Byron Isreal Brown v. Carolyn W Colvin, No. 2:2013cv05465 - Document 18 (C.D. Cal. 2014)

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 both parties. (See Order for details) (bem)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 BYRON ISRAEL BROWN, 10 Plaintiff, 11 vs. 12 13 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 14 Defendant. 15 ) Case No. CV 13-5465-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 disability insurance 20 benefits ( DIB ) and Supplemental Security Income benefits 21 ( SSI ). The parties consented to the jurisdiction of the 22 undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c). This 23 matter is before the Court on the parties Joint Stipulation, 24 filed May 7, 2014, which the Court has taken under submission 25 without oral argument. For the reasons discussed below, the 26 Commissioner s decision is affirmed and judgment is entered in 27 her favor. 28 1 1 II. BACKGROUND 2 Plaintiff was born on June 16, 1971. 3 11th grade. (AR 43.) (AR 77.) He completed He worked full time from 1991 to 2005 and 4 sporadically through about 2007 selling and repairing musical 5 instruments and accessories in a shop owned by his parents. (AR 6 43-48, 73.) 7 8 SSI. On May 27, 2011, Plaintiff filed applications for DIB and (AR 28, 150-63.) He alleged that he had been unable to 9 work since July 1, 2006, because of right-eye problems, right-eye 10 cataracts, right-eye glaucoma, right-eye detached retina, kidney 11 stones, kidney infections, headaches caused by eye problems, 12 fatigue, flu-like symptoms, nausea, kidney pain, upset stomach, 13 difficulty with reading and concentration, [b]ad ankles, and 14 anxiety caused by eye problems. (AR 28, 150-63, 189.) After 15 Plaintiff s applications were denied initially and on 16 reconsideration, he requested a hearing before an Administrative 17 Law Judge. 18 (AR 115-16.) A hearing was held on January 20, 2012, at which Plaintiff, 19 who was represented by counsel, testified, as did a vocational 20 expert ( VE ). (AR 40-76.) In a written decision issued 21 February 21, 2012, the ALJ determined that Plaintiff was not 22 disabled. (AR 28-35.) 23 Appeals Council review. 24 denied the request. On February 23, 2012, Plaintiff requested (AR 23.) (AR 1-4.) On June 27, 2013, the council This action followed. 25 III. STANDARD OF REVIEW 26 Under 42 U.S.C. § 405(g), a district court may review the 27 Commissioner s decision to deny benefits. The ALJ s findings and 28 decision should be upheld if they are free of legal error and 2 1 supported by substantial evidence based on the record as a whole. 2 Id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. 3 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence 4 means such evidence as a reasonable person might accept as 5 adequate to support a conclusion. Richardson, 402 U.S. at 401; 6 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It 7 is more than a scintilla but less than a preponderance. 8 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 9 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). To determine whether 10 substantial evidence supports a finding, the reviewing court 11 must review the administrative record as a whole, weighing both 12 the evidence that supports and the evidence that detracts from 13 the Commissioner s conclusion. 14 720 (9th Cir. 1996). Reddick v. Chater, 157 F.3d 715, If the evidence can reasonably support 15 either affirming or reversing, the reviewing court may not 16 substitute its judgment for that of the Commissioner. Id. at 17 720-21. 18 IV. THE EVALUATION OF DISABILITY 19 People are disabled for purposes of receiving Social 20 Security benefits if they are unable to engage in any substantial 21 gainful activity owing to a physical or mental impairment that is 22 expected to result in death or which has lasted, or is expected 23 to last, for a continuous period of at least 12 months. 42 24 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 25 (9th Cir. 1992). 26 A. 27 The ALJ follows a five-step sequential evaluation process in The Five-Step Evaluation Process 28 assessing whether a claimant is disabled. 3 20 C.F.R. 1 §§ 404.1520(a)(4), 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 2 828 n.5 (9th Cir. 1995) (as amended Apr. 9, 1996). In the first 3 step, the Commissioner must determine whether the claimant is 4 currently engaged in substantial gainful activity; if so, the 5 claimant is not disabled and the claim must be denied. 