Ora Mae Fasick v. Michael J Astrue, No. 5:2012cv01314 - Document 14 (C.D. Cal. 2013)

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

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 ORA MAE FASICK, 10 Plaintiff, 11 vs. 12 13 CAROLYN W. COLVIN, Acting Commissioner of Social Security,1 14 Defendant. 15 ) Case No. EDCV 12-1314-JPR ) ) ) MEMORANDUM OPINION AND ORDER ) AFFIRMING THE COMMISSIONER ) ) ) ) ) ) ) 16 17 I. PROCEEDINGS 18 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 March 26, 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 28 Michael J. Astrue as the proper Respondent. 1 1 below, the Commissioner s decision is affirmed and this action is 2 dismissed. 3 II. BACKGROUND 4 Plaintiff was born on September 21, 1956. 5 Record ( AR ) 111.) (Administrative She has a high school education and 6 vocational training as a pharmacy technician. (AR 156-57.) She 7 previously worked as a cashier, pharmacy technician, and 8 substitute teacher. 9 (AR 130-36, 145-46.) On July 25, 2009, Plaintiff filed an application for DIB. 10 (AR 109-15.) Plaintiff alleged that she had been unable to work 11 since June 15, 2008, because of foot pain, back injury, anxiety 12 attacks, choking feeling, sleeplessness, osteo, shortness of 13 breath, and a work-related back injury. (AR 111, 143.) Her 14 application was denied initially, on October 13, 2009 (AR 44), 15 and upon reconsideration, on February 26, 2010 (AR 45). 16 17 ALJ. On June 7, 2010, Plaintiff requested a hearing before an (AR 58.) A hearing was held on May 16, 2011, at which 18 Plaintiff, who was represented by counsel, appeared and 19 testified; a vocational expert ( VE ) also testified. 20 43.) (AR 29- In a written decision issued on June 10, 2011, the ALJ 21 determined that Plaintiff was not disabled. (AR 8-22.) On June 22 11, 2012, the Appeals Council denied Plaintiff s request for 23 review. (AR 1-4.) 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 and decision should be upheld if they are free of legal error and 28 supported by substantial evidence based on the record as a whole. 2 1 § 405(g); Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 2 1420, 1427, 28 L. Ed. 2d 842 (1971); Parra v. Astrue, 481 F.3d 3 742, 746 (9th Cir. 2007). Substantial evidence means such 4 evidence as a reasonable person might accept as adequate to 5 support a conclusion. Richardson, 402 U.S. at 401; Lingenfelter 6 v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 7 a scintilla but less than a preponderance. It is more than Lingenfelter, 504 8 F.3d at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 9 882 (9th Cir. 2006)). To determine whether substantial evidence 10 supports a finding, the reviewing court must review the 11 administrative record as a whole, weighing both the evidence that 12 supports and the evidence that detracts from the Commissioner s 13 conclusion. 14 1996). Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. If the evidence can reasonably support either affirming 15 or reversing, the reviewing court may not substitute its 16 judgment for that of the Commissioner. Id. at 720-21. 17 IV. THE EVALUATION OF DISABILITY 18 People are disabled for purposes of receiving Social 19 Security benefits if they are unable to engage in any substantial 20 gainful activity owing to a physical or mental impairment that is 21 expected to result in death or which has lasted, or is expected 22 to last, for a continuous period of at least 12 months. 42 23 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 24 (9th Cir. 1992). 25 A. 26 The ALJ follows a five-step sequential evaluation process in The Five-Step Evaluation Process 27 assessing whether a claimant is disabled. 20 C.F.R. 28 § 404.1520(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th 3 1 Cir. 1995) (as amended Apr. 9, 1996). In the first step, the 2 Commissioner must determine whether the claimant is currently 3 engaged in substantial gainful activity; if so, the claimant is 4 not disabled and the claim must be denied. § 404.1520(a)(4)(i). 5 If the claimant is not engaged in substantial gainful activity, 6 the second step requires the Commissioner to determine whether 7 the claimant has a severe impairment or combination of 8 impairments significantly limiting her ability to do basic work 9 activities; if not, a finding of not disabled is made and the 10 claim must be denied. § 404.1520(a)(4)(ii). If the claimant has 11 a severe impairment or combination of impairments, the third 12 step requires the Commissioner to determine whether the 13 impairment or combination of impairments meets or equals an 14 impairment in the Listing of Impairments ( Listing ) set forth at 15 20 C.F.R., Part 404, Subpart P, Appendix 1; if so, disability is 16 conclusively presumed and benefits are awarded. 17 § 404.1520(a)(4)(iii). If the claimant s impairment or 18 combination of impairments does not meet or equal an impairment 19 in the Listing, the fourth step requires the Commissioner to 20 determine whether the claimant has sufficient residual functional 21 capacity ( RFC )2 to perform her past work; if so, the claimant 22 is not disabled and the claim must be denied. 