(SS) Lee v. Commissioner of Social Security, No. 1:2009cv00011 - Document 20 (E.D. Cal. 2010)

Court Description: DECISION and ORDER Denying Plaintiff's Social Security Complaint; ORDER Directing the Entry of Judgment for Defendant Michael J. Astrue, Commissioner of Social Security, and Against Plaintiff Sia V. Lee signed by Magistrate Judge Sandra M. Snyder on 04/01/2010. CASE CLOSED. (Flores, E)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 SIA V. LEE, 10 Plaintiff, 11 v. 12 MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL 13 SECURITY, 14 15 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) 1:09-cv-00011-SMS DECISION AND ORDER DENYING PLAINTIFF S SOCIAL SECURITY COMPLAINT (DOC. 1) ORDER DIRECTING THE ENTRY OF JUDGMENT FOR DEFENDANT MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, AND AGAINST PLAINTIFF SIA V. LEE 16 Plaintiff is proceeding in forma pauperis and with counsel 17 with an action seeking judicial review of a final decision of the 18 Commissioner of Social Security (Commissioner) denying 19 Plaintiff s application that was protectively filed on July 31, 20 2005, and made pursuant to Title XVI of the Social Security Act 21 for supplemental security income (SSI) benefits, in which she had 22 claimed to have been disabled since January 1, 2005, due to 23 depression, sciatica, tail bone/spinal injury, and arthritis with 24 pain in the low back, chest, left knee, right hand, and neck. 25 (A.R. 7, 84-87, 98.) The parties have consented to the 26 jurisdiction of the United States Magistrate Judge pursuant to 28 27 U.S.C. § 636(c)(1), and pursuant to the order of Magistrate Judge 28 1 1 Dennis L. Beck filed on May 22, 2009, the matter has been 2 assigned to the Magistrate Judge to conduct all further 3 proceedings in this case, including entry of final judgment. 4 The decision under review is that of Social Security 5 Administration (SSA) Administrative Law Judge (ALJ) Michael J. 6 Haubner, dated June 24, 2008 (A.R. 7-12), rendered after a 7 hearing held on April 17, 2008, at which Plaintiff appeared and 8 testified with the assistance of a Hmong interpreter and an 9 attorney (A.R. 19-47). 10 The Appeals Council denied Plaintiff s request for review of 11 the ALJ s decision on November 14, 2008 (A.R. 1-3), and 12 thereafter Plaintiff filed the complaint in this Court on January 13 5, 2009. Plaintiff s amended opening brief was filed on September 14 24, 3009, and Defendant s brief was filed on October 16, 2009. 15 The matter has been submitted without oral argument to the 16 Magistrate Judge. 17 I. Jurisdiction 18 The Court has jurisdiction over the subject matter of this 19 action pursuant to 42 U.S.C. §§ 1383(c)(3) and 405(g), which 20 provide that an applicant suffering an adverse final 21 determination of the Commissioner of Social Security with respect 22 to SSI benefits after a hearing may obtain judicial review by 23 initiating a civil action in the district court within sixty days 24 of the mailing of the notice of decision. Plaintiff filed her 25 complaint on January 5, 2009, less than sixty days after the 26 mailing of the notice of decision on or about November 14, 2008. 27 II. Standard and Scope of Review 28 Congress has provided a limited scope of judicial review of 2 1 the Commissioner's decision to deny benefits under the Act. In 2 reviewing findings of fact with respect to such determinations, 3 the Court must determine whether the decision of the Commissioner 4 is supported by substantial evidence. 42 U.S.C. § 405(g). 5 Substantial evidence means "more than a mere scintilla," 6 Richardson v. Perales, 402 U.S. 389, 402 (1971), but less than a 7 preponderance, Sorenson v. Weinberger, 514 F.2d 1112, 1119, n. 10 8 (9th Cir. 1975). It is "such relevant evidence as a reasonable 9 mind might accept as adequate to support a conclusion." 10 Richardson, 402 U.S. at 401. The Court must consider the record 11 as a whole, weighing both the evidence that supports and the 12 evidence that detracts from the Commissioner's conclusion; it may 13 not simply isolate a portion of evidence that supports the 14 decision. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 15 2006); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 16 It is immaterial that the evidence would support a finding 17 contrary to that reached by the Commissioner; the determination 18 of the Commissioner as to a factual matter will stand if 19 supported by substantial evidence because it is the 20 Commissioner s job, and not the Court s, to resolve conflicts in 21 the evidence. Sorenson v. Weinberger, 514 F.2d 1112, 1119 (9th 22 Cir. 1975). 23 In weighing the evidence and making findings, the 24 Commissioner must apply the proper legal standards. Burkhart v. 25 Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must 26 review the whole record and uphold the Commissioner's 27 determination that the claimant is not disabled if the 28 Commissioner applied the proper legal standards, and if the 3 1 Commissioner's findings are supported by substantial evidence. 2 See, Sanchez v. Secretary of Health and Human Services, 812 F.2d 3 509, 510 (9th Cir. 1987); Jones v. Heckler, 760 F.2d at 995. If 4 the Court concludes that the ALJ did not use the proper legal 5 standard, the matter will be remanded to permit application of 6 the appropriate standard. Cooper v. Bowen, 885 F.2d 557, 561 (9th 7 Cir. 1987). 8 9 10 III. Disability A. Legal Standards In order to qualify for benefits, a claimant must establish 11 that she is unable to engage in substantial gainful activity due 12 to a medically determinable physical or mental impairment which 13 has lasted or can be expected to last for a continuous period of 14 not less than twelve months. 42 U.S.C. §§ 416(i), 1382c(a)(3)(A). 15 A claimant must demonstrate a physical or mental impairment of 16 such severity that the claimant is not only unable to do the 17 claimant s previous work, but cannot, considering age, education, 18 and work experience, engage in any other kind of substantial 19 gainful work which exists in the national economy. 