6 §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not 7 engaged in substantial gainful activity, the second step requires 8 the Commissioner to determine whether the claimant has a severe 9 impairment or combination of impairments significantly limiting 10 his ability to do basic work activities; if not, a finding of not 11 disabled is made and the claim must be denied. 12 §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). 13 If the claimant has a severe impairment or combination of 14 impairments, the third step requires the Commissioner to 15 determine whether the impairment or combination of impairments 16 meets or equals an impairment in the Listing of Impairments 17 ( Listing ) set forth at 20 C.F.R., Part 404, Subpart P, Appendix 18 1; if so, disability is conclusively presumed and benefits are 19 awarded. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the 20 claimant s impairment or combination of impairments does not meet 21 or equal an impairment in the Listing, the fourth step requires 22 the Commissioner to determine whether the claimant has sufficient 23 residual functional capacity ( RFC )1 to perform his past work; 24 if so, the claimant is not disabled and the claim must be denied. 25 §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). The claimant has the 26 27 28 1 RFC is what a claimant can do despite existing exertional and nonexertional limitations. 20 C.F.R. §§ 404.1545, 416.945; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 4 1 burden of proving he is unable to perform past relevant work. 2 Drouin, 966 F.2d at 1257. If the claimant meets that burden, a 3 prima facie case of disability is established. Id. If that 4 happens or if the claimant has no past relevant work, the 5 Commissioner then bears the burden of establishing that the 6 claimant is not disabled because he can perform other substantial 7 gainful work available in the national economy. 8 §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). That determination 9 comprises the fifth and final step in the sequential analysis. 10 §§ 404.1520, 416.920; Lester, 81 F.3d at 828 n.5; Drouin, 966 11 F.2d at 1257. 12 B. 13 At step one, the ALJ found that Plaintiff had not engaged in The ALJ s Application of the Five-Step Process 14 any substantial gainful activity since July 1, 2006, his alleged 15 onset date. (AR 30.) At step two, he concluded that Plaintiff 16 had the severe impairments of diabetic nephrolithiasis and a 17 visual impairment. 2 (Id.) At step three, he determined that 18 Plaintiff s impairments did not meet or equal any of the 19 impairments in the Listing. (AR 32.) At step four, the ALJ 20 found that Plaintiff had the RFC to perform light work requiring 21 only occasional depth perception and a limited field of vision. 22 (Id.) Based on the VE s testimony, the ALJ concluded that 23 Plaintiff was able to perform his past relevant work as a 24 musical-instruments salesperson. (AR 34.) 25 determined that Plaintiff was not disabled. Accordingly, he (AR 35.) 26 27 2 Nephrolithiasis means that kidney stones are present. 28 See Stedman s Medical Dictionary 1191 (27th ed. 2000). 5 1 V. DISCUSSION 2 Plaintiff claims the ALJ erred in assessing (1) his 3 credibility and (2) nonexertional limitations arising from his 4 visual impairment. 5 A. 6 7 (J. Stip. at 3.) The ALJ Properly Assessed Plaintiff s Credibility 1. Applicable law An ALJ s assessment of symptom severity and claimant 8 credibility is entitled to great weight. See Weetman v. 9 Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. Heckler, 779 10 F.2d 528, 531 (9th Cir. 1986). [T]he ALJ is not required to 11 believe every allegation of disabling pain, or else disability 12 benefits would be available for the asking, a result plainly 13 contrary to 42 U.S.C. § 423(d)(5)(A). Molina v. Astrue, 674 14 F.3d 1104, 1112 (9th Cir. 2012) (internal quotation marks 15 omitted). 16 In evaluating a claimant s subjective symptom testimony, the 17 ALJ engages in a two-step analysis. 18 at 1035-36. See Lingenfelter, 504 F.3d First, the ALJ must determine whether the claimant 19 has presented objective medical evidence of an underlying 20 impairment [that] could reasonably be expected to produce the 21 pain or other symptoms alleged. 22 marks omitted). Id. at 1036 (internal quotation If such objective medical evidence exists, the 23 ALJ may not reject a claimant s testimony simply because there 24 is no showing that the impairment can reasonably produce the 25 degree of symptom alleged. Smolen v. Chater, 80 F.3d 1273, 1282 26 (9th Cir. 1996) (emphasis in original). When the ALJ finds a 27 claimant s subjective complaints not credible, the ALJ must make 28 specific findings that support the conclusion. 