23 § 404.1520(a)(4)(iv). The claimant has the burden of proving 24 that she is unable to perform past relevant work. 25 F.2d at 1257. Drouin, 966 If the claimant meets that burden, a prima facie 26 27 28 2 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 case of disability is established. Id. If that happens or if 2 the claimant has no past relevant work, the Commissioner then 3 bears the burden of establishing that the claimant is not 4 disabled because she can perform other substantial gainful work 5 available in the national economy. § 404.1520(a)(4)(v). That 6 determination comprises the fifth and final step in the 7 sequential analysis. § 404.1520; Lester, 81 F.3d at 828 n.5; 8 Drouin, 966 F.2d at 1257. 9 10 B. The ALJ s Application of the Five-Step Process At step one, the ALJ found that Plaintiff had not engaged in 11 any substantial gainful activity since May 31, 2006.3 (AR 13.) 12 She found that although Plaintiff had worked after the alleged 13 onset date, it was an unsuccessful work attempt and thus did 14 not constitute disqualifying substantial gainful activity. 15 (Id.) At step two, the ALJ concluded that Plaintiff had the 16 severe impairments of fibromyalgia; osteopenia; hypertension; 17 mild Raynaud s syndrome; mild degenerative lumbar spine and 18 cervical spine; neuroma in the feet, status-post surgical 19 removals on the left; and obesity. (Id.) At step three, the 20 ALJ determined that Plaintiff s impairments did not meet or equal 21 any of the impairments in the Listing. (AR 16.) At step four, 22 the ALJ found that Plaintiff retained the RFC to perform light 23 24 25 26 3 Plaintiff s application for DIB alleged an onset date 27 of June 15, 2008. (See AR 111.) In her July 2009 Disability Report, however, Plaintiff alleged that she became unable to work 28 on May 31, 2006. (AR 143.) 5 1 work.4 (AR 17.) Based on the VE s testimony, the ALJ concluded 2 that Plaintiff was able to perform her past relevant work as a 3 pharmacy technician and retail cashier clerk. (AR 21.) At step 4 five, the ALJ concluded that Plaintiff was not disabled. (AR 5 22.) 6 V. DISCUSSION 7 Plaintiff alleges that the ALJ erred in (1) evaluating the 8 opinions of her treating physicians and (2) evaluating her 9 credibility. (J. Stip. at 3.) Neither contention warrants 10 reversal. 11 A. 12 Plaintiff contends that the ALJ failed to properly consider The ALJ Properly Evaluated the Medical Evidence 13 medical evidence from her treating physicians indicating that her 14 foot impairments significantly worsened in June 2008 and 15 remained disabling through the date of the hearing. 16 5-12.) (J. Stip. at Plaintiff does not appear to contest the ALJ s findings 17 as to any impairments other than her foot pain. (See id.) 18 Plaintiff is not entitled to remand because the ALJ provided 19 legally sufficient reasons for her evaluation of the medical 20 evidence. 21 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 occasional walking or standing. § 404.1567(a)-(b). 6 1 2 1. Applicable law In determining disability, the ALJ must develop the record 3 and interpret the medical evidence but need not discuss every 4 piece of evidence in the record. 5 1006, 1012 (9th Cir. 2003). Howard v. Barnhart, 341 F.3d The ALJ is responsible for resolving 6 conflicts in the medical evidence. Carmickle v. Comm r, Soc. 7 Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008). When evidence 8 in the record is susceptible to more than one rational 9 interpretation, the ALJ s decision must be affirmed. Vasquez v. 10 Astrue, 572 F.3d 586, 591 (9th Cir. 2009). 11 12 2. Relevant facts On October 28, 2005, Plaintiff reported to Physician s 13 Assistant Nitza Glick that her main problem is pain in her feet 14 that occurs exclusively as the day goes on, worse at the end of 15 the day ; she reported that there was no pain in the morning, 16 however. (AR 212.) A physical examination had unremarkable 17 results. (AR 213.) PA Glick referred Plaintiff to orthopedics 18 for her foot problems. 19 (AR 213-14.) On August 21, 2006, Plaintiff saw Dr. Panna Shah, who noted 20 that Plaintiff reported severe burning in her feet and 21 difficulty . . . walking and standing because of the pain. 22 239.) (AR A physical examination showed diminished temperature up 23 to ankles bilaterally and mild signs of polyneuropathy but 24 otherwise unremarkable results. (AR 239-40.) Plaintiff was 25 referred to an EMG nerve conduction study to rule out tarsal 26 tunnel syndrome and also to further investigate her symptoms in 27 terms of sciatica. (AR 240.) Plaintiff underwent the nerve 28 conduction study on September 13, 2006; it returned uniformly 7 1 normal results and no evidence of tarsal tunnel syndrome or 2 large fibre polyneuropathy. (AR 246.) On September 14, 2006, 3 Plaintiff returned to Dr. Shah for a follow-up exam; Dr. Shah 4 noted that the nerve conduction study results were normal but 5 Plaintiff continues to have a lot of pain in her legs and feet 6 and unfortunately has to stand at work for long hours. 