Pablo Ramos v. Michael J. Astrue, No. 5:2012cv00872 - Document 19 (C.D. Cal. 2013)

Court Description: MEMORANDUM OPINION and ORDER AFFIRMING THE COMMISSIONER by Magistrate Judge Jean P Rosenbluth. (twdb)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 PABLO RAMOS, 10 Plaintiff, 11 vs. 12 13 CAROLYN W. COLVIN, Acting Commissioner of Social Security,1 14 Defendant. 15 ) Case No. EDCV 12-0872-JPR ) ) ) MEMORANDUM OPINION AND ORDER ) AFFIRMING THE COMMISSIONER ) ) ) ) ) ) ) 16 17 I. PROCEEDINGS 18 Plaintiff seeks review of the Commissioner s final decision 19 denying his application for Social Security disability insurance 20 benefits ( DIB ). The parties consented to the jurisdiction of 21 the undersigned U.S. Magistrate Judge pursuant to 28 U.S.C. 22 § 636(c). This matter is before the Court on the parties Joint 23 Stipulation, filed March 22, 2013, which the Court has taken 24 under submission without oral argument. For the reasons stated 25 26 1 On February 14, 2013, Colvin became the Acting 27 Commissioner of Social Security. Pursuant to Federal Rule of Civil Procedure 25(d), the Court therefore substitutes Colvin for 28 Michael J. Astrue as the proper Respondent. 1 1 below, the Commissioner s decision is affirmed and this action is 2 dismissed. 3 II. BACKGROUND 4 Plaintiff was born on September 13, 1962. 5 Record ( AR ) 137.) (Administrative He obtained a sixth-grade education in 6 Mexico, and he understands some English but cannot speak, read, 7 or write in English. (AR 57-58.) 8 an assembler of camper shells. 9 Plaintiff previously worked as (AR 151-52, 157-58.) On June 11, 2009, Plaintiff filed an application for DIB. 10 (AR 137-42.) He alleged that he had been unable to work since 11 December 22, 2006, because of pain in his lower back and right 12 arm that stemmed from injuries in a work-related accident in June 13 2006. (AR 58-62, 146-51, 250.) His application was denied 14 initially, on September 10, 2009 (AR 83-87), and upon 15 reconsideration, on January 14, 2010 (AR 88-92). 16 After Plaintiff s application was denied, he requested a 17 hearing before an Administrative Law Judge ( ALJ ). (AR 94-100.) 18 A hearing was held on November 1, 2010, at which Plaintiff, who 19 was represented by counsel, appeared and testified through a 20 Spanish-language interpreter; a vocational expert ( VE ) also 21 testified. (AR 47-78.) In a written decision issued January 7, 22 2011, the ALJ determined that Plaintiff was not disabled. 23 27-46.) (AR On February 6, 2012, the Appeals Council incorporated 24 additional evidence into the record but denied Plaintiff s 25 request for review. (AR 10-15, 563-67.) This 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 supported by substantial evidence based on the record as a whole. 3 Id.; Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 4 1427, 28 L. Ed. 2d 842 (1971); Parra v. Astrue, 481 F.3d 742, 746 5 (9th Cir. 2007). Substantial evidence means such evidence as a 6 reasonable person might accept as adequate to support a 7 conclusion. Richardson, 402 U.S. at 401; Lingenfelter v. Astrue, 8 504 F.3d 1028, 1035 (9th Cir. 2007). 9 but less than a preponderance. It is more than a scintilla Lingenfelter, 504 F.3d at 1035 10 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 11 2006)). To determine whether substantial evidence supports a 12 finding, the reviewing court must review the administrative 13 record as a whole, weighing both the evidence that supports and 14 the evidence that detracts from the Commissioner s conclusion. 15 Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). If the 16 evidence can reasonably support either affirming or reversing, 17 the reviewing court may not substitute its judgment for that of 18 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 § 404.1520(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th 3 Cir. 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. § 404.1520(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. § 404.1520(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 § 404.1520(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 )2 to perform his past work; if so, the claimant 24 is not disabled and the claim must be denied. 