Jeffery Dale Kivett v. Michael J Astrue, No. 5:2013cv00013 - Document 18 (C.D. Cal. 2013)

Court Description: MEMORANDUM OPINION AND ORDER AFFIRMING THE COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. (twdb)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 JEFFERY DALE KIVETT,1 10 Plaintiff, 11 vs. 12 13 CAROLYN W. COLVIN, Acting Commissioner of Social Security,2 14 Defendant. 15 ) Case No. EDCV 13-0013-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 application for Supplemental Security Income benefits 20 ( SSI ). The parties consented to the jurisdiction of the 21 undersigned U.S. Magistrate Judge pursuant to 28 U.S.C. § 636(c). 22 23 24 25 1 The parties have spelled Plaintiff s first name at various times as Jeffery and Jeffrey, and the medical records similarly use both spellings. On January 11, 2013, Plaintiff filed a Notice of Correction of Spelling of Name (Amended), clarifying that Jeffery is the proper spelling. 26 2 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 This matter is before the Court on the parties Joint 2 Stipulation, filed August 23, 2013, which the Court has taken 3 under submission without oral argument. For the reasons stated 4 below, the Commissioner s decision is affirmed and this action is 5 dismissed. 6 II. BACKGROUND 7 Plaintiff was born on November 6, 1959. 8 Record ( AR ) 74.) (Administrative He completed 10th grade but did not graduate 9 from high school, and his ability to read and write is limited. 10 (AR 447, 461.) He previously worked as a construction laborer. 11 (AR 441-42, 470-72.) He has a history of drug use, and he was 12 incarcerated from 2005 to 2009 for selling methamphetamine. (AR 13 452-53.) He testified at the hearing that he had not used drugs 14 since his conviction. 15 (AR 452.) On February 3, 2010, Plaintiff filed applications for Social 16 Security disability insurance benefits ( DIB ) and SSI. 17 74-77, 84-91, 425-28.) (See AR He alleged that he had been unable to 18 work since June 1, 1998, because of diabetes, lack of feeling in 19 his feet, poor vision, and bleeding ulcers. (AR 74, 80, 85.) He 20 subsequently amended the alleged disability onset date to 21 February 3, 2010, and withdrew his request for DIB. 22 (AR 436-37.) After Plaintiff s applications were denied, he requested 23 reconsideration. (AR 27.) They were again denied, after which 24 he requested a hearing before an ALJ. (AR 30-31, 35-36.) A 25 hearing was held on August 2, 2011, at which Plaintiff, who was 26 represented by counsel, appeared and testified, as did a 27 vocational expert and medical expert Dr. Samuel Landau. 28 53.) (AR 432- In a written decision issued August 5, 2011, the ALJ 2 1 determined that Plaintiff was not disabled. (AR 11-21.) On 2 November 6, 2012, the Appeals Council denied his request for 3 review. (AR 3-7.) This action followed. 4 III. STANDARD OF REVIEW 5 Pursuant to 42 U.S.C. § 405(g), a district court may review 6 the Commissioner s decision to deny benefits. The ALJ s findings 7 and decision should be upheld if they are free of legal error and 8 supported by substantial evidence based on the record as a whole. 9 Id.; Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 10 1427, 28 L. Ed. 2d 842 (1971); Parra v. Astrue, 481 F.3d 742, 746 11 (9th Cir. 2007). Substantial evidence means such evidence as a 12 reasonable person might accept as adequate to support a 13 conclusion. Richardson, 402 U.S. at 401; Lingenfelter v. Astrue, 14 504 F.3d 1028, 1035 (9th Cir. 2007). 15 but less than a preponderance. It is more than a scintilla Lingenfelter, 504 F.3d at 1035 16 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 17 2006)). To determine whether substantial evidence supports a 18 finding, the reviewing court must review the administrative 19 record as a whole, weighing both the evidence that supports and 20 the evidence that detracts from the Commissioner s conclusion. 21 Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). If the 22 evidence can reasonably support either affirming or reversing, 23 the reviewing court may not substitute its judgment for that of 24 the Commissioner. Id. at 720-21. 25 IV. THE EVALUATION OF DISABILITY 26 People are disabled for purposes of receiving Social 27 Security benefits if they are unable to engage in any substantial 28 gainful activity owing to a physical or mental impairment that is 3 1 expected to result in death or which has lasted, or is expected 2 to last, for a continuous period of at least 12 months. 42 3 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 4 (9th Cir. 1992). 5 A. 6 The ALJ follows a five-step sequential evaluation process in The Five-Step Evaluation Process 7 assessing whether a claimant is disabled. 20 C.F.R. 8 § 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 9 1995) (as amended Apr. 9, 1996). In the first step, the 10 Commissioner must determine whether the claimant is currently 11 engaged in substantial gainful activity; if so, the claimant is 12 not disabled and the claim must be denied. § 416.920(a)(4)(i). 13 If the claimant is not engaged in substantial gainful activity, 14 the second step requires the Commissioner to determine whether 15 the claimant has a severe impairment or combination of 16 impairments significantly limiting his ability to do basic work 17 activities; if not, a finding of not disabled is made and the 18 claim must be denied. § 416.920(a)(4)(ii). If the claimant has 19 a severe impairment or combination of impairments, the third 20 step requires the Commissioner to determine whether the 21 impairment or combination of impairments meets or equals an 22 impairment in the Listing of Impairments ( Listing ) set forth at 23 20 C.F.R., Part 404, Subpart P, Appendix 1; if so, disability is 24 conclusively presumed and benefits are awarded. 25 § 416.920(a)(4)(iii). If the claimant s impairment or 26 combination of impairments does not meet or equal an impairment 27 in the Listing, the fourth step requires the Commissioner to 28 determine whether the claimant has sufficient residual functional 4 1 capacity ( RFC )3 to perform his past work; if so, the claimant 2 is not disabled and the claim must be denied. 3 § 416.920(a)(4)(iv). The claimant has the burden of proving that 4 he is unable to perform past relevant work. 5 1257. Drouin, 966 F.2d at If the claimant meets that burden, a prima facie case of 6 disability is established. Id. If that happens or if the 7 claimant has no past relevant work, the Commissioner then bears 8 the burden of establishing that the claimant is not disabled 9 because he can perform other substantial gainful work available 10 in the national economy. § 416.920(a)(4)(v). That determination 11 comprises the fifth and final step in the sequential analysis. 12 § 416.920; Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257. 13 B. 14 At step one, the ALJ found that Plaintiff had not engaged in The ALJ s Application of the Five-Step Process 15 any substantial gainful activity since February 3, 2010. 16 13.) (AR At step two, she concluded that Plaintiff had severe 17 impairments of poorly controlled diabetes mellitus, gastritis, 18 and esophagitis. (AR 14.) She determined that Plaintiff s 19 hypertension, non-obstructing right kidney stone, right renal 20 calculus, tobacco dependence, and history of methamphetamine 21 abuse were nonsevere. (Id.) The ALJ further found that 22 Plaintiff had not established through objective evidence a 23 medically determinable ailment of peripheral neuropathy. (Id.) 24 At step three, she determined that his impairments did not meet 25 or equal any of the impairments in the Listing. (Id.) At step 26 27 28 3 RFC is what a claimant can do despite existing exertional and nonexertional limitations. § 416.945; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 5 1 four, she found that Plaintiff retained the RFC to perform less 2 than a full range of light work, with certain additional 3 limitations. (Id.) Based on the VE s testimony, the ALJ 4 concluded that Plaintiff could not perform his past work as a 5 construction worker as generally or actually performed. 6 19.) (AR 18- At step five, she concluded that he was not disabled under 7 the framework of the Medical-Vocational Guidelines, 20 C.F.R. 8 Part 404, Subpart P, Appendix 2, and that jobs existed in 9 significant numbers in the national economy that Plaintiff could 10 perform. (AR 19-20.) Accordingly, the ALJ determined that 11 Plaintiff was not disabled. (AR 20.) 