6 See Berry v. 1 Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). Absent affirmative 2 evidence of malingering, those findings must provide clear and 3 convincing reasons for rejecting the claimant s testimony. 4 Lester, 81 F.3d at 834. If the ALJ s credibility finding is 5 supported by substantial evidence in the record, the reviewing 6 court may not engage in second-guessing. Thomas v. Barnhart, 7 278 F.3d 947, 959 (9th Cir. 2002). 8 9 2. Relevant background Plaintiff testified that his first bout of kidney-related 10 illness led to hospitalization in July 2006, but his doctors 11 thereafter just seemed to be telling me to watch my diet and to 12 always [drink] a lot of water. (AR 52.) He said, however, that 13 he started being sick all the time with what sort of feels like 14 a flu, with kind of a queasiness and stomach pains, and he had 15 recurrent kidney infections requiring brief hospitalizations. 16 (AR 53-54.) He testified that he had learned to avoid 17 infections, primarily by drinking large amounts of water, but 18 still suffered kidney stones and pain. 19 (AR 53.) Plaintiff testified that he had suffered eye problems 20 beginning in childhood but that they became more significant 21 following a major right-eye retinal detachment in 2006. 22 55.) (AR 54- That was repaired with surgery in August 2006, and 23 Plaintiff had other right-eye procedures in 2007 and 2010. 24 56.) (AR Plaintiff testified that as a result of his right-eye 25 problems and procedures, he could sort of see colors and shapes, 26 but it s sort of like looking through 7up and wax paper with his 27 right eye. 28 (AR 57.) His left eye [wa]s okay. (Id.) Plaintiff testified, however, that because his right eye had 7 1 been his dominant eye, he sometimes had trouble reading or 2 concentrating on a computer screen, which gave him headaches and 3 made it difficult to concentrate. (AR 57 58.) Plaintiff had a 4 driver s license but drove only during the day. (AR 43, 47, 58.) 5 He testified that although he had 20/30 eyesight in his left eye, 6 on a grey day, [t]he messed up [right] eye kind of takes 7 over. (AR 58; see AR 484, 492 (2009 and 2011 eye 8 examinations).) 9 Plaintiff testified that he had not worked full time since 10 before his 2005 cataract surgery but that he had continued to 11 work when healthy until 2007, shortly before his parents sold 12 their business. (AR 51, 60-63.) He had been advised by his 13 doctors not to lift more than about 20 pounds so as to avoid 14 putting too much pressure on his right eye. (AR 60.) He said he 15 could [s]ometimes walk 30 minutes, did not require a cane, 16 could [u]sually stand for an hour, and could sit for two hours. 17 (Id.)3 Plaintiff testified that his general practitioner had 18 advised him to continue to exercise, and that he continued to try 19 to walk and hike, but it s kind of limited. 20 (AR 65.) On a normal day, Plaintiff drank a lot of water, went for a 21 walk, tidied the house, played guitar for about 45 minutes, and 22 checked email and used the computer until he got a headache, 23 usually after about 20 minutes. (AR 66-67.) He said that he was 24 incapacitated by his symptoms for about a week each month. 25 68.) (AR He testified that the really strong [kidney] pain happens 26 27 28 3 Significantly, Plaintiff s live-in girlfriend stated that his conditions did not affect his ability to walk or stand. (See AR 206 (question 22).) 8 1 maybe every [three] or four months but that he suffered flu-like 2 symptoms almost every other week. (AR 69.) 3 kidney trouble, he slept irregularly. (Id.) When Plaintiff had He said he suffered 4 moderate headaches all the time and really extreme, kind of 5 bone crushing headaches on the side of the right eye a few times 6 a month. (AR 69-70.) 7 counter Tylenol. Plaintiff treated the pain with over-the- (AR 70.) His eye issues also caused 8 claustrophobia and psychological discomfort in certain lighting 9 because of his right-eye perception problems. 10 (AR 71-72.) The VE testified that a person of Plaintiff s age, 11 education, and work history who was limited to light work and 12 occasional field of vision could do his past relevant work as a 13 musical instruments and accessories salesperson. (AR 72-74.) In 14 response to questioning by Plaintiff s attorney, the VE testified 15 that such a person could not do Plaintiff s past work or maintain 16 any other competitive employment if he were to miss two or three 17 days of work a month because of health problems. 