 because he did not properly consider that Plaintiff was off work 12 prior to her alleged onset date. (J. Stip. at 23.) The ALJ, 13 however, explicitly considered medical evidence prior to 14 Plaintiff s alleged onset date. (AR 23.) In particular, the ALJ 15 considered evidence that Plaintiff became unable to work in 16 January 2007 and received a series of off-work orders between 17 January 2007 and January 2008. (Id.) Although a portion of 18 Plaintiff s testimony seems to indicate that she was off work a 19 year prior to January 2007 (AR 45), she later clarified that she 20 officially left her job in January 2008 and had not been working 21 for a year prior. (AR 53.) This is confirmed by the record 22 evidence discussed above regarding Plaintiff s off-work orders. 23 (See AR 179-209.) 24 Additionally, the ALJ properly considered Plaintiff s 25 testimony that she could have worked in a seated job between 26 January 2007 and March 2008, when her neck impairment began. 27 40, 45.) (AR Indeed, following this discussion with the ALJ, 28 Plaintiff and her counsel amended Plaintiff s alleged onset date 15 1 to March 2008 because Plaintiff conceded that she could have 2 performed full-time work prior to that date. (AR 53.) Thus, the 3 ALJ properly considered the evidence that Plaintiff was off work 4 prior to her alleged onset date. Plaintiff is not entitled to 5 reversal on this basis. 6 Plaintiff further contends that the ALJ s RFC finding was 7 improper because it did not reflect the findings of her treating 8 doctors, Drs. Landrey and Tran. (J. Stip. at 23-24, 33-34.) 9 Three types of physicians may offer opinions in social 10 security cases: (1) those who treat the claimant (treating 11 physicians); (2) those who examine but do not treat the claimant 12 (examining physicians); and (3) those who neither examine nor 13 treat the claimant (non-examining physicians). 14 at 830. Lester, 81 F.3d The opinions of treating physicians are generally 15 afforded more weight than those of nontreating physicians because 16 treating physicians are employed to cure and have a greater 17 opportunity to know and observe the claimant. 18 80 F.3d 1273, 1285 (9th Cir. 1996). Smolen v. Chater, The weight given a treating 19 physician s opinion depends on whether it was supported by 20 sufficient medical data and was consistent with other evidence in 21 the record. 20 C.F.R. § 404.1527(c)(2). If a treating 22 physician s opinion was well supported by medically acceptable 23 clinical and laboratory diagnostic techniques and was not 24 inconsistent with other substantial evidence from the record, it 25 should be given controlling weight and should be rejected only 26 for clear and convincing reasons. 27 C.F.R. § 404.1527(c)(2). Lester, 81 F.3d at 830; 20 When a treating physician s opinion 28 conflicts with other medical evidence or was not supported by 16 1 clinical or laboratory findings, the ALJ must provide only 2 specific and legitimate reasons for discounting that doctor s 3 opinion. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). 4 Factors relevant to the evaluation of a treating physician s 5 opinion include the [l]ength of the treatment relationship and 6 the frequency of examination and the [n]ature and extent of the 7 treatment relationship. 8 20 C.F.R. § 404.1527(c)(2)(i)-(ii). The ALJ provided specific and legitimate reasons for 9 discounting the opinions of Drs. Landrey and Tran.6 First, apart 10 from the checklist-style questionnaires both doctors submitted, 11 the record contains only two treatment notes from Dr. Landrey, in 12 April 2010 (AR 454-55), and no records from Dr. Tran. One of the 13 notes from Dr. Landrey contained no treatment observations, only 14 plaintiff s complaints. (AR 454.) As a result, the ALJ properly 15 rejected both opinions on the basis that they were unsupported. 16 (AR 24); Batson, 359 F.3d at 1194-95 (holding that treating 17 physicians conflicting, checklist-form opinions were entitled to 18 minimal weight). 19 Second, the ALJ properly rejected the opinions on the basis 20 that they were not supported by the objective medical evidence. 21 (AR 24.) For example, Plaintiff s treatment records indicated 22 that her neck pain improved after her surgery, and post-surgery 23 diagnostic testing showed that her cervical spine had 24 straightened and only mild degenerative changes at the C5-6 and 25 26 6 Because they conflicted with the opinions of the state- 27 agency physicians, the ALJ needed to provide only specific and legitimate reasons for rejecting them. See Carmickle v. Comm r, 28 Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008). 17 1 C6-7 levels remained. (AR 341, 382, 386, 402.) The evidence 2 also shows that while Plaintiff complained of right-shoulder pain 3 in 2008, it improved after a cortisone shot, and she did not 4 complain of any shoulder pain or exhibit reduced range of motion 5 in her 2010 consultative exam. (AR 367, 370, 422.) It is also 6 clear from the record that Plaintiff s plantar fasciitis had 7 improved by January 2008; during her 2010 consultative exam, she 8 did not complain of foot pain and her feet were normal. (AR 9 179-209, 367-71.) 