Paula D. Gotlibowski v. Nancy A. Berryhill, No. 2:2018cv02492 - Document 29 (C.D. Cal. 2020)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Autumn D. Spaeth. The decision of the Social Security Commissioner is AFFIRMED, and the action is DISMISSED with prejudice. Judgment shall be entered accordingly. (see document for further details) (hr)
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Paula D. Gotlibowski v. Nancy A. Berryhill Doc. 29 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 PAULA D. G., an Individual, 12 Plaintiff, 13 v. Case No.: 2:18-0 2492 ADS MEMORANDUM OPINION AND ORDER 14 ANDREW M. SAUL, Com m issioner of Social Security, 15 Defendant. 16 17 18 19 I. IN TROD U CTION Plaintiff Paula D. G.1 (“Plaintiff”) challenges the Defendant Andrew M. Saul2 , Com m issioner of Social Security’s (hereinafter “Com m issioner” or “Defendant”) denial 20 21 22 23 24 1 Plaintiff’s nam e has been partially redacted in com pliance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recom m endation of the Com m ittee on Court Adm inistration and Case Managem ent of the J udicial Conference of the United States. 2 The Com plaint, and thus the docket caption, do not nam e the Com m issioner. The parties list Nancy A. Berryhill as the Acting Com m issioner in the J oint Subm ission. On J une 17, 20 19, Saul becam e the Com m issioner of Social Security. Thus, he is autom atically substituted as the defendant under Federal Rule of Civil Procedure 25(d). -1Dockets.Justia.com 1 of her application for a period of disability and disability insurance benefits (“DIB”). 2 Plaintiff contends that the Adm inistrative Law J udge (“ALJ ”) im properly rejected the 3 opinion of her treating physician, as well as her own testim ony. For the reasons stated 4 below, the decision of the Com m issioner is affirm ed, and this m atter is dism issed with 5 prejudice. 6 II. PROCEED IN GS BELOW 7 A. Pro ce d u ral H is to ry 8 Plaintiff protectively filed her application for DIB on J uly 23, 20 14, alleging 9 disability beginning August 15, 20 13. (Adm inistrative Record “AR” 153-57). Plaintiff’s 10 claim s were denied initially on October 10 , 20 14 (AR 97-10 2), and upon reconsideration 11 on March 5, 20 15 (AR 10 5-10 ). A hearing was held before ALJ Robin Rosenbluth on 12 October 7, 20 16. (AR 40 -67). Plaintiff, represented by counsel, appeared and testified 13 at the hearing, as did a vocational expert, J une C. Hagen. (Id.) 14 On December 5, 20 16, the ALJ found that Plaintiff was “not disabled” within the 15 m eaning of the Social Security Act.3 (AR 15-33). The ALJ ’s decision becam e the 16 Com m issioner’s final decision when the Appeals Council denied Plaintiff’s request for 17 review on J uly 31, 20 18. (AR 1-6). Plaintiff then filed this action in District Court on 18 March 27, 20 18, challenging the ALJ ’s decision. [Docket (“Dkt.”) No. 1]. 19 20 21 22 23 24 3 Persons are “disabled” for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or m ental im pairm ent expected to result in death, or which has lasted or is expected to last for a continuous period of at least 12 m onths. 42 U.S.C. §423(d)(1)(A). -2- 1 On August 27, 20 18, Defendant filed an Answer, as well as a copy of the Certified 2 Adm inistrative Record. [Dkt. Nos. 16, 17]. The parties filed a J oint Subm ission on May 3 8, 20 19. [Dkt. No. 28]. The case is ready for decision.4 4 B. Su m m ary o f ALJ D e cis io n Afte r H e arin g 5 In the decision (AR 18-28), the ALJ followed the required five-step sequential 6 evaluation process to assess whether Plaintiff was disabled under the Social Security 7 Act.5 20 C.F.R. § 40 4.1520 (a). At s te p o n e , the ALJ found that Plaintiff had not been 8 engaged in substantial gainful activity since August 15, 20 13, the alleged onset date. (AR 9 20 ). At s te p tw o , the ALJ found that Plaintiff had the following severe im pairm ents: 10 (a) obesity, (b) history of cervical sprain with degenerative disc disease; (c) history of 11 lum bar sprain with degenerative disc disease; (d) degenerative joint disease of the 12 knees; (e) carpal tunnel syndrom e; and (f) ulnar neuropathy. (AR 20 ). At s te p th re e , 13 the ALJ found that Plaintiff “does not have an im pairm ent or com bination of 14 im pairm ents that m eets or m edically equals the severity of one of the listed im pairm ents 15 16 17 18 19 20 21 22 23 24 4 The parties filed consents to proceed before the undersigned United States Magistrate J udge, pursuant to 28 U.S.C. § 636(c), including for entry of final J udgm ent. [Dkt. Nos. 11, 14]. 