Edwardo Luna v. Michael J Astrue, No. 5:2012cv01251 - Document 15 (C.D. Cal. 2013)

Court Description: MEMORANDUM OPINION AND ORDER AFFIRMING THE COMMISSIONER by Magistrate Judge Jean P Rosenbluth. IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner and dismissing this action with prejudice. (twdb)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 EDWARD LUNA, 10 Plaintiff, 11 vs. 12 13 CAROLYN W. COLVIN, Acting Commissioner of Social Security,1 14 Defendant. 15 ) Case No. EDCV 12-1251-JPR ) ) ) MEMORANDUM OPINION AND ORDER ) AFFIRMING THE COMMISSIONER ) ) ) ) ) ) ) 16 17 I. PROCEEDINGS 18 Plaintiff seeks review of the Commissioner s final decision 19 denying his applications for Social Security disability insurance 20 benefits ( DIB ) and Supplemental Security Income benefits 21 ( SSI ). The parties consented to the jurisdiction of the 22 undersigned U.S. Magistrate Judge pursuant to 28 U.S.C. § 636(c). 23 This matter is before the Court on the parties Joint 24 Stipulation, filed March 18, 2013, which the Court has taken 25 26 1 On February 14, 2013, Colvin became the Acting 27 Commissioner of Social Security. Pursuant to Federal Rule of Civil Procedure 25(d), the Court therefore substitutes Colvin for 28 Michael J. Astrue as the proper Respondent. 1 1 under submission without oral argument. For the reasons stated 2 below, the Commissioner s decision is affirmed and this action is 3 dismissed. 4 II. BACKGROUND 5 Plaintiff was born on February 5, 1970. 6 Record ( AR ) 99, 105.) 7 English well. He completed the 12th grade and speaks (AR 138, 221.) Plaintiff previously worked as a 8 warehouse worker and a home attendant. 9 (Administrative (AR 148-51, 197.) On December 29, 2009, Plaintiff filed applications for DIB 10 and SSI. (AR 105, 117.) He alleged that he had been unable to 11 work since March 13, 2008, because of a curved spine and two 12 popped discs in his lower back that happened when he was 13 lifting a heavy truck tire. (AR 55, 229.) His applications were 14 denied initially, on March 4, 2010 (AR 55-59), and upon 15 reconsideration, on August 19 (AR 61-65). 16 After Plaintiff s applications were denied, he requested a 17 hearing before an Administrative Law Judge ( ALJ ). (AR 66.) A 18 hearing was held on January 25, 2011, at which Plaintiff appeared 19 without counsel and testified on his own behalf; a vocational 20 expert ( VE ) and Plaintiff s mother also testified. (AR 29.) 21 In a written decision issued March 9, 2011, the ALJ determined 22 that Plaintiff was not disabled. (AR 14-23.) On May 30, 2012, 23 the Appeals Council denied Plaintiff s request for review. 24 1-4.) (AR This action followed. 25 III. STANDARD OF REVIEW 26 Pursuant to 42 U.S.C. § 405(g), a district court may review 27 the Commissioner s decision to deny benefits. The ALJ s findings 28 and decision should be upheld if they are free of legal error and 2 1 supported by substantial evidence based on the record as a whole. 2 Id.; Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 3 1427, 28 L. Ed. 2d 842 (1971); Parra v. Astrue, 481 F.3d 742, 746 4 (9th Cir. 2007). Substantial evidence means such evidence as a 5 reasonable person might accept as adequate to support a 6 conclusion. Richardson, 402 U.S. at 401; Lingenfelter v. Astrue, 7 504 F.3d 1028, 1035 (9th Cir. 2007). 8 but less than a preponderance. It is more than a scintilla Lingenfelter, 504 F.3d at 1035 9 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 10 2006)). To determine whether substantial evidence supports a 11 finding, the reviewing court must review the administrative 12 record as a whole, weighing both the evidence that supports and 13 the evidence that detracts from the Commissioner s conclusion. 14 Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). If the 15 evidence can reasonably support either affirming or reversing, 16 the reviewing court may not substitute its judgment for that of 17 the Commissioner. Id. at 720-21. 18 IV. THE EVALUATION OF DISABILITY 19 People are disabled for purposes of receiving Social 20 Security benefits if they are unable to engage in any substantial 21 gainful activity owing to a physical or mental impairment that is 22 expected to result in death or which has lasted, or is expected 23 to last, for a continuous period of at least 12 months. 42 24 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 25 (9th Cir. 1992). 26 A. 27 The ALJ follows a five-step sequential evaluation process in The Five-Step Evaluation Process 28 assessing whether a claimant is disabled. 3 20 C.F.R. 1 §§ 404.1520(a)(4), 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 2 828 n.5 (9th Cir. 1995) (as amended Apr. 9, 1996). In the first 3 step, the Commissioner must determine whether the claimant is 4 currently engaged in substantial gainful activity; if so, the 5 claimant is not disabled and the claim must be denied. 6 §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not 7 engaged in substantial gainful activity, the second step requires 8 the Commissioner to determine whether the claimant has a severe 9 impairment or combination of impairments significantly limiting 10 his ability to do basic work activities; if not, a finding of not 11 disabled is made and the claim must be denied. 12 §§ 404.1520(a)(4)(ii), 416.920(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. 19 416.920(a)(4)(iii). §§ 404.1520(a)(4)(iii), If the claimant s impairment or combination 20 of impairments does not meet or equal an impairment in the 21 Listing, the fourth step requires the Commissioner to determine 22 whether the claimant has sufficient residual functional capacity 23 ( RFC )2 to perform his past work; if so, the claimant is not 24 disabled and the claim must be denied. §§ 404.1520(a)(4)(iv), 25 26 2 RFC is what a claimant can 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). 4 1 416.920(a)(4)(iv). The claimant has the burden of proving that 2 he is unable to perform past relevant work. 3 1257. Drouin, 966 F.2d at If the claimant meets that burden, a prima facie case of 4 disability is established. Id. If that happens or if the 5 claimant has no past relevant work, the Commissioner then bears 6 the burden of establishing that the claimant is not disabled 7 because he can perform other substantial gainful work available 8 in the national economy. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 9 That determination comprises the fifth and final step in the 10 sequential analysis. §§ 404.1520, 416.920; Lester, 81 F.3d at 11 828 n.5; Drouin, 966 F.2d at 1257. 12 B. 13 At step one, the ALJ found that Plaintiff had not engaged in The ALJ s Application of the Five-Step Process 14 any substantial gainful activity since March 13, 2008. (AR 16.) 15 At step two, the ALJ concluded that Plaintiff had the severe 16 impairment of degenerative disc disease of the lumbar spine. 