10 Third, the ALJ also properly gave the opinions less weight 11 because they were inconsistent with each other despite being 12 offered days apart. (AR 24); see 20 C.F.R. § 404.1527(d)(4) 13 (explaining that more weight should be afforded to medical 14 opinions that are consistent with the record as a whole). For 15 example, Dr. Landrey opined that Plaintiff could stand for 30 16 minutes at a time and Dr. Tran stated she could stand for only 15 17 minutes (AR 456, 462); Dr. Tran opined that she could never lift 18 or carry more than 10 pounds and Dr. Landrey stated she could do 19 so occasionally (AR 457, 462); and Dr. Tran indicated that 20 Plaintiff could not even walk one block, but Dr. Landrey opined 21 that she needed to walk for 15 minutes every hour (AR 457, 461). 22 Fourth, the ALJ properly concluded that the opinions were 23 inconsistent with Plaintiff s reported daily activities. 24 24.) (AR Plaintiff testified that she was able to drive; take care 25 of her six-year-old granddaughter, of whom she had sole custody; 26 and occasionally grocery shop, cook, attend church, and read the 27 Bible for three hours a day. (AR 37-38, 47-51.) The ALJ was 28 entitled to determine that the ability to perform these 18 1 activities was inconsistent with the opinions of Drs. Landrey and 2 Tran that, for example, Plaintiff could not walk, stand, or sit 3 for any extended period of time. 4 (AR 454-64.) Fifth, the ALJ properly found that the opinions of Drs. 5 Landrey and Tran were inconsistent with the conservative 6 treatment recommended for Plaintiff s neck and feet. (AR 24); 7 see Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001) 8 (holding ALJ properly rejected opinion of treating physician who 9 prescribed conservative treatment yet opined that claimant was 10 disabled). For example, following her neck surgery, Plaintiff 11 was prescribed pain medication and physical therapy, and in April 12 2010, her treating neurologist, Dr. Rodriguez, opined that no 13 further surgery was recommended and Plaintiff should continue 14 with conservative treatment as needed for her pain. 15 383, 385, 387, 393.) (AR 376-81, Additionally, as discussed above, 16 Plaintiff s plantar fasciitis improved by January 2008. (AR 179- 17 209.) 18 Sixth, the ALJ was entitled to credit the opinion of Dr. 19 Sophon instead of Drs. Landrey and Tran because his opinion was 20 supported by independent clinical findings and thus constituted 21 substantial evidence upon which the ALJ could properly rely. See 22 Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001); 23 Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). Dr. 24 Sophon reviewed Plaintiff s medical records and conducted a 25 complete orthopedic examination of Plaintiff. (AR 367-73.) The 26 ALJ also properly relied on the fact that the opinions of Drs. 27 Landrey and Tran conflicted with the opinions of nonexamining 28 physicians Drs. Bitonte and Laiken. 19 (AR 25, 320-36, 363-66); see 1 Thomas, 278 F.3d at 957 ( The opinions of non-treating or non2 examining physicians may also serve as substantial evidence when 3 . . . consistent with independent clinical findings or other 4 evidence. ). Moreover, any conflict in the properly supported 5 medical-opinion evidence was the sole province of the ALJ to 6 resolve. 7 See Andrews, 53 F.3d at 1041. The ALJ also properly rejected Dr. Tran s opinion that 8 Plaintiff s psychological condition affected her physical 9 condition and that she was incapable of even low-stress jobs 10 because Dr. Tran was not a specialist in psychology and because 11 no evidence existed in the record that Plaintiff alleged having a 12 mental impairment or received any mental health treatment. (AR 13 24, 461); see 20 C.F.R. § 404.1527(c)(5) ( We generally give more 14 weight to the opinion of a specialist about medical issues 15 related to his or her area of specialty than to the opinion of a 16 source who is not a specialist. ). 17 Finally, Plaintiff argues that the ALJ erred in his RFC 18 assessment because he did not consider the VE s testimony that 19 supported a finding of disability. (J. Stip. at 24.) The VE 20 testimony cited by Plaintiff, however, refers to hypotheticals 21 posed to the VE that contained limitations opined by Drs. Landrey 22 and Tran that, as discussed above, were properly rejected by the 23 ALJ and thus not required to be included in Plaintiff s RFC. 24 (See AR 58-59); Osenbrock v. Apfel, 240 F.3d 1157, 1164-65 (9th 25 Cir. 2001) ( Nor was the ALJ bound to accept as true the 26 restrictions set forth in the second hypothetical question if 27 they were not supported by substantial evidence. An ALJ is free 28 to accept or reject restrictions in a hypothetical question that 20 1 are not supported by substantial evidence. ); Rollins, 261 F.3d 2 at 857 ( [B]ecause the ALJ included all of the limitations that 3 he found to exist, and because his findings were supported by 4 substantial evidence, the ALJ did not err in omitting the other 5 limitations that Rollins had claimed, but had failed to 6 prove. ).7 7 In sum, the ALJ s RFC assessment was supported by 8 substantial evidence, and Plaintiff is not entitled to reversal 9 on this claim. 