Alicia Rodriguez v. Michael J. Astrue, No. 5:2011cv02022 - Document 15 (C.D. Cal. 2012)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Alicia G. Rosenberg. Plaintiff Alicia Rodriguez filed this action on January 4, 2012. Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the magistrate judge on January 13 an d 18, 2012. (Dkt. Nos. 7, 9.) On September 4, 2012, the parties filed a Joint Stipulation (JS) that addressed the disputed issues. The court has taken the matter under submission without oral argument.Having reviewed the entire file, the court affirms the decision of the Commissioner. IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. (See Order for details.) (mp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ALICIA RODRIGUEZ, 12 Plaintiff, 13 v. 14 15 16 MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. 17 18 ) ) ) ) ) ) ) ) ) ) ) ) NO. EDCV 11-2022 AGR MEMORANDUM OPINION AND ORDER Plaintiff Alicia Rodriguez filed this action on January 4, 2012. Pursuant to 19 28 U.S.C. § 636(c), the parties consented to proceed before the magistrate judge 20 on January 13 and 18, 2012. (Dkt. Nos. 7, 9.) On September 4, 2012, the 21 parties filed a Joint Stipulation ( JS ) that addressed the disputed issues. The 22 court has taken the matter under submission without oral argument. 23 24 25 26 27 28 Having reviewed the entire file, the court affirms the decision of the Commissioner. 1 I. 2 PROCEDURAL BACKGROUND 3 On October 14, 2009, Rodriguez filed an application for supplemental 4 security income. Administrative Record ( AR ) 21, 125-27. Rodriguez alleged a 5 disability onset date of April 1, 2007. AR 21, 125. The application was denied 6 initially and on reconsideration. AR 21, 55-56. Rodriguez requested a hearing 7 before an Administrative Law Judge ( ALJ ). AR 75. On April 7, 2011, the ALJ 8 conducted a hearing at which Rodriguez and a vocational expert testified. AR 39- 9 54. The ALJ granted Rodriguez s request to hold the record open for 30 days to 10 obtain updated treatment records and records from Colton Valley Medical Care, 11 Inc. ( Colton Valley ). AR 46, 54. After the 30-day period expired, Rodriguez 12 submitted additional records on June 8, 2011. AR 242-425. On June 24, 2011, 13 the ALJ issued a decision denying benefits. AR 15-29. On November 30, 2011, 14 the Appeals Council denied Rodriguez s request for review. AR 1-5. This action 15 followed. 16 II. 17 STANDARD OF REVIEW 18 Pursuant to 42 U.S.C. § 405(g), this court reviews the Commissioner s 19 decision to deny benefits. The decision will be disturbed only if it is not supported 20 by substantial evidence, or if it is based upon the application of improper legal 21 standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995) (per curiam); 22 Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 23 Substantial evidence means more than a mere scintilla but less than a 24 preponderance it is such relevant evidence that a reasonable mind might 25 accept as adequate to support the conclusion. Moncada, 60 F.3d at 523. In 26 determining whether substantial evidence exists to support the Commissioner s 27 decision, the court examines the administrative record as a whole, considering 28 adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. When the 2 1 evidence is susceptible to more than one rational interpretation, the court must 2 defer to the Commissioner s decision. Moncada, 60 F.3d at 523. 3 III. 4 DISCUSSION 5 A. 6 A person qualifies as disabled, and thereby eligible for such benefits, only 7 if his physical or mental impairment or impairments are of such severity that he is 8 not only unable to do his previous work but cannot, considering his age, 9 education, and work experience, engage in any other kind of substantial gainful 10 work which exists in the national economy. Barnhart v. Thomas, 540 U.S. 20, 11 21-22, 124 S. Ct. 376, 157 L. Ed. 2d 333 (2003) (citation and quotation marks 12 omitted). 13 B. 14 The ALJ found Rodriguez has the medically determinable impairments of Disability The ALJ s Findings 15 depression and lumbosacral strain/sprain. AR 23. She does not have an 16 impairment or combination of impairments that has significantly limited her ability 17 to perform basic work-related activities for 12 consecutive months. Id. The ALJ 18 concluded that Rodriguez has not been under a disability within the meaning of 19 the Social Security Act since October 14, 2009, the date she filed her application. 