Maria Marin v. Michael J Astrue, No. 2:2011cv09331 - Document 15 (C.D. Cal. 2012)
Court Description: MEMORANDUM OF DECISION by Magistrate Judge Andrew J. Wistrich. The Commissioner's decision is supported by substantial evidence and is free of legal error. Accordingly, the Commissioner's decision is affirmed. IT IS SO ORDERED. (mz)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 12 13 14 15 16 MARIA MARIN, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of the Social ) Security Administration, ) ) Defendant. ) _____________________________________) Case No. CV 11-09331 AJW MEMORANDUM OF DECISION 17 Plaintiff filed this action seeking reversal of the decision of defendant, the Commissioner of the 18 Social Security Administration (the Commissioner ), denying plaintiff s application for disability insurance 19 benefits and supplemental security income benefits. The parties have filed a Joint Stipulation ( JS ) setting 20 forth their contentions with respect to each disputed issue. 21 Administrative Proceedings 22 The procedural facts are undisputed and are summarized in the Joint Stipulation. [JS 2]. In a written 23 hearing decision that constitutes the Commissioner s final decision, an administrative law judge (the ALJ ) 24 found that plaintiff, who was then 51 years old, retained the residual functional capacity ( RFC ) to perform 25 her past work as a home health attendant and an industrial cleaner. Accordingly, the ALJ concluded that 26 plaintiff was not disabled at any time through the date of her decision. [See Administrative Record ( AR ) 27 27-31]. 28 1 Standard of Review 2 The Commissioner s denial of benefits should be disturbed only if it is not supported by substantial 3 evidence or is based on legal error. Stout v. Comm r, Social Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 4 2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). Substantial evidence means more than 5 a mere scintilla, but less than a preponderance. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 6 2005). It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. 7 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)(internal quotation marks omitted). The court is 8 required to review the record as a whole and to consider evidence detracting from the decision as well as 9 evidence supporting the decision. Robbins v. Social Sec. Admin, 466 F.3d 880, 882 (9th Cir. 2006); 10 Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). Where the evidence is susceptible to more than 11 one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld. 12 Thomas, 278 F.3d at 954 (citing Morgan v. Comm r of Social Sec. Admin., 169 F.3d 595, 599 (9th Cir. 13 1999)). 14 Discussion 15 RFC assessment 16 Plaintiff contends that the ALJ erred in assessing plaintiff s RFC. More specifically, plaintiff argues 17 that the ALJ erred in finding that plaintiff s diabetes and depression were not severe, and that the ALJ did 18 not properly evaluate the medical evidence regarding her spinal impairment. [JS 4-15]. 19 Severity determination 20 At step two of the sequential evaluation procedure, a claimant has the burden to present evidence 21 of medical signs, symptoms and laboratory findings that establish a medically determinable physical or 22 mental impairment that is severe, and that can be expected to result in death or which has lasted or can be 23 expected to last for a continuous period of at least twelve months. Ukolov v. Barnhart, 420 F.3d 1002, 24 1004 1005 (9th Cir. 2005); Smolen v. Chater, 80 F.3d 1273, 1289-1290 (9th Cir. 1996). A medically 25 determinable mental impairment is one that results from anatomical, physiological, or psychological 26 abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic techniques, 27 and it must be established by medical evidence consisting of signs, symptoms, and laboratory findings, not 28 only by [the claimant s] statement of symptoms. 20 C.F.R. §§ 404.1508, 416.908; see 20 C.F.R. §§ 2 1 404.1520a(b)(1), 416.920a(b)(1). Symptoms are the claimant s description of his or her impairment, while 2 psychiatric signs are medically demonstrable and observable phenomena which indicate specific 3 abnormalities of behavior, affect, thought, memory, orientation, and contact with reality. See 20 C.F.R. §§ 4 404.1520a(b), 404.1528(b), 416.920a(b), 416.928(b); see also Social Security Ruling ( SSR ) 96-4p, 1996 5 WL 374187, at *1-*2. 6 If a claimant demonstrates the existence of a medically-determinable impairment, the ALJ must 7 determine whether the impairment significantly limits the claimant s ability to perform basic work 8 activities. 