5 The ALJ follows a five-step sequential evaluation process to assess whether a claim ant is disabled: Step one: Is the claim ant engaging in substantial gainful activity? If so, the claim ant is found not disabled. If not, proceed to step two. Step two: Does the claim ant have a “severe” im pairm ent? If so, proceed to step three. If not, then a finding of not disabled is appropriate. Step three: Does the claim ant’s im pairm ent or com bination of im pairm ents m eet or equal an im pairm ent listed in 20 C.F.R., Pt. 40 4, Subpt. P, App. 1? If so, the claim ant is autom atically determ ined disabled. If not, proceed to step four. Step four: Is the claim ant capable of perform ing his past work? If so, the claim ant is not disabled. If not, proceed to step five. Step five: Does the claim ant have the residual functional capacity to perform any other work? If so, the claim ant is not disabled. If not, the claim ant is disabled. Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995) (citing 20 C.F.R. §40 4.1520 ). -3- 1 in 20 CFR Part 40 4, Subpart P, Appendix 1 (20 CFR 40 4.1520 (d), 40 4.1525, 40 4.1526).” 2 (AR 22). The ALJ then found that Plaintiff had the Residual Functional Capacity (“RFC”) 6 3 4 to perform light work as defined in 20 C.F.R. § 40 4.1567(b), 7 except: 5 she can no m ore than occasionally clim b ladders, ropes, scaffolds, balance, stoop, kneel, crouch, and crawl; frequently handle and finger bilaterally; and occasionally walk on uneven terrain. 6 7 (AR 23). 8 At s te p fo u r, based on Plaintiff’s RFC and the vocational expert’s testim ony, the 9 ALJ found that Plaintiff is capable of perform ing her past relevant work as a departm ent 10 m anager and an escrow officer. “This work does not require the perform ance of work- 11 related activities precluded by the [Plaintiff’s] residual functional capacity (20 CFR 12 40 4.1565).” (AR 27-28). With this finding, the ALJ did not proceed to s te p five . 13 Accordingly, the ALJ determ ined that Plaintiff had not been under a disability, as 14 defined in the Social Security Act, from August 15, 20 13, through the date of the 15 decision, Decem ber 5, 20 16. (AR 28). 16 17 6 18 19 20 21 22 23 An RFC is what a claim ant can still do despite existing exertional and nonexertional lim itations. See 20 C.F.R. § 40 4.1545(a)(1). 7 “Light work” is defined as lifting no m ore than 20 pounds at a tim e with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted m ay be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting m ost of the tim e with som e pushing and pulling of arm or leg controls. To be considered capable of perform ing a full or wide range of light work, you m ust have the ability to do substantially all of these activities. 20 C.F.R. § 40 4.1567(b); see also Rendon G. v. Berryhill, 20 19 WL 20 0 6688, at *3 n.6 (C.D. Cal. May 7, 20 19). 24 -4- 1 III. AN ALYSIS 2 A. Is s u e s o n Ap p e al 3 Plaintiff raises two issues for review: (1) whether the ALJ properly considered the 4 m edical evidence; and (2) whether the ALJ properly considered Plaintiff’s testim ony 5 [Dkt. No. 28 (J oint Subm ission), at p. 4]. Specifically, Plaintiff contends that the ALJ 6 im properly rejected the m edical evidence from her treating physician, Dr. Opoku and 7 im properly rejected her subjective sym ptom testim ony. [Id. at pp. 4, 12]. 8 B. Stan d ard o f Re vie w 9 A United States District Court m ay review the Com m issioner’s decision to deny 10 benefits pursuant to 42 U.S.C. § 40 5(g). The District Court is not a trier of the facts but 11 is confined to ascertaining by the record before it if the Com m issioner’s decision is 12 based upon substantial evidence. Garrison v. Colvin, 759 F.3d 995, 10 10 (9th Cir. 20 14) 13 (District Court’s review is lim ited to only grounds relied upon by ALJ ) (citing Connett v. 14 Barnhart, 340 F.3d 871, 874 (9th Cir. 20 0 3)). A court m ust affirm an ALJ ’s findings of 15 fact if they are supported by substantial evidence and if the proper legal standards were 16 applied. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 20 0 1). An ALJ can satisfy 17 the substantial evidence requirement “by setting out a detailed and thorough sum m ary 18 of the facts and conflicting clinical evidence, stating his interpretation thereof, and 19 m aking findings.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citation 20 om itted). 21 “[T]he Com m issioner’s decision cannot be affirm ed sim ply by isolating a specific 22 quantum of supporting evidence. Rather, a court m ust consider the record as a whole, 23 weighing both evidence that supports and evidence that detracts from the Secretary’s 24 conclusion.” Aukland v. Massanari, 257 F.3d 10 33, 10 35 (9th Cir. 20 0 1) (citations and -5- 1 internal quotation m arks om itted). “‘Where evidence is susceptible to m ore than one 2 rational interpretation,’ the ALJ ’s decision should be upheld.” Ryan v. Com m ’r of Soc. 3 Sec., 528 F.3d 1194, 1198 (9th Cir. 20 0 8) (citing Burch v. Barnhart, 40 0 F.3d 676, 679 4 (9th Cir. 20 0 5)); see Robbins v. Soc. Sec. Adm in., 466 F.3d 880 , 882 (9th Cir. 20 0 6) (“If 5 the evidence can support either affirm ing or reversing the ALJ ’s conclusion, we m ay not 6 substitute our judgm ent for that of the ALJ .”). However, the Court m ay review only “the 7 reasons provided by the ALJ in the disability determ ination and m ay not affirm the ALJ 8 on a ground upon which he did not rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 9 20 0 7) (citation om itted). 10 Error in a social security determ ination is subject to harm less error analysis. 11 Ludwig v. Astrue, 681 F.3d 10 47, 10 54 (9th Cir. 20 12). Error is harm less if “it is 12 inconsequential to the ultim ate nondisability determ ination” or, despite the legal error, 13 “the agency's path m ay reasonably be discerned.” Treichler v. Com m 'r of Soc. Sec. 14 Adm in., 775 F.3d 10 90 , 10 99 (9th Cir. 20 14). 15 C. Th e ALJ Pro p e rly Evalu ate d Th e Me d ical Evid e n ce 16 Plaintiff contends that the ALJ erred in rejecting the lim itations attributable to 17 her severe physical im pairm ents assessed by her treating physician, Edward Opoku, 18 D.O. Defendant argues that the ALJ properly rejected the opinion of the treating 19 physician. 20 21 1. Standard for Weighing Medical Opinions The ALJ m ust consider all m edical opinion evidence. 20 C.F. R. § 40 4.1527(b). 22 “As a general rule, m ore weight should be given to the opinion of a treating source than 23 to the opinion of doctors who do not treat the claim ant.” Lester v. Chater, 81 F.3d 821, 24 830 (9th Cir. 1995) (citing Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987)). Where -6- 1 the treating doctor’s opinion is not contradicted by another doctor, it m ay only be 2 rejected for “clear and convincing” reasons. Id. (citing Bayliss v. Barnhart, 427 F.3d 3 1211, 1216 (9th Cir. 20 0 5)). “If a treating or exam ining doctor’s opinion is contradicted 4 by another doctor’s opinion, an ALJ m ay only reject it by providing specific and 5 legitim ate reasons that are supported by substantial evidence.” Trevizo v. Berryhill, 871 6 F.3d 664, 675 (9th Cir. 20 17) (quoting Bayliss, 427 F.3d at 1216). In Trevizo, the Ninth 7 Circuit addressed the factors to be considered in assessing a treating physician’s 8 opinion. 9 10 11 12 13 The m edical opinion of a claim ant’s treating physician is given “controlling weight” so long as it “is well-supported by m edically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the claim ant’s] case record.” 20 C.F.R. § 40 4.1527(c)(2). When a treating physician’s opinion is not controlling, it is weighted according to factors such as the length of the treatm ent relationship and the frequency of exam ination, the nature and extent of the treatm ent relationship, supportability, consistency with the record, and specialization of the physician. Id. § 40 4.1527(c)(2)-(6). 