Catalina Gontes v. Michael J. Astrue, No. 5:2012cv00141 - Document 16 (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 O 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 9 CATALINA GONTES, 10 Plaintiff, 11 vs. 12 MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 13 14 Defendant. 15 ) Case No. EDCV 12-0141-JPR ) ) ) MEMORANDUM OPINION AND ORDER ) AFFIRMING THE COMMISSIONER ) ) ) ) ) ) ) 16 17 I. PROCEEDINGS Plaintiff seeks review of the Commissioner s final decision 18 19 denying her application for Social Security Supplemental Security 20 Income ( SSI ). 21 undersigned U.S. Magistrate Judge pursuant to 28 U.S.C. § 636(c). 22 This matter is before the Court on the parties Joint 23 Stipulation, filed October 15, 2012, which the Court has taken 24 under submission without oral argument. 25 below, the Commissioner s decision is affirmed and this action is 26 dismissed. 27 II. 28 The parties consented to the jurisdiction of the For the reasons stated BACKGROUND Plaintiff was born on April 30, 1967. 1 (Administrative 1 Record ( AR ) 80.) She has a seventh-grade education and is able 2 to communicate in English. (AR 90, 97.) Plaintiff has not 3 worked since 1991, although she earned a small amount of income 4 in 1993. (AR 85, 91.) On June 29, 2007, Plaintiff filed an 5 application for SSI, alleging a disability onset date of June 1, 6 1998. (AR 80.) 7 2007. (AR 36-38.) The application was denied on September 27, Plaintiff filed a request for 8 reconsideration, which was denied on September 9, 2008. (AR 41- 9 45.) 10 After Plaintiff s application was denied, she requested a 11 hearing before an Administrative Law Judge ( ALJ ). (AR 48.) An 12 initial hearing was held on May 6, 2010, at which Plaintiff, who 13 was represented by counsel, appeared and testified on her own 14 behalf. (AR 479-508.) In a written decision issued on June 7, 15 2010, the ALJ determined that Plaintiff was not disabled. 16 22-33.) (AR Plaintiff then requested review of the ALJ s decision, 17 and on October 29, 2010, the Appeals Council reversed and 18 remanded the matter for further proceedings. (AR 65-67.) On 19 June 7, 2011, another hearing was held, at which Plaintiff again 20 testified on her own behalf. (AR 455-78.) On June 17, 2011, the 21 ALJ issued a written decision again determining that Plaintiff 22 was not disabled. 23 ALJ s decision. (AR 12-21.) (AR 11.) Plaintiff requested review of the On December 2, 2011, the Appeals 24 Council denied Plaintiff s request for review. (AR 5-7.) This 25 action followed. 26 III. STANDARD OF REVIEW 27 Pursuant to 42 U.S.C. § 405(g), a district court may review 28 the Commissioner s decision to deny benefits. 2 The ALJ s findings 1 and decision should be upheld if they are free of legal error and 2 are supported by substantial evidence based on the record as a 3 whole. § 405(g); Richardson v. Perales, 402 U.S. 389, 401, 91 S. 4 Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971); Parra v. Astrue, 481 5 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means such 6 evidence as a reasonable person might accept as adequate to 7 support a conclusion. Richardson, 402 U.S. at 401; Lingenfelter 8 v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 9 a scintilla but less than a preponderance. It is more than Lingenfelter, 504 10 F.3d at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 11 882 (9th Cir. 2006)). To determine whether substantial evidence 12 supports a finding, the reviewing court must review the 13 administrative record as a whole, weighing both the evidence that 14 supports and the evidence that detracts from the Commissioner s 15 conclusion. 16 1996). Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. If the evidence can reasonably support either affirming 17 or reversing, the reviewing court may not substitute its 18 judgment for that of the Commissioner. Id. at 720-21. 19 IV. THE EVALUATION OF DISABILITY 20 People are disabled for purposes of receiving Social 21 Security benefits if they are unable to engage in any substantial 22 gainful activity owing to a physical or mental impairment that is 23 expected to result in death or which has lasted, or is expected 24 to last, for a continuous period of at least 12 months. 42 25 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 26 (9th Cir. 1992). 27 A. 28 The ALJ follows a five-step sequential evaluation process in The Five-Step Evaluation Process 3 1 assessing whether a claimant is disabled. 20 C.F.R. 2 § 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 3 1995) (as amended Apr. 9, 1996). In the first step, the 4 Commissioner must determine whether the claimant is currently 5 engaged in substantial gainful activity; if so, the claimant is 6 not disabled and the claim must be denied. § 416.920(a)(4)(i). 