20 C.F.R. §§ 404.1521 (a), 416.921(a); see Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 9 2005). Basic work activities are the abilities and aptitudes necessary to do most jobs, such as (1) physical 10 functions like walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, and handling; (2) the 11 capacity for seeing, hearing, speaking, understanding, carrying out, and remembering simple instructions; 12 (3) the use of judgment; and (4) the ability to respond appropriately to supervision, co-workers, and usual 13 work situations. 20 C.F.R. §§ 404.1521(b), 416.921(b). 14 The ALJ must consider the claimant s subjective symptoms in making a severity determination if 15 the claimant first establishes by objective medical evidence (i.e., signs and laboratory findings) that he or 16 she has a medically determinable physical or mental impairment(s) and that the impairment(s) could 17 reasonably be expected to produce the alleged symptom(s). SSR 96-3p, 1996 WL 374181, at *2. If the 18 claimant produces such evidence, and there is no evidence of malingering, the ALJ can reject the claimant's 19 testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for 20 doing so. Smolen, 80 F.3d at 1281. 21 Plaintiff alleged that she became disabled on April 1, 2009 due to back problems, diabetes mellitus, 22 and depression.1 [AR 27, 62, 69, 79-80, 166]. The ALJ reasoned that plaintiff s diabetes was not severe 23 because plaintiff alleged that she gets dizzy when her blood sugar level rises, but testified that she did not 24 check her blood sugar levels because she did not feel there was any reason to do so. [AR 28, 69-70]. The 25 26 27 28 1 Plaintiff contends that she also alleged that she was disabled by anemia, but her disability applications and reports do not allege anemia as a basis for disability. [See JS 2 (citing AR 128-129, 133-136, 156, 166)]. For the reasons explained below, the ALJ did not err in finding that anemia was not a severe or disabling impairment. 3 1 ALJ also found that although the medical record contains diagnoses of Type II diabetes, there is no 2 indication of end organ damage, and the diabetes appears to be controlled. [AR 28 (citing AR 287-300)]. 3 The ALJ did not err in finding that plaintiff s diabetes and depression were not severe. Plaintiff has 4 diagnoses of Type II diabetes mellitus. [See, e.g., AR 190, 212, 284, 287, 297]. Standing alone, however, 5 a diagnosis does not establish that an impairment is severe. Sample v. Schweiker, 694 F.2d 639, 642-643 6 (9th Cir. 1982). Plaintiff s blood sugar level was elevated. [See, e.g.. AR 209, 219, 318]. She was 7 prescribed medication (metformin or glipizide). [See. e.g., AR 225, 228, 231, 323, 325]. However, the ALJ 8 correctly noted that plaintiff s medical records do not reflect end organ damage. [See. e.g.. AR 213, 228 9 (diagnoses of uncomplicated, uncontrolled Type II diabetes); AR 241 (diagnosis of uncomplicated, 10 controlled diabetes, with no retinopathy); see generally AR 207-241, 287-300]. Plaintiff s own testimony 11 and her treatment reports indicate that she had a history of noncompliance with diabetes treatment. [See AR 12 27, 69-70, 217, 229]. See Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (explaining that an 13 unexplained, or inadequately explained, failure to seek treatment or follow a prescribed course of 14 treatment can cast doubt on the sincerity of a claimant s subjective symptoms). The ALJ further noted 15 that a treating physician, Dr. Kim, noted in several reports that plaintiff had a functional status of [n]o 16 physical disability. [See AR 29, 208, 217, 226, 274, 277, 283]. Substantial evidence supports the ALJ s 17 finding that plaintiff s diabetes mellitus was not severe. 18 The ALJ found that plaintiff did not have a severe mental impairment because plaintiff s symptoms 19 of depression and her treatment by a licensed clinical social worker ( LCSW ) were insufficient to establish 20 a medically determinable impairment. In July 2009 plaintiff told Dr. Kim that she had been feeling sad for 21 a few weeks. Dr. Kim noted that plaintiff reported feelings of hopelessness, depressed, or feeling down, 22 and a loss of interest in activities, also known as anhedonia. [AR 277]. Dr. Kim wrote that she had 23 screened plaintiff for depression, and she prescribed a 3-month supply of the anti-depressant Zoloft. [AR 24 278-279] 25 The following month, plaintiff reported that her depressive symptoms had not been relieved by 26 medication. [AR 274]. Dr. Kim assessed depression/depressive disorder other and referred plaintiff to 27 the county mental health clinic. [AR 275-276]. 