(SS) Andrews v. Commissioner of Social Security, No. 1:2015cv00158 - Document 19 (E.D. Cal. 2016)

Court Description: ORDER DENYING Plaintiff's Social Security Appeal 12 , 17 , 18 , signed by Magistrate Judge Stanley A. Boone on 2/4/16: The Clerk is directed to close this action. (CASE CLOSED)(Hellings, J)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 JONATHAN ANDREWS, 11 Plaintiff, 12 Case No. 1:15-cv-00158-SAB ORDER DENYING PLAINTIFF S SOCIAL SECURITY APPEAL v. 13 (ECF Nos. 12, 17, 18) COMMISSIONER OF SOCIAL SECURITY, 14 15 Defendant. 16 17 I. 18 INTRODUCTION 19 Plaintiff Jonathan Andrews (“Plaintiff”) seeks judicial review of a final decision of the 20 21 Commissioner of Social Security (“Commissioner” or “Defendant”) denying his application for 22 disability insurance benefits and supplemental security income pursuant to the Social Security 23 Act. The matter is currently before the Court on the parties briefs, which were submitted, 1 24 without oral argument, to Magistrate Judge Stanley A. Boone. Plaintiff suffers from Multiple Sclerosis (“MS”); lightheadedness; dizziness; a lack of 25 26 concentration; impaired memory; fatigue; visual problems; headaches; knee problems; diabetes; 27 low back pain; morbid obesity; and an adjustment disorder with depressed mood. For the 28 1 The parties have consented to the jurisdiction of the United States Magistrate Judge. (See ECF Nos. 4, 6.) 1 1 reasons set forth below, Plaintiff's Social Security appeal shall be denied. 2 II. 3 FACTUAL AND PROCEDURAL BACKGROUND 4 Plaintiff filed the current Title II and Title XVI applications for disability insurance 5 benefits and supplemental security income on October 24, 2006, alleging an onset of disability 6 on April 20, 2006. (AR 389-397.) Plaintiff s applications were initially denied on January 30, 7 2007, and denied upon reconsideration on September 28, 2007. (AR 203-07; 211-216.) Plaintiff 8 requested and received a hearing before Administrative Law Judge Daniel G. Heely (“ALJ 9 Heely”). Plaintiff appeared for a hearing before ALJ Heely on September 15, 2008. (AR 13310 155; 209-210.) On May 22, 2009, ALJ Heely found that Plaintiff was not disabled. (AR 16311 171.) On November 18, 2009, the Appeals Council vacated that decision and remanded the 12 matter for a new hearing. (AR 172-75.) ALJ Heely held hearings on May 3, 2010, and July 13, 13 2010. (AR 74-132.) On September 17, 2010, ALJ Heely again found that Plaintiff was not 14 disabled. (AR 179-192.) On July 12, 2012, the Appeals Council vacated ALJ Heely s second 15 decision and remanded the matter for a new hearing. (AR 198-201.) 16 Plaintiff then appeared for a hearing before Administrative Law Judge William C. 17 Thompson Jr. (“the ALJ”) on March 20, 2013. (AR 57-73; 388.) On October 25, 2013, the ALJ 18 found that Plaintiff was not disabled. (AR 20-49.) The Appeals Council denied Plaintiff s 19 request for review on December 1, 2014. (AR 1-7.) 20 A. Relevant Hearing Testimony 21 Plaintiff appeared with counsel and testified at a hearing on March 20, 2013. (AR 57- 22 73.) Plaintiff is married. (AR 61-62.) Plaintiff was born on February 14, 1978, and was 33 23 years old on the date he last met the insured requirements of the Social Security Act and 35 years 24 old on the date of the hearing. (AR 61.) Plaintiff testified that he obtained an Associate s 25 Degree in Business Administration from Modesto Junior College. (AR 61.) 26 Plaintiff lives with his parents and his wife. (AR 63.) Plaintiff previously lived with his 27 grandmother. (AR 63.) Plaintiff is 5 foot 10 inches tall and weighs 375 pounds. (AR 61.) 28 Plaintiff weighed an additional 55 pounds about a year before the hearing. (AR 67.) 2 1 Plaintiff is able to handle his self-care and fix his meals. (AR 63; 65.) Plaintiff drives. 2 (AR 63.) Plaintiff takes his wife to work, picks her up from work, and takes her to school. (AR 3 63-64.) Plaintiff spends time at the college and tries to interact with people to avoid being a 4 hermit at home. (AR 63-64.) 5 Plaintiff has not worked since April 2006. (AR 62.) Plaintiff testified that his doctors 6 have said that he cannot work. (AR 62.) When he last worked, he was doing mail encoding with 7 the Postal Service and he was a front desk clerk at a hotel. (AR 62.) He is unable to work due to 8 MS, diabetes, depression, and his size. (AR 62.) Plaintiff takes medication for MS, diabetes, 9 and depression. (AR 62-63.) 10 Plaintiff has dizziness, lightheadedness, light sensitivity, extreme fatigue, and difficulty 11 balancing as a result of MS. (AR 64-66.) Plaintiff has depression. (AR 68.) Plaintiff has 12 extreme fatigue approximately two to three times a week. (AR 66.) Plaintiff has lower back 13 aches twice a week that cause him pain when he sits, lifts things, carries things, and does a lot of 14 things. (AR 67-68.) Plaintiff is able to stand and walk for 10 to 15 minutes. (AR 64-65.) 15 Plaintiff is able to sit for three hours, but only for one-and-a-half hours during days that he has 16 lower back aches. (AR 69.) 17 During Plaintiff s “bad” days, which are approximately twice a month, he walks and 18 staggers like someone who is drunk, he has a major migraine, he is dizzy, and he is unable to 19 focus. (AR 66-67.) Plaintiff testified that he is symptom-free less than seven days a month. 20 (AR 65.) He constantly has days that are between “good” and “bad.” 21 (AR 67.) 22 B. 23 The ALJ made the following findings of fact and conclusions of law: 24 Plaintiff has not engaged in substantial gainful activity since April 20, 2006, the alleged onset date. 27 28 Plaintiff met the insured status requirement of the Social Security Act through December 31, 2011. 25 26 ALJ Findings Plaintiff has the following severe impairments: morbid obesity; migraine 3 headaches; multiple sclerosis; and diabetes mellitus. 1 2 or medically equals the severity of one of the listed impairments. 3 4 Plaintiff does not have an impairment or combination of impairments that meets Plaintiff has the residual functional capacity to perform medium work except that 5 he can lift up to 50 pounds occasionally and 25 pounds frequently, stand and walk 6 in combination at least six hours in an eight hour workday, and sit at least six 7 hours. 8 clerk, and transcriber. 9 10 Plaintiff has at least a high school education and is able to communicate in English. 13 14 Plaintiff was born on February 14, 1978, and was 28 years old, which is defined as a younger individual, on the alleged disability onset date. 11 12 Plaintiff is capable of performing past relevant work as a night auditor, data entry Transferability of job skills is not material to the determination of disability 15 because using the Medical-Vocational Rules as a framework supports a finding 16 that the claimant is “not disabled,” whether or not the claimant has transferable 17 job skills. 18 Considering Plaintiff s age, education, work experience, and residual functional 19 capacity, there are jobs that exist in significant numbers in the national economy 20 that Plaintiff can perform. 21 Plaintiff has not been under a disability as defined in the Social Security Act from April 20, 2006, through October 25, 2013. 22 23 (AR 20-49.) 24 III. 25 LEGAL STANDARD 26 To qualify for disability insurance benefits under the Social Security Act, the claimant 27 must show that he is unable “to engage in any substantial gainful activity by reason of any 28 medically determinable physical or mental impairment which can be expected to result in death 4 1 or which has lasted or can be expected to last for a continuous period of not less than 12 2 months.” 42 U.S.C. § 423(d)(1)(A). The Social Security Regulations set out a five step 3 sequential evaluation process to be used in determining if a claimant is disabled. 20 C.F.R. § 4 404.1520; Batson v. Commissioner of Social Sec. Admin, 359 F.3d 1190, 1194 (9th Cir. 2004). 5 The five steps in the sequential evaluation in assessing whether the claimant is disabled are: 6 7 8 9 10 11 12 13 14 15 Step one: Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. Step two: Is the claimant s alleged impairment sufficiently severe to limit his or her ability to work? If so, proceed to step three. If not, the claimant is not disabled. Step three: Does the claimant s impairment, or combination of impairments, meet or equal an impairment listed in 20 C.F.R., pt. 404, subpt. P, app. 1? If so, the claimant is disabled. If not, proceed to step four. Step four: Does the claimant possess the residual functional capacity (“RFC”) to perform his or her past relevant work? If so, the claimant is not disabled. If not, proceed to step five. Step five: Does the claimant s RFC, when considered with the claimant s age, education, and work experience, allow him or her to adjust to other work that exists in significant numbers in the national economy? If so, the claimant is not disabled. If not, the claimant is disabled. 16 Stout v. Commissioner, Social Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006). 17 Congress has provided that an individual may obtain judicial review of any final decision 18 of the Commissioner of Social Security regarding entitlement to benefits. 42 U.S.C. § 405(g). 19 In reviewing findings of fact in respect to the denial of benefits, this court “reviews the 20 Commissioner s final decision for substantial evidence, and the Commissioner s decision will be 21 disturbed only if it is not supported by substantial evidence or is based on legal error.” Hill v. 22 Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). “Substantial evidence” means more than a 23 scintilla, but less than a preponderance. Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) 24 (internal quotations and citations omitted). “Substantial evidence is relevant evidence which, 25 considering the record as a whole, a reasonable person might accept as adequate to support a 26 conclusion.” Thomas v. Barnhart, 278 F.3d 947, 955 (9th Cir. 2002) (quoting Flaten v. Sec y of 27 Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995)). 28 “[A] reviewing court must consider the entire record as a whole and may not affirm 5 1 simply by isolating a specific quantum of supporting evidence.” Hill, 698 F.3d at 1159 (quoting 2 Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 2006). However, it is not 3 this Court s function to second guess the ALJ s conclusions and substitute the court s judgment 4 for the ALJ s. See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (“Where evidence is 5 susceptible to more than one rational interpretation, it is the ALJ s conclusion that must be 6 upheld.”). 