42 U.S.C. 20 1382c(a)(3)(B); Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th 21 Cir. 1989). The burden of establishing a disability is initially 22 on the claimant, who must prove that the claimant is unable to 23 return to his or her former type of work; the burden then shifts 24 to the Commissioner to identify other jobs that the claimant is 25 capable of performing considering the claimant's residual 26 functional capacity, as well as her age, education and last 27 fifteen years of work experience. Terry v. Sullivan, 903 F.2d 28 1273, 1275 (9th Cir. 1990). 4 1 In order to qualify for benefits, a claimant must establish 2 that she is unable to engage in substantial gainful activity due 3 to a medically determinable physical or mental impairment which 4 has lasted or can be expected to last for a continuous period of 5 not less than twelve months. 42 U.S.C. § 1382c(a)(3)(A). A 6 claimant must demonstrate a physical or mental impairment of such 7 severity that the claimant is not only unable to do the 8 claimant s previous work, but cannot, considering age, education, 9 and work experience, engage in any other kind of substantial 10 gainful work which exists in the national economy. 42 U.S.C. 11 1382c(a)(3)(B); Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th 12 Cir. 1989). The burden of establishing a disability is initially 13 on the claimant, who must prove that the claimant is unable to 14 return to his or her former type of work; the burden then shifts 15 to the Commissioner to identify other jobs that the claimant is 16 capable of performing considering the claimant's residual 17 functional capacity, as well as her age, education and last 18 fifteen years of work experience. Terry v. Sullivan, 903 F.2d 19 1273, 1275 (9th Cir. 1990). 20 The regulations provide that the ALJ must make specific 21 sequential determinations in the process of evaluating a 22 disability: 1) whether the applicant engaged in substantial 23 gainful activity since the alleged date of the onset of the 24 impairment, 2) whether solely on the basis of the medical 25 evidence the claimed impairment is severe, that is, of a 26 magnitude sufficient to limit significantly the individual s 27 physical or mental ability to do basic work activities; 3) 28 whether solely on the basis of medical evidence the impairment 5 1 equals or exceeds in severity certain impairments described in 2 Appendix I of the regulations; 4) whether the applicant has 3 sufficient residual functional capacity, defined as what an 4 individual can still do despite limitations, to perform the 5 applicant s past work; and 5) whether on the basis of the 6 applicant s age, education, work experience, and residual 7 functional capacity, the applicant can perform any other gainful 8 and substantial work within the economy. See 20 C.F.R. § 416.920 9 (2008). 10 11 B. The ALJ s Findings The ALJ found that Plaintiff had severe impairments of mild 12 C4-5 foraminal narrowing and lumbago, but Plaintiff had no 13 impairment or combination thereof that met or medically equaled a 14 listed impairment. (A.R. 9.) The ALJ concluded that Plaintiff s 15 subjective complaints were not entirely credible, and Plaintiff 16 retained the residual functional capacity (RFC) to perform the 17 full range of light work. (A.R. 10-11.) Plaintiff could perform 18 her past relevant work as a harvest worker, and thus Plaintiff 19 had not been disabled since July 31, 2005. (A.R. 12.) 20 21 C. Plaintiff s Contentions Plaintiff argues that the ALJ failed to provide legally 22 sufficient reasons for rejecting Plaintiff s testimony. Further, 23 he failed appropriately to consider, and to state legally 24 sufficient reasons for rejecting, the opinion of Plaintiff s 25 treating physician Roger Fife, M.D. Plaintiff seeks to have this 26 Court direct an award of benefits. 27 IV. Medical Evidence 28 Plaintiff was treated by Dr. Satnam S. Uppal, M.D., at the 6 1 Merced Medical Clinic, in 2005. (A.R. 140-57.) In February 2005, 2 Plaintiff complained of neck and back pain, and she was 3 prescribed Ultram, Mobic, and Tylenol. (A.R. 153.) 4 Steven E. Liston, M.D., a radiologist, reported that 5 radiological studies of the cervical spine taken in February 2005 6 showed mild neural foraminal narrowing at C4-5 on the left, which 7 was probably congenital. The other neural foramina were patent, 8 and there was no significant facet arthropathy, no osseous trauma 9 or abnormal calcification, and no soft-tissue swelling. (A.R. 10 151.) Studies of the lumbar spine showed radiographically mild 11 degenerative disk and facet arthropathy at L5-S1, with otherwise 12 normal facet joints and disk spaces. (Id.) Studies of the 13 thoracic spine were negative. (Id.; A.R. 144.) 14 In March 2005, Plaintiff reported to Dr. Uppal back pain, 15 headaches, shortness of breath, numbness, and joint pain. The 16 assessment was obesity and GERD; tests were planned. (A.R. 147.) 17 A pulmonary function test from March 2005 was within normal 18 limits. (A.R. 148.) An ECG was also normal. (A.R. 146.) In April 19 Plaintiff continued to complain of back pain; the treatment was 20 medication (Paxil, Celebrex, Tylenol, and Ultram). (A.R. 143.) In 21 May 2005, the assessment was back pain and muscle spasm; heat and 22 physical therapy were included in the plan. (A.R. 142.) In June, 23 medications were adjusted to Celebrex, Tylenol, Vicodin, Ultram, 24 and Triavil. (A.R. 141.) 25 Records from Dr. Roger L. Fife show that in July 2005, 26 Plaintiff complained of pain in the back, wrist, and many joints 27 since she was three years old when a bag of rice was dropped on 28 her from an airplane; her back pain had increased a lot in the 7 1 past year. The examination reflected normal findings except a 2 tender right wrist and low back. The assessment was multiple 3 joint pains treated with Mobic. (A.R. 139.) 4 In August 2005, examination at the Merced Medical Clinic for 5 back, hand, and leg pain revealed generalized symptoms that 6 included joint pain, swelling, stiffness, muscle spasms, numbness 7 of the hands, anxiety, and insomnia. The assessment was 8 fibromyalgia, depression, and anxiety. Treatment was medication 9 with Celebrex, Acetaminophen, Aleve, Tylenol, Ultram, and 10 Triavil. (A.R. 140.) 