Mary L Alexander v. Michael J Astrue, No. 5:2012cv00104 - Document 15 (C.D. Cal. 2012)
Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal; IT IS ORDERED that Judgment be entered AFFIRMING the decision of the Commissioner and dismissing this action with prejudice. See order for details. (jy)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MARY L. ALEXANDER, 12 13 14 15 16 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) NO. EDCV 12-00104 SS MEMORANDUM DECISION AND ORDER 17 I. 18 INTRODUCTION 19 20 Mary Alexander ( Plaintiff ) brings this action seeking to overturn 21 the decision of the Commissioner of the Social Security Administration 22 (the Commissioner ) denying her application for Supplemental Security 23 Income ( SSI ) benefits. 24 complaint (the Complaint ) commencing the instant action. 25 2012, Defendant filed an Answer to the Complaint (the Answer ). 26 parties have consented to the jurisdiction of the undersigned United 27 States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons 28 stated below, the decision of the Commissioner is AFFIRMED. On January 18, 2012, Plaintiff filed a On June 13, The 1 II. 2 PROCEDURAL HISTORY 3 4 On August 24, 2009, Plaintiff filed an application for SSI benefits 5 under Title XVI. 6 born on April 18, 1959. 7 on July 1, 2009, due to morbid obesity, ambulation problems, abdominal 8 hematoma, asthma, bronchitis, and pulmonary saddled embolism.1 9 41, 10 77, 119, (Administrative Record ( AR ) 119). (AR at 119). 277-80). The Plaintiff was She alleges disability beginning Commissioner denied application initially and upon reconsideration. (AR at Plaintiff s SSI (AR 14-26, 77-81). 11 12 Plaintiff requested and participated in a hearing before an 13 Administrative Law Judge ( ALJ ) on August 11, 2010. (AR at 34-36, 37- 14 72, 73, 84). 15 appeared and testified. 16 issued an unfavorable decision, finding Plaintiff to have several severe 17 impairments, but still having the residual functional capacity to 18 perform light work. 19 capable of performing her past relevant work as an insurance clerk, 20 secretary, or data entry clerk. 21 Plaintiff requested review of the ALJ s decision before the Appeals 22 Council. At the hearing, Plaintiff, represented by counsel, (AR 118). (AR 37-72). (AR 14-23). On September 11, 2010, the ALJ The ALJ concluded that Plaintiff was (AR 14-23). On October 1, 2010, On November 21, 2011, the Appeals Council denied 23 24 25 26 27 28 1 A pulmonary embolism is an obstruction of a blood vessel in the lungs, usually due to a blood clot, which blocks a coronary artery. F r e e O n l i n e M e d i c a l D i c t i o n a r y http://medical-dictionary.thefreedictionary.com/pulmonary+embolism (last visited Nov. 13, 2012). An embolism is saddled when it is positioned across the arterial bifurcation and thus blocks both branches. See Medical Dictionary http://dictionary.reference.com/browse/saddle+embolus (last visited Nov. 13, 2012). 2 1 Plaintiff s request for review, making the ALJ s decision the final 2 decision of the Commissioner. 3 review by filing the instant action. (AR 1-6). Plaintiff requested judicial 4 5 III. 6 FACTUAL BACKGROUND 7 8 A. Plaintiff s Medical History 9 10 Medical records indicate that Plaintiff presented to Centinela 11 Hospital in July 2009 due to a pulmonary embolism.2 12 at Centinela, Plaintiff was diagnosed with morbid obesity. 13 80). 14 being released from Centinela, Plaintiff failed to comply with a 15 Coumadin prescription and deteriorated. 16 Plaintiff was admitted to UCLA Medical Center on July 11, 2009. 17 265). 18 ankles. (AR 266). 19 lower pulmonary arterial branches and a large hematoma ranging from the 20 lower chest to the pelvis. 21 Plaintiff s chest indicated that the clots were resolving. (AR 273-95). She was started on a Heparin drip and Coumadin. (AR (AR 277). (AR 264-72). While 277After As a result, (AR Upon admission, Plaintiff had a deep edema in the bilateral A CT scan of the abdomen revealed clots in the left (AR 248). An August 2009 CT scan of (AR 231). 