7 If the claimant is not engaged in substantial gainful activity, 8 the second step requires the Commissioner to determine whether 9 the claimant has a severe impairment or combination of 10 impairments significantly limiting his ability to do basic work 11 activities; if not, a finding of not disabled is made and the 12 claim must be denied. § 416.920(a)(4)(ii). If the claimant has 13 a severe impairment or combination of impairments, the third 14 step requires the Commissioner to determine whether the 15 impairment or combination of impairments meets or equals an 16 impairment in the Listing of Impairments ( Listing ) set forth at 17 20 C.F.R., Part 404, Subpart P, Appendix 1; if so, disability is 18 conclusively presumed and benefits are awarded. 19 § 416.920(a)(4)(iii). If the claimant s impairment or 20 combination of impairments does not meet or equal an impairment 21 in the Listing, the fourth step requires the Commissioner to 22 determine whether the claimant has sufficient residual functional 23 capacity ( RFC )1 to perform his past work; if so, the claimant 24 is not disabled and the claim must be denied. 25 § 416.920(a)(4)(iv). The claimant has the burden of proving that 26 27 28 1 RFC is what a claimant can still do despite existing exertional and nonexertional limitations. 20 C.F.R. § 416.945; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 4 1 he is unable to perform past relevant work. 2 1257. Drouin, 966 F.2d at If the claimant meets that burden, a prima facie case of 3 disability is established. Id. If that happens or if the 4 claimant has no past relevant work, the Commissioner then bears 5 the burden of establishing that the claimant is not disabled 6 because he can perform other substantial gainful work available 7 in the national economy. § 416.920(a)(4)(v). That determination 8 comprises the fifth and final step in the sequential analysis. 9 § 416.920; Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257. 10 B. 11 At step one, the ALJ found that Plaintiff had not engaged in The ALJ s Application of the Five-Step Process 12 any substantial gainful activity since June 29, 2007, the date of 13 her SSI application. (AR 17.) At step two, the ALJ concluded 14 that Plaintiff had the severe impairments of obesity, 15 degenerative disc disease of the neck and back, bilateral carpal 16 tunnel syndrome, status post left carpal tunnel surgical release, 17 history of left knee arthroscopy, diabetes, and asthma. (Id.) 18 He also found that Plaintiff s medically determinable mental 19 impairment of depression does not cause more than minimal 20 limitation in the claimant s ability to perform basic mental work 21 activities and is therefore non-severe. (Id.) At step three, 22 the ALJ determined that Plaintiff s impairments did not meet or 23 equal any of the impairments in the Listing. (AR 18.) At step 24 four, the ALJ found that Plaintiff retained the RFC to perform 25 light work 2 with the limitations that Plaintiff 26 27 28 2 Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds, a good deal of walking or standing or sitting, 5 1 can lift and carry 20 pounds occasionally and 10 pounds 2 frequently; she can sit six hours in an eight-hour 3 workday with normal breaks; she can stand and walk six 4 hours in an eight-hour workday with normal breaks; she 5 can perform postural activities occasionally, but cannot 6 climb ladders, ropes, or scaffolds; she cannot work at 7 unprotected heights or balance; she can perform frequent, 8 but not constant fine and gross manipulation bilaterally; 9 and she should avoid pulmonary irritants. 10 (Id.) At step five, the ALJ found that jobs existed in 11 significant numbers in the national economy that Plaintiff could 12 perform. (AR 20-21.) Accordingly, the ALJ determined that 13 Plaintiff was not disabled. (AR 21.) 14 V. DISCUSSION 15 Plaintiff alleges that the ALJ erred in (1) finding her 16 subjective symptom testimony not credible and (2) evaluating the 17 opinions of her treating physician. 18 A. 19 20 (J. Stip. at 3.)3 The ALJ Did Not Improperly Discount Plaintiff s Subjective Symptom Testimony Plaintiff argues that the ALJ failed to articulate clear and 21 convincing reasons for discounting her subjective symptom 22 testimony. (J. Stip. at 3-6, 16-17.) Reversal is not warranted 23 on this basis, however, because the ALJ made specific, clear 24 25 with some pushing and pulling of arm or leg controls. 26 27 20 C.F.R. § 416.967(b). A person capable of performing light work is also capable of performing sedentary work, as defined in § 416.967(a). Id. 3 Plaintiff does not contest the ALJ s finding that her (J. Stip. at 27.) 