28 In February 2010, an LCSW with a community mental health clinic wrote a letter to the Social 4 1 Security Administration stating that plaintiff had been receiving treatment there since November 2009 due 2 to depressive symptoms. [AR 257]. Clinic notes indicate that plaintiff participated in a support group 3 led by the LCSW from January 2010 through March 2010 to address feelings of depression and 4 hopelessness arising from her eviction and her sister s cancer. [AR 258]. Plaintiff terminated treatment 5 when she relocated to Bakersfield. [AR 252]. 6 During the hearing, plaintiff testified that she was still taking Zoloft that she obtained from the 7 General Hospital. [AR 72]. The ALJ noted that the medical record did not corroborate plaintiff s 8 testimony of continuing mental health treatment. [AR 28]. 9 In the absence of clinical data such as mental status examination findings or psychological test 10 results, the ALJ permissibly inferred that plaintiff had been diagnosed with depression based solely on her 11 self-reported symptoms, which alone cannot establish the existence of a medically determinable impairment. 12 .See 20 C.F.R. §§ 404.1528(a)&(b), 416.928(a)&(b) ( Symptoms are your own description of your physical 13 or mental impairment. Your statements alone are not enough to establish that there is a physical or mental 14 impairment. . . . Signs are anatomical, physiological, or psychological abnormalities which can be observed, 15 apart from your statements (symptoms). Signs must be shown by medically acceptable clinical diagnostic 16 techniques. ); Ukolov, 420 F.3d at 1005-1006 (affirming the ALJ s finding of no severe impairment where 17 the medical records documented only subjective symptoms or clinical observations that were susceptible 18 to . . . manipulation by the claimant, and did not contain a definitive diagnosis or finding of impairment). 19 In addition, the ALJ did not err in disregarding the treatment notes from an LCSW for purposes of 20 the severity determination. Evidence from an acceptable medical source is required to establish the 21 existence of a medically determinable impairment, that is, an impairment that can serve as the basis for 22 a finding of severity or disability. See 20 C.F.R. §§ 404.1508, 404.1513(a), 416.908, 416.913(a). Unlike 23 a licensed physician or psychologist, an LCSW is not an acceptable medical source whose findings can 24 establish the existence of a medically determinable impairment. An LCSW falls into the category of other 25 sources. See 20 C.F.R. §§ 404.1513(d), 416.913(d). The ALJ may also use information in the record 26 from other sources to show the severity (but not the existence) of a claimant s medically determinable 27 impairments and how those impairments affect the ability to work. 20 C.F.R. §§ 404.1513(d), 416.913(d). 28 Plaintiff contends that the ALJ erroneously disregarded progress notes from the Clinica Msr. Oscar 5 1 Romero ( Clinica Romero ). [JS 6-7]. That contention is inaccurate. The ALJ considered and cited Exhibit 2 10F [AR 286-300], which contains plaintiff s Clinica Romero notes from September 2009 through April 3 2010, and the ALJ also referred to plaintiff s mental health counseling with an LCSW at Clinica Romero 4 beginning in late 2009. [See AR 28-29, 251-261]. 5 The ALJ did not discuss a September 2008 progress note from Dr. Velazquez of the Clinica Romero 6 that listed diagnoses of low back pain and diabetes with peripheral neuropathy. [AR 190]. However, plaintiff 7 does not even allege that those conditions were disabling at that point. Her alleged onset date is not until 8 April 2, 2009. Dr. Velazquez prescribed Tylenol with acetaminophen for back pain a condition the ALJ 9 found to be severe but it does not appear that any treatment was prescribed for peripheral neuropathy, nor 10 did Dr. Velazquez note any functional limitations. [AR 190]. The ALJ need not discuss all evidence 11 presented to her. Rather, she must explain why significant probative evidence has been rejected. Here, the 12 evidence which the [ALJ] ignored was neither significant nor probative. Vincent ex rel. Vincent v. 13 Heckler, 739 F.2d 1393, 1394-1395 (9th Cir. 1984). 14 15 The ALJ did not commit legal error in assessing the severity of plaintiff s impairments, and substantial evidence supports his severity determination. 16 RFC for medium work 17 18 Contrary to plaintiff s contention, the ALJ s finding that plaintiff retained the RFC to perform medium work is supported by substantial evidence and is free of legal error. 