Brian C Epps v. Michael J Astrue, No. 2:2012cv01771 - Document 19 (C.D. Cal. 2012)

Court Description: MEMORANDUM OPINION AND ORDER AFFIRMING THE COMMISSIONER by Magistrate Judge Jean P Rosenbluth. 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 bothparties. (twdb)

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1 O 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 9 BRIAN C. EPPS, 10 Plaintiff, 11 12 13 vs. MICHAEL J. ASTRUE, Commissioner of Social Security, 14 Defendant. 15 ) Case No. CV 12-1771-JPR ) ) ) MEMORANDUM OPINION AND ORDER ) AFFIRMING THE COMMISSIONER ) ) ) ) ) ) ) 16 17 I. PROCEEDINGS 18 Plaintiff seeks review of the Commissioner s final decision 19 denying his application for Social Security Supplemental Security 20 Income benefits ( SSI ). The parties consented to the 21 jurisdiction of the undersigned U.S. Magistrate Judge pursuant to 22 28 U.S.C. § 636(c). This matter is before the Court on the 23 parties Joint Stipulation, filed November 26, 2012, which the 24 Court has taken under submission without oral argument. For the 25 reasons stated below, the Commissioner s decision is affirmed and 26 this action is dismissed. 27 II. BACKGROUND 28 Plaintiff was born on July 29, 1969. 1 (Administrative Record 1 ( AR ) 51.) He has a ninth-grade education. (AR 429.) 2 worked as a general laborer and sign exhibitor. 3 He has (AR 122.) On June 10, 2009, Plaintiff filed his SSI application, 4 alleging that he had been unable to work since December 1, 2006, 5 because of bipolar disorder, leg pain, and back pain. 6 79.) (AR 51- After Plaintiff s application was denied on initial review 7 and reconsideration, he requested a hearing before an 8 Administrative Law Judge ( ALJ ). (AR 37-47.) A hearing was 9 held on April 29, 2011, at which Plaintiff, who was represented 10 by counsel, appeared and testified on his own behalf. 11 36.) (AR 420- Medical Expert Steven Gerber and Vocational Expert ( VE ) 12 Alan Ey also testified. (Id.) In a written decision issued on 13 July 14, 2011, the ALJ determined that Plaintiff was not 14 disabled. (AR 14-23.) On January 10, 2012, the Appeals Council 15 denied Plaintiff s request for review. (AR 4-6.) This action 16 followed. 17 III. STANDARD OF REVIEW 18 Pursuant to 42 U.S.C. § 405(g), a district court may review 19 the Commissioner s decision to deny benefits. The ALJ s findings 20 and decision should be upheld if they are free of legal error and 21 are supported by substantial evidence based on the record as a 22 whole. § 405(g); Richardson v. Perales, 402 U.S. 389, 401, 91 S. 23 Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971); Parra v. Astrue, 481 24 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means such 25 evidence as a reasonable person might accept as adequate to 26 support a conclusion. Richardson, 402 U.S. at 401; Lingenfelter 27 v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 28 a scintilla but less than a preponderance. 2 It is more than Lingenfelter, 504 1 F.3d at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 2 882 (9th Cir. 2006)). To determine whether substantial evidence 3 supports a finding, the reviewing court must review the 4 administrative record as a whole, weighing both the evidence that 5 supports and the evidence that detracts from the Commissioner s 6 conclusion. 7 1996). Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. If the evidence can reasonably support either affirming 8 or reversing, the reviewing court may not substitute its 9 judgment for that of the Commissioner. Id. at 720-21. 10 IV. THE EVALUATION OF DISABILITY 11 People are disabled for purposes of receiving Social 12 Security benefits if they are unable to engage in any substantial 13 gainful activity owing to a physical or mental impairment that is 14 expected to result in death or which has lasted, or is expected 15 to last, for a continuous period of at least 12 months. 42 16 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 17 (9th Cir. 1992). 18 A. 19 The ALJ follows a five-step sequential evaluation process in The Five-Step Evaluation Process 20 assessing whether a claimant is disabled. 20 C.F.R. 21 § 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 22 1995) (as amended Apr. 9, 1996). In the first step, the 23 Commissioner must determine whether the claimant is currently 24 engaged in substantial gainful activity; if so, the claimant is 25 not disabled and the claim must be denied. § 416.920(a)(4)(i). 26 If the claimant is not engaged in substantial gainful activity, 27 the second step requires the Commissioner to determine whether 28 the claimant has a severe impairment or combination of 3 1 impairments significantly limiting his ability to do basic work 2 activities; if not, a finding of not disabled is made and the 3 claim must be denied. § 416.920(a)(4)(ii). If the claimant has 4 a severe impairment or combination of impairments, the third 5 step requires the Commissioner to determine whether the 6 impairment or combination of impairments meets or equals an 7 impairment in the Listing of Impairments ( Listing ) set forth at 8 20 C.F.R., Part 404, Subpart P, Appendix 1; if so, disability is 9 conclusively presumed and benefits are awarded. 