20 AR 21, 29. 21 C. 22 Rodriguez contends the ALJ did not properly consider the opinion of her 23 treating physician at Colton Valley. Because the physician s name is unknown, 24 this opinion refers to the physician simply as the treating physician. 25 Treating Physician An opinion of a treating physician is given more weight than the opinion of 26 non-treating physicians. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). To 27 reject an uncontradicted opinion of a treating physician, an ALJ must state clear 28 and convincing reasons that are supported by substantial evidence. Bayliss v. 3 1 Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). When, as here, a treating 2 physician s opinion is contradicted by another doctor, the ALJ may not reject this 3 opinion without providing specific and legitimate reasons supported by substantial 4 evidence in the record. This can be done by setting out a detailed and thorough 5 summary of the facts and conflicting clinical evidence, stating his interpretation 6 thereof, and making findings. Orn, 495 F.3d at 632 (citations and quotation 7 marks omitted). When there is conflicting medical evidence, the Secretary must 8 determine credibility and resolve the conflict. Thomas v. Barnhart, 278 F.3d 947, 9 956-57 (9th Cir. 2002) (citation and quotation marks omitted). 10 The treating physician provided a form entitled, Medical Opinion Re: 11 Ability To Do Work-Related Activities (Physical), dated October 19, 2010. AR 12 239-41. The treating physician opined that Rodriguez can lift and carry less than 13 10 pounds frequently and occasionally. AR 239. She can stand and walk less 14 than 2 hours in an 8-hour day, and sit about 4 hours in an 8-hour day. Id. She 15 must walk around every 30 minutes for 30 minutes. AR 240. She requires a 16 sit/stand option. Id. She would need to lie down every 3 hours. Id. She can 17 occasionally twist, stoop, crouch, and climb stairs. Id. She can never climb 18 ladders. Id. She must avoid all exposure to extreme cold, wetness, and hazards 19 because the cold causes severe back and right knee pain. AR 241. She needs 20 to elevate her right leg 3 times a day. Id. She would be absent from work more 21 than 3 times a month due to her impairments or treatment. Id. 22 The ALJ considered the treating physician s opinion. AR 27. He gave 23 little weight to the opinion because it was: (1) an unsupported checklist-style 24 form that was brief, conclusory and inadequately supported by clinical findings; 25 (2) an accommodation to Rodriguez; and (3) the medical records contain no 26 treatment notes or diagnostic examinations of any physical impairment. Id. 27 28 The ALJ articulated specific and legitimate reasons supported by substantial evidence in the record for discounting the treating physician s opinion. 4 1 An ALJ may discount a check-the-box report that does not explain the basis of its 2 conclusions. See Batson v. Comm r of Soc. Sec. Admin., 359 F.3d 1190, 1195 3 (9th Cir. 2004) (ALJ properly rejected treating physician s conclusory check-list 4 report); see also Thomas, 278 F.3d at 957 (an ALJ need not accept the opinion 5 of any physician, including a treating physician, if that opinion is brief, conclusory, 6 and inadequately supported by clinical findings ). The treating physician s 7 opinion was provided on a check-list questionnaire. AR 239-41. In response to 8 the question asking for medical findings to support these limitations, the treating 9 physician wrote: N/A. AR 240. The record contains no treatment records from 10 Colton Valley, even though the ALJ held the record open and gave Rodriguez an 11 additional 30 days to obtain the treatment records. AR 46, 54. The ALJ could 12 reasonably determine that the treating physician did not adequately explain the 13 basis of his or her opinions in the form and that there were no treating records 14 that contained notes or diagnostic examinations of any kind. 15 The ALJ further discounted the treating physician s opinion because it was 16 an accommodation to Rodriguez. AR 27. Rodriguez argues the ALJ does not 17 provide any evidence to support the conclusion that the [Treating Physician] s 18 opinion is completed as an accommodation to the claimant. JS 6. However, an 19 ALJ is entitled to reject the treating physician s opinion if the doctor becomes an 20 advocate for a claimant. Matney on Behalf of Matney v. Sullivan, 981 F.2d 1016, 21 1020 (9th Cir. 1992). The ALJ may draw reasonable inferences logically flowing 22 from the record. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). The 23 ALJ noted that the opinion included conclusions regarding functional limitations 24 without any rationale or support for such conclusions. AR 27. He noted the lack 25 of treatment notes or diagnostic examinations of Rodriguez physical impairment 26 by the treating physician. AR 27. The ALJ could reasonably infer from the record 27 that the treating physician s opinion was an accommodation to Rodriguez. 28 Rodriguez argues that the treating physician s October 19, 2010 opinion 5 1 was based on objective evidence because medical records indicate that, after a 2 fall at a Kmart, Rodriguez underwent right knee surgery in 1999 and a MRI in 3 1999 showed a central and left herniated disc at L4-L5 and L5-S1 with lumbar 4 radiculopathy and desiccation.1 AR 329, 241, 401. 5 As the ALJ noted, the most recent treatment notes from the Arrowhead 6 Regional Medical Center Emergency Room indicated Rodriguez s complaints of 7 vaginal pain on September 16, 2010, and ear pain/cough on November 6, 2010. 8 AR 25, 228, 231. On both visits, physical examinations and psychological 9 examinations were performed. AR 229, 232. No problems with her back, knees 10 or depression were noted. AR 25-26, 228-29, 231-32. 11 The ALJ did not expressly discuss the 1999-2001 medical records, which 12 were provided after the hearing period was closed but before his decision. Any 13 error is harmless. These records concern a period roughly seven years prior to 14 the alleged onset of disability and are of limited relevance. Carmickle v. 15 Commissioner, SSA, 533 F.3d 1155, 1165 (9th Cir. 2007). Post-surgical 16 treatment notes from 1999 show that Rodriguez felt fine, stronger, and good. 17 AR 379-80, 388-90. In a June 15, 2000 orthopedic evaluation, Dr. Simon found 18 that Rodriguez s right knee incision was well-healed, she could straight leg raise, 19 and her range of motion was zero to 140 degrees. AR 408. He noted obvious 20 quadriceps atrophy on the right side. Id. Rodriguez could toe walk and heel 21 walk and had good range of motion of her LS spine with flexion hands to mid 22 tibias and no pain on back extension. AR 394. Her deep tendon reflexes, 23 patella and achilles were +2/4 and equal bilaterally. Id. Her EHL, quadriceps and 24 hamstring strength was 5/5 and equal bilaterally. Id. She had negative straight 25 leg raise in the seated and the supine position. Id. X-rays of the right knee 26 showed no obvious degenerative changes. Id. Rodriguez denied radiation down 27 28 1 401. The MRI was from 1999, not 2001, as Rodriguez contends. AR 344, 6 1 the bilateral lower extremity, and denied any current back pain. AR 394, 408. 2 She reported occasional back pain that limited her in heavy lifting and moving. 3 AR 408. She had slight pain in her right knee when she ambulated for long 4 periods of time. Id. Dr. Simon assessed 3% impairment for her herniated disk 5 and 7% impairment to the lower extremity. AR 394. 6 On January 23, 2001, Dr. Hall provided a neurosurgical consultation. AR 7 399-402. He found Rodriguez to be healthy appearing and in no distress. AR 8 400. She had a normal gait. Id. In the neurological examination, Rodriguez had 9 a normal motor examination, upper strength testing 5/5 and lower strength testing 10 generally 5-/5-, decreased sensation to light touch on the right in the L4 to S1 11 distributions, and 2/2 deep tendon reflexes. AR 400-01. He noted the MRI of the 12 lumbar spine done in 1999 and his impression was lumbar radiculopathy with disk 13 herniation at L4-L5 and L5-S1. AR 401. He recommended Advil and 14 continuation of her home exercise program. He also recommended lumbar 15 diskectomy at L4-L5 and L5-S1 from the left or intradiskal electrotherapy at both 16 levels. Id. If she chose not to have surgical intervention, her impairment would 17 be estimated at 10% impairment of the person as a whole. Id. 18 The record contains little or no evidence of doctor visits, evaluations or 19 treatment between Dr. Hall s consultation in 2001 and Dr. Sophon s consultation 20 in 2009.2 On November 19, 2009, Dr. Sophon, an orthopedic consultative 21 examiner, examined Rodriguez. AR 26, 193-98. Rodriguez s gait was normal. 