11 Records of Dr. Fife reflect treatment of Plaintiff a few 12 times a year from February 2006 through March 2008. (A.R. 17113 75.) In February 2006, Plaintiff complained of back pain for 14 which medication had worked only thirty minutes and had made 15 Plaintiff sleep; examination revealed tenderness along the 16 sacrum. The assessment was low back pain and depression for which 17 Naprosyn, back exercises, and Lexapro were prescribed. (A.R. 18 175.) Later that month Plaintiff returned and reported that she 19 had been treated at the emergency room for fainting and could not 20 sleep because of her back. Ambien was prescribed along with the 21 Lexapro. (A.R. 175.) By March 2006, she reported she had been 22 taking Ativan, which made her feel better; she was just tired and 23 fatigued. The assessment was a panic attack; Dr. Fife continued 24 to prescribe Lexapro. 25 On March 18, 2006, Dr. James A. Nowlan, Jr., performed a 26 comprehensive internal medicine evaluation with the assistance of 27 an interpreter from the DDS. (A.R. 158-61.) Plaintiff s chief 28 complaints were pain in her back, which radiated to her legs and 8 1 caused them to be weak, and pain in the right wrist. No records 2 were provided. Plaintiff reported that pressure on her spinal 3 cord, as shown on x-rays, caused the pain; medication provided no 4 relief, and walking and bending caused it to worsen. Plaintiff 5 walked slowly but used no assistive devices. Finger-to-nose and 6 Romberg were normal. Although Plaintiff asserted that she could 7 not go any further when she reached about fifty degrees in a 8 forward bend to touch her toes, she bent over and pulled off her 9 sandals and straightened without any difficulty when asked to 10 remove her shoes. (A.R. 159.) The right wrist was swollen with 11 tenderness over the carpal bones on the right wrist. Motor 12 strength was 5/5 throughout the bilateral upper and lower 13 extremities; sensation was normal throughout, with reflexes 2+ 14 bilaterally in the upper and lower extremities. (A.R. 159-60.) 15 With respect to a functional assessment, Dr. Nowlan stated: 16 I found no evidence of any pain in her legs that I could elicit other than what she said. Touching her legs and moving them produced no painful responses. Her back seemed perfectly fine when she was putting her shoes on and taking them off, but she said that she could not bend because of the pain. 17 18 19 (A.R. 160.) He then stated that based on objective findings, 20 Plaintiff could lift and carry ten pounds frequently and twenty21 five pounds occasionally, stand and walk for six hours in an 22 eight-hour day, and sit without limitation; there were no 23 postural or manipulative limitations, and Plaintiff did not need 24 to use an assistive device. (A.R. 160-61.) 25 On April 24, 2006, state agency medical consultant Dr. J. 26 Zheutlin opined that Plaintiff could occasionally lift fifty 27 pounds and frequently lift ten pounds, sit and stand and/or walk 28 9 1 about six hours in an eight-hour workday, with no other 2 limitations. (A.R. 162-69.) 3 In June 2006, Plaintiff reported to Dr. Fife that she had 4 broken her ankle a month before; along with her back pain she had 5 a bump in her lower back that was very tender. The note referred 6 to a connective tissue nodule. The assessment was low back pain, 7 treated with an injection of the nodule with Xylocaine, and 8 continued administration of Lexapro and Naprosyn. (A.R. 174.) By 9 September 2006, Plaintiff was following up after gallbladder 10 surgery, which she reported was not connected to her continuing 11 back pain. The assessment was lumbago, gastritis, and depression; 12 the treatment was to continue with Lexapro, Naprosyn, and Nexium, 13 and injecting the back joint with Xylocaine. (A.R. 173.) 14 In March 2007, Plaintiff complained of pain in the ankle and 15 the foot where she had broken it, dizziness, and pain in the back 16 as well as the neck with stress. The assessment was lumbago, foot 17 pain, and depression; the same medications were continued. (A.R. 18 173.) In June 2007, Plaintiff needed more Nexium despite 19 improvement of her stomach; she continued to have back pain and 20 wanted her medication changed, so Cymbalta was prescribed. (A.R. 21 173.) In September 2007, Plaintiff reported back pain in an area 22 where she had undergone surgery. She described epigastric pain 23 that radiated to the lower back; the pain was the same that she 24 had before her gallbladder surgery. She could eat OK and denied 25 digestive symptoms, but she reported that some weeks ago she had 26 run out of her medicine, which had been helping. The assessment 27 was abdominal pain and lumbago; Dr. Fife continued Nexium and 28 Cymbalta and back exercises. (A.R. 172.) In December 2007, 10 1 Plaintiff reported continued back pain and stomach pain after 2 eating; taking Nexium made her feel dizzy. She reported not only 3 lower back pain but pain down the front and side of the thighs 4 and lumbar tenderness; the back pain prevented sleep. The 5 assessment was lumbago, depression, reflux-GERD, and lumbar 6 spine ; the treatment was Prilosec, Cymbalta, and Tylenol. (A.R. 7 172.) An undated medication note reports that Plaintiff also took 8 Prevacid and Nexium in September and December 2007, respectively. 9 (A.R. 136.) 10 In March 2008, Dr. Fife noted Plaintiff s report of foot and 11 leg pain for a week along with back pain experienced since she 12 had been three years old, fever for a week, and very much stress 13 because she thought too much. The note referred to foot 14 tenderness on the fifth metatarsal laterally, low back tenderness 15 but good range of motion, mild degenerative changes on an x16 ray, and normal straight leg raising. The assessment was 17 degenerative arthritis and depression, to be treated with 18 Lidoderm patches, Naprosyn, and Cymbalta. (A.R. 171.) 19 In March 2008, Dr. Fife completed a check-off type of form 20 for a physical capacities evaluation of Plaintiff. He stated that 21 she could lift and carry up to six pounds frequently and six to 22 twenty pounds occasionally; stand and walk one hour and sit four 23 hours in an eight-hour work day; occasionally bend, crawl, and 24 climb; never squat, kneel, or stoop; and was mildly restricted 25 with respect to extremes of temperature, wetness and humidity, 26 noise and vibration, fumes and dust, and hazards from machinery 27 or heights. (A.R. 177.) 