Natividad S Apodaca v. Michael J Astrue, No. 2:2011cv10111 - Document 16 (C.D. Cal. 2012)

Court Description: MEMORANDUM OPINION AND ORDER AFFIRMING THE COMMISSIONER by Magistrate Judge Jean P Rosenbluth: (See document for details.) Consistent with the foregoing, and pursuant to sentence four of 42 U.S.C. 405(g),7 IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner and dismissing this action with prejudice. IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment on counsel for both parties. (rla)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 NATIVIDAD S. APODACA, 10 Plaintiff, 11 vs. 12 13 MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 14 Defendant. 15 ) Case No. CV 11-10111-JPR ) ) ) MEMORANDUM OPINION AND ORDER ) AFFIRMING THE COMMISSIONER ) ) ) ) ) ) ) 16 17 I. PROCEEDINGS 18 Plaintiff seeks review of the Commissioner s final decision 19 denying her application for Social Security disability insurance 20 benefits ( DIB ). The parties consented to the jurisdiction of 21 the undersigned U.S. Magistrate Judge pursuant to 28 U.S.C. 22 § 636(c). This matter is before the Court on the parties Joint 23 Stipulation, filed August 23, 2012, which the Court has taken 24 under submission without oral argument. For the reasons stated 25 below, the Commissioner s decision is affirmed and this action is 26 dismissed. 27 II. BACKGROUND 28 Plaintiff was born on February 3, 1968. 1 (Administrative 1 Record ( AR ) 82.) 2 359.) She has an 11th-grade education. (AR 87, From 1999-2001, Plaintiff worked as a crossing guard; from 3 1999-2003 and 2005-07 she worked for various employers as a cook 4 helper; from 2004-07 she worked as a babysitter; and from 2007-08 5 she worked for EZ Lube as a store laborer, performing different 6 functions. (AR 98, 361-62, 375-76, 380.) On November 30, 2007, 7 Plaintiff injured her spine and neck after slipping and falling 8 at work, though she apparently continued to work for some time 9 afterward. (AR 65 (worker s compensation compromise and release 10 form, noting November 30, 2007, as disability start date), 82 11 (noting alleged onset date of November 30, 2007), 361 12 (explaining that Plaintiff tried to work for a couple of months 13 after injury).)1 14 On April 26, 2010, Plaintiff filed a DIB application, 15 alleging that she had been unable to work since November 30, 16 2007, because of neck and back injuries, knee pain, a head 17 injury, and shoulder pain. (AR 82-86.) After Plaintiff s 18 application was denied, she requested a hearing before an 19 Administrative Law Judge ( ALJ ). (AR 35.) A hearing was held 20 on March 17, 2011, at which Plaintiff appeared and testified on 21 her own behalf. (AR 353-94.) Plaintiff s boyfriend, Christopher 22 Villasenor, and Vocational Expert ( VE ) Freeman Leeth also 23 testified. (AR 374-94.) In a written decision issued on March 24 25, 2011, the ALJ determined that Plaintiff was not disabled. 25 26 1 At the hearing, Plaintiff claimed that she was injured on 27 July 31, 2007. (AR 359.) The evidence in the record, however, indicates that she was injured on November 30, 2007. (See AR 65, 28 82.) 2 1 (AR 17-28.) On October 6, 2011, the Appeals Council denied 2 Plaintiff s request for review. (AR 7-9.) This action followed. 3 III. STANDARD OF REVIEW 4 Pursuant to 42 U.S.C. § 405(g), a district court may review 5 the Commissioner s decision to deny benefits. The ALJ s findings 6 and decision should be upheld if they are free from legal error 7 and are supported by substantial evidence based on the record as 8 a whole. § 405(g); Richardson v. Perales, 402 U.S. 389, 401, 91 9 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971); Parra v. Astrue, 481 10 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means such 11 evidence as a reasonable person might accept as adequate to 12 support a conclusion. Richardson, 402 U.S. at 401; Lingenfelter 13 v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 14 a scintilla but less than a preponderance. It is more than Lingenfelter, 504 15 F.3d at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 16 882 (9th Cir. 2006)). To determine whether substantial evidence 17 supports a finding, the reviewing court must review the 18 administrative record as a whole, weighing both the evidence that 19 supports and the evidence that detracts from the Commissioner s 20 conclusion. 21 1996). Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. If the evidence can reasonably support either affirming 22 or reversing, the reviewing court may not substitute its 23 judgment for that of the Commissioner. Id. at 720-21. 24 IV. THE EVALUATION OF DISABILITY 25 People are disabled for purposes of receiving Social 26 Security benefits if they are unable to engage in any substantial 27 gainful activity owing to a physical or mental impairment that is 28 expected to result in death or which has lasted, or is expected 3 1 to last, for a continuous period of at least 12 months. 42 2 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 3 (9th Cir. 1992). 4 A. 5 The ALJ follows a five-step sequential evaluation process in The Five-Step Evaluation Process 6 assessing whether a claimant is disabled. 