John Martinez v. Michael J Astrue, No. 8:2012cv00809 - Document 23 (C.D. Cal. 2013)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle (ec)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 JOHN MARTINEZ, ) NO. SACV 12-00809-MAN ) Plaintiff, ) ) MEMORANDUM OPINION v. ) ) AND ORDER ) CAROLYN W. COLVIN,1 Acting Commissioner of Social ) Security, ) ) Defendant. ) _________________________________) 17 18 Plaintiff filed a Complaint on May 24, 2012, seeking review of the denial by the Social 19 Security Commissioner ( Commissioner ) of plaintiff s applications for a period of disability 20 ( POD ), disability insurance benefits ( DIB ), and supplemental security income (SSI ). On July 21 17, 2012, the parties consented, pursuant to 28 U.S.C. § 636(c), to proceed before the 22 undersigned United States Magistrate Judge. The parties filed a Joint Stipulation on March 12, 23 2013, in which: plaintiff seeks an order reversing the Commissioner s decision and awarding 24 benefits or, alternatively, remanding for further administrative proceedings; and the Commissioner 25 requests that her decision be affirmed or, alternatively, remanded for further administrative 26 27 28 Carolyn W. Colvin became the Acting Commissioner of the Social Security Administration on February 14, 2013, and is substituted in place of former Commissioner Michael J. Astrue as the defendant in this action. (See Fed. R. Civ. P. 25(d).) 1 1 proceedings. 2 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 3 4 5 On March 9, 2009, plaintiff filed applications for a POD, DIB, and SSI, alleging an inability 6 to work since January 1, 2007 (Administrative Record ( A.R. ) 22), due to: [s]tabwound; 7 diabetes II[;] hypertension[;] suspect glaucoma; M[RS]A on eyes; renal cyst; [one] kidney 8 significantly large[r] []than the other; hepatitis C; brachycardia; enlarged spleen; anxiety; 9 depression; bipolar [disorder]; [and a] skin disorder (A.R. 193). At the reconsideration level, 10 plaintiff additionally alleged that he suffers from [g]astritis, hiatal hernia, pain in shoulders, feet, 11 legs, and back. Eyes hurt and I am seeing things that are not real, which commenced on August 12 6, 2009. (A.R. 209.) 13 14 The Commissioner denied plaintiff s claim initially, and upon reconsideration. (A.R. 68-76, 15 83-95.) On December 1, 2010, plaintiff, who was represented by counsel, appeared and testified 16 at a hearing before Administrative Law Judge Joseph Lisiecki (the ALJ ). (A.R. 41-59.) Arnold 17 Ostra, a medical expert, and Susan Allison, a vocational expert, also testified. (Id.) On January 18 19, 2011, the ALJ denied plaintiff s claim (A.R. 22-30), and the Appeals Council subsequently 19 denied plaintiff s request for review of the ALJ s decision (A.R. 1-7). That decision is now at issue 20 in this action. 21 22 SUMMARY OF ADMINISTRATIVE DECISION 23 24 The ALJ found that plaintiff last met the insured status requirements of the Social Security 25 Act on December 31, 2008, and that he has not engaged in substantial gainful activity since the 26 alleged onset date of January 1, 2007. (A.R. 24.) The ALJ determined that plaintiff has the 27 severe impairments of: diabetes mellitus (insulin dependent); hepatitis C; a mood disorder and 28 psychosis ; nonetheless, the ALJ concluded that plaintiff does not have an impairment or 2 1 combination of impairments that meets or medically equals one of the listed impairments in 20 2 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 3 416.920(d), 416.925, 416.926). (A.R. 24-25.) 4 5 After reviewing the record, the ALJ determined that plaintiff has the residual functional 6 capacity ( RFC ) to perform medium work as defined in 20 C.F.R. [§§] 404.1567(c) and 7 416.967(c) except that he may only occasionally bend, stoop, crawl and climb stairs. (A.R. 26.) 