28 mental impairment was not severe. 6 1 findings as to Plaintiff s credibility that were consistent with 2 the medical evidence of record. 3 4 1. Applicable law An ALJ s assessment of pain severity and claimant 5 credibility is entitled to great weight. See Weetman v. 6 Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. Heckler, 779 7 F.2d 528, 531 (9th Cir. 1986). [T]he ALJ is not required to 8 believe every allegation of disabling pain, or else disability 9 benefits would be available for the asking, a result plainly 10 contrary to 42 U.S.C. § 423(d)(5)(A). Molina v. Astrue, 674 11 F.3d 1104, 1112 (9th Cir. 2012) (internal quotation marks and 12 citation omitted). In evaluating a claimant s subjective symptom 13 testimony, the ALJ engages in a two-step analysis. 14 Lingenfelter, 504 F.3d at 1035-36. See First, the ALJ must 15 determine whether the claimant has presented objective medical 16 evidence of an underlying impairment [that] could reasonably be 17 expected to produce the pain or other symptoms alleged. 18 1036 (internal quotation marks omitted). Id. at If such objective 19 medical evidence exists, the ALJ may not reject a claimant s 20 testimony simply because there is no showing that the impairment 21 can reasonably produce the degree of symptom alleged. Smolen v. 22 Chater, 80 F.3d 1273, 1282 (9th Cir. 1996) (emphasis in 23 original). When the ALJ finds a claimant s subjective complaints 24 not credible, the ALJ must make specific findings that support 25 the conclusion. 26 Cir. 2010). See Berry v. Astrue, 622 F.3d 1228, 1234 (9th Those credibility findings must be supported by the 27 record, but the ALJ need not provide detailed citations to it. 28 See Carter v. Astrue, No. 08 CV 0895 JM (PCL), 2009 WL 2382536, 7 1 at *4 (S.D. Cal. July 30, 2009) (citing Thomas v. Barnhart, 278 2 F.3d 947, 958-59 (9th Cir. 2002)). Absent affirmative evidence 3 of malingering, however, those findings must provide clear and 4 convincing reasons for rejecting the claimant s testimony. 5 Lester, 81 F.3d at 834. If the ALJ s credibility finding is 6 supported by substantial evidence in the record, the reviewing 7 court may not engage in second-guessing. Thomas, 278 F.3d at 8 959. 9 10 2. Relevant facts In connection with her SSI application, Plaintiff alleged 11 that she suffered from the following conditions: 12 arthritis (back & neck), carpal tunnel (left & right 13 hands/wrists), 14 arthritis in back/neck. 15 hard time moving, bending or turning. [C]arpal tunnel: 16 It s in both of my wrists/hands. My hands are constantly 17 stiff, numb, and hurting. 18 numb, like I ve been using them for hours when I ve been 19 doing a simple task . . . . 20 depression, carpal tunnel in both arms[.] 21 (AR 91.) left knee, depression[,] back/neck: They get very stiff & I have a My arms get extremely tired & Back, neck, [left] knee, She claimed that her conditions limited her ability to 22 work in the following ways: 23 back/neck: I cannot pick up heavy items, I get very stiff 24 and have a difficult time moving. 25 painful carpal tunnel: I drop things & have a hard time 26 picking things up. 27 doing housework because I drop the dishes when I m 28 washing them[.] It also is very For example: I have a difficult time knee: I can t squat, walk [a lot], and 8 1 always 2 depression: It affects my desire to be around other 3 people[.] 4 knee: very painful & I have begun to gain weight because 5 I am inactive, due to the injury[.] 6 to like being around people, but now I avoid them and 7 stay 8 participate in life are my kids & grandkids and being 9 there for their activities[.] 10 (Id.) need at to lean or balance on back/neck, carpal tunnel: very painful[.] home. The only thing depression: I used that forces me to Her application also stated, I do not need help in 11 personal care, hygiene or upkeep of a home. 12 something[.] (AR 81.) At the hearing, Plaintiff testified that she had problems 13 with her knees, back, arms, and hands for which she received 14 shots to relieve the pain. (AR 460.) She stated that the 15 injections in her lower back provided some relief but the pain 16 comes back within a month ; the injections in her hand helped 17 me out ; and the injections in her hip to treat pain in her leg 18 did not work and the pain just came back like right away. 19 461.) (AR She testified that her arms were numb and tingly and she 20 was unable to grasp properly and thus drop[s] things a lot. 21 (AR 463.) 