22 23 Additionally, Plaintiff has also been diagnosed with seasonal 24 asthma. (AR 309-23). However, it appears that the shortness of breath 25 Plaintiff experienced in July 2009 was the result of the pulmonary 26 2 27 28 Defendant has stipulated, (Memorandum in Support of Defendant s Answer 3), and Plaintiff has not objected, to adopting the summary of the testimony and medical evidence set forth in the ALJ s September 11, 2010, decision. (AR 14-23). 3 1 embolism and not from asthma. (AR 20). Plaintiff was nonetheless 2 advised to avoid working in environments that would aggravate the 3 intermittent breathing difficulties she was experiencing. (AR 20). 4 5 Finally, South Bay medical records state that Plaintiff had surgery 6 on her left ankle in October 2009 to repair a fracture, but there is 7 nothing in the record to suggest that Plaintiff has any continuing ankle 8 pain or gait problems. 9 with having high cholesterol, but this condition is controlled with 10 medication. (AR 20). Additionally, Plaintiff was diagnosed (AR 47). 11 12 B. Plaintiff s Testimony 13 14 Plaintiff testified on August 11, 2010, before the ALJ. (AR 37- 15 72). Plaintiff stated that she is unable to work because she can t sit 16 for a long time due to severe pain in [her] back and [her] right hip. 17 (AR 46). 18 (See AR 46). Plaintiff is being treated at South Bay Family Health Care 19 for high blood pressure, asthma and bronchitis. (AR 46). She was first 20 treated for a pulmonary embolism on July 1, 2009. 21 Plaintiff drives infrequently, approximately a [c]ouple times a week. 22 (AR 44). 23 activities. 24 chores, as long as she is able to take breaks. She also testified that her arthritis keeps her from working. (See AR 48-49). Plaintiff testified that she has decreased her household (AR 51). However, she continues to perform some household (See AR 51-52). 25 26 Plaintiff owns three inhalers for her asthma that she uses twice 27 a day. (AR 53-54). The last time she was hospitalized for difficulties 28 in breathing was in 2009, when she received a breathing treatment. 4 (AR 1 54). She stated that she could stand for about thirty minutes, and 2 would have to sit down six to eight times during an eight-hour day. (AR 3 54-55). 4 needing to get up and move. 5 she could walk up to three blocks on a good day. (See AR 55). She believes she could only sit for two hours at a time before (AR 55). However, Plaintiff stated that 6 7 C. Vocational Expert s Testimony 8 9 On August 11, 2010, vocational expert ( VE ) Ms. June Hagan 10 testified at a hearing before the ALJ. (AR 64-72). The VE identified 11 Plaintiff's past relevant work as an insurance clerk, secretary and data 12 entry clerk. (AR 69). 13 VE: The ALJ posed the following hypothetical3 to the 14 15 If you took another individual of the same age and 16 educational background of the claimant, and that individual 17 could on occasion lift at least [ten] pounds, who could 18 frequently lift and carry less than [ten] pounds, was able to 19 stand and walk for at least two hours in an eight-hour 20 workday, could sit for at least six hours in an eight-hour 21 workday, who could occasionally climb, balance, stoop, kneel, 22 crawl, and crouch, never use ladders, ropes, or scaffolds, 23 also need to avoid concentrated exposure to fumes and other 24 pulmonary irritants in the workplace, as well as industrial 25 26 27 28 3 The ALJ also posed a hypothetical with less restrictions (i.e., the individual could lift twenty pounds), and the VE testified that the individual could do all of the Plaintiff's past relevant work. (AR 70). 5 1 hazards. Could that individual do any of the claimant s past 2 relevant work? (AR 70). 3 4 The VE responded, Yes, all of it. 5 posed a similar hypothetical, but with the added facts of a claimant who 6 would be off-task two hours per day because of pain, side effects of 7 medications, and other symptoms. 8 a claimant would not have any work available. (See AR 71). Plaintiff s 9 attorney presented a follow up hypothetical with the additional facts 10 of a claimant who would miss three days of work per month because of 11 the same symptoms. 12 claimant would not have any work available. (AR 71). (AR 70). (AR 71). Plaintiff s attorney The VE responded that such Again, the VE responded that such a (See AR 71). 