22 AR 195. She exhibited no evidence of tenderness or muscle spasm in the lumbar 23 spine, flexion was 80/90 degrees, extension was 20/30 degrees, and lateral 24 bending was 20/25 degrees bilaterally. AR 26, 195. She exhibited negative 25 26 27 28 2 In the Disability Report Adult, Rodriguez stated she was not taking any medications for her conditions. AR 138. In the Disability Report Appeal, she stated she took Celebrex and Roxicet for pain in her right knee. She listed no medication for back pain. AR 178. At the hearing, she testified that she takes a pill daily for back pain, but she could not remember the name of it. AR 45. 7 1 straight leg raising. AR 26, 195. Her right knee range of motion was 0 to 130 2 degrees, and her left knee range of motion was 0 to 135 degrees. AR 196. Her 3 neurologic motor strength was grossly within normal limits. AR 26, 197. Dr. 4 Sophon diagnosed lumbosacral strain and treated right patellar fracture. AR 26, 5 197. He opined that Rodriguez could lift and/or carry 50 pounds frequently and 6 could stand and/or walk for 6 hours in an 8 hour day. AR 26, 197. 7 The ALJ articulated specific and legitimate reasons for discounting the 8 treating physician s opinion. Orn, 495 F.3d at 631-32; Batson, 359 F.3d at 1195 9 (ALJ did not err in rejecting treating physician s opinion unsupported by objective 10 medical findings). Rodriguez argues the ALJ should have recontacted the 11 treating physician to obtain clarification and/or additional evidence. However, 12 rejection of a treating physician s opinion does not by itself trigger a duty to 13 contact the physician for further explanation. McLeod v. Astrue, 640 F.3d 881, 14 885 (9th Cir. 2011). The ALJ made no finding that the evidence was ambiguous 15 or that the record was inadequate to allow for proper evaluation. See Mayes v. 16 Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001) ( An ALJ s duty to develop the 17 record further is triggered only when there is ambiguous evidence or when the 18 record is inadequate to allow for proper evaluation of the evidence. ). In addition, 19 as the Commissioner notes, the ALJ ordered two consultative examinations and 20 kept the record open for 30 days to allow Rodriguez to submit additional 21 evidence. AR 26, 46-47, 53-54, 193-98, 201-08; see Tonapetyan v. Halter, 242 22 F.3d 1144, 1150 (9th Cir. 2001) (ALJ satisfies duty to develop record by keeping 23 the record open to allow supplementation); Reed v. Massanari, 270 F.3d 838, 841 24 (9th Cir. 2001) ( One of the means available to an ALJ to supplement an 25 inadequate medical record is to order a consultative examination. ). Under these 26 circumstances, the ALJ did not have a duty to recontact the treating physician. 27 The ALJ did not err. 28 8 1 D. Severe Impairment 2 Rodriguez contends the ALJ erred in finding her impairments not severe. 3 At step two of the sequential analysis, the claimant bears the burden of 4 demonstrating a severe, medically determinable impairment that meets the 5 duration requirement. 20 C.F.R. § 404.1520(a)(4)(ii); Bowen v. Yuckert, 482 U.S. 6 137, 146 n.5, 107 S. Ct. 2287, 96 L. Ed. 2d 119 (1987). To satisfy the duration 7 requirement, the severe impairment must have lasted or be expected to last for a 8 continuous period of not less than 12 months. Id. at 140. 9 Your impairment must result from anatomical, physiological, or 10 psychological abnormalities which can be shown by medically 11 acceptable clinical and laboratory diagnostic techniques. A physical 12 or mental impairment must be established by medical evidence 13 consisting of signs, symptoms, and laboratory findings, not only by 14 your statement of symptoms. 