22 pounds. She stated that she could not lift any more than 10 (Id.) She testified that she could go grocery shopping 23 for 20 minutes at a time and be on [her] feet continuously for 24 20 minutes without a break, but she would feel tired afterward 25 and need to rest for 20 minutes before being able to put the 26 groceries away. (AR 465-66.) She could cook for 15 minutes and 27 then would feel okay and would sit down and relax before 28 getting up and starting to do the dishes; clean the bathroom for 9 1 about two minutes and feel okay afterward; and vacuum for 2 [a]bout three minutes and then relax for a little bit. 3 466-68.) (AR She was able to sleep through the night without pain 4 after taking Ambien. (AR 475-76.) She took care of four 5 children who were under 18 and living at home. (AR 458-59.) 6 When asked whether she would be able to work if she didn t have 7 to lift more than . . . 10 pounds and could alternate between 8 sitting/standing between the eight-hour workday as you so desire 9 but would have to do this eight hours a day for five days a 10 week, she stated that she could not because of the pain that 11 goes down my neck to my arms. (AR 469.) She also stated that 12 her overall condition had gotten worse since she last 13 testified, in May 2010. 14 (Id.) In his written opinion, the ALJ found, [a]fter careful 15 consideration of the evidence, that Plaintiff s medically 16 determinable impairments could reasonably be expected to cause 17 the alleged symptoms; however, the claimant s statements 18 concerning the intensity, persistence and limiting effects of 19 these symptoms are not credible to the extent they are 20 inconsistent with the ALJ s RFC assessment. (AR 19.) He noted 21 that Plaintiff acknowledges pain relief and sleeping well at 22 night and that despite her alleged symptoms and limitations, 23 she continues to cook, perform household chores, and shop for 24 groceries. (Id.) He further noted that [p]ain management 25 progress notes indicate the claimant experiences pain relief 26 because of medication and injections, and a review of the 27 laboratory findings shows the consultative examiners were 28 justified in their functional assessments [that Plaintiff could 10 1 perform medium work]. (Id.) He gave some weight to 2 Plaintiff s treatment for chronic pain but found that the 3 severity of the pain that Plaintiff alleged was 4 disproportionate to the signs and laboratory findings. (Id.) 5 He further noted that Plaintiff acknowledges she still cooks, 6 performs household chores, and shops for groceries and performs 7 activities of daily living and sleeps well, and thus it was 8 unreasonable to conclude that she was not capable of performing 9 even sedentary work. (AR 20.) He noted that [a]lthough the 10 claimant s alleged symptoms and limitations are not entirely 11 supported by the objective medical evidence, the undersigned has 12 considered them, and he concluded that [t]here is no 13 justification for deviating from the [RFC] assessment noted in 14 the [June 2010] decision. 15 16 3. (Id.) Analysis Reversal is not warranted based on the ALJ s alleged failure 17 to make proper credibility findings or properly consider 18 Plaintiff s subjective symptoms. Contrary to Plaintiff s 19 arguments, the ALJ provided specific reasons for rejecting 20 Plaintiff s credibility: medical evidence showed that her 21 symptoms were well controlled with medication and injections; her 22 daily activities were inconsistent with her pain allegations; and 23 her allegations of the severity of her pain were inconsistent 24 with such objective medical evidence as test results and 25 laboratory findings. (AR 19-20.)4 26 27 28 4 Defendant asserts that the ALJ incorporated by reference his statement from the June 2010 decision that Plaintiff s poor work history indicated that she was not credible regarding her 11 1 The ALJ correctly found that Plaintiff s testimony was 2 inconsistent with the objective medical evidence. Tests of 3 Plaintiff s knee in December 2006 showed only very slight 4 lateral subluxation, no fracture, and [t]iny suprapatellar 5 joint effusion. (AR 143.) X-rays taken after Plaintiff 6 underwent knee surgery in March 2008 (AR 212) revealed a normal 7 left knee with no evidence of a fracture or osseous injury (AR 8 362). Nerve conduction studies performed in January 2008, after 9 Plaintiff s May 2007 carpal tunnel surgery (AR 233), revealed 10 mild[] improve[ment] to Plaintiff s left wrist since the 11 surgery (AR 159). The same study showed new [c]hronic cervical 12 radiculopathy, but another study performed later, in April 2010, 13 showed [n]o evidence of cervical radiculopathy, indicating that 14 Plaintiff s condition had improved with treatment. (AR 268.) An 15 examining doctor also noted in July 2008 that [s]ince her 16 surgery [Plaintiff] has