10 § 416.920(a)(4)(iii). If the claimant s impairment or 11 combination of impairments does not meet or equal an impairment 12 in the Listing, the fourth step requires the Commissioner to 13 determine whether the claimant has sufficient residual functional 14 capacity ( RFC )1 to perform his past work; if so, the claimant 15 is not disabled and the claim must be denied. 16 § 416.920(a)(4)(iv). The claimant has the burden of proving that 17 he is unable to perform past relevant work. 18 1257. Drouin, 966 F.2d at If the claimant meets that burden, a prima facie case of 19 disability is established. Id. If that happens or if the 20 claimant has no past relevant work, the Commissioner then bears 21 the burden of establishing that the claimant is not disabled 22 because he can perform other substantial gainful work available 23 in the national economy. § 416.920(a)(4)(v). That determination 24 comprises the fifth and final step in the sequential analysis. 25 26 1 RFC is what a claimant can still do despite existing 27 exertional and nonexertional limitations. 20 C.F.R. §§ 404.1545, 416.945; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th 28 Cir. 1989). 4 1 § 416.920; Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257. 2 B. 3 At step one, the ALJ found that Plaintiff had not engaged in The ALJ s Application of the Five-Step Process 4 any substantial gainful activity since June 10, 2009, the date of 5 Plaintiff s application. (AR 16.) At step two, the ALJ 6 concluded that Plaintiff had the severe impairments of bilateral 7 femur fractures and schizoaffective disorder. At step (Id.) 8 three, the ALJ determined that Plaintiff s impairments did not 9 meet or equal any of the impairments in the Listing. (AR 17-18.) 10 At step four, the ALJ found that Plaintiff retained the RFC to 11 lift 12 frequently; sit for six hours and stand or walk for four 13 hours, with normal breaks, during an eight-hour workday; 14 only occasionally perform postural activities except 15 never climb ladders, ropes, or scaffolds; only perform 16 simple tasks with simple work-related decisions; and 17 never 18 occasionally interact with co-workers and supervisors. twenty pounds interact with occasionally the general and ten public pounds and only 19 (AR 18.) The ALJ found that Plaintiff had no past relevant work. 20 (AR 21.) At step five, the ALJ concluded that jobs existed in 21 significant numbers in the national economy that Plaintiff could 22 perform. (AR 22.) Accordingly, the ALJ determined that 23 Plaintiff was not disabled. (AR 22-23.) 24 V. DISCUSSION 25 Plaintiff alleges that the ALJ erred in failing to properly 26 consider (1) the opinion of examining physician Concepcion A. 27 Enriquez and (2) Plaintiff s subjective complaints. 28 4.) 5 (J. Stip. at 1 A. The ALJ Did Not Err in Rejecting the Examining 2 3 Physician s Opinion Plaintiff contends that the ALJ improperly rejected the 4 opinion of examining physician Enriquez and instead relied on the 5 opinion of the non-examining state agency physician. (J. Stip. 6 at 5-9.) 7 8 1. Applicable law Three types of physicians may offer opinions in Social 9 Security cases: (1) those who treat the claimant (treating 10 physicians); (2) those who examine but do not treat the claimant 11 (examining physicians); and (3) those who neither examine nor 12 treat the claimant (non-examining physicians). 13 at 830. Lester, 81 F.3d In general, the opinion of a treating doctor is accorded 14 more weight than the opinion of a doctor who did not treat the 15 claimant, and the opinion of an examining doctor is, in turn, 16 entitled to greater weight than the opinion of a nonexamining 17 doctor. 18 Id. (citations omitted); 20 C.F.R. § 416.927(c)(1)-(2). An ALJ must provide clear and convincing reasons for 19 rejecting the uncontradicted opinion of a treating or examining 20 physician. Carmickle v. Comm r, Soc. Sec. Admin., 533 F.3d 1155, 21 1164 (9th Cir. 2008) (quoting Lester, 81 F.3d at 830-31). When 22 such an opinion is contradicted, however, it may be rejected for 23 specific and legitimate reasons that are supported by 24 substantial evidence in the record. 2 Id. (quoting Lester, 81 25 26 27 28 2 Although the legal standard governing rejection of either an examining or a treating physician s opinion is the same, because a treating physician s opinion is entitled to greater deference, the type of evidence and reasons that would justify rejection of an examining physician s opinion might not 6 1 F.3d at 830-31). An ALJ, moreover, may reject the testimony of 2 an examining, but non-treating physician, in favor of a 3 nonexamining, nontreating physician when he gives specific, 4 legitimate reasons for doing so, and those reasons are supported 5 by substantial record evidence. Roberts v. Shalala, 66 F.3d 6 179, 184 (9th Cir. 1995) (citing Andrews v. Shalala, 53 F.3d 7 1035, 1043 (9th Cir. 1995)); accord Ruiz v. Comm r of Soc. Sec. 8 Admin., No. 11 16162, ___ F. App x ___, 2012 WL 5857135, at *1 9 (9th Cir. Nov. 19, 2012). The weight given a physician s opinion 10 depends on whether it is consistent with the record and 11 accompanied by adequate explanation, among other things. 