Steven Pound v. Michael J Astrue, No. 5:2011cv02039 - Document 15 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER AFFIRMING THE COMMISSIONER by Magistrate Judge Jean P Rosenbluth. (See document for details.) IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner and dismissing this action with prejudice. IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment on counsel for both parties. (rla)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 STEVEN POUND, 12 Plaintiff, 13 v. 14 MICHAEL J. ASTRUE, Commissioner of the Social 15 Security Administration, 16 Defendant. 17 ) ) ) ) ) ) ) ) ) ) ) ) Case No. EDCV 11-2039-JPR MEMORANDUM OPINION AND ORDER AFFIRMING THE COMMISSIONER 18 I. PROCEEDINGS 19 Plaintiff seeks review of the Commissioner s final decision 20 denying his application for Social Security Disability Insurance 21 Benefits ( DIB ). The parties consented to the jurisdiction of 22 the undersigned U.S. Magistrate Judge pursuant to 28 U.S.C. 23 § 636(c). This matter is before the Court on the parties Joint 24 Stipulation, filed September 4, 2012, which the Court has taken 25 under submission without oral argument. For the reasons 26 discussed below, the Commissioner s decision is affirmed and this 27 action is dismissed. 28 1 II. BACKGROUND 2 Plaintiff was born on March 30, 1951. 3 Record ( AR ) 84.) 4 English. (Administrative He has a GED and is able to communicate in (AR 137, 142.) Plaintiff has at various times claimed 5 different onset dates for his alleged disability, but they are 6 all in the first half of 2008. (See, e.g., AR 127 (Jan. 2, 7 2008), AR 138 (May 5, 2008).) 8 On October 17, 2008, Plaintiff filed his application for 9 DIB. (AR 127-31.) After it was denied, he requested a hearing 10 before an Administrative Law Judge ( ALJ ), which was held on 11 September 8, 2010. (AR 22.) Plaintiff, who was represented by 12 counsel, testified at the hearing. 13 (AR 26-57.) On November 5, 2010, the ALJ denied Plaintiff s claim. 14 10-18.) (AR She first found that Plaintiff last met the insured 15 status requirements of the Social Security Act on December 31, 16 2009, and had not engaged in substantial gainful activity from 17 the alleged onset date of May 5, 2008, to that date. (AR 12.) 18 She then determined that Plaintiff had the severe impairment of 19 thoracolumbar spine strain. (Id.) She found, however, that as 20 of the date last insured, Plaintiff retained the residual 21 functional capacity ( RFC )1 to perform medium work, with some 22 limitations. (AR 13.) Specifically, the claimant can lift 50 23 pounds occasionally and 25 pounds frequently; the claimant can 24 sit, stand and/or walk for 6 hours out of an 8-hour workday with 25 26 1 RFC is what a claimant can still do despite existing 20 C.F.R. § 416.945(a); see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 27 exertional and nonexertional limitations. 28 2 1 frequent ladders, ropes and scaffolds; the claimant is limited to 2 frequent posturals and due to the side effects of medication, is 3 limited to work involving 1 to 2 step instructions. (Id.) She 4 further found that for a variety of reasons, Plaintiff was only 5 partially credible. (AR 13-15.) She agreed with the VE that 6 Plaintiff was capable of performing the jobs of small-products 7 assembler, cleaner, products deliverer, and house cleaner and 8 that those jobs existed in significant numbers in the national 9 and regional economies; thus, the ALJ found Plaintiff not 10 disabled. 11 (AR 17.) On December 10, 2010, Plaintiff requested review by the 12 Appeals Council. (AR 5-6.) On November 17, 2011, the Council 13 denied Plaintiff s request for review. (AR 1-4.) This action 14 followed. 15 III. STANDARD OF REVIEW 16 Pursuant to 42 U.S.C. § 405(g), a district court may review 17 the Commissioner s decision to deny benefits. The Commissioner s 18 or ALJ s findings and decision should be upheld if they are free 19 of legal error and are supported by substantial evidence based on 20 the record as a whole. § 405(g); Richardson v. Perales, 402 U.S. 21 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971); Parra v. 22 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence 23 means such evidence as a reasonable person might accept as 24 adequate to support a conclusion. Richardson, 402 U.S. at 401; 25 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It 26 is more than a scintilla but less than a preponderance. 