19 As the ALJ noted, much of the medical evidence predated plaintiff s alleged onset date, by several 20 years in some instances, and many of those records were for problems other than back pain, depression, or 21 diabetes. [AR 28, 183-204, 249-272, 301-358]. The only contemporaneous diagnostic study of plaintiff s 22 back in the record before the ALJ was a December 2009 lumbosacral spine x-ray. That film showed disc 23 space narrowing at L5-S1 and a calcification over the lower pole of the left kidney, but was otherwise 24 unremarkable. [AR 29, 300]. 25 unremarkable vertebral spaces and curvature, with minimal changes suggestive of osteitis condensans ilii 2 A lumbosacral spine x-ray submitted to the Appeal Council showed 26 27 28 2 Osteitis condensans ilii means a symmetric benign osteosclerosis (bone hardening) of the portion of the iliac bones adjacent to the sacroliliac joints. Stedman s Medical Dictionary osteitis, osteosclerosis (27th ed. 2000). 6 1 and the same small calcification, described as a possible kidney stone. [AR 380]. The ALJ remarked that 2 Dr. Kim frequently noted a functional status of no physical disability [AR 29, 277, 280, 283], and that 3 plaintiff s treatment reports document normal musculoskeletal findings. [AR 29, 284, 275]. That evidence 4 supported the ALJ s conclusion that plaintiff exhibited minimal pathology and minimal objective 5 abnormality on exam. [AR 29]. 6 The ALJ remarked that plaintiff reported using non-narcotic medication to relieve her back pain, 7 such as ibuprofen and naproxen [AR 29, 15], and that her reported use of stronger medication on occasion 8 was not linked to any clinical pathology or even to a sustained exacerbation of subjective symptoms. [AR 9 15, 29]. The ALJ also observed that plaintiff used a cane during the administrative hearing. [AR 29]. She 10 testified that they gave it to me in the General Hospital, and that she felt more secure, more sure with 11 it. [AR 72]. The ALJ noted that plaintiff s treatment reports did not confirm the existence of any trauma 12 requiring use of a cane or any current prescription for one, and she justifiably concluded that plaintiff s use 13 of a cane did not warrant a more limited RFC. [AR 29]. See SSR 96-9p, 1996 WL 374185, at *7 ( To find 14 that a hand-held assistive device is medically required, there must be medical documentation establishing 15 the need for a hand-held assistive device to aid in walking or standing, and describing the circumstances for 16 which it is needed (i.e., whether all the time, periodically, or only in certain situations; distance and terrain; 17 and any other relevant information). ); Verduzco, 188 F.3d at 1088 (holding that the ALJ reasonably found 18 the claimant s testimony to be unbelievable in general where the claimant, among other things, used a 19 cane at the hearing, and none of [his] doctors had ever indicated that he used or needed to use an assistive 20 device in order to walk ). 21 The ALJ s RFC finding was supported by the opinion of Dr. Beig, a nonexamining state agency 22 physician who reviewed treatment records dated May 2008 through May 2009 from Queens Care Family 23 Clinic, as well as May 2009 records from Kaiser Permanente. [AR 242-248]. Plaintiff argues that Dr. Beig s 24 opinion that plaintiff could perform medium work was based on an incomplete record because he had not 25 seen a disability report in which plaintiff reported visits in July 2009 to the USC Medical Center Emergency 26 Department and to another clinic for low back pain where she had been prescribed Vicodin, acetaminophen, 27 and a muscle relaxant. [JS 5-6 (citing AR 165-169) (plaintiff s disability report)]. 28 That argument lacks merit. Even if plaintiff had an exacerbation in low back symptoms in July 7 1 2009, Dr. Beig s report is uncontroverted and is consistent with the objective medical evidence as a whole. 2 Treating physician Dr. Kim indicated that plaintiff had no significant musculoskeletal impairments. Dr. 3 Beig acknowledged that plaintiff had some back pain, but concluded that the objective findings did not 4 support a more restrictive RFC. That opinion is substantial evidence supporting the ALJ s decision. See 5 Thomas, 278 F.3d at 957 ( The opinions of non-treating or non- examining physicians may also serve as 6 substantial evidence when the opinions are consistent with independent clinical findings or other evidence 7 in the record. ). 8 Additional evidence submitted to the Appeals Council 9 Plaintiff argues that additional evidence she submitted to the Appeals Council in support of her 10 unsuccessful request for review was new and material and warranted a remand. [JS 29-34]. 