15 20 C.F.R. § 404.1508; 20 C.F.R. § 416.908. [T]he impairment must be one that 16 significantly limits your physical or mental ability to do basic work activities. 3 17 Yuckert, 482 U.S. at 154 n.11 (quoting 20 C.F.R. § 404.1520(c)); Smolen, 80 F.3d 18 at 1290 ( [A]n impairment is not severe if it does not significantly limit [the 19 claimant s] physical ability to do basic work activities. ) (citation and quotation 20 marks omitted). 21 An impairment or combination of impairments may be found not severe 22 only if the evidence establishes a slight abnormality that has no more than a 23 minimal effect on an individual s ability to work. Webb v. Barnhart, 433 F.3d 24 25 26 27 28 3 The ability to do basic work activities includes physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling, capacities for seeing, hearing, and speaking, understanding, carrying out, and remembering simple instructions, use of judgment, responding appropriately to supervision, co-workers, and usual work situations, and dealing with changes in a routine work setting. Yuckert, 482 U.S. at 168 n.6 (citation and quotation marks omitted); Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). 9 1 683, 686-87 (9th Cir. 2005) (emphasis in original, citation omitted). Step two is a 2 de minimis screening device [used] to dispose of groundless claims and the 3 ALJ s finding must be clearly established by medical evidence. Id. at 687 4 (citations and quotation marks omitted). 5 The ALJ found that since October 14, 2009, the date Rodriguez filed her 6 application for supplemental security income, Rodriguez does not have an 7 impairment or combination of impairments that has significantly limited (or is 8 expected to significantly limit) the ability to perform basic work-related activities for 9 12 consecutive months; therefore, [she] does not have a severe impairment or 10 combination of impairments. AR 23. 11 Rodriguez argues that she has severe impairments and relies on the 12 treating physician s October 19, 2010 opinion, her partial patellectomy and repair 13 of the right knee in 1999, and her 1999 MRI. As discussed above, the ALJ 14 articulated specific and legitimate reasons for discounting the treating physician s 15 opinion. The remaining records Rodriguez cited show that she had right knee 16 surgery and left sided disc herniations in 1999, but provide no evidence that her 17 impairments caused a significant limitation on her ability to perform basic work- 18 related activities for 12 consecutive months after her filing date. 19 Substantial evidence supports the ALJ s determination that Rodriguez s 20 impairments are not severe. As discussed above, objective evidence indicated, at 21 best, that Rodriguez had good range of motion, good strength, and only 22 occasional back pain that limited only heavy moving and lifting. AR 197, 394, 23 400-01, 408. Regarding depression, substantial evidence supports the ALJ s 24 determination that Rodriguez s depression was not a severe impairment. On 25 November 29, 2009, Dr. Rodriguez, a psychiatric consultative examiner, found 26 that she had no severe mental impairments. AR 27, 205-06. She could perform 27 activities of daily living normally, was oriented in all spheres, and had normal 28 thought processes, thought content, speech, memory and concentration. AR 26, 10 1 203-04. He diagnosed major depressive disorder, in partial remission. AR 26, 2 205. Rodriguez could understand, remember and carry out simple one or two- 3 step job instructions, could do detailed and complex instructions, and was slightly 4 limited in her ability to relate and interact with supervisors, coworkers and the 5 public, maintain concentration and attention, persistence and pace, associate with 6 day-to-day work activity, adapt to the stresses common to a normal work 7 environment, maintain regular attendance and perform work activities on a 8 consistent basis, and perform work activities without special or additional 9 supervision.4 AR 26, 206. 10 The ALJ noted that the most recent treatment records from 2010 showed 11 no problems or complaints about Rodriguez s back or depression. AR 25-26, 12 228-32. The ALJ did not err. 13 E. 14 Rodriguez contends the ALJ did not properly consider her subjective 15 Credibility symptoms. 