13 14 IV. 15 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 16 17 To qualify for SSI, a claimant must demonstrate a medically 18 determinable impairment that prevents her from engaging in substantial 19 gainful activity4 and that is expected to last for a continuous period 20 of at least twelve months. 21 Cir. 1998) (citing 42 U.S.C. § 423(d)(1)(A)). 22 render the claimant incapable of performing the work she previously 23 performed and incapable of performing any other substantial gainful 24 employment that exists in the national economy. 25 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). Reddick v. Chater, 157 F.3d 715, 721 (9th The impairment must Tackett v. Apfel, 180 26 27 28 4 Substantial gainful activity means work that involves doing significant and productive physical or mental duties and is done for pay or profit. 20 C.F.R. §§ 404.1510, 416.910. 6 1 2 To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920. The steps are: 3 4 (1) Is the claimant presently engaged in substantial gainful 5 activity? 6 If not, proceed to step two. 7 (2) Is the If so, the claimant is found not disabled. claimant s impairment 8 claimant is found not disabled. 9 severe? If not, the three. 10 (3) If so, proceed to step Does the claimant s impairment meet or equal one of a 11 list of specific impairments described in 20 C.F.R. Part 12 404, Subpart P, Appendix 1? 13 found disabled. 14 (4) If so, the claimant is If not, proceed to step four. Is the claimant capable of performing his past work? 15 so, the claimant is found not disabled. 16 If to step five. 17 (5) If not, proceed Is the claimant able to do any other work? 18 claimant is found disabled. 19 If not, the If so, the claimant is found not disabled. 20 21 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 22 949, 953-54 (9th Cir. 2001) (citing Tackett); 20 C.F.R. §§ 404.1520(b)- 23 404.1520(f)(1) & 416.920(b)-416.920(f)(1). 24 \\ 25 \\ 26 27 28 7 1 The claimant has the burden of proof at steps one through four, and 2 the Commissioner has the burden of proof at step five. 3 F.3d 4 affirmative duty to assist the claimant in developing the record at 5 every step of the inquiry. 6 meets his burden of establishing an inability to perform past work, the 7 Commissioner must show that the claimant can perform some other work 8 that exists in significant numbers in the national economy, taking 9 into account the claimant s residual functional capacity ( RFC ),5 age, at 953-54 (citing Tackett). Additionally, Id. at 954. Bustamante, 262 the ALJ has an If, at step four, the claimant 10 education, and work experience. Tackett, 180 F.3d at 1098, 1100; 11 Reddick, 157 F.3d at 721; 20 C.F.R. §§ 404.1520(f)(1), 416.920(f)(1). 12 The Commissioner may do so by the testimony of a vocational expert or 13 by reference to the Medical-Vocational Guidelines appearing in 20 C.F.R. 14 Part 404, Subpart P, Appendix 2 (commonly known as the Grids ). 15 Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001) (citing 16 Tackett). 17 nonexertional limitations, the Grids are inapplicable and the ALJ must 18 take the testimony of a vocational expert. 19 864, 869 (9th Cir. 2000) (citing Burkhart v. Bowen, 856 F.2d 1335, 1340 20 (9th Cir. 1988)). 21 \\ 22 \\ 23 \\ 24 \\ 25 \\ When a claimant has both exertional (strength-related) and Moore v. Apfel, 216 F.3d 26 27 28 5 Residual functional capacity is what [one] can still do despite [her] limitations and represents an assessment based upon all of the relevant evidence. 20 C.F.R. §§ 404.1545(a), 416.945(a). 8 1 V. 2 THE ALJ S DECISION 3 4 The ALJ employed the five-step sequential evaluation process 5 discussed above. At the first step, the ALJ determined that Plaintiff 6 had not engaged in substantial gainful activity since the date of 7 application, August 10, 2009. 8 Plaintiff suffers from the following severe impairments: 9 obesity and status post pulmonary embolism currently controlled by (AR 19). (AR 19). 10 anticoagulants. 11 cause more than minimal restrictions. Second, the ALJ found that asthma, The ALJ determined that these impairments (AR 19). 