Greg Simpson v. Nancy A. Berryhill, No. 2:2017cv01095 - Document 24 (C.D. Cal. 2017)

Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that Judgment be entered AFFIRMING the decision of the Commissioner. The Clerk of the Court shall serve copies of this Order and the Judgment on counsel for both parties. (See document for further details). (mr)

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Greg Simpson v. Nancy A. Berryhill Doc. 24 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 GREG ALLEN SIMPSON, Plaintiff, 12 13 14 15 16 CASE NO. CV 17-1095 SS MEMORANDUM DECISION AND ORDER v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. 17 18 I. 19 INTRODUCTION 20 21 Greg Allen Simpson (“Plaintiff”) brings this action seeking 22 to overturn the decision of the Acting Commissioner of Social 23 Security (the “Commissioner” or “Agency”) denying his application 24 for Disability Insurance Benefits. The parties consented, pursuant 25 to 28 U.S.C. § 636(c), to the jurisdiction of the undersigned 26 United States Magistrate Judge. (Dkt. Nos. 11-13). For the reasons 27 stated below, the Court AFFIRMS the Commissioner’s decision. 28 Dockets.Justia.com 1 II. 2 PROCEDURAL HISTORY 3 4 On April 16, 2012, Plaintiff filed an application for 5 Disability Insurance Benefits (“DIB”) pursuant to Title II of the 6 Social Security Act alleging a disability onset date of June 1. 7 2003. (AR 207-08). 8 applications initially 9 Plaintiff requested a hearing before an Administrative Law Judge 10 (“ALJ”) (AR 99-100), which took place on May 13, 2015 (AR 49-74). 11 The ALJ issued an adverse decision on June 5, 2015, finding that 12 Plaintiff was not disabled because he was capable of performing 13 his past relevant work as a construction painter. 14 December 14, 2016, the Appeals Council denied Plaintiff’s request 15 for review. (AR 1-9). The and Commissioner on denied reconsideration. Plaintiff’s (AR 75-97). (AR 19-25). On This action followed on February 10, 2017. 16 17 III. 18 FACTUAL BACKGROUND 19 20 Plaintiff was born on November 19, 1956. (AR 230). He was 21 fifty-eight years old when he appeared before the ALJ on May 13, 22 2015. (AR 49). Plaintiff completed the eleventh grade and does 23 not have a GED. (AR 67). He is married and lives with his wife. 24 (AR 54-55). 25 painter. 26 broken 27 cholesterol. Plaintiff last worked in 1999 as a construction (AR 38, 70). back, nerve He alleges disability due to a broken neck, damage, depression, (AR 210). 28 2 anxiety and high 1 A. Plaintiff’s Statements And Testimony 2 3 In a July 2013 statement, Plaintiff reported being in a car 4 accident on March 27, 1999. 5 damage, which leaves him in severe pain on a daily basis even while 6 medicated. 7 level of his pain has increased, even with increased medication 8 dosages. 9 sleep more than three to four hours. (AR 257-58). He has frequent, (AR 258). (AR 257-58). (AR 258). He suffered permanent nerve Over the last few years, the frequency and Plaintiff is always tired but unable to 10 severe, uncontrollable spasms in his arms. 11 has caused additional conditions, including erectile dysfunction 12 and depression. 13 and wrist falling off the roof of a two-story home. 14 These injuries caused pain in his left leg making it difficult to 15 stand or sit for long periods of time. 16 difficulty bending, tying his shoes, cooking, eating, bathing and 17 driving. (AR 258). (AR 258). The pain In 2010, Plaintiff broke his lower back (AR 258). (AR 258). He has extreme (AR 258). 18 19 Plaintiff testified that he has had ongoing problems since he 20 fractured his neck in a motor vehicle accident in 1999. 21 52). 22 places. 23 the 24 extremities, limiting his ability to use his arms and hold objects. 25 (AR 66). (AR 51- In 2008, he fell off a ladder, fracturing his back in two (AR 56-57). pain. (AR 59). Plaintiff has trouble sleeping because of His pain 26 27 28 3 frequently radiates to his 1 B. Treatment History 2 1. 3 Medical Evidence Prior To Alleged Onset Date 4 5 In 1999, Plaintiff was involved in a motor vehicle accident, 6 resulting in a neck fracture and severe neck pain. 7 He subsequently was surgically treated with a C5-6 fusion and bone 8 graft. (AR 615-17). (AR 615-17). 9 10 Plaintiff presented to the emergency room on November 6, 2000, 11 complaining of neck soreness and right shoulder stiffness. 12 351). 13 fusion but was otherwise unremarkable. 14 compression fractures or subluxations were observed from C1 through 15 T1. 16 (AR 367). 17 encroachment at C5-6 but the remainder of the neural foramen were 18 symmetrically patent. 