Cathy Martinez v. Michael J Astrue, No. 2:2011cv06541 - Document 16 (C.D. Cal. 2012)

Court Description: MEMORANDUM OPINION by Magistrate Judge Charles F. Eick. Plaintiff's motion for summary judgment is denied and Defendant's motion for summary judgment is granted. (sp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 CATHY MARTINEZ, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, COMMISSIONER ) OF SOCIAL SECURITY ADMINISTRATION, ) ) Defendant. ) ___________________________________) NO. CV 11-6541-E MEMORANDUM OPINION 17 18 PROCEEDINGS 19 20 Plaintiff filed a Complaint on August 16, 2011, seeking review of 21 the Commissioner s denial of benefits. The parties filed a consent to 22 proceed before a United States Magistrate Judge on August 26, 2011. 23 24 Plaintiff filed a motion for summary judgment on January 17, 25 2012. Defendant filed a cross-motion for summary judgment on 26 February 16, 2012. 27 without oral argument. 28 /// The Court has taken both motions under submission See L.R. 7-15; Order, filed August 17, 2011. 1 BACKGROUND 2 3 Plaintiff asserts disability since March 1, 2008, based primarily 4 on alleged psychological impairments and alleged headaches 5 (Administrative Record ( A.R. ) 150, 159). 6 Judge ( ALJ ) examined the medical record and heard testimony from 7 Plaintiff, two medical experts, and a vocational expert (A.R. 23-58). 8 Although the ALJ found Plaintiff suffers from severe affective mood 9 disorder (bipolar), anxiety disorder, post traumatic stress disorder, 10 and substance addiction disorder, the ALJ also found Plaintiff retains 11 the residual functional capacity to perform a full range of work at 12 all exertion levels, albeit with some non-exertional limitations (A.R. 13 11, 13). 14 to work involving simple, repetitive tasks, no public contact, non- 15 intense contact with coworkers and supervisors, no tasks requiring 16 hypervigilance or responsibility for the safety of others, and no fast 17 paced work (A.R. 13, 16 (adopting psychological medical expert s 18 testimony at A.R. 41)). 19 limitations could perform work existing in the national economy as a 20 store labor person, electrician helper, and hand packager (A.R. 21 18-19 (adopting vocational expert testimony at A.R. 56-57)). 22 Accordingly, the ALJ found Plaintiff not disabled (A.R. 19). 23 Appeals Council denied review (A.R. 1-3). The Administrative Law According to the ALJ, these limitations restricted Plaintiff The ALJ found that a person with these The 24 25 Plaintiff argues that the ALJ erred in finding Plaintiff s 26 headaches not severe, in deeming Plaintiff s headache complaints not 27 entirely credible, and in allegedly failing to consider Plaintiff s 28 headaches in determining Plaintiff s residual functional capacity. 2 1 See Plaintiff s Motion, pp. 2-10. Plaintiff seeks a remand for 2 further administrative proceedings (Id. at 10). 3 4 STANDARD OF REVIEW 5 6 Under 42 U.S.C. section 405(g), this Court reviews the 7 Administration s decision to determine if: (1) the Administration s 8 findings are supported by substantial evidence; and (2) the 9 Administration used correct legal standards. See Carmickle v. 10 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 11 499 F.3d 1071, 1074 (9th Cir. 2007). 12 relevant evidence as a reasonable mind might accept as adequate to 13 support a conclusion. 14 (1971) (citation and quotations omitted); see also Widmark v. 15 Barnhart, 454 F.3d 1063, 1067 (9th Cir. 2006). Substantial evidence is such Richardson v. Perales, 402 U.S. 389, 401 16 17 This Court may not affirm [the Administration s] decision simply 18 by isolating a specific quantum of supporting evidence, but must also 19 consider evidence that detracts from [the Administration s] 20 conclusion. 21 (citation and quotations omitted); see Lingenfelter v. Astrue, 504 22 F.3d 1028 (9th Cir. 2007) (same). 23 findings supported by substantial evidence, even though there may 24 exist other evidence supporting Plaintiff s claim. 25 Richardson, 484 F.2d 59, 60 (9th Cir. 1973), cert. denied, 417 U.S. 26 933 (1974); Harvey v. Richardson, 451 F.2d 589, 590 (9th Cir. 1971). 27 /// 28 /// Ray v. Bowen, 813 F.2d 914, 915 (9th Cir. 1987) However, the Court cannot disturb 3 See Torske v. DISCUSSION 1 2 After consideration of the record as a whole, Defendant s motion 3 4 is granted and Plaintiff s motion is denied. The Administration s 5 findings are supported by substantial evidence and are free from 6 material1 legal error. 