improved carpal tunnel syndrome on the 17 left. (AR 414.) In September 2010, Dr. Navdeep Loomba, the 18 pain-management specialist to whom Plaintiff was referred by her 19 primary physician, noted that Plaintiff has good range of motion 20 of the bilateral upper extremities, her motor strength was 5/5 21 in the bilateral upper extremities, [s]ensory is grossly 22 normal, bilateral equal and intact to pinprick sensation, and 23 24 alleged inability to work. (J. Stip. at 15; AR 29.) The ALJ did 25 not state that he was incorporating by reference that portion of 26 27 28 his previous opinion (see AR 19-20); thus, the Court does not address this argument. See Stout v. Comm r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) ( [W]e cannot affirm the decision of an agency on a ground that the agency did not invoke in making its decision. (internal quotation marks and citation omitted)). 12 1 [d]eep tendon reflexes are normal. (AR 432.) Dr. Loomba also 2 noted in March 2011 that Plaintiff s pain is relieved by 3 medications, rest, position change, [t]he pain medications are 4 helping, and injections relieved her pain by 50-60%. 5 441.) (AR An MRI of Plaintiff s cervical spine performed in February 6 2008 showed only mild loss of lordosis, mild disc space 7 narrowing and disc dessication, minimal and mild disc bulge, 8 and slight narrowing of the central canal. (AR 191-93.) Tests 9 of Plaintiff s lumbar spine in December 2006 showed [v]ery 10 minimal degenerative change. (AR 143.) An x-ray of Plaintiff s 11 lumbar spine taken in June 2008 showed [e]xtenuated lordosis 12 and moderate spurring of the anterior endplates of L1, L2, L4, 13 and L5 but normal disc space heights and facet joints and no 14 obvious pars defects. (AR 342.) Another x-ray of Plaintiff s 15 lumbar spine, taken in October 2009, showed narrowing of the L516 S1 interspace consistent with discogenic disease but no 17 evidence of fracture or osseous injury, no evidence of 18 spondylolysis or spondylolisthesis, normal sacroiliac 19 joints, and mild osteoarthritis changes. 20 (AR 360.) In September 2007, consulting examiner Dr. Jeff Altman, a 21 specialist in physical medicine and rehabilitation (AR 171), 22 found that Plaintiff had only minimal impairments and that she 23 had a normal gait, did not appear to be in acute distress, had 24 good range of motion in her extremities and only mildly reduced 25 range of motion in the thoracolumbar spine with no tenderness 26 upon palpation, had intact strength and sensation, and was 27 neurologically intact. (AR 169-71.) In August 2008, consulting 28 examiner Dr. John Woodward, a neurologist and psychiatrist (AR 13 1 200), conducted a neurological examination of Plaintiff and found 2 that she had a normal gait, normal motion and coordination in her 3 extremities, intact reflexes, slight hypalgesia in her left foot, 4 and negative Tinel s sign and Phalen s sign for carpal tunnel 5 syndrome. (AR 198-200.) Dr. Altman and state agency physicians 6 Dr. Franklin Kalmar and Dr. G. Taylor-Holmes all opined that 7 Plaintiff was capable of performing medium work (AR 171, 173-77, 8 254-58), and Dr. Woodward similarly opined that Plaintiff had no 9 limitations in sitting, standing, walking, lifting, carrying, or 10 reaching; she could grasp, handle, finger, or feel frequently but 11 not continuously; and she could not engage in continuous, very 12 repetitive, or very strenuous activity in either hand because of 13 her carpal tunnel syndrome but could otherwise perform work 14 activities (AR 200). Plaintiff s asthma was also under control: 15 a September 2008 chest x-ray showed that Plaintiff s chest was 16 normal and her lungs were expanded and clear. (AR 318.) 17 Similarly, Plaintiff s diabetes was well-controlled: in lab 18 results from December 2009, Plaintiff s mean blood glucose was 19 133, at or near normal for a diabetic5 (AR 357), and she did not 20 allege in her SSI application or testimony that she suffered from 21 any diabetes-related complications that affected her ability to 22 work (AR 91, 458-70). 23 Because Plaintiff s testimony conflicted with the evidence 24 25 26 27 28 5 Target blood sugar levels for nonpregnant adults with diabetes are 70-130 mg/dl before a meal and <180 mg/dl after a meal. See Checking Your Blood Glucose - American Diabetes Association, available at http://www.diabetes.org/living-withdiabetes/treatment-and-care/blood-glucose-control/checking-yourblood-glucose.html (last visited Dec. 12, 2012). 