10 B. 11 Plaintiff contends that the ALJ erred in his step-two The ALJ Did Not Err in His Step-Two Analysis 12 assessment by failing to consider the severity of Plaintiff s 13 lower-back injury with disc damage, right-shoulder impingement, 14 weight, anxiety, and depression. (J. Stip. at 3-4, 10-12.) 15 Reversal is not warranted on this basis because substantial 16 17 18 19 20 21 22 23 24 25 26 27 28 7 Elsewhere, Plaintiff makes the similar argument that the ALJ erred in his step-four determination because the portion of the [VE] testimony that limited Plaintiff to standing and walking no more than two hours in an eight hour day should have been considered more thoroughly. (J. Stip. at 22; see also id. at 1720.) Plaintiff also implies that limitations related to her alleged mental impairment should have been considered. (Id.) These limitations, however, were opined by Drs. Landrey and Tran (AR 457, 462), and, as discussed above, because the ALJ properly rejected both of those opinions, he was not required to consider them in his RFC assessment. See Batson, 359 F.3d at 1197. It was Plaintiff s burden at step four to prove that she is unable to return to her past relevant work, and she failed to do so. See Pinto v. Massanari, 249 F.3d 840, 845 (9th Cir. 2001). In making his step-four determination, the ALJ properly relied on the VE s testimony that a hypothetical person with Plaintiff s RFC could perform Plaintiff s past relevant work. (AR 25); see Bayliss, 427 F.3d at 1218 ( A VE s recognized expertise provides the necessary foundation for his or her testimony, and no additional foundation is required ). Therefore, Plaintiff is not entitled to reversal on this basis. 21 1 evidence in the record supports the ALJ s step-two determination. 2 At step two of the sequential evaluation process, a 3 plaintiff has the burden to present evidence of medical signs, 4 symptoms, and laboratory findings that establish a medically 5 determinable physical or mental impairment that is severe and can 6 be expected to result in death or last for a continuous period of 7 at least 12 months. Ukolov v. Barnhart, 420 F.3d 1002, 1004-05 8 (9th Cir. 2005) (citing 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D));8 9 see 20 C.F.R. §§ 404.1520, 404.1509. Substantial evidence 10 supports an ALJ s determination that a claimant is not disabled 11 at step two when there are no medical signs or laboratory 12 findings to substantiate the existence of a medically 13 determinable physical or mental impairment. 14 1004-05 (citing SSR 96-4p). Ukolov, 420 F.3d at An impairment may never be found on 15 the basis of the claimant s subjective symptoms alone. Id. at 16 1005. 17 Step two is a de minimis screening device [used] to dispose 18 of groundless claims. Smolen, 80 F.3d at 1290. Applying the 19 applicable standard of review to the requirements of step two, a 20 court must determine whether an ALJ had substantial evidence to 21 find that the medical evidence clearly established that the 22 claimant did not have a medically severe impairment or 23 combination of impairments. Webb v. Barnhart, 433 F.3d 683, 687 24 (9th Cir. 2005); see also Yuckert v. Bowen, 841 F.2d 303, 306 25 (9th Cir. 1988) ( Despite the deference usually accorded to the 26 27 28 8 A medical sign is an anatomical, physiological, or psychological abnormality that can be shown by medically acceptable clinical diagnostic techniques. Ukolov, 420 F.3d at 1005. 22 1 Secretary s application of regulations, numerous appellate courts 2 have imposed a narrow construction upon the severity regulation 3 applied here. ). An impairment or combination of impairments is 4 not severe if the evidence established only a slight 5 abnormality that had no more than a minimal effect on an 6 individual s ability to work. Webb, 433 F.3d at 686 (citation 7 omitted). 8 9 1. Depression and anxiety Plaintiff failed to meet her burden to present evidence of 10 medical signs, symptoms, and laboratory findings that establish 11 that her alleged depression and anxiety constituted medically 12 determinable mental impairments. See 20 C.F.R. § 404.1508 ( A 13 physical or mental impairment must be established by medical 14 evidence consisting of signs, symptoms, and laboratory findings, 15 not only by your statement of symptoms. ). The only evidence 16 Plaintiff cites in support of her contention that the ALJ failed 17 to properly consider the severity of her depression and anxiety 18 is Dr. Tran s statement in his physical RFC questionnaire that 19 Plaintiff had been prescribed antidepressant and anxiety 20 medications. (J. Stip. at 4, 12.) Apart from this brief 21 reference, the record is devoid of any mental-health treatment 22 notes or functional limitations opined by any medical 23 professional resulting from Plaintiff s depression or anxiety. 