18 19 3. (AR 75-76.) Analysis The ALJ discounted Plaintiff s symptom testimony because he 20 found that neither the medical evidence nor Plaintiff s 21 activities supported the alleged intensity, persistence, and 22 limiting effects of Plaintiff s symptoms. (AR 33.) In 23 particular, the ALJ rejected the suggestion that Plaintiff s 24 impairments would cause him to miss two or three days of work a 25 month. 26 27 (Id.) a. Treatment records Plaintiff contends that the ALJ erred in finding his 28 testimony that he would miss two or three days of work a month 9 1 because of his symptoms unsupported by substantial objective, 2 medical and clinical evidence. (AR 33; J. Stip. at 7.) 3 Plaintiff lists records confirming recurrent kidney stones and 4 repeated eye operations, but he does not explain how these 5 records support his claim that he would miss too much work to 6 maintain competitive employment. 7 (J. Stip. at 7-8; see AR 33.) The ALJ noted Plaintiff s diabetes-related chronic kidney 8 infections and stones and that the resulting pain and fatigue 9 . . . limit his ability to lift/carry and perform other basic 10 work-related activities. (AR 30.) The ALJ further noted that 11 Plaintiff s first instance of kidney problems, in 2006, led to 12 serious illness but found no evidence of recent complications 13 warranting emergency-room or hospital treatment. (Id.; see AR 14 468, 469 (in January and May 2011, Plaintiff reporting passage of 15 kidney stones that he apparently managed without seeking 16 treatment).) As Plaintiff notes, he suffered kidney stones five 17 times in five years. 18 468, 469.) (See J. Stip. at 7; see AR 255, 273, 286, Although those incidents were undoubtedly very 19 painful, he had not suffered kidney stones frequently enough that 20 they would be expected to keep him out of work for two or three 21 days a month, or even every three to four months, as he 22 testified. (AR 69 ( the really strong pain came every three to 23 four months).) 24 Moreover, as was evident from Plaintiff s testimony and 25 treatment records, he was able to manage his kidney ailments with 26 conservative care. (See AR 33.) Plaintiff testified that he 27 avoided kidney infections by regularly drinking large quantities 28 of water. (AR 53.) Although he sought emergency-room treatment 10 1 for his kidney stones in September 2006 and November 2008, in 2 each case he was treated with fluids and medication and was 3 discharged the same day. (See AR 273, 288, 290.) And when he 4 had kidney stones in January and May 2011, Plaintiff sought no 5 treatment, only reporting the passage of the stones to his 6 physician at later appointments. (See AR 468-69.) His doctor 7 encouraged him to maintain oral hydration and adhere to a low8 salt, low-cholesterol, low-oxalate diet. (AR 33, 468-69.) 9 Further, Plaintiff managed even his worst pain with 10 nonprescription pain medication. (See AR 70, 211, 289.) Such 11 conservative treatment undermines Plaintiff s contention of 12 disabling symptoms. (See AR 33 (ALJ noting that [d]espite 13 [kidney] condition, the claimant was advised to participate in 14 regular exercise activities, and just to avoid heavy weight 15 bearing )); Parra, 481 F.3d at 751 ( [E]vidence of conservative 16 treatment is sufficient to discount a claimant s testimony 17 regarding severity of an impairment. ). 18 Although Plaintiff asserts that [t]he objective evidence of 19 glaucoma and additional retinal detachments is completely ignored 20 by the ALJ in his decision (J. Stip. at 8), the ALJ explicitly 21 incorporated into Plaintiff s RFC his right-eye vision 22 impairments, limiting him to occasional depth perception and 23 limited field of vision. (AR 32.) Moreover, as discussed 24 further below, although Plaintiff suffered repeated right-eye 25 retinal detachments, he retained 20/30 left-eye and combined 26 visual acuity, including after his treatment for glaucoma. 