20 12 C.F.R. § 416.927(c)(3)-(6). 13 14 2. Relevant facts Sometime in 2005, Plaintiff was walking on railroad tracks 15 and was struck by a train. (AR 426.) On June 16 and 29, 2005, 16 Plaintiff underwent surgeries at UCI Medical Center to repair the 17 soft-tissue injury on his right lower leg. (AR 199-201.) X-rays 18 taken that day showed an [o]pen comminuted fracture of the right 19 femur with external fixation device in place and [n]o evidence 20 of osteomyelitis. (AR 195.) On July 12, 2005, Plaintiff 21 underwent a skin graft to his right-thigh wound. 22 (AR 197.) On September 15, 2005, a California Department of 23 Corrections ( CDC ) radiology report noted that Plaintiff had an 24 external fixation device through the proximal and distal right 25 femur and a healing comminuted fracture of the distal one-third 26 of the right femur. (AR 203.) On January 19, 2006, a CDC 27 justify rejection of a treating physician s opinion. 28 Lester, 81 F.3d at 831 n.8. 7 See 1 clinician noted that Plaintiff s external fixation device had 2 been removed on December 21, 2005, and he was ambulating with two 3 crutches. (AR 207.) On January 25, 2006, a CDC clinician noted 4 that Plaintiff was ambulating with two crutches and would be 5 referred to physical therapy. 6 (AR 206.) On May 2, 2008, a nurse at the Orange County Jail noted that 7 Plaintiff had reported nerve damage in his right leg resulting 8 from a train accident and was requesting the medication 9 Neurontin. (AR 255.) The nurse noted, however, that Plaintiff 10 had a steady gait, good sensation to his right extremity, and 11 no difficulty sitting or standing. 12 (Id.) On January 13, 2009, a CDC clinician noted that Plaintiff 13 had an infected wound on his right leg. (AR 393.) On February 14 11, 2009, a CDC clinician noted that Plaintiff had a 1.515 centimeter healing wound on his right thigh. (AR 392.) On 16 February 25, 2009, x-rays of Plaintiff s right femur revealed no 17 evidence of acute fracture but [p]robable old distal femoral 18 metaphyseal fracture with deformity, with chronic superimposed 19 osteomyelitis . . . not excluded. (AR 225.) On March 4, 2009, 20 a CDC clinician noted that Plaintiff had a right-thigh wound and 21 listed a chrono as no pulling, pushing, or shoveling over a 22 certain weight.3 23 (AR 391.) On July 9, 2009, an SSA field-office staff member conducted 24 a face-to-face interview with Plaintiff, noting that he suffered 25 from severe memory loss but had no difficulty sitting, 26 27 3 28 pounds. The listed weight is illegible but appears to be two (See AR 391.) 8 1 standing, or walking, among other things.4 2 (AR 95.) On September 10, 2009, Dr. Enriquez, who was board 3 eligible in internal medicine, conducted an internal medicine 4 consultation at the SSA s request. (AR 332-35.) Plaintiff 5 reported his previous leg fractures and surgeries and said that 6 he still had pain with prolonged standing and walking but that 7 it was relieved by resting and changing position. (AR 332.) 8 X-rays performed that day showed a metallic rod and old healed 9 fracture deformity of the mid-shaft of the left femur; an old 10 fracture deformity of the distal right femur, probably 11 incompletely healed; and minimal osteoarthritis of the right 12 knee. 13 (AR 336-38.) On examination, Dr. Enriquez found that Plaintiff had 14 extensive scars on his lateral right thigh, tenderness of the 15 right knee, and a right lower extremity that was about 1.5 16 centimeters shorter than the left lower extremity. (AR 334.) 17 Plaintiff s right-knee range of motion was 130 out of 150 degrees 18 of flexion, but ranges of motion of all other joints, including 19 his hips, left knee, and ankles, were grossly normal. (Id.) 20 Plaintiff walked with a mild limp on the right but did not need 21 an assistive device. (AR 335.) Plaintiff had normal muscle tone 22 and bulk without atrophy, intact sensation, strength of 5/5 23 throughout without focal motor deficits, and symmetrical 24 reflexes of 4/4 throughout. (AR 334.) Dr. Enriquez noted that 25 her findings were based on formal testing as well as 26 27 28 4 The staff member apparently based his finding of memory problems on Plaintiff s stated inability to remember details about his employment or medical visits. (AR 95.) 9 1 observation of Plaintiff, but she did not indicate that she had 2 reviewed Plaintiff s medical records. (AR 332-35.) Dr. Enriquez 3 concluded that Plaintiff could lift or carry 20 pounds 4 occasionally and 10 pounds frequently, stand or walk for less 5 than one hour in an eight-hour workday, sit for six hours in an 6 eight-hour work day, and frequently bend, stoop, twist, squat, 7 crouch, and kneel. 