12 V. RELEVANT FACTS 13 A. 14 On January 29, 2009,4 Plaintiff was seen at the emergency Medical Records 15 room of Oklahoma University Medical Center with complaints of 16 abdominal pain, nausea, and blood-tinged vomiting. 17 181.) (AR 175, He was reported to have a past history of diabetes 18 mellitus and peptic ulcer. (AR 175.) He was noted to be 19 suffering from moderate dehydration, severe hyperglycemia, and 20 moderate leukocytosis5 and was admitted for observation. (AR 21 22 23 24 25 26 27 28 4 Plaintiff s 2009 medical records predate the amended alleged onset date of February 3, 2010; however, as these records were discussed at the hearing and in the ALJ s decision, they are detailed here. See Williams v. Astrue, 493 F. App x 866, 868 (9th Cir. 2012) (noting that although medical opinions that predate alleged onset of disability are of limited relevance, ALJ must consider all medical-opinion evidence (quoting Carmickle v. Comm r, Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th Cir. 2008))). 5 Leukocytosis is an abnormally large number of leukocytes, or white blood cells, and is observed in cases of acute infection, inflammation, hemorrhage, and other conditions. 6 1 177.) Plaintiff was given an MRI and treated with IV fluids, an 2 IV antiemetic, and Zophran6 to prevent nausea and vomiting; he 3 also received morphine, Lantus,7 and insulin. (AR 179-80.) On 4 January 30, 2009, he was able to tolerate a full ADA diet,8 and 5 laboratory studies showed resolution of his anion gap,9 6 improvement of his glucose level, and improvement of his blood7 urea-nitrogen and creatinine levels. (AR 181.) A chest x-ray 8 performed that day showed no abnormalities in Plaintiff s heart 9 or lungs. (AR 208.) Plaintiff was discharged that day with a 10 11 See Stedman s Medical Dictionary 991 (27th ed. 2000). 12 6 Zofran is the brand name for ondansetron, used to See Ondansetron, MedlinePlus, http://www.nlm.nih.gov/medlineplus/druginfo/meds/a601209.html (last updated Nov. 15, 2011). 13 prevent nausea and vomiting. 14 15 16 17 7 Lantus is the brand name for insulin glargine, a longacting synthetic version of human insulin. See Insulin Glargine (rDNA origin) Injection, MedlinePlus, http://www.nlm.nih.gov/ medlineplus/druginfo/meds/a600027.html (last updated Feb. 15, 2012). 18 8 The term ADA diet refers to dietary guidelines 19 established by the American Diabetes Association, or ADA, to blood-sugar levels. 20 assist diabetics in maintaining normalthe 1800-Calorie ADA See generally Irl B. Hirsch, The Death of 21 Diet, Clinical Diabetes, Apr. 2002, at 51-52, available at http://clinical.diabetesjournals.org/content/20/2/51.full. The 22 ADA has clarified that each diabetic must tailor his diet to his individual needs, thus dispelling the notion that a single ADA 23 diet accommodates all diabetics. See The ADA Diet Myth, 24 Diabetes Forecast, Mar. 2011, available at http://www.diabetes forecast.org/2011/mar/the-ada-diet-myth.html. The ADA diet 25 continues to be used as a benchmark in the treatment of diabetic patients admitted to the hospital. See Hirsch, supra, at 51-52. 26 9 Anion gap is a calculation of the difference between 27 the sum of the measured cations and anions in the plasma or serum. Stedman s Medical Dictionary, supra, at 730. An 28 elevated anion gap may indicate diabetic or lactic acidosis. 7 Id. 1 prescription for Phenergan10 for persistent nausea and orders 2 to continue his Lantus prescription, continue checking his blood 3 sugar, and adhere to a sliding-scale insulin regimen. (AR 182.) 4 The discharge diagnoses included nausea and vomiting, resolved, 5 abdominal pain, resolved, hyperglycemia, resolved, elevated 6 Anion gap/metabolic acidosis, resolved, uncontrolled diabetes 7 type 2, and leukocytosis, improved. 8 (AR 181.) On January 31, 2009, Plaintiff returned to the emergency 9 room at OU Medical Center with complaints of vomiting, nausea, 10 and abdominal pain. (AR 183.) A CT scan of Plaintiff s abdomen 11 and pelvis revealed possible esophagitis but was otherwise 12 normal. (AR 206.) A chest x-ray was also normal. (AR 209.) 13 Plaintiff s extremities exhibit[ed] normal ROM, or range of 14 motion, and he had [n]o lower extremity edema ; further, he had 15 no motor or sensory deficit. (AR 184.) An electrocardiogram, or 16 ECG, revealed sinus tachycardia but was otherwise normal. 17 214.) Plaintiff was treated with IV fluids, Zofran, morphine, 18 and Phenergan and released. 19 (AR (AR 187, 188.) On September 3, 2009, Plaintiff was seen at the OU Medical 20 Center emergency room with complaints of vomiting blood, black 21 stools, nausea, chronic diarrhea, and abdominal pain. 22 Plaintiff also complained of difficulty breathing. (AR 189.) (Id.) He was 23 admitted, intubated, and treated with morphine, Zofran, 24 25 26 27 28 10 Phenergan is a brand name for promethazine, whose uses include relaxation and sedation, control of nausea and vomiting, and pain relief. See Promethazine, MedlinePlus, http://www.nlm. nih.gov/medlineplus/druginfo/meds/a682284.html (last updated Jan. 1, 2011). 8 1 Protonix,11 and regular insulin. (AR 194.) A chest x-ray 2 conducted on September 4, 2009, revealed symptoms consistent with 3 chronic obstructive pulmonary disease. (AR 211.) 4 ultrasound conducted the same day was normal. A renal (AR 212.) A 5 history and physical report dated September 4, 2009, reflected 6 past diagnoses of diabetes, peptic ulcer disease, and 7 hypertension. (AR 197.) Plaintiff s then-current medications 8 were reported to include Lantus, regular insulin, clonidine,12 9 Reglan,13 loperamide,14 and loratidine.15 (AR 197-98.) Plaintiff 10 exhibited normal range of motion and no edema in his extremities. 11 (AR 190.) He had no motor or sensory deficit and normal 12 reflexes. (Id.) 13 On September 7, 2009, Plaintiff was discharged. (AR 200.) 14 15 16 17 18 19 20 11 Protonix is a proton pump inhibitor, or PPI. Laura Dean, Comparing Proton Pump Inhibitors, PubMed Health (Oct. 1, 2010), http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0004954/. PPIs are medications that block gastric acid production. Id. 12 Clonidine is used to treat high blood pressure. See Clonidine, MedlinePlus, http://www.nlm.nih.gov/medlineplus/ druginfo/meds/a682243.html (last updated Oct. 1, 2010). 13 Reglan is a brand name for metoclopramide, used to 21 relieve heartburn, speed healing of esophageal sores and ulcers, and relieve symptoms caused by slow stomach emptying in See Metoclopramide, MedlinePlus, http://www.nlm.nih. gov/medlineplus/druginfo/meds/a684035.html (last updated Sept. 1, 2010). 22 diabetics. 23 24 25 26 27 28 14 Loperamide is a nonprescription medication used to control diarrhea. See Loperamide, MedlinePlus, http://www.nlm. nih.gov/medlineplus/druginfo/meds/a682280.html (last updated Aug. 1, 2010). 15 Loratadine is used to treat hayfever symptoms. See Loratadine, MedlinePlus, http://www.nlm.nih.gov/medlineplus/ druginfo/meds/a697038.html (last updated Oct. 1, 2010). 9 1 The discharge summary noted that Plaintiff was presumed to be 2 suffering an upper gastrointestinal bleed at the time of 3 admission and was therefore limited to IV ingestion and given 4 Protonix and antiemetics. (Id.) A gastrointestinal specialist 5 suspected Plaintiff might be suffering from esophagitis, but the 6 attending physician chose to delay an upper endoscopy, instead 7 opting for conservative management while evaluating whether 8 further bleeding was occurring. (Id.) Plaintiff was also 9 treated for hypoglycemia and diabetic ketoacidosis. (Id.) 10 Plaintiff was noted to have a good condition at the time of 11 discharge and was instructed to continue with insulin, Protonix, 12 Lantus, and dextrose by IV and to adhere to a diabetic diet. 13 (Id.) 14 A follow-up visit after two weeks was recommended. (Id.) On September 8, 2009, Plaintiff was seen by Drs. Jessica 15 Philpott and Jeremy Moad for a gastrointestinal consult. 16 203.) (AR The doctors recommended a high-dose proton pump inhibitor, 17 multiple fluid boluses,16 and an insulin drip. (Id.) They also 18 anticipated that Plaintiff might need an upper endoscopy to 19 determine whether his gastrointestinal symptoms were attributable 20 to peptic ulcer disease, esophagitis, or gastritis. 