7 247.) (AR On October 25, 2006, Dr. Shah saw Plaintiff again and 8 noted that Plaintiff s nerve conductions were normal and she 9 continues to have pain in her left feet and back pain but [a] 10 [l]ot of it is related to excess weight gain. 11 (AR 248.) On April 16, 2007, Plaintiff saw podiatrist Dr. Melissa 12 Claussen for aching pain, burning pain, shooting pain in her 13 feet. (AR 257.) Dr. Claussen noted that Plaintiff s pain was 14 made worse with putting shoes on and more activity but made 15 better by [t]aking her shoes off and rubbing her feet. (Id.) 16 She also noted that Plaintiff has custom-molded forefoot 17 orthoses, which she says does not seem to help much. (Id.) Dr. 18 Claussen examined Plaintiff and noted some tenderness in the feet 19 and Tinel s sign5 with palpation of the third interspace 20 bilaterally; she also noted that Plaintiff had normal muscle 21 strength, her rheumatology workups were negative, radiology 22 revealed no significant abnormality, Plaintiff s symptoms were 23 consistent with systemic neuropathy or nerve etiology, and 24 25 26 27 28 5 Tinel s sign is an indication of the existence of something; any objective evidence of a disease . . . as opposed to the subjective sensations (symptoms) of the patient. Tinel s sign - definition of Tinel s sign in the medical dictionary, The Free Online Medical Dictionary, Thesaurus and Encyclopedia, http://medical-dictionary.thefreedictionary.com/Tinel%27s+sign (last visited May 22, 2013). 8 1 Plaintiff s foot tenderness was consistent with a neuroma. (AR 2 257, 263.) 3 On June 5, 2007, Dr. Claussen gave Plaintiff injections into 4 the third interspace of both feet, which gave her significant 5 relief for several weeks. (AR 274.) Dr. Claussen noted that 6 Plaintiff returned for a second injection when the pain, burning 7 and tingling . . . returned because the first injections had 8 been so effective in relieving her pain. 9 (Id.) On July 16, 2007, Dr. Duc Nho Nguyen examined Plaintiff and 10 found that her neurological symptoms were normal and her 11 musculoskeletal examination showed normal range of motion, . . . 12 no edema and no tenderness. (AR 284.) Plaintiff saw Dr. Nguyen 13 again on November 6, 2007, at which time she reported back pain 14 and recurrent foot pain ; Dr. Nguyen noted that Plaintiff was 15 following up with podiatry. 16 (AR 287.) On June 19, 2008, Plaintiff saw Dr. Moses Park and reported 17 that she continued to wear orthotic shoes for her foot pain but 18 even in her shoes she could stand for only about an hour before 19 having significant pain. (AR 367.) Dr. Park reported that an x- 20 ray revealed a [s]mall calcaneal heel spur and advised 21 Plaintiff to continue to wear orthotics, exercise, and lose 22 weight. (Id.) He referred Plaintiff to orthopedics to discuss 23 possible resection of a neuroma. (Id.) He also noted that 24 Plaintiff s job does not require her to stand up for prolonged 25 of [sic] time, because she is substituting at school, but [s]he 26 may need to be standing for longer than an hour at a time if she 27 returns to her original work as a pharmaceutical technician. 28 (Id.) 9 1 On September 16, 2008, Plaintiff saw orthopedist Dr. Malcolm 2 Heppenstall. (AR 379.) He noted that Plaintiff reported 3 difficulty standing because of pain in her feet, which was not 4 significantly relieved by injections. (Id.) Dr. Heppenstall 5 examined both feet and noted no erythema, induration or evidence 6 of inflammation but definite tenderness to palpation over 7 healed incision sites in both feet. (Id.) He also noted that 8 Plaintiff s x-rays were within normal limits and her 9 [n]eurocirculatory status is otherwise normal. (Id.) He 10 recommended pain medication and wider and longer shoes. (Id.) 11 On September 30, 2008, Dr. Heppenstall reported that Plaintiff 12 [s]till has painful feet ; he encouraged her not to have any 13 more cortisone injections and again suggested appropriate wider 14 and longer shoes, but he noted that certainly nothing here 15 needs surgical approach. 16 (AR 376.) On November 11, 2008, however, Dr. Heppenstall operated on 17 Plaintiff to remove an interdigital neuroma in her left foot. 18 (AR 389.) He reported that Plaintiff tolerated the procedure 19 well and left the operating room in good condition. (Id.) The 20 next day, Dr. Heppenstall reported that Plaintiff was [d]oing 21 well post surgery. (AR 388.) On December 30, 2008, he noted 22 that Plaintiff was [i]mproving dramatically. (AR 395.) On 23 January 6, 2009, he noted that Plaintiff had an infection in her 24 foot but her [p]ain is significantly less at this time. 25 342.) (AR On February 10, 2009, Dr. Heppenstall noted that 26 Plaintiff s foot was improving but there was still moderate 27 discomfort. (AR 343.) He gave her some foot cookies to 28 relieve pressure on her metatarsal head areas. 10 (Id.) On March 1 17, 2009, Dr. Heppenstall noted that Plaintiff still had 2 moderate pain present in both feet, in the web spaces between 3 the 3rd and 4th toes, and gave her an injection for the pain. 4 (AR 345.) He noted that he would see her again in two weeks and 5 discuss her shoes and how they relate to her foot pain. 6 (Id.) On January 26, 2009, Plaintiff saw Dr. Park for a routine 7 visit. (AR 340.) Dr. Park noted that Plaintiff s sciatica has 8 gotten a little bit worse in the recent few weeks since she had 9 the neuroma surgery done, but she had [n]o significant 10 discomfort to the foot at this time. (Id.) On April 27, 2009, 11 Plaintiff again saw Dr. Park, who noted that Plaintiff had some 12 discomfort in her left foot at the balls of the feet but good 13 strength in all four extremities, [g]ood gait[,] and normal 14 balance. 