27 484, 492; see infra Sections V.A.3.b, V.B.) 28 It is true, as Plaintiff notes, that an ALJ may not 11 (AR 1 disregard a claimant s subjective-symptom testimony solely 2 because it is not substantiated affirmatively by objective 3 medical evidence. (See J. Stip. at 7 (citing Bunnell v. 4 Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991))); Robbins, 466 5 F.3d at 883. The ALJ may, however, use the medical evidence in 6 the record as one factor in the evaluation. See Burch v. 7 Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) ( Although lack of 8 medical evidence cannot form the sole basis for discounting pain 9 testimony, it is a factor that the ALJ can consider in his 10 credibility analysis. ); Carmickle v. Comm r Soc. Sec. Admin., 11 533 F.3d 1155, 1161 (9th Cir. 2008) ( Contradiction with the 12 medical record is a sufficient basis for rejecting the claimant s 13 subjective testimony. ); Lingenfelter, 504 F.3d at 1040 (in 14 determining credibility, ALJ may consider whether the alleged 15 symptoms are consistent with the medical evidence ). Here, the 16 ALJ properly noted the inconsistencies between Plaintiff s 17 medical records and his allegations of disabling kidney and eye 18 impairments in assessing his credibility. 19 20 b. Dr. Rocelly Ella-Tamayo Plaintiff also objects to the ALJ s reliance on the findings 21 of examining physician Rocelly Ella-Tamayo. 22 33.) (J. Stip. at 8; AR Dr. Ella-Tamayo performed a complete internal medicine 23 evaluation of Plaintiff on behalf of the agency on July 18, 2011. 24 (AR 486-91.) She noted Plaintiff s repeated eye surgeries and 25 right-eye blindness, 2006 hospitalization for kidney infection, 26 and recurrent kidney stones and infections. (AR 486-87.) He 27 reported that he could walk six blocks and lift 25 pounds but 28 drove rarely. (AR 487.) Upon examination, Dr. Ella-Tamayo found 12 1 that glasses improved Plaintiff s decreased left-eye visual 2 acuity but not his poor right-eye vision. (AR 488.) 3 Specifically, Plaintiff s right-eye vision was 20/200+ even with 4 glasses, but glasses improved his left-eye and combined visual 5 acuity to 20/30. (See AR 492.) 6 inflamed retina. (AR 488.) 7 otherwise normal. 8 She noted constricted pupils and The results of her examination were (See AR 488-90.) Dr. Ella-Tamayo diagnosed poor right-eye vision and history 9 of recurrent left-kidney stones. (AR 490.) She opined that 10 Plaintiff should be restricted to pushing, pulling, lifting, and 11 carrying 20 pounds occasionally and 10 pounds frequently because 12 of his retinal bleeding. (Id.) She found him capable of six 13 hours of walking or standing in an eight-hour workday and 14 unlimited sitting. 15 (Id.) She assessed no other limitations. Plaintiff does not specifically challenge any of Dr. Ella- 16 Tamayo s findings. He contends, however, that the ALJ erred in 17 relying on her opinion because she was a Board-eligible, not 18 Board-certified, internist whose license was to expire on March 19 31, 2012; she examined Plaintiff only once; and she reviewed only 20 one medical record, documenting his 2010 eye surgery. 21 at 8.) (J. Stip. First, although the doctor indicated in June 2011 that 22 her license would expire in March 2012 (see AR 491), she was 23 indisputably licensed at the time of Plaintiff s examination and 24 has since renewed her license.4 She did not need to be Board- 25 26 27 28 4 The license to practice medicine in California must be renewed every two years. See Physicians and Surgeons License Renewal, Med. Bd. of Cal., http://www.mbc.ca.gov/Licensees/ License_Renewal/Physicians_and_Surgeons.aspx (last visited Sept. 3, 2014). Dr. Ella-Tamayo s license to practice medicine remains 13 1 certified to practice medicine in California,5 nor does Plaintiff 2 allege that her training was inadequate to permit a thorough and 3 valid examination. See Kladde v. Astrue, No. ED CV 07-01439(SH), 4 2009 WL 838104, at *5 (C.D. Cal. Mar. 26, 2009) (finding record 5 supported ALJ s decision to give greater weight to examining 6 doctor when Plaintiff did not allege that his Board-eligible 7 status rendered him unable to conduct valid assessment). 8 Second, a physician need not have examined the claimant at 9 all to offer an opinion in a Social Security case. See Lester, 10 81 F.3d at 830 (noting that treating, examining, and nonexamining 11 physicians may offer opinions). The fact that Dr. Ella-Tamayo 12 examined Plaintiff, however, adds to the weight due her opinion. 13 Id. (noting that treating physician s opinion is generally 14 entitled to more weight than that of examining physician, and 15 examining physician s opinion to more weight than that of 16 nonexamining physician). §§ 404.1527(c)(1), 416.927(c)(1); 17 Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) 18 (holding examining physician s opinion alone constitutes 19 substantial evidence, because it rests on his own independent 20 examination of [claimant] ). 