8 Further, [h]e may never climb ladders, ropes or scaffolds and he must avoid exposure to 9 unprotected heights. He is also limited to simple tasks and may have only occasional contact with 10 the public, co-workers and supervisors. (Id.) 11 12 The ALJ found that plaintiff was unable to perform his past relevant work ( PRW ) as a 13 texture painter, painter helper, security guard, and deliverer. (A.R. 28.) Additionally, after 14 having considered plaintiff s age,2 education,3 work experience, and RFC, the ALJ found that other 15 jobs exist in the national economy that plaintiff could perform, including sales attendant and 16 assembler of plastic hospital products. (A.R. 29.) Accordingly, the ALJ concluded that plaintiff 17 has not been under a disability, as defined in the Social Security Act, since January 1, 2007, the 18 alleged onset date. (A.R. 30.) 19 STANDARD OF REVIEW 20 21 22 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s decision to determine 23 whether it is free from legal error and supported by substantial evidence. Orn v. Astrue, 495 F.3d 24 625, 630 (9th Cir. 2007). Substantial evidence is such relevant evidence as a reasonable mind 25 26 27 On the alleged disability onset date, plaintiff was 35 years old, which is defined as a younger individual. (A.R. 29; citing 20 C.F.R. §§ 404.1563, 416.963.) 2 The ALJ found that [plaintiff] has a limited education and is able to communicate in English. (A.R. 29.) 3 28 3 1 might accept as adequate to support a conclusion. Id. (citation omitted). The evidence must 2 be more than a mere scintilla but not necessarily a preponderance. Connett v. Barnhart, 340 3 F.3d 871, 873 (9th Cir. 2003). While inferences from the record can constitute substantial 4 evidence, only those reasonably drawn from the record will suffice. Widmark v. Barnhart, 454 5 F.3d 1063, 1066 (9th Cir. 2006)(citation omitted). 6 7 Although this Court cannot substitute its discretion for that of the Commissioner, the Court 8 nonetheless must review the record as a whole, weighing both the evidence that supports and 9 the evidence that detracts from the [Commissioner s] conclusion. Desrosiers v. Sec y of Health 10 and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also Jones v. Heckler, 760 F.2d 993, 995 11 (9th Cir. 1985). The ALJ is responsible for determining credibility, resolving conflicts in medical 12 testimony, and for resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 13 1995). 14 15 The Court will uphold the Commissioner s decision when the evidence is susceptible to 16 more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 17 However, the Court may review only the reasons stated by the ALJ in his decision and may not 18 affirm the ALJ on a ground upon which he did not rely. Orn, 495 F.3d at 630; see also Connett, 19 340 F.3d at 874. The Court will not reverse the Commissioner s decision if it is based on harmless 20 error, which exists only when it is clear from the record that an ALJ s error was inconsequential 21 to the ultimate nondisability determination. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th 22 Cir. 2006)(quoting Stout v. Comm r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 23 F.3d at 679. 24 25 DISCUSSION 26 27 Plaintiff alleges the following issues: whether the new evidence submitted to the Appeals 28 Council materially undermines the ALJ s decision; and whether the ALJ properly considered 4 1 plaintiff s subjective complaints. (Joint Stipulation ( Joint Stip. ) at 4.) 2 3 4 I. The Evidence Newly Submitted To the Appeals Council Does Not Undermine The ALJ s Decision. 5 6 Following the ALJ s adverse ruling, plaintiff submitted to the Appeals Council additional 7 medical records from: (1) St. Jude Medical Center, dated August 20, 2008, through March 1, 8 2011; (2) Anaheim Memorial Care Medical Center, dated June 4, 2009, through August 2, 2010; 9 (3) UC Irvine Medical Center, dated December 3, 2009, through March 28, 2011; and (4) Coastal 10 Dermatology, dated October 29, 2008, through March 30, 2011. (A.R. 5.) 11 12 The Appeals Council considered the new evidence but determined that it did not provide 13 a basis for changing the [ALJ] s decision, and thus, plaintiff s request for review was denied. 