15 (AR 347.) On May 12, 2009, Plaintiff saw Dr. Heppenstall, who noted 16 that her left foot was still somewhat improved but that she had 17 some problems with the right foot as well. (AR 358.) On May 18 18, 2009, Plaintiff was referred by Dr. Heppenstall to Dr. Robert 19 Klein for an electrodiagnostic study. (AR 354.) Dr. Klein noted 20 that Plaintiff had continuing pain in her left foot after her 21 surgery. (Id.) He performed a physical examination and noted 22 that Plaintiff had [n]ormal gait, no muscle weakness in the 23 legs, and equivocal Tinel s over the left tarsal tunnel with a 24 feeling of tingling on the foot that was not experienced on the 25 right. (Id.) The nerve conduction study and EMG exam showed 26 normal results with no electrical sign of peripheral 27 neuropathy, tarsal tunnel syndrome, or lumbar radiculopathy. 28 (Id.) 11 1 On June 2, 2009, Dr. Heppenstall noted that Plaintiff still 2 had moderate pain in her left foot but she seems to be getting 3 about reasonably well but discomfort does persist. 4 He prescribed antiinflammatory medication. (Id.) (AR 359.) On July 21, 5 2009, Dr. Heppenstall noted that Plaintiff still has trouble 6 between her 3rd and 4th toes, with persistent pain there, and 7 gave her an injection. 8 (AR 360.) On October 6, 2009, Plaintiff underwent a consultative 9 orthopedic examination with board-certified orthopedist Dr. 10 William Boeck, Jr. (AR 403-09.) 11 drove herself to the examination. Dr. Boeck noted that Plaintiff (AR 403.) Plaintiff stated 12 that she had suffered from tingling and pain in her feet since 13 2005 and that orthotics did not help. (Id.) She stated that she 14 continued to have pain in her left foot after her surgery and 15 could wear only slippers. (Id.) She stated that the pain was 16 aggravated by standing and walking. (Id.) Dr. Boeck observed 17 that Plaintiff was wearing slippers and her gait was somewhat 18 slow with a tendency to keep the weight off the ball of the foot, 19 particularly on the left side, but her range of motion in the 20 feet and ankles was normal. (AR 405-07.) Based on his physical 21 examination of Plaintiff and his observations during the 22 examination, Dr. Boeck concluded that Plaintiff was capable of 23 performing medium work with no postural or manipulative 24 limitations but would require proper orthotic management in this 25 regard. 26 (AR 407.) On October 15, 2009, state agency physician Dr. S. Laiken 27 reviewed the record and concluded that Plaintiff was capable of 28 12 1 performing medium work.6 2 (AR 417-21, 422-24.) On November 17, 2009, Dr. Heppenstall noted that Plaintiff 3 still has significant foot problems and definite tenderness 4 between the 3rd and 4th toes on her left foot. (AR 437.) He 5 stated that we may very well have to proceed with exploration of 6 this area, unless her discomfort resolves. 7 (Id.) On November 10, 2009, Plaintiff saw family practitioner Dr. 8 Daniel Bradford, who noted continuing pain in Plaintiff s left 9 foot as well as complications with infection and nonhealing and 10 then scarring and recurrence of the pain. (AR 439.) He noted 11 that Plaintiff complained that her foot pain was still bad, 12 probably worse than before the neuroma. (Id.) On November 24, 13 2009, Dr. Bradford saw Plaintiff for complaints of hypertension 14 and anxiety. (AR 438.) He also noted that Plaintiff did get to 15 see the orthopedist and has been referred to orthopedics 16 subspecialty for continued pain in her foot. (AR 438.) On 17 December 8, 2009, Dr. Bradford noted that Plaintiff saw a 18 specialist for her foot, who suggested reoperating on the 19 neuroma. (AR 441.) On December 22, 2009, Dr. Bradford noted 20 that Plaintiff had a neuroma on her toe. 21 (AR 440.) On February 18, 2010, state-agency physician Dr. G. Rivera- 22 Miya reviewed the record and concluded that Plaintiff was capable 23 of performing medium work. (AR 442-43.) 24 25 26 27 28 6 Medium work is defined as lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. 20 C.F.R. § 404.1567(c). The regulations further specify that [i]f someone can do medium work, we determine that he or she can also do sedentary and light work, as defined in § 404.1567(a)-(b). Id. 13 1 On March 22, 2010, Dr. Bradford noted that Plaintiff had 2 another surgery on her foot and was quite happy with the results 3 so far, says the pain is better and the site was healing much 4 better, and wanted to have the same surgery on the other foot. 5 (AR 450.) On May 25, 2010, Dr. Bradford noted that Plaintiff had 6 surgery on her toe and her pain in that toe was gone but she 7 was now experiencing pain in the toe next to it. (AR 449.) He 8 noted that she had had an injection but had no benefit from 9 that. 10 (Id.) On July 14, 2010, Plaintiff saw podiatrist Dr. John 11 Williams, who noted a possible recurrent neuroma in her left 12 foot. (AR 444.) He noted that she had surgeries in November 13 2008 and March 2010, the latter of which was more successful, 14 but Plaintiff continued to have shooting pain in her left foot 15 and similar symptoms in her right foot but not as severe. 16 (Id.) Dr. Williams noted pain on palpation of the left forefoot 17 and minimal tenderness to palpation in the right foot. (Id.) 18 He recommended a series of injections before considering 19 additional surgeries. 20 (Id.) On September 9, 2010, Dr. Bradford noted that Plaintiff 21 looks more comfortable than she has been in the past and her 22 foot pain in the toes is gone. (AR 446.) He noted that 23 Plaintiff elected not to have any more surgeries because her foot 24 pain might be connected to her fibromyalgia. (Id.) On December 25 13, 2010, Dr. Bradford noted that Plaintiff did have another 26 surgery for her neuroma on her foot and reported [s]ome 27 bruising there, but things are feeling better. 28 14 (AR 445.) 