12 13 At the third step, the ALJ found that Plaintiff does not have an 14 impairment or combination of impairments that meet or medically equal 15 any of the impairments appearing in the Listing of Impairments set 16 forth in 20 C.F.R. Part 404, Subpart P, Appendix 1. 17 noted that Plaintiff s impairments do not meet or medically equal the 18 criteria a pulmonary disorder, 19 including COPD, pulmonary embolism or asthma. (AR 20). The ALJ 20 emphasized that Plaintiff has not experienced frequent attacks, in 21 spite of prescribed treatment, and that Plaintiff has not required 22 physician intervention, occurring at least once every two months or at 23 least six a year, as required by listing 3.02. 24 the ALJ noted that because there is no separate listing for obesity, 25 when considered for its effects on the musculature, cardiovascular or 26 respiratory systems, it does not satisfy any listing in sections 1.00, 27 3.00 or 4.00 for the instant case. of listing level of severity for (AR 21). 28 9 (AR 20). (AR 20). The ALJ Furthermore, 1 Before 2 Plaintiff s RFC. 3 extent to which the symptoms can be reasonably accepted as consistent 4 with the objective medical evidence and other record evidence. (AR 21). 5 The 6 persistence and limiting effects of the symptoms was not credible, 7 especially in light of the medical evaluations. 8 alleged she cannot work due to back and right hip pain, and arthritis. 9 (AR 21). ALJ proceeding found to the fourth step, the ALJ considered In doing so, the ALJ considered all symptoms and the Plaintiff s testimony concerning the (AR 21). intensity, Plaintiff Plaintiff also claimed that her high blood pressure, asthma, 10 obesity, high cholesterol, and chronic inhaler use contribute to her 11 inability to work. 12 is able to stand for [thirty] minutes, sit for two hours and lift five 13 to [ten] pounds. 14 two hours, but can also walk one half to two blocks depending on how 15 she feels. (See AR 21). (AR 21). However, the ALJ noted that Plaintiff Plaintiff rests during the day for one to (AR 21). 16 17 Plaintiff reported being able to walk two blocks twice a day and 18 could lift five to ten pounds. 19 ability 20 straightening the room and mopping. 21 records to reflect Plaintiff s need to restrict any daily activities due 22 to chronic pain and fatigue and no doctor recommended that she reduce 23 any activity. (AR 22). Moreover, the record did not substantiate that 24 Plaintiff has osteoarthritis and there is no evidence that arthralgias 25 have cause[d] any vocationally relevant restrictions. 26 ALJ also noted that the medical records as a whole do not indicate any 27 deterioration in Plaintiff s condition. to perform light (AR 22). household 28 10 Her testimony reflects her tasks (AR 22). such as vacuuming, There are no medical (See AR 22). (AR 22). The 1 After carefully considering the evidence, the ALJ found that 2 although Plaintiff s medically determinable impairments could reasonably 3 be expected to cause the alleged symptoms, her statements concerning the 4 intensity, persistence and limiting effects of the symptoms are not 5 credible to the extent they are inconsistent with the RFC assessment. 6 (AR 21). 7 light work. 8 occasionally and ten pounds without restriction. 9 Plaintiff should not climb ladders or scaffolds, should avoid pulmonary 10 Thus, the ALJ found that Plaintiff has the RFC to perform (AR 21). This includes lifting or carrying twenty pounds irritants, and should not work around hazards. (AR 21). However, (AR 21). 11 12 At step four, after addressing Plaintiff s functional limitations, 13 the ALJ determined that Plaintiff is capable of performing her past 14 relevant work as an insurance clerk, secretary or data entry clerk. 15 (AR 22). 16 as defined in the Social Security Act, since the application s filing 17 date of August 10, 2009. Therefore, the ALJ concluded that Plaintiff is not disabled, (AR 23). 18 19 VI. 20 STANDARD OF REVIEW 21 22 Under 42 U.S.C. § 405(g), a district court may review the 23 Commissioner s decision to deny benefits. 24 Commissioner s decision when the ALJ s findings are based on legal error 25 or are not supported by substantial evidence in the record as a whole. 