28 V. Testimony at the Hearing 11 1 2 A. Plaintiff s Testimony Plaintiff, who was born in 1967, testified that she could 3 read and write in the Hmong language but could not speak or 4 understand English with the exception of a few easy words, and 5 she could not read or write English. (A.R. 2728.) Her only 6 employment was one month of picking blueberries in 2004 and 7 another in 2005. (A.R. 28, 39.) 8 Plaintiff lived with her family, including her husband, who 9 worked outside of the home, and six children between the ages of 10 eleven and twenty-four. Plaintiff took care of her personal 11 needs, bathed, dressed, shopped twice a week, prepared light 12 meals twice a day, did the dishes and cleaned up, did laundry and 13 ironed weekly, walked twice a day for fifteen minutes for 14 exercise, spent thirty minutes a day helping her children with 15 their homework, attended school meetings twice a year, watched 16 forty minutes of TV daily, and cooked for a hobby, but she did no 17 yard work, vacuuming, or taking trash away. (A.R. 30-35.) She had 18 a driver s license and drove a van twice a week. (A.R. 29.) 19 Plaintiff testified that she could lift and carry half a 20 gallon of milk, stand fifteen minutes at a time before needing to 21 sit down and rest, and sit for twenty minutes before needing to 22 get up and move around. She had to lie down three hours out of 23 every eight. (A.R. 35-36.) She had difficulty concentrating and 24 could pay attention to something for forty minutes maximum and 25 then would have to rest for an hour. (A.R. 36.) 26 27 B. Testimony of the Vocational Expert Jose Chapparo, a vocational expert, testified that one who 28 could perform light work (lifting twenty-five pounds occasionally 12 1 and ten pounds frequently) could perform Plaintiff s past work of 2 a fruit harvest worker, which was medium and unskilled, but light 3 as Plaintiff performed it; however, the person could not perform 4 it as it was described in the DOT. The person could also perform 5 other light work, such as flower picker, housekeeping cleaner, 6 and patch worker, with positions available in specified numbers 7 in California and throughout the nation. (A.R. 37-39, 41-43.) One 8 who could lift and carry the same amount but without any postural 9 limits or assistive device, sit without limit, and stand and walk 10 for about six hours in an eight-hour day could perform the same 11 work. (A.R. 44-45.) If one could sit only four hours out of 12 eight, stand and walk each one hour, frequently lift five pounds 13 and occasionally lift six to twenty pounds, occasionally bend, 14 crawl, and climb, but never squat, kneel, or stoop, with mild 15 limitations in environmental hazards and extremes of temperature, 16 the person could not perform Plaintiff s past relevant work or 17 any work in the economy. (A.R. 45.) If, as Plaintiff testified, 18 one could lift and carry approximately four pounds, stand fifteen 19 minutes and sit twenty minutes at a time, but would need to lie 20 down three hours out of eight, and could concentrate for forty 21 minutes only before needing to rest mentally for one hour, the 22 person could not perform Plaintiff s past relevant work or any 23 other work. (A.R. 46.) 24 VI. Findings concerning Plaintiff s Credibility 25 Plaintiff raises multiple challenges to the reasons stated 26 by the ALJ concerning Plaintiff s credibility. 27 28 A. The ALJ s Findings and Reasoning The ALJ found that Plaintiff s mentally determinable 13 1 impairments could reasonably be expected to produce only some of 2 the alleged symptoms. (A.R. 10.) Further, Plaintiff s statements 3 concerning the intensity, persistence, and limiting effects of 4 the symptoms were not credible to the extent they were 5 inconsistent with the RFC assessment. (A.R. 10-ll.) 6 The ALJ stated numerous reasons for his findings. He noted 7 the inconsistency of the medical evidence with Plaintiff s 8 complaints, remarking on the mild objective findings on the x9 rays and CT scans as consistent with a light RFC. (A.R. 11.) He 10 acknowledged Dr. Fife s opinion placing Plaintiff at a less than 11 sedentary capacity but stated that it was given little weight 12 because it was on a check-blocks form, lacked signs, symptoms, 13 or other bases, or even a diagnosis, and was conclusionary, 14 brief, and unsupported by clinical findings. (A.R. 11.) 15 The ALJ relied on Plaintiff s documented exaggeration. He 16 noted that although the consulting internist assessed a light 17 RFC, even he referred to Plaintiff s exaggeration, noting that 18 Plaintiff was unable to do full lumbar spine range of motion on 19 physical examination, yet nevertheless bent over to put on/take 20 off shoes. (A.R. 11.) 21 The ALJ further reasoned: 22 In terms of credibility, I note claimant has a dismal work history, with no full substantial gainful years in her life (citation omitted). Also, claimant does a wide range of activities of daily living not consistent with her claims of total disability. For example, she has a driver s license with no restrictions; drives an automatic van 2 times a week; lives alone in a house with her husband who works and 6 children (youngest 11, oldest 24); (sic) home alone during the day; does all personal needs; light meal preparation 2 times a day; dishes 2 times a day; laundry once a week; irons once a week; changes sheets once a week; visits family/friends once a week; watches TV 40 minute[s] 23 24 25 26 27 28 14 1 2 3 4 5 a day; helps children with homework 30 minutes a day; and goes to school functions every 6 months. Also, claimant seemed to exaggerate. For example, she stated she could only concentrate 40 minutes maximum, and then must rest mentally for 1 hour, yet, paid attention and responded appropriately throughout the entire hearing (about 50 minutes). She also stated she could sit 20 minutes maximum, yet sat through the whole hearing even though I told her at the outset she could stand at any time. 6 (A.R. 11.) 