1 2 3. Analysis The ALJ found that Plaintiff s subjective complaints were 3 not entirely credible and her daily activities belied her 4 complaints of disabling pain. (AR 18.) She also made the 5 following finding: 6 The record reveals that the claimant s allegedly 7 disabling impairment was present at approximately the 8 same level of severity prior to the alleged onset date. 9 The fact that the impairment did not prevent the claimant 10 from working at that time strongly suggests that it would 11 not currently prevent work. 12 (AR 18.) 13 The ALJ then exhaustively summarized the aforementioned 14 medical evidence. (AR 19-21.) She gave significant but not 15 full weight to Dr. Boeck s opinion that Plaintiff could perform 16 medium work because Dr. Boeck had not had the benefit of 17 considering Plaintiff s hearing testimony or an opportunity to 18 review the medical evidence. (AR 21.) She also did not give 19 great weight to the determinations of the state-agency physicians 20 that Plaintiff could do medium work because they had not had the 21 benefit of considering the additional evidence submitted after 22 their review of the record, including medical evidence and 23 Plaintiff s hearing testimony. (Id.) The ALJ noted that her 24 determination of Plaintiff s RFC takes into account the benign 25 objective findings but also generously considers the claimant s 26 subjective complaints. (AR 21.) She also noted that all of the 27 physicians to consider Plaintiff s RFC found that Plaintiff was 28 not disabled and capable of performing medium work. 15 (Id.) She 1 gave Plaintiff the benefit of the doubt, however, and concluded 2 that Plaintiff was capable of performing only light work. (AR 3 21-22.) 4 Plaintiff argues that the ALJ erred in finding that the 5 severity of her foot pain was the same before the alleged onset 6 date as after. (J. Stip. at 4-12; AR 18.) That finding, 7 however, was supported by substantial evidence in the record. 8 The starting point in determining the onset of disability 9 is the individual s statement as to when the disability began. 10 Copeland v. Bowen, 861 F.2d 536, 541 (9th Cir. 1988.) If the 11 claimant s statement is not consistent with the medical or work 12 evidence, the ALJ must look to additional evidence in the 13 record to reconcile the discrepancy. 14 Id. Here, Plaintiff alternately claimed that her disability 15 began on May 31, 2006, and June 15, 2008. 16 144.) (See AR 111, 143, Plaintiff attempted to continue working as a pharmacy 17 technician in September 2006 and as a substitute teacher 18 periodically thereafter between 2007 and 2008; she finally 19 stopped attempting to work in June 2008. (See AR 144.) As the 20 ALJ correctly found, however, the record showed that Plaintiff s 21 symptoms did not change significantly from 2006 to 2008 or indeed 22 from either of those dates until the present date.7 To the 23 extent the ALJ erred in determining that Plaintiff s alleged 24 onset date was in May 2006 instead of June 2008, then, any such 25 26 27 28 7 Indeed, Plaintiff admits that [if] anything, Plaintiff has erred in failing to formally allege a more accurate onset date of September 2006. (J. Stip. at 26.) 16 1 error was harmless.8 See Stout v. Comm r, Soc. Sec. Admin., 454 2 F.3d 1050, 1055 (9th Cir. 2006) (nonprejudicial or irrelevant 3 mistakes harmless). 4 The record showed that Plaintiff began experiencing foot 5 pain as far back as 2005. (AR 212-14.) From 2006 all the way 6 through 2010, Plaintiff sought treatment for her foot pain, 7 including surgery and injections; she reported at times that her 8 foot pain had improved or gone away completely, and at other 9 times she reported that the pain had come back or worsened. (See 10 AR 239-40, 257, 274, 287, 340, 342, 343, 345, 354, 358, 359, 360, 11 367, 379, 388, 395, 437, 439, 444, 445, 446, 449, 450.) Doctors 12 who examined Plaintiff during those times noted very few 13 significant abnormalities, and objective test results were 14 largely normal. (See AR 213, 239-40, 246, 248, 257, 263, 284, 15 347, 354, 367, 379, 403-09.) The most recent evidence in the 16 record, Dr. Bradford s notes from September and December 2010, 17 shows that Plaintiff s foot pain was gone and she was feeling 18 19 20 21 22 23 24 25 26 27 28 8 Plaintiff also asserts that the ALJ erred in finding that the record did not contain any referrals or recommendation to see a specialist for fibromyalgia, such as a rheumatologist, because Dr. Kenneth Epstein, who Plaintiff saw in September 2006, was a rheumatologist. (AR 14, 241-42.) But Dr. Epstein apparently evaluated Plaintiff primarily for Lupus, not fibromyalgia, and thus the ALJ s finding that she never saw a rheumatologist for her fibromyalgia was correct; moreover, the report cited by Plaintiff doesn t mention her feet. (See AR 24142.) In any event, despite the paucity of medical evidence supporting Plaintiff s claims of fibromyalgia, the ALJ nonetheless concluded that it was a severe impairment, and therefore any error the ALJ might have committed in this regard was necessarily harmless. (See AR 13); Stout, 454 F.3d at 1055. Finally, the issue is irrelevant because Plaintiff does not contest the ALJ s findings as to her fibromyalgia. (See J. Stip. at 4-12.) 17 1 better after her surgery. 