19 were no acute bony abnormalities. 20 prescribed Vicodin and ordered to rest and apply ice to his neck. 21 (AR 350).3 (AR An x-ray of Plaintiff’s cervical spine confirmed the C5-6 (AR 367). (AR 367). No acute No bone destruction or systemic arthritis was seen. Robert E. Krause, M.D., found mild neural foraminal (AR 367). Dr. Krause concluded that there (AR 367). Plaintiff was 22 23 In February 2001, Plaintiff presented to the emergency room 24 with lower back pain “after painting all day.” 25 denied any previous lower back pain symptoms. 26 diagnosed with a lumbar spine sprain and prescribed Motrin and 27 Vicodin. 28 discharge. (AR 345, 347). (AR 345). (AR 345). He He was Plaintiff was fully ambulatory upon (AR 346). 4 1 In June 2002, Plaintiff presented to the emergency room, 2 complaining of swelling in his right leg. 3 Plaintiff’s right tibia and fibula from the knee to the ankle joint 4 found no evidence of fracture, malalignment, radiopaque foreign 5 body or soft tissue gas. 6 to rest. 7 the swollen area with ice. (AR 342). (AR 366). (AR 342). An x-ray of Plaintiff was discharged home He was advised to elevate the leg and treat (AR 342). 8 2. 9 Medical Evidence After Date Last Insured 10 11 In monthly visits from February through October 2007, 12 Plaintiff reported that his medications were controlling his pain, 13 with no problems sleeping. (AR 535-43). In January 2008, Plaintiff 14 reported that his pain control was “not good” but by March 2008, 15 his pain was back under control with his medications. 16 531). (AR 529, 17 18 On April 28, 2008, Plaintiff was admitted to the hospital 19 after he fell from a ladder at work. 20 demonstrated an acute injury of the lumbar spine, with compression 21 deformities. 22 medications to control his pain. 23 Plaintiff had good range of motion and was cleared to return to 24 work. 25 well,” with his pain being controlled by medications. (AR 293). (AR 515). (AR 293). Multiple CT scans He was discharged on May 2, 2008, with (AR 293). On July 30, 2008, In September 2008, Plaintiff reported “doing (AR 513). 26 27 28 In July 2013, Plaintiff injured his thumb after “[m]oving furniture all day.” (AR 411). 5 In January 2014, Plaintiff 1 complained of severe arm pain after “he did a lot of lifting and 2 moving 3 unremarkable. 4 medications and 5 physician. (AR 398). 6 stabilized with his current medications. furniture.” (AR (AR 396). 396-98). advised An examination Plaintiff to follow-up was with was largely administered pain his care primary By February 2014, Plaintiff’s pain had (AR 389). 7 8 C. State Agency Consultant 9 10 On January 9, 2013, John T. Bonner, M.D., a state agency 11 consultant, reviewed all the available evidence in the medical 12 file. 13 evidence prior to December 31, 2006, the date last insured, of any 14 disabling condition. (AR 81-86). Dr. Bonner found that there was insufficient (AR 86). 15 16 IV. 17 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 18 To 19 qualify for disability benefits, a claimant must 20 demonstrate a medically determinable physical or mental impairment 21 that prevents the claimant from engaging in substantial gainful 22 activity and that is expected to result in death or to last for a 23 continuous period of at least twelve months. 24 157 F.3d 715, 721 (9th Cir. 1998) (citing 42 U.S.C. § 423(d)(1)(A)). 25 The impairment must render the claimant incapable of performing 26 work 27 employment that exists in the national economy. previously performed or any 28 6 other Reddick v. Chater, substantial gainful Tackett v. Apfel, 1 180 F.3d 1094, 2 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). 3 4 To decide if a claimant is entitled to benefits, an ALJ 5 conducts a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920. 6 The steps are: 7 8 (1) 9 activity? 10 11 Is the claimant presently engaged in substantial gainful If so, the claimant is found not disabled. If not, proceed to step two. (2) Is the claimant’s impairment 12 claimant is found not disabled. 13 severe? If not, the three. 14 (3) If so, proceed to step Does the claimant’s impairment meet or equal one of the 15 specific impairments described in 20 C.F.R. Part 404, 16 Subpart P, Appendix 1? 17 disabled. 18 (4) If so, the claimant is found If not, proceed to step four. Is the claimant capable of performing his past work? If 19 so, the claimant is found not disabled. 20 to step five. 21 (5) If not, proceed Is the claimant able to do any other work? 22 claimant is found disabled. 