7 unavailing. Plaintiff s contrary contentions are 8 9 I. Substantial Evidence Supports the Conclusion Plaintiff Can Work. 10 11 Substantial evidence supports the ALJ s determination that 12 Plaintiff is not disabled. In fact, the consultative examiners found 13 Plaintiff to be essentially unimpaired. 14 15 Dr. Sandra Eriks, an examining internist, completed an Internal 16 Medicine Evaluation of Plaintiff dated December 29, 2008 (A.R. 270- 17 74).2 18 allegedly causes Plaintiff to feel pregnant, allegedly constant 19 headaches, and an alleged eating disorder (A.R. 270). 20 physical examination found no abnormalities (A.R. 271-73). 21 observed that Plaintiff s medical records indicated Plaintiff has 22 normal MRI studies of her brain (A.R. 270). 23 Plaintiff would have no exertional limitations (A.R. 273). Plaintiff complained of, inter alia, hyperprolactinemia which Dr. Erik s Dr. Eriks Dr. Eriks opined that 24 25 1 26 27 The harmless error rule applies to the review of administrative decisions regarding disability. See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 2 28 Dr. Eriks observed that Plaintiff was quite hostile during the evaluation (A.R. 273). 4 1 The examining psychiatrist also found no limitations. Dr. 2 Romauldo Rodriguez provided a Complete Psychiatric Evaluation for 3 Plaintiff dated April 3, 2008 (A.R. 242-48). 4 inter alia, depression, anger, irritability, and rage for no reason 5 (A.R. 242-43). 6 she was 14 years old, to having smoked marijuana the day before her 7 evaluation, and to having used methamphetamines and cocaine up until 8 approximately five years before the evaluation (A.R. 244). 9 Rodriguez diagnosed Plaintiff with depressive disorder, not otherwise Plaintiff complained of, Plaintiff admitted to having smoked marijuana since Dr. 10 specified, and post traumatic stress disorder (A.R. 246). He assigned 11 Plaintiff a GAF score of 70 (A.R. 247).3 12 Plaintiff stable on her antidepressants and found no functional 13 limitations (A.R. 247). Dr. Rodriguez deemed 14 15 The consultative examiners findings constitute substantial 16 evidence supporting the ALJ s decision. See Tonapetyan v. Halter, 242 17 F.3d 1144, 1149 (9th Cir. 2001) (consulting examiner s opinion is 18 substantial evidence that can support an ALJ s finding of 19 nondisability); see also Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 20 2007) (examining physician s independent clinical findings are 21 substantial evidence). 22 23 24 25 26 27 28 3 Clinicians use the GAF scale to report an individual s overall level of functioning. A GAF of 61-70 indicates some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. Siegel v. Astrue, 2009 WL 2365693, at *6 n.6 (E.D. Cal. July 31, 2009) (quoting from American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 32 (4th Ed. 1994)). 5 1 Additional support for the ALJ s decision exists in the opinions 2 of the non-examining State agency physicians and the testifying 3 medical experts. 4 examining physician s opinion may constitute substantial evidence when 5 opinion is consistent with independent evidence of record); Lester v. 6 Chater, 81 F.3d 821, 831 (9th Cir. 1995) (same). 7 physician S. Kahn completed a Psychiatric Review Technique form dated 8 December 8, 2008 (A.R. 256-66). 9 and opined that Plaintiff s psychiatric symptoms do not significantly 10 decrease Plaintiff s ability to function (A.R. 264, 266; see also A.R. 11 268). 12 Leonard Naiman stated: Tonapetyan v. Halter, 242 F.3d at 1149 (non- State agency Dr. Kahn found only mild limitations, With respect to Plaintiff s headaches, State agency physician 13 14 Headaches expected to respond to prescribed treatment, 15 frequent presentations for such are not suggested by 16 evidence in file, and triptans were not noted under 17 Medications . . . . [Plaintiff was] [n]ot described as 18 appearing visibly in discomfort or visibly fatigued at [the 19 consultative exam which] reveal[ed] no major deficits of 20 neuro, motor, or joint function. 21 22 (A.R. 278-79). 23 24 The two medical experts who testified at Plaintiff s 25 administrative hearing rendered opinions consistent with the 26 consultative evaluations. 27 Landau reviewed the medical record and testified that he could find no 28 objective evidence of any severe non-psychological impairment (A.R. See A.R. 33-48 (testimony). 6 Dr. Samuel 1 34). Dr. Landau observed that a brain MRI from April 2007 showed no 2 pituitary adenoma, though acknowledging the possibility that Plaintiff 3 could have a microscopic adenoma not visible on the MRI (A.R. 34, 36). 