26 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (citing 27 Tackett, 180 F.3d at 1097); Smolen v. Chater, 80 F.3d 1273, 1279 (9th 28 Cir. 1996) (citing Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989)). 11 The court may set aside the 1 Substantial evidence is more than a scintilla, but less than a 2 preponderance. 3 112 F.3d 1064, 1066 (9th Cir. 1997)). 4 a reasonable person might accept as adequate to support a conclusion. 5 Id. (citing Jamerson, 112 F.3d at 1066; Smolen, 80 F.3d at 1279). 6 determine whether substantial evidence supports a finding, the court 7 must consider the record as a whole, weighing both evidence that 8 supports 9 conclusion. and Reddick, 157 F.3d at 720 (citing Jamerson v. Chater, evidence that It is relevant evidence which detracts from the To [Commissioner s] Aukland, 257 F.3d at 1035 (citing Penny v. Sullivan, 2 10 F.3d 953, 956 (9th Cir. 1993)). If the evidence can reasonably support 11 either affirming or reversing that conclusion, the court may not 12 substitute its judgment for that of the Commissioner. Reddick, 157 F.3d 13 at 720-21 (citing Flaten v. Sec y, 44 F.3d 1453, 1457 (9th Cir. 1995)). 14 15 VII. 16 DISCUSSION 17 18 The ALJ Provided Clear And Convincing Reasons For Rejecting 19 Plaintiff s Subjective Testimony 20 21 Plaintiff argues that the ALJ did not properly consider Plaintiff s 22 testimony. (Memorandum in Support of Plaintiff s Complaint ( Mem. Supp. 23 Pl. s Compl. 4). The Court disagrees. 24 25 Plaintiff asserts that in the absence of evidence that she is 26 malingering, the Commissioner has the burden of articulating clear and 27 convincing reasons for rejecting the claimant s testimony regarding her 28 subjective symptoms. (Id. at 6). 12 Plaintiff contends that the ALJ 1 failed to point to any evidence of malingering. (Id. at 10). Plaintiff 2 argues that the ALJ improperly rejected her statements and testimony 3 regarding her subjective symptoms by failing to provide clear and 4 convincing reasons. (See id. at 6). This contention lacks merit. 5 6 To determine whether a claimant s testimony regarding subjective 7 pain or the intensity of symptoms is credible, an ALJ must engage in a 8 two-step analysis. 9 2009). Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. First, the ALJ must determine whether the claimant has 10 presented objective medical evidence of an underlying impairment which 11 could reasonably be expected to produce the pain or other symptoms 12 alleged. 13 (9th Cir. 2007)). 14 impairment could reasonably be expected to cause the severity of the 15 symptom she has alleged; she need only show that it could reasonably 16 have caused some degree of the symptom. 17 omitted). Id. (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 The claimant, however, need not show that her Id. (internal quotation marks 18 19 Second, if the claimant meets this first test, and there is no 20 evidence of malingering, the ALJ can only reject the claimant s 21 testimony about the severity of [her] symptoms if [the ALJ] gives 22 specific, clear and convincing reasons for the rejection. 23 However, the ALJ is not required to believe every allegation of 24 disabling pain, or else disability benefits would be available for the 25 asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A). 26 v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (quoting Fair, 885 F.2d 27 at 603). 28 may use ordinary techniques of credibility evaluation. Id. Molina Furthermore, in evaluating the claimant s testimony, the ALJ 13 Turner v. 1 Comm'r of Soc. Sec., 613 F.3d 1217, 1224 n.3 (9th Cir. 2010) (quoting 2 Smolen, 3 inconsistencies either in the claimant s testimony or between the 4 testimony 5 inadequately 6 prescribed course of treatment, Tommasetti v. Astrue, 533 F.3d 1035, 7 1039 (9th Cir. 2008) (quoting Smolen, 80 F.3d at 1284); and whether the 8 claimant engages in daily activities inconsistent with the alleged 9 symptoms, Lingenfelter, 504 F.3d at 1040. 