14 15 16 871 F.3d at 675. “Substantial evidence” m eans m ore than a m ere scintilla, but less than a 17 preponderance; it is such relevant evidence as a reasonable person m ight accept as 18 adequate to support a conclusion.” Lingenfelter v. Astrue, 50 4 F.3d 10 28, 10 35 (9th Cir. 19 20 0 7) (citing Robbins, 466 F.3d at 882). “The ALJ can m eet this burden by setting out a 20 detailed and thorough sum m ary of the facts and conflicting clinical evidence, stating his 21 interpretation thereof, and m aking findings.” Magallanes v. Bowen, 881 F.2d 747, 751 22 (9th Cir. 1989) (citation om itted); see also Tom m asetti v. Astrue, 533 F.3d 10 35, 10 41 23 (9th Cir. 20 0 8) (finding ALJ had properly disregarded a treating physician’s opinion by 24 -7- 1 setting forth specific and legitim ate reasons for rejecting the physician’s opinion that 2 were supported by the entire record). 3 As noted above, an RFC is what a claim ant can still do despite existing exertional 4 and nonexertional lim itations. See 20 C.F.R. §§ 40 4.1545(a)(1). Only the ALJ is 5 responsible for assessing a claim ant’s RFC. See 20 C.F.R. § 40 4.1546(c). “It is clear that 6 it is the responsibility of the ALJ , not the claim ant’s physician, to determ ine residual 7 functional capacity.” Vertigan v. Halter, 260 F.3d 10 44, 10 49 (9th Cir. 20 0 1) (citing 20 8 C.F.R. § 40 4.1545). 9 2. The ALJ Gave Specific and Legitim ate Reasons, Supported by Substantial Evidence 10 11 The ALJ com plied with Magallanes and provided specific and legitim ate reasons 12 for rejecting the lim itations assessed by Plaintiff’s treating physician, Dr. Opoku that are 13 supported by substantial evidence. At issue are two Medical Source Statem ents 14 com pleted by Dr. Opoku in Novem ber 20 14 and May 20 15. (AR 988-92, 110 8-111). 15 16 After a thorough review of the m edical records in evidence (AR 24-26), the ALJ analyzed the two m edical source statem ents of Dr. Opoku as follows: 17 The undersigned gives less weight to the Novem ber 20 14 and May 20 15 opinions of Edward Opoku, D.O. that [Plaintiff] can occasionally lift less than 10 pounds, rarely lift 10 pounds, stand/ walk three hours in an eight-hour day, and sit up to two hours in an eight-hour day, am ong other lim itations [AR 988-92; 110 8-111]. The doctor’s assessm ent is brief and conclusory in form with little in the way of clinical findings or explanation of the bases to support its conclusion. In addition, the doctor is the claim ant’s prim ary care physician in connection with her workers’ com pensation claim . Furtherm ore, he indicated he saw the claim ant m onthly since March 20 13 [Id.], but the m edical records subm itted in this case do not contain any treatm ent records prior to October 20 14 [AR 993-10 0 3]. 18 19 20 21 22 23 (AR 26). 24 -8- 1 With respect to Plaintiff’s ability to perform the physical aspects of her work, the 2 ALJ determ ined to instead give great weight to other m edical opinions that contradicted 3 that of Dr. Opoku: 4 5 6 7 8 9 [T]he consultative internist and the State Agency m edical consultant at the reconsideration level agree that [Plaintiff] rem ains able to perform light work with occasional to frequent postural activities and frequent handling and fingering [AR 87-88; 1116-1123]. The undersigned gives great weight to these opinions, as they are consistent with the record as a whole, discussed above, and with each other. In addition, these doctors are experts in the Social Security disability program s, the rules in 20 CFR 40 4.1527(e), and in the evaluation of the m edical issues in disability claim s under the Act. To the extent the consultative internist also opined that [Plaintiff] is lim ited to occasional walking on an uneven terrain, I give greater weight to her opinion because she exam ined [Plaintiff] personally and is board-certified in her specialty [AR 1117]. 10 11 (AR 26). As Dr. Opoku’s opinion was contradicted by other doctors’ opinions, in 12 rejecting it, the ALJ was required to provide “specific and legitim ate reasons that are 13 supported by substantial evidence.” See Trevizo, 871 F.3d at 675. The ALJ did so here. 14 To begin, as Defendant notes, it was proper for the ALJ to assess the various 15 m edical opinions, state reasons for doing so, and conclude to give greater weight to the 16 opinions of the consultative exam ining physician and the State Agency m edical 17 consultant than to Plaintiff’s treating physician. It is the role of the ALJ , and not this 18 Court, to interpret and resolve