Clarence Holzendorf v. Michael J Astrue, No. 2:2012cv07139 - Document 24 (C.D. Cal. 2013)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Ralph Zarefsky. (See document for details). (ib)
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O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CLARENCE HOLZENDORF, Plaintiff, 12 13 14 vs. CAROLYN W. COLVIN, Acting Commissioner of Social Security, 15 Defendant. 16 ) ) ) ) ) ) ) ) ) ) ) CASE NO. CV 12-07139 RZ MEMORANDUM OPINION AND JUDGMENT 17 Plaintiff Clarence Holzendorf claims that the Social Security Commissioner 18 wrongly denied disability benefits based on an Administrative Law Judge s (ALJ s) 19 improper failure to credit Plaintiff s testimony about his hip pain. The Court disagrees. 20 Plaintiff complained that he was unable to work due to pain in his left hip. 21 The ALJ agreed, based on his review of the evidence, that Plaintiff s medically 22 determinable impairment reasonably could be expected to cause pain. But he next found 23 that Plaintiff s subjective account of the intensity, persistence and limiting effects of the 24 hip pain were not credible. See Administrative Record (AR) 25. Having largely 25 discounted Plaintiff s degree-of-pain account, the ALJ found Plaintiff capable of 26 performing a full range of medium work. Plaintiff argues that the ALJ erred in discrediting 27 Plaintiff s subjective testimony, accusing him of using boilerplate that does not explain 28 the evidentiary basis for the discrediting. Pl. s Br. at 6-7. 1 An ALJ may consider whether the objective medical evidence supports the 2 degree of limitation alleged by a claimant, but it is only one factor; it cannot form the sole 3 basis for discounting [subjective] testimony. Burch v. Barnhart, 400 F.3d 676, 681 (9th 4 Cir. 2005). Here, as the ALJ noted, the consultative examiner observed that Plaintiff sat 5 comfortably during the examination; rose from a seated position with no difficulty; walked 6 without difficulty with a normal gait and without assistive devices; was able to walk on 7 tiptoes and heels with no evidence of weakness; and neither used any assistive device in 8 walking nor needed any help getting onto or off of the examination table. AR 180 (cited 9 at AR 26). Although the consultative examiner recorded Plaintiff s report of tenderness 10 in the left hip, Plaintiff s strength and range of motion were entirely normal, and the hip 11 area had no swelling or discoloration. AR 181 (cited at AR 26). The examiner concluded 12 that Plaintiff could work with few limitations, AR 183-84, and two state agency doctors 13 agreed. AR 188-90, 193, 196. A December 2009 x-ray showed only minor degeneration, 14 AR 183, and another x-ray in October 2010 was entirely normal. AR 214. No physician 15 has concluded that Plaintiff was able to perform any lesser range of work than the range 16 found by the ALJ. AR 25. Substantial evidence thus plainly supports the ALJ s finding 17 that the objective findings did not support Plaintiff s subjective complaints about the 18 degree of his pain. As Burch explained, however, another factor is required, also supported 19 by substantial evidence. In this case, the records supports two additional factors noted by 20 the ALJ. 21 The first is Plaintiff s notably conservative course of care. AR 26; see Parra 22 v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007). Plaintiff has sought very little treatment, 23 and what he did seek was minimal and routine. See AR 203-10, 214. At a routine 24 physical exam in October 2010 as opposed to an exam conducted to address complaints 25 of hip or other pain Plaintiff told his doctor that he takes vicodin now and then for his 26 hip pain. His prescriptions include no painkillers other than vicodin, and the treatment 27 notes do not reflect Plaintiff s request for stronger pain medication. See id. Plaintiff 28 reported to the ALJ that he (Plaintiff) uses a cane, but he neither showed any need for one -2- 1 during the consultative exam, as noted above, nor received or even sought a prescription 2 for one. 3 The second additional factor supporting the ALJ s credibility finding is 4 twofold. Plaintiff not only performed gainful work during the period when he claimed to 5 have been disabled by his hip pain, but he also gave suspiciously conflicting accounts 6 about how that work ended. See AR 27, 34. Plaintiff worked as a phlebotomist for Kaiser 7 Permanente for three weeks in 2011, well after the date on which he claimed to have been 8 disabled. On the one hand, he said that he had to stop working due to his hip pain. On the 9 other hand, he admitted in testimony that Kaiser fired him for theft. AR 27, 42. Plaintiff s 10 performance of gainful work and his lack of candor about the reasons for his cessation 11 properly provide support for the ALJ s credibility finding. See Tommasetti v. Astrue, 533 12 F.3d 1035, 1039 (9th Cir. 2008) (ALJ may use ordinary techniques in assessing claimant s 13 credibility, such as lack of candor about pertinent facts); Greger v. Barnhart, 464 F.3d 968, 14 972 (9th Cir. 2006) (reasonable to find claimant less than candid, and to discount 15 credibility, where he admitted doing carpentry work under the table after date last 16 insured). 17 In sum, the underlying opinion was free of legal error and supported by 18 substantial evidence. Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). Contrary 19 to Plaintiff s argument, the ALJ s critical credibility finding was not supported solely by 20 the lack of objective medical evidence supporting Plaintiff s degree-of-pain account. On 21 the contrary, that finding was also supported by Plaintiff s relatively conservative course 22 of care and his less than candid account about working (and why he stopped working) well 23 after he claimed to have been disabled. In accordance with the foregoing, the decision of 24 the Commissioner is affirmed. 25 DATED: August 13, 2013 26 27 RALPH ZAREFSKY UNITED STATES MAGISTRATE JUDGE 28 -3-
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