8 (AR 335.) On October 16, 2009, nonexamining agency physician Paulette 9 M. Harar reviewed all the evidence in Plaintiff s file and 10 completed a physical-RFC-assessment form. (AR 339-45.) Like Dr. 11 Enriquez, Dr. Harar found that Plaintiff could lift and carry 20 12 pounds occasionally and 10 pounds frequently, sit for six hours 13 in an eight-hour work day, and frequently perform all postural 14 activities, such as climbing, balancing, stooping, kneeling, 15 crouching, and crawling. (AR 341-42.) Unlike Dr. Enriquez, 16 however, Dr. Harar found that Plaintiff could stand or walk for a 17 total of about six hours in an eight-hour day. 18 (AR 341.) Dr. Harar noted that her RFC finding was significantly 19 different from the RFC found by the examining physician, Dr. 20 Enriquez. (AR 344.) In a case-analysis form, which noted 21 Plaintiff s CDC x-rays and his stated daily activities, Dr. Harar 22 explained that [g]iven that [Plaintiff] was observed by the 23 Field Officer to have no problems moving/sitting and given that 24 he has normal strength and bulk without atrophy and normal 25 sensation and only walks with a mild limp on the right, Dr. 26 Enriquez s suggested RFC of less than sedentary appear[ed] a bit 27 restrictive. (AR 371.) Dr. Harar opined that an RFC of light 28 appears more medically reasonable despite the heterotopic bone 10 1 formation in the right femur. (Id.) On April 29, 2010, another 2 nonexamining agency physician, D. Chan, reviewed Plaintiff s 3 medical records and affirmed Dr. Harar s RFC finding. (AR 394- 4 95.) 5 On April 29, 2011, medical expert Dr. Steven Gerber 6 testified at the hearing before an ALJ. (AR 424-25.) Dr. Gerber 7 stated that he had reviewed the medical evidence and that 8 Plaintiff had a history of bilateral femur fractures and obesity. 9 (AR 424.) Like Drs. Enriquez, Harar, and Chan, Dr. Gerber opined 10 that Plaintiff could lift and carry 20 pounds occasionally and 10 11 pound frequently and sit for six hours of an eight-hour workday. 12 (AR 425.) Unlike the other doctors, however, Dr. Gerber found 13 that Plaintiff could stand or walk for four hours and could only 14 occasionally perform postural activities. 15 (Id.) With regard to Plaintiff s physical abilities, the ALJ 16 found, consistent with Drs. Enriquez, Gerber, Harar, and Chan, 17 that Plaintiff had the RFC to lift 20 pounds occasionally and 10 18 pounds frequently and sit for six hours in an eight-hour workday. 19 (AR 18.) The ALJ rejected Drs. Enriquez, Harar, and Chan s 20 finding that Plaintiff could frequently perform all postural 21 activities and instead adopted Dr. Gerber s more limited finding 22 that Plaintiff could only occasionally perform those activities; 23 as an additional safeguard, he prohibited Plaintiff from ever 24 climbing ladders, ropes, or scaffolds. (AR 18, 20.) Finally, 25 the ALJ rejected Dr. Enriquez s finding that Plaintiff could 26 stand or walk for less than one hour a day and Drs. Harar and 27 Chan s finding that Plaintiff could stand or walk for six hours, 28 instead adopting Dr. Gerber s finding that Plaintiff could stand 11 1 or walk for four hours. (AR 18-20.) In so finding, the ALJ 2 noted that Dr. Enriquez agreed with both Dr. Gerber and the 3 State agency consultant in regard to lifting, carrying, and 4 sitting but limited standing and walking to less than one hour 5 and permitted only frequent stooping, kneeling, squatting, and 6 twisting. 7 8 (AR at 19.) 3. Analysis Plaintiff argues that the ALJ erred by rejecting the opinion 9 of examining physician Dr. Enriquez in favor of those of the 10 nonexamining state-agency physicians, apparently referring to 11 Drs. Harar and Chan.5 (J. Stip. at 7-8.) But the ALJ, after 12 noting that he was giving Plaintiff all reasonable 13 consideration, actually assigned great weight to medical 14 expert Dr. Gerber s more restrictive opinion and 15 correspondingly less weight to Drs. Harar s and Chan s 16 opinions. (AR 20.) Although the ALJ stated that he was giving 17 little weight to Dr. Enriquez s opinion, it was largely 18 consistent with Dr. Gerber s; they differed only in that Dr. 19 Gerber believed Plaintiff could stand and walk for four hours in 20 an eight-hour day and only occasionally perform postural 21 activities, whereas Dr. Enriquez believed that Plaintiff could 22 stand and walk for less than one hour in an eight-hour day and 23 frequently perform postural activities. Because Dr. Gerber s 24 postural findings were actually more accommodating of Plaintiff 25 26 5 Plaintiff cites to Dr. Harar s and Chan s findings but 27 does not address Dr. Gerber s. (J. Stip. at 7 (citing AR 339-46 (Dr. Harar s physical-RFC assessment), 368-71 (Dr. Harar s case28 analysis form), & 395 (Dr. Chan s case-analysis form).) 12 1 than Dr. Enriquez s, the only aspect of Dr. Enriquez s finding at 2 issue here is her finding that Plaintiff could walk or stand less 3 than an hour in an eight-hour workday. 4 The ALJ gave specific and legitimate reasons for rejecting 5 Dr. Enriquez s standing-and-walking restriction in favor of Dr. 6 Gerber s. As the ALJ found, Dr. Enriquez s finding that 7 Plaintiff could stand or walk for less than one hour conflicted 8 with Plaintiff s own testimony and other statements. (AR 19.) 