any am biguities in the m edical records. See Tom m asetti, 19 533 F.3d at 10 41-42 (“The ALJ is the final arbiter with respect to resolving am biguities 20 in the m edical evidence.”); Andrews v. Shalala, 53 F.3d 10 35, 10 41 (9th Cir. 1995) 21 (holding that it is the ALJ ’s job to resolve any conflicts). Indeed, in giving greater 22 weight to these other m edical opinions, the ALJ noted that they were consistent with the 23 record as a whole, consistent with each other and com pleted by doctors that are experts 24 in Social Security disability program s and rules. (AR 26). -9- 1 In addition, the ALJ set forth specific and legitim ate reasons, supported by 2 substantial evidence, for giving less weight to the opinions of Dr. Opoku. Plaintiff states 3 that Dr. Opoku provided treatm ent to Plaintiff at IGEN Medical, including com pleting 4 two Medical Source Statem ents, and cites to the following records, AR 988-92, 993- 5 10 0 3, 110 8-1111, and 1196-120 3. [Dkt No. 28, p. 6]. These records include the 6 Novem ber 21, 20 14 Medical Source Statem ent (AR 988-92), the May 29, 20 15 Medical 7 Source Statem ent (AR 110 8-111), Dr. Opoku’s exam ination notes from October 3, 20 14 8 and Novem ber 21, 20 14 (AR 993-10 0 3), and Dr. Opoku’s exam ination notes from 9 August 16, 20 13 (AR 1196-199). Plaintiff’s record citation also includes AR 120 0 -120 3, 10 but these are not the exam ination records of Dr. Opoku, but instead those of a 11 chiropractor, Kam iz Nourian, D.C., dated Septem ber 17, 20 13. Plaintiff points to no 12 further records in evidence for Dr. Opoku. Plaintiff’s concession of these very lim ited 13 exam records only bolsters one of the ALJ ’s stated reasons for discounting Dr. Opoku’s 14 opinion: that his Medical Source Statem ents indicated he saw Plaintiff m onthly since 15 March 20 13, but the m edical records do not provide evidence of this. 8 (AR 26) 16 17 The ALJ also correctly noted that Dr. Opoku’s assessm ent is brief and conclusory in form with little in the way of clinical findings or explanation of the bases to support 18 19 20 21 22 23 24 8 The ALJ m istakenly stated that the m edical records subm itted do not contain any treatm ent records prior to October 20 14. (AR 26). As noted above, AR 1196-1199 contains Dr. Opoku’s exam notes dated August 16, 20 13. The inclusion of one recorded exam ination in August 20 13, however, does not undercut the ALJ ’s criticism of Dr. Opoku’s statem ent that he exam ined Plaintiff m onthly since March 20 13 through the date of the last report, May 29, 20 15, and then Plaintiff only subm itted exam notes from March 20 13, October 20 14 and Novem ber 20 14. Thus, the Court finds this m isstatem ent by the ALJ to be harm less. See Treichler, 775 F.3d at 10 99 (Error is harm less if “it is inconsequential to the ultim ate nondisability determ ination” or, despite the legal error, “the agency's path m ay reasonably be discerned.”) -10 - 1 its conclusions. As just stated, there were very few exam ination notes subm itted to 2 support the conclusory opinions – and, indeed, those few notes in evidence were not 3 consistent with the extrem e lim itations set forth in the m edical source statem ents. After 4 checking off significant lim itations he assessed of Plaintiff, when asked to explain the 5 basis for his conclusions for the lim itations, Dr. Opoku m erely stated: “Patients 6 lim itations is based on diagnostic testing and objective findings.” (AR 1111). No 7 reference is m ade to any specific testing or objective findings. Thus, there is no 8 argum ent here that the assessm ent is anything other than conclusory. Bray v. Com m ’r, 9 554 F.3d 1219, 1228 (9th Cir. 20 0 9) (noting that the “ALJ need not accept the opinion of 10 any physician, including a treating physician, if that opinion is brief, conclusory, and 11 inadequately supported by clinical findings.”); Connett v. Barnhart, 340 F.3d 871, 875 12 (9th Cir. 20 0 3) (ALJ properly rejected treating physician’s opinion where “treatm ent 13 notes provide[d] no basis for the functional restrictions [physician] opined should be 14 im posed on [claim ant]”); Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 20 0 5) 15 (discrepancy between physician’s notes and other recorded observations and opinions 16 regarding claim ant’s capabilities “clear and convincing reason” for rejecting physician’s 17 opinion). 