14 1 that her medical conditions only minimally affected her ability 2 to work and that her pain, diabetes, and asthma were well3 controlled with medication and other treatments, the ALJ properly 4 discounted it. See, e.g., 20 C.F.R. § 416.929(c)(4)(iv) (ALJ may 5 consider effectiveness of medication in evaluating severity and 6 limiting effects of an impairment); SSR 96-7p, 1996 WL 374186, at 7 *6 ( medical signs and laboratory findings that . . . demonstrate 8 worsening or improvement of the underlying medical condition . . 9 . may also help an adjudicator to draw appropriate inferences 10 about the credibility of an individual s statements ); Johnson v. 11 Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995) (holding that 12 contradictions between claimant s testimony and the relevant 13 medical evidence provided clear and convincing reason for ALJ to 14 reject plaintiff s subjective symptom testimony); Tonapetyan v. 15 Halter, 242 F.3d 1144, 1148 (9th Cir. 2001) (credibility 16 determination based on, among other things, plaintiff s tendency 17 to exaggerate proper when supported by substantial evidence ). 18 The ALJ s finding that Plaintiff s testimony conflicted with 19 her daily activities was also proper. Although it is true that 20 one does not need to be utterly incapacitated in order to be 21 disabled, Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 22 2001), the extent of Plaintiff s activities here supports the 23 ALJ s finding that Plaintiff s reports of her impairment were not 24 fully credible. See Bray v. Comm r of Soc. Sec. Admin., 554 F.3d 25 1219, 1227 (9th Cir. 2009); Curry v. Sullivan, 925 F.2d 1127, 26 1130 (9th Cir. 1990) (finding that claimant s ability to take 27 care of her personal needs, prepare easy meals, do light 28 housework and shop for some groceries . . . may be seen as 15 1 inconsistent with the presence of a condition which would 2 preclude all work activity ) (citing Fair v. Bowen, 885 F.2d 597, 3 604 (9th Cir. 1989)). The ALJ properly noted that Plaintiff s 4 ability to do daily activities such as cooking, cleaning, and 5 grocery shopping for herself and four children was at odds with 6 her testimony that she could not perform even the most basic of 7 work activities. (AR 19-20.) Although Plaintiff testified that 8 sometimes her sons helped her with her household chores, she 9 wrote on her application that she did not need help in . . . 10 upkeep of a home. 11 (AR 81.) The ALJ provided legally sufficient reasons for rejecting 12 Plaintiff s testimony and specific examples of how Plaintiff s 13 testimony was contradicted by the record. In fact, he appears to 14 have given Plaintiff the benefit of the doubt with respect to the 15 severity of her restrictions, as most of the consultative 16 physicians found that she was capable of medium work (see AR 171, 17 173-77, 254-58) but the ALJ s RFC finding limited her to light 18 work with some additional restrictions (AR 18). He thus did not 19 materially err in assessing Plaintiff s credibility, and reversal 20 is not warranted on this basis. 21 22 23 B. The ALJ Did Not Err in Considering the Opinions of Plaintiff s Treating Physician Plaintiff contends that the ALJ did not properly evaluate 24 the opinions of her treating physician, Dr. Arthur Jimenez. 25 Stip. at 18-20, 25-27.) (J. Reversal is not warranted on this basis 26 because the ALJ gave specific and legitimate reasons for 27 rejecting Dr. Jimenez s opinions, and the ALJ s evaluation of the 28 medical evidence was consistent with substantial evidence in the 16 1 record. 2 3 1. Applicable law Three types of physicians may offer opinions in social 4 security cases: (1) those who treat[ed] the claimant (treating 5 physicians); (2) those who examine[d] but d[id] not treat the 6 claimant (examining physicians); and (3) those who neither 7 examine[d] nor treat[ed] the claimant (non-examining 8 physicians). Lester, 81 F.3d at 830. A treating physician s 9 opinion is generally entitled to more weight than the opinion of 10 a doctor who examined but did not treat the claimant, and an 11 examining physician s opinion is generally entitled to more 12 weight than that of a nonexamining physician. 13 Id. The opinions of treating physicians are generally afforded 14 more weight than the opinions of nontreating physicians because 15 treating physicians are employed to cure and have a greater 16 opportunity to know and observe the claimant. 17 1285. Smolen, 80 F.3d at The weight given a treating physician s opinion depends on 18 whether it was supported by sufficient medical data and was 19 consistent with other evidence in the record. 