21 (Id.) On December 25, 2009, Plaintiff was seen at the emergency 22 room of St. Mary Medical Center in Apple Valley for complaints of 23 nausea, vomiting, and abdominal pain and was admitted for 24 diabetic vomiting. (AR 228-29.) He was noted not to be at 25 risk for falls (AR 231), with motor and sensory grossly intact 26 (AR 240). A CT scan the same day of Plaintiff s abdomen and 27 16 A bolus dose indicates a relatively large quantity. 28 Stedman s Medical Dictionary, supra, at 222. 10 1 pelvis revealed a [t]iny hiatal hernia and a nonobstructing 2 kidney stone. (AR 246, 248.) On December 27, 2009, 3 gastroenterology specialist Dr. Neera Grover examined Plaintiff 4 and noted his uncontrolled diabetes but resolving symptoms. 5 (AR 242.) On December 28, 2009, Dr. Grover performed an upper 6 endoscopy to rule out peptic ulcer disease and gastroesophageal 7 reflux disease. (AR 243-44.) The exam revealed mild to 8 moderate antral gastritis, a hiatal hernia, and grade 2 to 3 9 linear erosive esophagitis. 10 biopsies during the exam. (AR 245.) (Id.) Dr. Grover obtained She thereafter ordered that 11 Plaintiff could resume diet and prescribed Protonix, 12 Carafate,17 and Reglan. 13 normal. 14 (AR 245.) An abdominal ultrasound was (AR 247.) On December 29, 2009, Plaintiff was discharged. (AR 237.) 15 Plaintiff was noted to be doing better after his consultation 16 with Dr. Grover. (Id.) He was instructed to maintain an 1800- 17 calorie ADA diet, continue with Protonix and his regular other 18 home medications, follow up with his primary-care physician in 19 one week, and follow up with a gastrointestinal specialist in two 20 weeks. 21 (Id.) On March 15, 2010, Plaintiff was seen by Michael Avila, a 22 certified physician assistant, for complaints of pain [in] both 23 feet, abdominal pain with vomiting, and two weeks of diarrhea, 24 as well as for a consultation on Plaintiff s medications. (Ex. 25 26 17 Carafate is a brand name for sucralfate, used to treat 27 and prevent peptic ulcers. See Sucralfate, MedlinePlus, http://www.nlm.nih.gov/medlineplus/druginfo/meds/a681049.html 28 (last updated Aug. 15, 2013). 11 1 5F at 2.)18 Plaintiff s current medications were noted to 2 include Lantus and Neurontin. (Id.) Although Mr. Avila noted no 3 abnormalities in Plaintiff s extremities and full range of 4 motion, he found gross sensory deficit and [bilateral] 5 plant[a]r feet non discriminate sharp/dull. (Id.) He assessed 6 Plaintiff as having diabetes mellitus type 2 with neuropathy in 7 both feet. (Id.) It appears that Plaintiff was prescribed 8 Lantus, regular insulin, a glucometer with lancet and a 30-day 9 supply of chemsticks, as well as gabapentin.19 (Id.) Mr. Avila 10 ordered testing, including a complete blood count, comprehensive 11 metabolic panel, thyroid-stimulating hormone test, 12 albumin/globulin ratio test, and urinalysis. (Id.) He noted 13 that Plaintiff should monitor his fasting blood sugar, decrease 14 his intake of carbohydrates, increase his intake of protein, and 15 return in one month to follow up. 16 (Id.) On April 6, 2010, Plaintiff was seen by Dr. Damayanthi 17 Seneviratne to follow up regarding the results of Plaintiff s 18 bloodwork. (AR 262.) Plaintiff s current medications were noted 19 to include Lantus and Neurontin. (Id.) Dr. Seneviratne s notes 20 are largely illegible; however, he noted Plaintiff s complaint 21 22 18 23 number. 24 19 25 26 27 28 Exhibit 5F does not bear an Administrative Record page It is located between AR 250 and AR 253. Gabapentin is a prescription medication sometimes used to relieve the pain of diabetic neuropathy. See Gabapentin, MedlinePlus, http://www.nlm.nih.gov/medlineplus/druginfo/meds/ a694007.html (last updated July 15, 2011). The brand names for gabapentin include Neurontin (id.), which Plaintiff testified he had taken to treat peripheral neuropathy (AR 455) and prescriptions for which are reflected in the medical records (see, e.g., AR 261, 262). 12 1 that his vision was deteriorating and wrote vision impaired 2 and peripheral neuropathy, apparently as complications of 3 Plaintiff s diabetes mellitus. 4 (Id.) On April 13, 2010, Plaintiff again was seen by Dr. 5 Seneviratne for a complaint of high blood sugar and a general 6 medical consult. (Ex. 5F at 1.) Plaintiff s current medications 7 were noted to include Lantus, Neurontin, and regular insulin. 8 (Id.) Dr. Seneviratne s assessment of Plaintiff included 9 uncontrolled [diabetes mellitus] and peripheral neuropathy. 10 (Id.) Dr. Seneviratne s notes appear to have prescribed an 11 increase in Plaintiff s Lantus intake and to have recommended 12 that Plaintiff s blood sugar be checked twice daily.20 13 (Id.) On April 29, 2010, Plaintiff was seen by Dr. Seneviratne for 14 a consultation on his medications, which were noted to include 15 Lantus, Neurontin, and regular insulin. (AR 261.) Dr. 16 Seneviratne appears to have noted minimally decreased tone and 17 sensation on the part of the form for neurological assessment and 18 to have assessed diabetes mellitus with peripheral neuropathy. 19 (Id.) Dr. Seneviratne also appears to have noted that Plaintiff 20 had been compliant and that his blood sugar readings have 21 improved ; he renewed Plaintiff s medications. (Id.) Dr. 22 Seneviratne s last note regarding Plaintiff s peripheral 23 neuropathy is largely illegible, but he appears to have 24 recommended Neurontin twice daily. (Id.) 25 26 20 Bid, which Dr. Seneviratne wrote, is an abbreviation See 27 of the Latin expression bis in die, meaning twice a day. Bid Definition, Merriam-Webster Dictionary, www.merriam28 webster.com/dictionary/bid (last visited Oct. 28, 2013). 13 1 On June 6, 2010, Plaintiff was seen in the emergency room of 2 St. Mary Regional Medical Center for complaints of nausea and 3 vomiting. (AR 301.) Plaintiff said that he had been working 4 outside in the heat when the nausea and vomiting began and that 5 these symptoms had continued for two days. (Id.) Plaintiff was 6 admitted with [d]ehydration with nonketotic hyperosmolar 7 hyperglycemia. 21 (Id.) At the time of admission, lab data 8 showed Plaintiff s glucose to be 49722 and his bicarbonate level 9 to be 16.23 (AR 306.) A limited chest x-ray was reported to 10 show no abnormalities in Plaintiff s lungs or heart. (AR 305.) 11 He was treated with IV fluids, insulin, and Protonix, and his 12 condition rapidly improved. (AR 303, 306-07.) Once again, he 13 was noted not to be at risk of falling (AR 361), and he had no 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 Diabetic hyperglycemic hyperosmolar syndrome (HHS) is a complication of type 2 diabetes that involves extremely high blood sugar (glucose) levels without the presence of ketones. Ketones are byproducts of fat breakdown. Diabetic hyperglycemic hyperosmolar syndrome, MedlinePlus, http://www.nlm.nih.gov/ medlineplus/ency/article/000304.htm (last updated June 12, 2012). 22 Target blood glucose levels for people with diabetes are between 70 and 130 mg/dL before meals and below 180 mg/dL one to two hours after the start of a meal. See Prevent diabetes problems: Keep your diabetes under control, Nat l Diabetes Information Clearinghouse (NDIC), http://diabetes.niddk.nih.gov/ dm/pubs/complications_control/#numbers (last updated Aug. 8, 2013). Hyperglycemia, or high blood sugar, begins to cause symptoms when glucose values become significantly elevated, exceeding 200 mg/dL. Hyperglycemia in diabetes, Mayo Clinic, http://www.mayoclinic.com/health/hyperglycemia/DS01168/ METHOD=print (last updated June 14, 2012). 23 The normal blood bicarbonate range is 23-29 mEq/L (milliequivalent per liter). CO2 blood test, MedlinePlus, http://www.nlm.nih.gov/medlineplus/ency/article/003469.htm (last updated Apr. 29, 2012). Lower than normal levels of bicarbonate can be a sign of ketoacidosis, among other ailments. Id. 14 1 focal deficit with fairly well preserved [m]otor tone (AR 2 366). 3 On June 7, 2010, Plaintiff s anticipated discharge was 4 delayed by his resumed nausea and vomiting. (AR 301.) Because 5 Plaintiff was noted to have several episodes of coffee-ground 6 emesis 24 following admission, a consultation with a 7 gastrointestinal specialist was ordered. (AR 308.) An upper 8 endoscopy showed evidence of acute gastritis, a Mallory-Weiss 9 tear,25 a possible benign gastric polyp, and a hiatal hernia. 