18 Finally, the ALJ also m ade reference to the fact that Dr. Opoku is Plaintiff’s 19 prim ary care physician in connection with her worker’s com pensation claim . Earlier in 20 the ALJ ’s decision she noted that m any of the m edical records in the case were prepared 21 in the context of the worker’s com pensation claim system , which is adversarial in 22 nature. (AR 24). In outlining the distinction with the social security context, the ALJ 23 noted that “the credibility and relevance of the opinions of these physicians m ust be 24 carefully assessed because of the involvem ent with the workers’ com pensation claim .” -11- 1 (Id.). Thus, the Court finds that the ALJ ’s reference to the fact that Dr. Opoku is 2 Plaintiff’s prim ary care physician in connection with her worker’s com pensation claim 3 was nothing m ore than highlighting her earlier stated intention in carefully assessing 4 that the physician’s opinion was properly assessed in the context of the social security 5 claim at issue. See Booth v. Barnhart, 181 F.Supp.2d 10 99, 110 4 (C.D. Cal. 20 0 2) 6 (discussing the distinction between findings in workers’ com pensation disability ratings 7 and relevance in decisions under the Social Security Act). There was no error in this 8 statem ent by the ALJ . 9 The Court concludes that the ALJ provided “specific and legitim ate” reasons 10 based on substantial evidence for her rejecting the lim itations set forth in Plaintiff’s 11 treating physician’s m edical source statem ents. Although Plaintiff offers alternative 12 interpretations of the m edical record, the Court is bound by the rationale set forth by the 13 ALJ in the written decision. Ryan, 528 F.3d at 1198; see Robbins, 466 F.3d at 882 (“If 14 the evidence can support either affirm ing or reversing the ALJ ’s conclusion, we m ay not 15 substitute our judgm ent for that of the ALJ .”). 16 D . Th e ALJ Pro p e rly Evalu ate d Plain tiff’s Te s tim o n y 17 Plaintiff asserts that the ALJ im properly evaluated her subjective com plaints. 18 Defendant contends that the ALJ appropriately found Plaintiff’s testim ony not fully 19 supported by the record. 20 21 1. Legal Standard for Evaluating Claim ant’s Testim ony A claim ant carries the burden of producing objective m edical evidence of his or 22 her im pairm ents and showing that the im pairm ents could reasonably be expected to 23 produce som e degree of the alleged sym ptom s. Benton ex rel. Benton v. Barnhart, 331 24 F.3d 10 30 , 10 40 (9th Cir. 20 0 3). Once the claim ant m eets that burden, m edical -12- 1 findings are not required to support the alleged severity of pain. Bunnell v. Sullivan, 2 947 F.2d 341, 345 (9th Cir. 1991) (en banc); see also Light v. Soc. Sec. Adm in., 119 F.3d 3 789, 792 (9th Cir. 1997) (“claim ant need not present clinical or diagnostic evidence to 4 support the severity of his pain”) (citation omitted)). Defendant does not contest, and 5 thus appears to concede, that Plaintiff carried her burden of producing objective m edical 6 evidence of her im pairm ents and showing that the im pairm ents could reasonably be 7 expected to produce som e degree of the alleged sym ptom s. 8 9 Once a claim ant has m et the burden of producing objective m edical evidence, an ALJ can reject the claim ant’s subjective complaint “only upon (1) finding evidence of 10 m alingering, or (2) expressing clear and convincing reasons for doing so.” Benton, 331 11 F.3d at 10 40 . To discredit a claimant's sym ptom testim ony when the claim ant has 12 provided objective m edical evidence of the im pairm ents which m ight reasonably 13 produce the sym ptom s or pain alleged and there is no evidence of m alingering, the ALJ 14 “m ay reject the claim ant’s testim ony about the severity of those sym ptom s only by 15 providing specific, clear and convincing reasons for doing so.” Brown-Hunter, 80 6 F.3d 16 at 489 (“we require the ALJ to specify which testim ony she finds not credible, and then 17 provide clear and convincing reasons, supported by evidence in the record, to support 18 that credibility determ ination”); Laborin v. Berryhill, 867 F.3d 1151, 1155 (9th Cir. 20 17). 