24 Thus, the logical inference is that even if Plaintiff did suffer 25 from depression and anxiety, any symptoms were adequately 26 controlled with medication. See 20 C.F.R. § 404.1529(c)(3)(iv) 27 (ALJ may consider effectiveness of medication in evaluating 28 severity and limiting effects of impairment); Warre v. Comm r of 23 1 Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) 2 ( Impairments that can be controlled effectively with medication 3 are not disabling for the purpose of determining eligibility for 4 [Social Security] benefits. ). Further, Plaintiff testified that 5 the only impairments affecting her ability to work were related 6 to her feet and neck; she never mentioned any symptoms resulting 7 from depression or anxiety. (AR 32-56.) Accordingly, 8 substantial evidence supports the ALJ s determination that 9 Plaintiff s depression and anxiety did not constitute medically 10 determinable impairments. (AR 24); see Ukolov, 420 F.3d at 100411 05. 12 13 2. Obesity As a general rule, an ALJ must determine the effect of a 14 claimant s obesity upon her other impairments and ability to 15 work. Celaya v. Halter, 332 F.3d 1177, 1182 (9th Cir. 2003); see 16 also SSR 02 1p, 2002 WL 34686281 (Sept. 12, 2002) (requiring an 17 ALJ to consider the effects of obesity at several points in the 18 five-step sequential evaluation). An ALJ must evaluate each 19 case based on the information in the case record, as obesity may 20 or may not increase the severity or functional limitations of 21 other impairments. 22 SSR 02 1p, 2002 WL 34686281, at *6. A review of the record reveals that in the proceedings 23 before the Commissioner, neither Plaintiff nor her attorney ever 24 claimed obesity constituted a disabling impairment or otherwise 25 resulted in any functional limitations. Rather, Plaintiff 26 claimed to be disabled as a result of neck and foot impairments, 27 and the ALJ found, at step two, that Plaintiff has severe neck 28 and foot impairments. (AR 21, 64, 69.) 24 Plaintiff presented no 1 evidence that her obesity exacerbated her other impairments, 2 limited her functioning, or impaired her ability to work, whether 3 alone or in combination with her other alleged impairments. The 4 only medical evidence concerning Plaintiff s obesity was a 5 statement from Dr. Sophon that Plaintiff was obese and an April 6 5, 2005 treatment note indicating that Plaintiff s complaints of 7 foot pain might be related to her weight; but neither Dr. Sophon 8 nor any other doctor ever discussed any limitations resulting 9 from her obesity. (AR 214, 369.) Given the lack of any medical 10 evidence that Plaintiff s obesity exacerbated her impairments or 11 resulted in any functional limitation, as well as the failure of 12 Plaintiff, who was represented by counsel, to claim to be 13 disabled based on obesity, whether as an impairment or a source 14 of functional limitations, the ALJ s failure to address 15 Plaintiff s obesity at step two does not require reversal. See 16 Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005) (finding no 17 reversible error, notwithstanding ALJ s failure to consider 18 obesity at step two, because, as in this case, there was little 19 evidence that plaintiff's obesity exacerbated other impairments 20 and plaintiff was represented by counsel). 21 22 3. Shoulder and back impairments Even assuming there is sufficient evidence in the record to 23 show that Plaintiff suffered from right-shoulder impingement and 24 a lower-back injury, the existence of either of these conditions 25 alone did not constitute a severe impairment if it did not 26 prevent Plaintiff from working. See 20 C.F.R. § 404.1520(c) 27 (severe impairment is one that significantly limits [claimant s] 28 physical or mental ability to do basic work activities ). 25 1 Substantial evidence supports the ALJ s finding that Plaintiff s 2 right-shoulder and low-back pain were not severe. With respect 3 to the right shoulder, as the ALJ noted, while Plaintiff 4 presented with right-shoulder pain in April 2008, by May 2008 she 5 reported feeling 1000 times better after the cortisone 6 injection. (AR 23, 423-24, 428.) There is no evidence in the 7 record that Plaintiff required further treatment for her right 8 shoulder or that any pain was not adequately controlled with 9 medication. Moreover, regarding her low-back injury, while 10 Plaintiff reported injuring her lower back in a fall in 1990, she 11 continued to work until 2007. (AR 367); Osenbrock, 240 F.3d at 12 1165-66 (ALJ properly considered fact that plaintiff worked six 13 years after injury in determining his functional capacity). As 14 discussed above, at the hearing Plaintiff testified that the only 15 impairments limiting her ability to work resulted from her neck 16 and feet issues. (AR 32-56.) Indeed, even Plaintiff s counsel 17 conceded at the hearing that Plaintiff was not really mentioning 18 the back although there were some complaints of it[.] (AR 60.) 