7 B. Legal Standards 8 It is established that unless there is affirmative evidence 9 that the applicant is malingering, then where the record includes 10 objective medical evidence establishing that the claimant suffers 11 from an impairment that could reasonably produce the symptoms of 12 which the applicant complains, an adverse credibility finding 13 must be based on clear and convincing reasons. Carmickle v. 14 Commissioner, Social Security Administration,, 533 F.3d 1155, 15 1160 (9th Cir. 2008). In Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 16 2007), the court summarized the pertinent standards for 17 evaluating the sufficiency of an ALJ s reasoning in rejecting a 18 claimant s subjective complaints: 19 20 21 22 23 24 25 An ALJ is not required to believe every allegation of disabling pain or other non-exertional impairment. See Fair v. Bowen, 885 F.2d 597, 603 (9th Cir.1989). However, to discredit a claimant's testimony when a medical impairment has been established, the ALJ must provide specific, cogent reasons for the disbelief. Morgan, 169 F.3d at 599 (quoting Lester, 81 F.3d at 834). The ALJ must cit[e] the reasons why the [claimant's] testimony is unpersuasive. Id. Where, as here, the ALJ did not find affirmative evidence that the claimant was a malingerer, those reasons for rejecting the claimant's testimony must be clear and convincing. Id. 26 27 28 Social Security Administration rulings specify the proper bases for rejection of a claimant's testimony. See S.S.R. 02-1p (Cum. Ed.2002), available at Policy Interpretation Ruling Titles II and XVI: Evaluation of 15 1 2 3 4 5 6 7 8 9 10 11 Obesity, 67 Fed.Reg. 57,859-02 (Sept. 12, 2002); S.S.R. 96-7p (Cum. Ed.1996), available at 61 Fed.Reg. 34,483-01 (July 2, 1996). An ALJ's decision to reject a claimant's testimony cannot be supported by reasons that do not comport with the agency's rules. See 67 Fed.Reg. at 57860 ( Although Social Security Rulings do not have the same force and effect as the statute or regulations, they are binding on all components of the Social Security Administration, ... and are to be relied upon as precedents in adjudicating cases. ); see Daniels v. Apfel, 154 F.3d 1129, 1131 (10th Cir.1998) (concluding that ALJ's decision at step three of the disability determination was contrary to agency regulations and rulings and therefore warranted remand). Factors that an ALJ may consider in weighing a claimant's credibility include reputation for truthfulness, inconsistencies in testimony or between testimony and conduct, daily activities, and unexplained, or inadequately explained, failure to seek treatment or follow a prescribed course of treatment. Fair, 885 F.2d at 603; see also Thomas, 278 F.3d at 958-59. 12 Orn v. Astrue, 495 F.3d 625, 635. 13 Additional factors to be considered in weighing credibility 14 include the location, duration, frequency, and intensity of the 15 claimant s pain or other symptoms; factors that precipitate and 16 aggravate the symptoms; the type, dosage, effectiveness, and side 17 effects of any medication the claimant takes or has taken to 18 alleviate the symptoms; treatment, other than medication, the 19 person receives or has received for relief of the symptoms; any 20 measures other than treatment the claimant uses or has used to 21 relieve the symptoms; and any other factors concerning the 22 claimant s functional limitations and restrictions due to pain or 23 other symptoms. 20 C.F.R. § 416.929; S.S.R. 96-7p. 24 C. Analysis 25 1. Activities of Daily Living 26 Plaintiff argues that Plaintiff s daily activities were 27 insufficient to warrant a negative inference concerning her 28 16 1 credibility. 2 The mere fact of a claimant s carrying on certain daily 3 activities does not necessarily detract from credibility as to 4 overall disability. However, a negative inference is permissible 5 where the activities contradict the other testimony of the 6 claimant, or where the activities are of a nature and extent to 7 reflect transferable work skills. Daily activities support an 8 adverse credibility finding if a claimant is able to spend a 9 substantial part of his day engaged in pursuits involving the 10 performance of physical functions or skills that are transferable 11 to a work setting. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 12 2007); Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 13 595, 600 (9th Cir. 1999); Thomas v. Barnhart, 278 F.3d 947, 959 14 (9th Cir. 2002). Performance of chores such as preparing meals, 15 cleaning house, doing laundry, shopping, occasional childcare, 16 and interacting with others has been considered sufficient when 17 performed for a substantial portion of the day. See, Morgan v. 18 Commissioner, 169 F.3d at 600; Thomas v. Barnhart, 278 F.3d at 19 959; Curry v. Sullivan, 925 F.2d 1127, 1130 (9th Cir. 1990); 20 Burch v. Barnhart, 400 F.3d 676, 680-81 (9th Cir. 2005) Stubbs21 Danielson v. Astrue, 539 F.3d at 1169, 1175 (9th Cir. 2008). 22 The salient evidentiary characteristic is an inconsistency 23 between the Plaintiff s subjective complaints and the Plaintiff s 24 activities that warrants a negative credibility inference that is 25 clear and convincing in the circumstances of the case. For 26 example, in Valentine v. Astrue, 574 F.3d 685, 693 (9th Cir. 27 2009), the reviewing court upheld the ALJ s finding that although 28 the claimant s having exercised and completed gardening projects 17 1 and community activities did not suggest that the claimant could 2 return to a former job, it did suggest that the claimant s later 3 claims about the severity of his limitations were exaggerated. 4 The court concluded that it was a clear and convincing reason for 5 rejecting the claimant s subjective complaint concerning the 6 severity of symptoms. 7 Here, the ALJ appropriately considered Plaintiff s admitted 8 activities of daily living, which included regular and 9 substantial housekeeping, shopping, and interaction with others 10 comparable to the activities in the aforementioned cases. 11 Plaintiff testified to performing such a variety of tasks around 12 the house and other activities, and doing so with a frequency and 13 to such an extent, that it was clearly inconsistent with 14 Plaintiff s claims of inability to perform even sedentary work. 15 Substantial evidence supported the ALJ s reasoning, which was 16 clear and convincing in the circumstances of the case. 17 18 2. Inconsistency with the Medical Evidence Plaintiff contends that the ALJ s reasoning that Plaintiff s 19 claimed severity of symptoms was inconsistent with the objective 20 medical evidence was legally insufficient and was not supported 21 by substantial evidence. 