Arestakes Timourian v. Commissioner of Social Security, No. 2:2019cv01915 - Document 21 (C.D. Cal. 2020)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Alka Sagar. The decision of the Commissioner is AFFIRMED. (see document for further details) (hr)
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Arestakes Timourian v. Commissioner of Social Security Doc. 21 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA-WESTERN DIVISION 11 12 13 ARESTAKES TIMOURIAN, Plaintiff, 14 v. 15 ANDREW M. SAUL, Commissioner 16 of Social Security, 17 Defendant. 18 ) ) ) ) ) ) ) ) ) ) ) Case No. CV 19-01915-AS MEMORANDUM OPINION AND ORDER 19 PROCEEDINGS 20 21 On March 15, 2019, Plaintiff filed a Complaint seeking review of 22 23 24 25 26 27 28 the denial of his application for Supplemental Security Income. (Docket Entry No. 1). The parties have consented to proceed before the undersigned United States Magistrate Judge. (Docket Entry Nos. 13, 15). On August 27, 2019, Defendant Administrative Record (“AR”). filed an Answer along (Docket Entry Nos. 18-19). with the On November 22, 2019, the parties filed a Joint Stipulation (“Joint Stip.”) setting forth their respective positions regarding Plaintiff’s claims. (Docket Dockets.Justia.com 1 Entry No. 20). 2 3 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 4 5 On November 30, 2014, Plaintiff, formerly employed as a warehouse 6 supervisor for a marble and granite company (see AR 183-84, 647-49), 7 filed an application for Supplemental Security Income, alleging a 8 disability since April 19, 2013. 9 application was denied (See AR 24, 115-21). initially 10 reconsideration on September 18, 2015. on June 17, Plaintiff’s 2015, and on (See AR 53-63A, 77-81). 11 12 On January 5, 2018, the Administrative Law Judge (“ALJ”), Ken Chau, 13 heard testimony from Plaintiff, who was assisted by an Armenian 14 interpreter and represented by counsel, and vocational expert Gregory 15 Jones. (See AR 644-59). On February 7, 2018, the ALJ issued a decision 16 denying Plaintiff’s application. (See AR 14-27). Applying the five- 17 step sequential process,1 the ALJ found at step one that Plaintiff had 18 not engaged in substantial gainful activity since November 30, 2014. 19 (AR 17). At step two, the ALJ determined that Plaintiff had the severe 20 impairment of degenerative disc disease of the lumbar spine. (AR 17- 21 18).2 At step three, the ALJ determined that Plaintiff did not have an 22 impairment or combination of impairments that met or equaled the 23 severity of one of the listed impairments. (AR 21-22). 24 1 ALJ initially found that a material change of circumstance 25 (a change The in Plaintiff’s severe medically determinable impairments) the presumption of non-disability arising from the previous 26 overcame decision of an Administrative Law Judge. (See AR 14-15). 27 28 2 The ALJ found that Plaintiff’s other impairments –- benign prostatic hyperplasia without lower urinary tract symptoms; malignant neoplasm of prostate, status post prostate surgery; hypertension; hyperlipedia; insomnia; obesity; and generalized anxiety disorder –were non-severe. (AR 18-21). 2 1 The ALJ then assessed Plaintiff’s residual functional capacity 2 (“RFC”)3 and concluded that Plaintiff could perform the full range of 3 medium work.4 (AR 22-26). 4 5 At step four, the ALJ determined that Plaintiff was able to perform 6 past relevant work as a warehouse supervisor as generally performed (AR 7 26), and therefore found that Plaintiff was not disabled within the 8 meaning of the Social Security Act. (AR 27). 9 10 The Appeals Council denied Plaintiff’s request for review on 11 January 9, 2019. (See AR 7-10). Plaintiff now seeks judicial review of 12 the ALJ’s decision, which stands as the final decision of the 13 Commissioner. See 42 U.S.C. §§ 405(g), 1383(c). 14 15 STANDARD OF REVIEW 16 17 18 19 20 21 22 23 This Court reviews the Commissioner’s decision to determine if it is free of legal error and supported by substantial evidence. Brewes v. Comm’r, 682 F.3d 1157, 1161 (9th Cir. 2012). evidence” is “more preponderance[.]” than a mere scintilla, but See “Substantial less than a Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014)(citation omitted). To determine whether substantial evidence supports a finding, “a court must consider the record as a whole, 24 25 3 A Residual Functional Capacity is what a claimant can still do See 20 C.F.R. § 416.945(a)(1). 26 despite existing exertional and nonexertional limitations. 27 28 4 “Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds.” 20 C.F.R. § 416.967(c). 3 1 weighing both evidence that supports and evidence that detracts from the 2 [Commissioner’s] conclusion[.]” Id. at 1009-10 (citations and quotation 3 marks omitted). As a result, “[w]here the evidence can support either 4 affirming or reversing [the ALJ’s] decision, [a court] may not 5 substitute [its] judgment for that of the [ALJ].” Id. at 1010 (citation 6 omitted).5 7 8 PLAINTIFF’S CONTENTIONS 9 10 Plaintiff alleges that the ALJ erred in (1) rejecting the opinions 11 of Plaintiff’s treating physician; (2) evaluating Plaintiff’s mental 12 impairment; and (3) discrediting Plaintiff’s subjective symptom 13 testimony. 14 (See Joint Stip. at 3-7, 11-16, 19-23, 28-30). 15 DISCUSSION 16 17 After consideration of the record as a whole, the Court finds that 18 the Commissioner’s findings are supported by substantial evidence and 19 are free from legal error. 20 21 A. 22 The ALJ Properly Assessed the Opinions of Plaintiff’s Treating Physician, Noobar Janoian, M.D. 23 Plaintiff asserts that the ALJ failed to properly reject the 24 opinion of Plaintiff’s treating physician, Dr. Janoian. 25 26 5 The harmless error rule applies to the review of See McLeod v. Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)(An ALJ’s decision will not be reversed for errors that are harmless). 27 administrative decisions regarding disability. 28 (See Joint 4 1 Stip. at 2-7, 11-14).6 Defendant asserts that the ALJ properly 2 evaluated Dr. Janoian’s opinions. (See Joint Stip. at 7-11). 3 4 An ALJ must take into account all medical opinions of record. 20 5 C.F.R. § 416.927(b). “Generally, a treating physician’s opinion carries 6 more weight than an examining physician’s, and an examining physician’s 7 opinion carries more weight than a reviewing physician’s.” Holohan v. 8 Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); see also Lester v. 9 Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). The medical opinion of a 10 treating physician is given “controlling weight” so long as it “is well11 supported by medically acceptable clinical and laboratory diagnostic 12 techniques and is not inconsistent with the other substantial evidence 13 in [the claimant’s] case record.” 20 C.F.R. § 416.927(c)(2). “When a 14 treating doctor’s opinion is not controlling, it is weighted according 15 to factors such as the length of the treatment relationship and the 16 frequency of examination, the nature and extent of the treatment 17 relationship, supportability, and consistency of the record.” Revels 18 v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017); see also 20 C.F.R. § 19 416.927(c)(2)-(6). 