7 IV. 8 DISCUSSION AND ANALYSIS 9 Plaintiff argues that the ALJ erred in his treatment of the medical opinion evidence and in 10 his analysis of Plaintiff s credibility. The ALJ’s Treatment of Medical Opinion Evidence 11 A. 12 Plaintiff contends that the ALJ erred in his analysis of the medical opinion evidence 13 because (1) the ALJ improperly gave reduced or no weight regarding Plaintiff s mental 14 limitations for the opinions of the examining psychologists, Deborah von Bolschwing, Ph.D, and 15 Phillip Cushman, Ph.D.; and (2) the ALJ improperly rejected the physical function assessments 16 of treating neurologist, Burpreet Dhaliwal, M.D., and examining occupational medicine 17 specialist, Bruce Thompson, M.D. 18 Defendant replies that the ALJ properly attributed lesser weight to the consultative 19 examiners opinions on Petitioner s mental limitations because Plaintiff s mental impairments 20 did not cause any workplace limitations. Defendant also replies that the ALJ properly assessed 21 the credibility of the medical opinions regarding Plaintiff s physical limitations because (1) Dr. 22 Dhaliwal s opinion conflicted with his own examination notes and other medical evidence; (2) 23 Dr. Thompson s opinion was internally inconsistent and conflicted with the other medical 24 evidence. 25 1. 26 The weight to be given to medical opinions depends upon whether the opinion is Legal Standards Applicable to the Treatment of Medical Opinion Evidence 27 proffered by a treating, examining, or non-examining professional. See Lester v. Chater, 81 F.3d 28 821, 830-831 (9th Cir. 1995). In general, a treating physician s opinion is entitled to greater 6 1 weight than that of a nontreating physician because “he is employed to cure and has a greater 2 opportunity to know and observe the patient as an individual.” Andrews v. Shalala, 53 F.3d 3 1035, 1040-41 (9th Cir. 1995) (citations omitted). If a treating physician s opinion is 4 contradicted by another doctor, it may be rejected only for “specific and legitimate reasons” 5 supported by substantial evidence in the record. Ryan v. Commissioner of Social Sec., 528 F.3d 6 1194, 1198 (9th Cir.) (quoting Bayless v. Barnhart, 427 F.3d 1121, 1216 (9th Cir. 2005)). 7 Similar to a treating physician, the opinion of an examining doctor, even if contradicted 8 by another doctor, can only be rejected for specific and legitimate reasons that are supported by 9 substantial evidence in the record. Lester, 81 F.3d at 831 (9th Cir. 1995). The ALJ need not 10 accept a treating physician s opinion that is brief, conclusory, and unsupported by clinical 11 findings. Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). The ALJ Properly Afforded Limited Weight to Dr. von Bolschwing s Opinion 12 2. 13 The ALJ gave reduced weight to the opinion of Dr. von Bolschwing that Plaintiff has an 14 inability to function during a normal workweek. (AR 18.) The ALJ noted that Dr. von 15 Bolschwing s opinion was inconsistent with her own mental status examination, inconsistent 16 with the objective findings in the record, and conflicted with Plaintiff s daily activities. (AR 29.) 17 Specifically, the ALJ found: 18 19 20 21 22 23 24 25 26 The opinions of Dr. Von Bolschwing and Dr. Morse are given reduced weight. Their conclusion regarding an inability to function during an eight-hour workday or five-day work week is inconsistent with the rest of their report, including mental status examination, which was essentially normal. They provide no explanation for their conclusion, and none can be ascertained from the mental status examination, which was normal. It is inconsistent with their finding of “mild to moderate” impairment in withstanding the stress of a routine work day. It is also inconsistent with the claimant s demonstrated ability to complete his Associate of Arts degree, which occurred subsequent to the date this report was issued. The objective findings are clearly inconsistent and in conflict with the opinion that the claimant is unable to function in a work environment; moreover this opinion is inconsistent with the substantial evidence of record indicating the claimant is able to function in activities of daily living and able to perform work-related functions. 27 (AR 29.) 28 \ \ \ 7 1 a. Medical Record 2 On January 11, 2007, Dr. Deborah von Bolschwing, a psychological assistant, examined 3 Plaintiff as part of his application for disability benefits (AR 596-99.) Dr. von Bolschwing s 4 report was cosigned by licensed psychologist Roxanne Morse, Ph.D. (AR 599.) 5 Dr. von Bolschwing noted that Plaintiff is able to independently drive a car, take a bus, 6 do grocery shopping, handle his personal care, and do simple household chores, such as washing 7 dishes, doing laundry, and preparing simple meals. (AR 597.) Dr. von Bolschwing observed 8 that Plaintiff walked with a slow wide shuffling gate. (AR 597.) Dr. von Bolschwing found that 9 Plaintiff was alert, oriented to person, place, time and situation, and his thought process was 10 linear and logical. (AR 597.) Plaintiff s affect was mildly restricted and his mood was mildly 11 depressed. (AR 597.) Plaintiff s judgment appeared to be intact. (AR 597.) 12 During testing, Plaintiff had adequate attention and concentration and had intact memory. 13 (AR 597.) Plaintiff was able to write a simple sentence, calculate simple math problems in his 14 head, and answer questions requiring common sense and abstract reasoning. (AR 597.) 15 Plaintiff s verbal, performance, and full scale IQ scores fell within the average range. (AR 598.) 16 Dr. von Bolschwing found that Plaintiff has average to high average intellectual ability, intact 17 memory functioning, intact visuoconstruction ability, and excellent sequencing ability, visual 18 scanning speed, psychomotor speed, and the ability to make cognitive shifts. (AR 598.) 19 Dr. von Bolschwing found that Plaintiff has Depressive Disorder NOS and Pain Disorder 20 Associated with Psychological Factors and a General Medical Condition. (AR 599.) Dr. von 21 Bolschwing found that Plaintiff s overall intellectual ability was within the average to high 22 average range and that his memory functioning was intact. (AR 599.) Dr. von Bolschwing 23 opined that Plaintiff had mild to moderate impairment for his abilities to withstand the stress of a 24 routine work day and maintain emotional stability and predictability, and that he was unable to 25 function satisfactorily during a normal workweek. (AR 599.) Dr. von Bolschwing’s Opinion Is Inconsistent With Her Own Examination 26 b. 27 Plaintiff argues that Dr. von Bolschwing s opinion was consistent with her own 28 examination because the mental status examination showed evidence of a mildly restricted affect 8 1 and a mildly depressed mood. Plaintiff also argues that moderate limitations in the ability to 2 withstand routine workplace stresses and to maintain emotional stability are consistent with an 3 inability to function satisfactorily during a normal workweek. Defendant argues that nothing in 4 Dr. von Bolschwing s examination notes provide the basis for her opinions that Plaintiff would 5 be unable to function during a normal workweek or had mild to moderate limitations on his 6 abilities to withstand stress and maintain emotional stability. 7 An ALJ may reject a physician s opinion where it is not supported by the physician s 8 clinical notes and other observations. See Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 9 2005). Dr. von Bolschwing noted that Plaintiff appeared mildly depressed, but that did not affect 10 Plaintiff s abilities to follow and remember simple or complex instructions; maintain adequate 11 pace of persistence to perform simple or complex tasks; maintain adequate concentration; adapt 12 to changes in job routine; interact appropriately with the public; and communicate effectively. 13 (AR 597; 599.) During testing conducted by Dr. von Bolschwing, Plaintiff tested in the average 14 range in IQ testing, which combined with clinical observation by Dr. von Bolschwing, suggested 15 intelligence in the average to high average range. (AR 598.) Plaintiff did not exhibit delusions, 16 hallucinations, or other signs of thought disorder. (AR 597.) 17 Therefore, there was nothing in Dr. von Bolschwing s clinical notes and observations that 18 indicate that Plaintiff would be unable to function during a normal workweek or that he had 19 moderate limitations on his abilities to withstand stress and maintain emotional stability, and her 20 opinion was inconsistent with her examination of Plaintiff. 21 c. Dr. von Bolschwing’s Opinion Conflicts With Plaintiff’s Daily Activities 22 The ALJ also rejected Dr. von Bolschwing s opinion because it conflicted with Plaintiff s 23 daily activities. See Morgan, 169 F.3d at 601-02 (upholding rejection of physician s conclusion 24 that claimant suffered from marked limitations based on, in part, claimant s reported activities of 25 daily living which contradicted that conclusion); Tommasetti, 533 F.3d at 1041 (adjudicator may 26 reject an opinion on the ground it is inconsistent with the claimant s daily activities). 27 On October 26, 2006, and April 29, 2007, Plaintiff told a medical provider at Riverbank 28 Community Health Center that he was able to complete activities of daily living within 9 1 functional limits. (AR 630; 632.) On January 11, 2007, Plaintiff told Dr. von Bolschwing that 2 he was able to take a bus, drive a car, perform simple household chores, prepare meals, do 3 grocery shopping, and handle his self-care. (AR 597.) As part of Plaintiff s July 14, 2007 4 function report, he indicated that he cooked, hung out with friends, did laundry, handled his self5 care, drove, shopped, and went outside four times a week. (AR 440-444.) On September 15, 6 2008, Plaintiff testified at a hearing before ALJ Heely that he helps take care of his 7 grandmother s dog, checks his email, plays videogames, attends six hours of church services a 8 week, shops for groceries, and has gone on two trips to Fort Bragg, California. (AR 143-147.) 9 On January 5, 2010, Plaintiff told Dr. Cushman that he spends two-thirds of the day with 10 his friends away from the house “hanging out.” (AR 693.) He also told Dr. Cushman that he 11 does his own laundry and cooks for himself. (AR 693.) On January 13, 2010, Plaintiff told Dr. 12 Shergill that he is able to handle his personal care and do housework and yardwork, including 13 vacuuming, mopping, doing dishes. (AR 678.) On May 3, 2010, Plaintiff testified at a hearing 14 before ALJ Heely that he cooks, plays videogames, checks his email, drives, attends three two15 hour church services a week, visits friends at their houses, and has gone on two trips to Fort 16 Bragg, California. (AR 119-124.) 