4 Dr. Landau also acknowledged that the record showed some treatment for 5 headaches, but asserted that there was no objective basis for those 6 symptoms (A.R. 34, 36). Dr. Landau assessed no limitations. 7 8 9 Psychological medical expert, Dr. David Glassmire, reviewed the medical record and testified that Plaintiff suffers from bipolar 10 disorder, post traumatic stress disorder based on childhood abuse, 11 marijuana abuse, and a history of cocaine use (A.R. 38, 40-41). 12 Glassmire suggested limiting Plaintiff to work involving simple, 13 repetitive tasks, no interaction with the public, only non-intense 14 interactions with co-workers and supervisors, no tasks requiring 15 hyper-vigilance, and no fast paced work (A.R. 41). 16 limitations the ALJ adopted as part of Plaintiff s residual functional 17 capacity (A.R. 17). Dr. These are the same 18 19 The only other physician to offer an opinion regarding 20 Plaintiff s limitations was Plaintiff s treating physician, Dr. 21 Oluwafemi Adeyemo, who treated Plaintiff with antidepressants from 22 March 2008 through at least April 2009. 23 (treatment records). 24 Evaluation (Mental) form for Plaintiff dated February 24, 2010 (A.R. 25 290-91). 26 /// 27 /// 28 /// See A.R. 251-55, 283-86 Dr. Adeyemo completed a check-box Work Capacity Dr. Adeyemo checked that Plaintiff would have specified 7 1 limitations of varying alleged severity.4 2 opinion may have conflicted with the opinions of the other physicians, 3 the ALJ provided specific, legitimate reasons for rejecting Dr. 4 Adeyemo s opinion. 5 rejecting Dr. Adeyemo s opinion); see also Valentine v. Commissioner, 6 574 F.3d 685, 692 (9th Cir. 2009) (an ALJ must provide specific, 7 legitimate reasons based on substantial evidence in the record for 8 rejecting a treating physician s contradicted opinion). 9 not challenged the propriety of the ALJ s rejection of Dr. Adeyemo s 10 To the extent Dr. Adeyemo s See A.R. 16 (ALJ explaining her reasons for Plaintiff has opinion in favor of the opinions of the other physicians. 11 12 The record contains some conflicting evidence regarding 13 Plaintiff s capacity to work. It was the prerogative of the ALJ, 14 however, to resolve the conflicts in the evidence. 15 Apfel, 236 F.3d 503, 509 (9th Cir. 2001). See Lewis v. Where, as here, the 16 17 18 19 20 21 22 23 24 25 26 27 28 4 Specifically, Dr. Adeyemo indicated that Plaintiff would have moderate limitations in her ability to make simple work-related decisions, in her ability to maintain socially appropriate behavior and in her ability to adhere to basic standards of neatness and cleanliness (A.R. 290-91). Dr. Adeyemo indicated that Plaintiff would have marked limitations in maintaining attention and concentration for extended periods of time, performing activities within a schedule, maintaining regular attendance, being punctual with customary tolerances, sustaining an ordinary routine without special supervision, interacting appropriately with the general public, accepting instruction and responding appropriately to criticism from supervisors, and in responding appropriately to changes in the work setting (A.R. 290-91). Dr. Adeyemo indicated that Plaintiff would have extreme limitations in her ability to work in coordination with or in proximity to others without being distracted by them, and in her ability to get along with coworkers or peers without distracting them or exhibiting behavioral extremes (A.R. 290-91). Dr. Adeyemo also indicated that he anticipated Plaintiff would be absent from work three or more days per month (A.R. 291). 8 1 evidence is susceptible to more than one rational interpretation, 2 the Court must uphold the administrative decision. 3 Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995); accord Thomas v. 4 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002); Sandgathe v. Chater, 108 5 F.3d 978, 980 (9th Cir. 1997). See Andrews v. 6 7 8 II. The ALJ Did Not Commit Material Error With Respect to the Evaluation of Plaintiff s Headaches. 9 10 Plaintiff argues that the ALJ erred at Step Two of the disability 11 analysis by failing to find that Plaintiff s alleged headaches are 12 severe. 13 that the ALJ erred at Step Four of the disability analysis by 14 assertedly failing to consider Plaintiff s headaches while assessing 15 Plaintiff s residual functional capacity. 