17 (Id.) At step three, the ALJ determined that Plaintiff s 18 impairment did not meet or equal any of the impairments in the 19 Listing. (AR 18.) At step four, the ALJ found that Plaintiff 20 retained the RFC to perform light work,3 subject to certain 21 22 23 24 25 26 27 28 3 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), 416.967(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 occasional walking or standing. §§ 404.1567(a)-(b), 416.967(a)-(b). 5 1 limitations: 2 [P]ostural 3 balancing, stooping, kneeling, crouching and crawling) 4 can be done on an occasional basis. The claimant cannot 5 climb ladders, ropes or scaffolds. He cannot work at 6 unprotected heights or around dangerous machinery. . . . 7 Out of an 8-hour period, with normal breaks, the claimant 8 can stand and/or walk for 6 hours and sit for 6 hours. 9 (Id.) limitations (i.e., climbing ramps/stairs, Based on the VE s testimony, the ALJ concluded that 10 Plaintiff was unable to perform any past relevant work. (AR 21.) 11 At step five, the ALJ concluded that Plaintiff was not disabled 12 under the framework of the Medical-Vocational Guidelines, 20 13 C.F.R. Part 404, Subpart P, Appendix 2, and that jobs existed in 14 significant numbers in the national economy that Plaintiff could 15 perform. (AR 22.) Based on the VE s testimony, the ALJ found 16 that Plaintiff could perform such jobs as assembler of small 17 products I (DOT 706.684-022, 1991 WL 679050), information clerk 18 (DOT 237.367-018, 1991 WL 672187), and inspector/hand packager 19 (DOT 559.687-074, 1991 WL 683797). (Id.) 20 determined that Plaintiff was not disabled. Accordingly, the ALJ (AR 23.) 21 V. RELEVANT FACTS 22 On March 13, 2008, Plaintiff injured his back while working 23 as a warehouse assistant. (AR 212.) He stated that while trying 24 to lift a heavy tire, he heard a pop in his back, fell to the 25 ground, and could not stand up unassisted. (Id.) Plaintiff went 26 to Corona Regional Medical Center the same day, where an MRI was 27 taken that revealed a broad-based posterior disc herniation at 28 L4-5 extending approximately 4-5 mm posteriorly and causing 6 1 moderate canal stenosis. (AR 276-77.) Plaintiff received an 2 injection for pain and was advised that surgery was an option but 3 that because he was young, he would heal without surgery. 4 204.) A second MRI was taken in June 2008, which showed a 4 mm 5 central disc protrusion with mild spondylosis. 6 (AR (AR 218.) On August 6, 2008, Plaintiff was evaluated by Dr. Hamid 7 Rahman, who noted that [Plaintiff] ambulate[d] with aid of cane 8 and state[d] that any activity cause[d] pain in the low back. 9 (AR 204.) Plaintiff exhibited a positive straight-leg-raising 10 test in the supine position. (AR 208.) Dr. Rahman found 11 [p]alpable 2+ tenderness . . . present over paraspinous muscles 12 of the low back, with evidence of 3+ paravertebral muscle spasm 13 and palpable tenderness . . . over the L5-S1 vertebra. (Id.) 14 Plaintiff was diagnosed with musculoligamentous strain/sprain 15 lumbar spine, left lower extremity radiculitis, and herniated 16 nucleus pulposus, 4 mm disc at L4-5. (AR 209.) Dr. Rahman 17 recommended pain medication, the use of a lumbosacral corset, an 18 IF unit, a consultation for epidural injections, and possible 19 surgery. 20 (AR 209-10.) On September 5, 2008, Dr. Ronald Schilling declared 21 Plaintiff permanent and stationary 4 in connection with a 22 workers compensation evaluation. (AR 255.) On September 18, 23 2008, Plaintiff was reevaluated by Dr. Rahman, who found that 24 Plaintiff exhibited loss of flexion at 15-20 degrees and 25 26 27 28 4 Permanent and stationary means that his medical condition [had] reached the maximum medical improvement and [was] unlikely to change. Hernandez v. Colvin, No. CV 12-3320-SP, 2013 WL 1245978, at *9 n.8 (C.D. Cal. Mar. 25, 2013) (citing 8 Cal. Code Regs. § 10152). 7 1 extension of 10 degrees, tenderness of the L4-5 interspace, 2 decreased sensation, and spasm over the paravertebral muscles. 3 (AR 201.) Although Dr. Rahman offered epidural injections to 4 treat Plaintiff s pain, Plaintiff declined. 5 instead prescribed a muscle relaxant. (Id.) (AR 201-02.) Dr. Rahman Dr. Rahman 6 found Plaintiff temporarily totally disabled and referred 7 Plaintiff to Dr. Richard L. Mulvania for surgical consultation. 8 (AR 202.) 9 On September 29, 2008, Plaintiff was examined by Dr. 10 Mulvania, who noted that Plaintiff exhibited loss of the normal 11 sagittal balance, spinous process tenderness, and moderate 12 paraspinal muscle guarding. (AR 216.) Dr. Mulvania diagnosed 13 Plaintiff with [h]erniated nucleus pulposis L4-5 with 14 radiculopathy to left lower extremity and recommended facet 15 blocks at the L4-5 level and conservative care as directed by 16 his primary treating physician. 17 (AR 218-19.) More than a year later, on February 24, 2010, Plaintiff was 18 examined by consultative examiner Dr. Bunsri T. Sophon. 19 33.) (AR 229- After performing a complete orthopedic examination but 20 without reviewing the medical record, Dr. Sophon found that 21 Plaintiff s cervical spine reveal[ed] normal curvature, no 22 deformity or asymmetry, and that Plaintiff s thoracic and lumbar 23 spine reveal[ed] no evidence of tenderness or muscle spasm. 24 (AR 231.) Plaintiff also exhibited negative straight-leg raising 25 both sitting and supine. (Id.) Although Plaintiff demonstrated 26 diminished sensation in the entire left lower extremity, his 27 lower body showed range of motion within normal limits, with 28 no evidence of muscle atrophy or spasm. 8 (AR 232.) Dr. Sophon 1 noted: 2 [Plaintiff] was constantly moaning and groaning, stating 3 aggravation of pain in the low back in every movement of 4 his body, especially when he was taking his coat off for 5 the examination. 6 symptoms of pain when he walked out of the examining 7 room. 8 (AR 231.) He was noted not to demonstrate any Although Plaintiff brought a cane to the examination, 9 he demonstrated a normal gait without using the cane. (Id.) 10 Dr. Sophon opined that Plaintiff was capable of lifting and 11 carrying 50 pounds occasionally, 25 pounds frequently, but could 12 only sit, stand, or walk six hours each in an eight-hour workday. 13 (AR 233.) 14 On March 2, 2010, upon reviewing Plaintiff s medical 15 records, consulting physician Dr. M. Ormsby agreed with Dr. 16 Sophon that Plaintiff retained the RFC to do medium work [with] 17 postural limitation to accommodate obesity and decreased 18 sensation LLE. 19 (AR 248.) On March 4, 2010, Plaintiff was again evaluated by Dr. 20 Schilling for an updated permanent and stationary evaluation. 