17 Plaintiff argues that it took him three years over a ten-year period to complete his studies, 18 so the fact that he obtained his associate s degree is not inconsistent with Dr. von Bolschwing s 19 opinion. However, Plaintiff obtained his Associate s degree by January 2010 after resuming his 20 studies in August 2010. (AR 61, 692.) During the September 15, 2008 hearing, Plaintiff stated 21 that he was attending Modesto Junior College working toward an Associate s Degree in Business 22 Administration. (AR 137-138.) Plaintiff stated that he had started again at Modesto Junior 23 College in August 2008 after a ten-year hiatus. (AR 137-138.) Specifically, Plaintiff stated that 24 he did not attend any college between 1998 and August 2008. (AR 138.) Plaintiff testified that 25 in the fall of 2008, he attended four to nine hours of classes four days a week at Modesto Junior 26 College. (AR 143.) Therefore, after earning approximately 40-45 credits prior to 1999, 27 Petitioner actually was able to complete the requirements for his Associate s degree between 28 August 2008 and the date of graduation, which appears to be sometime after December 2008, but 10 1 before January 2010. (AR 137-138.)2 Plaintiff argues that the fact that he completed an Associate s Degree should not be a 2 3 specific and legitimate reason for discounting Dr. von Bolschwing s opinion because he did not 4 start attending school again until a year-and-a-half after Dr. von Bolschwing s assessment and he 5 only attended school for one semester. However, the fact that Plaintiff did not attend school 6 contemporaneously with Dr. von Bolschwing s opinion does not mean that the ALJ cannot 7 consider that fact in evaluating the credibility of Dr. von Bolschwing s opinion. Furthermore, 8 there are no indications that Plaintiff s condition worsened between January 2007, the date of Dr. 9 von Bolschwing s examination, and August 2008, the date that Plaintiff started school again. Therefore, substantial evidence in the record supports the ALJ s finding that Dr. von 10 11 Bolschwing s opinion is not credible because it is inconsistent with Plaintiff s activities of daily 12 living.3 13 d. The ALJ Did Not Err in Rejecting Dr. von Bolschwing’s Opinion 14 Plaintiff s daily activities and the fact that there are inconsistencies between Dr. von 15 Bolschwing s examination and her findings are specific and legitimate reasons to support the 16 ALJ s finding. The Court finds that the ALJ provided specific and legitimate reasons for the 17 weight given to Dr. von Bolschwing s opinion that are supported by substantial evidence in the 18 record. 19 2. 20 Plaintiff contends that the ALJ erred by not giving controlling weight to the opinion of The ALJ Did Not Err By Rejecting The Opinion Of Dr. Cushman 21 Dr. Cushman that Plaintiff may have some difficulties with regular attendance and consistent 22 participation on “bad days when he is experiencing some pain and some difficulties working a 23 24 25 2 Plaintiff states that he completed his Associate s Degree at Modesto Junior College by attending for a few months in 2008. However, at the June 15, 2008 hearing before ALJ Heely, Plaintiff stated that he still had to complete three classes in addition to what he was taking that semester. Therefore, Plaintiff must have attended classes at Modesto Junior College sometime after the fall 2008 semester. According to Plaintiff s 3 Defendant also argues that the ALJ attributed less weight to Dr. von Bolschwing s opinion because it conflicted 26 with substantial evidence in the record, such as the treatment records of Dr. Morris and Ms. Thompson. Defendant points to observations and notes by Dr. Morris and Ms. Thompson. However, the ALJ did not clearly cite to the 27 medical treatment records as a reason for rejecting the opinion of Dr. von Bolschwing. Therefore, the Court does not consider the treatment notes of Dr. Morris and Ms. Thompson in determining whether the ALJ provided specific 28 and legitimate reasons supported by substantial evidence in the record for rejecting Dr. von Bolschwing s opinion. 11 1 normal workday or work week. Special or additional supervision could be provided in 2 accommodating some of these inconsistencies.” (AR 31.) Defendant replies that the ALJ 3 properly found that Dr. Cushman s opinion that Plaintiff would have difficulties performing a 4 normal workweek were based on Plaintiff s reports of his condition that were not credible. 5 The ALJ found that: Dr. Cushman s opinion is given significant weight only to the extent that he finds that the claimant is capable of performing some detailed, complex, simple and repetitive tasks in a work setting, following simple and complex verbal instructions from supervisors, getting along with supervisors, coworkers and the general public and dealing with the usual stressors encountered in a competitive work environment. These findings are consistent with the treatment notes, discussed above, Dr. Cushman s mental status examination, and the claimant s substantial activities of daily living, including his ability to complete his Associate of Arts degree, his ability to spend substantial amounts of his day socializing, and his ability to go outside alone. 6 7 8 9 10 11 12 I do not find support for Dr. Cushman s opinion that the claimant may have some difficulties with regular attendance and consistent participation on “bad days when is experiencing some pain and some difficulties working a normal workday or work week. Special or additional supervision could be provided in accommodating some of these inconsistencies.” It appears that Dr. Cushman bases this opinion on the claimant s subjective physical complaints, not on any findings related to his mental condition. With regard to the claimant s subjective report of poor memory, I note that less than three weeks after Dr. Cushman s consultative examination, Dr. Morris noted that the claimant had normal memory, affect, insight and judgment (Exhibit 23 F, page 5.) With regard to the claimant s “balance” issues, just one month earlier the claimant had normal gait, and his gait was normal on numerous occasions (Exhibit 12F, pages 4, 6; 20F, page 2; 22F, pages 13, 15; 23F, page 17). As of December 15, 2009, the claimant s multiple sclerosis was stable and he had normal neurological examination. These findings, by his neurologist, are not consistent with the complaints made to Dr. Cushman just three weeks later. Thus, to the extent that Dr. Cushman s opinion is based on the claimant s physical complaints, I do not find them supported by the evidence and they are therefore afforded little weight. 13 14 15 16 17 18 19 20 21 22 23 24 (AR 30.) 25 a. 26 On January 5, 2010, Dr. Philip Cushman, Ph.D., clinical psychologist, examined Plaintiff. Medical Record 27 (AR 691-696.) Dr. Cushman noted that Plaintiff was seeking disability because of “migraines, 28 MS.” (AR 691.) 12 1 Plaintiff told Dr. Cushman that he drove to the appointment. Dr. Cushman noted that 2 Plaintiff walked with a normal gait, accommodating for his obesity. (AR 691.) Plaintiff told Dr. 3 Cushman that he felt “crappy,” that his appetite was “crappy,” and that his sleep was “crappy.” 4 (AR 691.) Dr. Cushman found that Plaintiff was able to respond to direct questions with direct 5 answers. (AR 692.) 6 Plaintiff told Dr. Cushman that he spends approximately two-thirds of the day with his 7 friends away from the house “hanging out.” (AR 693.) Plaintiff stated that he does his own 8 laundry and cooks for himself. (AR 693.) Plaintiff told Dr. Cushman that he has difficulties 9 with his balance and poor memory as a result of the MS. (AR 693.) 10 Dr. Cushman found that Plaintiff s test results place him in the high-average range for 11 intellectual functioning. (AR 694.) Dr. Cushman noted that Plaintiff s thinking speed is normal, 12 but he may be slower than normal when he is presented with a novel task. (AR 694.) 13 Petitioner s test scores placed him above a twelfth grade equivalency, except for the Sentence 14 Comprehension, which he was at an eleventh grade equivalency. (AR 695.) Plaintiff s recall for 15 visual designs performance was at the 17th percentile, and after a five-minute delay, was at the 16 30th percentile. (AR 695.) 17 Dr. Cushman diagnosed Plaintiff as having an adjustment disorder with depressed mood, 18 reported M.S., a GAF of 60, and unemployment as a psychosocial stressor. (AR 695.) Dr. 19 Cushman found that Plaintiff is able to work, but, because of his high opinion of himself and his 20 abilities, will find many jobs “beneath him.” (AR 695.) Dr. Cushman noted that Plaintiff 21 projected his inability to work on the fact that his doctor won t let him work. (AR 695.) 22 Dr. Cushman found that Plaintiff is capable of performing some detailed, complex, 23 simple and repetitive tasks. (AR 695.) Dr. Cushman found that Plaintiff can follow simple and 24 complex verbal instructions from supervisors and that he is able to get along with supervisors, 25 coworkers, and the general public. (AR 695.) Dr. Cushman found that Plaintiff can deal with 26 the usual stressors encountered in a competitive work environment. (AR 695.) 27 Dr. Cushman found that Plaintiff may have some difficulties with regular attendance and 28 consistent participation on bad days when he is experiencing some pain and he may have 13 1 difficulties working a normal workday or work week. (AR 695.) Dr. Cushman noted that 2 special or additional supervision could be provided in accommodating some of these 3 inconsistencies. (AR 695.) 4 5 6 b. Dr. Cushman’s Opinion is Based on Plaintiff’s Subjective Complaints Which are Not Credible The ALJ gave no weight to Dr. Cushman s opinion that Plaintiff may have some 7 difficulties with regular attendance and consistent participation on “bad days when he is 8 experiencing some pain and some difficulties working a normal workday or work week. Special 9 or additional supervision could be provided in accommodating some of these inconsistencies.” 10 (AR 31.) The ALJ found that “Dr. Cushman bases this opinion on [Plaintiff s] subjective 11 physical complaints, not on any findings related to his mental condition.” (AR 31.) 12 An ALJ can reject a physician s opinion that is premised on a claimant s subjective 13 complaints that have been properly discounted. See Fair v. Bowen, 885 F.2d 597, 605 (1989). 