20 C.F.R. 7 § 404.1520(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th 8 Cir. 1995) (as amended Apr. 9, 1996). In the first step, the 9 Commissioner must determine whether the claimant is currently 10 engaged in substantial gainful activity; if so, the claimant is 11 not disabled and the claim is denied. § 404.1520(a)(4)(i). If 12 the claimant is not engaged in substantial gainful activity, the 13 second step requires the Commissioner to determine whether the 14 claimant has a severe impairment or combination of impairments 15 significantly limiting her ability to do basic work activities; 16 if not, a finding of not disabled is made and the claim is 17 denied. § 404.1520(a)(4)(ii). If the claimant has a severe 18 impairment or combination of impairments, the third step requires 19 the Commissioner to determine whether the impairment or 20 combination of impairments meets or equals an impairment in the 21 Listing of Impairments ( Listing ) set forth at 20 C.F.R. Part 22 404, Subpart P, Appendix 1; if so, disability is established and 23 benefits are awarded. § 404.1520(a)(4)(iii). If the claimant s 24 impairment or combination of impairments does not meet or equal 25 an impairment in the Listing, the fourth step requires the 26 Commissioner to determine whether the claimant has sufficient 27 28 4 1 residual functional capacity ( RFC )2 to perform her past work; 2 if so, the claimant is not disabled and the claim must be denied. 3 § 404.1520(a)(4)(iv). The claimant has the burden of proving 4 that she is unable to perform past relevant work. 5 F.2d at 1257. Drouin, 966 If the claimant meets that burden, a prima facie 6 case of disability is established. Id. If that happens or if 7 the claimant has no past relevant work, the Commissioner then 8 bears the burden of establishing that the claimant is not 9 disabled because she can perform other substantial gainful work 10 in the economy. § 404.1520(a)(4)(v). That determination 11 comprises the fifth and final step in the sequential analysis. 12 Id.; Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257. 13 B. 14 At step one, the ALJ found that Plaintiff had not engaged in The ALJ s Application of the Five-Step Process 15 any substantial gainful activity since April 1, 2008.3 (AR 22.) 16 At step two, the ALJ concluded that Plaintiff had the severe 17 impairments of lower back and neck pain secondary to degenerative 18 disc disease and obesity. (Id.) At step three, the ALJ 19 2 RFC is what a claimant 20 exertional and nonexertional can still do despite existing limitations. 20 C.F.R. § 404.1545; 21 see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 22 23 24 25 26 27 28 3 The ALJ s decision states that Plaintiff s alleged disability onset date was April 1, 2008. (AR 20.) It is unclear why the ALJ chose that date, as her alleged onset date appears to have been November 30, 2007. (AR 82; see also AR 359 (ALJ stating that he [doesn t] know where [April 1, 2008] date came from ).) Plaintiff does not argue, however, that the ALJ s determination of the alleged onset date was error. (See J. Stip. at 2 (noting that ALJ determined alleged onset date to be April 1, 2008, but not alleging that date was error).) Thus, the Court will not address that issue. See Greger v. Barnhart, 464 F.3d 968, 973 (9th Cir. 2006) (issues not raised before the district court are waived). 5 1 determined that Plaintiff s impairments did not meet or equal any 2 of the impairments in the Listing. (Id.) At step four, the ALJ 3 found that Plaintiff retained the RFC to perform a range of 4 medium work4 with the additional limitations that Plaintiff 5 can perform work that does not require climbing ladders, 6 ropes 7 occasional 8 precluded from performing overhead work, and can posture 9 her neck in a static position for no more than 10 minutes 10 (i.e., without an opportunity to otherwise flex, extend 11 or rotate her neck while remaining on task). 12 (AR 22-23.) or scaffolds, or crawling; stooping or crouching. and no more than [Plaintiff] is Based on the VE s testimony, the ALJ concluded that 13 Plaintiff was able to perform her past work as a child monitor. 14 (AR 26.) In the alternative, the ALJ found that Plaintiff could 15 also perform the jobs of parking-lot booth attendant, security 16 guard, labeler/ticketer, sorter, stuffer, and assembler. 17 27.) (AR 26- The ALJ concluded that jobs existed in significant numbers 18 in the national economy that Plaintiff could perform. (AR 27.) 19 Accordingly, the ALJ determined that Plaintiff was not disabled. 20 (AR 27-28.) 21 V. DISCUSSION 22 Plaintiff alleges that the ALJ erred in (1) determining that 23 she could perform jobs that may involve overhead reaching and (2) 24 25 26 27 28 4 Medium work is defined as involving lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. 20 C.F.R. § 404.1567(c). The regulations further specify that [i]f someone can do medium work, we determine that he or she can also do sedentary and light work, as defined in § 404.1567(a)-(b). Id. 6 1 failing to properly consider Plaintiff s testimony regarding her 2 subjective symptoms. 3 A. (J. Stip at 4.) The ALJ Did Not Err in Failing to Inquire Further About 4 a Potential Conflict Between the Dictionary of 5 Occupational Titles and the VE s Testimony Because No 6 Conflict Existed 7 Plaintiff contends that the ALJ erred in determining she 8 could perform the jobs the VE identified because he did not first 9 inquire about a potential conflict between her testimony and the 10 Dictionary of Occupational Titles ( DOT ). (J. Stip. at 5-12.) 