19 The ALJ m ay consider at least the following factors when weighing the claim ant’s 20 credibility: (1) his or her reputation for truthfulness; (2) inconsistencies either in the 21 claim ant’s testim ony or between the claim ant’s testim ony and his or her conduct; (3) his 22 or her daily activities; (4) his or her work record; and (5) testim ony from physicians and 23 third parties concerning the nature, severity, and effect of the sym ptom s of which she 24 com plains. Thom as, 278 F.3d at 958-59 (citing Light, 119 F.3d at 792). “If the ALJ ’s -13- 1 credibility finding is supported by substantial evidence in the record, [the court] m ay 2 not engage in second-guessing.” Id. at 959 (citing Morgan v. Apfel, 169 F.3d 595, 60 0 3 (9th Cir. 1999)). 4 2. The ALJ provided Clear and Convincing Reasons Supported by Substantial Evidence 5 6 Having carefully reviewed the record, the Court finds that the ALJ provided 7 specific, clear and convincing reasons for discounting Plaintiff’s subjective com plaints. 9 8 The ALJ found that Plaintiff’s subjective com plaints were not consistent with the 9 evidence of record, routine care received for com m on ordinary m edical problem s, the 10 treatm ent she has received has been generally successful in controlling her sym ptom s, 11 and Plaintiff’s reasonably norm al level of daily living and interaction. (AR 24-26). 12 Im portant to note, the ALJ did not entirely reject Plaintiff’s testim ony concerning 13 her pain, sym ptom s, and level of lim itation. Rather, the ALJ stated that “the claim ant’s 14 alleged sym ptom s are not fully consistent w ith and supported by the evidence of 15 record.” (AR 26) (em phasis added). 16 After careful consideration of the evidence, the undersigned finds that the claim ant’s m edically determ inable im pairm ents could reasonably be expected to cause the alleged sym ptom s; however, the claim ant’s and his friends’ statem ents concerning the intensity, persistence and lim iting effects of these sym ptom s are not entirely consistent with the m edical evidence and other evidence in the record for the reasons explained in this decision. 17 18 19 20 (AR 23). Indeed, the ALJ took Plaintiff’s severe im pairm ents and reported sym ptom s 21 into consideration “[b]y lim iting the claim ant to light work with postural and 22 23 24 9 The ALJ did not m ake a finding of m alingering in the decision. (AR 18-28). Thus, in discounting Plaintiff’s subjective com plaints, the ALJ was required to articulate specific, clear and convincing reasons. See Benton, 331 F.3d at 10 40 ; Brown-Hunter, 80 6 F.3d at 489. -14- 1 m anipulative lim itations as described [in the RFC], her substantiated physical 2 im pairm ents are fully accom m odated.” (AR 24). 3 First, although a lack of, or inconsistency with, objective m edical evidence cannot 4 be the sole reason for discounting a claim ant’s testim ony, it can be one of several factors 5 used in evaluating subjective com plaints. See Burch v. Barnhart, 40 0 F.3d 676, 681 (9th 6 Cir. 20 0 5) (“Although lack of m edical evidence cannot form the sole basis for 7 discounting pain testim ony, it is a factor that the ALJ can consider in his credibility 8 analysis.”); Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 20 0 1). The ALJ did a 9 thorough review of Plaintiff’s m edical records and found that they did not fully support 10 Plaintiff’s allegations. (AR 24). The ALJ discussed and cited to num erous m edical 11 records with largely m ild findings. The ALJ , in reviewing additional records in 12 evidence, noted that “the objective evidence does not corroborate the extent of the 13 claim ant’s alleged pain.” (Id.). It was proper for the ALJ to consider these records in 14 her analysis. 