80 F.3d and at the 1284). For claimant s explained failure example, conduct, to see seek the ALJ id.; may consider unexplained treatment or to or follow a 10 11 Moreover, while a claimant need not vegetate in a dark room in 12 order to be eligible for benefits, Molina, 674 F.3d at 1112-13 (quoting 13 Smith v. Califano, 637 F.2d 968, 971 (3d Cir. 1981)), the ALJ may 14 discredit a claimant s testimony when the claimant reports participation 15 in everyday activities indicating capacities that are transferable to 16 a work setting. 17 Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999). 18 activities suggest some difficulty in functioning, they may be grounds 19 for discrediting the claimant s testimony to the extent that they 20 contradict claims of a totally debilitating impairment. 21 F.3d at 1113; see also Tuner, 613 F.3d at 1225. Molina, 674 F.3d at 1113 (citing Morgan v. Comm r Soc. Even where those Molina, 674 22 23 Plaintiff s objective medical evidence demonstrates that she 24 suffers from severe impairments. Medical records from South Bay Family 25 Health Care, (AR 209-16, 314-23), and Harbor UCLA Medical Center, (AR 26 224), substantiate Plaintiff s asthma condition. 27 diagnosed with obesity at South Bay Family Health Care, (AR 212, 319), 28 and at Harbor UCLA Medical Center (270). 14 Plaintiff was also Moreover, all three medical 1 centers diagnosed Plaintiff with a pulmonary embolism. (AR 224-31, 246- 2 48, 255, 266-81, 294-95, 307, 317-18). 3 4 Accordingly, the ALJ was required to provide specific, clear and 5 convincing reasons to reject Plaintiff s testimony 6 severity of her symptoms. 7 rejected Plaintiff s testimony by relying upon medical evidence and 8 ordinary techniques of credibility evaluation to provide specific, 9 clear and convincing reasons, supported by the record, that Plaintiff s 10 testimony was generally not credible. See Turner, 613 F.3d at 1224 n.3; 11 see also Magallanes v. Brown, 881 F.2d 747, 756 (9th Cir. 1989) 12 (allowing the ALJ to take into account a claimant s level of activity, 13 along with other probative evidence of disability or lack thereof, when 14 evaluating claimant's subjective testimony). The ALJ met this standard. regarding the The ALJ properly 15 16 The ALJ noted that Plaintiff s medical records do not corroborate 17 her allegations of severe chronic pain or fatigue and did not provide 18 evidence of any deterioration in Plaintiff s condition. 19 the contrary, a medical progress note indicated that Plaintiff reported 20 no complaints while on Warfarin. 21 that Plaintiff has never been diagnosed with osteoarthritis, decreased 22 back or leg ranges of motion, muscle atrophy, osteoporosis, severe ankle 23 impairment, 24 intervention and the absence of these diagnoses undermine Plaintiff's 25 subjective testimony. 26 doctor had recommended any reduction in Plaintiff s activity. 27 Although a lack of medical evidence alone is insufficient for an ALJ to 28 reject a claimant s credibility, Bunnell v. Sullivan, 947 F.2d 341, 345 or severe (See AR 310). pulmonary (See AR 20). 15 disorder (AR 22). On The ALJ further noted requiring physician The ALJ also observed that no (AR 22). 1 (9th Cir. 1991), it may be considered if there are additional grounds 2 for rejecting credibility. See id. at 346-47. 3 4 Furthermore, even though Plaintiff testified that for pain 5 management she was allowed to take only Extra Strength Tylenol due to 6 her Warfarin prescription, (AR 57), the ALJ noted that the medical 7 records 8 alternative pain management solutions. 9 complains about disabling pain but fails to seek treatment . . . an ALJ 10 may use such failure as a basis for finding the complaint unjustified 11 or exaggerated. 12 (citing Fair, 885 F.2d at 603). 13 visits were for prescription medication refills. (AR 209-10, 214, 217, 14 307, 309, 314-16, 321). 15 medical evidence did not support Plaintiff s claims. do not demonstrate that Plaintiff ever (AR 22). inquired about [I]f a claimant Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007) Moreover, most of Plaintiff s medical Consequently, the ALJ reasonably found that 16 17 The ALJ also relied on ordinary techniques of credibility 18 evaluation in supporting his adverse credibility determination. See 19 Smolen, 80 F.3d at 20 credibility evaluation, such as prior inconsistent statements and other 21 testimony by the claimant that appears less than candid, to determine 22 credibility). 