20 21 If a treating or examining doctor’s opinion is not contradicted by 22 another doctor, the ALJ can reject the opinion only for “clear and 23 convincing reasons.” Carmickle v. Commissioner, 533 F.3d 1155, 1164 24 (9th Cir. 2008); Lester v. Chater, 81 F.3d at 830 (9th Cir. 1995). If 25 the treating or examining doctor’s opinion is contradicted by another 26 27 28 6 Plaintiff does not challenge the ALJ’s rejection of the opinions of another treating physician, Karine Gaboian, M.D. (see AR 25, 316-19). 5 1 doctor, the ALJ must provide “specific and legitimate reasons” for 2 rejecting the opinion. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 3 2007); Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998); Lester, 4 supra. “The ALJ can meet this burden by setting out a detailed and 5 thorough summary of the facts and conflicting clinical evidence, stating 6 his interpretation thereof, and making findings.” Trevizo v. Berryhill, 7 871 F.3d 664, 675 (9th Cir. 2017)(citation omitted). Finally, when 8 weighing conflicting medical opinions, an ALJ may reject an opinion that 9 is conclusory, brief, and unsupported by clinical findings. Bayliss v. 10 Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2015); Tonapetyan v. Halter, 242 11 F.3d 1144, 1149 (9th Cir. 2001). 12 13 Physicians at All for Health, Health for All, including Noobar 14 Janoian, M.D., treated Plaintiff from July 10, 2013 to October 10, 2017. 15 While Leonardo Garduno, M.D., was Plaintiff’s primary care provider, Dr. 16 Janoian personally treated Plaintiff on four occasions (November 22, 17 2013, February 7, 2014, March 13, 2014, April 3, 2014). (See AR 320-58, 18 362-486, 508-92). 19 20 Dr. Janoian provided the following information in a Physical 21 Residual Functional Capacity Questionnaire dated October 25, 2017 (see 22 AR 594-97): Dr. Janoian diagnosed Plaintiff with low back pain, 23 sacroiliitis, generalized anxiety disorder, hypertension, insomnia and 24 disorder of the prostate, gave Plaintiff a “very guarded” prognosis, and 25 listed Plaintiff’s symptoms as pain, stiffness, fatigue and anxiety. 26 (AR 594). Dr. Janoian identified the clinical findings and objective 27 signs of his findings as tenderness to palpation over paravertebral 28 lumbar muscles and degenerative disc disease of the lumbar spine and 6 1 stated that Plaintiff reported that the side effects of medications were 2 drowsiness, malaise and fatigue. (Id.). Dr. Janoian found, inter alia, 3 the following: Plaintiff’s impairments lasted or could be expected to 4 last at least 12 months; in an 8-hour workday, Plaintiff can lift and/or 5 carry less than 10 pounds frequently, can lift and/or carry 20 pounds 6 occasionally (less than 1/3 of the workday), and can never lift 50 7 pounds; Plaintiff can stand and/or walk (without an assistive device) 8 about 6 hours in an 8-hour workday; Plaintiff can sit less than 6 hours 9 in an 8-hour workday; Plaintiff requires a job that permits shifting 10 positions at will from sitting, standing or walking; Plaintiff would 11 need to take unscheduled breaks every 30 minutes for 15 to 20 minutes; 12 Plaintiff’s abilities to push and/or pull are limited in the upper and 13 lower extremities; Plaintiff can occasionally bend, climb, crouch, 14 balance, kneel and crawl; Plaintiff needs to avoid temperature extremes, 15 humidity/wetness and heights; and Plaintiff’s impairments would cause 16 Plaintiff to be absent from work an average of more than 3 times a 17 month. (AR 594-96). 18 19 In a letter dated October 25, 2017 (see AR 508-11), Dr. Janoian 20 listed the following objective findings: anxiety, moderate tenderness 21 and spasm over bilateral paravertebral lumbar muscles; forward flexion 22 (35 degrees), a positive straight leg test bilaterally, degenerative 23 changes in the lumbar spine and straightening of the lordotic curvature, 24 decreased range of motion, and marked degree of cognitive 25 disorganization and memory changes indicated in standardized memory 26 testing (MMSE: 21/30). (AR 510). Dr. Janoian found, inter alia, the 27 following: Plaintiff’s impairments will prevent him from “any normal 28 work activity where prolonged sitting, standing, bending or lifting is 7 1 required”; Plaintiff’s anxiety, depression, memory and concentration 2 deficit will interfere with his ability to interact with others and will 3 adversely affect his clear state of mind and decision-making ability; 4 and Plaintiff’s impairments will produce frequent “good” and “bad” days, 5 rendering him unable to maintain a regular work schedule. (AR 511). 6 7 The ALJ addressed Dr. Janoian’s opinions as follows: 8 9 I give this opinion [October 25, 2017 letter] no weight for 10 several reasons. First, the conclusions that the claimant is 11 unable 12 activities and cannot maintain a regular work schedule are 13 unsupported by the objective evidence of record showing only 14 mild findings. 15 findings” of positive straight leg testing and standardized 16 memory 17 inconsistent 18 longitudinal treatment records, as well as the invalidated 19 psychometric testing results noted by consultative examiner 20 Dr. Sharokhi (Exhibit 8F). 21 above, the claimant’s mental impairment is found to be non- 22 severe with only mild limitations in interacting with others 23 and in understanding, remembering, and applying information, 24 which were supported by the evidence as a whole. 25 Janoian’s opinion is not supported by his own occasional 26 treatment records, in which he noted normal mental status 27 examination findings; for example, in a March 2014 office to perform the listed exertional and postural While Dr. Janoian relies on his “objective testing, with these the findings mild and his radiography opinion and are routine Secondly, as noted in Finding #2 28 8 Dr. 1 visit, he noted the claimant was “negative for psychiatric 2 symptoms” (Exhibit 12F/14). 3 4 I 5 statement, dated October 25, 2017, in which he opined the 6 claimant can lift and carry 20 pounds occasionally and up to 7 10 pounds frequently; stand and/or walk for six hours in an 8 eight-hour day and sit for less than six hours in an eight- 9 hour day; needs to be able to shift positions at will every 10 1-2 hours for 15-20 minutes; can be expected to be absent 11 from work more than three times a month; is limited from 12 pushing and pulling with both upper and lower extremities; 13 can occasionally perform postural activities; and must avoid 14 temperature extremes, humidity/wetness and heights (Exhibit 15 21F). 16 by the evidence of record, which supports greater functional 17 abilities than stated. also give no weight to Dr. Janoian’s medical source I give no weight to this opinion, as it is unsupported 18 (AR 25). 19 20 Since Dr. Janoian’s opinions were largely contradicted by the 21 opinions of other physicians, the ALJ was required to provide “specific 22 and legitimate” reasons for rejecting Dr. Janoian’s opinions. See 23 Trevizo, 871 F.3d at 675-76.7 24 7 The ALJ met this standard. The September 16, 2015 opinion of State Agency physician, J. 25 Frankel, M.D. -- to which the ALJ gave “great weight” (AR 24) -contradicted Dr. Janoian’s opinions, in that Dr. Frankel opined, inter 26 alia, that Plaintiff can lift and/or carry 25 pounds frequently and 50 pounds occasionally, can sit about 6 hours in an 8-hour workday, can 27 push and/or pull unlimited (other than shown for lift and/or carry), and (continued...) 