23 If not, the If so, the claimant is found not disabled. 24 25 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 26 262 F.3d 949, 953-54 (9th Cir. 2001); 20 C.F.R. §§ 404.1520(b)- 27 (g)(1), 416.920(b)-(g)(1). 28 7 1 The claimant has the burden of proof at steps one through four 2 and the 3 Bustamante, 262 F.3d at 953-54. 4 affirmative duty to assist the claimant in developing the record 5 at every step of the inquiry. 6 claimant meets his or her burden of establishing an inability to 7 perform past work, the Commissioner must show that the claimant 8 can perform some other work that exists in “significant numbers” 9 in the Commissioner national has economy, the burden of at step five. Additionally, the ALJ has an Id. at 954. taking proof into If, at step four, the account the claimant’s 10 residual functional capacity (“RFC”), age, education, and work 11 experience. 12 721; 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 13 may do so by the testimony of a VE or by reference to the Medical- 14 Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart P, 15 Appendix 2 (commonly known as “the grids”). 16 240 F.3d 1157, 1162 (9th Cir. 2001). 17 exertional (strength-related) and non-exertional limitations, the 18 Grids are inapplicable and the ALJ must take the testimony of a 19 vocational expert (“VE”). 20 Cir. 2000) (citing Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 21 1988)). Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at The Commissioner Osenbrock v. Apfel, When a claimant has both Moore v. Apfel, 216 F.3d 864, 869 (9th 22 23 V. 24 THE ALJ’S DECISION 25 26 The ALJ employed the five-step sequential evaluation process 27 and concluded that Plaintiff was not disabled within the meaning 28 of the Social Security Act. (AR 25). 8 At step one, the ALJ found 1 that Plaintiff has not engaged in substantial gainful activity 2 during the period from June 1, 2003, his alleged onset date, through 3 December 31, 2006, his date last insured. 4 the ALJ found that Plaintiff’s right arm neuropathy and cervical 5 pain syndrome status-post cervical spine injury and fusion are 6 severe impairments. 7 that Plaintiff does not have an impairment or combination of 8 impairments that meet or medically equal the severity of any of 9 the listings enumerated in the regulations. (AR 21). (AR 21). At step two, At step three, the ALJ determined (AR 22). 10 11 The ALJ then assessed Plaintiff’s RFC and concluded that he 12 can perform light work, as defined in 20 C.F.R. § 404.1567(b),1 13 except that Plaintiff is limited to “walking and/or standing for 14 six hours out of an eight-hour workday; and occasional overhead 15 use of bilateral arms.” 16 Plaintiff 17 construction painter. 18 Plaintiff was not under a disability, as defined by the Social 19 Security Act, at any time from June 1, 2003, the alleged onset 20 date, through December 31, 2006, the date last insured. is capable (AR 22). of At step four, the ALJ found that performing (AR 25). past relevant work as a Accordingly, the ALJ found that (AR 25). 21 22 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.” 20 C.F.R. § 404.1567(b). 1 23 24 25 26 27 28 9 1 VI. 2 STANDARD OF REVIEW 3 4 Under 42 U.S.C. § 405(g), a district court may review the 5 Commissioner’s decision to deny benefits. The court may set aside 6 the Commissioner’s decision when the ALJ’s findings are based on 7 legal error or are not supported by substantial evidence in the 8 record as a whole. 9 2014) (citing Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 10 1052 (9th Cir. 2006)); Auckland v. Massanari, 257 F.3d 1033, 1035 11 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1097); Smolen v. 12 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing Fair v. Bowen, 13 885 F.2d 597, 601 (9th Cir. 1989)). Garrison v. Colvin, 759 F.3d 995 (9th Cir. 14 15 “Substantial evidence is more than a scintilla, but less than 16 a preponderance.” 17 Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)). 18 evidence which a reasonable person might accept as adequate to 19 support a conclusion.” 20 Smolen, 21 evidence supports a finding, the court must “‘consider the record 22 as a whole, weighing both evidence that supports and evidence that 23 detracts from the [Commissioner’s] conclusion.’” 24 F.3d at 1035 (citing Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 25 1993)). 26 or reversing that conclusion, the court may not substitute its 27 judgment for that of the Commissioner. 28 21 (citing Flaten v. Sec’y, 44 F.3d 1453, 1457 (9th Cir. 1995)). 