21 22 current through March 31, 2016. 23 24 25 26 27 28 See License Details, Cal. Dep t of Consumer Affairs, https://www.breeze.ca.gov/datamart/details CADCA.do?selector=false&selectorType=&selectorReturnUrl=&anchor= cd31f38.0.0 (last visited Sept. 3, 2014). 5 A physician becomes Board eligible upon completion of the training necessary for Board certification in a given specialty. See General Policies & Requirements, Am. Bd. of Internal Med., http://www.abim.org/certification/policies/general-policiesrequirements.aspx (last visited Sept. 3, 2014). Board eligibility lasts seven years or until the physician passes the examination for certification in a given specialty. Id. 14 1 Third, although Dr. Ella-Tamayo did not review the entirety 2 of Plaintiff s medical history, she reviewed records pertaining 3 to his most recent right-eye surgery and recorded Plaintiff s 4 reports of eye procedures, right-eye glaucoma, and chronic kidney 5 infections and stones, including a kidney stone passed only a 6 week before the examination. (AR 486-87.) Plaintiff proffers no 7 basis for thinking that the records provided, his report of his 8 symptoms and medical history, and Dr. Ella-Tamayo s physical, 9 musculoskeletal, and neurological examinations of him provided an 10 insufficient or inaccurate basis for her functional assessment. 11 See Orn v. Astrue, 495 F.3d 625, 631 32 (9th Cir. 2007) (ALJ 12 entitled to rely on opinion of examining doctor that is supported 13 by independent clinical findings); Castaneda v. Astrue, 344 F. 14 App x 396, 398 (9th Cir. 2009) (holding ALJ did not err in 15 relying on examining doctor s assessment even if doctor did not 16 review all medical records). 17 18 c. Daily activities Plaintiff contends that the ALJ erred in finding his symptom 19 testimony inconsistent with his extensive activities of daily 20 living. (AR 33; J. Stip. at 5.) The ALJ noted that Plaintiff 21 and his girlfriend reported his regular activities to include 22 cooking, cleaning, doing the dishes, cleaning the shower, 23 occasionally watering the lawn, running errands, caring for a 24 cat,6 going for coffee, driving on familiar streets in the 25 daytime, shopping for food and guitar parts, playing a guitar and 26 performing small repairs and modifications, going to a local 27 6 This 28 addition to apparently included regularly giving him medicine in food and water. (AR 202, 212-13.) 15 1 restaurant or occasionally to the post office, networking with 2 others, watching television, surfing the internet, going for 3 walks, and vacuuming. (AR 33 (citing AR 201-19); see also AR 65 4 (Plaintiff still walked and hiked), 66-67 (on average day, 5 Plaintiff walked, tidied house, played guitar, and checked email 6 and used computer).) Plaintiff also testified that he still 7 played in a band, which performed in public one or two times a 8 year. (AR 47.) He also sometimes played in friends bands, to 9 help[] [them] out. Further, on his function report (AR 48.) 10 he indicated that he rode a bicycle for transportation in 11 addition to walking and driving. 12 (AR 215.) Although Plaintiff does not dispute that he is able to do 13 these things, he contends that they represent no more than some 14 limited activities of daily living. (J. Stip. at 6.) The ALJ 15 properly found, however, that Plaintiff s and his girlfriend s 16 statements show that he spent a substantial part of his day 17 engaged in pursuits involving the performance of physical 18 functions that are transferable to a work setting. Morgan v. 19 Comm r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999) 20 (finding claimant s ability to fix meals, do laundry, do 21 yardwork, and occasionally care for friend s child evidence of 22 ability to work); see Thomas, 278 F.3d at 959 (finding claimant s 23 ability to perform various household chores such as cooking, 24 laundry, washing dishes, and shopping was specific and 25 legitimate reason to discount credibility of her allegations); 26 Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (ALJ was 27 permitted to consider that claimant performed various household 28 chores such as cooking, doing the dishes, going to the store, 16 1 visiting relatives, and driving in assessing credibility). 2 Claimant emphasizes his statements that his activity level 3 varied with pain and fatigue, he cooked only simple foods and did 4 so less frequently than previously, and he did guitar repair work 5 less often than before his vision worsened. (J. Stip. at 6.) 