28 9 1 The ALJ properly determined that the objective medical evidence did 2 not support Dr. Janoian’s opinion that Plaintiff was unable to do work 3 involving prolonged sitting, standing, bending or lifting and was unable 4 to maintain a regular work schedule due to frequent “good” and “bad” 5 days. As the ALJ found, Dr. Janoian’s opinions were inconsistent with 6 the longitudinal treatment records concerning Plaintiff’s back issues 7 as well as Plaintiff’s mental health condition. 8 9 7 (...continued) 10 has no postural or environmental limitations. (See AR 487-92). 11 The June 10, 2015 opinion of State Agency physician, K. Quint -- to which the ALJ gave “significant weight” (AR 24) –- contradicted 12 Dr. Janoian’s opinions, in that Dr. Quint opined that Plaintiff can lift an/or carry 25 pounds frequently and 50 pounds occasionally, can sit 13 about 6 hours in an 8-hour workday, can push and/or pull unlimited (other than shown for lift and/or carry), and has no postural and 14 environmental limitations. (See AR 53-55, 56-59). 15 16 17 18 19 The December 10, 2013 opinion of examining physician, Sophail Afra, M.D. (internal medicine) -- to which the ALJ gave “partial significant weight” (but less weight to the postural limitations) (AR 24) –- contradicted Dr. Janoian’s opinions, in that Dr. Afra opined that Plaintiff can lift, carry, push and pull 25 pounds frequently and 50 pounds occasionally, can sit 6 hours out of an 8-hour day, can bend, kneel, stoop, crawl and crouch occasionally, can climb ladders occasionally, and has no environmental limitations. (See AR 308-14). In his discussion of the “paragraph B” criteria for mental 20 functioning, the ALJ gave “significant weight” to the June 15, 2015 opinion of State Agency psychiatric consultant, Judith Levinson, Ph.D. 21 (AR 20-21) and “partial weight” to the September 17, 2015 opinion of State Agency psychiatric consultant, Marina Vea, M.D. (AR 21), both of 22 whom contradicted Dr. Janoian’s opinion by opining that Plaintiff had mild difficulties in maintaining social functioning. (See AR 55-56, 23 496-506). 24 25 26 27 Since Dr. Janoian’s opinion about Plaintiff’s need to shift positions at will and need for unscheduled breaks, and that Plaintiff would be absent from work were not contradicted by the opinions of other physicians, the “clear and convincing” standard applies to these findings. As set forth in this decision, the Court finds that the ALJ met this standard in rejecting Dr. Janoian’s opinions in these areas. 28 10 1 Dr. Jonoian based his opinion on objective findings indicative of 2 back issues, such as “moderate tenderness and spasm over bilateral 3 paravertebral lumbar muscles”, forward flexion (35 degrees), and a 4 positive straight leg test bilaterally,8 “[d]egenerative changes of 5 lumbar spine and straightening of the lordotic curvature,” and decreased 6 range of motion. (AR 510). However, the majority of medical records 7 concerning treatment for Plaintiff’s back, including those Plaintiff 8 relies on (see Joint Stip. at 5), show only mild findings during 9 physical examinations. (See AR 355, 330 [July 10, 2013 and April 3, 10 2014: back stiffness and decreased range of motion], 327 [May 14, 2014: 11 “Lumbar spine - muscle spasm”], 397 [June 17, 2014: same], 373 12 [September 25, 2014: same]; 369 [October 23, 2014: same], 366 [November 13 20, 2014: same], 363 [December 23, 2014: same], 426 [January 22, 2015: 14 same], 466 [April 28, 2015: “Lumbar spine - muscle spasm, Range of 15 motion: mild pain w/ motion”], 471 [May 28, 2015: same] 477 [July 7, 16 2015: same], 480 [August 7, 2015: same], 580 [September 8, 2015: same 17 577 [January 13, 2016: same], 566 [May 19, 2016: same], 562 [June 30, 18 2016: “Lumbar spine - Range of motion: mildly reduced [Range of 19 Motion]”], 556 [August 9, 2016: “Lumbar spine - muscle spasm, Range of 20 motion: mild pain w/ motion”], 541 [November 15, 2016: same], and 515 21 [September 11, 2017: same); see also AR 349, 344 and 335 [September 19, 22 23 24 25 26 27 28 8 The “straight leg raise test” requires a medical practitioner to raise a patient’s leg upward while the patient is lying down. The test stretches the nerve root. The Merck Manual of Diagnosis and Therapy, 1490 (17th Ed. 1999). “A positive Lasegue or straight leg raising test (pain on straight leg raising) produces pain in the sciatic nerve and is significant for compression of the L4-L5 or L5-S1 spinal nerve roots.” Primero v. Astrue, 2013 WL 394883, *2 at n.6 (C.D. Cal. Jan. 31, 2013)(citation omitted). 11 1 2013, October 24, 2013, and February 7, 2014: Plaintiff had no radicular 2 pain]. 3 4 The December 10, 2013 report of consultative internal medicine 5 examiner, Sohail Afra, M.D., which the ALJ discussed (see AR 23), also 6 showed only mild findings. 7 tenderness noted paraspinal. (See AR 311-12 [Cervical: “No muscular Flexion (0º-45º), extension (0º-55º), 8 lateral bending (0º-40º), and rotation (0º-70º) are within normal 9 limits”; Dorsolumbar: “Moderate tenderness to palpation noted over the 10 paraspinal areas with mild paraspinal spasm noted on examination. 11 Flexion painful and decreased to about 40º (0º-90º), extension to 5º-10º 12 (0º-35º), and rotation 15º (Oº-30[º]); and Straight Leg Raising Test: 13 “Negative bilaterally (0º-90º)]). 14 15 Plaintiff contends that Dr. Jonoian’s opinions are supported by 16 old imaging records (see Joint Stip. at 5-6, 12), specifically citing 17 October 2008 CT scans of the lumbar spine (see AR 248, 250), and a July 18 2011 X-ray of the lumbar spine (see AR 251), but these records reflect 19 essentially mild findings that do not support Dr. Jonoian’s restrictive 20 opinions. In any event, the ALJ was entitled to rely on more recent 21 diagnostic imaging which reflect mild findings. (See AR 315 [April 2014 22 three views of lumbar spine, showing: “There is a straightening of the 23 lordotic curvature without evidence of subluxation. The vertebral body 24 height is within normal limits. There is moderate osteophyte formation 25 along the L3 and L4 vertebrae with minimal osteophyte formation along 26 the L5 and S1 vertebrae. There is mild narrowing of L3-L4 disc space 27 identified.”]). 28 12 1 Dr. Janoian listed standardized memory testing as indicative of a 2 more serious mental health issue. (AR 510 [“Standardized memory testing 3 reveals marked degree of cognitive disorganization and memory changes 4 (MMSE: 21/30).”]). However, the ALJ properly found that this finding 5 was undermined by the December 5, 2013 report of consultative 6 psychological examiner, Baniafshe Sharokhi, Ph.D., who determined that 7 the validity of Plaintiff’s scores on a memory test (WMS-IV) were 8 suspect because Plaintiff’s effort was “extremely inconsistent effort” 9 and Plaintiff’s scores were “extremely inconsistent with his memory 10 functioning on the mental status examination.” (AR 305 [“Test results 11 are extremely inconsistent. The claimant’s cognitive abilities appear 12 higher than shown on psychometric testing. The claimant’s extremely 13 inconsistent effort, impulsivity, low motivation, and aborting of 14 subtests prematurely affected testing results. Test results should be 15 interpreted with these caveats in mind.”]). 