21 (AR 254-67.) Although Dr. Schilling found Plaintiff to have a 22 50% whole person impairment (AR 266), he also noted that 23 Plaintiff should be eligible for vocational rehabilitation if 24 he was unable to find modified or alternative work within the 25 recommended work restrictions (AR 262). 26 On August 10, 2010, upon reviewing Plaintiff s medical 27 records and speaking with Plaintiff and Dr. Schilling, consulting 28 physician Dr. S. Brodsky concluded that Plaintiff retained the 9 1 RFC to perform light work with postural and environmental 2 limitations. (AR 273-75.) 3 VI. DISCUSSION 4 Plaintiff alleges that the ALJ did not properly consider and 5 develop the medical evidence in the record and that the ALJ 6 improperly rejected Plaintiff s subjective symptom testimony. 7 A. 8 Plaintiff claims that the ALJ erred in (1) failing to obtain The ALJ Properly Developed the Medical Record 9 Plaintiff s permanent and stationary report, dated September 5, 10 2008; (2) disregarding Dr. Schilling s updated permanent and 11 stationary evaluation, dated March 4, 2010; and (3) adopting Dr. 12 Sophon s conclusions. 13 1. 14 15 (J. Stip. at 4-5, 19.) The ALJ did not err in failing to obtain the September 5, 2008 permanent and stationary report Plaintiff contends that the ALJ failed to properly develop 16 the record by not obtaining a workers compensation permanent17 and-stationary report briefly mentioned in the Administrative 18 Record. (J. Stip. at 4.) Remand is not warranted on that basis, 19 however, because the record was sufficiently unambiguous and 20 complete to allow for proper evaluation of the evidence, and the 21 lack of the report did not create a gap in the medical record. 22 See Widmark v. Barnhart, 454 F.3d 1063, 1069 (9th Cir. 2006). 23 24 a. Applicable law In determining disability, the ALJ must develop the record 25 and interpret the medical evidence. 26 F.3d 1006, 1012 (9th Cir. 2003). Howard v. Barnhart, 341 The ALJ s duty to develop the 27 record is heightened when a claimant is not represented by 28 counsel. Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 10 1 2001). Nonetheless, it remains Plaintiff s burden to produce 2 evidence in support of his disability claims. See Mayes v. 3 Massanari, 276 F.3d 453, 459 (9th Cir. 2001). Moreover, the 4 ALJ s duty to develop the record is triggered only when there is 5 ambiguous evidence or when the record is inadequate to allow for 6 proper evaluation of the evidence. Id. at 459-60. 7 plaintiff s duty to prove that he is disabled. It is the Id. at 459; see 8 also 20 C.F.R. §§ 404.1512(c) ( You must provide medical evidence 9 showing that you have an impairment(s) and how severe it is 10 during the time you say that you are disabled. ), 416.912(c) 11 (same). 12 13 b. Analysis The ALJ did not err in failing to obtain the September 5, 14 2008 report because the medical evidence documenting Plaintiff s 15 condition during the Fall 2008 period was clear. The record was 16 therefore sufficient for the ALJ to make a proper evaluation. 17 Moreover, the ALJ did have and reviewed the more recent 2010 18 permanent-and-stationary report. 19 Drs. Rahman s and Mulvania s examination notes dated August 20 6, September 18, and September 29, 2008, show that Plaintiff 21 exhibited tenderness of the spine (AR 201, 208, 216), complained 22 of severe back pain (AR 201, 204, 214), and used a cane (AR 201, 23 204, 216); both physicians diagnosed Plaintiff as having 24 herniated nucleus pulposus at L4-5 (AR 209, 218). Dr. Rahman 25 found that Plaintiff exhibited marked loss of flexion and 26 extension, tenderness, spasm, a positive straight-leg-raising 27 test, and motor weakness. (AR 201, 208.) Dr. Mulvania s 28 examination notes confirmed these findings. 11 (AR 211-20.) 1 Additionally, although the ALJ did not have access to Plaintiff s 2 September 5, 2008 permanent-and-stationary report, he evaluated 3 Plaintiff s updated permanent and stationary evaluation, dated 4 March 4, 2010 (AR 254-67), which briefly summarized the September 5 2008 report (AR 255) and which apparently contained similar 6 conclusions. Plaintiff does not specify what additional 7 limitations the September 5, 2008 report would have supported 8 that were not accounted for in the other evidence from Fall 2008 9 or the March 2010 updated report. 10 Moreover, despite Plaintiff s contention that the ALJ erred 11 in failing to obtain the earlier report (J. Stip. at 9), 12 Plaintiff still has not submitted the report to the Court, even 13 after obtaining attorney representation. Indeed, Plaintiff 14 obtained counsel before appealing to the Appeals Council (AR 715 10), which could have considered additional evidence, see Taylor 16 v. Comm r of Soc. Sec. Admin., 659 F.3d 1228, 1233 (9th Cir. 17 2011) (quoting 20 C.F.R. § 404.970(b)), and yet did not submit 18 the report to the Council. Plaintiff s continuing failure to 19 produce the September 2008 report undermines his contention that 20 it is probative and contains important work limitations.5 In any 21 event, Drs. Rahman s and Mulvania s consultation notes dated 22 August 6, September 18, and September 29, 2008, are unambiguous 23 and uncontradicted, and they thus provide sufficient information 24 25 26 27 28 5 Plaintiff argues that the ALJ s duty to develop the record was heightened because Plaintiff appeared at the hearing without counsel (J. Stip. at 5); this may be so, but because the record was not ambiguous and was sufficiently complete, the ALJ fully and fairly develop[ed] the record. Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983). 12 1 to have allowed the ALJ to accurately assess Plaintiff s 2 condition during the Fall 2008 period. Any information in the 3 missing report likely would not have affected the ALJ s 4 analysis. 5 Thus, remand is not warranted on this basis. 2. The ALJ did not err in considering 6 7 Plaintiff s treating physicians opinions Plaintiff contends that the ALJ erred in (1) completely 8 disregarding Dr. Schilling s updated permanent and stationary 9 evaluation (J. Stip. at 5) and (2) fail[ing] to mention 10 treating evidence of record from . . . Dr. Rahman (id. at 9). 11 To the extent the ALJ rejected Dr. Schilling s opinion, he 12 provided specific and legitimate reasons for doing so that were 13 supported by substantial evidence. As to Plaintiff s second 14 claim, the ALJ extensively referenced Dr. Rahman s examinations 15 in his opinion and took Dr. Rahman s notes into consideration in 16 reaching his decision. 