11 Plaintiff asserts that an unresolved conflict existed because the 12 jobs the VE testified Plaintiff could perform are all described 13 in the DOT as requiring a level of reaching ranging from 14 occasional to constant and may include overhead reaching, 15 whereas the ALJ found that Plaintiff was precluded from 16 performing overhead work. (J. Stip. at 5-12.) As explained 17 below, Plaintiff misapprehends the phrase overhead work. 18 Because the ALJ did not find that Plaintiff s ability to reach 19 was impaired, no conflict existed between the VE s testimony and 20 the DOT. 21 22 1. Applicable law An ALJ must ask a hypothetical question to a VE that is 23 based on medical assumptions supported by substantial evidence in 24 the record and that reflects all of the plaintiff s limitations. 25 Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 1995). When a VE 26 provides evidence about the requirements of a job, the ALJ has a 27 responsibility to ask about any possible conflict between that 28 evidence and the DOT. See SSR 00-4p, 2000 WL 1898704, at *4; 7 1 Massachi v. Astrue, 486 F.3d 1149, 1152-54 (9th Cir. 2007) 2 (holding that application of SSR 00-4p is mandatory). An ALJ s 3 failure to do so is procedural error, although the error is 4 harmless if no actual conflict existed or the VE provided 5 sufficient evidence to support the conclusion. 6 Id. at 1154 n.19. The Court must consider the ALJ s decision in the context of 7 the entire record as a whole ; if the evidence is susceptible 8 to more than one rational interpretation, the ALJ s decision 9 should be upheld. Ryan v. Comm r of Soc. Sec., 528 F.3d 1194, 10 1198 (9th Cir. 2008) (internal quotation marks omitted). 11 12 2. Relevant facts During the hearing, the ALJ posed the following hypothetical 13 to the VE: 14 For the first hypothetical, assume a person of the 15 claimant s age, education, work experience, and skill 16 set; who is able to perform light work as defined in the 17 regulations, including exerting up to 20 pounds of force 18 occasionally, and/or up to 10 pounds of force frequently, 19 and/or a negligible amount of force constantly, to move 20 objects. 21 to six hours in an eight-hour workday with normal breaks. 22 This person would perform work that did not require the 23 climbing of ladders, ropes, and scaffolds; not require 24 crawling; 25 crouching. . . . This person would be precluded from 26 performing overhead work. 27 would perform work that did not require the static 28 posturing of the neck, in other words, keeping the neck This person can stand, and walk, and/or sit up and no more than occasional stooping or Additionally, this person 8 1 and head in a static, steadfast position, for more than 2 10 minutes at a time. 3 (AR 381-82 (emphasis added).) The VE responded that Plaintiff 4 could perform the jobs of parking lot booth attendant, 5 unarmed, unskilled security guard positions, and some labeler 6 or . . . ticketer positions. (AR 382-83.) 7 The ALJ then posed a second hypothetical: 8 For the second hypothetical, assume everything in the 9 first hypothetical, except this person would be limited 10 to the performance of sedentary work as defined in the 11 regulations, including exerting up to 10 pounds of force 12 occasionally 13 frequently to move objects, including the human body. In 14 addition, this person would perform work that did not 15 require more than two hours of standing and walking in an 16 eight-hour workday with normal breaks. 17 (AR 383.) and/or a negligible amount of force The VE responded that, based on the limitation to 18 sedentary work and the limitation to two hours . . . of standing 19 and walking and the static of the neck, Plaintiff could not 20 perform any work. (Id.) The ALJ later clarified with respect to 21 that hypothetical that the neck movement restriction meant that 22 the person cannot . . . keep their head in one position, for 23 more than 10 minutes, but within 10 minutes, or after 10 24 minutes, the person can rotate their neck, flex, or extend their 25 neck[,] and go back to what they were doing without having to 26 get up or leave the workstation. (AR 386-89.) The VE then found 27 that Plaintiff could perform the sedentary jobs of sorter, 28 stuffer, and assembler. (AR 389-90.) 9 1 The ALJ also posed a third hypothetical: 2 [F]or the third hypothetical, assume everything in the 3 first hypothetical, except we re at the medium exertion 4 level . . . which is, an individual who can exert up to 5 20 to 50 pounds of force occasionally, and/or 10 to 20 6 pounds 7 negligible, up to 10 pounds of force, constantly, to move 8 objects. 9 same, including standing and walking up to six hours in 10 of force frequently, and/or greater than All of the other criteria would remain the an eight-hour workday with normal breaks. 11 (AR 384.) Based on that hypothetical, the VE found that 12 Plaintiff could perform her past relevant work as a babysitter . 13 . . both as generally and actually performed. 14 (AR 384-85.) At the close of the VE s testimony, the ALJ asked him 15 whether any of his testimony conflict[ed] with or diverge[d] 16 from the information in the Dictionary of Occupational Titles. 17 (AR 392.) The VE answered that it did not. (Id.) In his 18 written opinion, the ALJ found that [p]ursuant to SSR 00-4p, the 19 vocational expert s testimony is consistent with the information 20 contained in the Dictionary of Occupational Titles. 