16 17 Plaintiff points out that several medical records contained 18 notations regarding signs/symptoms of mental health issues, such as 19 anxiety, depression, hopelessness, insomnia, “[l]ittle interest or 20 pleasure in doing things,” and lack of energy (see Joint Stip. at 6, 21 citing AR 372 [September 25, 2014], 369 [October 23, 2014], 366 22 [November 20, 2014], 453 [December 23, 2014], 426 [January 22, 2015], 23 430 [February 24, 2015], 439 [March 24, 2015], 466 [April 23, 2015], 471 24 [May 28, 2015], 476 [July 7, 2015], 480 [August 7, 2015], 580 25 [September 8, 2015], 569 [February 12, 2016], 562 [June 30, 2016], 555 26 [August 9, 2016], 552 [September 8, 2016], 546 [October 11, 2016], 538 27 [November 15, 2016], and 515 [September 11, 2017]. However, the medical 28 13 1 record as a whole, including Dr. Janoian’s own treatment notes, fails 2 to support Dr. Janoian’s opinion that Plaintiff’s mental health issues 3 would affect his ability to maintain a regular work schedule due to 4 frequent “good” and “bad” days and would interfere with his ability to 5 interact with others. 6 7 As the ALJ noted, Dr. Janoian’s own treatment notes did not reflect 8 that Plaintiff had serious mental health issues. (See AR 339 [November 9 22, 2013: Under review of neurological/psychiatric systems, Dr. Janoian 10 wrote, “Negative for psychiatric systems” and that Plaintiff was alert 11 and oriented], 336 [February 7, 2014: same], 332-33 [March 13, 2014: 12 same], 330 [April 3, 2014: same]). See Bayliss v. Barnhart, 427 F.3d 13 1211, 1216 (9th Cir. 2005)(upholding ALJ’s rejection of the treating 14 physician’s opinion because his own clinical notes contradicted his own 15 opinion); Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 2003)(“We 16 hold that the ALJ properly found that [the treating doctor’s] extensive 17 conclusions regarding [the claimant’s] limitations are not supported by 18 his own treatment notes.”); see also See Thomas v. Barnhart, 278 F.3d 19 947, 957 (9th Cir. 2002)(“The ALJ need not accept the opinion of any 20 physician including the treating physician, if that opinion is brief, 21 conclusory, and inadequately supported by clinical findings.”); see also 22 20 C.F.R. § 416.927(c)(3)(“The more a medical source presents relevant 23 evidence to support a medical opinion, particularly medical signs and 24 laboratory findings, the more weight we will give that medical opinion. 25 The better an explanation a source provides for a medical opinion, the 26 more weight we will give that medical opinion.”); 20 C.F.R. § 27 416.927(c)(4) (“Generally, the more consistent a medical opinion is with 28 14 1 the record as a whole, the more weight we will give to that medical 2 opinion.”). 3 4 In addition, other physicians found that Plaintiff was alert and 5 oriented during various office visits. (See AR 357 [July 10, 2013], 381 6 [July 25, 2013], 353 [August 25, 2013], 350 [September 19, 2013], 345 7 [October 24, 2013], 386 [November 22, 2013], 303 [December 5, 2013, 8 psychological evaluation], 310 [December 10, 2013, internal medicine 9 evaluation], 527 [May 9, 2017], and 602 [May 22, 2017]). 10 11 As the ALJ noted (see AR 19–21, 25), Dr. Jonoian’s opinion 12 concerning Plaintiff’s inability to interact with others was 13 contradicted by: (a) the December 5, 2013 findings of Dr. Sharokhi (a 14 consultative psychological examiner) that Plaintiff “was cooperative 15 during the evaluation and appropriate with staff in the waiting room,” 16 “was coherent, stable and appropriate,” and Dr. Sharokhi’s opinion that 17 Plaintiff “presents with the ability to accept instructions from 18 supervisors” and “was essentially socially appropriate with the examiner 19 and staff in today’s evaluation and presents with the ability to 20 interact appropriately with supervisors, coworkers and peers” (AR 303, 21 306-07); (b) the June 15, 2015 opinion of Dr. Levinson (a State Agency 22 psychiatric consultant) that Plaintiff had mild difficulties in 23 maintaining social functioning (AR 55); and (c) the September 17, 2015 24 opinion of Dr. Vea (a State Agency psychiatric consultant) that 25 Plaintiff had mild difficulties in maintaining social functioning (AR 26 504). See Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001)(an 27 examining physician’s opinion may constitute substantial evidence to 28 15 1 reject a treating physician’s opinion); Thomas v. Barnhart, 278 F.3d at 2 957 (“The opinions of non-treating or non-examining physicians may also 3 serve as substantial evidence when the opinions are consistent with 4 independent clinical findings or other evidence in the record.”); see 5 also Morgan v. Comm’r of Soc. Sec., 169 F.3d 595, 603 (9th Cir. 6 1999)(“The ALJ is responsible for resolving conflicts in medical 7 testimony, and resolving ambiguity.”). 8 9 The ALJ properly determined that Dr. Janoian’s opinion about 10 Plaintiff’s physical limitations, see AR 594-96, was not supported by 11 the objective medical evidence of Plaintiff’s back and mental health 12 conditions. As the ALJ noted (see AR 24), Dr. Janoian’s opinions were 13 contradicted by three medical opinions -- (a) the September 16, 2015 14 opinion of Dr. Frankel (AR 487-92); (b) the June 10, 2015 opinion of K. 15 Quint(AR 53-55, 56-59); and (c) the December 10, 2013 opinion of Dr. 16 Afra (AR 308-14).9 The ALJ properly found that these three opinions 17 (with the exception of the postural limitations found by Dr. Afra) were 18 consistent with the mild findings in the medical records discussed 19 above. See Tonapetyan, 242 F.3d at 149; Thomas, 278 F.3d at 957. 20 21 Finally, contrary to Plaintiff’s assertion (see Joint Stip. at 6), 22 since Dr. Janoian’s findings in the Questionnaire and letter were not 23 inadequate, there was no reason for the ALJ to recontact Dr. Janoian to 24 clarify his opinions regarding Plaintiff’s functional limitations. See 25 Bayliss V. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005)(“An ALJ is 26 required to recontact a doctor only if the doctor’s report is ambiguous 27 9 28 See note 7. 16 1 or insufficient for the ALJ to make a disability 2 determination.”)(citations omitted); Thomas, 278 F.3d at 958 (“[T]he 3 requirement for additional information is triggered only when the 4 evidence from the treating medical source is inadequate to make a 5 determination as to the claimant’s disability.”). 6 7 The ALJ provided specific and legitimate and clear and convincing 8 reasons, supported by substantial evidence in the record, for giving the 9 opinions of Dr. Janoian no weight. 10 11 B. The ALJ Properly Evaluated Plaintiff’s Mental Limitations 12 13 Plaintiff asserts that the ALJ failed to include any of Plaintiff’s 14 mild mental limitations in the RFC assessment. (See Joint Stip. at 1515 16, 19). Defendant contends that because the ALJ properly found that 16 Plaintiff’s mental condition did not cause more than minimal limitations 17 on his ability to perform basic work activities and as a result, was not 18 a severe impairment, the ALJ was not required to include Plaintiff’ mild 19 mental limitations in the RFC assessment. (See Joint Stip. at 17-18). 