16 To determine whether a claimant s testimony regarding subjective pain or 17 symptoms is credible, an ALJ must engage in a two-step analysis. Lingenfelter 18 v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). At step one, the ALJ must 19 determine whether the claimant has presented objective medical evidence of an 20 underlying impairment which could reasonably be expected to produce the pain 21 or other symptoms alleged. Id. (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 22 (9th Cir. 1991) (en banc)). The ALJ found that Rodriguez medically determinable 23 impairments could reasonably be expected to produce the alleged symptoms. AR 24 25. 25 Second, if the claimant meets this first test, and there is no evidence of 26 27 28 4 Dr. Rodriguez assessed a GAF score of 60. The ALJ found the GAF score of limited evidentary value and inconsistent with Dr. Rodriguez unremarkable findings from Rodriguez s mental status examination. AR 27-28. 11 1 malingering, the ALJ can reject the claimant s testimony about the severity of her 2 symptoms only by offering specific, clear and convincing reasons for doing so. 3 Lingenfelter, 504 F.3d at 1036 (citation and quotation marks omitted). In making 4 a credibility determination, the ALJ must specifically identify what testimony is 5 credible and what testimony undermines the claimant s complaints[.] Greger v. 6 Barnhart, 464 F.3d 968, 972 (9th Cir. 2006) (citation omitted). Here, the ALJ 7 found no evidence of malingering. He found that Rodriguez statements 8 concerning the intensity, persistence and limiting effects of her symptoms were 9 not credible to the extent they were inconsistent with his finding that she has no 10 11 severe impairment or combination of impairments. AR 25. In weighing credibility, the ALJ may consider factors including: the nature, 12 location, onset, duration, frequency, radiation, and intensity of any pain; 13 precipitating and aggravating factors (e.g., movement, activity, environmental 14 conditions); type, dosage, effectiveness, and adverse side effects of any pain 15 medication; treatment, other than medication, for relief of pain; functional 16 restrictions; the claimant s daily activities; and ordinary techniques of credibility 17 evaluation. Bunnell, 947 F.2d at 346 (citing SSR 88-13) (quotation marks 18 omitted). The ALJ may consider (a) inconsistencies or discrepancies in a 19 claimant s statements; (b) inconsistencies between a claimant s statements and 20 activities; (c) exaggerated complaints; and (d) an unexplained failure to seek 21 treatment. Thomas, 278 F.3d at 958-59. 22 The ALJ found Rodriguez statements regarding her subjective symptoms 23 not credible to the extent that they were inconsistent with his findings. AR 25. 24 He discounted Rodriguez credibility for at least three reasons: (1) 25 inconsistencies between Rodriguez subjective allegations and her activities of 26 daily living; (2) lack of treatment records for back pain or depression; and (3) lack 27 of objective medical evidence supporting the degree of limitations. AR 24-25. 28 An ALJ may properly rely on inconsistencies between a claimant s 12 1 allegations and his activities of daily living. Thomas, 278 F.3d at 958-59; see also 2 Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (ALJ may consider 3 claimant s daily activities as one factor in assessing credibility.). As the ALJ 4 noted, Rodriguez alleged she was unable to work because of right knee pain, 5 back pain, and chronic depression. AR 24, 44, 48. She stated that her 6 impairments affected her ability to lift, squat, bend, stand, reach, walk, sit, kneel, 7 talk, hear, climb stairs, see, memorize, complete tasks, concentrate, understand, 8 follow directions, and use her hands. AR 24, 158. She contended that she had 9 difficulty performing personal care tasks, following television programs, following 10 instructions, and handling stress and changes in routine. AR 25, 155-59. When 11 her pain level is 4-8, she cannot do anything [sic] stay in bed. AR 155. The 12 ALJ found it contradictory that Rodriguez made her bed, cleaned her house, 13 washed dishes, watched television, read, prepared simple meals, drove a car, 14 shopped for clothes and groceries, and attended church. AR 25, 155-57. 