9 At the hearing, Plaintiff asserted that he could stand in one 10 place for two or three hours if he really struggle[d] with it 11 (AR 430) but later said that he could stand for about eight hours 12 if he really press[ed] it (AR 433).6 In a function report, 13 Plaintiff indicated that he traveled only by walking and went out 14 every day to, among other things, shop in stores, which also 15 undermines any finding that Plaintiff could stand or walk for 16 only one hour of an eight-hour day. (AR 116.) That 17 inconsistency with Plaintiff s own testimony was a specific and 18 legitimate reason for rejecting Dr. Enriquez s standing-and19 walking limitation in favor of Dr. Gerber s. See Andrews, 53 20 F.3d at 1042 (upholding rejection of examining physician s 21 opinion in favor of testifying medical expert s when medical 22 expert s opinion was consistent with plaintiff s testimony, among 23 other things); 20 C.F.R. § 416.927(c)(4) ( Generally, the more 24 consistent an opinion is with the record as a whole, the more 25 26 6 Plaintiff testified that he would be in pain if he 27 stood for eight hours (AR 433), which would presumably be to four hours of standing 28 alleviated by Dr. Gerber s limitation425). and walking in an eight-hour day (AR 13 1 weight we will give to that opinion. ). 2 The ALJ also found that Dr. Enriquez s extremely 3 restrictive assessment of Plaintiff s standing-and-walking 4 capabilities was inconsistent with her minimal findings on 5 physical exam and the record as a whole. (AR 19.) Indeed, Drs. 6 Harar, Chan, and Gerber each reviewed the evidence, including Dr. 7 Enriquez s findings and opinion, and concluded that Plaintiff was 8 capable of standing and walking for well over one hour.7 9 341, 395, 425.) (AR There is no indication, on the other hand, that 10 Dr. Enriquez reviewed any of the medical evidence before 11 rendering her opinion. The ALJ noted that the only 12 abnormalities that Dr. Enriquez described in her report were 13 tenderness and slightly decreased range of motion in the right 14 knee, a right lower extremity slightly shorter than the left, and 15 a mild limp on the right side (although [Plaintiff] was able to 16 walk unassisted). (AR 19, 334-35.) Indeed, Dr. Enriquez found 17 that Plaintiff had normal ranges of motion in all other joints, 18 normal muscle tone and bulk without atrophy, normal strength 19 without focal deficits, normal sensation, and normal reflexes. 20 (AR 334.) A lack of supporting clinical findings was a specific 21 and legitimate reason for rejecting part of Dr. Enriquez s 22 opinion. Batson v. Comm r of Soc. Sec. Admin., 359 F.3d 1190, 23 1195 (9th Cir. 2004) (ALJ may discredit physicians opinions that 24 25 26 27 28 7 In support of her findings, Dr. Harar specifically noted (AR 371) a field-office staff member s observation that Plaintiff had no difficulty sitting or standing during an inperson interview (AR 95). An examining psychiatrist, Ernest A. Bagner, III, also noted that Plaintiff had normal posture and gait. (AR 348.) 14 1 are conclusory, brief, and unsupported by the record as a whole 2 . . . or by objective medical findings ); Thomas v. Barnhart, 278 3 F.3d 947, 957 (9th Cir. 2002) ( The ALJ need not accept the 4 opinion of any physician . . . if that opinion is brief, 5 conclusory, and inadequately supported by clinical findings. ).8 6 Finally, Drs. Harar and Chan both found that Plaintiff s 7 ability to stand and walk considerably exceeded Dr. Enriquez s 8 estimation which was not justified by her objective findings 9 further demonstrating that the ALJ s adoption of Dr. Gerber s 10 more limited view was legitimate and reasonable. Thomas, 278 11 F.3d at 957 ( The opinions of non-treating or non-examining 12 physicians may also serve as substantial evidence when the 13 opinions are consistent with independent clinical findings or 14 other evidence in the record. ); Morgan v. Comm r of Soc. Sec. 15 Admin., 169 F.3d 595, 600 (9th Cir. 1999) ( Opinions of a 16 nonexamining, testifying medical advisor may serve as substantial 17 evidence when they are supported by other evidence in the record 18 and are consistent with it (citing Andrews, 53 F.3d at 1041)); 19 see 20 C.F.R. § 416.927(c)(4) (ALJ will generally give more 20 weight to opinions that are more consistent . . . with the 21 record as a whole ). Dr. Gerber, unlike Dr. Enriquez, reviewed 22 all of the medical evidence before rendering his opinion. See 20 23 C.F.R. § 416.927(c)(3) (in weighing medical opinions, ALJ will 24 25 26 27 28 8 Other evidence in the record also showed that Plaintiff could stand for longer than Dr. Enriquez found. For example, Robert Lindsey, the manager of the sober-living home where Plaintiff had lived for five months, stated that although Plaintiff s physical conditions affected his walking, they had no impact on his ability to stand. (AR 141.) 15 1 evaluate the degree to which these opinions consider all of the 2 pertinent evidence in [claimant s] claim, including opinions of 3 treating and other examining sources ). Moreover, the ALJ could 4 credit Dr. Gerber s opinion because he testified at the hearing 5 and was subject to cross-examination. See Andrews, 53 F.3d at 6 1042 (greater weight may be given to nonexamining doctors who are 7 subject to cross-examination). Any conflict in the properly 8 supported medical-opinion evidence was therefore the sole 9 province of the ALJ to resolve. See id. at 1041. Plaintiff is 10 not entitled to reversal on this ground. 