20 The Court agrees. 21 22 At step two, the ALJ addressed the severity of Plaintiff’s mental 23 impairment, specifically, generalized anxiety disorder. After providing 24 accounts of Plaintiff’s hearing testimony and of the evidence regarding 25 Plaintiff’s mental health issues (see AR 19), the ALJ found, in the 26 “paragraph B” analysis, that Plaintiff had mild limitations in 27 understanding, remembering or applying information, interacting with 28 17 1 others, concentration, persistence or pace, and adaptation or managing 2 of himself. (See AR 19-20). The ALJ’s findings were supported by the 3 opinions of (1) Dr. Sharokhi, the consultative psychological examiner, 4 that Plaintiff had mild limitations in understanding, remembering and 5 carrying out instructions and in maintaining attention, concentration, 6 persistence and pace (AR 299-307); (2) Dr. Levinson, the State Agency 7 psychiatric consultant, that Plaintiff had a mild restriction in 8 activities of daily living and mild difficulties in social functioning 9 and in concentration, persistence and pace (AR 55); (3) Dr. Vea, the 10 State Agency psychiatric consultant, that Plaintiff had a mild 11 restriction in activities of daily living, mild difficulties in social 12 functioning, and moderate difficulties in concentration, persistence or 13 pace (AR 504); and (4) Anthony Francisco, the consultative psychological 14 examiner, who issued reports in 2011 and 2012 finding that Plaintiff had 15 moderate to severe overall task orientation and interpersonal 16 orientation impairments (AR 252-58), and mild to marked limitations in 17 understanding and memory, sustained concentration and persistence, 18 social interaction, and adaptation (AR 266-71). (See AR 19-21). Based 19 on a consideration of the overall record, the ALJ concluded that 20 Plaintiff’s “medically determinable mental impairment of generalized 21 anxiety disorder does not cause more than minimal limitation in the 22 [Plaintiff’s] ability to perform basic mental work activities and is 23 therefore non-severe.” (AR 19; see also AR 21). 24 25 An ALJ is required to consider all limitations, whether severe or 26 non-severe, when assessing a claimant’s RFC. See 20 C.F.R. § 27 416.945(a)(2)(“We will consider all of your medically determinable 28 18 1 impairments of which we are aware, including your medically determinable 2 impairments that are not ‘severe’ . . . when we assess your residual 3 functional capacity.”); see also Hutton v. Astrue, 491 Fed.Appx. 850, 4 850-51 (9th Cir. 2012)(although ALJ found claimant’s impairment of PTSD 5 to be non-severe because it caused only “mild mental limitations in the 6 area of concentration, persistence or pace, and no episodes of 7 8 9 decompensation,” the ALJ was required to consider the mild limitations in the RFC analysis); but see Ball v. Colvin, 2015 WL 2345652, at *2-3 (C.D. Cal. May 15, 2015)(ALJ did not err in not including mild mental 10 limitations in RFC where ALJ’s finding that mental limitations do not 11 12 13 14 cause more than minimal limitations in Plaintiff’s ability to basic mental activities was supported by the record, and distinguishing Hutton as based on the ALJ’s “explicit refusal” to consider the claimant’s mild 15 mental limitations caused by PTSD in the RFC). 16 17 However, an ALJ need not include such non-severe limitations in 18 the RFC if they do not cause more than a minimal limitation on a 19 claimant’s ability to work. See Medlock v. Colvin, 2016 WL 6137399, at 20 *5 (C.D. Cal. Oct. 20, 2016)(“Consideration of “the limiting effects of 21 all impairments” does not necessarily require the inclusion of every 22 impairment into the final RFC if the record indicates the non-severe 23 impairment does not cause a significant limitation in the plaintiff’s 24 ability to work.”); Ball, supra (mild mental impairments “by definition 25 do not have more than a minimal limitation on Plaintiff’s ability to do 26 basic work activities . . . which translates in most cases into no 27 28 19 1 functional limitations,” and thus the ALJ was not required to include 2 them in the RFC). 3 4 Although the ALJ did not include Plaintiff’s mild mental 5 limitations in the RFC, the ALJ did consider Plaintiff’s mild mental 6 limitations in assessing the RFC. See AR 16-17 (“[I]n making th[e] 7 finding [about the RFC], I must consider all of the claimant’s 8 impairments, including impairments that are not severe”); 22 (“[I]n 9 making the finding [about the RFC], I have considered all symptoms and 10 the extent to which these symptoms can reasonably be accepted as 11 consistent with the objective medical evidence and other evidence”), 25 12 (“Secondly, as noted in [the finding in step number two] above, the 13 claimant’s mental impairment is found to be non-severe with only mild 14 limitations in interacting with others and in understanding, remembering 15 and applying information, which were supported by the evidence as a 16 whole.”). See Scotellaro v. Colvin, 2015 WL 4275970, at *9 (D. Nev. 17 June 22, 2015), report and recommendation adopted, 2015 WL 4275978 (D. 18 Nev. July 14, 2015)(“Although the ALJ did not extensively discuss 19 Plaintiff’s mental impairment at step four, he thoroughly discussed the 20 evidence supporting his findings at step two and incorporated them by 21 reference in his RFC analysis.”). 22 23 In any event, the ALJ was not required to include the mild mental 24 limitations in the RFC because, as the ALJ found, the record did not 25 show that Plaintiff’s mental impairment caused a significant limitation 26 in his ability to work. See McIntosh v. Berryhill, 2018 WL 3218105, at 27 *4 (C.D. Cal. June 29, 2018)(because ALJ concluded, based on the record, 28 20 1 that mental impairment was nonsevere and caused no more than minimal 2 restrictions, there was no requirement to include it in the RFC); 3 Medlock, 2016 WL 6137399, at *5 (“[B]ecause Plaintiff’s mental 4 impairments were not severe and did not cause any significant 5 impairment, the ALJ’s RFC determination was proper.”). 6 7 C. The ALJ Provided Clear and Convincing Plaintiff’s Subjective Symptom Testimony Reasons for Rejecting 8 9 10 11 12 13 Plaintiff asserts that the ALJ did not provide clear and convincing reasons for rejecting Plaintiff’s testimony about his symptoms and limitations. (See Joint Stip. at 19-23, 28-30). Defendant asserts that the ALJ provided proper reasons for finding Plaintiff’s subjective symptom testimony not fully credible. (See Joint Stip. at 23-28). 14 15 1. Legal Standard 16 17 18 19 20 21 22 23 24 25 26 27 28 When assessing a claimant’s credibility regarding subjective pain or intensity of symptoms, the ALJ must engage in a two-step analysis. Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). First, the ALJ must determine if there is medical evidence of an impairment that could reasonably produce the symptoms alleged. Id., (citing Garrison v. Colvin, 759 F.3d 995, 1014-15 (9th Cir. 2014)). “In this analysis, the claimant is not required to show that her impairment could reasonably be expected to cause the severity of the symptom she has alleged; she need only show that it could reasonably have caused some degree of the symptom.” Id. (emphasis in original)(citation omitted). “Nor must a claimant produce objective medical evidence of the pain or fatigue itself, or the severity thereof.” Id. (citation omitted). 