16 arguments must be rejected. See Plaintiff s Motion, pp. 2-6. Plaintiff further argues Id., pp. 9-10. These 17 18 In headache questionnaires, Plaintiff reported that she first 19 began experiencing severe headaches in 1987 and that she allegedly has 20 headaches all day, all the time (A.R. 174, 196; see also A.R. 176). 21 Plaintiff claimed she has an empty space in her brain where a 22 pituitary tumor used to be (A.R. 174). 23 Motrin) for her headaches, and had never gone to an emergency room due 24 to headache pain (A.R. 175, 197; but see A.R. 232-33 (emergency room 25 treatment record from December 2007 for plaintiff for medication 26 refill, where Plaintiff complained of depression, memory loss, 27 confusion, and headaches)). 28 for treatment (A.R. 175, 197). Plaintiff took aspirin (or Plaintiff asserted that she has no money 9 1 The ALJ found Plaintiff s headaches non-severe, explaining: The 2 record reveals that the claimant s allegedly disabling headaches was 3 [sic] present at approximately the same level of severity prior to the 4 alleged onset date. 5 claimant from working since 1987 through 2007 strongly suggests that 6 it [sic] would not currently prevent work (A.R. 12).5 The fact that the headaches did not prevent the 7 8 9 Assuming, arguendo, error in failing to find Plaintiff s headaches severe, any such error was harmless. In evaluating 10 Plaintiff s residual functional capacity, the ALJ reportedly 11 considered all of Plaintiff s symptoms. 12 has considered all symptoms and the extent to which these symptoms can 13 reasonably be accepted as consistent with the objective medical 14 evidence ); see Social Security Ruling 96-8p ( In assessing RFC, the 15 adjudicator must consider limitations and restrictions imposed by all 16 of an individual s impairments, even those that are not severe ); 17 Burch v. Barnhart, 400 F.3d 676, 682-83 (9th Cir. 2005) (error in 18 failing to find an impairment severe did not prejudice the claimant 19 where the Administration found other impairments severe and considered 20 the effects of the non-severe impairment when analyzing residual 21 functional capacity); see also Lewis v. Astrue, 498 F.3d 909, 911 (9th 22 Cir. 2007) (same); see generally McLeod v. Astrue, 640 F.3d 881, 886- 23 89 (9th Cir. 2011) (claimant bears the burden of showing a substantial 24 likelihood of prejudice from the Administration s errors). 25 correctly observed that treatment records (including those for See A.R. 14 ( the undersigned The ALJ 26 5 27 28 Plaintiff testified that she was laid off from her last job as a receptionist in September 2007, due to the declining housing market (A.R. 28-29). Plaintiff thereafter applied for similar work, but without success (A.R. 29). 10 1 Plaintiff s headaches) reveal that Plaintiff received routine, 2 conservative, and non-emergency treatment after her alleged onset date 3 (A.R. 15).6 4 discounted the credibility of Plaintiff s subjective complaints of 5 pain, relying on Plaintiff s inconsistent statements, a lack of 6 objective medical evidence to support the complaints, and the fact 7 that Plaintiff had demonstrated an ability to perform her past 8 relevant work at least until she was laid off (A.R. 15). 9 ALJ did consider evidence of Plaintiff s headaches in determining 10 Plaintiff s residual functional capacity; the ALJ simply did not 11 believe the headaches caused any material limitations. 12 failing to consider evidence of Plaintiff s headaches more expressly 13 or more fully was harmless. As discussed more fully below, the ALJ correctly Thus, the Any error in 14 15 Given the ALJ s analysis at Step Four and the lack of any medical 16 source statements or medical records suggesting that Plaintiff has any 17 headache-related impairments or limitations, the ALJ s failure to deem 18 Plaintiff s headaches severe, if error, was also harmless. 19 Hurter v. Astrue, 2012 WL 32138, at *4 (9th Cir. Jan. 6, 2012) 20 (deeming harmless any error of the ALJ to consider explicitly certain 21 alleged impairments in determining claimant s residual functional Cf. 22 6 23 24 25 26 27 28 Plaintiff was treated at Riverside County Regional Medical Center from December 2007 through at least March 2010 (A.R. 225-41, 293-329). Plaintiff, who was 50 years old at the outset of treatment, reportedly had a pituitary adenoma since age 30 (A.R. 225). Plaintiff complained of headaches and admitted to smoking marijuana daily for her symptoms (A.R. 225-26, 228-29, 232, 305, 312, 317-18). Plaintiff reportedly had stopped smoking marijuana by June 2009 (A.R. 302). Plaintiff was diagnosed with pituitary adenoma, addiction to marijuana, depression and anger, hyperlipidemia, headaches and insomnia (A.R. 227). Plaintiff received hormone therapy (A.R. 295-302, 310, 315, 319). 