21 22 3. (AR 27.) Analysis Based on the VE s testimony, the ALJ found that Plaintiff 23 could perform the jobs of child monitor, parking-lot booth 24 attendant, security guard, labeler/ticketer, sorter, stuffer, and 25 assembler. (AR 26-27.) The DOT states that the child monitor 26 position requires reaching Occasionally - Exists up to 1/3 of 27 the time. DOT 301.677-010, 1991 WL 672652. The jobs of 28 parking-lot attendant, security guard, stuffer, and assembler all 10 1 require reaching Frequently - Exists from 1/3 to 2/3 of the 2 time. DOT 915.473-010, 1991 WL 687865 (parking-lot attendant); 3 DOT 372.667-034, 1991 WL 673100 (security guard); DOT 731.6854 014, 1991 WL 679811 (stuffer); DOT 713.687-018, 1991 WL 679271 5 (assembler). The jobs of labeler/ticketer and sorter require 6 reaching Constantly - Exists 2/3 or more of the time. DOT 7 229.587-018, 1991 WL 672150 (labeler/ticketer); DOT 734.687-082, 8 1991 WL 679966 (sorter). Reaching is defined as extending the 9 hands and arms in any direction. 10 *7 (emphasis added). SSR 85-15, 1985 WL 56857, at Plaintiff argues that the reaching 11 requirements of all the aforementioned jobs conflict with the 12 ALJ s finding that she was precluded from performing overhead 13 work, because reaching involves reaching in any direction, 14 including overhead. 15 (J. Stip. at 5-12.) Plaintiff s argument fails because the ALJ did not preclude 16 Plaintiff from performing overhead reaching instead, he 17 precluded her from performing overhead work. Viewed in the 18 context of the evidence as a whole, see Ryan, 528 F.3d at 1198, 19 the ALJ most reasonably intended to preclude Plaintiff from doing 20 jobs that require nearly constant upward gazing and extension of 21 the neck to perform work above the head, such as a tree trimmer 22 or window washer. 23 This interpretation is consistent with the medical evidence, 24 which showed that Plaintiff had a neck injury and pain when fully 25 extending the neck (see, e.g., AR 212; 236-43; 244-51; 253; 25426 57; 268-70; 321), but did not show that she could never reach 27 overhead. (See AR 212 (noting that [the] range of motion of 28 [Plaintiff s] head at the neck is limited due to pain at the 11 1 extremes of movement especially when looking up and down or with 2 moving side to side ); AR 341, 344 (noting that Plaintiff s RFC 3 restricted her to limited overhead lifting and that she could 4 do some overhead reaching).) It is also consistent with 5 Plaintiff s statement to her doctor that when EZ Lube placed her 6 in a job that involved a great deal of window washing she could 7 not work because of the steady looking up and reaching up on 8 high windows. 9 (AR 289.) The interpretation of work to mean jobs rather than 10 reaching also comports with principles of word use and grammar. 11 In the sentence immediately following his use of the phrase 12 overhead work, the ALJ listed a number of movements that 13 Plaintiff could never perform. Had he intended to say that 14 Plaintiff could perform no reaching, he more likely would have 15 simply inserted the word reaching into that list. Indeed, the 16 undersigned has read dozens of Social Security decisions, and 17 ALJs regularly prescribe limitations of various kinds on 18 reaching or overhead reaching. See, e.g., Hill v. Astrue, 19 688 F.3d 1144, 1148 (9th Cir. 2012) (noting that ALJ s RFC placed 20 limit on overhead reach[ing] ); Mondragon v. Astrue, 364 F. 21 App x 346, 348 (9th Cir. 2010) (same). The use of the phrase 22 overhead work was surely intended to mean something else. In 23 many places in the Social Security regulations, the Commissioner 24 himself has used work to mean job or jobs. See, e.g., 20 25 C.F.R. § 404.1520(f) (using past relevant work to mean prior 26 job); Petsch v. Astrue, No. 11 CV 00925(F), 2012 WL 3313553, at 27 *8 n. 6 (W.D.N.Y. July 19) (noting that § 404.1567(c) defines 28 medium work as jobs that require certain functions), accepted 12 1 by 2012 WL 3314821 (W.D.N.Y. Aug. 13, 2012). Finally, the Court 2 doubts that any dictionary lists reaching as a synonym for 3 work, but many define the latter word as meaning job. See, 4 e.g., Work Definition, The Free Dictionary, 5 http://www.thefreedictionary.com/work (last visited Sept. 24, 6 2012) (defining work (n.) as [a] job; employment ). 7 According to the DOT descriptions, none of the jobs the ALJ 8 found that Plaintiff could perform appear to involve doing work 9 above the head. Thus, interpreting the ALJ s findings in the 10 manner most consistent with the medical evidence and other 11 principles of construction, no conflict existed between the VE s 12 testimony and the DOT and the ALJ was not required to inquire any 13 further. Reversal is therefore not warranted on this basis. 14 The ALJ Did Not Improperly Discount Plaintiff s B. 15 16 Subjective Symptom Testimony Plaintiff next argues that the ALJ improperly assessed her 17 subjective symptom testimony in evaluating her RFC. 18 at 18.) (J. Stip. According to Plaintiff, her testimony alleging she was 19 incapable of performing all but the most basic of activities was 20 consistent with the medical evidence and thus the ALJ should not 21 have discounted it. (Id. at 18-25.) Reversal is not warranted 22 on this basis, however, because the ALJ made specific findings as 23 to Plaintiff s credibility that were consistent with the medical 24 evidence of record. 25 26 1. Applicable law An ALJ s assessment of pain severity and claimant 27 credibility is entitled to great weight. See Weetman v. 28 Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. Heckler, 779 13 1 F.2d 528, 531 (9th Cir. 1986). When the ALJ finds a claimant s 2 subjective complaints not credible, the ALJ must make specific 3 findings that support the conclusion. 