21 1 If the claimant satisfies this first step, and there is no evidence 2 of malingering, the ALJ must provide specific, clear and convincing 3 reasons for rejecting the claimant’s testimony about the symptom 4 severity. Id. (citation omitted); see also Robbins v. Soc. Sec. Admin., 5 466 F.3d 880, 883 (9th Cir. 2006)(“[U]nless an ALJ makes a finding of 6 malingering based on affirmative evidence thereof, he or she may only 7 find an applicant not credible by making specific findings as to 8 9 credibility and stating clear and convincing reasons for each.”); Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996)(“[T]he ALJ may reject the 10 claimant’s testimony regarding the severity of her symptoms only if he 11 12 13 14 makes specific findings stating clear and convincing reasons for doing so.”). “This is not an easy requirement to meet: The clear and convincing standard is the most demanding required in Social Security 15 cases.” Garrison, 759 F.3d at 1015 (citation omitted). 16 17 Where, as here, the ALJ finds that a claimant suffers from a 18 medically determinable physical or mental impairment that could 19 reasonably be expected to produce his alleged symptoms, the ALJ must 20 evaluate “the intensity and persistence of those symptoms to determine 21 the extent to which the symptoms limit an individual’s ability to 22 perform work-related activities for an adult.” Soc. Sec. Ruling (“SSR”) 23 16-3p, 2017 WL 5180304, at *3.1 SSR 16–3p eliminated the term 24 25 26 1 SSR 16-3p, which superseded SSR 96-7p, is applicable to this 27 case, because SSR 16-3p, which became effective on March 28, 2016, was in effect at the time of the Appeal Council’s January 9, 2019 denial of 28 Plaintiff's request for review. 20 C.F.R. § 416.929, the regulation on evaluating a claimant’s symptoms, including pain, has not changed. 22 1 “credibility” from the Agency’s sub-regulatory policy. However, the 2 Ninth Circuit Court of Appeals has noted that SSR 16–3p: 3 4 5 6 7 8 9 makes clear what [the Ninth Circuit’s] precedent already required: that assessments of an individual’s testimony by an ALJ are designed to “evaluate the intensity and persistence of symptoms after the ALJ finds that the individual has a medically determinable impairment(s) that could reasonably be expected to produce those symptoms,” and not to delve into wide-ranging scrutiny of the claimant’s character and apparent truthfulness. Trevizo, 871 F.3d at 678 n.5 (quoting SSR 16–3p)(alterations omitted). In discrediting the claimant’s subjective symptom testimony, the 10 ALJ may consider: “ordinary techniques of credibility evaluation, such 11 as . . . prior inconsistent statements concerning the symptoms, and 12 13 14 other testimony by the claimant that appears less than candid; unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and the claimant’s daily 15 activities.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) 16 17 18 19 (citation omitted). Inconsistencies between a claimant’s testimony and conduct, or internal contradictions in the claimant’s testimony, also may be relevant. 20 2014). Burrell v. Colvin, 775 F.3d 1133, 1137 (9th Cir. In addition, the ALJ may consider the observations of treating 21 and examining physicians regarding, among other matters, the functional 22 restrictions caused by the claimant’s symptoms. 23 1284; accord Burrell, supra. Smolen, 80 F.3d at However, it is improper for an ALJ to 24 reject subjective testimony based “solely” on its inconsistencies with 25 the objective medical evidence presented. Bray v. Comm’r of Soc. Sec. 26 Admin., 554 F.3d 1219, 1227 (9th Cir. 2009)(citation omitted). 27 28 23 1 The ALJ must make a credibility determination with findings that 2 are “sufficiently specific to permit the court to conclude that the ALJ 3 did not arbitrarily discredit claimant’s testimony.” Tommasetti v. 4 Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008)(citation omitted); see 5 Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (“A finding 6 that a claimant’s testimony is not credible must be sufficiently 7 specific to allow a reviewing court to conclude the adjudicator rejected 8 9 the claimant’s testimony on permissible grounds and did not arbitrarily discredit a claimant’s testimony regarding pain.”) (citation omitted). 10 Although an ALJ’s interpretation of a claimant’s testimony may not be 11 12 13 14 the only reasonable one, if it is supported by substantial evidence, “it is not [the court’s] role to second-guess it.” Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). 15 16 2. Plaintiff’s Subjective Statements and Testimony 17 18 Plaintiff made the following statements in a Function Report - 19 Adult dated April 15, 2015 (see AR 195-204)2: 20 21 22 23 24 25 26 27 28 He lives in a house with family. His back pain, leg pain, muscle pain, chest pain, heavy breathing, poor memory, depression, and sleeping problems limit his ability to work. He takes medicines for his conditions; the medicines do not cause side effects. (AR 195, 203).3 2 The date –- “4-15-15” -- is stated on the bottom of the first page of the Function Report, rather than in the box next to Plaintiff’s name on the last page of the Function Report. (See AR 195, 204). The List of Exhibits states that the Function Report is dated “04/15/2015”. (AR 3). 3 In a Disability Report - Appeal dated August 6, 2015, Plaintiff stated that his back pain, leg pain, chest pain, and shortness of breath have gotten worse since August 1, 2015, and that he takes the following prescribed medicines: Ambien (for sleep), Zocor (for cholesterol), Motrin (for pain), Amlodipine and Diphenhydramine (for (continued...) 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 With respect to his daily activities, he does not want to do anything or go anywhere. He does not take care of anyone else or pets. Before his conditions he was able to work and do everything. His conditions affect his abilities to dress and bathe (he can dress and bathe with medicine) and to care for his hair and shave (he does not care). He needs somebody to remind him to take care of his personal needs and grooming and to take medicine. He does not prepare his own meals because of his conditions. He cannot do any household chores or yard work because of his conditions (back pain, leg pain, muscle pain). He goes outside once or twice a week, either driving or riding in a car; he cannot go out alone because of dizziness and memory issues. He shops only with somebody’s help. He is able to count change, but he is unable to pay bills, handle a savings account, or use a checkbook/money orders due to a lack of concentration. Before his conditions, he was able to handle money. He does not have any hobbies or interests because of his conditions. He does not spend time with others. He goes to his doctor’s office on a regular basis (once a month), and needs to be accompanied and reminded to go. He has problems getting along with others because he does not like noises; he did “mostly everything” before his conditions began. (AR 196-200). His conditions affect his abilities to lift, squat, bend, stand, reach, walk, sit, kneel, stair-climb, concentrate, understand, follow instructions and get along with others and affect his memory. He can walk about 50 to 60 feet before needing to rest. He can pay attention for about a couple of minutes. He does not finish what he starts. He cannot concentrate on written instructions. He cannot concentrate on or memorize spoken instructions. He becomes very nervous and upset around authority figures. He has never been fired or laid off from a job because of problems getting along with other people. He does not handle stress well because he panics quickly. His unusual behavior or fears are getting worse. (AR 200-01). 