22 Contrary to Plaintiff s assertion, it was appropriate for 23 the ALJ in this instance to rely on the inconsistency of 24 Plaintiff s complaints and the objective medical evidence. 25 Although the inconsistency of objective findings with subjective 26 claims may not be the sole reason for rejecting subjective 27 complaints of pain, Light v. Chater, 119 F.3d 789, 792 (9th Cir. 28 1997), it is one factor which may be considered with others, 18 1 Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004); Morgan v. 2 Commissioner 169 F.3d 595, 600 (9th Cir. 1999); Burch v. Barnhart, 3 400 F.3d 676, 681 (9th Cir. 2005). 4 Further, substantial evidence supported the ALJ s reasoning. 5 The treating notes and studies reflected only mild findings; even 6 though there was some foraminal narrowing at one site, it was 7 mild, and opinion evidence supported a finding that it was 8 congenital. 9 Further, the ALJ relied on the opinions of the consulting 10 internist and state agency medical consultant that Plaintiff 11 could perform light work. The inconsistency of medical opinions 12 with a claimant s subjective complaints is appropriately 13 considered by an ALJ in rejecting a claimant s credibility. 14 Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175 (9th Cir. 2008). 15 Here, the consulting examiner was the source of the most 16 extensive objective findings, and his findings and opinion were 17 consistent with the overall medical evidence of record that had 18 not been discounted by the ALJ. 19 The Court concludes that in relying on the inconsistency of 20 Plaintiff s complaints with the medical opinions and the 21 objective medical evidence, the ALJ stated clear and convincing 22 reasons supported by substantial evidence. 23 24 3. Exaggeration and the ALJ s Observations With respect to the Plaintiff s exaggeration of her 25 symptoms, Plaintiff asserts that the record contains no evidence 26 of malingering. Plaintiff also argues that the ALJ s reliance on 27 his observations of Plaintiff at the hearing was improper. 28 The evidence included the consulting examiner s observation 19 1 that Plaintiff easily ambulated, maneuvered, and bent in a manner 2 claimed by her to have been precluded by her impairments. This 3 evidence reflected a trained professional s observation that 4 Plaintiff s subjective complaints clearly exceeded Plaintiff s 5 actual abilities. This evidence was substantial and supported the 6 ALJ s reliance on Plaintiff s exaggeration as a significant 7 factor bearing upon her credibility. It is established that 8 amplification of symptoms can constitute substantial evidence 9 supporting the rejection of a subjective complaint of severity of 10 symptoms. Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993). 11 In referring to additional evidence of Plaintiff s 12 exaggeration, the ALJ noted Plaintiff s having sat and 13 concentrated for about fifty minutes at the hearing in contrast 14 to her claim that she could concentrate for a maximum of forty 15 minutes and sit for only twenty minutes. (A.R. 11.) 16 Observations by the ALJ of a person s functioning may not 17 form the sole basis for discrediting a person s testimony; 18 rather, they may be used only in the overall evaluation of the 19 credibility of the individual s statements. Orn v. Astrue, 495 20 F.3d 625, 639-40 (9th Cir. 2007) (citing S.S.R. 96-7p at 7). 21 Here, in the course of his review of the medical evidence 22 pertinent to Plaintiff s RFC, the ALJ had found significant the 23 consulting examiner s observation of Plaintiff s exaggeration of 24 the severity of her symptoms. (A.R. 11.) Such observations are 25 appropriate and probative. See, Batson v. Commissioner, 359 F.3d 26 1190, 1196 (9th Cir. 2004). 27 The ALJ consistently found significant his own observations 28 concerning Plaintiff s apparent exaggeration of her subjective 20 1 symptoms. The observations of the ALJ were specific and 2 significantly inconsistent with Plaintiff s likewise specific 3 claims concerning her maximum ability to engage in behavior 4 central to the progress of an administrative hearing, namely, 5 sitting and concentrating. This reasoning was stated as the last 6 of many reasons articulated by the ALJ. (A.R. 11.) The Court 7 concludes that it was appropriate and related to the ALJ s 8 overall assessment of credibility. 9 Plaintiff contends that the reasoning lacks the support of 10 substantial evidence because the record reflects that the hearing 11 in question began at 1:05 p.m. and concluded at 1:52 p.m. (A.R. 12 22, 47); thus, the duration of the proceeding was not fifty 13 minutes but rather was only forty-seven minutes. Further, 14 Plaintiff points to the fact that some of the hearing consisted 15 of the ALJ s introductory remarks and the testimony of the 16 vocational expert, and thus the record does not reflect the 17 assumed period of concentration. Finally, Plaintiff points to 18 instances of the ALJ s admonishing Plaintiff to focus on his 19 questions and concludes that these directions further undermine 20 the evidentiary support for a conclusion that Plaintiff was able 21 to concentrate throughout the hearing. 22 The ALJ s observations provide a solid evidentiary basis for 23 an inference that Plaintiff exaggerated the extent of any 24 limitation of her ability to sit, and, in combination with the 25 consulting examiner s observations, constitute substantial 26 evidence of Plaintiff s exaggeration. 27 The substantiality of the evidence concerning Plaintiff s 28 ability to concentrate is less clear, but it does not appear that 21 1 it was necessary to the ALJ s conclusion concerning Plaintiff s 2 exaggeration because that conclusion was amply supported by 3 other, independent evidence. 