11 B. 12 13 The ALJ Did Not Improperly Discount Plaintiff s Subjective-Symptom Testimony Plaintiff next argues that the ALJ improperly assessed his 14 subjective-symptom testimony in assessing his RFC. (J. Stip. at 15 12-20.) 16 17 1. Applicable law An ALJ s assessment of pain severity and claimant 18 credibility is entitled to great weight. See Weetman v. 19 Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. Heckler, 779 20 F.2d 528, 531 (9th Cir. 1986). When the ALJ finds a claimant s 21 subjective complaints not credible, the ALJ must make specific 22 findings that support the conclusion. 23 F.3d 1228, 1234 (9th Cir. 2010). See Berry v. Astrue, 622 Absent affirmative evidence of 24 malingering, the ALJ must give clear and convincing reasons for 25 rejecting the claimant s testimony. Lester, 81 F.3d at 834. At 26 the same time, the ALJ is not required to believe every 27 allegation of disabling pain, or else disability benefits would 28 be available for the asking, a result plainly contrary to 42 16 1 U.S.C. § 423(d)(5)(A). Molina v. Astrue, 674 F.3d 1104, 1112 2 (9th Cir. 2012) (internal quotation marks and citation omitted). 3 If the ALJ s credibility finding was supported by substantial 4 evidence in the record, the reviewing court may not engage in 5 second-guessing. 6 7 2. Thomas, 278 F.3d at 959. Relevant facts In a July 2009 function report, Plaintiff stated that he 8 could walk not very far before having to rest for about an hour 9 and could pay attention for not long. (AR 118.) He also 10 stated that he went outside every day, and when going out, he 11 traveled only by walking, not public transportation. (AR 116.) 12 He alleged that his conditions affected his ability to lift, 13 squat, bend, stand, reach, walk, kneel, climb stairs, complete 14 tasks, concentrate, and understand. (AR 118.) Plaintiff said 15 that he had no problem performing personal care, following spoken 16 instructions, getting along with authority figures, or handling 17 stress and changes in routine. (AR 114, 118-19.) 18 able to pay bills and count change. (AR 116.) He said he was In a subsequent 19 undated Disability Report - Appeal, Plaintiff stated that he was 20 unable to stand for long periods of time. 21 (AR 162.) At the April 2011 hearing, Plaintiff testified that his legs 22 would start hurting if he stood for a while, specifying that he 23 could stand in one place for two or three hours and could stand 24 for about eight hours if he really push[ed] it. (AR 430, 433.) 25 He said he felt paranoid and depressed and had a bad memory but 26 could concentrate well. (AR 431-32.) In response to a question 27 by the VE, Plaintiff testified that he was unable to handle money 28 or make change. (AR 434-35.) 17 1 As discussed in Section A, the ALJ found that as a result of 2 his physical conditions, Plaintiff was limited to lifting 20 3 pounds occasionally and 10 pounds frequently; sitting for six 4 hours of an eight-hour workday; standing or walking for four 5 hours of an eight-hour workday; and only occasionally performing 6 most postural activities but never climbing ladders, ropes, or 7 scaffolds. (AR 18.) The ALJ also found that as a result of his 8 mental condition, Plaintiff was limited to simple tasks with 9 simple work-related decisions, never interact[ing] with the 10 general public, and only occasionally interact[ing] with co11 workers and supervisors. (AR 18.) The ALJ found that 12 Plaintiff s medically determinable impairments could reasonably 13 be expected to cause the alleged symptoms but that his 14 statements concerning the intensity, persistence, and limiting 15 effects of these symptoms are not credible to the extent they are 16 inconsistent with the [RFC] assessment. (AR 21.) As explained 17 more fully below, the ALJ offered several clear and convincing 18 reasons why this was so. 19 20 3. Analysis As an initial matter, the ALJ s RFC finding largely 21 accommodated Plaintiff s subjective complaints by limiting 22 Plaintiff to, for example, only four hours of walking in a 23 workday, occasional postural activities with no climbing, and 24 simple tasks with limited social contact. To the extent that 25 Plaintiff s subjective symptom testimony was inconsistent with 26 that RFC, however, the ALJ gave clear and convincing reasons for 27 discrediting it. 28 First, the ALJ correctly noted that Plaintiff s testimony 18 1 and other statements contained inconsistencies: 2 . . . [Plaintiff s] allegations of generally disabling 3 symptoms and limitations are not corroborated by the 4 record. In addition, [Plaintiff] has admitted that he 5 has always 6 regimen. 7 to make change, both he (and Mr. Lindsey) have reported 8 otherwise. [Plaintiff] has also indicated that he does 9 not do household chores or use public transportation, 10 although there is significant evidence to the contrary. 