14 (A.R. 1-2.) Because the Appeals Council considered the newly submitted evidence in deciding 15 whether to review the ALJ s decision, this Court also must consider such evidence in determining 16 whether the ALJ s decision was supported by substantial evidence and free from legal error. See 17 Brewes v. Comm r of Soc. Sec. Admin., 682 F.3d 1157, 1163 (9th Cir. 2012)(holding that when 18 the Appeals Council considers new evidence in deciding whether to review a decision of the ALJ, 19 that evidence becomes part of the administrative record, which the district court must consider 20 when reviewing the Commissioner s final decision for substantial evidence ); Warner v. Astrue, 21 859 F.Supp.2d 1107, 1114 15 (C.D. Cal. 2012)(noting that although the Appeals Councils is not 22 required to provide reasons for discounting additional evidence, the Court reviews the ALJ s 23 decision in light of the record as a whole, including the evidence submitted for the first time to 24 the Appeals Council )(citing Taylor v. Comm r of Soc. Sec. Admin., 659 F.3d 1228, 1231 32 (9th 25 Cir. 2011)). The Court may remand upon finding that there is a substantial likelihood the ALJ s 26 consideration of the additional evidence submitted to the Appeals Council will materially alter the 27 ALJ s disability analysis. Id. at 1117. 28 5 1 Plaintiff argues that the evidence newly submitted to the Appeals Council demands an 2 inference of a greater degree of impairment than found by the ALJ, because it demonstrates that 3 his anxiety has been worsening, he suffers from hallucinations, he may have schizophrenia, his 4 liver enzymes were very high, his platelet count was low secondary to hepatitis, and he has 5 shoulder pain. (Joint Stip. at 5.) 6 7 This Court has reviewed the ALJ s decision in view of the record as a whole, including the 8 evidence submitted for the first time to the Appeals Council. For the reasons discussed below, 9 the Court concludes that the newly submitted evidence submitted does not undermine the ALJ s 10 decision. 11 A. 12 Mental Limitations 13 14 Plaintiff contends that the evidence submitted to the Appeals Council demonstrates that 15 he suffers from severe anxiety, hallucinations, and possible schizophrenia, which erode[] the 16 ability to engage in the requirements of work activity. (Joint Stip. at 5-6.) However, this 17 evidence was cumulative of evidence supporting plaintiff s allegations of anxiety and 18 hallucinations, which was already included in the record reviewed by the ALJ. (See e.g., A.R. 409, 19 444, 451-52, 456, 458-59, 462-63, 465-66, 497, 501, 503.) 20 21 Indeed, the ALJ accorded great weight to the opinion of consultative psychiatrist Dr. 22 Ernest A. Bagner III, who considered, inter alia, plaintiff s complaints of anxiety and auditory and 23 visual hallucinations in determining plaintiff s mental limitations.4 (A.R. 409.) However, giving 24 plaintiff every benefit of the doubt, the ALJ assigned plaintiff a more limited mental RFC than 25 26 27 28 Dr. Bagner opined that plaintiff would have no limitations interacting with supervisors, peers, or the public; zero to mild limitations maintaining concentration and attention and completing simple tasks; mild limitations completing complex tasks; and mild to moderate limitations handling normal stresses at work and completing a normal workweek without interruption. (A.R. 412.) 4 6 1 that found by Dr. Bagner. The ALJ, therefore, adopted the mental RFC assessed by the State 2 Agency physician, who also considered and relied on treatment notes indicating plaintiff s 3 complaints of anxiety and hallucinations, in finding that plaintiff was capable of performing 4 simple, repetitive tasks on a sustained basis. (A.R. 28, 436-37, 493-94.) As there was already 5 evidence in the record of plaintiff s complaints of anxiety and hallucinations, which the ALJ 6 properly considered in his decision, the additional evidence presented to the Appeals Council 7 neither undermined nor warranted reconsideration of the ALJ s decision.5 8 9 Plaintiff also alleges that this new evidence demonstrates that his anxiety has been 10 worsening, citing a November 8, 2010 treatment note from his treating physician Dr. E. Scott. 11 (Joint Stip. at 5.) However, when read in its entirety, the note indicated that plaintiff s anxiety 12 was worsening -- in context of [an] upcoming meeting and [Dr. Scott s] departure, i.e., due to 13 the two upcoming events, one of which was the specter of dealing with a new treating physician. 