10 (AR 301, 311, 323.) The Mallory-Weiss tear was treated with 11 injections of epinephrine, which was noted to effectively address 12 bleeding in the area. (AR 312.) 13 probable polyp was benign. 14 Lab tests confirmed that the (AR 313.) On June 8, 2010, Plaintiff was noted to have developed a 15 low-grade fever overnight. (AR 321.) He was also noted to have 16 continued nausea, vomiting, and diarrhea. (Id.) Plaintiff was 17 to be tested for a bacterial infection, undergo an abdominal 18 ultrasound to rule out gallstones, undergo an abdominal CT scan 19 to rule out obstruction, and be tested to confirm the levels of 20 21 24 Hematemesis is the vomiting of blood, which may be 22 obviously red or have an appearance similar to coffee grounds. See H. Kenneth Walker, W. Dallas Hall & J. Willis Hurst, Clinical 23 Methods: The History, Physical, and Laboratory Examinations 439 24 (3d ed. 1990), available at http://www.ncbi.nlm.nih.gov/ books/NBK411/. 25 26 27 28 25 A Mallory-Weiss tear is a tear in the mucus membrane of the lower esophagus or upper stomach near where the organs join. See Mallory-Weiss tear, MedlinePlus, http://www.nlm.nih.gov/ medlineplus/ency/article/000269.htm (last updated Nov. 11, 2010). Such tears are usually caused by forceful or long-term vomiting or coughing. Id. 15 1 amylase and lipase in his blood. 2 cyanosis of the extremities.26 3 reported to be guarded. 4 (AR 321-22.) (AR 371.) He had no His prognosis was (AR 322.) The same day, a CT scan of Plaintiff s abdomen and pelvis 5 showed evidence of subsegmental atelectasis,27 a small hiatal 6 hernia, and [a] 2 mm, nonobstructing stone in Plaintiff s 7 right kidney. (AR 333.) 8 appeared normal. (Id.) Plaintiff s other visible organs A limited abdominal ultrasound also 9 was reported to be normal. 10 (AR 336.) On June 9, 2010, Plaintiff was reported to be in sinus 11 rhythm, tolerating clear liquids, and not having any nausea or 12 vomiting. (AR 382.) An imaging report dated June 10, 2010, 13 showed that Plaintiff s lungs and pleura are clear and his 14 heart and mediastinum are normal. 15 (AR 332.) Plaintiff was discharged on June 11, 2010. Discharge notes 16 reflect that he was treated with PPIs and Carafate. (AR 301.) 17 He was advised to avoid alcohol and nonsteroidal anti18 inflammatory drugs,28 limit his diet to 1800 calories a day, and 19 follow up within a week with his primary-care physician. (AR 20 21 26 Cyanosis is a discoloration of the skin arising from 22 poor circulation. See Skin discoloration - bluish, MedlinePlus, http://www.nlm.nih.gov/medlineplus/ency/article/003215.htm (last 23 updated Apr. 21, 2013). 24 25 26 27 28 27 lung. Subsegmental atelectasis is partial collapse of the Stedman s Medical Dictionary, supra, at 160. 28 Nonsteroidal anti-inflammatory drugs, or NSAIDs, relieve pain by blocking the production of pain-signaling molecules. See Laura Dean, Comparing NSAIDs, PubMed Clinical Q&A (May 1, 2011), http://www.ncbi.nlm.nih.gov/books/NBK45590/. Common NSAIDs include aspirin and ibuprofen. Id. 16 1 301-02.) 2 On June 15, 2010, Plaintiff was seen by Dr. Seneviratne. 3 (AR 275.) Plaintiff was noted to have been admitted to St. Mary 4 Medical Center on June 6, 2010, and to be complaining of fatigue, 5 headache, and weakness. (Id.) This record is largely illegible 6 but reflects further notes regarding Plaintiff s endoscopy and 7 diabetes. 8 (Id.) On October 10, 2010, Plaintiff was seen by a certified 9 physician assistant for a consultation regarding his medications. 10 (AR 349.) He was noted to have diabetes mellitus and neuropathy 11 lower legs. (Id.) The remainder of the examining provider s 12 notes are largely illegible. 13 On November 10, 2010, Plaintiff was seen by Dr. Seneviratne 14 for complaints of fatigue and stomach pain. (AR 350.) His notes 15 appear to state that Plaintiff s feet were cold to the touch and 16 that he experienced decreased sensation. (Id.) The notes appear 17 further to state that Plaintiff suffers from diabetes mellitus, 18 not controlled, and peripheral neuropathy. (Id.) Plaintiff 19 was instructed to check his blood sugar twice daily and provide 20 the readings, and he was referred to a podiatrist. 21 (Id.) On March 6, 2011, Plaintiff was seen in the emergency room 22 of St. Mary Regional Medical Center for complaints of nausea, 23 vomiting, and abdominal pain lasting two days. (AR 281.) He was 24 found to have a very elevated glucose of 345, a bicarb of 14, 25 a high anion gap metabolic acidosis, and leukocytosis and was 26 admitted for diabetic ketoacidosis. (Id.) His chart notes 27 additional [d]iagnoses of nausea, vomiting, and right renal 28 calculus. (Id.) Plaintiff was noted to have undergone a CT 17 1 scan of his abdomen and pelvis and a chest x-ray. (AR 408.) 2 Plaintiff responded well to IV fluids, insulin, and Levaquin29 3 and was discharged on March 9, 2011, at which point he tolerated 4 solid food and had stable vital signs. (AR 281.) Plaintiff was 5 instructed to adhere to a low fat, low salt, ADA 2000 6 kilocalorie per day diet and to meet with his primary-care 7 physician within two weeks. (Id.) Once again, Plaintiff was 8 noted to have no cyanosis of the extremities. 9 (AR 407.) On March 15, 2011, Plaintiff was seen by Dr. Seneviratne for 10 complaints of stomach pain and inability to control his blood 11 sugar, problems that reportedly had lasted three to four weeks. 12 (AR 351.) Dr. Seneviratne s notes are largely illegible but 13 appear to pertain to Plaintiff s blood sugar and abdominal 14 issues. 15 No mention of peripheral neuropathy is evident. (Id.) On April 27, 2011, Plaintiff was seen by Dr. Seneviratne for 16 complaints of black toes lasting 10 days, feeling of numbness 17 lasting 20 days, and really high blood sugar lasting 20 days. 18 (AR 352.) Dr. Seneviratne s notes are largely illegible, but he 19 appears to have noted swelling in Plaintiff s lower extremities, 20 and his assessment reflects at least a suspicion of cellulitis 21 and a prescription. 22 (Id.) On May 4, 2011, Plaintiff was seen by Dr. Seneviratne to 23 consult regarding his medications and to address paperwork. 24 354.) (AR Dr. Seneviratne noted bilateral [decreased] sensation of 25 26 29 Levaquin is the brand name for the antibiotic 27 levofloxacin. See Levofloxacin, MedlinePlus, http://www.nlm.nih. 28 gov/medlineplus/druginfo/meds/a697040.html (last updated Sept. 15, 2013). 18 1 both feet and peripheral neuropathy. (Id.) The same day, Dr. 2 Seneviratne handwrote the following on a prescription pad: 3 To whom it may concern 4 Mr. Kivett has uncontrolled Diabetes Mellitus 5 His blood sugars are Very High and we are working 6 on him to control his Diabetes 7 Thanks 8 [Signature] 9 (AR 279.) 10 Plaintiff was admitted to St. Mary Medical Center on July 11 19, 2011. (AR 423.) On July 21, 2011, Plaintiff was discharged 12 with prescriptions for Protonix, lisinopril,30 and 13 ciprofloxacin.31 (AR 422.) Plaintiff was instructed to maintain 14 a salt-restricted diet and to follow up with a physician within a 15 week. (Id.) 16 17 18 19 20 21 22 23 24 25 30 Lisinopril is used to treat high blood pressure. See Lisinopril, MedlinePlus, http://www.nlm.nih.gov/medlineplus/ druginfo/meds/a692051.html (last updated Sept. 15, 2012). 26 31 Ciprofloxacin is used to treat or prevent certain 27 bacterial infections. See Ciprofloxacin, MedlinePlus, 28 http://www.nlm.nih.gov/medlineplus/druginfo/meds/a688016.html (last updated Sept. 15, 2013). 19 1 B. 2 On April 22, 2010, medical consultant Dr. J. Hartman, an Assessments of State Medical Consultants 3 ophthalmologist,32 completed a Physical Residual Functional 4 Capacity Assessment of Plaintiff. (AR 253-57.) The evaluation 5 reflects primary diagnoses of esophagitis, gastritis, and 6 diabetes mellitus. (AR 253.) Dr. Hartman indicated that 7 Plaintiff could occasionally lift and/or carry 20 pounds, 8 frequently lift and/or carry 10 pounds, stand and/or walk for a 9 total of about six hours in an eight-hour workday, and sit for 10 about six hours in an eight-hour workday. (AR 254.) He noted 11 that these restrictions are due to abdominal pain and poorly 12 controlled diabetes. (Id.) Dr. Hartman found that Plaintiff 13 had not established any other limitations. (See AR 254-56.) He 14 noted that Plaintiff s file did not include statements from 15 Plaintiff s treating or examining medical professionals regarding 16 his physical capacities. 