80 F.3d Reddick, 157 F.3d at 720 (citing Jamerson v. at It is “relevant Id. (citing Jamerson, 112 F.3d at 1066; 1279). To determine whether substantial Auckland, 257 If the evidence can reasonably support either affirming 10 Reddick, 157 F.3d at 720- 1 VII. 2 DISCUSSION 3 4 Plaintiff asserted that he is unable to work due to severe, 5 chronic pain, difficulty sleeping and uncontrollable arm spasms. 6 (AR 53-54, 59, 66, 257-58). 7 for long periods of time and has extreme difficulty bending, tying 8 his shoes, cooking, eating, bathing and driving. He claims that he cannot stand or sit (AR 258). 9 10 When assessing a claimant’s credibility regarding subjective 11 pain or intensity of symptoms, the ALJ must engage in a two-step 12 analysis. 13 First, the ALJ must determine if there is medical evidence of an 14 impairment that could reasonably produce the symptoms alleged. 15 Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). 16 analysis, the claimant is not required to show that her impairment 17 could reasonably be expected to cause the severity of the symptom 18 she has alleged; she need only show that it could reasonably have 19 caused some degree of the symptom.” 20 (citation omitted). “Nor must a claimant produce objective medical 21 evidence of the pain or fatigue itself, or the severity thereof.” 22 Id. (citation omitted). Trevizo v. Berryhill, 874 F.3d 664, 678 (9th Cir. 2017). “In this Id. (emphasis in original) 23 24 If the claimant satisfies this first step, and there is no 25 evidence of malingering, the ALJ must provide specific, clear and 26 convincing reasons for rejecting the claimant’s testimony about 27 the symptom severity. 28 see also Smolen, 80 F.3d at 1284 (“[T]he ALJ may reject the Trevizo, 874 F.3d at 678 (citation omitted); 11 1 claimant’s testimony regarding the severity of her symptoms only 2 if he makes specific findings stating clear and convincing reasons 3 for doing so.”); Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 4 (9th Cir. 2006) (“[U]nless an ALJ makes a finding of malingering 5 based on affirmative evidence thereof, he or she may only find an 6 applicant 7 credibility and stating clear and convincing reasons for each.”). 8 “This is not an easy requirement to meet: The clear and convincing 9 standard is the most demanding required in Social Security cases.” 10 not credible by making specific findings as to Garrison, 759 F.3d at 1015 (citation omitted). 11 12 13 In discrediting the claimant’s subjective symptom testimony, the ALJ may consider the following: 14 15 (1) ordinary techniques of credibility evaluation, such 16 as 17 inconsistent 18 other testimony by the claimant that appears less than 19 candid; 20 failure to seek treatment or to follow a prescribed 21 course 22 activities. the claimant’s (2) of reputation statements concerning unexplained treatment; for or and (3) the lying, symptoms, inadequately the prior and explained claimant’s daily 23 24 Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citation 25 omitted). 26 conduct, or internal contradictions in the claimant’s testimony, 27 also may be relevant. 28 Cir. 2014); Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. Inconsistencies between a claimant’s testimony and Burrell v. Colvin, 775 F.3d 1133, 1137 (9th 12 1 1997). In addition, the ALJ may consider the observations of 2 treating and examining physicians regarding, among other matters, 3 the functional restrictions caused by the claimant’s symptoms. 4 Smolen, 80 F.3d at 1284; accord Burrell, 775 F.3d at 1137. However, 5 it is improper for an ALJ to reject subjective testimony based 6 “solely” on its inconsistencies with the objective medical evidence 7 presented. 8 (9th Cir. 2009) (citation omitted). Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 9 10 Further, the ALJ must make a credibility determination with 11 findings that are “sufficiently specific to permit the court to 12 conclude that the ALJ did not arbitrarily discredit claimant’s 13 testimony.” 14 2008) (citation omitted); see Brown-Hunter v. Colvin, 806 F.3d 487, 15 493 (9th Cir. 2015) (“A finding that a claimant’s testimony is not 16 credible must be sufficiently specific to allow a reviewing court 17 to conclude the adjudicator rejected the claimant’s testimony on 18 permissible grounds and did not arbitrarily discredit a claimant’s 19 testimony regarding pain.”) (citation omitted). 20 interpretation of a claimant’s testimony may not be the only 21 reasonable one, if it is supported by substantial evidence, “it is 22 not [the court’s] role to second-guess it.” 23 261 F.3d 853, 857 (9th Cir. 2001). Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. Although an ALJ’s Rollins v. Massanari, 24 25 The ALJ provided two specific, clear and convincing reasons 26 to find Plaintiff’s complaints of disabling pain and right arm 27 neuropathy not entirely credible. 28 sufficient to support the Commissioner’s decision. 13 (AR 23). These reasons are 1 The ALJ found Plaintiff not entirely credible because his 2 reported symptoms were inconsistent with “ongoing activities such 3 as climbing roofs and moving furniture.” 4 especially 5 inconsistent with testimony about pain, because impairments that 6 would unquestionably preclude work and all the pressures of a 7 workplace environment will often be consistent with doing more than 8 merely resting in bed all day.” 9 Nevertheless, an ALJ properly may consider the claimant’s daily cautious in concluding that (AR 23). daily “ALJs must be activities are Garrison, 759 F.3d at 1016. 10 activities in weighing credibility. 11 If 12 claimant’s asserted limitations, it has a bearing on credibility. 13 Garrison, 759 F.3d at 1016. a claimant’s level of Tommasetti, 533 F.3d at 1039. activity is inconsistent with the 14 15 Here, the ALJ determined that despite Plaintiff’s alleged 16 disabling pain, right arm neuropathy and difficulty with activities 17 of are not 18 consistent with an inability to work, use his arms, and move.” (AR 19 23). 20 after admittedly “painting all day.” 21 2008, Plaintiff fell off a roof while working. 22 2013 and January 2014, Plaintiff reported minor injuries after 23 lifting 24 discrepancy 25 ongoing activities supports the ALJ’s determination that Plaintiff 26 was not entirely credible. 27 2 28 daily living, he acknowledged activities “that In February 2001, Plaintiff presented to the emergency room and moving between furniture all Plaintiff’s (AR 56, 345).2 day. alleged (AR (AR 293). 396, In April In July 411). disabilities and The his See Molina v. Astrue, 674 F.3d 1104, The ALJ misread “painting” as “partying.” 345). 14 (Compare AR 56, with id. 1 1112 (9th Cir. 2012) (“ALJ may consider inconsistencies either in 2 the 3 claimant’s 4 consistent with a work environment, such as painting, then it is 5 reasonable for an ALJ to consider those activities when assessing 6 a claimant's credibility. claimant’s testimony conduct”). If or a between the claimant's testimony daily and the activities are 7 The ALJ also identified inconsistencies between Plaintiff’s 8 9 testimony and the objective medical evidence. (AR 20-21). 10 “Contradiction with the medical record is a sufficient basis for 11 rejecting the claimant’s subjective testimony.” 12 Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008); see 13 Social Security Ruling (“SSR”) 16-3p,3 at *5 (“objective medical 14 evidence is a useful indicator to help make reasonable conclusions 15 about the intensity and persistence of symptoms, including the 16 effects those symptoms may have on the ability to perform work- 17 related activities”). 18 II claim runs from June 1, 2003, the alleged onset date, thought 19 December 31, 2006, the date last insured. 20 observed, there is no treatment documented during the relevant 21 period. 22 agency consultants found insufficient evidence prior to the date 23 last insured); Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175 (9th 24 Cir. 2008) (finding that the medical evidence, i.e., physicians’ 25 The relevant period for Plaintiff’s Title 27 28 (AR 21). As the ALJ (AR 23); (see also id. at 24) (ALJ noting that state Social Security Rulings (SSRs) “do not carry the ‘force of law,’ but they are binding on ALJs nonetheless.” Bray, 554 F.3d at 1224. They “reflect the official interpretation of the [Agency] and are entitled to some deference as long as they are consistent with the Social Security Act and regulations.” Id. (citation omitted). 3 26 Carmickle v. 15 1 opinions that the claimant was able to perform a limited range of 2 work, supported the ALJ’s credibility determination). 3 treatment 4 Plaintiff’s symptoms were not as severe as he has alleged. 5 Tommasetti, 553 F.3d at 1039-40 (ALJ may properly infer that 6 claimant’s pain “was not as all-disabling as he reported in light 7 of the fact that he did not seek an aggressive treatment program”). 8 Further, in monthly visits during February through October 2007, 9 Plaintiff reported that his medications were controlling his pain, records during the relevant period The lack of suggests that See (AR 535-43); see Warre v. Comm’r of 10 with no problems sleeping. 