14 Here, the ALJ found that Dr. Cushman based his opinion regarding Plaintiff s difficulties 15 performing a normal workweek on Plaintiff s subjective complaints. Dr. Cushman diagnosed 16 Plaintiff as having an adjustment disorder with depressed mood, reported M.S., a GAF of 60, and 17 unemployment as a psychosocial stressor. (AR 695.) While Plaintiff told Dr. Cushman that he 18 has difficulties with his balance and poor memory as a result of MS, this is contradicted by 19 evidence in the record. (AR 691.) 20 On January 22, 2010, which is less than three weeks after Dr. Cushman s consultative 21 examination, Dr. Morris noted that Plaintiff had normal memory, affect, insight, and judgment. 22 (AR 762.) The ALJ noted that Plaintiff had a normal neurological examination and stable MS as 23 of December 15, 2009. (AR 31.) On December 15, 2009, Dr. Dhaliwal noted that Plaintiff s MS 24 was stable. (AR 774.) Dr. Dhaliwal also noted that Plaintiff was not in apparent distress, that his 25 gait was within normal limits, that he had 5/5 strength, his sensation was intact and symmetric, 26 and his extraocular movements were intact. (AR 774.) 27 The ALJ noted that Plaintiff had a normal gait on numerous occasions, including one 28 month before Dr. Cushman s consultative examination. (AR 31.) As stated above, on December 14 1 15, 2009, Dr. Dhaliwal noted that Plaintiff had a normal gait as part of the examination. (AR 2 774.) On July 17, 2007, and January 15, 2008, Dr. Dhaliwal noted that Plaintiff had a normal 3 gait. (AR 742; 744.) On April 29, 2007, and July 3, 2007, as part of Plaintiff s screening at 4 Riverbank Community Health Center, it was noted that he was able to ambulate within 5 functional limits. (AR 630; 632.) Therefore, there were multiple instances in the record that 6 contradict Plaintiff s subjective statements about his physical complaints. c. The ALJ Did Not Err in Rejecting Dr. Cushman’s Opinion 7 8 The ALJ found that Dr. Cushman s opinion was not credible because it was based on 9 Plaintiff s subjective symptoms that were contradicted by the evidence in the record, which the 10 Court finds is a specific and legitimate reason for rejecting Dr. Cushman s opinion. (AR 31.) 11 Substantial evidence in the record supports the ALJ s finding that Dr. Cushman s opinion 12 regarding Plaintiff s inability to perform a normal workweek is not credible to the extent that it is 13 based upon Plaintiff s subjective complaints. The ALJ Properly Attributed Limited Weight to Dr. Dhaliwal s Opinion 14 3. 15 Plaintiff argues that the reasons articulated by the ALJ for affording little or no weight to 16 Dr. Dhaliwal s assessments of limitations stemming from Plaintiff s MS are not clear and 17 convincing. Defendant replies that the ALJ properly found that Dr. Dhaliwal s opinion 18 conflicted with his own examination notes and other medical evidence in the record. 19 20 21 22 23 24 25 26 27 28 The ALJ found: Minimal weight is given to Dr. Dhaliwal s opinion. Dr. Dhaliwal s statement that the claimant has balance problems, unstable walking, right hand weakness, numbness, impairment of manual dexterity, vision difficulties is not only supported by the doctor s own notes, it is contradicted by his notes. As noted above, the claimant s gait is consistently normal. He consistently has normal neurological examination with 5/5 strength in his upper extremities. He testified on September 15, 2008 that he plays hand held video games, an activity inconsistent with Dr. Dhaliwal s statement regarding the extremities. His vision is normal. The claimant s activities are not consistent with the doctor s opinion regarding “significant fatigue” or difficulties with memory and concentration, as the claimant has very significant activities of daily living and he was able to complete an Associate of Arts degree. There is nothing to indicate that the claimant had lost dexterity in his hands, and while the doctor cites “dizziness,” it apparently has not been severe enough to warrant any restrictions 15 in the claimant s driving. Dr. Dhaliwal s notes do not indicate that he has found “significant reproducible fatigue of motor function with substantial muscle weakness on repetitive activity,” contradicting source statement. His comments regarding side effects of Rebif are not consistent with the claimant s own testimony on September 15, 2008, where he denied any side effects. 1 2 3 4 His estimate that the claimant can only sit for one hour is contradicted by the fact that the claimant testified on May 3, 2010 that he was able to travel 250 miles to Fort Brag via automobile, and could make the trip without stopping, but they did along the way for his mother, not for the claimant. Furthermore, on March 20, 2013, the claimant testified that he can sit up to three hours, limited by knee pain. This opinion, written at the behest and direction of the claimant s attorney, is inconsistent with the treatment record and the objective findings. It is contradicted by the claimant s own statement to Dr. Borecha on January 12, 2011, when he told the doctor that he had symptoms only when he missed a dose of Rebif (Exhibit 28F, page 33). Dr. Dhaliwal s treatment notes indicate that the claimant s condition is stable and in remission, which is completely inconsistent with his medical source statement, and it is rightfully afforded very little weight. 5 6 7 8 9 10 11 12 13 (AR 46-47.) 14 a. Medical Record 15 Dr. Dhaliwal treated Plaintiff at the neurology clinic at Stanislaus County Health Services 16 Agency for several years related to Plaintiff s MS diagnosis. On April 13, 2006, Plaintiff 17 presented to the emergency department of Doctors Medical Center, was admitted, and Dr. 18 Dhaliwal was consulted. (AR 511.) Plaintiff s brain MRI showed multiple demyelinating 19 lesions consistent with multiple sclerosis. (AR 511-512.) After three days, Plaintiff was 20 discharged in stable condition. (AR 512.) 21 On April 25, 2006, Dr. Dhaliwal examined Plaintiff as a follow up visit in relation to 22 Plaintiff s MS diagnosis. (AR 656-657.) Plaintiff told Dr. Dhaliwal that he had blurry vision in 23 his left eye and some loss of balance. (AR 656.) Upon examining Plaintiff, Dr. Dhaliwal noted 24 that Plaintiff was alert, oriented, and had a normal gait, but appeared a little unsteady. (AR 657.) 25 On January 23, 2007, Dr. Dhaliwal examined Plaintiff and Plaintiff complained of blurry 26 vision, throbbing in his head while going up stairs, and being unable to walk a straight line. (AR 27 636.) Upon examination, Dr. Dhaliwal noted that Plaintiff had a normal gait and normal strength 28 in his extremities and horizontal nystagmus. (AR 636.) Dr. Dhaliwal found that Plaintiff s MS 16 1 was stable and prescribed Rebif for his MS and Prozac for his depression. (AR 636.) 2 On April 17, 2007, Plaintiff told Dr. Dhaliwal that he had numbness and tingling in both 3 of his hands, headaches, and fatigue. (AR 635.) Plaintiff had not yet started the Rebif and the 4 Prozac was working well for several weeks before he started feeling worse. (AR 635.) 5 Plaintiff s dosage of Prozac was increased. (AR 635.) Dr. Dhaliwal observed that Plaintiff had 6 negative nystagmus and his gait was slow secondary to his weight. (AR 635.) Dr. Dhaliwal 7 noted that Plaintiff did not have a suicidal plan, but sometimes thought about suicide. (AR 635.) 8 On July 17, 2007, Plaintiff presented for a follow-up and told Dr. Dhaliwal that he had a 9 decrease in problems with his balance, dizziness, and suicidal ideation, but he had an increase in 10 fatigue and daytime sleepiness and had developed lightheadedness upon standing. (AR 634.) 11 Dr. Dhaliwal observed that Plaintiff s gait was stable. (AR 634.) 12 On October 16, 2007, Dr. Dhaliwal noted that Plaintiff complained of fatigue. (AR 743.) 13 The dosage of Celexa was increased in order to help with his fatigue. (AR 664.) 14 On January 15, 2008, Plaintiff told Dr. Dhaliwal that there was an increase in the 15 twitching of his leg and that it was bouncing around twice a month. (AR 742.) Plaintiff also 16 stated that he was not sleeping well and that he was tired all of the time. (AR 742.) Dr. 17 Dhaliwal noted that Plaintiff did not have new symptoms of an attack and that he had a normal 18 gait and normal neurological examination. (AR 742.) Dr. Dhaliwal found that Plaintiff had MS 19 with spasm, and insomnia probably related to depression, which Dr. Dhaliwal prescribed 20 Baclofen, a muscle relaxant, for. (AR 742.) 21 On May 13, 2008, Plaintiff stated that he had persistent dizziness, difficulty balancing, 22 twitching in his low back and an increase in fatigue and lightheadedness. (AR 739.) Plaintiff 23 noted that he had some improvement on the Baclofen. (AR 739.) Dr. Dhaliwal found that 24 Plaintiff had MS with stable symptoms. (AR 739.) 25 On December 9, 2008, Plaintiff reported that he had upper back pain and right arm and 26 shoulder weakness and pain for the prior two weeks. (AR 738.) Plaintiff also stated that he was 27 still dizzy. (AR 738.) Dr. Dhaliwal noted that Plaintiff s neurological examination was intact 28 and that Plaintiff s gait was normal. (AR 738.) 17 1 On June 16, 2009, Plaintiff complained of continued dizziness, for 15-to-20-second 2 intervals, unrelated to his position. (AR 737.) Dr. Dhaliwal found that Plaintiff s dizziness and 3 unsteadiness were likely secondary to MS. (AR 737.) Dr. Dhaliwal prescribed carbamazepine. 4 (AR 737.) 5 On December 15, 2009, Plaintiff stated that he had been having migraines almost every 6 day over the last couple of months that were worse when he stood up or took Ribif injections. 7 (AR 734.) Plaintiff also complained of low back pain that was worse with activity, but that 8 improved with Baclofen. (AR 734.) Dr. Dhaliwal noted that Plaintiff was in no apparent 9 distress, had a normal gait, had 5/5 strength throughout, and his sensation was intact and 10 symmetric. (AR 735.) Dr. Dhaliwal also noted that Plaintiff s lower half of his back was tender 11 with no spasms. (AR 735.) Dr. Dhaliwal found that Plaintiff s multiple sclerosis was stable. 12 (AR 735.) 13 On April 20, 2010, Plaintiff reported that he had increased back spasms and more 14 frequent migraine headaches. (AR 731.) Dr. Dhaliwal increased the dosage of Plaintiff s 15 Baclofen. (AR 731.) 16 On June 15, 2010, Dr. Dhaliwal completed a Multiple Sclerosis Impairment 17 Questionnaire. (AR 787-793.) Dr. Dhaliwal indicated that his most recent examination of 18 Plaintiff was on June 15, 2010. (AR 787.) Dr. Dhaliwal diagnosed Plaintiff with multiple 19 sclerosis with a guarded prognosis. (AR 787.) 