17 18 a. Applicable law Three types of physicians may offer opinions in Social 19 security cases: (1) those who directly treated the Plaintiff 20 (treating physicians), (2) those who examined but did not treat 21 the Plaintiff (examining physicians), and (3) those who did not 22 directly treat or examine the Plaintiff (nonexamining 23 physicians). Lester, 81 F.3d at 830. A treating physician s 24 opinion is generally entitled to more weight than that of an 25 examining physician, and an examining physician s opinion is 26 generally entitled to more weight than that of a nonexamining 27 physician. Id. When a treating physician s opinion is not 28 contradicted by another physician, it may be rejected only for 13 1 clear and convincing reasons. Carmickle v. Comm r Soc. Sec. 2 Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) (quoting Lester, 81 3 F.3d at 830-31). When a treating physician s opinion conflicts 4 with another doctor s, however, the ALJ must provide only 5 specific and legitimate reasons for discounting the treating 6 physician s opinion. Id. A treating physician is a claimaint s 7 own physician who has provided or continues to provide him with 8 medical treatment or evaluation in an ongoing treatment 9 relationship. See Benton ex rel. Benton v. Barnhart, 331 F.3d 10 1030, 1035 (9th Cir. 2003); 20 C.F.R. §§ 404.1502, 416.902. A 11 treatment relationship is considered ongoing when the medical 12 evidence establishes that [the claimant] see[s], or [has] seen, 13 the source with a frequency consistent with accepted medical 14 practice for the type of treatment and/or evaluation required for 15 [his] medical condition(s). 20 C.F.R. §§ 404.1502, 416.902. If 16 a patient elicits the help of a physician for the sole purpose of 17 obtaining a report to support his disability claim, that 18 physician is not a treating physician. 19 Id. In determining disability, the ALJ must develop the record 20 and interpret the medical evidence but need not discuss every 21 piece of evidence in the record. Howard, 341 F.3d at 1012. The 22 ALJ is responsible for resolving conflicts in the medical 23 evidence. 24 Carmickle, 533 F.3d at 1164. An ALJ may not disregard a physician s medical opinion 25 simply because it was initially procured in the context of a 26 state workers compensation claim or framed in the terminology of 27 such proceedings. Booth v. Barnhart, 181 F. Supp. 2d 1099, 1105 28 (C.D. Cal. 2002). The ALJ must translate terms of art 14 1 contained in such medical opinions into the corresponding Social 2 Security terminology in order to accurately assess the 3 implications of those opinions for the Social Security disability 4 determination. 5 6 Id. at 1106. b. Discussion The ALJ gave limited weight to Dr. Schilling s updated 7 permanent and stationary evaluation, which assessed Plaintiff s 8 impairments in terms of a whole person rating. The ALJ noted: 9 The objective clinical and diagnostic evidence used by 10 [Plaintiff s] physician in his workers compensation case 11 has been considered; however, the term whole person 12 impairment is a term of art used in workers compensation 13 law that is not determinative under the criteria for a 14 finding of disability pursuant to the Social Security 15 Act. 16 compensation case is not the same as a Social Security 17 disability 18 physician in terms of a whole body impairment rating . 19 . 20 applications under the Social Security Act. . The is 21 (AR 20-21.) definition case. not of disability Therefore, relevant with the regard in a workers conclusion to by a [Plaintiff s] The ALJ gave some weight to the opinion of the 22 orthopedic examiner, Dr. Sophon, but gave the greatest weight 23 to the opinion of the state-agency reviewing physicians, Drs. 24 Ormsby and Brodsky, because they are highly qualified physicians 25 and psychologists who are experts in the Social Security 26 disability programs, the rules in 20 C.F.R. 404.1527(f) and 27 416.927(f), and in the evaluation of the medical issues in 28 disability claims under the Act. 15 (AR 21.) The ALJ ultimately 1 rejected Dr. Sophon s opinion that Plaintiff retained the RFC to 2 perform medium work, finding that Plaintiff could perform only 3 light work subject to certain limitations. 4 (AR 18.) Dr. Schilling s opinion that Plaintiff suffered a 50% whole 5 person impairment was likely compatible with the ALJ s finding 6 that Plaintiff retained the RFC to perform reduced light work. 7 Plaintiff described his prior work as requiring him to repeatedly 8 lift and carry tires weighing 50-150 pounds, with frequent 9 bending, stooping, squatting, and kneeling.6 (AR 206, 212.) 10 Even if he suffered from a 50% whole person impairment, that 11 level of impairment was likely compatible with an RFC for reduced 12 light work, which requires lifting only 10 pounds frequently and 13 20 pounds occasionally and only occasional postural movements. 14 Moreover, Dr. Schilling found Plaintiff capable of work, stating 15 that Plaintiff was eligible for vocational rehabilitation if he 16 was unable to find modified or alternative work within his work 17 restrictions. (AR 266, 262.) In any event, to the extent Dr. 18 Schilling s opinion was incompatible with the ALJ s RFC 19 assessment, the ALJ did not err in discounting it, and remand is 20 not warranted. 21 As a preliminary matter, it appears from the record that Dr. 22 Schilling does not qualify as a treating source under 20 C.F.R. 23 §§ 404.1502 and 416.902. The medical evidence shows that on May 24 22, 2008, Dr. Schilling examined Plaintiff and completed a 25 Physical Medicine and Rehabilitation Evaluation and an 26 27 28 6 Plaintiff apparently claimed that the tire he was trying to lift when he injured himself weighed 250 pounds. (AR 229.) 16 1 Electro-Neurodiagnostic study. (AR 259.) Dr. Schilling then 2 examined Plaintiff on October 5, 2008, when he declared him 3 permanent and stationary for workers compensation purposes. 4 255.) (AR Dr. Schilling apparently did not examine Plaintiff again, 5 however, until March 4, 2010, when he completed Plaintiff s 6 updated permanent and stationary evaluation. (Id.) Although 7 Plaintiff apparently claimed that he visited Dr. Schilling once 8 a month (AR 37) and that Dr. Schilling prescribed all of his 9 current medications (AR 193, 199), there is no objective evidence 10 in the record that Plaintiff sought Dr. Schilling s help after 11 May 2008 for any reason beyond the preparation of his disability 12 reports. On the contrary, Dr. Schilling, in his March 2010 13 report, stated: 14 [T]he patient may necessitate pharmaceutical agents to 15 include, but not limited to, analgesics and NSAIDs. 16 These medications would be prescribed by the medical 17 physician. 18 future medical care should be evaluated on an annual 19 basis. 20 (AR 262.) It is further my opinion that the issue of This passage suggests that Plaintiff did not 21 frequently visit Dr. Schilling for treatment but merely requested 22 his assistance in preparing medical reports for his disability 23 claims. Given Plaintiff s subjective complaints of severe, 24 disabling back pain, annual medical evaluations likely fall 25 outside the bounds of accepted medical practice for the type of 26 treatment and/or evaluation required for [Plaintiff s] medical 27 condition(s). 