21 22 23 24 25 Plaintiff gave the following testimony at the administrative hearing (see AR 646-56): He lives with his wife and kids. He graduated from physical university (four years) in Armenia. He attended Los Angeles City College for one year. (AR 646-47, 655). 26 27 3 (...continued) 28 high blood pressure), Flexeril (for muscle spasms), and Heclizine (for dizziness). (AR 213, 217). 25 1 He worked as a warehouse supervisor at Armand Art (marble/granite tabletops for furniture) for approximately 25 years. He was involved in shipping and receiving. He supervised 2 to 4 people. He had to lift 50 to 100 pounds of merchandise and had to bend. He was on his feet all day (“[w]e walk and we walk” and only sat for lunch). He last worked there in approximately 2008 (when the business was sold), and he has not worked for pay since then. He tried looking for other work for a couple of years, but stopped looking because of his pain. (AR 646-50). 2 3 4 5 6 Since the time of his prior hearing (see AR 662 [January 7, 2013], his back pain, which radiates down his right leg, has gotten worse. He experiences back pain every 2 to 3 days. His back pain makes him want to sit when he walks and to walk when he sits. He can walk approximately 15 to 25 minutes (a couple of blocks) until he gets tired; his back pain does not increase during that time (“It’s not too much, but it’s still pain.”). He can sit comfortably for approximately 20 to 30 minutes before he has to walk in order for his pain to become bearable. Even when he lays down, he has to start walking again. He can lift 15 to 10 pounds, but lifting more causes excruciating pain. He has difficulty bending. He still has shortness of breath when he walks. (AR 650-52). He has been seeing doctors, including Dr. Garduno (mostly) and Dr. Janoian, at All for Health in Glendale every one to three months for a couple of years. The doctors have prescribed him medicines for pain, depression and insomnia. He has not been able to sleep well for a couple of years because of pain. The pain medicine relieves the pain for a couple of hours. He had surgery for prostrate cancer in May 2017. His depression and anxiety have gotten worse since the last hearing; he has difficulties with concentration and focus (he cannot watch television or read books). However, he has not yet gotten a psychiatric referral. (AR 652-56). 7 8 9 10 11 12 13 14 15 16 17 18 19 20 // 21 22 23 // // 24 25 26 27 28 26 1 3. The ALJ’s Credibility Findings 2 3 4 After briefly discussing Plaintiff’s testimony (see AR 23),4 the ALJ stated: “After careful consideration of the evidence, I find that the 5 claimant’s medically determinable impairments could reasonably be 6 expected to cause the alleged symptoms; however, the claimant’s 7 statements concerning the intensity, persistence and limiting effects of 8 these symptoms are not entirely consistent with the medical evidence and 9 other evidence in the record for the reasons explained in this 10 decision.” (AR 23). 11 12 The ALJ then addressed Plaintiff’s testimony as follows: 13 14 As for the claimant’s statements about the intensity, 15 persistence, and limiting effects of his or her symptoms, they 16 are inconsistent because radiographic and examination findings 17 show generally mild finds, as discussed in detail below. 18 19 4 20 21 22 23 24 25 26 27 28 The ALJ stated: I have considered all of the claimant’s subjective complaints, including statements from the administrative hearing. At the hearing, the claimant testified his back pain is worsening, becoming “really bad” every two or three days, and that he also experiences pain radiating down his legs, more so in his right leg. He indicated that [he] is able to lift up to 15 pounds, but will experience sharp back pain if he attempts to lift more, and has also difficulty bending. He testified he needs to change positions frequently, such as needing to sit after 15-25 minutes, although walking does not necessarily increase his low back pain. In addition, he testified he experiences shortness of breath on exertion. He reported needing to walk after sitting for about 20-30 minutes. As for treatment, he indicated pain medications help a little, but provide only temporary relief. (AR 23). 27 1 Although treatment notes since ALJ Reason’s prior decision[5] 2 indicate the claimant reported back pain, they show he made 3 complaints of radiculopathy at some visits, while denying it 4 at other visits (e.g., Exhibit [AR 329, 335]). 5 evidence 6 support a full range of medium work, and I find the claimant’s 7 8 9 since ALJ Reason’s prior decision This medical continues to subjective complaints are not fully supported by the objective findings and are inconsistent with the routine, conservative treatment documented in the record. 10 The medical evidence of record regarding the claimant’s 11 12 13 impairments support the above residual functional capacity assessment. For instance, testing supports the diagnoses. In 14 April of 2014, the claimant underwent lumbar spine imaging, 15 which revealed straightening of the lordoctic curvature and 16 mild degenerative changes of the lumbar spine ([AR 315]). 17 Additionally, consistently mild clinical findings further 18 support the residual functional capacity assessment. 19 December 20 internal medicine examination by Sohail K. Afra, M.D., who 21 noted moderate tenderness to palpitation with mild paraspinal 22 spasm in the dorsolumbar area, as well as decreased, painful 23 flexion, and decreased extension, lateral bending, and roation 24 ([AR 311-12]. of 2013, the claimant underwent a In consultative Dr. Afra also noted normal motor strength, 25 26 27 28 5 [Administrative Law Judge Sally Reason’s decision on Plaintiff’s earlier applications for Disability Insurance Benefits and Supplemental Security Income is dated April 18, 2013. (See AR 31-39).] 28 1 sensation, reflexes, and gait, although the claimant exhibited 2 mild difficulty walking on toes and on heels ([AR 312]). 3 Treatment notes from his primary care provider, All for 4 Health, contain largely routine office visits, and [claimant] 5 was primarily seen by Leonardo Garduno and occasionally by 6 Noobar Janoian, to whom the claimant reported complaints of 7 8 9 back pain with occasional radiculopathy [(AR 320-58, 362-486, 507-92]). Exam findings of his back were generally normal to mild, noting occasional muscle spasm, stiffness, or decreased 10 range of motion (e.g., [AR 325, 327, 329-30, 335; AR 363, 366; 11 12 13 AR 375, 377; AR 562), but no gait or neurologoical disturbances (e.g., [AR 329, 339, 349]). 