14 (A.R. 612.) 15 continued to report anxiety, but there was no indication of any worsening of his anxiety or any 16 other aggravation of his mental health issues. (A.R. 607-11.) Significantly, treatment notes after November 8, 2010, indicate that plaintiff 17 18 Finally, plaintiff asserts that the newly submitted evidence demonstrates that he may 19 have schizophrenia. Again, however, when read in context, Dr. Scott did not conclusively 20 diagnose plaintiff with schizophrenia, and plaintiff concedes as much. Rather, Dr. Scott appears 21 to be speculating as to whether plaintiff s appropriate diagnosis is bipolar disorder, psychotic 22 depression, or, possibly, schizophrenia.6 (A.R. 614.) As Dr. Scott did not offer a definitive 23 diagnosis of schizophrenia, neither the Appeals Council nor the ALJ was required to specifically 24 25 Moreover, and significantly, in a treatment note dated September 20, 2010, plaintiff reported that while he had continuing symptoms of hallucinations, they did not interfer[e] [with] his life. (A.R. 613.) 5 26 27 As noted by the ALJ, plaintiff s therapist noted that . . . [plaintiff] s mental disorders might be related to . . . [his] substance abuse disorder. (A.R. 27; citing A.R. 382.) 6 28 7 1 address this issue. See Howard v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003)(noting that in 2 interpreting the evidence . . . the ALJ does not need to discuss every piece of evidence ). 3 4 In sum, the evidence regarding plaintiff s allegations of anxiety and hallucinations that was 5 presented to the Appeals Council is at best cumulative and does not change the outcome of this 6 case. New evidence is only considered material if it bears directly and substantially on the 7 decision in this case. See Key v. Heckler, 754 F.2d 1545, 1551 (9th Cir. 1985). 8 9 B. Physical Limitations 10 11 Plaintiff next contends that the evidence presented to the Appeals Council demonstrated 12 that his liver enzymes were very high and his platelet count was low, secondary to hepatitis C 13 (Joint Stip. at 5.) However, plaintiff does not indicate how these test results would undermine 14 the ALJ s decision or would prevent plaintiff from performing work activity. There was also no 15 indication in the treatment notes of any worsening of symptoms due to plaintiff s hepatitis C. 16 Rather, plaintiff s most recent treatment notes indicate that plaintiff was treating his hepatitis with 17 medication and that his hepatitis was stable. (A.R. 621 (01/14/10 - hepatitis C stable ); A.R. 620 18 (02/17/10 - [patient] needs GI eval[uation] for cont[inued treatment with] Pegasys ; A.R. 618 19 (03/10/10 - continue Pegasys). Without any competent medical evidence of how a low platelet 20 count and/or elevated liver enzyme levels supports a finding of disability, this additional evidence 21 does not undermine the substantial evidence in support of the ALJ s RFC determination. 22 23 Finally, plaintiff argues that the newly submitted evidence establishes that he has a 24 shoulder impairment [which] will cause significant reaching and handling limitations that erode 25 the medium exertion occupational base. (Joint Stip. at 5-6.) However, aside from plaintiff s own 26 complaints regarding pain in his shoulders, which he stated commenced around August 6, 2009 27 (A.R. 53, 209), there is only a single reference of record that plaintiff reported shoulder pain to 28 a physician. (A.R. 613.) 8 1 In a September 20, 2010 treatment note, which was not before the ALJ but was presented 2 to the Appeals Council, plaintiff presented with shoulder discomfort[,] unable to lift above head 3 has had these [symptoms] since 18 [years old] have been slowly progressive. (A.R. 613.) 4 Dr. Scott noted plaintiff had a decreased range of motion in his left shoulder, and he was unable 5 to fully extend and flexion to 90 degrees. (Id.) Dr. Scott then diagnosed [r]otator cuff strain 6 and noted that plaintiff may need surgical intervention, however will try [physical therapy] first. 