19 Finally, Plaintiff fails to cite any medical opinions containing 20 functional limitations resulting from her right-shoulder or 21 lower-back injuries. Based on the aforementioned evidence, the 22 ALJ reasonably concluded that Plaintiff s right-shoulder 23 impingement and low-back injury did not constitute severe 24 impairments because they did not have more than a minimal effect 25 on her ability to work. 26 In any event, even if the ALJ erred by finding Plaintiff s 27 alleged shoulder and low-back impairments nonsevere, that error 28 was harmless because he considered these impairments when 26 1 determining her RFC at step four. See Lewis v. Astrue, 498 F.3d 2 909, 911 (9th Cir. 2007) (failure to address particular 3 impairment at step two harmless if ALJ fully evaluated claimant s 4 medical condition in later steps of sequential evaluation 5 process); see also Stout v. Comm r, Soc. Sec. Admin., 454 F.3d 6 1050, 1055 (9th Cir. 2006) (ALJ s error harmless when 7 inconsequential to the ultimate nondisability determination ). 8 Specifically, the ALJ properly accounted for any work-related 9 impairments resulting from Plaintiff s shoulder and lower-back 10 pain by limiting her to occasional shoulder/overhead reaching and 11 postural activities and providing that she must be given normal 12 breaks from sitting. (AR 22.) 13 Plaintiff is not entitled to remand on this ground. 14 C. 15 The ALJ Did Not Err in Determining that Plaintiff s 16 Condition Did Not Meet or Equal a Listing Plaintiff contends that the ALJ looked solely at Social 17 Security listing 1.00. (J. Stip. at 12.) In particular, 18 Plaintiff maintains that the ALJ failed to 19 specify whether he was considering 1.02, 1.04 or 20 any of the other listings. 21 plaintiff s other alleged impairments, there are 22 other listings that would come into play, including 23 12.04 and 12.06. Further, in light of 24 (Id.) 25 26 1. Applicable law At step three of the sequential disability-evaluation 27 process, the ALJ must evaluate the claimant s impairments to see 28 if they meet or medically equal any of the impairments listed in 27 1 the Listings. See 20 C.F.R § 404.1520(d); Tackett v. Apfel, 180 2 F.3d 1094, 1098 (9th Cir. 1999). The claimant has the initial 3 burden of proving that an impairment meets or equals a Listing. 4 See Sullivan v. Zebley, 493 U.S. 521, 530 33, 110 S. Ct. 885, 5 891 92, 107 L. Ed. 2d 967 (1990). To meet a listed impairment, 6 a claimant must establish that he or she meets each 7 characteristic of a listed impairment relevant to his or her 8 claim. Tackett, 180 F.3d at 1099. To equal a listed 9 impairment, a claimant must establish symptoms, signs and 10 laboratory findings at least equal in severity and duration to 11 the characteristics of a relevant listed impairment, or, if a 12 claimant's impairment is not listed, then to the listed 13 impairment most like the claimant's impairment. 14 20 C.F.R. § 404.1526). Id. (citing Medical equivalence, moreover, must be 15 based on medical findings ; [a] generalized assertion of 16 functional problems is not enough to establish disability at step 17 three. 18 Id. at 1100 (citing 20 C.F.R. § 404.1526). An ALJ must evaluate the relevant evidence before 19 concluding that a claimant s impairments do not meet or equal a 20 listed impairment. 21 2001). Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. The ALJ, however, need not state why a claimant failed 22 to satisfy every different section of the listing of 23 impairments. Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th 24 Cir. 1990) (finding ALJ did not err in failing to state what 25 evidence supported conclusion that, or discuss why, claimant s 26 impairments did not satisfy a Listing). Moreover, the ALJ is 27 not required to discuss the combined effects of a claimant s 28 impairments or compare them to any listing in an equivalency 28 1 determination, unless the claimant presents evidence in an effort 2 to establish equivalence. Burch, 400 F.3d at 683 (citing Lewis, 3 236 F.3d at 514). 4 5 2. Analysis The ALJ s step-three determination is supported by 6 substantial evidence. Plaintiff argues that the ALJ erred at 7 step three by failing to identify which Listing he was 8 considering or explain why he concluded that Plaintiff's 9 impairments did not meet or equal a Listing. 10 17.) (J. Stip. at 12, Although it is true that the ALJ found only that Plaintiff 11 does not have an impairment or combination of impairments that 12 meets or medically equals one of the listed impairments in 20 CFR 13 Part 404, Subpart P, Appendix 1 and that [n]o treating or 14 examining physician has recorded findings equivalent in severity 15 to the criteria of any listed impairment, including Listing 1.00, 16 nor does the evidence show medical findings that are the same or 17 equivalent to those of any listed impairment, without 18 specifically stating what evidence supported his conclusion (AR 19 21-22), elsewhere in the decision he dedicated three 20 single-spaced pages to summarizing and analyzing the medical 21 evidence and Plaintiff s testimony (AR 22 25). Because those 22 findings were sufficient to support the ALJ s step-three 23 conclusion that Plaintiff s impairments did not meet or equal a 24 Listing, he did not err. See Gonzalez, 914 F.2d at 1201 25 (rejecting claimant s argument that ALJ erred by failing to 26 discuss why he did not satisfy Listing because four-page 27 evaluation of the evidence was an adequate statement of the 28 foundations on which the ultimate factual conclusions are based 29 1 (internal quotation marks omitted)); see also Lewis, 236 F.3d at 2 513 (ALJ must discuss and evaluate evidence that supports 3 step-three conclusion but need not do so under specific heading). 