20 Positive clinical findings included fatigue, balance problems, unstable walking, impaired 21 manual dexterity, poor coordination, weak right hand coordination, numbness, increased muscle 22 tension in the legs, ataxia, difficulty remembering, difficulty solving problems, difficulty 23 maintaining attention, double or blurred vision, sensory disturbances, sensitivity to heat, 24 depression, and emotional lability. (AR 787-788). Dr. Dhaliwal indicated that the most frequent 25 findings were fatigue, memory problems, balance, dizziness, and depression. (AR 788.) 26 Plaintiff s primary symptoms were fatigue, numbness in his hands, and loss of dexterity. (AR 27 788.) Dr. Dhaliwal stated that Plaintiff s symptoms and functional limitations were reasonably 28 consistent with Plaintiff s physical and/or emotional impairments. (AR 789.) 18 1 Dr. Dhaliwal opined that Plaintiff s symptoms were severe enough to frequently interfere 2 with his attention and concentration. (AR 790.) Dr. Dhaliwal found that Plaintiff was incapable 3 of even low stress and that when Plaintiff tries to do anything, he feels weak and gets headaches. 4 (AR 790.) Dr. Dhaliwal indicated that Plaintiff s side effects from treatment were severe enough 5 to interfere with Plaintiff s ability to work an 8-hour day, but Dr. Dhaliwal did not detail how. 6 (AR 791.) Dr. Dhaliwal noted that Plaintiff s impairments were expected to last at least twelve 7 months. (AR 791.) Dr. Dhaliwal opined that Plaintiff could sit, stand, or walk for one hour in an 8 eight-hour workday, and that Plaintiff would need to get up and move around for approximately 9 5 to 10 minutes every hour. (AR 791.) Dr. Dhaliwal found that Plaintiff could frequently lift 10 and carry 5-10 pounds, occasionally lift 20-50 pounds and occasionally carry 10-20 pounds, and 11 never lift over 50 pounds or carry over 20 pounds. (AR 792.) Dr. Dhaliwal opined that Plaintiff 12 would have good days and bad days and would miss more than three days a month due to his 13 impairments. (AR 792.) 14 On July 15, 2010, Dr. Dhaliwal stated in a letter that Plaintiff had relapsing and remitting 15 MS, and had experienced a few relapses over the past year. (AR 799.) Dr. Dhaliwal stated that 16 Plaintiff injected Rebif three times a week and that he experienced flulike symptoms and fatigue 17 after every injection. (AR 799.) Dr. Dhaliwal noted that MS affects memory and concentration. 18 (AR 799.) Dr. Dhaliwal stated that Plaintiff could not perform any kind of job and was 19 permanently disabled. (AR 799.) 20 On June 14, 2011, Plaintiff told Dr. Dhaliwal that he experienced fatigue, weakness, and 21 an increase in migraines. (AR 815.) Dr. Dhaliwal noted that Plaintiff s physical examination 22 was within normal limits, and that Plaintiff s MS was stable. (AR 815.) 23 On October 11, 2011, Plaintiff reported spams, migraines that occurred up to four times a 24 week with photophobia, and feeling very fatigued. (AR 869.) Dr. Dhaliwal noted that Plaintiff 25 had a slow gait and 5/5 strength. (AR 869.) Dr. Dhaliwal found that Plaintiff s MS as in 26 remission. (AR 869.) Plaintiff was started on Cytomel for his fatigue. (AR 869.) 27 On May 15, 2012, Plaintiff stated that he was still fatigued and that he was forgetful at 28 times. (AR 865.) Dr. Dhaliwal noted that Plaintiff s physical examination was unremarkable. 19 1 (AR 865.) 2 On November 20, 2012, Plaintiff reported fatigue and reduced sleep. (AR 892.) 3 However, Plaintiff did report that his depression was controlled with Celexa. (AR 892.) Dr. 4 Dhaliwal noted that Plaintiff s muscle strength was 5/5 and that Plaintiff s symptoms were fairly 5 well controlled. (AR 892.) 6 b. Dr. Dhaliwal’s Opinion is Contradicted by His Treatment Notes 7 An ALJ may reject a physician s opinion where it is not supported by the physician s 8 clinical notes and other observations. See Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 9 2005). 10 Dr. Dhaliwal noted in numerous treatment notes that Plaintiff had a normal gait and 11 normal muscle strength. On April 25, 2006, Dr. Dhaliwal noted that Plaintiff had a normal gait, 12 but appeared a little unsteady. (AR 657.) On January 23, 2007, Dr. Dhaliwal noted that Plaintiff 13 had a normal gait and normal strength in his extremities. (AR 636.) On April 17, 2007, Dr. 14 Dhaliwal observed that Plaintiff s gait was slow secondary to his weight. (AR 635.) On July 17, 15 2007, Dr. Dhaliwal observed that Plaintiff s gait was stable. (AR 634.) On January 15, 2008, 16 Dr. Dhaliwal noted that Plaintiff had a normal gait. (AR 742.) On May 13, 2008, Dr. Dhaliwal 17 noted that Plaintiff had motor strength of 5/5. (AR 647.) On December 9, 2008, Dr. Dhaliwal 18 noted that Plaintiff s gait was normal. (AR 738.) On December 15, 2009, Dr. Dhaliwal noted 19 that Plaintiff was in no apparent distress, had a normal gait, had 5/5 strength throughout, and his 20 sensation was intact and symmetric. (AR 735.) On October 11, 2011, Dr. Dhaliwal noted that 21 Plaintiff had a slow gait and 5/5 strength. (AR 869.) On November 20, 2012, Dr. Dhaliwal 22 found that Plaintiff had 5/5 muscle strength. (AR 892.) Therefore, Dr. Dhaliwal s treatment 23 notes are inconsistent with Dr. Dhaliwal s findings that Plaintiff had muscle weakness, unstable 24 walking, and balance problems. (AR 787-788.) 25 Also, Dr. Dhaliwal s notes about Plaintiff s strength contradict Dr. Dhaliwal s finding 26 that Plaintiff had “significant reproducible fatigue of motor function with substantial muscle 27 weakness on repetitive activity, demonstrated on physical examination, resulting from 28 neurological dysfunction in areas of the central nervous system known to be pathologically 20 1 involved by the multiple sclerosis process.” 2 Plaintiff argues that the lack of findings regarding balance issues, side effects of 3 medications, and muscle fatigue is not inconsistent with Dr. Dhaliwal s opinion because Dr. 4 Dhaliwal described symptoms of MS. However, there is no evidence in Dr. Dhaliwal s notes 5 that Plaintiff actually has these symptoms. Plaintiff cannot prove that his MS is disabling simply 6 by the diagnosis of MS. See Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993). There are 7 treatment notes by Dr. Dhaliwal that contradict Dr. Dhaliwal s opinion that Plaintiff has balance 8 issues, side effects of medications, and muscle fatigue. Furthermore, Dr. Dhaliwal s treatment 9 notes indicate that Plaintiff s MS was stable on January 23, 2007, May 13, 2008, December 15, 10 2009, and June 14, 2011. (AR 636, 735, 739, 815.) On October 11, 2011, Dr. Dhaliwal noted 11 that Plaintiff s MS was in remission. (AR 869.) Therefore, as the ALJ noted, Dr. Dhaliwal s 12 multiple treatment notes that state that Plaintiff s MS is stable or in remission are inconsistent 13 with his medical source statement. Thus, many of Dr. Dhaliwal s findings are contradicted by 14 his own treatment notes. 15 The ALJ also found that while Dr. Dhaliwal cites “dizziness,” it apparently has not been 16 severe enough to warrant any restrictions in Plaintiff s driving. (AR 46.) Dr. Dhaliwal indicated 17 that dizziness was one of the most frequent findings. (AR 788.) However, it is clear from a 18 review of Dr. Dhaliwal s notes and the record that Plaintiff s driving has not been restricted. 19 Plaintiff argues that the ALJ s rejection of Dr. Dhaliwal s opinion regarding dizziness because 20 Plaintiff s driving has not been restricted is a moot point because Dr. Dhaliwal did not assess any 21 limitations that would specifically flow from Plaintiff s dizziness. However, the fact that Dr. 22 Dhaliwal did not assess any limitations, and specifically a driving limitation, was why the ALJ 23 found that Dr. Dhaliwal s dizziness opinion must be rejected. One would expect that if 24 Plaintiff s dizziness was so severe that it was disabling, that Dr. Dhaliwal would have restricted 25 Plaintiff s ability to drive because of safety concerns. The fact that Dr. Dhaliwal did not restrict 26 Plaintiff s ability to drive does contradict his opinion that Plaintiff suffered from dizziness and 27 that dizziness was one of the most frequent findings. Even if the Court does not consider the fact 28 that Dr. Dhaliwal did not restrict Plaintiff s driving as a reason for rejecting Dr. Dhaliwal s 21 1 opinion, as noted above, there are numerous other instances of Dr. Dhaliwal s treatment notes 2 and observations contradicting his opinion. Therefore, Dr. Dhaliwal s treatment notes and 3 observations do not support his opinion. 4 c. Dr. Dhaliwal’s Opinion is Inconsistent with Plaintiff’s Activities of Daily Living 5 It is proper for the ALJ to discount Dr. Dhaliwal s opinion, because Plaintiff s activities 6 of daily living conflict with Dr. Dhaliwal s opinion. See Morgan, 169 F.3d at 601-02 (upholding 7 rejection of physician s conclusion that claimant suffered from marked limitations based on, in 8 part, claimant s reported activities of daily living which contradicted that conclusion); 9 Tommasetti, 533 F.3d at 1041 (adjudicator may reject an opinion on the ground it is inconsistent 10 with the claimant s daily activities). The ALJ indicated that Plaintiff s “activities are not 11 consistent with the doctor s opinion regarding “significant fatigue” or difficulties with memory 12 and concentration, as the claimant has very significant activities of daily living and he was able 13 to complete an Associate of Arts degree.” (AR 46.) The ALJ also found that Plaintiff s trips to 14 Fort Bragg contradict Dr. Dhaliwal s opinion that Plaintiff can only sit for one hour in an 8 hour 15 time period and that Plaintiff s reports of playing videogames contradict Dr. Dhaliwal s 16 limitations for Plaintiff s upper extremities. 17 As stated supra, Plaintiff s activities included driving a car, performing simple household 18 chores, preparing meals, doing grocery shopping, playing videogames, hanging out with friends 19 for approximately two-thirds of the day, attending church for six hours a week, and going on two 20 trips to Fort Bragg. (AR 143-147, 440-444, 597, 678, 693.) Also, Plaintiff testified that in the 21 fall of 2008, he resumed his studies for his Associate s Degree and attended four to nine hours of 22 classes four days a week at Modesto Junior College. (AR 143.) Many of these activities are 23 inconsistent with Dr. Dhaliwal s opinion that Plaintiff has memory and concentration difficulties 24 and fatigue. 