4 F.3d 1228, 1234 (9th Cir. 2010). See Berry v. Astrue, 622 Absent affirmative evidence of 5 malingering, the ALJ must give clear and convincing reasons for 6 rejecting the claimant s testimony. Lester, 81 F.3d at 834. If 7 the ALJ s credibility finding is supported by substantial 8 evidence in the record, the reviewing court may not engage in 9 second-guessing. Thomas v. Barnhart, 278 F.3d 947, 959 (9th 10 Cir. 2002). 11 12 2. Relevant facts In August 2010, Plaintiff filled out a Function Report 13 describing her subjective symptoms. (AR 107-15.) In it she 14 alleged that she needed to rest every 10 to 15 minutes because 15 her back and neck started to hurt (AR 107, 110, 112, 115); she 16 could not comb her hair, shave, dress herself, use the toilet, or 17 prepare food without help (AR 108-09); she could lift no more 18 than five pounds and will hurt after in her back and neck (AR 19 112); and she could not read or write for longer than five 20 minutes at a time because her back and neck would start to hurt 21 (AR 111-12, 115). But she also stated that she was able to 22 cook, clean, [and] take [her son] to school (AR 108); wash 23 dishes and do one or two loads of laundry every day (AR 109); 24 go out every day [to] sit at [the] park or try to walk half a 25 block before needing to rest (AR 110, 112); and do her own 26 grocery shopping (AR 110). Her hobbies included bike rid[ing], 27 cards, sight [seeing], and swim[ming] as well as going to 28 parks and church once a week when I feel OK, though she 14 1 can t ride [too] long or read longer [than] 5 min without 2 pain. (AR 111.) She stated that she took several prescription 3 pain medications but every pain med got me sick. 4 (AR 114.) At the hearing Plaintiff testified that she felt she could 5 not work because 6 I m constantly in pain when I m sitting down, when I m 7 standing up, when I m doing anything. 8 anything. 9 think right when I m in pain. I can t really do And then, I m constantly in pain. I can t And then, when I m taking 10 the pills, I m constantly like sleepy, sick, where I 11 can t, can t function right. 12 take the pills, because I ve got to constantly think, 13 right? 14 (AR 363.) When I m out, I can t even And do things. She further testified that she could take the 15 medication only at night because of the side effects. 16 64.) (AR 363- She stated that she had pain directly in the lower back 17 and around my neck, and when I m shopping, I can t even shop . 18 . . I can t stay too long in a store. (AR 364.) Plaintiff 19 stated that she used Vicodin for pain management and that she had 20 tried injections but [i]t gave me a side effect of bleeding so 21 she couldn t do that again. (AR 364-65.) She also stated that 22 she got headaches but that they were controlled with the same 23 pain medication she took for her neck and back. (AR 356.) She 24 testified that she did not want to have surgery for her 25 injuries because she knew other people who had had similar 26 surgeries and had not gotten better. (AR 366-67.) She stated 27 that her back pain was helped by doing exercises that stretched 28 her back. (AR 368-69.) She also testified that she was 15 1 constantly in pain in her neck just by sitting up, and that 2 the only time I feel good is [w]hen I m [lying] down. 3 369.) (AR She stated that during the day she tr[ies] to [lie] down 4 and get up, take walks, but exercising makes her pain worse. 5 (AR 370.) 6 Plaintiff described her daily activities as follows: 7 Wash a couple of dishes, make sure my son goes to 8 school, make a few phone calls here and there, do things 9 take care of the bills I need to take care of, call 10 around, try to do it through credit card[.] . . . 11 walks and stuff. I just take a walk down the street or 12 something. . . . Try to take walks. 13 indoors too much. 14 (AR 371.) I try not to stay She stated that she generally spends a few hours 15 each day out walking around. (Id.) She further stated that 16 she sometimes cooks for her son and does laundry. 17 Take (AR 372.) In his written decision the ALJ noted that he had considered 18 Plaintiff s hearing testimony as well as the testimony of her 19 boyfriend, Villasenor, and the third-party report submitted by 20 Plaintiff s friend Lucy Guegera.5 (AR 23; see AR 116-23 (third- 21 party report); AR 4-23 (Plaintiff s and Villasenor s hearing 22 testimony).) He then analyzed the objective medical evidence. 23 (AR 24-26.) 24 The ALJ first noted that records from Dr. Augusto Rodriguez 25 dated around the alleged onset date (they were dated March 24, 26 2008) showed that Plaintiff primarily complained of only neck 27 5 Plaintiff does not contest the ALJ s evaluation of (See J. Stip. at 18-25.) 28 Villasenor s and Guegera s testimony. 16 1 pain, and [c]linical findings in January 2008 revealed some 2 tenderness in the posterior cervical musculature, decreased range 3 of motion in the neck with extreme movement, and spasm. 4 212.) (AR 24, He further noted that despite Plaintiff s allegations of 5 significant neck pain, she received only conservative treatment 6 from Dr. Rodriguez, including prescription medication and 7 chiropractic therapy. (AR 24, 198, 203, 205.) He also noted 8 that MRIs of her cervical and lumbar spine revealed minimal 9 impairments, and her symptoms improved over time with treatment; 10 [b]y March 2008, [Plaintiff] had normal ranges of motion in the 11 head and neck. 12 (AR 24, 188, 198, 228-30.) The ALJ next analyzed the notes from Plaintiff s treating 13 physician, Dr. Daniel Capen. (AR 24, 232-99.) Specifically, he 14 observed the following: 15 Contrary to 16 gradual, but 17 symptoms, on initial evaluation in May 2008 with Dr. 18 Capen, 19 allegations of sharp, stabbing pain in the neck and back, 20 with associated numbness and weakness, amongst other 21 complaints. 