20 C.F.R. §§ 404.1502, 416.902. As such, 28 Plaintiff likely did not have an ongoing treatment relationship 17 1 with Dr. Schilling, and Dr. Schilling was not a treating source.7 2 In that event, his opinions were not entitled to special weight. 3 As a general matter, the Court notes that the record is 4 conspicuously void of recent evidence from any treating 5 physicians. Plaintiff submitted evidence from his March 2008 ER 6 visit (AR 276-77), Dr. Rahman s August 6 and September 18, 2008 7 examinations (AR 203-10, 201-02), and Dr. Mulvania s September 8 2008 surgical consultation (AR 211-20), but he has not submitted 9 any treating-doctor evidence generated after the Fall 2008 10 period. Such a large gap in treatment is suspect in light of 11 Plaintiff s statements regarding the severity of his symptoms (AR 12 35, 169, 205, 162) and the fact that Plaintiff apparently had 13 health insurance during that time (AR 258). 14 Even if Dr. Schilling did qualify as a treating source and 15 in fact regularly treated Plaintiff, the ALJ did not err. To the 16 extent the ALJ rejected Dr. Schilling s opinion, he provided 17 specific and legitimate reasons for doing so that were supported 18 by substantial evidence. 19 The ALJ was entitled to credit Dr. Sophon s opinion over Dr. 20 Schilling s because Dr. Sophon s opinion was based upon 21 independent clinical findings and was thus substantial evidence 22 upon which the ALJ could properly rely. See Tonapetyan, 242 F.3d 23 at 1149 (explaining that a nontreating physician s contrary 24 opinion may constitute substantial evidence when it is 25 26 27 28 7 Although Dr. Schilling s March 4, 2010 report is titled Primary Treating Physician s Updated Permanent and Stationary Evaluation, the medical evidence of record does not establish that Dr. Schilling was in fact a treating source for Social Security purposes. 18 1 consistent with other independent evidence in the record ). As 2 the ALJ noted, Dr. Sophon conducted a complete orthopedic 3 examination of Plaintiff and found that he had normal curvature 4 of the cervical spine, no evidence of tenderness or spasm in the 5 thoracic and lumbar spine, and a negative straight-leg-raising 6 test. 7 (AR 20, 229-33.) Moreover, Dr. Schilling relied on Plaintiff s subjective 8 complaints in preparing his March 2010 workers compensation 9 report. Dr. Schilling noted that [Plaintiff] states that his 10 lower back pain is significantly worse since 9/5/98 and [t]he 11 patient states a severity rating of 8 on a scale of 0 to 10. 12 (AR 255.) Dr. Schilling noted that his findings were [b]ased 13 upon . . . examination findings and the patient s subjective 14 complaints. (AR 260 (emphasis added).) The ALJ, however, found 15 Plaintiff s subjective complaints not credible, pointing to 16 evidence of Plaintiff s malingering. Specifically, the ALJ noted 17 Plaintiff s appearance at the hearing in a wheelchair; Dr. 18 Sophon s observation that, despite moaning and groaning with 19 every movement of his body throughout his February 2010 exam, 20 Plaintiff did not demonstrate any symptoms of pain when walking 21 out of the examination room; and Plaintiff s conveniently 22 bringing only the MRI dated March 13, 2008, to the hearing when a 23 June 2008 MRI showed evidence of improvement in Plaintiff s 24 condition. (AR 19.) As discussed more fully in section VI.B 25 below, the ALJ s rejection of Plaintiff s subjective testimony 26 was proper. Because Dr. Schilling relied partly on Plaintiff s 27 discredited subjective complaints, the ALJ was entitled to 28 disregard his opinion. See Andrews v. Shalala, 53 F.3d 1035, 19 1 1043 (9th Cir. 1995) ( [A]n opinion of disability premised to a 2 large extent upon the claimant s own accounts of his symptoms and 3 limitations may be disregarded, once those complaints have 4 themselves been properly discounted. ). 5 The ALJ was also entitled to adopt the opinions of 6 nonexamining physicians Drs. Loomis and Brodsky over the opinion 7 of Dr. Schilling. (AR 21, 246-48, 268-75); see Thomas v. 8 Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) ( [O]pinions of non9 treating or non-examining physicians may . . . serve as 10 substantial evidence when . . . consistent with independent 11 clinical findings or other evidence in the record. ). After 12 reviewing Dr. Sophon s independent-examination findings, Dr. 13 Loomis cited Plaintiff s normal and equal muscle size on each 14 side and lack of atrophy in the legs in his opinion that 15 Plaintiff was capable of medium work. (AR 248.) His opinion was 16 consistent with Dr. Sophon s finding that Petitioner could lift 17 50 pounds occasionally and 25 pounds frequently. (AR 233.) Upon 18 reviewing Dr. Sophon s and Dr. Schilling s 2010 clinical reports, 19 however, Dr. Brodsky opined that Plaintiff was capable of 20 performing only light work. (AR 273-75.) This finding was 21 consistent with Dr. Schilling s updated report, which noted that 22 Petitioner had a 50% whole person impairment. (AR 266.) In 23 any event, any conflict in the properly supported medical opinion 24 evidence was the sole province of the ALJ to resolve. 25 53 F.3d at 1041. Andrews, Indeed, the ALJ gave Plaintiff the benefit of 26 the doubt in concluding that he was capable of light work rather 27 than adopting Drs. Sophon s and Loomis s findings that he could 28 perform medium work. 20 1 The ALJ also was entitled to reject Dr. Schilling s whole 2 person rating to the extent it was a conclusion about 3 Plaintiff s disability for workers compensation purposes. 4 Initially, the ALJ correctly noted that the whole person 5 finding was not determinative. (AR 21.) Although the ALJ may 6 have overstated the matter by then noting that it was not 7 relevant (id.), it is important to distinguish those portions 8 of Dr. Schilling s assessment that represent medical findings 9 from those that represent conclusions regarding Plaintiff s 10 disability. See Coria v. Heckler, 750 F.2d 245, 247-48 (3d Cir. 11 1984) (explaining that because of differences in the definition 12 of disability in the state workers compensation and Social 13 Security contexts, the ALJ could reasonably disregard so much of 14 the physicians reports as set forth their conclusions as to 15 [plaintiff s] disability for workers compensation purposes, but 16 objective medical evidence in reports elicited for workers 17 compensation should be evaluated by the same standards as medical 18 evidence in Social Security reports). The ALJ was entitled to 19 disregard Dr. Schilling s 50% whole person impairment 20 determination because it was an opinion regarding Plaintiff s 21 ultimate disability status, which the ALJ was not obligated to 22 accept. See 20 C.F.R. §§ 404.1527(d)(1) ( A statement by a 23 medical source that you are disabled or unable to work does 24 not mean that we will determine that you are disabled. ), 25 416.927(d)(1) (same); SSR 96-5p, 1996 WL 374183, at *5 26 (explaining that treating-source opinions that a person is 27 disabled or unable to work can never be entitled to controlling 28 weight or given special significance ). 