4 Moreover, the ALJ is not required to discuss the combined 5 effects of a claimant s impairments or compare them to any 6 listing in an equivalency determination, unless the claimant 7 presents evidence in an effort to establish equivalence. 8 400 F.3d at 683 (citing Lewis, 236 F.3d at 514). Burch, Here, Plaintiff 9 and her counsel never asked the ALJ to consider any Listings in 10 the 12 series, and Plaintiff has failed to point to any credited 11 evidence of functional limitations that would have affected the 12 ALJ s analysis, nor has she offered any plausible theory of how 13 the combination of her impairments equaled a Listing. The ALJ 14 therefore did not commit reversible error by failing to make 15 additional findings at step three. 16 17 18 D. The ALJ Did Not Err in Assessing Plaintiff s Credibility Plaintiff argues that the ALJ failed to provide clear and 19 convincing reasons for discounting her credibility. 20 36-38, 44-45.) (J. Stip. at Because the ALJ did provide clear and convincing 21 reasons supporting his evaluation of Plaintiff s testimony and 22 those reasons were supported by substantial evidence in the 23 record, reversal is not warranted on this basis. 24 25 1. Applicable law An ALJ s assessment of pain severity and claimant 26 credibility is entitled to great weight. See Weetman v. 27 Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. Heckler, 779 28 F.2d 528, 531 (9th Cir. 1986). [T]he ALJ is not required to 30 1 believe every allegation of disabling pain, or else disability 2 benefits would be available for the asking, a result plainly 3 contrary to 42 U.S.C. § 423(d)(5)(A). 4 F.3d 1104, 1122 (9th Cir. 2012). Molina v. Astrue, 674 In evaluating a claimant s 5 subjective symptom testimony, the ALJ engages in a two-step 6 analysis. See Lingenfelter, 504 F.3d at 1035-36. First, the 7 ALJ must determine whether the claimant has presented objective 8 medical evidence of an underlying impairment [that] could 9 reasonably be expected to produce the pain or other symptoms 10 alleged. Id. at 1036 (internal quotation marks omitted). If 11 such objective medical evidence exists, the ALJ may not reject a 12 claimant s testimony simply because there is no showing that the 13 impairment can reasonably produce the degree of symptom alleged. 14 Smolen, 80 F.3d at 1282 (emphasis in original). When the ALJ 15 finds a claimant s subjective complaints not credible, the ALJ 16 must make specific findings that support the conclusion. 17 Berry v. Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). See Absent 18 affirmative evidence of malingering, those findings must provide 19 clear and convincing reasons for rejecting the claimant s 20 testimony. Lester, 81 F.3d at 834. If the ALJ s credibility 21 finding is supported by substantial evidence in the record, the 22 reviewing court may not engage in second-guessing. Thomas, 278 23 F.3d at 959. 24 25 2. Relevant facts At the hearing, Plaintiff testified that she stopped working 26 at Costco in January 2007 because of symptoms related to 27 bilateral plantar fasciitis. (AR 33.) Plaintiff acknowledged 28 that her job duties at Costco likely led to her condition but 31 1 stated that she did not file a workers compensation claim. 2 33-34.) (AR When the ALJ inquired why not, Plaintiff initially 3 responded that she was hoping to return to Costco because it was 4 a good employer but then said there wasn t any reason she 5 didn t file a claim and that [t]o be honest, she was on state 6 disability at the time so she was seen by other doctors. 7 35.) (AR 33- She stated that since her state disability had run out, she 8 had been supported by her husband and earned some money caring 9 for her six-year-old granddaughter, of whom she had sole custody. 10 (AR 37-38.) Plaintiff explained that she stopped working because 11 of the pain in her feet but developed pain in her neck in March 12 2008, after she had stopped working. (AR 38-39.) She explained 13 that her neck was currently the bigger obstacle to her working. 14 (AR 45.) She testified that in March 2008, she woke up and 15 [she] felt like [she] slept on her neck wrong so [she] didn t 16 know there was a problem. (AR 39.) She further indicated that 17 she had injured her neck in 2001, for which she filed a workers 18 compensation claim, but the doctor who examined her in March 2008 19 did not feel it was related to that injury. (Id.) According to 20 Plaintiff, she would have been able to perform a seated job 21 between January 2007 and March 2008 but could not presently work 22 because her neck was in constant acute pain. (AR 39-40.) 