11 Finally, the recent treatment history belies current 12 claims of depression and paranoia. not been compliant with his medication Furthermore, while he testified he was unable 13 (AR 21 (internal citations omitted).) Indeed, in response to the 14 VE s question at the hearing, Plaintiff testified that he was 15 unable to handle money or make change. (AR 434-35.) Previously, 16 however, Plaintiff and a third party, Robert Lindsey, the house 17 manager at Plaintiff s sober-living house, had stated that 18 Plaintiff was able to perform those tasks. (AR 116 (Plaintiff s 19 function report stating that he can pay bills and count change), 20 AR 139 (third-party statement of Lindsey that Plaintiff could 21 count change).) In his function report, Plaintiff also indicated 22 that his only form of transportation was walking, but the 23 evidence established that he often also took public 24 transportation. (Compare AR 116 (Plaintiff s function report 25 stating that he traveled only by walking) with AR 139 (statement 26 of Lindsey that Plaintiff traveled by walking, public 27 transportation, and riding bicycle), 349 (Plaintiff s statement 28 to examining physician that he takes the bus to get around ).) 19 1 Those conflicts in Plaintiff s statements were permissible 2 reasons for discounting his credibility. See Smolen v. Chater, 3 80 F.3d 1273, 1284 (9th Cir. 1996) (in determining credibility, 4 ALJ may consider claimant s prior inconsistent statements 5 concerning symptoms); Thomas, 278 F.3d at 958-59 (in determining 6 credibility, ALJ may consider inconsistencies in claimant s 7 testimony); Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 8 1995) (ALJ permissibly discounted credibility based on 9 contradictions within claimaint s testimony). 10 Second, the ALJ properly noted that Plaintiff s allegations 11 of generally disabling symptoms and limitations were not 12 corroborated by the evidence of record. (AR 21.) Indeed, as the 13 ALJ found, Plaintiff s most recent medical records, from a parole 14 medical clinic, showed that his psychological symptoms were 15 stable and controlled when he took his medication. (AR 21.) For 16 example, on June 25, 2009, psychiatrist Gul Ebrahim noted that 17 Plaintiff was stable and taking his medication as prescribed; 18 Plaintiff reported that his medication help[ed] him with his 19 mood and psychosis/paranoia. (AR 407-08.) On August 24, 2009, 20 however, Gamze Gurbuz, Ph.D., noted that Plaintiff reported 21 taking his medication only every other day and was [m]ore 22 irritable and confused. (AR 407.) Gurbuz noted that 23 Plaintiff s lack of medication compliance was apparent and he 24 [s]trongly encouraged Plaintiff to take his medication. (Id.) 25 On September 16, 2009, Gurbuz noted that Plaintiff was taking 26 his full dose of medication and was more composed, stable. 27 (Id.) In September, October, and November 2009, Dr. Ebrahim 28 noted that Plaintiff was stable on his medication and his 20 1 medication helped him. 2 (AR 406-07.) On February 4, 2010, however, Dr. Ebrahim noted that 3 Plaintiff was not taking his medication as prescribed and was 4 paranoid and making nonsensical statements. (AR 405.) On 5 February 10, 2010, Dr. Ebrahim noted that Plaintiff reported 6 being a little better but still was not taking his medication 7 as prescribed. (Id.) On February 18, 2010, Dr. Ebrahim noted 8 that Plaintiff was compliant with medication but still psychotic; 9 he increased Plaintiff s dosage. (AR 404.) By March 3, 2010, 10 Dr. Ebrahim found that Plaintiff was compliant with his 11 medication and had no more voices and no more paranoia. (Id.) 12 Dr. Ebrahim noted that Plaintiff had improved on his current 13 medication and advised him to continue them. (Id.) In March, 14 April, May, June, and September 2010, Dr. Ebrahim continued to 15 note that Plaintiff was medication compliant, his medications 16 were helping him, and he was stable. (AR 400-03.) On November 17 8, 2010, moreover, psychiatrist Garret M. Halweg noted that 18 Plaintiff had good medication compliance with no side effects, he 19 was able to fully attend and concentrate, his memory was grossly 20 intact for immediate, recent, and remote events, and he denied 21 audio or visual hallucinations or paranoid delusions. 22 99.) (AR 398- Thus, substantial evidence supports the ALJ s finding that 23 Plaintiff s symptoms were controlled as a result of his current, 24 consistent adherence to his medication regimen. 25 (AR 21.) The ALJ also discussed the findings of examining 26 psychiatrist Ernest A. Bagner, III, CDC psychologist K. Nesson, 27 and psychiatric consultant P.M. Balson, which were all consistent 28 with Plaintiff s RFC and undercut his allegations of debilitating 21 1 psychological symptoms. (AR 20-21.) On January 13, 2009, Nesson 2 found that Plaintiff had slight auditory hallucinations and 3 slight paranoia at times but normal fund of information, 4 intellectual functioning, concentration, attention, memory, 5 thought processes, insight, and judgment. (AR 227.) On November 6 4, 2009, Dr. Bagner found that Plaintiff had average intelligence 7 and tight thought processes, with no evidence of auditory or 8 visual hallucinations or paranoid or grandiose hallucinations. 