4 5 4. Poor Work History Plaintiff challenges the ALJ s conclusion that Plaintiff s 6 work history was dismal. (A.R. 11.) Plaintiff asserts that she 7 was a classic stay at home mom, (Brief p. 16, ll. 4-5), for a 8 period of time that is unclear but perhaps even throughout her 9 children s lives; however, there is no evidence in the record 10 that specifically describes the living circumstances, support 11 systems, if any, availability for work outside the home, and role 12 of Plaintiff during the period from 2005 forward. The record 13 reflects that at the time of her testimony in 2008, Plaintiff 14 performed some of the tasks of a homemaker and tended to her six 15 children, some of whom were minors and at least one of whom at 16 age twenty-four had been an adult for a substantial period of 17 time. Her only recorded earnings were for a month each in 2004 18 and 2005. 19 A claimant's extremely poor work history shows that she has 20 little propensity to work and negatively affects her credibility 21 regarding her inability to work. Thomas v. Barnhart, 278 F.3d 22 947, 959 (9th Cir. 2002). The record supports a conclusion that 23 Plaintiff had a very limited history of remunerative work. Given 24 Plaintiff s status as the parent of six children, to characterize 25 her work history as dismal for purposes of determining 26 motivation or credibility may not have been supported by 27 substantial evidence or have been clear and convincing in the 28 circumstances of the case. 22 1 However, as the foregoing analysis has shown, the remaining 2 reasoning of the ALJ was clear and convincing and was supported 3 by substantial evidence. 4 Where only some of the specific reasons stated by an ALJ for 5 rejecting an applicant s credibility are legally sufficient or 6 supported by the record, but others are not, the Court must 7 consider whether the ALJ s reliance on invalid reasons was 8 harmless error. Batson v. Commissioner of Social Security 9 administration, 359 F.3d 1190, 1195-97 (9th Cir. 2004). Such 10 errors are harmless and do not warrant reversal where there 11 remains substantial evidence supporting the ALJ s conclusions on 12 credibility, and the error or errors do not negate the validity 13 of the ALJ s ultimate credibility conclusions. Carmickle v. 14 Commissioner, Social Security Administration, 533 F.3d 1155, 1162 15 (9th Cir. 2008). The relevant inquiry is not whether the ALJ would 16 have made a different decision absent any error, but rather 17 whether the ALJ s decision remains legally valid despite such 18 error. Id. 19 Here, the significance of Plaintiff s having a record of 20 having worked for only one month each out of two years, one of 21 which was before the alleged date of onset, is independent of the 22 remainder of the ALJ s reasons, which related to Plaintiff s 23 ability to perform daily activities, the medical evidence, and 24 Plaintiff s own exaggeration of her symptoms. The ALJ s decision 25 remains legally valid despite the error. 26 In summary, even though one factor relied upon by the ALJ 27 was not legally sufficient, the ALJ nevertheless articulated 28 multiple clear and convincing reasons, supported by substantial 23 1 evidence, for discrediting Plaintiff s subjective complaints 2 regarding the severity of her symptoms. Cf. Batson v. 3 Commissioner of the Social Security Administration, 359 F.3d 4 1190, 1196 (9th Cir. 2004). 5 Accordingly, the Court concludes that the ALJ cited clear 6 and convincing reasons for rejecting Plaintiff s subjective 7 complaints regarding the intensity, duration, and limiting 8 effects of her symptoms, and that the ALJ s reasons were properly 9 supported by the record and sufficiently specific to allow this 10 Court to conclude that the ALJ rejected the claimant's testimony 11 on permissible grounds and did not arbitrarily discredit 12 Plaintiff s testimony. 13 VII. Rejection of the Opinion of the Treating Physician 14 Plaintiff argues that the ALJ failed to set forth a 15 specific, legitimate reason for rejecting the opinion of 16 Plaintiff s treating physician, Roger Fife, M.D. 17 18 A. The ALJ s Reasoning With respect to the expert opinions, the Court reiterates 19 that the ALJ s express treatment of those opinions was 20 interspersed with the ALJ s evaluation of the other medical 21 evidence. The ALJ noted the inconsistency of the medical evidence 22 with Plaintiff s complaints, remarking on the mild objective 23 findings on the x-rays and CT scans as consistent with a light 24 RFC. (A.R. 11.) He also noted the state agency medical 25 consultant s opinion that the ALJ interpreted as providing for a 26 light RFC. (Id.) With respect to Dr. Fife s opinion, the ALJ 27 stated: 28 There is a check-blocks form that puts claimant at 24 1 2 3 4 less than sedentary (citation omitted). That opinion is given little weight as it lacks signs, symptoms, or other bases, or even a diagnosis. See, Matney v. Sullivan, 981 F.2d 1016, 1019-20 (9th Cir. 1992) where it was held that an ALJ need not accept a treating physician s opinion if it is conclusionary and brief, and unsupported by clinical findings. 5 (A.R. 11.) After setting forth his reasoning concerning 6 Plaintiff s credibility, the ALJ then returned to the medical 7 evidence: 8 9 10 As for the opinion evidence, I afford significant weight to the opinion of the consulting internist as it is consistent with the objective findings. I have also given considerable weight to the opinion of the State agency medical consultant. 11 (A.R. 11.) 