11 1 capacity, where the ALJ discussed the alleged impairments at Step Two 2 and found them non-severe, and the medical evidence provided meager 3 support for alleged impairments). 4 evidence supports the ALJ s conclusion that Plaintiff can work 5 notwithstanding the combined effects of her physical and mental 6 impairments. As discussed above, substantial 7 8 9 III. The ALJ Did Not Commit Material Error By Deeming Plaintiff s Headache-Related Complaints Less Than Fully Credible. 10 11 Plaintiff also argues that the ALJ did not properly assess 12 Plaintiff s subjective complaints regarding her alleged headaches. 13 See Plaintiff s Motion, pp. 5-8. 14 any material error. Plaintiff has failed to demonstrate 15 16 The subjective complaints expressed in Plaintiff s testimony had 17 little or nothing to do with Plaintiff s alleged headaches. Indeed, 18 when asked [I]n your own words, what keeps you from working now? , 19 Plaintiff gave a response that did not even mention headaches. 20 Plaintiff claimed she could not work because she allegedly has a lot 21 of pregnancy symptoms, including lactation (even though she was not 22 then pregnant), is bipolar, can rage in just a second, and does not 23 have the patience to deal with another colleague (A.R. 29-30; see 24 also A.R. 243 (Plaintiff asserting that her pituitary tumor secretes 25 prolactin which causes pregnancy symptoms)). 26 if she felt depressed or experienced pregnancy symptoms, she would 27 sleep all day (A.R. 49). 28 on Thursdays so she could spend time with her grandchild (A.R. 49). Plaintiff testified that Plaintiff said she tried to have good days 12 1 Plaintiff said she can manage her own hygiene, but claimed she does 2 not cook for herself and rarely shops for groceries (A.R. 50-51). 3 Plaintiff s only mention of headaches during her testimony was an 4 5 admission that she had smoked marijuana to help with my headaches, 6 coupled with a denial that she had ever taken any other drugs (A.R. 7 32).7 8 admitted that she had used cocaine a few times when she was 19 or 20 9 (A.R. 40). When examined by the medical expert, however, Plaintiff 10 11 The ALJ found Plaintiff s allegations concerning her alleged 12 limitations less than credible, explaining that the allegations were 13 not supported by the relatively benign medical evidence and lack of 14 more aggressive treatment (A.R. 14-15). 15 connection with the severity issue, the ALJ also reasoned that 16 Plaintiff s working for 20 years despite the alleged headaches 17 strongly suggests that the headaches were not and are not disabling 18 (A.R. 12). 19 working for reasons unrelated to her own medical condition similarly As discussed above in According to the ALJ, the fact that Plaintiff had stopped 20 21 22 23 24 25 26 27 28 7 By contrast, in a Function Report - Adult form dated October 9, 2008, Plaintiff reported that she spends her days trying to deal with her headaches (A.R. 176). Plaintiff reportedly stayed in bed which supposedly makes her depressed (A.R. 176). Plaintiff needed no help with personal care, prepared frozen dinners daily, and cleaned her house one room at a time (A.R. 177-78). Plaintiff reportedly went outside once a week with her friend who drives her (A.R. 179). Plaintiff could shop for food and household supplies (A.R. 179). Plaintiff supposedly had problems getting along with others if they look at her the wrong way (A.R. 181). Plaintiff reportedly could get along with authority figures until they make her mad, and then she allegedly loses control (A.R. 182). Plaintiff supposedly was afraid to go outside (although she does go outside) (A.R. 182). 13 1 suggests that Plaintiff is not as limited as she asserts and could 2 perform her past relevant work (A.R. 15). 3 that the credibility of Plaintiff s subjective complaints was 4 diminished by Plaintiff s inconsistent statements (e.g., reporting 5 that she did not drive (A.R. 179), but testifying that she drives 6 occasionally (A.R. 31); admitting to a consultative examiner that 7 Plaintiff used methamphetamine and cocaine in the past (A.R. 244), but 8 testifying that she used no drugs other than marijuana in the past 9 (A.R. 32)). Finally, the ALJ stressed 10 11 An ALJ s assessment of a claimant s credibility is entitled to 12 great weight. Anderson v. Sullivan, 914 F.2d 1121, 1124 (9th Cir. 13 1990); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985). 