21 Although the ALJ found 1 Dr. Schilling s 50% whole person impairment rating not 2 relevant, he elsewhere noted that it was simply not 3 determinative and expressly stated that [t]he objective 4 clinical and diagnostic evidence used by the claimant s physician 5 in his workers compensation case has been considered. 6 21.) (AR 20- Thus, the ALJ properly evaluated Dr. Schilling s medical 7 opinions just as he would evaluate any other medical opinion. 8 See Booth, 181 F. Supp. 2d at 1105. 9 To the extent the ALJ discounted the medical findings in Dr. 10 Schilling s report, he gave specific and legitimate reasons for 11 doing so. Specifically, he noted the following: (1) Dr. Sophon s 12 findings that Plaintiff was able to ambulate without any 13 assistive device and did not demonstrate any symptoms of pain 14 when walking out of the examination room; (2) Plaintiff s 15 exhibition of a normal gait without a cane during Dr. Sophon s 16 orthopedic examination; and (3) Plaintiff s exhibition of normal 17 straight-leg-raising tests and motor strength, no tenderness or 18 spasm, and no muscle atrophy in the thighs, calves, or arms. (AR 19 19.) 20 As to Plaintiff s contention that the ALJ erred by failing 21 to mention Dr. Rahman s findings (J. Stip. at 9), this argument 22 is unpersuasive. The ALJ extensively referenced Dr. Rahman s 23 examinations in his opinion, noting Dr. Rahman s findings that 24 Plaintiff exhibited a limp; used a cane; had loss of flexion and 25 extension, tenderness, and spasm; and tested positive for 26 straight-leg raising and motor weakness. (AR 20.) Nothing in 27 the ALJ s decision suggests that he selectively analyzed the 28 medical evidence, and the ALJ was not required to discuss every 22 1 piece of evidence in the record. See Howard, 341 F.3d at 1012. 2 It is apparent that Dr. Rahman s medical findings were duly 3 considered. 4 5 6 3. The ALJ properly assessed the findings of the consultative examiner Plaintiff contends that the ALJ erred in adopting any 7 findings from Dr. Sophon s inherently defective report because 8 Dr. Sophon failed to review any medical evidence of record prior 9 to rendering his assessment and took no radiological studies of 10 this Plaintiff s spine before rendering his ridiculous opinion. 11 (J. Stip. at 19.) Plaintiff does not, however, cite any case law 12 to support his contention that an examiner must review prior 13 medical evidence or take radiological studies to perform a proper 14 consultative examination. The ALJ did not err in adopting Dr. 15 Sophon s findings because they were based upon independent, 16 objective clinical results. 17 18 a. Applicable law An ALJ must evaluate the degree to which [medical] opinions 19 consider all of the pertinent evidence in [a claimant s] claim, 20 including opinions of treating and other examining sources. 21 C.F.R. §§ 404.1527(c)(3), 416.927(c)(3). 20 The more relevant 22 evidence that a medical source presents to support his opinion, 23 particularly medical signs and laboratory findings, the greater 24 weight an ALJ will give that opinion. Id. Nevertheless, a 25 nontreating physician s opinion alone constitutes substantial 26 evidence to the extent it rests on objective clinical tests. 27 Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1997); Tonapetyan, 28 242 F.3d at 1149. 23 1 2 b. Discussion Although Dr. Sophon did not review other medical evidence of 3 record or perform radiological studies of Plaintiff, his medical 4 opinions nevertheless rested upon objective clinical tests. Dr. 5 Sophon performed a complete orthopedic evaluation of Plaintiff. 6 (AR 229-33.) As part of this evaluation, Dr. Sophon noted that 7 Plaintiff s cervical spine reveal[ed] normal curvature, no 8 deformity or asymmetry, and that Plaintiff s thoracic and lumbar 9 spine reveal[ed] no evidence of tenderness or muscle spasm. 10 (AR 231.) Plaintiff s lower body exhibited range of motion 11 within normal limits, with no evidence of muscle atrophy or 12 spasm. (AR 232.) Dr. Sophon further noted that Plaintiff 13 exhibited negative straight-leg-raising results both sitting and 14 supine and that despite moaning and groaning with every 15 movement of his body during the examination, Plaintiff did not 16 demonstrate any symptoms of pain when walking out of the 17 examination room. (AR 231.) Dr. Sophon s consultative report 18 was not defective but rather rested upon independent clinical 19 findings and thus constituted substantial evidence. 20 Tonapetyan, 242 F.3d at 1149. See Accordingly, the ALJ did not err 21 in referencing Dr. Sophon s report. 22 B. 23 Plaintiff argues that the ALJ (1) clearly failed to cite The ALJ Properly Assessed Plaintiff s Credibility 24 any clear and convincing reasons to reject Plaintiff s 25 subjective statements regarding his limitations and (2) 26 misstated the record in stating that the June 2008 MRI showed 27 much less in the way of abnormal findings. 28 21.) (J. Stip. at 7-8, The ALJ did cite clear and convincing reasons for rejecting 24 1 Plaintiff s subjective statements regarding pain and his degree 2 of limitation, and in any event, the ALJ cited affirmative 3 evidence of malingering, thereby lowering the standard for 4 rejecting Plaintiff s subjective statements below that of clear 5 and convincing evidence. Moreover, the June 2008 MRI apparently 6 did show some evidence of improvement in Plaintiff s condition, 7 but even if it did not, any error the ALJ made in referring to it 8 was harmless. 9 10 1. Applicable law An ALJ s assessment of a claimant s credibility and pain 11 severity is entitled to great weight. 12 877 F.2d 20, 22 (9th Cir. 1989). See Weetman v. Sullivan, [T]he ALJ is not required to 13 believe every allegation of disabling pain, or else disability 14 benefits would be available for the asking, a result plainly 15 contrary to 42 U.S.C. § 423(d)(5)(A). Molina v. Astrue, 674 16 F.3d 1104, 1112 (9th Cir. 2012) (internal quotation marks 17 omitted). In evaluating a claimant s subjective symptom 18 testimony, the ALJ engages in a two-step analysis. 19 Lingenfelter, 504 F.3d at 1035-36. See First, the ALJ must 20 determine whether the claimant has presented objective medical 21 evidence of an underlying impairment [that] could reasonably be 22 expected to produce the pain or other symptoms alleged. 