2 (AR 445-46.) Plaintiff cites the same evidence as the ALJ and essentially 3 argues that the ALJ should have relied on the various statements 4 in the record that Plaintiff s foot pain was worsening to find 5 her disabled, instead of relying on the various statements in the 6 record that Plaintiff s foot pain had improved or gone away 7 completely to find her not disabled. (See J. Stip. at 4-12.) 8 But the Court must consider the ALJ s decision in the context of 9 the entire record as a whole, and if the evidence is 10 susceptible to more than one rational interpretation, the ALJ s 11 decision should be upheld. Ryan v. Comm r of Soc. Sec., 528 12 F.3d 1194, 1198 (9th Cir. 2008) (internal quotation marks 13 omitted). Here, although certain evidence in the record, if 14 interpreted more favorably to Plaintiff, might lead to a 15 conclusion different from that reached by the ALJ, it is not this 16 Court s function to reinterpret the evidence. Any conflict in 17 the properly supported medical evidence was the sole province of 18 the ALJ to resolve. 19 (9th Cir. 2002). See Thomas v. Barnhart, 278 F.3d 947, 956-57 Reversal is not warranted on this basis.9 20 21 22 23 24 25 26 27 28 9 Plaintiff also argues that the ALJ should have found her disabled under the Social Security Medical-Vocational Guidelines (the Grids, see 20 C.F.R. pt. 404, subpart P, app. 200.00 et seq.) because she is over 50 years of age, incapable of performing past work with no transferable skills and with a sedentary residual functional capacity at most. (See J. Stip. at 12.) As discussed herein, the ALJ properly found at step four that Plaintiff was capable of performing her past relevant work; thus, the Grids, which are used at step five, did not apply. See Hoopai v. Astrue, 499 F.3d 1071, 1075 (9th Cir. 2007). In any event, the VE testified that Plaintiff did have transferrable skills (see AR 41), and Plaintiff cites no evidence in the record to the contrary. And under the Grids, a person of Plaintiff s age and educational background who has an RFC for sedentary work 18 1 B. The ALJ Did Not Err in Assessing Plaintiff s 2 3 Credibility Plaintiff argues that the ALJ failed to provide clear and 4 convincing reasons for discounting her credibility. 5 22-30.) (J. Stip. at Because the ALJ did provide clear and convincing reasons 6 supporting her evaluation of Plaintiff s testimony and those 7 reasons were supported by substantial evidence in the record, 8 reversal is not warranted on this basis. 9 10 1. Applicable law An ALJ s assessment of pain severity and claimant 11 credibility is entitled to great weight. See Weetman v. 12 Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. Heckler, 779 13 F.2d 528, 531 (9th Cir. 1986). [T]he ALJ is not required to 14 believe every allegation of disabling pain, or else disability 15 benefits would be available for the asking, a result plainly 16 contrary to 42 U.S.C. § 423(d)(5)(A). 17 F.3d 1104, 1122 (9th Cir. 2012). Molina v. Astrue, 674 In evaluating a claimant s 18 subjective symptom testimony, the ALJ engages in a two-step 19 analysis. See Lingenfelter, 504 F.3d at 1035-36. First, the 20 ALJ must determine whether the claimant has presented objective 21 medical evidence of an underlying impairment [that] could 22 reasonably be expected to produce the pain or other symptoms 23 alleged. Id. at 1036 (internal quotation marks omitted). If 24 such objective medical evidence exists, the ALJ may not reject a 25 26 (as Plaintiff concedes she does) and transferrable skills must be 27 found not disabled. See 20 C.F.R. pt. 404, subpart P, apps. 201.07, 201.08. Thus, even if the Grids applied, the ALJ did not 28 err in determining that Plaintiff was not disabled. 19 1 claimant s testimony simply because there is no showing that the 2 impairment can reasonably produce the degree of symptom alleged. 3 Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996) (emphasis in 4 original). When the ALJ finds a claimant s subjective complaints 5 not credible, the ALJ must make specific findings that support 6 the conclusion. 7 Cir. 2010). See Berry v. Astrue, 622 F.3d 1228, 1234 (9th Absent affirmative evidence of malingering, those 8 findings must provide clear and convincing reasons for 9 rejecting the claimant s testimony. Lester, 81 F.3d at 834. If 10 the ALJ s credibility finding is supported by substantial 11 evidence in the record, the reviewing court may not engage in 12 second-guessing. 13 14 2. Thomas, 278 F.3d at 959. Relevant facts In July 2009 Plaintiff completed a Disability Report 15 alleging that she was in constant pain and that pain in both 16 feet affects standing and walking. (AR 143.) She alleged that 17 lifting over 10-15 lbs. causes back pain to penetrate down legs 18 and into pelvic area, and the operation to remove the neuroma 19 from her left foot left her foot pain much worse! 20 (Id.) Not better! She stated that she had pain when showering, cooking, 21 cleaning, and grocery shopping. (Id.) She also stated that her 22 job as a pharmacy technician required her to be on her feet, as 23 did her job as a substitute teacher, and she could not 24 concentrate at work because the pain was all she could think 25 about. (Id.) She stated that her feet have become more painful 26 as time goes by. 27 (AR 144.) On August 1, 2009, Plaintiff filled out an Exertion 28 Questionnaire. (AR 159-61.) She stated that she did not walk 20 1 great distances unless I have too [sic], such as [a]round 2 grocery store if no motor cart. (AR 159.) She stated that she 3 could climb stairs but had to do so slowly and carefully; could 4 not lift anything over 10 pounds but could lift laundry baskets 5 three or four times a week and grocery baskets two or three times 6 a week; did her own grocery shopping two to three times a week; 7 cleaned her own home every day, including sweeping, mopping, 8 vacuuming, dusting, doing laundry, cooking, and gardening; could 9 drive a car for close to an hour before needing to stop and 10 stretch; and did yard work including planting, watering, weeding, 11 and trimming plants. (AR 160, 162.) She noted that she used a 12 motor cart for shopping but otherwise did not use any assistive 13 devices. (AR 161.) 