12 13 B. Legal Standards The standards for evaluating treating source s opinions are 14 as follows: 15 16 17 18 19 20 21 22 23 24 25 26 27 28 By rule, the Social Security Administration favors the opinion of a treating physician over non-treating physicians. See 20 C.F.R. § 404.1527. If a treating physician's opinion is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record, [it will be given] controlling weight. Id. § 404.1527(d)(2). If a treating physician's opinion is not given controlling weight because it is not well-supported or because it is inconsistent with other substantial evidence in the record, the Administration considers specified factors in determining the weight it will be given. Those factors include the [l]ength of the treatment relationship and the frequency of examination by the treating physician; and the nature and extent of the treatment relationship between the patient and the treating physician. Id. § 404.1527(d)(2)(i)-(ii). Generally, the opinions of examining physicians are afforded more weight than those of non-examining physicians, and the opinions of examining non-treating physicians are afforded less weight than those of treating physicians. Id. § 404.1527(d)(1)-(2). Additional factors relevant to evaluating any medical 25 1 2 3 4 5 6 opinion, not limited to the opinion of the treating physician, include the amount of relevant evidence that supports the opinion and the quality of the explanation provided; the consistency of the medical opinion with the record as a whole; the specialty of the physician providing the opinion; and [o]ther factors such as the degree of understanding a physician has of the Administration's disability programs and their evidentiary requirements and the degree of his or her familiarity with other information in the case record. Id. § 404.1527(d)(3)-(6). 7 Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). 8 With respect to proceedings under Title XVI, the Court notes 9 that an identical regulation has been promulgated. See, 20 C.F.R. 10 § 416.927. 11 As to the legal sufficiency of the ALJ s reasoning, the 12 governing principles have been recently restated: 13 14 15 16 17 18 19 20 21 22 23 24 25 The opinions of treating doctors should be given more weight than the opinions of doctors who do not treat the claimant. Lester [v. Chater, 81 F.3d 821, 830 (9th Cir.1995) (as amended).] Where the treating doctor's opinion is not contradicted by another doctor, it may be rejected only for clear and convincing reasons supported by substantial evidence in the record. Id. (internal quotation marks omitted). Even if the treating doctor's opinion is contradicted by another doctor, the ALJ may not reject this opinion without providing specific and legitimate reasons supported by substantial evidence in the record. Id. at 830, quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir.1983). This can be done by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings. Magallanes [v. Bowen, 881 F.2d 747, 751 (9th Cir.1989).] The ALJ must do more than offer his conclusions. He must set forth his own interpretations and explain why they, rather than the doctors', are correct. Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir.1988). Reddick v. Chater, 157 F.3d 715, 725 (9th Cir.1998); accord Thomas, 278 F.3d at 957; Lester, 81 F.3d at 830-31. 26 Orn v. Astrue, 495 F.3d at 632. 27 Here, because the opinions of Drs. Nowlan and Zheutlin 28 26 1 contradicted Dr. Fife s opinion of Plaintiff s functional 2 capacity, the ALJ was required to state specific, legitimate 3 reasons for his weighing of the treating physician s opinion. 4 It is established that a conclusional opinion that is 5 unsubstantiated by relevant medical documentation may be 6 rejected. See Johnson v. Shalala, 60 F.3d 1428, 1432-33 (9th Cir. 7 1995). It is appropriate for an ALJ to consider the absence of 8 supporting findings, and the inconsistency of conclusions with 9 the physician s own findings, in rejecting a physician s opinion. 10 Johnson v. Shalala, 60 F.3d 1428, 1432-33 (9th Cir. 1995); Matney 11 v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992); Magallanes v. 12 Bowen, 881 F.2d 747, 751 (9th Cir. 1989). It is permissible for an 13 ALJ to prefer an opinion supported by specific clinical findings 14 and an explanation thereof over a check-off type of form lacking 15 an explanation of the basis for the conclusions. Crane v. 16 Shalala, 76 F.3d 251, 253 (9th Cir. 1996) (citing Murray v. 17 Heckler, 722 F.2d 499, 501 (9th Cir. 1983)); see Batson v. 18 Commissioner of the Social Security Administration, 359 F.3d 19 1190, 1195 (9th Cir. 2004). 20 Here, Dr. Fife s opinion was a series of circles and checks 21 on a single-page form on which there were stated various bare 22 conclusions concerning the claimant s functional capacities; 23 although there was a space for a word or two in the way of 24 remarks in the last of seven blocks that cover the lower two25 thirds of the page, no remarks or explanations were included. 26 (A.R. 177.) Further, although Dr. Fife s treatment notes contain 27 28 27 1 a diagnosis,1 the opinion itself, which was the subject of the 2 ALJ s reasoning, contained no diagnosis. 3 Further, the opinion was inconsistent with Dr. Fife s mild 4 findings. For example, on the day before he rendered his opinion 5 that Plaintiff could perform less than sedentary work, Dr. Fife 6 recorded low back tenderness but good ROM (range of motion), 7 and normal straight leg raising. (A.R. 171.) Neither the notes 8 nor the opinion explained how Plaintiff s mild findings resulted 9 in disabling limitations. Although Plaintiff refers to Dr. Fife s 10 medical findings and detailed progress notes, there is no 11 reference to any specific findings in Dr. Fife s records, and a 12 review of the records shows an absence of findings. (A.R. 17013 77.) 14 The ALJ also appropriately placed weight on the opinions 15 that were consistent with the objective findings and with the 16 medical evidence as a whole. (A.R. 11.) 17 The ALJ thus stated specific, legitimate reasons for placing 18 little weight on the treating physician s opinion, and those 19 reasons were supported by substantial evidence in the record. 20 VIII. Disposition 21 Based on the foregoing, the Court concludes that the ALJ s 22 decision was supported by substantial evidence in the record as a 23 whole and was based on the application of correct legal 24 standards. 25 Accordingly, the Court AFFIRMS the administrative decision 26 27 28 1 Notes of the exam performed on March 13, 2008, one day before the date of Dr. Fife s opinion, reflect diagnoses of depression and degenerative arthritis. (A.R. 171.) 28 1 of the Defendant Commissioner of Social Security and DENIES 2 Plaintiff s Social Security complaint. 3 The Clerk of the Court IS DIRECTED to enter judgment for 4 Defendant Michael J. Astrue, Commissioner of Social Security, 5 and against Plaintiff Sia V. Lee. 6 7 IT IS SO ORDERED. 8 Dated: icido3 9 April 1, 2010 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29

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