22 were positive only for some tenderness and decreased 23 ranges of motion in the cervical and lumbar spine along 24 with some spasm in the cervical spine. 25 Straight-leg raising was negative bilaterally and the 26 claimant 27 Following this initial evaluation, Dr. Capen opined that 28 the claimant should not lift over 10 pounds. the Dr. Rodriguez s steady claimant improvement reported [(AR 291.)] demonstrated records in demonstrating the claimant s extensive subjective Clinical findings, however, normal 17 gait. [(AR 292.)] [(AR 292-93.)] While the 1 Administrative 2 extreme and not bolstered by any objective support, Dr. 3 Capen did indicate, however, that the claimant may 4 continue to work under such restriction. 5 Moreover, as described below, even if the claimant were 6 given 7 sedentary work, which complies with the 10 pound lifting 8 restriction, there are still significant numbers of 9 other work, which she may perform, per the vocational 10 the Law benefit Judge of finds the such doubt restriction and as [(AR 296.)] restricted to expert s testimony. 11 The bulk of Dr. Capen s treating notes indicate 12 similar clinical findings from his initial evaluation, 13 with no indication of worsening of symptoms. Consistent 14 with was 15 conservative treatment with Dr. Capen, including physical 16 therapy, medications for symptoms relief, and the use of 17 a cervical pillow. 18 claimant testifies that her medications cause drowsiness, 19 there 20 Capen s treatment notes. 21 and stationary report, Dr. Capen noted that the claimant 22 was not interested in any invasive treatment. 23 denied 24 claimant s 25 functional difficulties, denial of such treatment appears 26 inconsistent and suggests that the claimant s symptoms 27 may not be as intense as she has alleged. 28 only Dr. are Rodriguez s no pain such for the claimant [(AR 271, 254, 256.)] complaints [(AR allegations future documented under Although the within Dr. In the August 2009 permanent management. extreme advice care, 246.)] of medical 18 pain care She even Given and the related Dr. Capen s was further 1 evaluation of the claimant s complaints of TMJ pain, 2 which subsequent records and hearing testimony have not 3 highlighted as a continuing bothersome condition, and gym 4 and pool membership. [(AR 247.)] In terms of functional 5 limitations, Dr. Capen noted in the August 2009 report 6 that the claimant should be precluded from heavy work 7 activity, overhead activity, and static posturing. 8 249.)] 9 Following Dr. Capen s permanent and [(AR stationary 10 report, 11 treatment or evaluation for the claimant s neck and back 12 pain. 13 Dr. 14 findings or treatment protocol. the record is relatively silent on further Subsequent, and intermittent, re-evaluations by Capen revealed no notable changes in physical [(AR 233, 236.)] 15 (AR 24-25 (citation omitted).) 16 The ALJ then noted that in August 2009, Plaintiff underwent 17 a DMV physical that showed no acute distress, during which she 18 made no complaints of any musculoskeletal pain, and 19 examination of the neck was normal as was her gait. 20 159.) (AR 25, He also noted that in October 2010, Plaintiff underwent a 21 consultative internal medicine evaluation that showed she was in 22 no acute distress, demonstrated normal gait with full back 23 range of motion without pain, and was able to get on and off 24 the examination table without any difficulty and exhibited 25 negative straight-leg raising. (AR 25, 320-21.) He further 26 observed that [a]lthough there was some pain on full extension 27 of the neck, overall, she had normal cervical range of motion, 28 and [e]valuation of the upper and lower extremities was also 19 1 normal, with no positive findings on sensory examination or motor 2 strength. (AR 25, 321-22.) He noted that the examiner 3 concluded Plaintiff would be capable of performing the full 4 range of medium work, and [t]he State Agency medical consultant 5 largely agreed with the consultative examiner s functional 6 assessment, adding only that the claimant would have limited 7 reaching capacity. 8 (AR 25, 322, 338-46.) The ALJ concluded his evaluation of Plaintiff s symptoms as 9 follows: 10 In determining the claimant s residual functional 11 capacity, the Administrative Law Judge has carefully 12 considered all of the objective findings of record, the 13 treating, examining, and reviewing physicians opinions, 14 the claimant s subjective allegations, as well as the 15 statements and/or testimony of her friend and boyfriend. 16 In doing so, the undersigned has decided to limit the 17 claimant to a less than full range of medium work, the 18 function-by-function details of which are set forth in 19 the above residual functional capacity. 20 has incorporated the work restrictions from the most 21 recent functional assessment by treating physician Dr. 22 Capen, as well as the limitations set forth by the 23 consultative examiner and State Agency physician. 24 consideration of the claimant s extreme allegations of 25 pain and her obesity impairment, per Social Security 02- 26 1p, the undersigned has included additional postural 27 limitations not addressed by any of the treating or 28 examining physicians of record. 