25 At the September 15, 2008 hearing before ALJ Heely, Plaintiff testified that he 26 sometimes played role playing videogames, such as Final Fantasy, on a Gameboy or Nintendo 27 DS. (AR 145.) Plaintiff s videogame activities are inconsistent with Dr. Dhaliwal s opinion that 28 Plaintiff had numbness in his hands, weak right hand coordination, and loss of dexterity in his 22 1 hands. (AR 787-788). Plaintiff s car trips to Fort Bragg are inconsistent with Dr. Dhaliwal s 2 opinion that Plaintiff can only sit for one hour in a workday. (AR 143-147.) In fact, Plaintiff 3 concedes that he can sit for an eight hour workday, if he can move around every hour, which is 4 significantly longer than Dr. Dhaliwal s opinion. (AR 792; ECF No. 12 at 26.) 5 Therefore, Plaintiff s activities of daily living clearly contradict Dr. Dhaliwal s opinion 6 regarding Plaintiff s significant fatigue, difficulties with memory and concentration, limitations 7 for Plaintiff s upper extremities, and how long Plaintiff could sit. 8 d. Dr. Dhaliwal’s Opinion is Inconsistent with Plaintiff’s Own Statements 9 The ALJ found that Dr. Dhaliwal s opinion is contradicted by the claimant s own 10 statement to Dr. Porecha on January 12, 2011, when he told the doctor that he had symptoms 11 only when he missed a dose of Rebif. (AR 47.) Dr. Porecha wrote that: 12 He is a patient with multiple sclerosis and has been taking Rebif for the multiple sclerosis three times per week. He has been taking this for the law few years and the only reaction he gets is at the injection site, which is itching of the skin. This medication keeps him from getting worse. If he misses a dose of the medication, then he has a big difference in his symptoms. He gets migraine headaches, becomes really dizzy and his coordination and balance is off. He has had some weight gain with the medication that he took before and the only symptoms he has now is if he does not take the medication and it effects is walking. While walking and looking from side to side, he gets really dizzy if he does not take the medication. 13 14 15 16 17 18 19 (AR 853.) 20 Plaintiff argues that the statement, “If he misses a dose of the medication, then he has a 21 big difference in his symptoms,” means that Plaintiff does have symptoms while he is taking the 22 medication and that the symptoms are aggravated when he does not take the medication. (AR 23 853.) Dr. Porecha did note that Plaintiff only has symptoms if does not take the medication. 24 However, the big difference in Plaintiff s symptoms could be between no issues with walking 25 and issues with walking. The ALJ s interpretation of Plaintiff s symptoms is reasonable and 26 supported by substantial evidence, and therefore, it is not the Court s role to second-guess it. See 27 Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). Therefore, the Court finds that Dr. 28 Dhaliwal s opinion is inconsistent with Plaintiff s own statement to Dr. Porecha regarding his 23 1 symptoms, and this is a specific and legitimate reason supported by evidence in the record for 2 rejecting Dr. Dhaliwal s opinion. Even if this is not a specific and legitimate reason for rejecting 3 Dr. Dhaliwal s opinion, the Court has finds that the contradictions between Dr. Dhaliwal s 4 opinion and his own treatment notes and observations and Plaintiff s daily activities are 5 sufficient reasons for rejecting Dr. Dhaliwal s opinion. 6 The ALJ also found that Dr. Dhaliwal s “comments regarding side effects of Rebif are 7 not consistent with the claimant s own testimony on September 15, 2008, where he denied any 8 side effects.” (AR 46.) The Court finds that it is debatable about whether Plaintiff understood 9 what “side effects” meant during the hearing, and that this might not be an actual inconsistency. 10 Therefore, the Court does not find that the inconsistency regarding side effects is a specific and 11 legitimate reason supported by substantial evidence to reject Dr. Dhaliwal s opinion. However, 12 the contradictions between Dr. Dhaliwal s opinion and his own treatment notes and observations 13 and Plaintiff s daily activities are sufficient reasons for rejecting Dr. Dhaliwal s opinion. 14 e. The ALJ Properly Rejected Dr. Dhaliwal’s Opinion 15 As noted above, the Court also finds the fact that Dr. Dhaliwal s opinion is inconsistent 16 with Plaintiff s statement regarding symptoms if he misses his medicine is a specific and 17 legitimate reason supported by substantial evidence. Even if this is not a specific and legitimate 18 reason, the ALJ also found that Dr. Dhaliwal s opinion was not credible because it was 19 contradicted by Dr. Dhaliwal s own treatment notes and observations and inconsistent with 20 Plaintiff s activities of daily living, which the Court finds are specific and legitimate reasons for 21 rejecting Dr. Dhaliwal s opinion. Substantial evidence in the record supports the ALJ s finding 22 that Dr. Dhaliwal s opinion is not credible because it was contradicted by Dr. Dhaliwal s own 23 treatment notes and observations and inconsistent with Plaintiff s activities of daily living. The ALJ Properly Gave Limited Weight to Dr. Thompson s Opinion 24 4. 25 Plaintiff argues that the ALJ did not properly reject the opinion of Dr. Thompson, a board 26 certified occupational medicine specialist. Dr. Thompson was hired to perform an examination 27 of Plaintiff by Plaintiff s attorney. (AR 715-729.) Defendant replies that the ALJ properly 28 rejected Dr. Thompson s opinion, because it was internally inconsistent and conflicted with the 24 1 other medical evidence in the record. 2 In rejecting Dr. Thompson s physical function assessments, the ALJ found: 3 Dr. Thompson is not a neurologist. He is board certified in family practice and occupational medicine only. He finds marked limitation in grasping, turning, twisting or using his hands for fine manipulation, yet his examination makes no mention of the claimant s hands, and the claimant has consistently been noted to have normal extremity strength. Dr. Thompson s observation that the claimant s cerebellar was “very unstable and off balance” is absolutely contradicted by the evidence, which clearly establishes that the claimant s gait is normal. Specifically, gait was normal on April 25, 2006 (Exhibit 22F, page 18). The claimant denied being unable to ambulate within functional limits on October 26, 2006 (Exhibit 12F, page 6). Gait was normal on January 23, 2007 (Exhibit 22F page 17). The claimant had normal gait with no focal neurological deficits on July 17, 2007 (Exhibit 22F, page 15). Gait was again normal on January 15, 2008 (Exhibit 22F, page 13), November 4, 2008 (Exhibit 20F, page 2), and December 15, 2009 (Exhibit 23F, page 17). Dr. Dhaliwal noted no gait changes or focal deficits on October 11, 2011 (Exhibit 29F, page 9), a full 18 months after Dr. Thompson s April 14, 2010 examination. The claimant had no focal deficits on May 15, 2012 (Exhibit 29F, page 7). In addition to Dr. Thompson s inaccurate description of the claimant s gait, he indicated that he “substituted medications in an attempt to produce less symptomatology,” which is clearly NOT the case since he only saw the claimant once and did not provide treatment. He consistently states to “see narrative” for an explanation of the physical limitations, yet the narrative provides little in the way of findings upon what appears to have been a very brief physical examination. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 (AR 44-45.) 18 19 20 a. Medical Record On April 14, 2010, Dr. Thompson examined Plaintiff at the request of Plaintiff s counsel in regards to Plaintiff s application for social security disability benefits. (AR 716.) 21 Plaintiff told Dr. Thompson that he stopped working because he could not continue 22 working and keep up with the pace of work because of fatigue from his MS. (AR 716.) Plaintiff 23 stated that he could prepare small meals, do light housekeeping, shop, and drive, but he could not 24 keep up with the pace of work, reliably report to and from work, stay at work, and keep up with 25 the mental concentration and focus necessary to maintain even the menial jobs. (AR 717.) 26 Plaintiff told Dr. Thompson that he gets fatigued from walking or standing when he stands for 27 over twenty to thirty minutes at a time. (AR 717.) Plaintiff also stated that he has difficulty 28 25 1 climbing up more than two flights of stairs, he gets easily dyspneic, fatigued, and short of breath, 2 and he has dysphoric moods, poor focus and concentration, and he has insomnia. (AR 717.) 3 Plaintiff told Dr. Thompson that he is depressed and that it is fairly stable, not particularly better 4 or worse than usual. (AR 719.) 5 Dr. Thompson noted that Plaintiff appears somewhat depressed and withdrawn and is 6 slightly tangential. (AR 719.) Dr. Thompson noted that Plaintiff s cerebellar is very unstable 7 and off balance with heel to toe, tandem walking, heel to shin, and finger to nose tests. (AR 8 720.) Plaintiff s deep tendon reflexes are hypoactive, but brisk and equilateral in the biceps, 9 triceps, knee jerk, and ankle jerk. (AR 720.) Dr. Thompson found that Plaintiff has adequate 10 neural muscular power. (AR 720.) Dr. Thompson found that Plaintiff cannot sustain any gainful 11 employment because of his multiple internal medicine complications and drug effect, mental 12 disabilities from chronic depression and medication, and sleep deprivation. (AR 720.) 13 Dr. Thompson also completed a Multiple Impairments Questionnaire on April 14, 2010. 14 (AR 722-729.) Dr. Thompson found that Plaintiff s had a 7-8 level of pain, an 8-9 level of 15 fatigue, and that medication had not been able to completely relieve the pain without 16 unacceptable side effects. (AR 724.) Dr. Thompson estimated that in an eight-hour day, 17 Plaintiff could sit for 3 hours and stand/walk for 3 hours. (AR 724.) Plaintiff could not sit or 18 stand/walk continuously in a work setting and would need to get up and move around every 19 hour. (AR 724-725.) Plaintiff would need to take unscheduled breaks to rest every 60 minutes 20 for approximately 15 to 30 minutes. (AR 727.) 21 Plaintiff can occasionally lift and carry up to 20 pounds and never lift and carry over 20 22 pounds. (AR 725.) Due to Plaintiff s weakness, Dr. Thompson found that Plaintiff has marked 23 limitations in grasping, turning, and twisting objects, using fingers/hands for fine manipulations, 24 and using his arms for reaching, including reaching overhead. (AR 725-726.) 