15 The ALJ considered the absence of treatment records for Rodriguez back 16 pain and depression. AR 25, 44-45. An ALJ may find a claimant s complaint 17 about disabling pain unjustified or exaggerated if the claimant fails to seek 18 treatment. Orn, 495 F.3d at 638; see also Burch v. Barnhart, 400 F.3d 676, 681 19 (9th Cir. 2005) (lack of consistent treatment may be considered in assessing 20 credibility). Regarding Rodriguez back pain, the medical records submitted after 21 the close of the record support Rodriguez testimony that she had an MRI of her 22 lumbar spine on August 16, 1999 that showed left sided disk herniations at L4-5 23 and L5-S1. AR 44, 344. The record also contains brief references to LBP or 24 pain in the lumbar spine in 1999 treatment records.5 AR 342, 393. However, as 25 the Commissioner argues, the record lacks evidence that Rodriguez sought or 26 27 28 5 LBP can be used as an abbreviation for low back pain. See National Center for Biotechnology Information, http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2867967/ (last visited Nov. 7, 2012). 13 1 received treatment for her back pain between January 2001 and the alleged onset 2 date of April 1, 2007.6 AR 25, 394; see supra note 3. On January 23, 2001, Dr. 3 Hall found that Rodriguez would benefit from lumbar diskectomy at L4-L5 and L5- 4 S1 from the left or intradiskal electrotherapy at both levels, and recommended 5 continuation of NSAID s like Advil and home exercise.7 AR 401. The record 6 contains no further treatment records until 2010, when Rodriguez was treated for 7 a cold and gynecological problems, with no mention of back pain or depression.8 8 AR 228-29, 231-34. The record contains no treatment records for depression. 9 Rodriguez told Dr. Rodriguez in 2009 that she used antidepressants, Zoloft and 10 Klonopin in very low doses, prescribed by a general physician. AR 202. 11 The ALJ considered the lack of objective medical evidence to support the 12 degree of Rodriguez s claimed limitations. AR 25-28. Although lack of medical 13 evidence cannot form the sole basis for discounting pain testimony, it is a factor 14 that the ALJ can consider in his credibility analysis. Burch, 400 F.3d at 681. 15 Rodriguez argues that the medical records contain objective evidence to support 16 her complaints, citing the treating physician s opinion, evidence of right knee 17 surgery in 1999, and her MRI from 1999. JS 15; AR 329, 401. As discussed 18 above, the ALJ properly discounted the treating physician s opinion. In addition, 19 as discussed above, the objective evidence did not support the degree of 20 Rodriguez s claimed limitations. AR 25-28. 21 22 23 24 25 26 27 28 6 According to Rodriguez worker s compensation attorney and Rodriguez report to Dr. Hall, Rodriguez was treated with approximately three epidural steroid injections between August 1999 and June 2000. AR 254, 397, 399. 7 Rodriguez testified that there wasn t money for [back surgery] because the case wasn t won. AR 44-45. Failure to seek medical treatment cannot support an adverse credibility finding when it is due to lack of funds or medical coverage. Orn, 495 F.3d at 638. However, there is no evidence in the record that a lack of funds prevented Rodriguez from otherwise seeing a doctor and treating her back pain and depression. 8 Rodriguez testified that she was going to get new x-rays of her back after the hearing, but the record contains no such x-rays of her back. AR 49. 14 1 The ALJ s credibility finding is supported by substantial evidence. If the 2 ALJ s credibility finding is supported by substantial evidence in the record, we 3 may not engage in second-guessing. Thomas, 278 F.3d at 959 (citing Morgan v. 4 Comm r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999)). 5 IV. 6 ORDER 7 8 9 10 IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. 11 12 13 DATED: November 30, 2012 ALICIA G. ROSENBERG United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15

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