7 (Id.) 8 9 Significantly, although plaintiff stated that his shoulder pain commenced in August 2009, 10 plaintiff did not report his shoulder pain to any physician until more than a year later. (A.R. 209, 11 613.) Moreover, this single treatment note fails to demonstrate any impairment which would 12 prevent plaintiff from performing work activity for a period of at least twelve months, particularly 13 as Dr. Scott only recommended physical therapy and did not assess any functional limitations 14 associated with plaintiff s rotator cuff strain. Thus, the Court finds that this single, isolated 15 complaint does not undermine the substantial evidence in support of the ALJ s RFC determination. 16 See Robbins, 466 F.3d at 882 ( [A] court must consider the entire record as a whole and may not 17 affirm simply by isolating a specific quantum of supporting evidence. )(quoting Hammock v. 18 Bowen, 879 F.2d 498, 501 (9th Cir. 1989)); see also Carmickle v. Comm r, Soc. Sec. Admin., 533 19 F.3d 1155, 1165 (9th Cir. 2008)(providing that the ALJ did not err in failing to address a 20 physician s recommendation that a plaintiff use a reclinable desk chair while working, because it 21 was not stated as an imperative). 22 23 Therefore, in view of the evidence before the ALJ and the additional evidence submitted 24 only to the Appeals Council, this Court finds that the ALJ s decision is supported by substantial 25 evidence. 26 /// 27 /// 28 /// 9 1 II. The ALJ Provided The Requisite Clear And Convincing Reasons For Rejecting Plaintiff s Subjective Pain Testimony. 2 3 4 Once a disability claimant produces objective medical evidence of an underlying impairment 5 that is reasonably likely to be the source of claimant s subjective symptom(s), all subjective 6 testimony as to the severity of the claimant s symptoms must be considered. Moisa v. Barnhart, 7 367 F.3d 882, 885 (9th Cir. 2004); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991); see also 8 20 C.F.R. §§ 404.1529(a), 416.929(a) (explaining how pain and other symptoms are evaluated). 9 [U]nless an ALJ makes a finding of malingering based on affirmative evidence thereof, he or she 10 may only find an applicant not credible by making specific findings as to credibility and stating 11 clear and convincing reasons for each. Robbins, 466 F.3d at 883. The factors to be considered 12 in weighing a claimant s credibility include: (1) the claimant s reputation for truthfulness; (2) 13 inconsistencies either in the claimant s testimony or between the claimant s testimony and her 14 conduct; (3) the claimant s daily activities; (4) the claimant s work record; and (5) testimony from 15 physicians and third parties concerning the nature, severity, and effect of the symptoms of which 16 the claimant complains. See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002); see also 17 20 C.F.R. §§ 404.1529(c), 416.929(c). 18 19 Here, the ALJ concluded that [a]fter careful consideration of the evidence, . . . [plaintiff] s 20 medically determinable impairments could reasonably be expected to cause the alleged 21 symptoms. (A.R. 26.) Significantly, the ALJ cited no evidence of malingering by plaintiff. 22 Nonetheless, the ALJ determined that plaintiff s statements concerning the intensity, persistence 23 and limiting effects of [his] symptoms are not credible to the extent they are inconsistent with the 24 above [RFC] assessment. (A.R. 26-27.) Accordingly, the ALJ s reasons for finding that plaintiff 25 was not credible with respect to his subjective symptom and pain testimony must be clear and 26 convincing. 27 28 The ALJ rejected plaintiff s subjective complaints because: 10 (1) plaintiff s statements 1 regarding his household chores and daily activities were inconsistent; (2) plaintiff s treatment was 2 inconsistent with his allegation that he was totally disabled; (3) plaintiff s condition improved; and 3 (4) plaintiff engaged in activities of daily living which were inconsistent with his allegation that 4 he was totally disabled. (A.R. 27.) As discussed below, the ALJ provided sufficient clear and 5 convincing reasons for rejecting plaintiff s pain and symptom testimony. 