25 Dr. Thompson found that Plaintiff s pain, fatigue, or other symptoms frequently interfere 26 with Plaintiff s attention and concentration. (AR 727.) Dr. Thompson found that Plaintiff was 27 incapable of even “low stress” work stress due to easy fatigue from his obesity and MS. (AR 28 727.) Plaintiff would have good and bad days and that he would likely be absent from work 26 1 more than three times a month. (AR 728.) Dr. Thompson found that Plaintiff had psychological 2 limitations and could not push, pull, kneel, bend, or stoop. (AR 728.) 3 b. Dr. Thompson’s Opinion is Inconsistent with His Examination 4 The ALJ found that Dr. Thompson s opinion is inconsistent with his examination. An 5 ALJ may reject a physician s opinion where it is not supported by the physician s clinical notes 6 and other observations. See Bayliss v. Barnhart, 427 F.3d at 1216. The ALJ noted that Dr. 7 Thompson “consistently states to „see narrative for an explanation of the physical limitations, 8 yet the narrative provides little in the way of findings upon what appears to have been a very 9 brief physical examination.” (AR 45.) The physical examination states several categories for 10 neurological evaluation, and also includes brief information for cardiovascular system, chest, 11 skin, and head, eye, ear, nose, and throat. (AR 719-720.) 12 Plaintiff argues that although Dr. Thompson s examination did not indicate upper 13 extremity abnormalities, muscle weakness and fatigue are the most common symptoms of MS. 14 As stated supra, Plaintiff cannot prove that his MS is disabling simply by the diagnosis of MS. 15 See Matthews v. Shalala, 10 F.3d at 680. Plaintiff must also present support that he has 16 symptoms of MS. 17 Dr. Thompson found that Plaintiff has a marked limitation in grasping, turning, twisting, 18 using his hands for fine manipulation, and using his arms for reaching. (AR 725-726). 19 However, Dr. Thompson s examination notes do not reference any restrictions to Plaintiff s 20 hands and upper extremities, and in fact, do not even mention Plaintiff s hands. (AR 716-721.) 21 Therefore, Dr. Thompson s opinion regarding the restrictions for Plaintiff s upper extremities is 22 not supported by his clinical notes and observations. 23 c. Dr. Thompson’s Opinion Conflicts with Other Medical Evidence in the Record 24 The ALJ found that Dr. Thompson s opinion conflicts with other medical evidence in the 25 record, specifically regarding Plaintiff s gait and normal extremity strength. 26 As noted by the ALJ, there are numerous instances in the record where Plaintiff s gait 27 was observed as normal. On April 25, 2006, Dr. Dhaliwal found that Plaintiff s gait was normal, 28 but Plaintiff was a little unsteady on his feet. (AR 748.) On January 23, 2007, Dr. Dhaliwal 27 1 noted that Plaintiff s gait was normal, no incoordination, and his strides were equal. (AR 746.) 2 On July 1, 2007, Dr. Dhaliwal found that Plaintiff had a stable gait with no focal neurological 3 deficiencies. (AR 744.) On January 15, 2008, Dr. Dhaliwal again noted that Plaintiff s gait was 4 normal. (AR 742.) On November 4, 2008, during Plaintiff s visit to Doctor s Medical Center 5 for dental pain, it was noted that Plaintiff s gait was normal. (AR 698.) On December 15, 2009, 6 Dr. Morris noted that Plaintiff s gait was within normal limits. (AR 774.) On October 11, 2011, 7 Dr. Dhaliwal noted no change in Plaintiff s gait. (AR 867.) Furthermore, on October 26, 2006, 8 during his visit to Riverbank Community Health Center, Plaintiff denied being unable to 9 ambulate within functional limits. (ECF No. 632.) 10 Dr. Dhaliwal noted that Plaintiff had normal strength in his extremities on January 23, 11 2007, and that Plaintiff had 5/5 strength on May 13, 2008, December 15, 2009, October 11, 12 2011, and November 20, 2012. (AR 636, 647, 735, 869, 892.) Therefore, the ALJ properly 13 considered that Dr. Thompson s opinion is not supported by the record. 14 d. The ALJ Properly Rejected Dr. Thompson’s Opinion 15 The ALJ s findings that Dr. Thompson s opinion is inconsistent with his own 16 examination and conflicts with the other medical evidence in the record are specific and 17 legitimate reasons for the weight given to Dr. Thompson s opinion that are supported by 18 substantial evidence in the record. The ALJ also rejected Dr. Thompson s opinion because he is 19 not a neurologist and the fact that Dr. Thompson made an inaccurate statement that he 20 “substituted medications in an attempt to produce less symptomatology,” when he did not 21 provide any treatment for Plaintiff. As the Court has already determined that the inconsistencies 22 between Dr. Thompson s opinion and his own examination and the conflicts between Dr. 23 Thompson s opinion and the other medical evidence in the record are specific and legitimate 24 reasons supported by the record for rejecting Dr. Thompson s opinion, the ALJ does not address 25 Plaintiff s other arguments regarding the other reasons cited by the ALJ. Plaintiff’s Credibility 26 B. 27 Plaintiff argues that the ALJ gave insufficient reasons to discredit Plaintiff. Defendant 28 replies that the ALJ permissibly found that Plaintiff was not credible because of Plaintiff s daily 28 1 activities, the fact that Plaintiff s claims were inconsistent with the evidence in the record, and 2 the fact that Plaintiff s symptoms were controlled with medication and treatment. “An ALJ is not required to believe every allegation of disabling pain or other non- 3 4 exertional impairment.” Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 2007) (internal punctuation 5 and citations omitted). Determining whether a claimant s testimony regarding subjective pain or 6 symptoms is credible requires the ALJ to engage in a two-step analysis. Molina v. Astrue, 674 7 F.3d 1104, 1112 (9th Cir. 2012). The ALJ must first determine if “the claimant has presented 8 objective medical evidence of an underlying impairment which could reasonably be expected to 9 produce the pain or other symptoms alleged.” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th 10 Cir. 2007) (internal punctuation and citations omitted). This does not require the claimant to 11 show that his impairment could be expected to cause the severity of the symptoms that are 12 alleged, but only that it reasonably could have caused some degree of symptoms. Smolen, 80 13 F.3d at 1282. Second, if the first test is met and there is no evidence of malingering, the ALJ can only 14 15 reject the claimant s testimony regarding the severity of his symptoms by offering “clear and 16 convincing reasons” for the adverse credibility finding.4 Carmickle v. Commissioner of Social 17 Security, 533 F.3d 1155, 1160 (9th Cir. 2008). The ALJ must specifically make findings that 18 support this conclusion and the findings must be sufficiently specific to allow a reviewing court 19 to conclude the ALJ rejected the claimant s testimony on permissible grounds and did not 20 arbitrarily discredit the testimony. Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004) 21 (internal punctuation and citations omitted). Factors that may be considered in assessing a claimant s subjective pain and symptom 22 23 testimony include the claimant s daily activities; the location, duration, intensity and frequency 24 of the pain or symptoms; factors that cause or aggravate the symptoms; the type, dosage, 25 effectiveness or side effects of any medication; other measures or treatment used for relief; 26 functional restrictions; and other relevant factors. Lingenfelter, at 1040; Thomas, 278 F.3d at 27 4 Defendant argues that the clear and convincing standard should not apply to an evaluation of Plaintiff s testimony, 28 however the Ninth Circuit has rejected this argument in Garrison v. Colvin, 759 F.3d 995, 1015 n.18 (9th Cir. 2014). 29 1 958. In assessing the claimant s credibility, the ALJ may also consider “(1) ordinary techniques 2 of credibility evaluation, such as the claimant s reputation for lying, prior inconsistent statements 3 concerning the symptoms, and other testimony by the claimant that appears less than candid; 4 [and] (2) unexplained or inadequately explained failure to seek treatment or to follow a 5 prescribed course of treatment. . . .” Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) 6 (quoting Smolen, 80 F.3d at 1284). 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The ALJ found: After careful consideration of the evidence, I find that the claimant s medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant s statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible for the reasons explained in this decision. Since 2006, the claimant has had very substantial activities of daily living which are not consistent with his allegations. On October 26, 2006, the claimant (Exhibit 12F, page 6) confirmed that he was able to complete activities of daily living within functional limits. On January 11, 2007, he confirmed that he was able to independently take a bus, drive, do simple household chores, wash dishes, laundry, prepare meals, shop for groceries, and perform self care (Exhibit 7F). In a statement submitted to the Administration on July 14, 2007, the claimant noted no problems with personal care, no need for reminders to take care of personal grooming or medicine; while acknowledging he is able to prepare his own meals, able to cook and do laundry, able to go outside 3-4 times a week by himself, able to drive and able to shop independently (Exhibit 8E). Hobbies consisted of playing video games, watching television and “hanging out with friends.” He would occasionally fall asleep. He would regularly go to his friend s house or shopping. He estimated he could walk ¼ mile. He reported no problems following written or spoken instructions. At the hearing on September 15, 2008, he confirmed that he was taking classes for four to nine hours a day, four days week, and doing homework or other assignments for 30-45 minutes a day. He subsequently completed his degree. This activity is not consistent with his allegations regarding fatigue, memory loss and poor concentration. He further testified at the September 15, 2008 hearing that he provided care for his grandmother s dog, watched two hours of television daily, used a computer to check email daily, played handheld video games, attended church six hours a week, and shopped once a month. On April 29, 2009, the claimant told Dr. Morris that he was “overall doing well” and “going to MJC classes” (Exhibit 23F, page 5). On January 5, 2001, he said that he spent two thirds of his time with friends away from the house “hanging out” (Exhibit 19F). At the May 3, 2010 hearing, he again confirmed that he cooks, plays video games, accesses the Internet, goes shopping, attends church twice a week, occasionally dines 30 out, and spends a lot of time out of the house and visits his friends “quite a bit.” At the hearing before me on March 20, 2013, the claimant testified that he obtained an Associate of Arts Degree in business administration from Modesto Junior College. He ended up marrying his girlfriend. On a typical day, he prepares his meals, takes his wife to and from work, takes her to school, and spends time at school and “at the college and just basically try to interact with people to keep myself from being a hermit at home.” 1 2 3 4 5 The claimant s testimony regarding dizziness is contradicted by the treatment evidence, which confirms that his gait is normal. He testified that he loses his balance very easily and can easily trip on things if he is not paying attention. On a bad day, he walks and staggers like a drunk man and is unable to keep his balance. No treating doctor has observed such difficulties walking, and he does not use a cane or assistive device. Despite the claimant s allegations of symptoms, on January 12, 2011 he confirmed that the only symptoms he had was when he did not take his medication (Exhibit 28F, page 33). 