27 Lingenfelter, 504 F.3d at 1035. To determine whether substantial 28 evidence supports a finding, the reviewing court must review the 3 1 administrative record as a whole, weighing both the evidence that 2 supports and the evidence that detracts from the Commissioner s 3 conclusion. 4 1996). Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. If the evidence can reasonably support either affirming 5 or reversing, the reviewing court may not substitute its 6 judgment for that of the Commissioner. Id. at 720-21. 7 IV. THE EVALUATION OF DISABILITY 8 People are disabled for purposes of receiving Social 9 Security benefits if they are unable to engage in any substantial 10 gainful activity because of a physical or mental impairment that 11 is expected to result in death or which has lasted, or is 12 expected to last, for a continuous period of at least 12 months. 13 42 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 14 (9th Cir. 1992). 15 A. 16 The Commissioner (or ALJ) follows a five-step sequential The Five-Step Evaluation Process 17 evaluation process in assessing whether a claimant is disabled. 18 20 C.F.R. § 404.1520(a)(4); Lester v. Chater, 81 F.3d 821, 828 19 n.5 (9th Cir. 1995) (as amended Apr. 9, 1996). In the first 20 step, the Commissioner must determine whether the claimant is 21 currently engaged in substantial gainful activity; if so, the 22 claimant is not disabled and the claim is denied. 23 § 404.1520(a)(4)(I). If the claimant is not engaged in 24 substantial gainful activity, the second step requires the 25 Commissioner to determine whether the claimant has a severe 26 impairment or combination of impairments significantly limiting 27 his ability to do basic work activities; if not, a finding of not 28 disabled is made and the claim is denied. 4 § 404.1520(a)(4)(ii). 1 If the claimant has a severe impairment or combination of 2 impairments, the third step requires the Commissioner to 3 determine whether the impairment or combination of impairments 4 meets or equals an impairment in the Listing of Impairments 5 ( Listing ) set forth at 20 C.F.R. Part 404, Subpart P, Appendix 6 1; if so, disability is established and benefits are awarded. 7 § 404.1520(a)(4)(iii). If the claimant s impairment or 8 combination of impairments does not meet or equal an impairment 9 in the Listing, the fourth step requires the Commissioner to 10 determine whether the claimant has sufficient RFC to perform his 11 past work; if so, the claimant is not disabled and the claim must 12 be denied. § 404.1520(a)(4)(iv). The claimant has the burden of 13 proving that he is unable to perform past relevant work. 14 966 F.2d at 1257. Drouin, If the claimant meets that burden, a prima 15 facie case of disability is established. Id. If that happens or 16 if the claimant has no past relevant work, the Commissioner then 17 bears the burden of establishing that the claimant is not 18 disabled because he can perform other substantial gainful work in 19 the economy. § 404.1520(a)(4)(v). That determination comprises 20 the fifth and final step in the sequential analysis. Id.; 21 Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257. 22 B. 23 At step one, the ALJ found that Plaintiff had not engaged in The ALJ s Application of the Five-Step Process 24 any substantial gainful activity from the onset of his alleged 25 disability, May 5, 2008, to the date last insured, December 31, 26 2009. (AR 12.) At step two, the ALJ concluded that Plaintiff 27 had the severe impairment of thoracolumbar spine strain. 