17 (AR 257.) Also on April 22, 2010, Dr. Hartman approved a Case Analysis 18 based on medical evidence then in Plaintiff s file, including 19 records of Plaintiff s admission to OU Medical Center on January 20 29, 2009, for complaints of nausea and vomiting; Plaintiff s 21 treatment in the OU Medical Center emergency room on January 31, 22 2009, for persistent abdominal pain and vomiting; Plaintiff s 23 admission to the OU Medical Center on September 5, 2009, for 24 25 26 27 28 32 Dr. Hartman s electronic signature includes a medical specialty code of 28, indicating ophthalmology. (AR 257); see Program Operations Manual System (POMS) DI 26510.089, U.S. Soc. Sec. Admin. (Oct. 25, 2011), https://secure.ssa.gov/poms.nsf/ lnx/0426510090; POMS DI 26510.090, U.S. Soc. Sec. Admin. (Aug. 29, 2012), https://secure.ssa.gov/poms.nsf/lnx/0426510090. 20 1 complaints of vomiting of blood and history of peptic ulcer 2 disease; Plaintiff s gastrointestinal consultation on September 3 8, 2009; and Plaintiff s admission to St. Mary Medical Center on 4 December 25, 2009, for complaints of abdominal pain, vomiting, 5 and nausea. (Id.) The Case Analysis confirmed that Plaintiff s 6 diabetes was not well controlled but found no evidence of 7 complications or organ damage. The Case Analysis further (Id.) 8 noted that Plaintiff s gastritis, esophagitis, and history of 9 ulcer disease have not resulted in malnutrition or significant 10 anemia. (Id.) Accordingly, Plaintiff was found to retain[] 11 the RFC for light work. 12 (Id.) On August 26, 2010, medical consultant Dr. G. Taylor-Holmes, 13 a specialist in internal medicine, performed a Case Analysis. 14 (AR 276.) Dr. Taylor-Holmes noted Dr. Hartman s prior Case 15 Analysis and findings and reviewed additional records received 16 from Dr. Seneviratne s clinic. (Id.) Dr. Taylor-Holmes noted 17 DM w/ peripheral neuropathy based on Plaintiff s April 29, 18 2010, consultation with Dr. Seneviratne. (Id.) Dr. Taylor- 19 Holmes affirmed Dr. Hartman s finding that Plaintiff retained the 20 RFC for light work. (Id.) 21 C. 22 At the August 2, 2011 hearing before the ALJ, Plaintiff Hearing Testimony 23 testified that he completed 10th grade but left high school 24 during his 11th-grade year. (AR 447.) Plaintiff stated that he 25 completed his high-school coursework through the special26 education program because of his poor literacy. (Id.) Plaintiff 27 testified that he had been able to maintain employment despite 28 his limited literacy. (AR 461-62.) 21 He stated that he received 1 help with job applications from his nephew or whoever s around. 2 (AR 461.) He was able to bathe and dress himself without 3 assistance and prepare meals for himself. (AR 449-50.) 4 Plaintiff did not have a driver s license at the time of the 5 hearing because it was suspended for reasons unrelated to his 6 alleged impairments, he had not sought to renew his license, and 7 his inability legally to drive had not prevented him from 8 maintaining employment. 9 (AR 450-51.) Plaintiff stated that he was convicted of selling 10 methamphetamine and incarcerated from 2005 until November 2009. 11 (AR 452-53.) He testified that he had not used the drug since 12 2005. He did not work while incarcerated because of his (Id.) 13 health issues specifically, his poorly controlled diabetes, 14 stomach problems, and fatigue. (AR 454.) Plaintiff testified 15 that while incarcerated, he took medication to treat his stomach, 16 control vomiting, and treat fatigue. (AR 455.) He testified 17 that he also took Neurontin for the pain in his feet. (Id.) 18 Plaintiff also confirmed that he has been taking blood-pressure 19 medication all along ; it is unclear from the transcript when 20 such medication first was prescribed. 21 (AR 456.) Plaintiff testified that he previously worked as a laborer. 22 (AR 442.) He stated that he began working for a company that 23 pours cement forms while living in a halfway house following his 24 incarceration. (AR 453-54.) He testified that he was terminated 25 after about a month when he lost consciousness because of an 26 imbalance in blood sugar. (AR 441.) He confirmed that he had 27 looked for a variety of work since his release from prison, 28 including gardening and carpentry work. 22 (AR 454.) 1 Plaintiff stated that his peripheral neuropathy caused him 2 to be unable to feel his feet, which he testified are just numb 3 all the time, extending to his knees. (AR 456.) He stated that 4 he also suffered from buzzing, tingling, and sharp pains in his 5 feet and lower legs. (AR 456-57.) When asked how the problem 6 with his feet affected his ability to work, Plaintiff stated that 7 I can t feel my feet to walk half the time and confirmed that 8 he had stumbled a couple of times. (AR 457.) Plaintiff 9 testified that he had never used a cane or walker, although when 10 asked whether he had ever used [a]ny other device to assist you 11 walking, Plaintiff stated, I guess I have a couple of times 12 because . . . every now and then it s so numb that . . . I 13 stumble. 14 (Id.) Plaintiff testified that his diabetes interfered with his 15 ability to work by causing bouts of nausea every three to four 16 days and uncontrolled vomiting approximately every three months, 17 requiring a visit to the hospital. (AR 457-58.) Plaintiff 18 stated that he was often able to stifle uncontrolled vomiting by 19 regulating his blood sugar. (AR 458.) Plaintiff further 20 testified that he suffered from near-constant fatigue that 21 required him to lie down once or twice a day. 22 (AR 459-60.) Dr. Samuel Landau, a physician board-certified in both 23 internal medicine and cardiovascular disease, appeared at the 24 hearing as a medical expert. (AR 435.) Dr. Landau testified 25 that Plaintiff s medically determinable impairments included 26 poorly controlled diabetes mellitus, gastritis, esophagitis, 27 and right renal calculus. (AR 462.) 28 ailments did not meet a Listing. 23 He stated that Plaintiff s (AR 464.) Dr. Landau noted 1 that although Plaintiff testified to hospitalization 2 approximately every three months, the record reflected less 3 frequent hospitalization. 4 (Id.) Dr. Landau opined that Plaintiff s diabetes would impose 5 some limitations upon his capacity to work. He testified that 6 Plaintiff would be able to stand, walk, or sit for six hours each 7 in an eight-hour day and would require breaks every two hours. 8 (AR 466.) He stated that Plaintiff could lift and carry 25 9 pounds frequently and 50 pounds occasionally. (Id.) He 10 testified that Plaintiff could climb stairs but not ladders and 11 should not work at heights or in situations requiring him to 12 balance. (Id.) He stated that Plaintiff should work in a 13 temperature-controlled environment. 14 (Id.) Dr. Landau confirmed that the nausea and vomiting from which 15 Plaintiff had suffered were consistent with his poorly controlled 16 diabetes mellitus but that Plaintiff also has underlying 17 digestive diseases in addition to that. 18 (AR 467-68.) He testified that he did not find any objective evidence of 19 peripheral neuropathy in Plaintiff s medical records. (AR 466.) 20 He believed the diagnoses of peripheral neuropathy in the record 21 were based on symptoms alone, without objective testing. 22 467.) (AR Dr. Landau stated that to establish such a diagnosis, an 23 examination must be performed to establish abnormalities such 24 as sensory abnormalities, dependent reflex changes, vibratory 25 sense change, weakness, atrophy. (AR 466-67.) He noted that 26 electrodiagnostic studies exist to confirm such a diagnosis but 27 none had been performed on Plaintiff. 28 (AR 467.) Dr. Landau found no support in Plaintiff s medical record 24 1 for Plaintiff s claim that his medical impairments prevented him 2 from maintaining full-time employment. (AR 468.) He noted that 3 the record reflected four hospitalizations for treatment of 4 Plaintiff s diabetes but stated, [W]hy the diabetes control is 5 so poor, I can t tell you. 6 D. 7 (AR 469.) ALJ s Decision In her August 5, 2011 decision, the ALJ found that Plaintiff 8 had severe impairments of poorly controlled diabetes mellitus, 9 gastritis, and esophagitis. (AR 14.) She found that peripheral 10 neuropathy was not a medically determinable impairment due to a 11 lack of objective evidence, citing Dr. Landau s testimony. 