6 7 The ALJ found plaintiff to be not credible, because he made inconsistent statements 8 regarding his ability to engage in household chores and activities of daily living. (A.R. 28.) For 9 example, the ALJ noted that plaintiff reported in his April 13, 2009 Function Report -- Adult form 10 that he is able to do household chores, including cleaning, laundry, household repairs, ironing, 11 and mowing if he feel[s] up to it. (A.R. 183.) However, less than three months later, plaintiff 12 reported to Dr. Bagner that he does not do [any] household chores or daily activities. (A.R. 13 410.) Clearly these two statements are inconsistent, and thus, the ALJ proffered a clear and 14 convincing reason for finding plaintiff to be not credible. 15 16 The ALJ further discredited plaintiff because he sought limited treatment for many of his 17 conditions, including his diabetes and hepatitis C, which indicat[es] his symptoms are less . . . 18 severe than [he] alleges. (A.R. 28.) For example, notwithstanding plaintiff s claim that he 19 became disabled in January 2007, the ALJ noted that an April 2008 medical report indicated that 20 plaintiff did not have a regular primary care physician and did not frequently seek medical care. 21 (Id.; citing A.R. 360.) Specifically, with respect to plaintiff s treatment for diabetes, the ALJ cited 22 a July 2009 consultative examination, which noted that plaintiff had only been admitted to the 23 hospital on two occasions for his diabetes. 7 (A.R. 27; emphasis added.) With respect to 24 plaintiff s treatment for hepatitis C, the ALJ again cited the April 2008 medical report, which noted 25 26 27 28 In addition, the ALJ noted that the July 2009 examination also indicated that plaintiff s: [m]otor, sensory, and reflexes were all intact ; gait and balance were within normal limits ; and Phalen s and Tinel s tests were negative. (A.R. 27.) Further, the consultative examiner, like the ALJ, found [plaintiff] would be capable of a limited range of medium work. (Id.) 7 11 1 that plaintiff never followed up with his doctor regarding his hepatitis C since after being 2 diagnosed in 199[6]. 8 (Id.; citing A.R. 360.) The ALJ properly reasoned that if [plaintiff] s 3 conditions were as debilitating as alleged, [plaintiff] would take all steps possible to alleviate his 4 conditions, including seeking regular treatment. (A.R. 28.) Accordingly, plaintiff s failure to seek 5 regular treatment for his allegedly disabling impairments constituted a clear and convincing 6 reason for rejecting his credibility.9 See Flaten v. Sec y of Health & Hum. Servs., 44 F.3d 1453, 7 1464 (9th Cir. 1995)(finding it appropriate for the ALJ to discount plaintiff s credibility because of 8 a lack of medical care during a period of claimed disability). 9 10 Additionally, the ALJ noted improvement with respect to plaintiff s mental impairments. 11 (A.R. 27.) For example, the ALJ noted that on April 10, 2009, . . . Dr. Scott [found plaintiff s 12 condition] was improving . . . and also that he was feeling less overwhelmed. (Id.; citations 13 omitted.) The ALJ further noted that [a]t a July 31, 2009 office visit with Dr. Scott, [plaintiff] s 14 mood was better off[,] . . . [and plaintiff] denied suicidal ideation at a September 2009 office 15 visit. (Id.; internal citations omitted.) Further, the ALJ noted that in a July 2009 consultative 16 examination with Dr. Bagner, plaintiff: had good hygiene ; was well nourished and had a 17 normal posture and gait ; had intact and coherent speech and tight thought processes; showed 18 no flight of thought, looseness of association, thought blocking or distactibility ; had normal 19 reality contact ; and had no . . . auditory or visual hallucinations during the interview. (Id.) 20 Accordingly, the above-noted improvement in plaintiff s condition constituted a clear and 21 22 23 24 25 26 27 28 The ALJ states that plaintiff was diagnosed with hepatitis C in 1998; however, the treatment note, upon which the ALJ cites in support of his statement, indicates that plaintiff was diagnosed with hepatitis C in 1996. (Id.) 8 Plaintiff appears to claim that the ALJ s rejection