6 The ALJ noted, however, that Plaintiff s activities were subject 7 to restrictions. (See, e.g., AR 30 (noting that Plaintiff s 8 nephrolithiasis causes him to experience pain and fatgue which 9 in turn limit his ability to lift/carry and perform other basic 10 work-related activities ), 31 (noting that his limited visual 11 acuity on the right would cause difficulty performing tasks 12 requiring depth perception ), 33 (noting that he drove only on 13 familiar streets in the daytime and only occasionally visited 14 post office).) To the extent these activities are inconsistent 15 with Plaintiff s claims of disabling impairments, however, the 16 ALJ was entitled to rely on them in discounting his credibility. 17 See Molina, 674 F.3d at 1113 ( Even where [claimant s] activities 18 suggest some difficulty functioning, they may be grounds for 19 discrediting the claimant s testimony to the extent that they 20 contradict claims of a totally debilitating impairment. ). 21 On appellate review, this Court is limited to determining 22 whether the ALJ properly identified reasons for discrediting 23 Plaintiff s credibility. Smolen, 80 F.3d at 1284. The 24 inconsistencies between Plaintiff s allegations and the 25 medical evidence, his daily activities, and his conservative 26 treatment were proper and sufficiently specific bases for 27 discounting his claims of disabling symptoms, and the ALJ s 28 reasoning was clear and convincing. 17 See Tommasetti v. Astrue, 1 533 F.3d 1035, 1039-40 (9th Cir. 2008); Houghton v. Comm r Soc. 2 Sec. Admin., 493 F. App x 843, 845 (9th Cir. 2012). Because the 3 ALJ s findings were supported by substantial evidence, this Court 4 may not engage in second-guessing. See Thomas, 278 F.3d at 959; 5 Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989). 6 Plaintiff is not entitled to remand on this ground. 7 B. 8 9 The ALJ Properly Considered Plaintiff s Visual Impairment in Formulating His RFC Plaintiff contends that by limiting him to jobs requiring 10 only occasional depth perception and limited field of vision, 11 the ALJ did not adequately account for Plaintiff s nonexertional 12 limitations, such as pain, headaches, double vision, decreased 13 concentration, anxiety and fatigue. 7 14 (AR 32; J. Stip. at 13.) As explained above, the ALJ properly determined that 15 Plaintiff s allegations were not wholly credible. Thus, he was 16 17 7 Plaintiff also complains that the ALJ s depth-perception 18 limitation was erroneous because, [g]iven that depth perception is dependent upon the use of both eyes and Plaintiff only has 19 vision in one eye, he would have no depth perception. (J. Stip. He cites no authority 20 at 18.) to be inaccurate. See,for this proposition, which appears e.g., Thomas Politzer, 21 Implications of Acquired Monocular Vision (Loss of One Eye), available at: Neuro-Optometric Rehabilitation Ass n, 22 https://nora.cc/for-patients-mainmenu-34/loss-of-one-eye-mainmenu -70.html (last visited Sept. 12, 2014) ( Absence of stereopsis 23 does not mean the individual will have no depth perception. . . . be 24 [T]here are monocular cues to depth that cancan learned through experience. Problems with depth perception be addressed by 25 visual rehabilitation training for eye hand coordination, 26 27 28 relative depth judgment and spatial orientation. ). In any event, the ALJ recognized that Plaintiff was legally blind in the right eye (AR 33), and his hypothetical to the VE included that Plaintiff would have occasional depth perception, limited field of vision; by that I mean he can only see out of one eye (AR 73). 18 1 required to include in his RFC determination only those 2 limitations he found credible and supported by substantial 3 evidence. See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 4 2005); Hayee v. Comm r of Soc. Sec., 532 F. App x 690, 691 (9th 5 Cir. 2013). 6 Moreover, although Plaintiff contends that the ALJ failed to 7 summarize the objective evidence of his eye impairments, the ALJ 8 in fact noted Plaintiff s bilateral cataract surgeries, 9 recurrent retinal detachments, right-eye sclera buckle surgery, 10 right-eye pars plana vitrectomy, membrane peel, endolaser 11 photocoagulation, air fluid exchange and silicone implantation, 12 and second vitrectomy three years later. (AR 30-31.) The ALJ 13 further found that Plaintiff s limited visual acuity would 14 cause difficulty performing tasks requiring depth perception. 