23 Plaintiff also stated that she was initially treated 24 conservatively for her neck pain but had neck surgery in October 25 2008 that provided immediate improvement but then it, the, the 26 symptoms started coming back. (AR 40.) She explained that she 27 had two additional herniated discs, the C3 and 4 and C5 and 6. 28 (Id.) In addition, Plaintiff testified that her neck pain had 32 1 gotten worse since the surgery and goes down into the middle of 2 [her] spine into her shoulder blades up into the skull of [her] 3 head. (AR 41.) She acknowledged that her treating neurologist 4 was aware of her two herniated discs, but only conservative 5 treatment, consisting of [p]hysical therapy, massages, [and] 6 pain medication, had been recommended. (Id.) Plaintiff did 7 note that her treating neurologist suggested more surgery might 8 be a possibility but also said that she would be exchanging one 9 pain for another. (Id.) She indicated that her neurologist 10 suggested she go to a specialist for a Botox injection to treat 11 her neck pain but that her insurance would not cover it. (AR 12 46.) 13 Plaintiff testified that what she did on a daily basis was 14 dictated by her pain, for which she took a pain medication, an 15 antiinflammatory, and a muscle relaxer and used a pain patch. 16 (AR 42-43.) She indicated that the pain medication sometimes 17 caused the pain to subside, but that at other times she must do 18 additional care, like laying on a heating pad or ice packs 19 several times a day as needed. (AR 43.) She had trouble falling 20 and staying asleep and woke three to four times a night, which 21 caused her to need naps during the day. (AR 44.) She estimated 22 that since March 2008, she spent at least 50% of the day lying 23 down. (AR 48.) Plaintiff explained that she did not do any 24 activities away from home except go to medical appointments, but 25 she was able to drive and did drive her granddaughter to school. 26 (AR 47.) She later admitted that she also occasionally grocery 27 shopped and attended church. (AR 48, 51.) Finally, Plaintiff 28 also stated that she cooked, got her granddaughter ready in the 33 1 morning and drove her to school, and read the Bible for about 2 three hours a day. 3 3. (AR 49-51.) Analysis 4 The ALJ evaluated Plaintiff s credibility as follows: 5 The claimant s testimony as well as the statements in the 6 exhibits are only credible to the extent she is able to 7 perform the residual functional capacity herein. 8 the claimant alleges she is unable to perform work 9 activity, her records do not support this allegation. 10 The claimant stopped working due to plantar fasciitis 11 that was a work related injury but she never filed a 12 workers compensation claim. 13 back to work. 14 ultimately required surgery. Currently she drives, takes 15 care of a 6 year old granddaughter, does some grocery 16 shopping, cooks, attends church, and reads the bible for 17 about 3 hours a day. 18 fuse the level above and below her neck but that is 19 supported [sic] by her medical records. While Instead, she did not go A year later, she injured her neck which She testified her doctor wants to 20 (AR 23.) 21 Reversal is not warranted based on the ALJ s alleged failure 22 to make proper credibility findings or properly consider 23 Plaintiff s subjective symptoms. The ALJ partially credited 24 Plaintiff s allegations in assessing an RFC more restrictive than 25 that opined by Dr. Sophon. (AR 22, 25.) To the extent the ALJ 26 did reject Plaintiff s allegations, he provided clear and 27 convincing reasons for doing so. As the ALJ noted, Plaintiff s 28 treatment records show substantial improvement from March 1, 34 1 2008 to the present. (AR 23.) Her plantar fasciitis improved 2 after January 2008, no evidence showed she needed treatment after 3 that time for foot pain, and her feet were normal during her 4 January 2010 consultative exam. (AR 179-209, 367-71.) In 5 addition, her neck pain improved after her October 2008 surgery; 6 the most recent record from Dr. Rodriguez, her treating 7 neurologist, in April 2010 recommended only conservative 8 treatment and no future surgeries. (AR 376-77.) Based on this 9 evidence, the ALJ was entitled to discount Plaintiff s subjective 10 testimony to the extent it conflicted with the medical record. 11 See Carmickle, 533 F.3d at 1161 ( Contradiction with the medical 12 record is a sufficient basis for rejecting the claimant s 13 subjective testimony. ); Lingenfelter, 504 F.3d at 1040 (in 14 determining credibility, ALJ may consider whether the alleged 15 symptoms are consistent with the medical evidence ); Burch, 400 16 F.3d at 681 ( Although lack of medical evidence cannot form the 17 sole basis for discounting pain testimony, it is a factor that 18 the ALJ can consider in his credibility analysis. ); Kennelly v. 19 Astrue, 313 F. App x 977, 979 (9th Cir. 2009) (same); Tommasetti 20 v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (ALJ may infer 21 that claimant s response to conservative treatment undermines 22 [claimant s] reports regarding the disabling nature of his 23 pain ). 