28 At step three, the ALJ found that Plaintiff did not have an 5 (Id.) 1 impairment or combination of impairments that met or equaled any 2 of the impairments in the Listing. (AR 13.) At step four, the 3 ALJ found that as of December 31, 2009, Plaintiff had the RFC to 4 perform medium work with the following limitations: the 5 claimant can lift 50 pounds occasionally and 25 pounds 6 frequently; the claimant can sit, stand and/or walk for 6 hours 7 out of an 8-hour workday with frequent ladders, ropes and 8 scaffolds; the claimant is limited to frequent posturals and due 9 to the side effects of medication, is limited to work involving 1 10 to 2 step instructions. (AR 13.) The ALJ concluded that 11 Plaintiff was unable to perform his past relevant work as a heavy 12 equipment operator, auto mechanic, and auto painter. (AR 16.) 13 At step five, the ALJ found, based on the VE s testimony and 14 application of the Medical Vocational Guidelines, that jobs 15 existed in significant numbers in the national and regional 16 economies that Plaintiff could perform. (AR 16-17.) The ALJ 17 agreed with the VE that Plaintiff could perform such 18 representative occupations as small-products assembler, 19 cleaner, products deliverer, and house cleaner. (AR 17.) The 20 ALJ noted that the vocational expert s testimony was consistent 21 with the Dictionary of Occupational Titles. (Id.) 22 the ALJ determined that Plaintiff was not disabled. 23 Accordingly, (Id.) Plaintiff does not challenge any of the ALJ s determinations 24 at steps one through four of the process. Rather, he challenges 25 various aspects of the ALJ s step-five analysis. 26 V. DISCUSSION 27 Plaintiff alleges that the ALJ erred because (1) her finding 28 that he could perform the jobs of small-products assembler, 6 1 cleaner, products deliverer, and house cleaner was inconsistent 2 with her RFC determination and the DOT, and she did not clarify 3 the discrepancy with the vocational expert (J. Stip. at 3-12); 4 (2) she improperly considered Plaintiff s daily activities in 5 determining whether he could perform substantial gainful work 6 activity (J. Stip. at 21-24); and (3) she did not fully and 7 fairly develop the record (J. Stip. at 28-31). 8 A. 9 The ALJ s Finding that Plaintiff Could Perform Certain Jobs Was Inconsistent with Her Finding that Plaintiff 10 Could Follow Only One- or Two-Step Instructions; 11 However, Any Error Was Harmless 12 Plaintiff asserts that the ALJ s finding as part of her RFC 13 determination that he could perform only 1 to 2 step 14 instructions because of the side effects of medication was 15 inconsistent with her finding that he could perform the 16 designated jobs because each of them involves at least level-two 17 reasoning skills under the DOT, and that reasoning level requires 18 understanding of more than one- and two-step instructions. 19 Stip. at 4-12.) (J. Further, Plaintiff complains, the ALJ did not 20 clarify this discrepancy with the vocational expert. (J. Stip. 21 at 12.) 22 23 1. Applicable law At step five of the five-step process, the Commissioner has 24 the burden to demonstrate that the claimant can perform some work 25 that exists in significant numbers in the national or regional 26 economy, taking into account the claimant s RFC, age, education, 27 and work experience. Tackett v. Apfel, 180 F.3d 1094, 1100 (9th 28 Cir. 1999); 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1560(c). 7 1 The Commissioner may satisfy that burden either through the 2 testimony of a vocational expert or by reference to the Medical3 Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart P, 4 Appendix 2. Tackett, 180 F.3d at 1100-01; see also Hill v. 5 Astrue, 688 F.3d 144, 1152 (9th Cir. 2012). When a VE provides 6 evidence about the requirements of a job, the ALJ has a 7 responsibility to ask about any possible conflict between that 8 evidence and the DOT. See SSR 00-4p, 2000 WL 1898704, at *4; 9 Massachi v. Astrue, 486 F.3d 1149, 1152-54 (9th Cir. 2007) 10 (holding that application of SSR 00-4p is mandatory). An ALJ s 11 failure to do so is procedural error, but the error is harmless 12 if no actual conflict existed or the VE provided sufficient 13 evidence to support the conclusion. Massachi, 486 F.3d at 1154 14 n.19. 