of plaintiff s credibility based on his limited treatment for hepatitis C was improper, because [plaintiff] had to stop taking medication for his hepatitis C because he was no longer insured and unable to secure payment for the medication. (Joint Stip. at 13.) While it is true that the record reflects that plaintiff did not have insurance for a limited period of time (compare A.R. 405 (7/6/09 - [plaintiff] has not been taking [his hepatitis C] medication for two days because he ran out of insurance ), with A.R. 447 (8/28/09 - noting plaintiff s hepatitis C treatment had been restarted ), plaintiff provides absolutely no explanation for his failure to seek treatment when he still had insurance. As such, plaintiff s claim is unavailing. 9 12 1 convincing reason not to credit fully his subjective symptom testimony.10 See Morgan v. Comm r 2 of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999)(ALJ may discount claimant s credibility 3 based on medical improvement). 4 5 Lastly, the ALJ discredited plaintiff, because he engaged in activities of daily living which 6 were inconsistent with [his] allegation that he was totally disabled. (A.R. 27-28.) The ALJ noted 7 that [plaintiff] was independent in self care, prepared his own meals daily, performed household 8 chores such as cleaning, doing the laundry, reading, making models, painting and doing wood 9 work. (Id.) The ALJ also noted that [plaintiff] enjoyed watching the Discovery and History 10 channel[s]. (A.R. 28.) As an initial matter, the ALJ s description of plaintiff s daily activities is 11 incomplete and misleading. For example, the ALJ failed to include plaintiff s statement that he 12 does household chores only if [he] feel[s] up to it (A.R. 183) and his statement that he does 13 not watch cable television or do any hobbies, except reading, because he cannot afford them 14 (A.R. 184). Moreover, and significantly, beyond failing to accurately describe plaintiff s daily 15 activities, the ALJ failed to specifically articulate how plaintiff s daily activities are inconsistent with 16 his allegedly disabling symptoms. See Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998)(only 17 if the level of activity was inconsistent with claimant s claimed limitations would the activity have 18 any bearing on claimant s credibility). Thus, without more, the ALJ s boilerplate statement cannot 19 constitute a clear and convincing reasoning for finding plaintiff to be not credible. 20 21 The Court finds, however, that the ALJ s error in relying on plaintiff s daily activities to 22 undermine his credibility was harmless, because the ALJ s other reasons and ultimate credibility 23 determination are supported by substantial evidence. See Carmickle, 533 F.3d at 1162 63 24 (holding that ALJ s reliance on two invalid reasons in support of adverse credibility determination 25 was harmless where remaining reasons were adequately supported by substantial evidence). The 26 27 28 10 Plaintiff asserts that the evidence submitted to the Appeals Council paints a portrait of a man who continues to deteriorate mentally. (Joint Stip. at 13.) However, plaintiff s assertion that his condition deteriorated is unpersuasive for the reasons discussed supra. 13 1 Court therefore finds and concludes that reversal is not warranted based on the ALJ s alleged 2 failure to properly consider plaintiff s testimony. 3 CONCLUSION 4 5 6 For the foregoing reasons, the Court finds that the Commissioner s decision is supported 7 by substantial evidence and is free from material legal error. 8 Neither reversal of the Commissioner s decision nor remand is warranted. 9 10 Accordingly, IT IS ORDERED that Judgment shall be entered affirming the decision of the 11 Commissioner of the Social Security Administration. IT IS FURTHER ORDERED that the Clerk of 12 the Court shall serve copies of this Memorandum Opinion and Order and the Judgment on counsel 13 for plaintiff and for the Commissioner. 14 15 LET JUDGMENT BE ENTERED ACCORDINGLY. 16 17 DATED: October 30, 2013 18 19 20 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 14

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