11 The additional evidence consisted of records from USC Medical Center for the period April 10, 2009 12 through November 16, 2010. [AR 359-385]. Those records show that on April 10, 2009, plaintiff presented 13 to the emergency department complaining of a one-week history of low back pain. [AR 372]. Plaintiff had 14 a positive straight leg raising test on the right.3 Muscle strength in the right lower extremity was slightly 15 diminished (4 on a scale of 0 through 5, with 5 being normal). Plaintiff had decreased sensation in the right 16 thigh. [AR 374]. Plaintiff refused a recommended lumbar spine MRI because she was afraid of the 17 procedure, despite being offered medication to allow her to tolerate it. [AR 375]. The diagnosis was 18 back pain, partially evaluated. [AR 375]. 19 In November 2010, plaintiff was evaluated for anemia. [AR 364-370]. Her diagnoses were anemia, 20 probably secondary to a history of menorrhagia (excessive menses); a history of fibroids; and diabetes 21 mellitus. [AR 368]. She was prescribed Tylenol and discharged in stable condition. [AR 369-370]. A 22 physician s assistant referred plaintiff to see a social worker because plaintiff was homeless. [AR 359- 23 364].The social worker noted that plaintiff is not homeless, but rather lived with her daughter in 24 Bakersfield or with her two sons in Los Angeles. [AR 362]. 25 activities of daily living without assistance. [AR 360]. On mental status examination, plaintiff was noted Plaintiff was assessed as able to perform 26 27 28 3 A positive straight leg raising test is indicative of pain produced in the sciatic nerve distribution of the opposite leg. Dan J. Tennenhouse, M.D., J.D., F.C.L.M., Attorneys Medical Deskbook 3d § 11:2 (2004). 8 1 to be sad and tearful with a depressed mood due to financial problems and the deaths of a friend and her 2 sister. Plaintiff had a bottle of Zoloft with her containing what remained of a 90-day supply prescribed in 3 July 2010. The bottle was more than half full. Plaintiff told the social worker that she did not take Zoloft 4 daily as prescribed because I only take it when I feel depressed, and it made her sleepy. [AR 362]. 5 Plaintiff was educated about available resources, including social security. [AR 361-363]. 6 A party seeking a remand for consideration of additional evidence under 42 U.S.C. § 405(g) must 7 demonstrate that (1) the evidence is material, and (2) there was good cause for the failure to incorporate the 8 evidence into the record during the prior proceeding. 42 U.S.C. § 405(g); Bruton v. Massanari, 268 F.3d 9 824, 827 (9th Cir. 2001); Mayes v. Massanari, 262 F.3d 963, 970 (9th Cir. 2001). However, the new and 10 material evidence standard in section 405(g) applies only to new evidence that is not part of the 11 administrative record and is presented in the first instance to the district court. Brewes v. Comm r of 12 Social Sec. Admin., 682 F.3d 1157, 1164 (9th Cir. 2012) . New and material evidence that is submitted 13 to and considered by the Appeals Council is not new but rather is part of the administrative record properly 14 before the district court. Brewes, 682 F.3d at 1164; see Tackett v. Apfel, 180 F.3d1094, 1097-1098 (9th 15 Cir. 1999); Ramirez v. Shalala, 8 F.3d 1449, 1452 (9th Cir. 1993). 16 The additional evidence from USC Medical Center was submitted to, and considered by, the Appeals 17 Council, and therefore it is part of the administrative record for purposes of determin[ing] whether, in light 18 of the record as a whole, the ALJ s decision was supported by substantial evidence. Brewes, 682 F.3d at 19 1163. The additional evidence from April 2009 related to the period before the ALJ s September 22, 2010 20 decision, and therefore that evidence is material to the ALJ s decision. See Brewes, 682 F.3d at 1162 ( The 21 Commissioner's regulations permit claimants to submit new and material evidence to the Appeals Council 22 and require the Council to consider that evidence in determining whether to review the ALJ's decision, so 23 long as the evidence relates to the period on or before the ALJ's decision. ) (citing 20 C.F.R. § 404.970(b)). 24 The April 2009 evidence, which contained a diagnosis of back pain with minimal abnormal findings, was 25 consistent with the evidence before the ALJ. Accordingly, it does not alter the conclusion that the ALJ s 26 decision was supported by substantial evidence in the record as a whole. 