15 16 2. Relevant facts At various times, Plaintiff has complained that the vicodin 17 he sometimes took2 to control his back pain made him nauseated 18 (AR 28, 39), not want to eat (id.),3 and tired (AR 178). On 19 the other hand, Plaintiff has never claimed that it affected his 20 judgment or ability to follow instructions. On his work history 21 22 23 24 25 26 27 28 2 Although Plaintiff claimed at the hearing to have been taking vicodin twice a day since first seeing a doctor for his pain (AR 38-39), the medical evidence of record shows that as of October 2009, he had not had his prescriptions refilled since March of that year. (AR 206.) 3 Plaintiff claimed at the September 2010 hearing that as a result of the medicine s effect on his appetite, he had lost 30 pounds in the prior 12 months and then weighed 185 pounds. (AR 27-28.) In May 2009, however, Plaintiff s weight was also 185 pounds. (AR 203.) 8 1 report, which Plaintiff filled out on November 8, 2008, during 2 the alleged period of disability, Plaintiff indicated that his 3 memory, concentration, understanding, and ability to follow 4 instructions were not affected by his condition. (AR 159.) He 5 indicated good when asked how well he followed written and 6 spoken instructions. (Id.) Similarly, no doctor has ever found 7 Plaintiff to have any limitation on his ability to follow 8 instructions as a result of his condition or the medicine he 9 sometimes took for it. See, e.g., AR 197 (examining doctor finds 10 that claimant is alert, well-oriented, has good memory function, 11 calm mood and behavior, and no communication disorder ). At the 12 hearing, Plaintiff testified that he likes to watch CSI and 13 documentaries on television and has no difficulty following the 14 storylines except for occasionally falling asleep. (AR 34.) The 15 transcript of the hearing shows that Plaintiff understood and 16 answered all the questions put to him, and the ALJ did not make 17 any findings to the contrary. Before developing his back 18 condition, Plaintiff performed jobs that required reasoning 19 levels of three and four, specifically, automobile mechanic, 1991 20 WL 685242, DICOT 620.261-010 (reasoning level four); auto-body 21 repairer, 1991 WL 681514, 807.381-010 (level three); painter, 22 1991 WL 681878, 845.381-014 (level three); and heavy-equipment 23 operator, 1991 WL 681950, 859.683-010 (level three). 24 (AR 57-59.) Despite all this, the ALJ included in some of her 25 hypotheticals to the vocational expert (as well as in her RFC 26 determination) that Plaintiff was limited to performing jobs with 27 only one- or two-step instructions. (AR 59.) Although the ALJ 28 did not expressly ask the VE if her findings were consistent with 9 1 the DOT, the VE testified as follows: 2 Let s see. 3 person would be able to now, see, this is where I m 4 gonna have to double check my he s limited to frequent 5 posturals. I ve 6 [INAUDIBLE]. Bear with me. 7 the the companion to the DOT, just to make sure 8 [INAUDIBLE]. 9 would be able to work as a cleaner II, cleaner of 10 vehicles. . . . With that hypothetical, the person would 11 be able to work as a deliverer of merchandise. . . . Let 12 me just check one other one, here. Okay. Okay, it looks 13 like we with that hypothetical, then the person would 14 be able to work as a house cleaner, hotel and motel. One to two steps, I think that hypothetical Okay. gotta be careful not to get in I mean, I ve got to check With that hypothetical, the person 15 (AR 60-61.) 16 Other than in the RFC, the ALJ did not reference, much less 17 explain, in her hearing decision the basis for the limitation on 18 following instructions. 19 20 3. Analysis Plaintiff is correct that the ALJ s finding that he was 21 limited to jobs involving just one- and two-step instructions was 22 inconsistent with her finding that Plaintiff could perform jobs 23 requiring reasoning level two or greater. Appendix C of the DOT 24 defines reasoning level one as requiring the following aptitudes: 25 Apply commonsense understanding to carry out simple one- 26 or 27 situations with occasional or no variables in or from 28 these situations encountered on the job. two-step instructions. 