20 The undersigned Accordingly, In the 1 residual functional capacity set forth herein is the most 2 restrictive 3 claimant, and no medical evidence suggests the need for 4 further limitations. functional assessment ascribed to the 5 (AR 26 (citations omitted).) 6 7 3. Analysis The ALJ found that Plaintiff s statements concerning the 8 intensity, persistence and limiting effects of [her] symptoms are 9 not credible to the extent they are inconsistent with [the ALJ s] 10 residual functional capacity assessment. (AR 24.) Reversal is 11 not warranted based on the ALJ s alleged failure to make proper 12 credibility findings or properly consider Plaintiff s subjective 13 symptoms. 14 Although the medical evidence established that Plaintiff had 15 medically determinable physical impairments that were likely to 16 cause her some pain, the existence of some pain does not 17 constitute a disability if it does not prevent Plaintiff from 18 working. See Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) 19 (SSI program intended to provide benefits to people who are 20 unable to work; awarding benefits in cases of nondisabling pain 21 would expand the class of recipients far beyond that contemplated 22 by the statute. ); Thorn v. Schweiker, 694 F.2d 170, 171 (8th 23 Cir. 1982) ( A showing that [claimant] had a back ailment alone 24 would not support a finding that she was disabled unless the 25 limitations imposed by the back ailment prevented her from 26 engaging in substantial gainful activity. ). 27 Here, the ALJ made specific, convincing findings in support 28 of his adverse credibility determination. 21 He noted that clinical 1 findings from several doctors revealed only mild impairment in 2 Plaintiff s neck and back; her MRI results revealed only minimal 3 abnormalities; examinations in August 2009 and October 2010 4 revealed that Plaintiff appeared healthy and showed no obvious 5 signs of pain or distress other than some pain on full extension 6 of the neck ; Plaintiff s symptoms appeared to improve over time 7 with medication and conservative treatment; and several doctors, 8 including Plaintiff s own treating physician, stated that she was 9 able to work. (AR 24-25.) He further correctly noted that when 10 she underwent a DMV physical in August 2009 to try to get her 11 driver s license reinstated, she presented as healthy appearing, 12 in no acute distress, she made no complaints of musculoskeletal 13 pain, and examination of the neck was normal as was her gait. 14 (AR 25.) The ALJ also noted that even if [Plaintiff] were given 15 the benefit of the doubt and restricted to sedentary work . . . 16 there are still significant numbers of other work, which she 17 may perform. 18 (AR 24.) Plaintiff argues that under Bunnell, 947 F.2d at 345, the 19 ALJ erroneously rejected Plaintiff s subjective pain testimony on 20 the ground that it lacks support in the objective medical 21 evidence. (J. Stip. at 19.) Bunnell held that once the 22 claimant produces objective medical evidence of an underlying 23 impairment, an adjudicator may not reject a claimant s subjective 24 complaints based solely on a lack of objective medical evidence 25 to fully corroborate the alleged severity of pain. 26 345. 947 F.2d at Here, the ALJ did not base his opinion solely on a lack 27 of objective medical evidence corroborating the severity of 28 Plaintiff s pain. Instead, he properly analyzed what the medical 22 1 evidence did show (and what it did not) and noted that 2 Plaintiff s MRI and other test results revealed minimal 3 abnormalities, the majority of Plaintiff s symptoms were 4 controlled with medication or other conservative treatment, and 5 several doctors, including Plaintiff s own treating physician, 6 had examined Plaintiff and found her capable of working. (AR 24- 7 25); see Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) 8 ( While subjective pain testimony cannot be rejected on the sole 9 ground that it is not fully corroborated by objective medical 10 evidence, the medical evidence is still a relevant factor in 11 determining the severity of the claimant s pain and its disabling 12 effects. ). The ALJ s reasons in total constituted appropriate 13 bases for discounting Plaintiff s subjective symptom testimony. 14 See, e.g., Williamson v. Comm r of Soc. Sec., 438 F. App x 609, 15 610 (9th Cir. 2011) (proper for ALJ to discount plaintiff s 16 testimony when there was evidence plaintiff exaggerated her 17 symptoms ); Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 18 2001) (credibility determination based on, among other things, 19 plaintiff s tendency to exaggerate proper when supported by 20 substantial evidence ); Tommasetti v. Astrue, 533 F.3d 1035, 21 1039 (9th Cir. 2008) (ALJ may infer that claimant s response to 22 conservative treatment undermines [claimant s] reports regarding 23 the disabling nature of his pain ); Johnson v. Shalala, 60 F.3d 24 1428, 1434 (9th Cir. 1995) (holding that contradictions between 25 claimant s testimony and the relevant medical evidence provided 26 clear and convincing reasons for ALJ to reject plaintiff s 27 subjective symptom testimony); Flaten v. Sec y of Health & Human 28 Servs., 44 F.3d 1453, 1464 (9th Cir. 1995) (ALJ may properly rely 23 1 on minimal medical treatment); Stubbs-Danielson v. Astrue, 539 2 F.3d 1169, 1175 (9th Cir. 2008) (doctors opinions finding 3 plaintiff could perform a limited range of work [] support the 4 ALJ s credibility determination ). 