9 (AR 349-50.) Dr. Bagner opined that Plaintiff would have no 10 limitations interacting with supervisors, peers, and the public; 11 zero to mild limitations maintaining concentration and attention 12 and completing simple tasks; mild limitations completing complex 13 tasks; and mild to moderate limitations handling normal stresses 14 at work and completing a normal work week without interruption. 15 (AR 351.) On December 1, 2009, Dr. Balson reviewed the evidence 16 in Plaintiff s file and found that Plaintiff had a mood disorder 17 that was well managed via meds & sobriety. (AR 359; see 18 also AR 366 (noting that prison records showed diagnosis of 19 bipolar disorder versus schizoaffective disorder that was well 20 managed on meds relatively [symptom]/sign free ).) Dr. Balson 21 opined that Plaintiff was not significantly limited in most areas 22 but was moderately limited in his ability to understand, 23 remember, and carry out detailed instructions; complete a normal 24 work week without interruption from psychological problems; and 25 respond appropriately to changes in the work setting. 26 352-53.) (AR Dr. Balson concluded that Plaintiff retained the RFC to 27 perform simple, repetitive tasks in the open marketplace if he 28 maintains med[ication] adherence and sobriety. 22 (AR 354.) 1 Indeed, as the ALJ found, [w]hile [Plaintiff] claims to have a 2 bad memory, treating psychiatrists have found that his memory is 3 grossly intact for immediate, recent, and remote events. (AR 4 18.) 5 Thus, the ALJ s detailed reasons for rejecting Plaintiff s 6 testimony and other statements in total constituted appropriate 7 bases for discounting Plaintiff s subjective-symptom testimony. 8 See, e.g., Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 9 2008) (ALJ may infer that claimant s response to conservative 10 treatment undermines [claimant s] reports regarding the disabling 11 nature of his pain ); Johnson, 60 F.3d at 1434 (holding that 12 contradictions between claimant s testimony and the relevant 13 medical evidence provided clear and convincing reasons for ALJ 14 to reject plaintiff s subjective symptom testimony); 15 Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175 (9th Cir. 2008) 16 (doctors opinions finding plaintiff could perform a limited 17 range of work [] support the ALJ s credibility determination ); 18 Doney v. Astrue, No. 11 35561, ___ F. App x ___, 2012 WL 2584837, 19 at *2 (9th Cir. July 5, 2012) (upholding ALJ s finding that 20 plaintiff not credible regarding extent of impairments because 21 plaintiff provided contradictory statements and because her 22 claims about the extent of her impairments were not supported by 23 the objective medical record as a whole ). 24 Plaintiff does not argue that the medical evidence supports 25 his subjective-symptom testimony but instead incorrectly contends 26 that the rejection of a claimant s testimony based on a lack of 27 objective evidence is always legally insufficient. 28 15.) (J. Stip. at An ALJ may not disregard a claimant s subjective-symptom 23 1 testimony solely because it is not substantiated affirmatively 2 by objective medical evidence. Robbins, 466 F.3d at 883 3 (emphasis added); see also Bunnell v. Sullivan, 947 F.2d 341, 4 346-47 (9th Cir. 1991). The ALJ may, however, use the medical 5 evidence in the record as one factor in his evaluation. See 6 Carmickle, 533 F.3d at 1161 ( Contradiction with the medical 7 record is a sufficient basis for rejecting the claimant s 8 subjective testimony. ); Lingenfelter, 504 F.3d at 1040 (in 9 determining credibility, ALJ may consider whether the alleged 10 symptoms are consistent with the medical evidence ); Burch v. 11 Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) ( Although lack of 12 medical evidence cannot form the sole basis for discounting pain 13 testimony, it is a factor that the ALJ can consider in his 14 credibility analysis. ); Kennelly v. Astrue, 313 F. App x 977, 15 979 (9th Cir. 2009) (same). Here, as explained above, the ALJ s 16 credibility determination was supported by other clear and 17 convincing reasons; thus, there was no error. 18 This Court may not second-guess the ALJ s credibility 19 finding simply because the evidence may have been susceptible of 20 other interpretations more favorable to Plaintiff. 21 Tommasetti, 533 F.3d at 1039. See The ALJ reasonably and properly 22 discredited Plaintiff s testimony regarding the severity of his 23 symptoms and gave clear and convincing reasons for his adverse 24 credibility finding. Reversal is therefore not warranted on this 25 basis. 26 VII. CONCLUSION 27 Consistent with the foregoing, and pursuant to sentence four 28 24 1 of 42 U.S.C. § 405(g),9 IT IS ORDERED that judgment be entered 2 AFFIRMING the decision of the Commissioner and dismissing this 3 action with prejudice. IT IS FURTHER ORDERED that the Clerk 4 serve copies of this Order and the Judgment on counsel for both 5 parties. 6 7 DATED: December 18, 2012 8 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 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. 25

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