10 Deal with standardized 1 1991 WL 688702. Level two, on the other hand, requires that an 2 employee 3 [a]pply commonsense understanding to carry out detailed 4 but uninvolved written or oral instructions. 5 problems involving a few concrete variables in or from 6 standardized situations. 7 (Id.) Deal with Clearly, then, reasoning level two is meant to require an 8 aptitude greater than being limited to carrying out one- or two9 step instructions. See Grigsby v. Astrue, EDCV 08-1413-AJW, 2010 10 WL 309013, *3 (C.D. Cal. Jan. 22, 2010). Because all the jobs 11 the ALJ identified Plaintiff as being capable of performing 12 require level-two reasoning skills or greater, the ALJ s RFC 13 determination was inconsistent with her finding that Plaintiff 14 could perform those jobs. As in Grigsby, 15 Defendant contends that someone who can perform simple 16 and repetitive work is not precluded from all Level 2 17 reasoning jobs, and therefore plaintiff can perform the 18 Level 2 reasoning jobs identified by the vocational 19 expert.4 20 reasoning jobs may be simple, but they are not limited to 21 one- or two-step instructions. 22 involving no more than two-step instructions is what 23 distinguishes Level 1 reasoning from Level 2 reasoning. 24 There is no legal or factual basis for . . . 25 the difference between the DOT s definitions of Level 1 26 reasoning and Level 2 reasoning. That argument misses 27 28 4 See J. Stip. at 13-21. 11 the mark. Level 2 The restriction to jobs elliding 1 Id. at *2 (citation and emphasis omitted). For the reason 2 identified in Grigsby, most of the cases relied upon by the 3 Commissioner are easily distinguished: they do not involve an 4 express limitation to one- or two-step instructions but rather 5 merely to simple instructions. Those cases that do involve the 6 exact limitation at issue here all appear to have been decided by 7 the same judge, and to the extent they conflict with Grigsby, 8 this Court finds the latter more persuasive. Finally, despite 9 the ALJ s statement in her decision that the VE s testimony that 10 Plaintiff could perform those jobs was consistent with the DOT, 11 it plainly was not, and the ALJ never asked the VE to clarify or 12 explain the inconsistency. 13 Thus, the ALJ erred. Reversal is not necessary, however, because any error was 14 harmless. First, although the VE s testimony was not a model of 15 clarity, she clearly understood the ALJ s limitation to one- and 16 two-step instructions and took it into account in finding that 17 Plaintiff was capable of performing the jobs she cited. (AR 60 18 (VE referencing one to two steps, stating that she was checking 19 the DOT, and then finding that Plaintiff could perform the 20 specified jobs).) More importantly, however, no conflict 21 actually existed between the DOT s description of the jobs the VE 22 listed and Plaintiff s ability to perform them because absolutely 23 nothing in the record supports the ALJ s finding that Plaintiff 24 could not understand and follow more than one- and two-step 25 instructions. No doctor made any such finding, and Plaintiff 26 himself has never claimed that his medicines affected his ability 27 to concentrate or follow instructions. Plaintiff, who has a high 28 school equivalency diploma, has performed jobs with much higher 12 1 reasoning levels in the past, and the medical evidence of record 2 provides no reason to believe that he is incapable of reasoning 3 at those levels now. Plaintiff himself stated that his memory, 4 concentration, and ability to follow instructions were all 5 unimpaired, and no doctor found otherwise. Thus, unlike in 6 Grigsby, here [t]here is [a] legal [and] factual basis for 7 ignoring the ALJ s express finding that Plaintiff is limited to 8 jobs involving only two steps of instruction. See 2010 WL 9 309013 at *2. 