6 7 8 9 10 11 (AR 40-41.) Plaintiff s Daily Activities 12 1. 13 Plaintiff argues that the ALJ erred in finding that Plaintiff s daily activities are “very 14 substantial” and “not consistent with his allegations.” Defendant contends that Plaintiff s daily 15 activities indicate that he is less impaired than he claims. There are two ways for an ALJ to “use 16 daily activities to form the basis of an adverse credibility determination: if the claimant s activity 17 contradicts his testimony or if the claimant s activity meets the threshold for transferable work 18 skills.” Phillips v. Colvin, 61 F. Supp. 3d 925, 944 (N.D. Cal. 2014). Review of the ALJ s 19 opinion in this instance shows that the ALJ found that Plaintiff s activity contradicts his 20 testimony. 21 A plaintiff s daily activities can be considered as part of an ALJ s credibility analysis. 22 Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). In particular, an ALJ may consider 23 inconsistencies between a claimant s activities and his subjective complaints. See Valentine v. 24 Comm r of Soc. Sec. Admin., 574 F.3d 685, 693 (9th Cir. 2009) (ALJ properly determined that 25 the claimant s daily activities “did not suggest [the claimant] could return to his old job at 26 Cummins, but . . . did suggest that [the claimant s] later claims about the severity of his 27 limitations were exaggerated”); Molina, 674 F.3d at 1112 (the ALJ may consider “whether the 28 claimant engages in daily activities inconsistent with the alleged symptoms”) (internal citation 31 1 omitted). 2 Plaintiff acknowledged that he cooked, did laundry, drove, hung out with his friends for 3 up to two-thirds of the day, attended three two-hour church services a week, cared for a dog, and 4 went on long car trips with his parents to Fort Bragg. (AR 63-64, 119-125, 440-444, 597, 6925 693.) On October 26, 2006, and April 29, 2007, Plaintiff told staff at Riverbank Community 6 Health Center that he was not unable to complete activities of daily living within functional 7 limits. (AR 630, 632.) Although Plaintiff argues that there may be other interpretations about 8 the level that Plaintiff is able to do these activities at and the amount of time that he is able to do 9 them for, if the ALJ's interpretation is reasonable and supported by substantial evidence, then it 10 is not the Court s role to second-guess it. See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 11 2001). Here, the somewhat normal level of Plaintiff s daily activity was inconsistent with 12 Plaintiff s claimed limitations. 13 The ALJ also found that Plaintiff s educational activities conflict with his claimed 14 limitations regarding fatigue, memory loss and poor concentration. Plaintiff attended college 15 again starting in the fall of 2008, attending classes four days a week from four to nine hours a 16 day. (AR 137; 139-140.) As stated supra, after earning approximately 40-45 credits prior to 17 1999, Petitioner actually was able to complete the requirements for his Associate s degree 18 between August 2008 and the date of graduation, which appears to be sometime after December 19 2008, but before January 2010. Plaintiff even continued to go to the college campus after 20 earning his degree. (AR 61, 63-64, 692.) Although Plaintiff s classes and schoolwork may not 21 have persisted at a level that is comparable with the demands of full-time work, it is clear that 22 they are inconsistent with Plaintiff s claimed limitations. Plaintiff s ability to take classes and 23 complete his degree is inconsistent with his claimed fatigue, memory loss, and poor 24 concentration. An ALJ may properly consider any inconsistencies between a claimant's 25 testimony and conduct. See Thomas v. Barnhart, 278 F.3d at 958-959. 26 Therefore, there was no error in the ALJ s consideration of Plaintiff s daily activities as a 27 factor in discrediting Plaintiff. 28 \ \ \ 32 1 2. Medical Record 2 The ALJ also found that the medical record did not support Plaintiff s allegations. (AR 3 28.) Plaintiff argues that the ALJ s finding that Plaintiff s dizziness is undermined by the 4 treatment records is incorrect because dizziness does not manifest in terms of an impaired gait or 5 the need for an assistive device. Defendant argues that Plaintiff s claims of severe balance 6 problems and “stagger[ing] like a drunk man” are not supported by the numerous instances in the 7 medical record that note Plaintiff s normal gait and normal neurological examinations. 8 The medical evidence in the record supports the ALJ s conclusion that Plaintiff s 9 subjective symptom complaints regarding his balance problems were not entirely credible. The 10 ALJ noted that Plaintiff testified that he had severe balance problems and “stagger[ed] like a 11 drunk man.” (AR 66.) Even if dizziness would not manifest itself in terms of an impaired gait 12 or requiring an assistive device, Plaintiff also claimed that he had severe balance issues and 13 sometimes “stagger[ed] like an old man,” which are clearly contradicted by the evidence in the 14 medical record that Plaintiff had a normal gait and neurological examinations. There are 15 numerous notations in the medical record of Plaintiff walking normally or having normal 16 neurological examinations. (AR 593, 636, 650, 652, 678-679, 735, 738, 742, 762-763, 849, 912, 17 917, 920, 937.) On October 26, 2006, and April 29, 2007, Plaintiff stated that he was not unable 18 to ambulate within functional limits. (AR 584, 630). 19 Accordingly, the ALJ properly found Plaintiff s allegations regarding Plaintiff s normal 20 gait and normal neurological examinations not credible given the observations of Dr. Dhaliwal, 21 Dr. Stacie Daniels, and Dr. Manmeet Shergill. Rollins, 261 F.3d at 857 (“While subjective pain 22 testimony cannot be rejected on the sole ground that it is not fully corroborated by objective 23 medical evidence, the medical evidence is still a relevant factor in determining the severity of the 24 claimant s pain and its disabling effects”); Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) 25 (“Although lack of medical evidence cannot form the sole basis for discounting pain testimony, 26 it is a factor that the ALJ can consider in his credibility analysis”); Tidwell v. Apfel, 161 F.3d 27 599, 601-602 (9th Cir. 1998) (finding a mild or minor medical condition with all other tests 28 reporting normal provides a basis for rejecting claimant's testimony of severity of symptoms); 33 1 Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995) (inconsistencies between the record and 2 medical evidence supports a rejection of a claimant s credibility). 3 3. Plaintiff s Symptoms Are Controlled By Medication And Treatment 4 The ALJ also discredited Plaintiff because Plaintiff told Dr. Porecha on January 12, 2011, 5 “that the only symptoms he had was when he did not take his medication.” As noted above, 6 Plaintiff made statements to Dr. Porecha that missing a dose of medication caused a big 7 difference in his symptoms, that his only symptom was a walking issue, and that he only 8 experienced problems when he did not take his medication. (AR 853.) Plaintiff argues that these 9 were contradictory statements to Dr. Porecha that do not support that ALJ s inference that 10 medication controlled Plaintiff s symptoms. However, as noted by Defendant, the big difference 11 in Plaintiff s symptoms could be between no issues with walking and issues with walking. The 12 ALJ s interpretation of Plaintiff s symptoms is reasonable and supported by substantial evidence, 13 and therefore, it is not the Court s role to second-guess it. See Rollins v. Massanari, 261 F.3d 14 853, 857 (9th Cir. 2001). 15 Even assuming the ALJ erred with regard to Plaintiff s symptoms being controlled by 16 medication and treatment, that error is harmless where the other reasons the ALJ offers are 17 proper and are supported by substantial evidence. See Carmickle, 533 F.3d at 1162 (citing 18 Batson v. Comm r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004) [“So long as there 19 remains “substantial evidence supporting the ALJ s conclusions on . . . . credibility” and the 20 error “does not negate the validity of the ALJ s ultimate [credibility] conclusion,” such is 21 deemed harmless and does not warrant reversal”]). 22 4. The ALJ Did Not Err in the Credibility Finding 23 The objective medical evidence and Plaintiff s daily activities are clear and convincing 24 reasons to support the ALJ s credibility finding. Batson v. Commissioner of Social Security, 359 25 F.3d 1190, 1196-97 (9th Cir. 2004). The Court finds that the ALJ provided clear and convincing 26 reasons that are supported by substantial evidence in the record for the determination that 27 Plaintiff s symptoms are not as limiting as he claimed. 28 \ \ \ 34 V. 1 CONCLUSION AND ORDER 2 Based on the foregoing, the Court finds that the ALJ s analysis was proper and the 3 4 ALJ s conclusions were supported by substantial evidence. Accordingly, IT IS HEREBY ORDERED that Plaintiff s appeal from the decision of the 5 6 Commissioner of Social Security is DENIED. It is FURTHER ORDERED that judgment be 7 entered in favor of Defendant Commissioner of Social Security and against Plaintiff Jonathan 8 Andrews. The Clerk of the Court is directed to CLOSE this action. 9 10 11 IT IS SO ORDERED. 12 Dated: February 4, 2016 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 35

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