23 1036 (internal quotation marks omitted). Id. at If such objective 24 medical evidence exists, the ALJ may not reject a claimant s 25 testimony simply because there is no showing that the impairment 26 can reasonably produce the degree of symptom alleged. Smolen v. 27 Chater, 80 F.3d 1273, 1282 (9th Cir. 2011) (emphasis in 28 original). When the ALJ finds a claimant s subjective complaints 25 1 not credible, the ALJ must make specific findings that support 2 the conclusion. 3 Cir. 2010). See Berry v. Astrue, 622 F.3d 1228, 1234 (9th Absent affirmative evidence of malingering, those 4 findings must provide clear and convincing reasons for 5 rejecting the claimant s testimony. Lester, 81 F.3d at 834. If 6 evidence of malingering exists, however, the ALJ may reject the 7 claimant s symptom testimony by stating why the testimony is 8 unpersuasive. 9 2006). Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. In making a credibility determination, the ALJ must 10 specifically identify what testimony is credible and what 11 testimony undermines the claimant s complaints . . . . 12 (internal quotation marks omitted). Id. In determining credibility, 13 an ALJ may engage in ordinary techniques of credibility 14 evaluation. 15 2005). Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. [Q]uestions of credibility and resolutions of conflicts 16 in the testimony are functions solely of the [ALJ]. 17 F.3d at 972. Greger, 464 If the ALJ s credibility finding is supported by 18 substantial evidence in the record, the reviewing court may not 19 engage in second-guessing. 20 21 2. Thomas, 278 F.3d at 959. Background Plaintiff complained of back pain so severe that it 22 interfered with daily activities such as bathing, shaving, 23 dressing, and preparing meals. (AR 169, 205, 162.) He claimed 24 that his pain had increased in severity after his initial injury, 25 with worsening pain symptoms around December 30, 2009, and again 26 in March 2010. (AR 183, 191.) At his hearing before the ALJ, 27 Plaintiff appeared in a wheelchair and complained of intense pain 28 from sitting for a prolonged period in his chair. 26 (AR 44, 36.) 1 Plaintiff described a typical day: 2 I just get up and lay down, put my feet where they re 3 reclined up. 4 and I have a recliner in there. 5 recliner. 6 me something. Sometimes I ll make it to the living room Put my feet up on the My wife will get me something, come and feed The rest of the family will help me. 7 (AR 35.) 8 During his examination with Dr. Sophon, Plaintiff 9 report[ed] constant sharp, burning pain in the low back and 10 stated that this pain was made worse with prolonged sitting, 11 standing, walking, bending, and lifting. (AR 229.) Dr. Sophon 12 noted that Plaintiff was constantly moaning and groaning, 13 stating aggravation of pain in every movement of his body. 14 231.) (AR During his March 2010 workers compensation assessment, 15 Plaintiff complained of constant pain with a severity level of 8 16 on a scale from 0 to 10. (AR 255.) He further complained of 17 difficulty sleeping at night because of pain and weakness in both 18 legs that made it difficult to walk without a cane or walker. 19 (Id.) Plaintiff stated that he stopped working in March 2008 and 20 that he was still unable to work because of his condition. (AR 21 137.) 22 23 3. Discussion In his decision, the ALJ found that [Plaintiff s] medically 24 determinable impairments could reasonably be expected to cause 25 the alleged symptoms; however, [Plaintiff s] statements 26 concerning the intensity, persistence and limiting effects of 27 these symptoms are not credible to the extent they are 28 inconsistent with the above residual functional capacity 27 1 assessment. (AR 19.) In support of this determination, the ALJ 2 cited (1) Dr. Sophon s observations that Plaintiff was able to 3 ambulate without any assistive device, demonstrated a normal gait 4 without a cane, and did not show symptoms of pain while walking 5 out of the examination room, contrary to Plaintiff s presentation 6 in the examination room, where Plaintiff was constantly moaning 7 and groaning and complaining of pain ; (2) Plaintiff s refusal of 8 recommended epidural steroid injections; (3) Plaintiff s 9 presentation at the hearing in a wheelchair with no objective 10 basis in file for any assistive device ; (4) Dr. Sophon s 11 observations that Plaintiff s back did not exhibit tenderness or 12 muscle spasm and that Plaintiff showed normal motor strength and 13 reflexes with no atrophy of the thighs, calves, or arms; and (5) 14 Plaintiff s bringing a copy of the MRI dated April 13, 2008, to 15 the hearing but conveniently not bringing a copy of the June 16 2008 MRI, which showed much less in the way of abnormal 17 findings. (AR 19.) Because Dr. Sophon s observations 18 constituted affirmative evidence of malingering by Plaintiff, the 19 ALJ did not need to provide clear and convincing reasons for 20 rejecting Plaintiff s claims. Even absent affirmative evidence 21 of malingering, however, the ALJ s articulated reasons for 22 rejecting Plaintiff s testimony were in fact clear and 23 convincing. 24 First, Dr. Sophon s observations that Plaintiff could 25 ambulate without any assistive device, demonstrated no symptoms 26 of pain when walking out of the examination room, and 27 demonstrated a normal gait without a cane constituted affirmative 28 evidence of malingering. During Dr. Sophon s February 2, 2010 28 1 examination, Plaintiff was constantly moaning and groaning, 2 stating aggravation of pain in the low back in every movement of 3 his body, especially when he was taking his coat off for the 4 examination. (AR 231.) When leaving the examination room, 5 however, [h]e was noted not to demonstrate any symptoms of 6 pain. (Id.) Moreover, although Plaintiff presented at his 7 appointment with a cane, he demonstrated a normal gait without 8 using it. (Id.) These observations by the consultative examiner 9 undermined Plaintiff s claims that his daily activities were 10 limited and that he required a cane and wheelchair. They also 11 provided affirmative evidence of malingering, lowering the 12 standard that the ALJ had to meet to reject Plaintiff s 13 testimony.8 See Greger, 464 F.3d at 972 (explaining that when 14 evidence of malingering is present, an ALJ may reject a 15 claimant s symptom testimony by making a credibility 16 determination and stating why the testimony is not persuasive); 17 cf. Morgan v. Comm r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th 18 Cir. 2009) ( Without affirmative evidence showing that the 19 claimant is malingering, the [ALJ s] reasons for rejecting the 20 claimant s testimony must be clear and convincing. ). Therefore, 21 to the extent Dr. Sophon s observations constituted evidence of 22 malingering, the ALJ did not err. Even if these observations did 23 not constitute evidence of malingering, they provided clear and 24 convincing reasons to reject Plaintiff s testimony (as did the 25 26 27 28 8 In addition, state-agency physician Dr. S. Brodsky noted during his August 13, 2010 assessment that Plaintiff s allegations were not wholly credible because the severity of the alleged impairments [was] disproportionate to that supported by the objective medical findings. (AR 273.) 