10 Accordingly, even though the ALJ s RFC finding concerning 11 Plaintiff s ability to follow instructions was inconsistent with 12 her finding that Plaintiff could perform jobs at reasoning level 13 two and the ALJ erred in not seeking further clarification from 14 the VE, any error was necessarily harmless. The ALJ s isolated 15 sentence in the hearing decision was not supported by any 16 evidence in the record, medical or otherwise. See Stout v. 17 Comm r, 454 F.3d 1050, 1055 (9th Cir. 2006) (nonprejudicial or 18 irrelevant mistakes harmless); Lee v. Astrue, 472 F. App x 553, 19 555 (9th Cir. 2012) (ALJ s failure to include claimant s 20 personality disorder as severe impairment at step two harmless 21 when ALJ later accounted for impairment at step four); Wright v. 22 Comm r of Soc. Sec., 386 F. App x 105, 109 (3d Cir. 2010) 23 (Tashima, J., sitting by designation) (ALJ s misstatements in 24 written decision harmless error when regardless of them ALJ gave 25 an adequate explanation supported by substantial evidence in the 26 record ); Castel v. Comm r of Soc. Sec., 355 F. App x 260, 265-66 27 (11th Cir. 2009) (ALJ s erroneous reference to wrong medical 28 reports harmless when he referred to reports in two sentences 13 1 but dedicate[d] two paragraphs to correct reports, and 2 disability decision conformed to medical evidence). Thus, 3 reversal is not warranted. 4 B. 5 6 The ALJ Properly Considered Plaintiff s Daily Activities Plaintiff asserts that the ALJ erroneously determined, based 7 on the daily activities plaintiff engaged in, that he was not 8 credible and therefore not disabled. 9 10 1. (J. Stip. at 23.) Applicable law An ALJ s assessment of pain severity and claimant 11 credibility is entitled to great weight. See Weetman v. 12 Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. Heckler, 779 13 F.2d 528, 531 (9th Cir. 1986). When the ALJ finds a claimant s 14 subjective complaints not credible, the ALJ must make specific 15 findings that support the conclusion. 16 F.3d 1228, 1234 (9th Cir. 2010). See Berry v. Astrue, 622 Absent affirmative evidence of 17 malingering, the ALJ must give clear and convincing reasons for 18 rejecting the claimant s testimony. Lester, 81 F.3d at 834. If 19 the ALJ s credibility finding is supported by substantial 20 evidence in the record, the reviewing court may not engage in 21 second-guessing. Thomas v. Barnhart, 278 F.3d 947, 959 (9th 22 Cir. 2002). 23 24 2. Relevant facts The ALJ recounted at some length various activities 25 Plaintiff had engaged in that were inconsistent with the pain he 26 claimed to be in, including mowing the lawn, driving, and 27 cooking. (AR 14.) The ALJ also noted that he had sought 28 minimal treatment for his back, seeing the doctor only twice in 14 1 a year and a half and not scheduling a four-week checkup 2 recommended by the doctor. (AR 14, 15.) The ALJ found that 3 [o]verall, the claimant is partially credible. 4 claimant s testimony that he has not worked since 2007 5 apart from a few days in 2008 is inconsistent with the 6 earnings records and the claimant s admission in the work 7 history report, dated November 8, 2008, that he did not 8 stop working until July 3, 2008. Moreover, the claimant 9 testified for he was investigated fraud for The filing 10 concurrent unemployment and State disability claims in 11 2008. 12 Additionally, the activities reported in the 13 claimant s function reported [sic], including getting his 14 children ready for school, driving daily, cooking and 15 light cleaning are inconsistent with his testimony at the 16 hearing, where claimant testified to much more limited 17 daily functioning. 18 he is extremely limited in his ability to walk, and can 19 only walk for 5 minutes before needing to sit down; 20 [h]owever, the undersigned notes that he is able to 21 ambulate without the assistance of any devices and only 22 asserted need of an ambulatory assistive device when 23 questioned about why he has not requested one from his 24 doctor. 