15 The ALJ next noted that m edical records “largely show routine care for com m on, 16 ordinary problem s.” (AR 25). After m aking this observation, the ALJ discussed and 17 cited to num erous m edical records of routine and conservative treatm ent – even noting 18 that records in evidence closest to Plaintiff’s alleged onset date related to an ingrown 19 toenail and a blood pressure check. (AR 25). “She did not seek treatm ent for her 20 allegedly disabling conditions until April 20 14, when she began physical therapy.” (Id. 21 citations om itted). It was proper for the ALJ to cite to Plaintiff’s routine treatm ent in 22 discounting her testim ony.10 See Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 20 0 7) 23 10 24 The Court notes that Plaintiff’s receipt of two epidural injections in October 20 13 and February 20 14 do not qualify as conservative treatm ent. See Garrison v. Colvin, 759 -15- 1 (finding that proof of “conservative treatm ent is sufficient to discount a claim ant's 2 testim ony regarding severity of an im pairm ent”); Meanel v. Apfel, 172 F.3d 1111, 1114 3 (9th Cir. 1999) (finding that an ALJ can rely on a physician’s failure “to prescribe… any 4 serious m edical treatm ent for [a claim ant’s] supposedly excruciating pain”). 5 The ALJ also noted that Plaintiff’s “treatm ent has been generally successful in 6 controlling her sym ptom s.” (AR 25). This reason is another proper basis for 7 discounting Plaintiff’s subjective com plaints. See Lindquist v. Colvin, 588 F. App’x 544, 8 547 (9th Cir. 20 14) (ALJ properly discounted claim ant’s testim ony in part because 9 sym ptom s were controlled). 10 Finally, the ALJ also found that Plaintiff’s “reported daily activity are inconsistent 11 with her alleged degree of im pairm ent and further support the [RFC] . . .” (AR 25) 12 (noting household chores, tending to her personal care, living with others, spending 13 tim e with others socially, shopping, handling finances, crocheting and flying to 14 Chicago).11 An ALJ is perm itted to consider daily living activities in her credibility 15 analysis. See 20 C.F.R. § 40 4.1529(c)(3) (daily activities are a relevant factor which will 16 be considered in evaluating sym ptom s); see also Bray v. Com m ’r of Soc. Sec. Adm in., 17 554 F.3d 1219, 1227 (9th Cir. 20 0 9) (“In reaching a credibility determ ination, an ALJ 18 m ay weigh inconsistencies between the claim ant’s testim ony and his or her conduct, 19 daily activities, and work record, am ong other factors”). 20 21 22 23 24 F.3d 995, 10 15 n.20 (9th Cir. 20 14) (expressing “doubt that epidural steroid shots to the neck and lower back qualify as ‘conservative’ m edical treatm ent”). These two injections, however, without m ore, do not change the fact that Plaintiff’s care was overall routine and conservative, as outlined by the ALJ . 11 Plaintiff argues that the ALJ has m isstated her testim ony concerning the extent of her daily activities. However, the ALJ relied and cited to not only Plaintiff’s testim ony at the hearing (AR 40 -67), but also statem ents she m ade in her written function reports (AR 179-87, 213-19 and 222-31). -16- The ALJ also noted that “the claim ant’s activities are reasonably norm al and tend 1 2 to show that she does have the ability to perform basic work functions. While activities 3 of daily living do not prove the claim ant’s ability to perform work activity, neither do 4 they support her allegations of chronic pain and lack of ability to perform work activity.” 5 (AR 26). Although Plaintiff takes issue with this, an ALJ is perm itted to consider daily 6 living activities in her credibility analysis. See Burch, 40 0 F.3d at 681. Daily activities 7 m ay be considered to show that Plaintiff exaggerated her sym ptom s. See Valentine v. 8 Astrue, 574 F.3d 685, 694 (9th Cir. 20 0 9) (ALJ properly recognized that daily activities 9 “did not suggest [claim ant] could return to his old job” but “did suggest that [claim ant’s] 10 later claims about the severity of his lim itations were exaggerated.”). 11 Based on these clear, convincing and specific reasons for partially rejecting 12 Plaintiff’s pain and lim itations testim ony and the substantial evidence to support her 13 determ ination, the Court concludes that the ALJ did not com m it error in discounting 14 Plaintiff’s testim ony. 15 IV. 16 CON CLU SION For the reasons stated above, the decision of the Social Security Com m issioner is 17 AFFIRMED, and the action is DISMISSED with prejudice. J udgment shall be entered 18 accordingly. 19 20 DATE: March 18, 20 20 21 22 / s/ Autum n D. Spaeth THE HONORABLE AUTUMN D. SPAETH United States Magistrate J udge 23 24 -17-
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