23 twice a day, as she testified at her August 11, 2010, hearing. 24 see also id. at 55). 25 lift five to ten pounds and perform light household tasks such as 26 vacuuming, straightening the room and mopping. 27 Plaintiff s ability to perform such tasks undermines her claims that her 28 impairments were severe as these everyday physical activities indicate 1284 (ALJ may consider ordinary techniques of The ALJ noted that Plaintiff is able to walk two blocks (AR 22; The ALJ also referred to Plaintiff s capacity to 16 (AR 22, 55, 179). 1 that Plaintiff has capabilities that are transferable to a work setting. 2 See Molina, 674 F.3d at 1113 (citing Morgan v. Comm r Soc. Sec. Admin., 3 169 F.3d 595, 600 (9th Cir. 1999); see also Tommasetti, 533 F.3d at 1039 4 (stating that the ALJ may consider claimant s daily activities as one 5 of many factors in determining claimant s credibility). 6 7 Additionally, the ALJ may also consider an unexplained or 8 inadequately explained failure to . . . to follow a prescribed course 9 of treatment as a factor in weighing a claimant s credibility. Id. 10 (quoting Smolen, 80 F.3d at 1284). 11 considerations were the primary grounds for the ALJ s decision, the ALJ 12 did 13 treatment. 14 fill 15 reflected this failure. 16 the effect that Plaintiff s continued obesity may have had on her other 17 impairments, pursuant to SSR 02-1p.6 18 rendered his decision, Plaintiff still weighed 295 pounds. 19 Plaintiff testified that doctors had instructed her to lose weight and 20 to speak with a nutritionist and admitted that doing so would be in her 21 best interest. 22 commonly leads to, and often complicates chronic diseases . . . [t]he note her that Plaintiff failed While it does not appear that such to follow prescribed courses of For example, the ALJ observed that Plaintiff had failed to prescription for Coumadin, and several (AR 19, 265, 268, 271-72). (AR 60). (AR 19). medical records The ALJ also noted At the time the ALJ (AR 20). The ALJ acknowledged that while obesity 23 24 25 26 27 28 6 Plaintiff argues that "an obese individual's failure to lose weight is not one [sic] to be held against them." (Plaintiff's Memo. at 10) (citations omitted). Here, the ALJ considered the impact of Plaintiff's obesity, and noted that she did not "seek weight control," but these observations were not the reasons the ALJ rejected Plaintiff's pain testimony, and it is not an accurate characterization of the ALJ's entire decision to suggest that the ALJ "held against" Plaintiff her failure to lose weight. 17 1 fact that obesity is a risk factor for other impairments does not mean 2 that 3 impairments. 4 are at a greater than average risk for developing other impairments. 5 (AR 19). individuals with (AR 19). obesity necessarily have any of these However, the ALJ noted that obese individuals 6 7 Thus, the ALJ provided specific, clear and convincing reasons for 8 rejecting Plaintiff s claims about the severity of her symptoms. 9 Vasquez, 572 F.3d at 591. See Because the ALJ s credibility finding is 10 supported by substantial evidence in the record, this Court will not 11 second-guess that determination. 12 (quoting Thomas, 278 F.3d at 959); see also Burch v. Barnhart, 400 F.3d 13 676, 679 (9th Cir. 2005) ( Where evidence is susceptible to more than 14 one rational interpretation, it is the ALJ s conclusion that must be 15 upheld). See Tommasetti, 533 F.3d at 1039 Accordingly, remand is not required on this issue. 16 17 VIII. 18 CONCLUSION 19 20 Consistent with the foregoing, IT IS ORDERED that Judgment be 21 entered AFFIRMING the decision of the Commissioner and dismissing this 22 action with prejudice. 23 Court serve copies of this Order and the Judgment on counsel for both 24 parties. IT IS FURTHER ORDERED that the Clerk of the 25 26 27 28 DATED: December 4, 2011. /S/ ______________________________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 18
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