25 Further, the claimant testified that After careful consideration of the evidence, the 26 undersigned 27 determinable impairments could reasonably be expected to 28 cause the alleged symptoms; however, the claimant s finds that the 15 claimant s medically 1 statements concerning the intensity, persistence and 2 limiting effects of these symptoms are not credible to 3 the extent they are inconsistent with the above residual 4 functional capacity assessment. 5 (AR 14-15.) 6 7 3. Analysis As the Commissioner points out, the ALJ discussed 8 Plaintiff s daily activities primarily to show that he was only a 9 partially credible witness. (J. Stip. at 27.) The ALJ recited 10 many instances of inconsistencies and other discrepancies between 11 Plaintiff s claimed activities and his actual ones, none of which 12 Plaintiff disputes as a factual matter other than to assert that 13 Plaintiff s symptoms had gotten worse by the time of the hearing. 14 The ALJ s reliance on these discrepancies was proper. See 15 Thomas, 278 F.3d at 958-59; Batson v. Comm r, Soc. Sec. Admin., 16 359 F.3d 1190, 1196-97 (9th Cir. 2004) (adverse credibility 17 determination supported in part by conflict between claimant s 18 allegation he could not return to work because of pain and 19 testimony that he tended to his animals, among other activities). 20 Moreover, the ALJ gave several other reasons for finding 21 Plaintiff not credible none of which Plaintiff challenges and 22 all of them supported by evidence in the record including 23 inconsistencies between his statements as to when he last worked 24 and the evidence of record (AR 13-14, 28-30, 133, 138, 139, 146, 25 162); the fact that he applied for unemployment insurance and 26 disability benefits at the same time and was investigated for 27 fraud as a result (AR 13-14, 30-31), see Carmickle v. Comm r, 28 Soc. Sec. Admin., 533 F.3d 1155, 1161-62 (9th Cir. 2009) (noting 16 1 that applying for unemployment benefits is inconsistent with 2 disability because one has to hold oneself out as available, 3 willing and able to work ); and the fact that Plaintiff had 4 sought very little treatment for his allegedly incapacitating 5 back pain (AR 14-15, 38, 191-95, 213), see Tommasetti v. Astrue, 6 533 F.3d 1035, 1039 (9th Cir. 2008) (ALJ may infer that 7 claimant s response to conservative treatment undermines 8 [claimant s] reports regarding the disabling nature of his 9 pain ); Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995) 10 (holding that contradictions between claimant s testimony and 11 the relevant medical evidence provided clear and convincing 12 reasons for ALJ to reject plaintiff s subjective symptom 13 testimony); Flaten v. Sec y of Health & Human Servs., 44 F.3d 14 1453, 1464 (9th Cir. 1995) (ALJ may properly 15 rely on minimal medical treatment). Even when a claimant s daily 16 activities do not suggest [he] could return to his old job, 17 they may suggest that . . . later claims about the severity of 18 his limitations were exaggerated. Valentine v. Astrue, 574 F.3d 19 685, 693 (9th Cir. 2009). 20 Accordingly, the ALJ properly considered Plaintiff s daily 21 activities. Further, even if the ALJ did err, any error was 22 necessarily harmless in light of all the other reasons the ALJ 23 gave for finding Plaintiff not entirely credible and not 24 disabled. See Carmickle, 533 F.3d at 1162 (holding that when ALJ 25 provides specific reasons for discounting Plaintiff s 26 credibility, decision may be upheld even if certain reasons were 27 invalid as long as remaining reasoning and ultimate credibility 28 determination were supported by substantial evidence). 17 1 C. 2 Plaintiff claims that the ALJ should have ordered either The ALJ Properly Developed the Record 3 that the MRI Plaintiff claimed to have had done in 1999 be 4 subpoenaed or that Plaintiff be given a new MRI examination. (J. 5 Stip. at 28-31.) 6 The ALJ has an independent duty to develop the record in 7 order to make a fair determination as to disability. Tonapetyan, 8 242 F.3d at 1150. But it is the plaintiff s duty to prove that 9 she is disabled. Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 10 2001) (citing 42 U.S.C. § 423(d)(5) (Supp. 2001), and Clem v. 11 Sullivan, 894 F.2d 328, 330 (9th Cir. 1990)); see also 20 C.F.R. 12 § 404.1512(c) ( You must provide medical evidence showing that 13 you have an impairment(s) and how severe it is during the time 14 you say that you are disabled. ). 