27 The additional evidence from November 2010 post-dated the ALJ s decision. Nothing in that 28 evidence suggests that it was, or was intended to be, a retrospective assessment of plaintiff s condition prior 9 1 to the date of the ALJ s decision. There also is no reason to conclude that those reports would have changed 2 the ALJ s decision even if they had been before her. Plaintiff s diagnosis of anemia was insufficient to 3 establish the existence of a severe, medically determinable impairment. The social worker s assessment that 4 plaintiff was depressed due to situational factors was not evidence from an acceptable medical source and 5 did not indicate that plaintiff s condition more than minimally affected her ability to work, particularly in 6 view of plaintiff s statement indicating that she only sporadically felt depressed. Therefore, that evidence 7 does not provide a basis for reversing the ALJ s decision. Cf. Warner v. Astrue, 859 F.Supp.2d 1107, 1117 8 (C.D. Cal. 2012) (remanding where there is a substantial likelihood the ALJ s consideration of the 9 additional evidence submitted to the Appeals Council will materially alter the ALJ s disability analysis ). 10 ALJ s failure to order a consultative psychiatric examination 11 Plaintiff argues that the ALJ abused her discretion in denying plaintiff s counsel s request for a 12 consultative psychiatric examination. 13 In general, the Commissioner has broad latitude in ordering a consultative examination. The 14 government is not required to bear the expense of an examination for every claimant. Reed v. Massanari, 15 270 F.3d 838, 842 (9th Cir. 2001) (citation omitted). A consultative examination may be purchased when 16 the evidence as a whole is not sufficient to support a disability determination. 20 C.F.R. §§ 404.1519a, 17 416.919a; Reed, 270 F.3d at 842. Cases that normally require a consultative examination include those 18 in which evidence not contained in the claimant s medical records is needed, and those in which a conflict, 19 inconsistency, ambiguity or insufficiency in the evidence must be resolved, and resolution cannot be 20 achieved by recontacting the claimant s medical source. Reed, 270 F.3d at 842 (citing 20 C.F.R. §§ 21 404.1519a(b), 416.919a(b)); see also Mayes, 276 F.3d at 459-460 (stating that the ALJ's duty to develop 22 the record further is triggered only when there is ambiguous evidence or when the record is inadequate to 23 allow for proper evaluation of the evidence, and rejecting the argument that the ALJ breached his duty to 24 develop the record as an impermissible attempt to shift the burden of proving disability away from the 25 claimant). 26 The ALJ did not abuse her discretion in refusing to order a consultative psychiatric examination 27 because the evidence before her, and in the record as a whole, is sufficient to support her finding that 28 plaintiff did not have a severe mental impairment. The evidence before the ALJ was not materially 10 1 inconsistent or ambiguous, and the additional evidence plaintiff submitted to the Appeals Council does not 2 alter the conclusion that a consultative examination was not required. 3 Credibility finding 4 Plaintiff argues that the ALJ did not properly weigh plaintiff s testimony or make proper credibility 5 findings. [JS 21-27]. 6 If the record contains objective evidence of an underlying physical or mental impairment that is 7 reasonably likely to be the source of a claimant s subjective symptoms, the ALJ is required to evaluate all 8 subjective testimony as to the severity of the symptoms. Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 9 2004); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en banc); see also 20 C.F.R. §§ 404.1529(a), 10 416.929(a) (explaining how pain and other symptoms are evaluated). For the reasons described above, the 11 ALJ permissibly found that plaintiff had a severe, medically determinable lumbar spine impairment, but 12 that she did not have any other medically determinable physical or mental impairment. Therefore, the ALJ 13 was not required to consider, or give reasons for rejecting, plaintiff s subjective complaints about her 14 alleged impairments other than her back impairment. 