14 discounting of a claimant s testimony regarding subjective symptoms 15 must be supported by specific, cogent findings. 16 81 F.3d at 834; see also Berry v. Astrue, 622 F.3d 1228, 1234 (9th 17 Cir. 2010) (reaffirming same); Varney v. Secretary of Health and Human 18 Serv., 846 F.2d 581, 584 (9th Cir. 1988) (generally discussing 19 specificity requirement); but see Smolen v. Chater, 80 F.3d 1273, 20 1282-84 (9th Cir. 1996) (finding that ALJ must offer specific, clear 21 and convincing reasons to reject a claimant s testimony where there 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 14 The See Lester v. Chater, 1 is no evidence of malingering).8 2 for deeming Plaintiff s subjective complaints less than fully 3 credible. The ALJ stated sufficient reasons 4 5 First, as discussed in the ALJ s opinion and herein, the medical 6 evidence does not support Plaintiff s allegations of disabling 7 headaches. 8 the sole ground that it is not fully corroborated by objective medical 9 evidence, the medical evidence is still a relevant factor. . . . 10 Although a claimant s credibility cannot be rejected on Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). 11 12 As previously indicated, the ALJ pointed out inconsistencies 13 between Plaintiff s testimony and her reports, as well as the 14 incongruity of Plaintiff s documented ability to work during a time 15 when she claimed to have suffered daily headaches (A.R. 15). 16 inconsistencies can justify the rejection of a claimant s credibility. 17 See Burch v. Barnhart, 400 F.3d at 680 ( In determining credibility, 18 an ALJ may engage in ordinary techniques of credibility evaluation, 19 such as considering claimant s reputation for truthfulness and 20 inconsistencies in claimant s testimony. ); Thomas v. Barnhart, 278 Such 21 22 23 24 25 26 27 28 8 In the absence of evidence of malingering, most recent Ninth Circuit cases have applied the arguably more rigorous clear and convincing standard. See, e.g., Taylor v. Commissioner, 659 F.3d 1228, 1234 (9th Cir. 2011); Brown v. Astrue, 405 Fed. App x 230 (9th Cir. 2010); Valentine v. Commissioner, 574 F.3d 685, 693 (9th Cir. 2009); Carmickle v. Commissioner, 533 F.3d 1155, 1160 (9th Cir. 2008); Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007); Ballard v. Apfel, 2000 WL 1899797, at *2 n.1 (C.D. Cal. Dec. 19, 2000) (collecting cases). In the present case, the ALJ s findings are sufficient under either standard, so the distinction between the two standards (if any) is academic. 15 1 F.3d 947, 958-59 (9th Cir. 2002) (inconsistency between the claimant s 2 testimony and the claimant s conduct supported rejection of the 3 claimant s credibility); Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th 4 Cir. 1999) (inconsistencies between the claimant s testimony and 5 actions cited as a clear and convincing reason for rejecting the 6 claimant s testimony). 7 8 9 Finally, the ALJ properly emphasized the routine, conservative nature of Plaintiff s medical treatment (A.R. 15). A conservative 10 course of treatment may discredit a claimant s allegations of 11 disabling symptoms. 12 Cir. 2007), cert. denied, 552 U.S. 1141 (2008) (treatment of ailments 13 with over-the-counter pain medication is conservative treatment 14 sufficient to discount a testimony); Meanel v. Apfel, 172 F.3d 1111, 15 1114 (9th Cir. 1999); see also Bunnell v. Sullivan, 947 F.2d 341, 346 16 (9th Cir. 1991) (failure to seek medical treatment can justify an 17 adverse credibility determination); Fair v. Bowen, 885 F.2d 597, 603- 18 04 (9th Cir. 1989) (same). 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// See Parra v. Astrue, 481 F.3d 742, 750-51 (9th 16 1 CONCLUSION 2 3 For all of the reasons discussed herein, Plaintiff s motion for 4 summary judgment is denied and Defendant s motion for summary judgment 5 is granted.9 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 DATED: March 26, 2012. 10 11 ______________/S/_________________ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 The Court has considered and rejected each of Plaintiff s arguments. Neither Plaintiff s arguments nor the circumstances of this case show any substantial likelihood of prejudice resulting from any error allegedly committed by the Administration. See generally McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011) (discussing the standards applicable to evaluating prejudice). 17

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