15 Here, Plaintiff, who was represented by counsel throughout 16 the proceedings, did not provide sufficient medical evidence to 17 show that he was disabled, despite numerous opportunities to do 18 so and his affirmative statement that he would. At the hearing, 19 the ALJ noted that no medical evidence of any kind supported 20 Plaintiff s claim that he had been diagnosed with scoliosis. 21 53.) (AR Plaintiff stated that he would have my doctor fax fax 22 that stuff in to you, which would presumably include any 23 previous MRI. (Id.) And the ALJ stated that she would consider 24 that if it s submitted. (Id.) Plaintiff never provided the 25 records, including the MRI, to the ALJ, nor any explanation for 26 not doing so. He also appears not to have submitted any 27 additional evidence with his appeal to the Appeals Council. 28 1-2.) (AR The ALJ properly acted under the assumption that Plaintiff 18 1 would, as he had promised, provide her with any additional 2 necessary records. Cf. Burch v. Barnhart, 400 F.3d 676, 682 (9th 3 Cir. 2005) (no reversible failure from ALJ s failure to develop 4 record concerning Plaintiff s obesity because she was represented 5 by counsel and never submitted additional evidence to appeals 6 council or on appeal to show alleged full effect on RFC of her 7 obesity). 8 Moreover, an ALJ s duty to develop the record further is 9 triggered only when the record contains ambiguous evidence or is 10 inadequate to allow for proper evaluation of the evidence. 11 Mayes, 276 F.3d at 459-60 (citing Tonapetyan, 242 F.3d at 1150). 12 Here, the evidence was not ambiguous and the record was not 13 inadequate. All of the clinical and laboratory tests and 14 examinations that were performed on Plaintiff demonstrated that 15 at most he had only slightly abnormal cervical issues. Although 16 Dr. Walter Bramson did find that Plaintiff was unable to work, 17 his finding was based entirely on Plaintiff s subjective pain 18 symptoms recounted to him during the course of two meetings; his 19 own tests showed normal functioning (AR 194), and as the ALJ 20 noted, unlike Dr. Bramson, she found Plaintiff not fully credible 21 (AR 15). The consultative doctor s examination of Plaintiff 22 likewise showed that he was essentially normal . . . claimant is 23 physically non-severe. 24 ambiguous. (AR 204.) Thus, the record was not And nor was it inadequate. In 2009, during the 25 period of alleged disability, x-rays were taken of Plaintiff s 26 spine; they showed only slight narrowing of the L5-S1 disc space 27 and small anterolateral osteophytes at the L3, L4, and L5 28 vertebrae. (AR 200, 203.) The x-rays primarily showed normal 19 1 spine alignment and maintenance of the normal vertebral 2 heights. (AR 200.) The x-rays constituted sufficient evidence 3 to support the ALJ s finding that Plaintiff was not disabled, 4 particularly when considered with the entirely consistent 5 clinical findings of the examining and consultative doctors. An 6 MRI Plaintiff had had done a decade before his claimed disability 7 began would have been unlikely to aid the ALJ s disability 8 determination. And a more recent MRI was not necessary given the 9 recent x-rays and clinical findings all showing that Plaintiff 10 had at most only slight cervical abnormality. 11 VI. CONCLUSION 12 Consistent with the foregoing and pursuant to sentence four 13 of 42 U.S.C. § 405(g),5 IT IS ORDERED that judgment be entered 14 AFFIRMING the decision of the Commissioner and dismissing this 15 action with prejudice. IT IS FURTHER ORDERED that the Clerk 16 serve copies of this Order and the Judgment on counsel for both 17 parties. 18 19 DATED: _October 2, 2012_ 20 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 21 22 23 24 25 26 27 5 This sentence provides: The [district] court shall have 28 power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.
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