29 1 ALJ s other articulated bases for rejecting Plaintiff s 2 testimony). 3 Second, the ALJ was entitled to discount Plaintiff s 4 credibility on account of Plaintiff s refusal of recommended 5 epidural injections. The ALJ, in rejecting Plaintiff s 6 subjective statements regarding his levels of pain and 7 impairment, noted that Plaintiff s refusal of epidural injections 8 demonstrate[d] a possible unwillingness to do what was necessary 9 to improve his condition and may also be an indication that his 10 symptoms were not as severe as purported. (Id.) Moreover, 11 Plaintiff also refused to take several recommended oral 12 medications (AR 41-42, 201), further undermining his subjective 13 complaints. Plaintiff stated that he did not accept injections 14 because he wanted permanent, not temporary, relief (AR 36-37), 15 but the ALJ was entitled to believe that if Plaintiff s symptoms 16 were as severe as he claimed, he would have jumped at any 17 opportunity for relief. See Orn v. Astrue, 495 F.3d 625, 638 18 (9th Cir. 2007) ( [I]f a claimant complains about disabling pain 19 but fails to seek treatment, or fails to follow prescribed 20 treatment, for the pain, an ALJ may use such failure as a basis 21 for finding the complaint unjustified or exaggerated. ) 22 Third, Plaintiff s presentation at the hearing in a borrowed 23 wheelchair entitled the ALJ to discount his credibility. 24 Although Drs. Rahman, Mulvania, and Sophon all noted that 25 Plaintiff ambulated with the aid of a cane (AR 204, 213, 231), 26 there is no objective evidence in the record that one had ever 27 been prescribed. Dr. Sophon noted that Plaintiff exhibited a 28 normal gait without the use of a cane. 30 (AR 231.) A wheelchair 1 was never prescribed for Plaintiff, and Plaintiff s mother 2 admitted at the hearing that Plaintiff had borrowed the 3 wheelchair from his grandmother. (AR 43-44); see Chaudhry v. 4 Astrue, 688 F.3d 661, 671 (9th Cir. 2012) ( plaintiff s non5 prescribed use of a wheelchair and unwarranted use of a cane 6 properly considered by ALJ in determining that [Plaintiff s] 7 subjective expression of his limitations lacked credibility ). 8 Fourth, Dr. Sophon s report that Plaintiff s back did not 9 exhibit tenderness or muscle spasm and that he showed normal 10 motor strength and reflexes, with no atrophy of the thighs, 11 calves, or arms, suggested that Plaintiff s condition had largely 12 improved since March 2008, as doctors had predicted soon after 13 his injury would happen (AR 204), contrary to Plaintiff s 14 contention that his symptoms worsened (AR 183, 191). At the 15 consultative examination, Plaintiff demonstrated motor strength 16 within normal limits, at 5/5, and did not demonstrate any 17 neurological deficits besides diminished sensation in the lower 18 left extremity. (AR 232.) Plaintiff appeared sufficiently 19 robust for Dr. Sophon to opine that Plaintiff was capable of 20 lifting and carrying 50 pounds occasionally and 25 pounds 21 frequently, although he would be restricted to sitting, standing, 22 or walking for six hours each in an eight-hour day. (AR 233.) 23 This medical evidence constituted a legally sufficient reason to 24 reject Plaintiff s subjective statements of disabling pain, and 25 the Court may not engage in second-guessing of this finding. 26 (AR 19); Thomas, 278 F.3d at 959. 27 Finally, the ALJ cited as a reason for discrediting 28 Plaintiff s testimony the fact that Plaintiff brought to the hearing the MRI dated March 13, 2008, but conveniently did not 31 1 bring a second MRI performed three months later that showed much 2 less in the way of abnormal findings. (AR 19.) Although this 3 second MRI is not included in the record, it was described by Dr. 4 Schilling as showing a 4mm central disc protrusion with mild 5 spondylosis. (AR 259.) By contrast, the MRI dated March 13, 6 2008, showed L3-4: 1-2 mm bulge stenosis and L4-5: 4-5 mm disc 7 herniation and moderate canal stenosis. (Id.) Although both 8 MRI scans showed herniations/protrusions of roughly the same size 9 - although the later one was slightly smaller - the later MRI 10 apparently did not show a one- to two-millimeter bulge stenosis 11 at L3-4 or any evidence of canal stenosis. (Id.) Although the 12 ALJ may have overstated the matter in saying that the second MRI 13 showed much less in the way of abnormal findings, the second 14 MRI apparently evidenced some improvement in Plaintiff s 15 condition. Plaintiff has not given any reasons for bringing only 16 the first MRI to the administrative hearing. Moreover, even 17 after obtaining counsel, Plaintiff did not produce the second MRI 18 to the Appeals Council (AR 7), which could have considered the 19 additional evidence, see Taylor, 659 F.3d at 1233 (quoting 20 20 C.F.R. § 404.970(b)), and he does not contend that the ALJ failed 21 to develop the record by not obtaining it. In any event, as 22 discussed herein, the ALJ gave ample other reasons for rejecting 23 Plaintiff s subjective testimony, and thus any error he may have 24 committed in faulting Plaintiff for failing to bring the June 25 2008 MRI was harmless. See Stout v. Comm r, Soc. Sec. Admin., 26 454 F.3d 1050, 1055 (9th Cir. 2006) (ALJ s error harmless when 27 inconsequential to the ultimate nondisability determination ). 28 Plaintiff s argument that the ALJ exhibited bias against him in noting that he conveniently did not bring the June 2008 MRI 32 1 to the hearing is incorrect. See Rollins v. Massanari, 261 F.3d 2 853, 858 (9th Cir. 2001) ( [E]xpressions of impatience, 3 dissatisfaction, annoyance, and even anger, that are within the 4 bounds of what imperfect men and women . . . sometimes display 5 do not establish bias. ) (quoting Liteky v. United States, 510 6 U.S. 540, 555-56, 114 S. Ct. 1147, 1157, 127 L. Ed. 2d 474 7 (1994)). The ALJ s implication that Plaintiff perhaps 8 purposefully did not submit the June 2008 MRI does not establish 9 bias against Plaintiff but rather exhibits the ALJ s legitimate 10 concern that Plaintiff may have been attempting to keep evidence 11 of his improvement out of the record. Remand on these grounds is 12 unwarranted. 13 VII. CONCLUSION 14 Consistent with the foregoing, and pursuant to sentence four 15 of 42 U.S.C. § 405(g),9 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: July 23, 2013 23 24 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 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. 33

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