5 Plaintiff also argues that the ALJ erred in considering 6 Plaintiff s ability to engage in daily activities as evidence of 7 her lack of credibility. (J. Stip. at 21-22 (citing Vertigan v. 8 Halter, 260 F.3d 1044, 1050 (9th Cir. 2001)).) It does not 9 appear that the ALJ relied on Plaintiff s ability to carry out 10 daily activities in formulating his opinion (see AR 23-26), but 11 even if he had, it would not have been error. When a plaintiff 12 claiming disability is able to spend a substantial part of his or 13 her day performing physical functions that are transferable to a 14 work setting, an ALJ may properly discredit his or her 15 allegations of complete inability to work. See Morgan v. Comm r 16 of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999). Here, 17 many of the activities Plaintiff acknowledged engaging in are 18 consistent with her past work as a babysitter as well as some of 19 the other jobs identified by the VE. For instance, she 20 acknowledged cooking, cleaning, doing laundry, and taking her son 21 to school. 22 (AR 108-09, 372.) Finally, Plaintiff argues that the ALJ erred in finding that 23 (1) there was no documented evidence in the record that Plaintiff 24 complained her medications made her drowsy and (2) she received 25 only conservative treatment for her ailments. 26 23.) (J. Stip. at 22- As to the first contention, the record does contain a 27 notation that Plaintiff has been working with dizziness and 28 drowsiness because of the medication she is taking. 24 (AR 290.) 1 To the extent the ALJ erred in failing to note that, however, the 2 error was harmless because nothing indicates that Plaintiff s 3 dizziness and drowsiness prevented her from working. To the 4 contrary, it appears she was in fact working at the time she 5 complained of dizziness and drowsiness. (See id. (noting that 6 Plaintiff s hours have been reduced to 20 hour per week and she 7 has been working with dizziness and drowsiness ).) Moreover, as 8 noted above, the ALJ cited ample other evidence in the record 9 showing that Plaintiff s symptoms were not as severe as she 10 claimed. Thus, reversal is not warranted on this basis. 11 See Stout v. Comm r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th 12 Cir. 2006) (nonprejudicial or irrelevant mistakes harmless); 13 Carmickle v. Comm r of Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th 14 Cir. 2008) (holding that when ALJ provides specific reasons for 15 discounting plaintiff s credibility, decision may be upheld even 16 if certain reasons for adverse credibility finding were invalid 17 as long as ALJ s remaining reasoning and ultimate credibility 18 determination were supported by substantial evidence (italics 19 omitted)); Batson v. Comm r of Soc. Sec. Admin., 359 F.3d 1190, 20 1197 (9th Cir. 2004) ( [I]n light of all the other reasons given 21 by the ALJ for Batson s lack of credibility and his residual 22 functional capacity, and in light of the objective medical 23 evidence on which the ALJ relied, there was substantial evidence 24 supporting the ALJ s decision. ). 25 Reversal is also not warranted based on the ALJ s alleged 26 error in noting that Plaintiff received only conservative 27 treatment for her injuries given that she also received epidural 28 shots. (J. Stip. at 22.) As an initial matter, the ALJ was 25 1 correct in noting that the record showed that conservative 2 treatment appeared to improve Plaintiff s symptoms. (AR 24, 198 3 (noting that Patient was treated with conservative chiropractic 4 care to the cervical and upper thoracic spine and feels much 5 better with the treatment prescribed and capable of returning 6 to work ), 188 (noting that Plaintiff has not been taking 7 medications for several weeks now, has normal range of motion 8 in the head and neck, and complains only of pain at the 9 extremes of movement, and prescribing pain medication, home 10 exercise program, and chiropractic care).) It also appears from 11 the record that Plaintiff received only one set of epidural 12 injections.6 (See AR 265-66.) Even assuming epidural injections 13 are not simply further conservative treatment, remand is not 14 required because the remainder of the ALJ s credibility findings 15 were supported by ample evidence in the record. 16 533 F.3d at 1162; Batson, 359 F.3d at 1197. See Carmickle, This Court may not 17 second-guess the ALJ s credibility finding simply because the 18 evidence may have been susceptible of other interpretations more 19 favorable to Plaintiff. See Tommasetti, 533 F.3d at 1039. 20 Reversal is therefore not warranted on this basis. 21 22 23 24 25 26 27 28 6 Plaintiff testified that she did not want to continue with the shots because all that did was make me bleed. (AR 365.) The medical evidence shows that in fact she had no untoward reactions to the shots and tolerated [them] well. (AR 265.) Plaintiff did seek medical treatment for heavy vaginal bleeding beginning approximately one month after she received the shots, but there is no indication in the record that the bleeding was in any way connected to the shots. (See AR 162-65.) 26 1 VI. CONCLUSION 2 Consistent with the foregoing, and pursuant to sentence four 3 of 42 U.S.C. § 405(g),7 IT IS ORDERED that judgment be entered 4 AFFIRMING the decision of the Commissioner and dismissing this 5 action with prejudice. IT IS FURTHER ORDERED that the Clerk 6 serve copies of this Order and the Judgment on counsel for both 7 parties. 8 9 DATED: September 25, 2012 10 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 This sentence provides: The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. 27

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