20 § 416.927(c)(2). See 20 C.F.R. If a treating physician s opinion was well 21 supported by medically acceptable clinical and laboratory 22 diagnostic techniques and is not inconsistent with the other 23 substantial evidence in the record, it should be given 24 controlling weight and rejected only for clear and convincing 25 reasons. See Lester, 81 F.3d at 830; § 416.927(c)(2). When a 26 treating physician s opinion conflicts with other medical 27 evidence or was not supported by clinical or laboratory findings, 28 the ALJ must provide only specific and legitimate reasons for 17 1 discounting that doctor s opinion. 2 632 (9th Cir. 2007). Orn v. Astrue, 495 F.3d 625, Indeed, the ALJ may discredit treating- 3 doctor opinions that are conclusory, brief, and unsupported by 4 the record as a whole or by objective medical findings. See 5 Batson v. Comm r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th 6 Cir. 2004); Thomas, 278 F.3d at 957. Other factors relevant to 7 the evaluation of a treating physician s opinion include the 8 [l]ength of the treatment relationship and the frequency of 9 examination as well as the [n]ature and extent of the treatment 10 relationship between the patient and the physician. 11 § 416.927(c)(2)(i)-(ii). 12 13 2. Relevant facts Plaintiff began seeing Dr. Jimenez as her primary care 14 physician in 2001 for her diabetes, asthma, high blood pressure, 15 cholesterol problems, . . . thyroid, depression, knee injury, and 16 . . . back/neck problems. (AR 94.) She testified that she saw 17 Dr. Jimenez at least once a month, [m]ostly for the pain in 18 her knees, back, arms, and hands. (AR 460.) In April 2010, Dr. 19 Jimenez filled out a check-box form stating that, in an eight20 hour workday, Plaintiff could not lift even 10 pounds; she could 21 stand, walk, and sit for less than two hours a workday; she could 22 sit 15 minutes and stand 20 minutes before needing to change 23 position; she must walk for 20 minutes every 20 minutes; she 24 could only occasionally twist and climb stairs and could never 25 stoop, crouch, or climb ladders; she must avoid concentrated 26 exposure to humidity and all exposure to extreme temperatures, 27 airborne irritants, and heights; and she would likely be absent 28 from work more than three times a month. 18 (AR 379-81.) He stated 1 that Plaintiff s lumbar narrowing and carpal tunnel syndrome 2 supported his conclusions. (AR 380.) In September 2010 he 3 filled out an RFC Questionnaire noting substantially similar 4 limitations. (AR 434-38.) 5 The ALJ evaluated Dr. Jimenez s opinions as follows: 6 In physical residual functional capacity assessments 7 dated April 4, 2010 and September 2, 2010, Dr. Jimenez 8 states the claimant cannot even sustain sedentary work 9 and would miss work more than three times a month. 10 However, the undersigned gives little weight to Dr. 11 Jimenez s opinion. As discussed in the undersigned s 12 last Altman s 13 evaluation and Dr. Woodard s consultative neurologic 14 evaluation led them to conclude that the claimant was 15 capable of performing medium work. 16 review of the laboratory findings shows the consultative 17 examiners were justified in their functional assessments. 18 The undersigned gives some weight to the claimant s 19 treatment for chronic pain, but the severity of the pain 20 is disproportionate to the signs and laboratory findings. 21 The claimant also acknowledges she still cooks, performs 22 household chores, and shops for groceries. 23 Jimenez 24 perform sedentary work and would miss work more than 25 three times a month. decision, Dr. unreasonably consultative concludes the orthopedic Additionally, a Thus, Dr. claimant cannot 26 (AR 20.) 27 28 3. Analysis As discussed above, evidence in the record supported the 19 1 ALJ s finding that Plaintiff was capable of performing light work 2 with some restrictions. (See AR 43, 159, 169-71, 173-77, 191-93, 3 198-200, 254-58, 268, 318, 342, 357, 360, 362, 414, 432, 441.) 4 Dr. Jimenez s two RFC forms were in check-box form, were 5 conclusory, and conflicted with substantial other evidence in the 6 record; the ALJ was entitled to reject them on that basis. See 7 Batson, 359 F.3d at 1195 ( The ALJ need not accept the opinion of 8 any physician, including a treating physician, if that opinion is 9 brief, conclusory, and inadequately supported by clinical 10 findings. ). Dr. Jimenez noted that Plaintiff had complained of 11 pain in her back, neck, legs, and arms and that she had been 12 diagnosed with asthma, degenerative conditions in her spine and 13 knee, and carpal tunnel syndrome (AR 380, 464), but he did not 14 explain how these diagnoses led to his findings that she was 15 incapable of even sedentary work, particularly given the ample 16 evidence in the record, including results from tests and 17 consultations ordered by Dr. Jimenez himself (see AR 156, 159, 18 191-93, 265, 268, 318, 342, 357, 360, 362, 430-32, 441), that 19 Plaintiff s conditions were well-controlled with medication and 20 other treatments and were not disabling. Plaintiff does not 21 point to anything in Dr. Jimenez s treatment notes for Plaintiff 22 supporting the extremely restrictive findings on the two forms. 