15 (AR 31.) The ALJ also noted, however, that although Plaintiff 16 was legally blind in his right eye, his corrected left-eye and 17 combined visual acuity was 20/30. (AR 33; see AR 492; see also 18 AR 33 (noting 20/25 visual acuity in 2009).) To the extent 19 Plaintiff asserts that the ALJ should have summarized the eye20 impairment evidence in greater detail, he was not required to do 21 so. See Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 22 (9th Cir. 2003) ( [I]n interpreting the evidence and developing 23 the record, the ALJ does not need to discuss every piece of 24 evidence. ). 25 Plaintiff also contends that the ALJ erred in failing to 26 incorporate into the RFC additional limitations based upon the 27 July 5, 2011 letter from optometrist Irene N. Sang. 28 15; see AR 484.) (J. Stip. at Although Dr. Sang noted that Plaintiff had been 19 1 a patient in her office since May 1994 and she was thus familiar 2 with his previous history of very high myopia and multiple 3 surgical repairs, she had seen him only once after July 2005, in 4 November 2009. (AR 484.) Dr. Sang was therefore unable to 5 provide very recent findings or opine as to Plaintiff s visual 6 function as of the date of her letter. She reported that when 7 she saw Plaintiff in November 2009, his corrected right-eye 8 visual acuity was 20/400, corrected left-eye visual acuity was 9 20/25-30, and intraocular pressures were normal, and he was being 10 treated for right-eye glaucoma. (Id.) Dr. Sang was otherwise 11 able to say only that, based upon Plaintiff s medical history, he 12 likely has some difficulty reading because of his decreased 13 right-eye acuity and that such difficulty could . . . effect 14 [sic] his ability to concentrate for long periods of time. 15 (Id.) 16 Although Plaintiff contends that [t]here is no reference or 17 summary of this report in the ALJ s decision (J. Stip. at 15), 18 the ALJ in fact explicitly relied upon Dr. Sang s findings that 19 Plaintiff s corrected visual acuity in his better eye is 20/25 20 in assessing whether his eye impairments met a Listing (AR 32 21 (citing AR 484)). Notably, Dr. Sang s findings are consistent 22 with those of Dr. Ella-Tamayo that Plaintiff had corrected left23 eye and combined visual acuity of 20/30 in July 2011. 24 492.) (AR 33, Thus, although Plaintiff continued to suffer eye issues 25 requiring medical treatment after his 2009 visit with Dr. Sang 26 (see AR 484 (noting 2010 oil-removal procedure and 2009 treatment 27 for glaucoma)), his corrected eyesight remained the same. Dr. 28 Sang s objective findings based on her November 2009 examination 20 1 of Plaintiff did not, therefore, warrant limitations beyond those 2 in his RFC. 3 To the extent Dr. Sang purported to opine as to Plaintiff s 4 eye function and limitations as of July 2011, her statements were 5 not based on any recent findings but, rather, were little more 6 than speculation, albeit informed by her familiarity with 7 Plaintiff s eye-treatment history. She emphasized that her 8 first-hand familiarity with Plaintiff s then-current medical 9 status was limited. (See, e.g., AR 484 ( I have only seen him 10 once after July, 2005 ).) Moreover, her opinion as to 11 Plaintiff s likely difficulty reading and possible difficulty 12 concentrating was based upon his report of symptoms, which the 13 ALJ properly discounted insofar as they were inconsistent with 14 his medical records and daily activities.8 15 disregarded that portion of her opinion. The ALJ fairly See Fair, 885 F.2d at 16 605 (finding ALJ properly disregarded physician s opinion when it 17 was premised on claimant s subjective complaints, which ALJ had 18 already discounted). 19 The RFC thus properly included those visual limitations that 20 the ALJ found credible and supported by record evidence. 21 See Bayliss, 427 F.3d at 1217; cf. Robbins, 466 F.3d at 886. 22 Remand is not warranted on this basis. 23 24 25 26 27 28 8 Moreover, optometrists are limited to providing evidence for purposes of establishing visual disorders. §§ 404.1513(a)(3), 416.913(a)(3). Dr. Sang s opinion concerning Plaintiff s ability to concentrate may be too far afield from establishing a visual disorder to count as coming from an acceptable medical source. 21 1 VI. CONCLUSION 2 Consistent with the foregoing, and pursuant to sentence four 3 of 42 U.S.C. § 405(g),9 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 10 DATED: September 16, 2014 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 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. 22

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