12 (Id.) 13 The ALJ determined that Plaintiff retained the RFC to 14 perform less than a full range of light work. 33 (Id.) 15 Specifically, the claimant can lift and/or carry ten 16 pounds frequently and twenty pounds occasionally; he can 17 stand and/or walk six hours, sit two hours in an eight 18 hour workday; the claimant cannot climb ladders, ropes, 19 or scaffolds or work at unprotected heights; and the 20 claimant must avoid concentrated exposure to extreme 21 cold, extreme heat, and extreme weather. 22 (Id.) In so finding, the ALJ considered all of Plaintiff s 23 33 Light work lifting no more than 24 at a time with frequentinvolves or carrying of objects20 pounds lifting weighing up to 10 pounds. § 416.967(b). Even though the weight lifted 25 26 27 28 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. To be considered capable of performing a full or wide range of light work, [a claimant] must have the ability to do substantially all of these activities. Id. 25 1 symptoms and found his allegations not fully credible to the 2 extent his alleged limitations were inconsistent with both his 3 own testimony about his activities and the medical evidence of 4 record. 5 (AR 15-16.) The ALJ assigned significant, but not great, weight to Dr. 6 Landau s testimony in determining Plaintiff s RFC. (AR 17.) As 7 the ALJ noted, Dr. Landau is board-certified in internal 8 medicine and cardiovascular disease, he has an awareness of all 9 the medical evidence in the record, and he understands Social 10 Security disability programs and requirements. (Id.) The ALJ 11 found more restricted functional limitations than those assessed 12 by Dr. Landau, based in part upon Plaintiff s subjective 13 complaints. (AR 18.) The ALJ also accorded some, but not 14 significant, weight to the findings of the state medical 15 consultants. (Id.) She found that [a]dditional evidence added 16 to the record after [their RFC] determination, including the 17 claimant s hearing testimony, establishes the presence of more 18 restrictive limitations than those assessed by the medical 19 consultants. 20 (Id.) The ALJ found that Plaintiff s RFC was insufficient to 21 enable him to perform his past relevant work. (AR 18-19.) Given 22 Plaintiff s age, education, work experience, and RFC, she found 23 that jobs exist[ed] in significant numbers in the national 24 economy that the claimant can perform. (AR 19.) The ALJ 25 therefore held that Plaintiff was not under a disability from the 26 amended alleged onset date of February 3, 2010, through the date 27 of her decision. (AR 20.) 28 26 1 VI. DISCUSSION 2 Plaintiff alleges that the ALJ erred in evaluating (1) the 3 medical evidence of record, specifically, his diagnosis of 4 peripheral neuropathy,34 and (2) Plaintiff s credibility. 5 Stip. at 4.) (J. Neither of these contentions warrants reversal. 6 A. 7 Plaintiff contends that the ALJ erred in finding that The ALJ Properly Evaluated the Medical Evidence 8 Plaintiff failed to establish a severe medically determinable 9 impairment of peripheral neuropathy. (J. Stip. at 7.) As a 10 result, Plaintiff argues, the ALJ erred in finding that Plaintiff 11 retained the RFC to perform less than a full range of light work. 12 (Id.) Reversal is not warranted. 13 1. The ALJ did not err in finding that the medical 14 evidence failed to establish a severe, medically 15 determinable impairment of peripheral neuropathy 16 Plaintiff argues that the ALJ failed to properly consider 17 Plaintiff s diabetic neuropathy. (J. Stip. at 4.) Plaintiff 18 maintains that the medical record provides objective evidence 19 supporting a diagnosis of peripheral neuropathy and the ALJ erred 20 in accepting Dr. Landau s testimony to the contrary. (J. Stip. 21 at 6-7.) 22 a. 23 Applicable Law At step two of the sequential evaluation process, the 24 claimant has the burden to show that he has one or more severe 25 medically determinable impairments that can be expected to result 26 27 28 34 Plaintiff does not argue that the ALJ erred in finding him not disabled based on the impairments she found to be medically determinable. 27 1 in death or last for a continuous period of at least 12 months. 2 See Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S. Ct. 2287, 3 2294 n.5, 96 L. Ed. 2d 119 (1987) (claimant bears burden at step 4 two); Celaya v. Halter, 332 F.3d 1177, 1180 (9th Cir. 2003) 5 (same); 20 C.F.R. §§ 416.908 (defining physical or mental 6 impairment ), 416.920(a)(4)(ii) (claimants will be found not 7 disabled at step two if they do not have a severe medically 8 determinable physical or mental impairment that meets the 9 duration requirement ). A medically determinable impairment must 10 be established by signs, symptoms, or laboratory findings; it 11 cannot be established based solely on a claimant s own statement 12 of his symptoms. § 416.908; Ukolov v. Barnhart, 420 F.3d 1002, 13 1004-05 (9th Cir. 2005); SSR 96 4p, 1996 WL 374187, at *1 (July 14 2, 1996); see also 42 U.S.C. § 423(d)(3) ( physical or mental 15 impairment is one that results from anatomical, physiological, 16 or psychological abnormalities which are demonstrable by 17 medically acceptable clinical and laboratory diagnostic 18 techniques ). A medical sign is an anatomical, physiological, 19 or psychological abnormality that can be shown by medically 20 acceptable clinical diagnostic techniques. Ukolov, 420 F.3d at 21 1005 (quoting SSR 96-4p, 1996 WL 374187, at *1 n.2 (July 2, 1996) 22 (internal quotation marks omitted)); accord 20 C.F.R. 23 § 416.928(b). 24 To establish that a medically determinable impairment is 25 severe, moreover, the claimant must show that it significantly 26 limits [his] physical or mental ability to do basic work 27 28 28 1 activities. 35 § 416.920(c); accord § 416.921(a). An 2 impairment or combination of impairments may be found not severe 3 only if the evidence establishes a slight abnormality that has no 4 more than a minimal effect on an individual s ability to work. 5 Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (emphasis in 6 original, internal quotation marks omitted); see also Smolen v. 7 Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) ( [T]he step-two 8 inquiry is a de minimis screening device to dispose of groundless 9 claims. ). Applying the applicable standard of review to the 10 requirements of step two, a court must determine whether an ALJ 11 had substantial evidence to find that the medical evidence 12 clearly established that the claimant did not have a medically 13 severe impairment or combination of impairments. Webb, 433 F.3d 14 at 687. 15 16 b. Analysis Plaintiff has failed to meet his burden to present evidence 17 of medical signs, symptoms, and laboratory findings establishing 18 his alleged peripheral neuropathy as a medically determinable 19 impairment. Plaintiff points to five Progress Notes that 20 document consultations by Dr. Seneviratne and a physician 21 assistant regarding Plaintiff s diabetes and related ailments, 22 including peripheral neuropathy. (J. Stip. at 5.) Although the 23 24 25 26 27 28 35 Basic work activities include, among other things, [p]hysical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling ; [c]apacities for seeing, hearing, and speaking ; [u]nderstanding, carrying out, and remembering simple instructions ; using judgment; [r]esponding appropriately to supervision, co-workers and usual work situations ; and [d]ealing with changes in a routine work setting. 20 C.F.R. § 416.921(b); accord Yuckert, 482 U.S. at 141. 29 1 notes in each case reference peripheral neuropathy or treatment 2 with Neurontin, none indicate the completion of any medically 3 accepted diagnostic test to confirm the diagnosis. 