24 The ALJ also properly rejected Plaintiff s subjective 25 allegations on the basis that she did not file a workers 26 compensation claim after leaving work in January 2007 because of 27 plantar fasciitis, a work-related injury. (AR 23.) While 28 Plaintiff initially testified that she did not file a claim 35 1 because she hoped to return to work, she then stated that there 2 was no reason she did not file a claim and conceded that from 3 January 2007 to March 2008, she would have been able to perform a 4 seated job. (AR 33-34, 45, 47, 53-54.) The ALJ reasonably 5 considered Plaintiff s failure to file a claim as undermining her 6 allegations that she was unable to work. See Turner v. Comm r of 7 Soc. Sec., 613 F.3d 1217, 1224 (9th Cir. 2010) (in evaluating 8 plaintiff s testimony, the ALJ may use ordinary techniques of 9 credibility evaluation (quoting Smolen, 80 F.3d at 1284)). 10 Moreover, as the ALJ noted, Plaintiff admitted that she was 11 able to do a wide variety of daily activities, including driving, 12 taking care of her six-year-old granddaughter, occasional grocery 13 shopping, cooking, attending church, and reading the Bible about 14 three hours a day. (AR 23, 42-51.) That Plaintiff s allegations 15 of disabling pain were inconsistent with her daily activities was 16 a valid reason for the ALJ to discount her testimony. See Bray 17 v. Comm r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 18 2009) (ALJ properly discounted claimant s testimony because she 19 leads an active lifestyle, including cleaning, cooking, walking 20 her dogs, and driving to appointments ); Molina, 674 F.3d at 1113 21 ( Even where [claimant s] activities suggest some difficulty 22 functioning, they may be grounds for discrediting the claimant s 23 testimony to the extent that they contradict claims of a totally 24 debilitating impairment. ). 25 Because the ALJ gave clear and convincing reasons for his 26 credibility finding and those reasons were supported by 27 substantial evidence, the Court may not engage in 28 second-guessing the ALJ. Thomas, 278 F.3d at 959 (citation 36 1 omitted). 2 E. Plaintiff is not entitled to reversal on this claim. The ALJ Did Not Err in Failing to Consider Whether 3 Plaintiff Was Disabled Under the Medical-Vocational 4 Guidelines 5 Plaintiff contends the ALJ s RFC assessment that Plaintiff 6 could perform a limited range of light work was essentially a 7 finding that she could perform sedentary work and thus the ALJ 8 should have determined that Plaintiff was disabled under the 9 Medical-Vocational Guidelines ( the Grids ). See Hoopai v. 10 Astrue, 499 F.3d 1071, 1075 (9th Cir. 2007) (explaining that 11 Grids are used to assist in step-five determination of whether 12 significant number of jobs exist in national economy that 13 claimant can perform); 20 C.F.R. § 404.1569. 14 contention lacks merit. Plaintiff s Because the ALJ properly found, at step 15 four, that Plaintiff could perform her past relevant work, he was 16 not required to go onto the next step and consider whether 17 Plaintiff was disabled under the Grids. See 20 C.F.R. 18 §§ 404.1520(f) (explaining that the ALJ s inquiry is complete if 19 he determines at step four that plaintiff is not disabled); 20 404.1560(b)(3) ( If we find that you have the residual functional 21 capacity to do your past relevant work, we will determine that 22 you can still do your past work and are not disabled. We will 23 not consider your vocational factors of age, education, and work 24 experience or whether your past relevant work exists in 25 significant numbers in the national economy. ). Plaintiff also 26 argues that the ALJ should have applied the Grids because 27 Plaintiff s past work is best described as a composite job. 28 (J. Stip. at 36.) But the VE testified that Plaintiff s job at 37 1 Costco was really two different jobs and said that Plaintiff 2 could perform one of them. (AR 56-57.) This is in fact exactly 3 like the case cited by Plaintiff, Castillo v. Astrue, No. CV 104 2584 JC, 2010 WL 4916608, at *4 n.3 (C.D. Cal. Nov. 3, 2010), in 5 which the Court found an argument almost identical to Plaintiff s 6 unavailing. Moreover, because the ALJ properly rejected the 7 opinions of Drs. Landrey and Tran, the ALJ s step-four finding 8 was proper regardless of whether Plaintiff s past job could be 9 characterized as a composite job. Therefore, Plaintiff is not 10 entitled to reversal on this basis. 11 VII. CONCLUSION 12 Consistent with the foregoing, and pursuant to sentence four 13 of 42 U.S.C. § 405(g),9 IT IS ORDERED that judgment be entered 14 AFFIRMING the decision of the Commissioner and dismissing this 15 action with prejudice. IT IS FURTHER ORDERED that the Clerk 16 serve copies of this Order and the Judgment on counsel for both 17 parties. 18 19 DATED: June 5, 2013 20 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 21 22 23 24 25 26 27 28 9 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. 38

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