11 Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (“Impairments 12 that 13 disabling 14 benefits.”). 15 was cleared to return to work. 16 after his date last insured, they provide strong circumstantial 17 evidence that Plaintiff’s impairments were not disabling within 18 the relevant time period. 19 (9th 20 sufficient to discount a claimant’s testimony regarding severity 21 of an impairment.”) (citation omitted); Meanel v. Apfel, 172 F.3d 22 1111, 1114 (9th Cir. 1999), as amended (June 22, 1999) (“Meanel’s 23 claim that she experienced pain approaching the highest level 24 imaginable 25 treatment’ that she received.”). 26 after considering Plaintiff’s sparse and conservative treatment 27 history, that Plaintiff’s testimony and statements regarding his 28 disabling pain were not entirely credible. can Cir. be controlled for the effectively purpose of with determining medication are not eligibility for SSI In July 2008, Plaintiff had good range of motion and 2007) was (AR 515). While these records are See Parra v. Astrue, 481 F.3d 742, 751 (“[E]vidence inconsistent of with 16 conservative the ‘minimal, treatment is conservative The ALJ properly could find, Plaintiff 1 contends that “the ALJ simply rejects [his] 2 testimony based on a belief that the testimony is not credible 3 because it lacks support in the objective medical evidence.” 4 No. 20 at 6-7). 5 subjective complaints based solely on a lack of objective medical 6 evidence to fully corroborate the claimant’s allegations,” 7 554 F.3d at 1227, the ALJ “must consider whether an individual’s 8 statements about the intensity, persistence, and limiting effects 9 of his or her symptoms are consistent with the medical signs and 10 laboratory findings of record,” SSR 16-3p, at *5 (emphasis added). 11 Here, 12 because of a lack of evidence to support Plaintiff’s allegations. 13 Instead, 14 because they were inconsistent with his conservative treatment and 15 his 16 controlling his pain. the ALJ the reports While the ALJ “may not reject a claimant’s did ALJ to (Dkt. not reject discredited treating Plaintiff’s Plaintiff’s sources that subjective subjective his Bray, symptoms symptoms medications were 17 18 Plaintiff also asserts that his “descriptions of his 19 limitations demonstrate that she [sic] is incapable of maintaining 20 substantial gainful work activity because of her [sic] severe 21 impairments.” 22 subjective 23 Plaintiff does not demonstrate how his right arm neuropathy and 24 cervical pain syndrome status-post cervical spine injury and fusion 25 limited his ability to work during the relevant time period. 26 Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001) (“It was 27 [claimant’s] duty to prove that she was disabled.”) (citing 20 28 C.F.R. § 404.1512(a)); see also Terry v. Sullivan, 903 F.2d 1273, (Dkt. No. 20 at 8). allegations, which the 17 However, other than his own ALJ properly discredited, See 1 1275 (9th Cir. 1990) (“The burden of establishing disability 2 is . . . on the claimant, who must prove that she is unable to 3 return to her former type of work.”). 4 RFC, the ALJ, despite the sparse evidence in the record, gave 5 partial credit to Plaintiff’s testimony and “generous consideration 6 to [Plaintiff’s] history of back and neck surgery and neuropathy.” 7 (AR 23). 8 Plaintiff’s right arm neuropathy and cervical pain syndrome status- 9 post cervical spine injury and fusion, which the ALJ found to be 10 severe, limit his functional capacity more than the limitations 11 found by the ALJ. In assessing Plaintiff’s Plaintiff cites to no medical evidence indicating that 12 13 In sum, the ALJ offered clear and convincing reasons, 14 supported by substantial evidence in the record, for his adverse 15 credibility findings. 16 supports the ALJ’s assessment of Plaintiff’s credibility, no remand 17 is required. Accordingly, because substantial evidence 18 19 20 21 22 23 24 25 26 27 28 18 1 VIII. 2 CONCLUSION 3 4 Consistent with the foregoing, IT IS ORDERED that Judgment be 5 entered AFFIRMING the decision of the Commissioner. The Clerk of 6 the Court shall serve copies of this Order and the Judgment on 7 counsel for both parties. 8 9 DATED: December 15, 2017 10 /S/ __________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 THIS DECISION IS NOT INTENDED FOR PUBLICATION IN WESTLAW, LEXIS/NEXIS OR ANY OTHER LEGAL DATABASE. 16 17 18 19 20 21 22 23 24 25 26 27 28 19

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