4 at 1, 2; AR 262, 350, 354.) (See Ex. 5F Rather, these records appear merely 5 to record Plaintiff s complained-of symptoms of pain and 6 numbness. Symptoms alone are insufficient to establish a 7 medically determinable impairment. See Ukolov, 420 F.3d at 1005- 8 06 (treating physician s notation of balance problems, dizziness, 9 problems with sustained ambulation, and increased tendency to 10 fall did not support finding of impairment because they were 11 based solely on plaintiff s own perception or description of 12 his problems (internal quotation marks omitted)); 20 C.F.R. § 13 416.908 ( A physical or mental impairment must be established by 14 medical evidence consisting of signs, symptoms, and laboratory 15 findings, not only by your statement of symptoms. ); SSR 96-4p, 16 1996 WL 374187, at *1 (July 2, 1996) ( [R]egardless of how many 17 symptoms an individual alleges, or how genuine the individual s 18 complaints appear to be, the existence of a medically 19 determinable physical or mental impairment cannot be established 20 in the absence of objective medical abnormalities; i.e., medical 21 signs and laboratory findings. ). 22 Diagnosis of peripheral neuropathy is difficult and 23 generally requires [a] thorough neurological examination, 24 extensive patient history, tests to identify the cause of the 25 disorder, and tests to determine the extent and type of nerve 26 damage. See Peripheral Neuropathy Fact Sheet, Nat l Inst. of 27 Neurological Disorders & Stroke, http://www.ninds.nih.gov/ 28 disorders/peripheralneuropathy/detail_peripheralneuropathy.htm 30 1 (last updated Sept. 19, 2012); (see also AR 466-67 (Dr. Landau 2 noting that diagnosis requires examination to establish 3 abnormalities such as sensory abnormalities, dependent reflex 4 changes, vibratory sense change, weakness, atrophy )). Further 5 testing is sometimes required to determine the nature and extent 6 of the neuropathy. See Peripheral Neuropathy Fact Sheet, supra; 7 (see also AR 467.) Nothing in the record indicates that Dr. 8 Seneviratne or any other doctor ever conducted a thorough 9 neurological examination or performed any tests on Plaintiff at 10 all, much less sufficient to diagnose peripheral neuropathy. The 11 only even arguable medical signs in the record supporting the 12 diagnosis are brief notations on March 15, 2010, and May 4, 2011, 13 that Plaintiff had decreased sensation in his feet and a November 14 10, 2010 notation that his feet were cold. But Plaintiff s 15 hospital records of the same general time frame belie these 16 conclusory observations, which may well simply be notations of 17 Plaintiff s subjective symptoms. In June 2010, the hospital 18 noted that he was not at risk of falling, had no focal deficit, 19 and had fairly well preserved motor tone. 20 also had no cyanosis of the extremities. (AR 361, 366.) (AR 371.) He In March 21 2011, the hospital noted once again that he had no cyanosis of 22 the extremities. (AR 401.) Further, Plaintiff s original 23 diagnosis of peripheral neuropathy came from a physician 24 assistant, not a medically acceptable source. See Molina v. 25 Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (physician assistants 26 are not [a]cceptable medical sources (alteration in original, 27 internal quotation marks omitted)); Thornton v. Astrue, 28 CV-09-0138-CI, 2010 WL 1904661, at *5 (E.D. Wash. May 12, 2010) 31 1 (noting that physician assistant s opinion cannot establish 2 medically determinable impairment (citing 20 C.F.R. § 416.913(d); 3 SSR 06-03p, 2006 WL 2329939 (Aug. 9, 2006))). 4 Nor is there any other evidence in the record of a diagnosis 5 of peripheral neuropathy based upon medically acceptable 6 diagnostic techniques. Although Plaintiff testified that he has 7 taken Neurontin since he was incarcerated in 2005 (AR 455; see 8 also AR 451), the only references to peripheral neuropathy in the 9 record are the more recent ones discussed above. Moreover, 10 Neurontin is used to treat other ailments, including restless11 legs syndrome. See Gabapentin, MedlinePlus, http://www.nlm.nih. 12 gov/medlineplus/druginfo/meds/a694007.html (last updated July 15, 13 2011). 14 Further, to the extent the ALJ relied upon Dr. Landau s 15 testimony that the medical record contained no objective evidence 16 of peripheral neuropathy, that testimony was consistent with the 17 medical record and the ALJ was entitled to rely upon it. See 18 Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2001) ( The 19 opinions of non-treating or non-examining physicians may also 20 serve as substantial evidence when the opinions are consistent 21 with independent clinical findings or other evidence in the 22 record. ); Morgan v. Comm r of Soc. Sec. Admin., 169 F.3d 595, 23 600 (9th Cir. 1999) ( Opinions of a nonexamining, testifying 24 medical advisor may serve as substantial evidence when they are 25 supported by other evidence in the record and are consistent with 26 it (citing Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 27 1995))); 20 C.F.R. § 416.927(c)(4) (ALJ will generally give more 28 weight to opinions that are more consistent . . . with the 32 1 record as a whole ). Moreover, the ALJ could credit Dr. Landau s 2 opinion because he testified at the hearing and was subject to 3 cross-examination. See Andrews, 53 F.3d at 1042 (greater weight 4 may be given to nonexamining doctors who are subject to 5 cross-examination). Any conflict in the properly supported 6 medical-opinion evidence was therefore the sole province of the 7 ALJ to resolve. 8 See id. at 1041. Because the record does not reflect diagnosis of Plaintiff s 9 alleged peripheral neuropathy by medically acceptable clinical 10 and laboratory diagnostic techniques, the ALJ did not err in 11 holding that the record lacked objective evidence sufficient to 12 establish a medically determinable impairment of peripheral 13 neuropathy. (AR 14); see Ukolov, 420 F.3d at 1005-06; 42 U.S.C. 14 § 423(d)(3) ( [A] physical or mental impairment is an 15 impairment that results from anatomical, physiological, or 16 psychological abnormalities which are demonstrable by medically 17 acceptable clinical and laboratory diagnostic techniques. ); see 18 also 20 C.F.R. § 416.928(a)-(c); Ball v. Massanari, 254 F.3d 817, 19 823 (9th Cir. 2001) ( [I]f the claimant s ailment does not pass 20 step 2, . . . it is not disabling. ). 21 22 2. The ALJ did not err in determining Plaintiff s RFC Plaintiff argues that the ALJ s RFC finding was in error 23 because it excluded limitations related to Plaintiff s peripheral 24 neuropathy, including that he could not stand/walk for 6 of 8 25 hours and required unscheduled work breaks that would preclude 26 full-time competitive employment. 27 (J. Stip. at 7.) As explained above, the ALJ did not err in holding that 28 Plaintiff failed to establish peripheral neuropathy as a 33 1 medically determinable impairment. The lack of objective medical 2 evidence of peripheral neuropathy excludes its consideration in 3 the determination of Plaintiff s RFC.36 See McLavey v. Astrue, 4 325 F. App x 593, 594 (9th Cir. 2009) ( A claimant s RFC must 5 take into account only limitations and restrictions attributable 6 to medically determinable impairments. (citing SSR 96-8P, 1996 7 WL 374184 (July 2, 1996))); Allison v. Astrue, 425 F. App x 636, 8 639 (9th Cir. 2011) (same); Bayliss v. Barnhart, 427 F.3d 1211, 9 1217 (9th Cir. 2005) ( Preparing a function-by-function analysis 10 for medical conditions or impairments that the ALJ found neither 11 credible nor supported by the record is unnecessary. ). 12 Accordingly, Plaintiff is not entitled to relief on this claim. 13 B. 14 Plaintiff argues that the ALJ failed to provide clear and The ALJ Properly Evaluated Plaintiff s Credibility 15 convincing reasons for discrediting portions of Plaintiff s 16 testimony. (J. Stip. at 11.) Plaintiff asserts that the ALJ was 17 not permitted to discredit Plaintiff s testimony solely because 18 it was unsupported by objective medical evidence. (Id. at 12.) 19 20 21 22 23 24 25 26 27 28 36 Further, even if Plaintiff had presented objective evidence of peripheral neuropathy, the ALJ properly found that Plaintiff received only routine, conservative treatment for the alleged ailment (AR 16), implying that any symptoms were adequately controlled with medication. See 20 C.F.R. § 416.929(c)(3)(iv)-(v) (ALJ may consider effectiveness of medication in evaluating severity and limiting effects of impairment); Warre v. Comm r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) ( Impairments that can be controlled effectively with medication are not disabling for the purpose of determining eligibility for [Social Security] benefits. ). No evidence in the record supported more restrictive functional limitations than the ALJ assessed. (AR 16); cf. Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007) (step-two error harmless when ALJ accounts for resulting limitations later in sequential evaluation process.) 34 1 Plaintiff disputes the ALJ s assessment that his testimony 2 reflected somewhat normal daily activities. (Id. at 13.) 3 Reversal is not warranted on these grounds. 4 An ALJ s assessment of pain severity and claimant 5 credibility is entitled to great weight. See Weetman v. 6 Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. Heckler, 779 7 F.2d 528, 531 (9th Cir. 1986). [T]he ALJ is not required to 8 believe every allegation of disabling pain, or else disability 9 benefits would be available for the asking, a result plainly 10 contrary to 42 U.S.C. § 423(d)(5)(A). Molina, 674 F.3d at 1112. 11 In evaluating a claimant s subjective symptom testimony, the ALJ 12 engages in a two-step analysis. 13 1035-36. See Lingenfelter, 504 F.3d at First, the ALJ must determine whether the claimant has 14 presented objective medical evidence of an underlying impairment 15 [that] could reasonably be expected to produce the pain or other 16 symptoms alleged. 17 omitted). Id. at 1036 (internal quotation marks If such objective medical evidence exists, the ALJ may 18 not reject a claimant s testimony simply because there is no 19 showing that the impairment can reasonably produce the degree of 20 symptom alleged. 21 original). Smolen, 80 F.3d at 1282 (emphasis in When the ALJ finds a claimant s subjective complaints 22 not credible, the ALJ must make specific findings that support 23 the conclusion. 24 Cir. 2010). See Berry v. Astrue, 622 F.3d 1228, 1234 (9th Absent affirmative evidence of malingering, those 25 findings must provide clear and convincing reasons for 26 rejecting the claimant s testimony. Lester, 81 F.3d at 834. 27 the ALJ s credibility finding is supported by substantial 28 evidence in the record, the reviewing court may not engage in 35 If 1 second-guessing. 2 Thomas, 278 F.3d at 959. Reversal is not warranted based on the ALJ s alleged failure 3 to make proper credibility findings or properly consider 4 Plaintiff s subjective symptoms. As discussed above, the ALJ s 5 evaluation of the medical evidence was consistent with the 6 record; her rejection of Plaintiff s testimony to the extent it 7 was inconsistent with the objective evidence was therefore 8 proper. See Carmickle v. Comm r, Soc. Sec. Admin., 533 F.3d 9 1155, 1161 (9th Cir. 2008) ( Contradiction with the medical 10 record is a sufficient basis for rejecting the claimant s 11 subjective testimony. ); Lingenfelter, 504 F.3d at 1040 (in 12 determining credibility, ALJ may consider whether the alleged 13 symptoms are consistent with the medical evidence ). Although 14 Plaintiff is correct that the ALJ was not permitted to rely on a 15 lack of objective medical evidence alone to discredit 16 Plaintiff s testimony (J. Stip. at 12), here the ALJ properly 17 considered it as one factor in her evaluation. See Burch v. 18 Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) ( Although lack of 19 medical evidence cannot form the sole basis for discounting pain 20 testimony, it is a factor that the ALJ can consider in his 21 credibility analysis. ); Kennelly v. Astrue, 313 F. App x 977, 22 979 (9th Cir. 2009) (ALJ may not disregard testimony solely 23 because it was unsubstantiated by medical evidence but may use 24 the medical evidence . . . as one factor in his evaluation ). 25 The ALJ specifically identified various inconsistencies 26 between Plaintiff s testimony and the objective medical evidence 27 of his ailments. She found that although Plaintiff testified 28 that he visited the emergency room every three months (AR 457), 36 1 the medical records revealed less frequent medical interventions 2 (AR 16). The ALJ noted that although Plaintiff testified that 3 peripheral neuropathy affected his ability to work because it 4 interfered with his walking, causing sharp pain, tingling, and 5 numbness that made him stumble, Plaintiff confirmed that he did 6 not use a cane or walker. (AR 15.) Indeed, the hospitals 7 repeatedly found that he was not at risk of falling. 8 361.) (AR 231, The ALJ also noted that Plaintiff s complaints of vision 9 problems were unsupported by the medical evidence in the record, 10 a finding Plaintiff does not challenge. (AR 16.) Indeed, as the 11 ALJ noted, there is no medical source statement from an 12 examining or treating physician that endorses the extent of 13 Plaintiff s alleged functional limitations. (Id.) The ALJ thus 14 properly discounted Plaintiff s statements because they either 15 were not supported by or were contradicted by the record. 16 Carmickle, 533 F.3d at 1161; Lingenfelter, 504 F.3d at 1040. 17 Moreover, as the ALJ noted, Plaintiff testified that he was 18 able to do basic daily activities, including maintaining personal 19 hygiene, dressing himself, and cooking. (AR 15.) She noted 20 Plaintiff s testimony that he was able to apply for jobs with the 21 help of his nephew and others. (Id.) During the hearing the ALJ 22 observed that one of Plaintiff s hospitalizations occurred after 23 he got overheated while working outside on a hot day, further 24 indicating that he was not as impaired as he claimed. (AR 460.) 25 The ALJ also noted that Plaintiff s lack of a driver s license 26 was not due to health issues but to a suspension that Plaintiff 27 had chosen not to remedy. (AR 15-16.) That Plaintiff s 28 allegations of disabling functional limitations were inconsistent 37 1 with evidence in the record as to his daily activities was a 2 valid reason for the ALJ to discount his testimony. See Molina, 3 674 F.3d at 1113 ( Even where [claimant s] activities suggest 4 some difficulty functioning, they may be grounds for discrediting 5 the claimant s testimony to the extent that they contradict 6 claims of a totally debilitating impairment. ); see also Fair v. 7 Bowen, 885 F.2d 597, 603 (9th Cir. 1989) ( [I]f, despite his 8 claims of pain, a claimant is able to perform household chores 9 and other activities that involve many of the same physical tasks 10 as a particular type of job, it would not be farfetched for an 11 ALJ to conclude that the claimant s pain does not prevent the 12 claimant from working. ). 13 Finally, the ALJ properly found that Plaintiff received 14 only routine, conservative treatment for poorly controlled 15 diabetes mellitus, treated gastritis, and esophagitis. (AR 16); 16 see 20 C.F.R. § 416.929(c)(3)(iv)-(v) (ALJ may consider 17 effectiveness of medication and nature of treatment in evaluating 18 severity and limiting effects of impairment). Indeed, although 19 the record reflected three hospital visits since the amended 20 alleged onset date, in each case Plaintiff was successfully 21 treated and discharged with medication, dietary instructions, and 22 a recommendation that he follow up with his regular medical 23 provider. (See AR 281, 301, 423.) His diabetes, 24 gastrointestinal ailments, and alleged peripheral neuropathy were 25 otherwise managed with visits to Dr. Seneviratne s clinic, where 26 his medications were renewed or adjusted and he was encouraged to 27 augment his diet and test his blood sugar twice daily. 28 at 1-2; AR 261, 352.) 38 (See 5F 1 Because the ALJ gave clear and convincing reasons for her 2 credibility finding and those reasons were supported by 3 substantial evidence, the Court may not engage in 4 second-guessing. Thomas, 278 F.3d at 959. Plaintiff is not 5 entitled to reversal on this claim. 6 VII. CONCLUSION 7 Consistent with the foregoing, and pursuant to sentence four 8 of 42 U.S.C. § 405(g),37 IT IS ORDERED that judgment be entered 9 AFFIRMING the decision of the Commissioner and dismissing this 10 action with prejudice. IT IS FURTHER ORDERED that the Clerk 11 serve copies of this Order and the Judgment on counsel for both 12 parties. 13 14 15 DATED: November 8, 2013 16 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28 37 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. 39

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