14 constant. 15 She reiterated that her foot pain was (Id.) In November 2009, Plaintiff filled out another Disability 16 Report, alleging that her pain had gotten worse since the report 17 she completed in July 2009. (AR 169.) She stated that the pain 18 in her right foot had gotten worse and the pain in her left 19 foot had gotten so bad I can t put weight on the ball of it. 20 (Id.) She stated that she could not put any weight on her left 21 foot, needed to ride in a motorcart to grocery shop and needed 22 to have someone go and help me every time, and was in 23 constante [sic] pain to where it s all I can think about. 24 (Id.) She stated that she needed help from family and friends 25 for the cleaning and general up keep of her home. (AR 176.) 26 She also stated that she was walking less, because of the lump 27 on the bottom of my left foot. 28 (Id.) On July 7, 2010, Plaintiff submitted a handwritten statement 21 1 noting that she continued to have foot pain and that her brother 2 had come from Florida to help her with driving and household 3 chores. 4 (AR 180.) At the hearing, Plaintiff testified that she could not work 5 because of her left foot mostly. (AR 32.) She stated that she 6 had had three surgeries on her left foot but they only made it 7 worse. (AR 34.) She stated that she could stand [m]aybe 15 8 minutes at a time before having to rest, could vacuum for 15 to 9 20 minutes at a time but it took her three days to vacuum her 10 1500-square-foot house because she needed to rest so frequently, 11 and could not grocery shop without one of those carts. (Id.) 12 She testified that her pain in both feet was getting worse. 13 (AR 35.) She testified that she spent more than half of the 14 day sitting or lying down in a recliner. (AR 37.) She stated 15 that her brother had helped her with household chores until he 16 had a heart attack, and her husband helped as much as he can 17 but was gone a lot for work. (Id.) She stated that the 18 cortisone injections did not help her foot pain. 19 20 3. (AR 38.) Analysis The ALJ noted that she had considered Plaintiff s testimony 21 and her responses to the Exertional Questionnaire stating that 22 she could not stand for more than 15 minutes at a time, walk 23 great distances, lift more than 10 pounds, or do housework for 24 more than 15 to 30 minutes at a time. (AR 17-18.) She found 25 that Plaintiff s allegations concerning the intensity, 26 persistence and limiting effects of her symptoms are less than 27 fully credible . . . because those allegations are greater than 28 expected in light of the objective evidence of record. 22 (AR 18.) 1 The ALJ noted that Plaintiff underwent surgery for the neuroma on 2 her left foot, which would normally weigh in [Plaintiff s] 3 favor but was offset by the fact that the record reflects that 4 the surgery was generally successful in relieving the symptoms. 5 (Id.) She further noted that the positive objective clinical 6 and diagnostic findings since the alleged onset date . . . do not 7 support more restrictive functional limitations than those 8 assessed herein. (Id.) She also noted that no doctor had 9 endorse[d] the extent of [Plaintiff s] alleged functional 10 limitations. (Id.) She then made the following additional 11 findings as to Plaintiff s daily activities: 12 [D]espite her impairment, the claimant has engaged 13 in 14 interaction. 15 living including cleaning the bathroom, including the 16 tub, shower, counters, sinks, toilet, rug, mirror and 17 tile; she stated she was able to clean the kitchen 18 including sweep and mop floors, counters and stove; she 19 reported she could vacuum carpet and furniture; dust, 20 wash laundry and cook [(AR 159-62.)]. 21 physical and mental abilities and social interactions 22 required in order to perform these activities are the 23 same as those necessary for obtaining and maintaining 24 employment. 25 requires 26 activities, two factors weigh against considering these 27 allegations to be strong evidence in favor of finding the 28 claimant a somewhat normal level of daily activity and The claimant admitted activities of daily Although, frequent disabled. the breaks First, 23 claimant to has perform allegedly Some of the stated these limited she daily daily 1 activities 2 reasonable degree of certainty. 3 claimant s daily activities are truly as limited as 4 alleged, it is difficult to attribute that degree of 5 limitation 6 opposed to the other reasons, in view of the relatively 7 weak medical evidence and other factors discussed in this 8 decision. Overall, the claimant s reported limited daily 9 activities are considered to be outweighed by the other 10 cannot to the be objectively claimant s verified with any Secondly, even if the medical condition, as factors discussed in this decision. 