14 Contrary to the allegations of difficulty with walking, 15 the claimant also reported walking for exercise daily to his 16 primary 17 examiner Dr. Sharokhi ([AR 302; AR 356; AR 376]). 18 received only conservative treatment, such as prescribed 19 Motrin, naproxen, and robaxin, and he advised (sic) to use 20 topical over-the-counter patches and creams as needed ([AR 21 320-58, 362-486; AR 563]). care provider and to consultative psychological He also 22 23 (AR 23-24, footnoted bracket added). 24 25 After addressing the opinions of Plaintiff’s treating physicians 26 (Drs. Jonian and Gaboian), the consultative internal medicine examiner 27 (Dr. Afra) and the State Agency medical consultants (Drs. Frankel and 28 29 1 Quint), as well as the statement by Plaintiff’s son (see AR 24-25), the 2 ALJ concluded that: 3 4 “In sum, the above residual functional capacity assessment is 5 supported by the objective medical evidence contained in the 6 record. 7 8 9 The persuasiveness of the claimant’s allegations is weakened by a lack of consistency between his allegations and the medical evidence. Although inconsistent information provided by the claimant may not be the result of a conscious 10 intent to mislead, the inconsistencies nevertheless suggest 11 12 13 the information provided by the claimant generally may not be entirely reliable. The claimant does experience some 14 limitations, but only to the extent described in the residual 15 functional capacity above.” 16 (AR 26). 17 18 4. Analysis 19 20 The ALJ’s finding that Plaintiff’s testimony about the intensity, 21 persistence and limiting effects of his pain and symptoms was not 22 credible is supported by substantial evidence.6 23 6 The Court will not consider reasons for discounting 24 Plaintiff’s subjective symptom testimony that were not given by the ALJ in the decision (see Joint Stip. at 25-26, i.e., inconsistent statements 25 about back pain, inconsistent efforts during psychological examination). See Garrison, 759 F.3d at 1010 (“We review only the reasons provided by 26 the ALJ in the disability determination and may not affirm the ALJ on a ground upon which he did not rely.”); Connett, 340 F.3d at 874 (“We are 27 constrained to review the reasons the ALJ asserts.”; citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) and Pinto v. Massanari, 249 F.3d 28 840, 847-48 (9th Cir. 2001)). 30 1 The ALJ properly determined that Plaintiff's testimony about the 2 intensity, persistence and limiting effects of his symptoms were not 3 supported by the objective medical evidence (see AR 23). See Burch v. 4 Barnhart, 400 F.3d 676, 681 (9th Cir. 2005)(“Although lack of medical 5 evidence cannot form the sole basis for discounting pain testimony, it 6 is a factor that the ALJ can consider in his credibility analysis.”); 7 Rollins 8 9 v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001)(“While subjective pain testimony cannot be rejected on the sole ground that it is not fully corroborated by objective medical evidence, the medical 10 evidence is still a relevant factor in determining the severity of the 11 12 13 14 claimant’s pain and its disabling effects.”); SSR 16-3p, *5 (“objective medical evidence is a useful indicator to help make reasonable conclusions about the intensity and persistence of symptoms, including 15 the effects those symptoms may have on the ability to perform work16 related activities”). As the ALJ pointed out, the medical records 17 concerning Plaintiff’s back issues reflected only mild clinical and 18 diagnostic findings. (See AR 311-12, 315, 324-25, 327, 330, 333, 335, 19 344, 349, 355, 363, 339, 366, 369, 373, 376, 397, 466, 471, 477, 480, 20 515, 541, 562, 556, 566, 577, 580). 21 22 Accordingly, the ALJ’s finding that Plaintiff’s subjective symptom 23 testimony was not supported by the objective medical evidence was a 24 clear and convincing reason for discounting Plaintiff’s credibility. 25 More importantly, as discussed below, this was not the sole legally 26 sufficient reason for discounting Plaintiff’s credibility. 27 28 31 1 The ALJ also properly determined that Plaintiff’s testimony about 2 the intensity, persistence and limiting effects of his symptoms was 3 inconsistent with Plaintiff’s testimony about his ability (or lack of 4 ability) to walk and his statements to medical providers about his 5 ability to walk (see AR 24, 26). See 20 C.F.R. § 416.929(c)(4) (“We 6 will consider whether there are any inconsistencies in the evidence and 7 the extent to which there are any conflicts between your statements and 8 the rest of the evidence . . . .”). 9 10 As the ALJ noted, Plaintiff’s testimony about his difficulty 11 12 13 14 walking (see AR 200 [He can walk about 50 to 60 feet before needing to rest], 650 [He can walk for only approximately 15 to 25 minutes (a couple of blocks]) was inconsistent with statements made to a treating 15 physician (AR 356 [“Exercise includes walking. Exercises daily.”]) and 16 to the consultative psychological examiner (AR 307 [“On a daily basis, 17 the claimant watches television and goes for walks.”). This was a clear 18 and convincing reason, supported by substantial evidence in the record, 19 for discounting Plaintiff’s credibility. 20 21 The ALJ also properly determined that Plaintiff’s testimony about 22 the intensity, persistence and limiting effects of his symptoms was not 23 supported by the conservative nature of his treatment (see AR 24). As 24 the ALJ noted, Plaintiff generally was prescribed only mild pain 25 relievers (i.e., Motrin, Naproxen, and Robaxin) and over-the-counter 26 patches and creams as needed for his back issues (see AR 320-22, 32427 28 430, 438-41, 445-50, 452-84, 563-64]). See Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007)(“The ALJ also noted that [the claimant’s] 32 1 physical ailments were treated with over-the-counter pain medication. 2 We have previously indicated that evidence of ‘conservative treatment’ 3 is sufficient to discount a claimant’s testimony regarding severity of 4 an impairment.”; citation omitted); Johnson v. Shalala, 60 F.3d 1428, 5 1434 (9th Cir. 1995)(an ALJ may properly rely on the fact that 6 prescribed conservative treatment suggests a lower level of both pain 7 and functional limitation). 8 9 Moreover, there is no indication in the record that Plaintiff was prescribed physical therapy or was recommended surgery for his back issues, and Plaintiff testified that walking does 10 not increase his level of pain (AR 650-51). 11 12 The ALJ’s reasons for discounting Plaintiff’s credibility -- lack 13 14 of support in the medical record, inconsistent statements, and 15 conservative treatment -- sufficiently allow the Court to conclude that 16 the ALJ’s credibility finding was based on permissible grounds and 17 supported by substantial evidence in the record. 18 19 ORDER 20 21 For the foregoing reasons, the decision of the Commissioner is 22 AFFIRMED. 23 LET JUDGMENT BE ENTERED ACCORDINGLY. 24 25 DATED: February 12, 2020 26 27 28 /s/ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 33
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