23 Moreover, the ALJ was entitled to credit the opinions of Drs. 24 Woodman and Altman instead of Dr. Jimenez because their opinions 25 were supported by independent clinical findings and thus 26 constituted substantial evidence upon which the ALJ could 27 properly rely. See Tonapetyan, 242 F.3d at 1149; Andrews v. 28 Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). 20 Further, the 1 opinions of Drs. Woodman, Altman, Kalmar, and Taylor-Holmes were 2 consistent with each other and with substantial other evidence in 3 the record, and thus the ALJ was entitled to give those opinions 4 more weight than Dr. Jimenez s. See Tonapetyan, 242 F.3d at 1149 5 (opinion of nonexamining medical expert may constitute 6 substantial evidence when it is consistent with other independent 7 evidence in the record ); Andrews, 53 F.3d at 1041. 8 The ALJ was also entitled to reject Dr. Jimenez s opinions 9 to the extent they imposed a highly restrictive RFC that was 10 inconsistent with Plaintiff s daily activities. Plaintiff 11 acknowledged that she daily kept house for herself and four 12 minors and that she [did] not need help in doing so (AR 81, 13 458-59), and yet Dr. Jimenez found that she would have to miss 14 more than three days of work a month. His finding was 15 inconsistent with the reality of Plaintiff s daily activities. 16 See Rollins, 261 F.3d at 856 (ALJ s finding that doctor s 17 restrictions appear to be inconsistent with the level of 18 activity that [plaintiff] engaged in by maintaining a household 19 and raising two young children, with no significant assistance 20 from her ex husband, was specific and legitimate reason for 21 discounting opinion); Morgan v. Comm r of Soc. Sec. Admin., 169 22 F.3d 595, 601-02 (9th Cir. 1999) (ALJ permissibly rejected 23 treating physician s opinion when it conflicted with plaintiff s 24 activities); see also Fisher v. Astrue, 429 F. App x 649, 652 25 (9th Cir. 2011) (conflict between doctor s opinion and claimant s 26 daily activities was specific and legitimate reason to discount 27 opinion). 28 Plaintiff argues that under Orn, 495 F.3d at 632, even if 21 1 the laboratory test results and other independent evidence in the 2 record did not fully corroborate Dr. Jimenez s opinions, in 3 rejecting those opinions the ALJ was still required to articulate 4 specific and legitimate reasons based on substantial evidence in 5 the record. (J. Stip. at 25-26.) 6 precisely what the ALJ did. As discussed above, that is The ALJ properly found that Dr. 7 Jimenez s opinions were inconsistent with the laboratory findings 8 and other medical evidence in the record and his RFC assessment 9 was inconsistent with Plaintiff s daily activities. (AR 19-20.) 10 These were specific and legitimate reasons for rejecting Dr. 11 Jimenez s opinions, and they were supported by substantial 12 evidence in the record. The ALJ s rejection of Dr. Jimenez s 13 opinions was therefore proper. 14 See Orn, 495 F.3d at 632-33. The Court must consider the ALJ s decision in the context of 15 the entire record as a whole, and if the evidence is 16 susceptible to more than one rational interpretation, the ALJ s 17 decision should be upheld. Ryan v. Comm r of Soc. Sec., 528 18 F.3d 1194, 1198 (9th Cir. 2008) (internal quotation marks 19 omitted). Although Plaintiff points to various pieces of 20 evidence in the record that could support a more restrictive RFC 21 finding if interpreted differently than by the ALJ, read in the 22 context of the record as a whole, Plaintiff s symptoms were not 23 as severe as she alleged and were well-controlled with medication 24 and other treatments; the ALJ reasonably found that Plaintiff s 25 limitations did not prevent her from being able to work. 26 Reversal is therefore not warranted on this basis. 27 VI. CONCLUSION 28 Consistent with the foregoing, and pursuant to sentence four 22 1 of 42 U.S.C. § 405(g),6 IT IS ORDERED that judgment be entered 2 AFFIRMING the decision of the Commissioner and dismissing this 3 action with prejudice. IT IS FURTHER ORDERED that the Clerk 4 serve copies of this Order and the Judgment on counsel for both 5 parties. 6 7 DATED: December 19, 2012 8 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 This sentence provides: The [district] court shall have 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. 23

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