11 (AR 18.) 12 Reversal is not warranted based on the ALJ s alleged failure 13 to make proper credibility findings or properly consider 14 Plaintiff s subjective symptoms. The ALJ provided clear and 15 convincing reasons for rejecting Plaintiff s subjective symptom 16 testimony to the extent it was inconsistent with the RFC 17 assessment. (AR 17-18.) As the ALJ correctly found, Plaintiff s 18 testimony that nothing helped her foot pain and it had only 19 gotten worse conflicted with the notes from her treating 20 physicians stating that Plaintiff said her foot pain had improved 21 at various times with treatment. (AR 18; see AR 193 (noting that 22 Plaintiff walked with a normal gait and was in no acute 23 distress ), AR 359 (noting that Plaintiff was getting about 24 reasonably well ), AR 395 (noting dramatic improvement in 25 Plaintiff s foot pain), AR 445 (Plaintiff doing well following 26 third surgery and things are feeling better ), AR 446 (noting 27 that Plaintiff s foot pain in the toes is gone ), AR 449 (noting 28 that after surgery Plaintiff s pain was gone ), AR 450 24 1 (reporting being happy with the results so far and the pain is 2 better ).) 3 Plaintiff argues that the fact that she underwent three 4 surgeries shows that they conferred only a short term benefit 5 and did not provide enough relief to allow her to work. 6 Stip. at 11-12.) (J. While it is true that Plaintiff s foot pain 7 appears to have come back after her first two surgeries, the most 8 recent medical evidence in the record pertaining to her third 9 surgery contradicts her claims that the surgery made it worse. 10 (AR 33-34; see AR 446 (noting in September 2010 that Plaintiff s 11 foot pain in the toes is gone ), AR 445 (noting that Plaintiff 12 doing well in December 2010 following third surgery and things 13 are feeling better ).)10 Further, test results ranging from 2006 14 to 2010 showed no significant abnormalities, which further cast 15 doubt on Plaintiff s claims of debilitating pain. (See AR 213, 16 239-40, 246, 248, 257, 263, 284, 347, 354, 367, 379, 402-09.) 17 And, as the ALJ correctly found, the only doctors to have 18 evaluated Plaintiff s functional capacity all concluded that she 19 was not disabled and was capable of performing medium work. 20 403-08, 417-24, 442-43.) (AR The ALJ properly discounted Plaintiff s 21 subjective testimony to the extent it conflicted with the medical 22 record. See Carmickle, 533 F.3d at 1161 ( Contradiction with the 23 medical record is a sufficient basis for rejecting the claimant s 24 subjective testimony. ); Lingenfelter, 504 F.3d at 1040 (in 25 determining credibility, ALJ may consider whether the alleged 26 27 28 10 For this reason, any error arising from the ALJ s ambiguous reference to surgery instead of surgeries was harmless. 25 1 symptoms are consistent with the medical evidence ); Burch v. 2 Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) ( Although lack of 3 medical evidence cannot form the sole basis for discounting pain 4 testimony, it is a factor that the ALJ can consider in his 5 credibility analysis. ); Kennelly v. Astrue, 313 F. App x 977, 6 979 (9th Cir. 2009) (same). 7 Moreover, as the ALJ noted, Plaintiff admitted that she was 8 able to do a wide variety of daily activities, including driving, 9 grocery shopping, cooking, cleaning, and extensive gardening. 10 (AR 18, 34-35, 159-61.) That Plaintiff s allegations of 11 disabling pain were inconsistent with her daily activities was a 12 valid reason for the ALJ to discount her testimony. See Bray v. 13 Comm r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) 14 (ALJ properly discounted claimant s testimony because she leads 15 an active lifestyle, including cleaning, cooking, walking her 16 dogs, and driving to appointments ); Berry, 622 F.3d at 1234-35 17 (holding that when claimant told medical staff he engaged in 18 daily walks of a mile or more, had various social engagements, 19 drove his car and did crossword puzzles, computer work, pet care, 20 cooking, laundry and other house-keeping, ALJ properly 21 discounted claimant s credibility based on inconsistencies in 22 [claimant s] reported symptoms and activities ); Molina, 674 F.3d 23 at 1113 ( Even where [claimant s] activities suggest some 24 difficulty functioning, they may be grounds for discrediting the 25 claimant s testimony to the extent that they contradict claims of 26 a totally debilitating impairment. ). Plaintiff asserts that the 27 ALJ failed to take into account her statements that she could do 28 those activities only for very limited amounts of time and needed 26 1 help with them (J. Stip. at 24-25), but the ALJ did take those 2 claims into account and rejected them because they were not 3 objectively verifiable and conflicted with the medical evidence 4 (see AR 18). 5 Because the ALJ gave clear and convincing reasons for her 6 credibility finding and those reasons were supported by 7 substantial evidence, the Court may not engage in 8 second-guessing, even if it might have reached a different 9 result. Thomas, 278 F.3d at 959 (citation omitted). Plaintiff 10 is not entitled to reversal on this claim. 11 VI. CONCLUSION 12 Consistent with the foregoing, and pursuant to sentence four 13 of 42 U.S.C. § 405(g),11 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 11 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. 27

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