15 Absent affirmative evidence of malingering, the ALJ must provide specific, clear and convincing 16 reasons for rejecting a claimant s subjective complaints. Vasquez v. Astrue, 547 F.3d 1101, 1105 (9th Cir. 17 2008); Carmickle v. Comm r, Soc. Sec. Admin., 533 F.3d 1155, 1160-1161 (9th Cir. 2008); Moisa, 367 18 F.3d at 885. In reaching a credibility determination, an ALJ may weigh inconsistencies between the 19 claimant's testimony and his or her conduct, daily activities, and work record, among other factors. Bray 20 v. Comm r of Social Sec. Admin., 554 F.3d 1219, 1221, 1227 (9th Cir. 2009); Light v. Soc. Sec. Admin., 21 119 F.3d 789, 792 (9th Cir.1997). The ALJ's credibility findings must be sufficiently specific to allow a 22 reviewing court to conclude the ALJ rejected the claimant's testimony on permissible grounds and did not 23 arbitrarily discredit the claimant's testimony. Moisa, 367 F.3d at 885. If the ALJ's interpretation of the 24 claimant's testimony is reasonable and is supported by substantial evidence, it is not the court's role to 25 second-guess it. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). 26 Plaintiff s credibility argument is largely cumulative of her argument that the ALJ erred in assessing 27 her RFC. As explained above, the ALJ properly discredited plaintiff s complaints of back pain in view of 28 plaintiff s reliance primarily on non-narcotic, over-the-counter pain medication. See Parra v. Astrue, 481 11 1 F.3d 742, 750-751 (9th Cir. 2007) (holding that evidence of conservative treatment, such as use of over- 2 the-counter pain medication, is sufficient to discount a claimant s testimony regarding severity of an 3 impairment ) (citing Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995) (holding that the ALJ validly 4 concluded that conservative treatment suggested a lower level of both pain and functional limitation 5 than the claimant alleged)). The absence of objective medical evidence corroborating plaintiff s subjective 6 allegations was another factor that the ALJ was allowed to consider. See Burch, 400 F.3d at 681 ( Although 7 lack of medical evidence cannot form the sole basis for discounting pain testimony, it is a factor that the 8 ALJ can consider in h[er] credibility analysis. ). Plaintiff s testimony that she had been prescribed or given 9 a cane by her doctors was inconsistent with the medical evidence, which did not document a prescription 10 for a cane or an impairment suggesting that its use was medically necessary. See Verduzco,188 F.3d at 11 1088. The additional evidence submitted to the Appeals Council did not undermine the ALJ s credibility 12 analysis. The reasons articulated by the ALJ for her credibility finding are specific, clear, and convincing. 13 Vocational expert s testimony 14 Plaintiff argues that the vocational expert s testimony was based on a hypothetical question that did 15 not accurately reflect plaintiff s limitations, and therefore the vocational expert s testimony is not substantial 16 evidence supporting the ALJ s decision. [JS 27-29]. 17 The vocational expert testified that plaintiff had past relevant work as home health aide and as an 18 industrial cleaner. [AR 76]. He classified both of those jobs as medium, unskilled work. In response to a 19 hypothetical question by the ALJ, the vocational expert testified that a hypothetical person with plaintiff s 20 vocational profile who could perform medium work and only occasionally climb ladders and stoop could 21 perform plaintiff s past work. [AR 76-77]. 22 The ALJ's job at the fifth step in the sequential evaluation procedure is to pose hypothetical 23 questions that set out all of the claimant s impairments for the consideration of the vocational expert, who 24 then translates these factual scenarios into realistic job market probabilities . . . . Tackett, 180 F.3d at 25 1101. Hypothetical questions posed to the vocational expert must accurately describe all of the limitations 26 and restrictions of the claimant that are supported by substantial evidence in the record. Robbins, 466 F.3d 27 at 886; Tackett, 180 F.3d at 1101. The ALJ is free to accept or reject restrictions in a hypothetical question 28 that are not supported by substantial evidence. Greger v. Barnhart, 464 F.3d 968, 973 (9th Cir. 12 1 2006)(quoting Osenbrock v. Apfel, 240 F.3d 1157, 1164-65 (9th Cir. 2001)). 2 The limitations in the ALJ s hypothetical question, which were incorporated into her RFC finding, 3 accurately describe plaintiff s limitations that are supported by substantial evidence in the record. The 4 vocational expert s testimony in response to that question is substantial evidence supporting the ALJ s 5 finding that plaintiff can perform her past relevant work. 6 7 Conclusion The Commissioner's decision is supported by substantial evidence and is free of legal error. 8 Accordingly, the Commissioner's decision is affirmed. 9 IT IS SO ORDERED. 10 11 12 October 31, 2012 _________________________ ANDREW J. WISTRICH United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13
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