25 § 404.1520(a)(4)(iv). The claimant has the burden of proving 26 27 28 2 RFC is what a claimant can do despite existing exertional and nonexertional limitations. 20 C.F.R. § 404.1545; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 4 1 that he is unable to perform past relevant work. 2 F.2d at 1257. Drouin, 966 If the claimant meets that burden, a prima facie 3 case of disability is established. Id. If that happens or if 4 the claimant has no past relevant work, the Commissioner then 5 bears the burden of establishing that the claimant is not 6 disabled because he can perform other substantial gainful work 7 available in the national economy. § 404.1520(a)(4)(v). That 8 determination comprises the fifth and final step in the 9 sequential analysis. § 404.1520; Lester, 81 F.3d at 828 n.5; 10 Drouin, 966 F.2d at 1257. 11 B. 12 At step one, the ALJ found that Plaintiff had not engaged in The ALJ s Application of the Five-Step Process 13 any substantial gainful activity since December 22, 2006. 14 32.) (AR At step two, the ALJ concluded that Plaintiff had the 15 severe impairments of degenerative disc disease of the neck and 16 back, right shoulder impairment, and obesity. (Id.) At step 17 three, the ALJ determined that Plaintiff s impairments did not 18 meet or equal any of the impairments in the Listing. (AR 33.) 19 At step four, the ALJ found that Plaintiff retained the RFC to 20 perform light work3 as follows: 21 22 3 Light work involves lifting no more than 20 pounds 23 at a time with frequent lifting or carrying of objects weighing up to 10 pounds. 20 C.F.R. § 404.1567(b). The regulations 24 further specify that [e]ven though the weight lifted may be very 25 little, a job is in this category when it requires a good deal of 26 27 28 walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. Id. A person capable of light work is also capable of sedentary work, which involves lifting no more than 10 pounds at a time and occasionally lifting or carrying [small articles] and may involve occasional walking or standing. § 404.1567(a)-(b). 5 1 the claimant can lift and/or carry 20 pounds occasionally 2 and 10 pounds frequently; he can stand and/or walk for 3 six hours out of an eight-hour workday with regular 4 breaks; he can sit for six hours out of an eight-hour 5 workday with regular breaks; he is limited to occasional 6 postural activities; he cannot work above shoulder level 7 on his right; he must avoid concentrated exposure to 8 extreme cold, vibrations, and hazards. 9 (Id.) Based on the VE s testimony, the ALJ concluded that 10 Plaintiff was unable to perform any past relevant work. (AR 41.) 11 At step five, the ALJ concluded that Plaintiff was not disabled 12 under the framework of the Medical-Vocational Guidelines, 20 13 C.F.R. Part 404, Subpart P, Appendix 2, and that jobs existed in 14 significant numbers in the national economy that Plaintiff could 15 perform. (Id.) Based on the VE s testimony, the ALJ found that 16 Plaintiff could perform such jobs as production assembler (DOT 17 706.687-010, 1991 WL 679074), cook helper (DOT 317.687-010, 1991 18 WL 672752), and cleaner/housekeeper (DOT 323.687-014, 1991 WL 19 672783). (Id.) 20 was not disabled. Accordingly, the ALJ determined that Plaintiff (Id.) 21 V. RELEVANT FACTS 22 On June 19, 2006, Plaintiff was injured in a work-related 23 accident. (AR 205, 250.) He continued to work, however, until 24 December 2006, when he was laid off. (AR 54, 250.) In January 25 2007 Plaintiff attempted to work as a laborer but stopped after a 26 short time because of pain in his back and right arm. 27 157.) (AR 55, After he was laid off, Plaintiff filed a workers 28 compensation action in connection with his workplace injury. 6 (AR 1 54, 135, 192-93, 195-98, 489.) As the ALJ noted (AR 35), almost 2 all of the medical evidence in the record stems from Plaintiff s 3 evaluation and treatment in connection with his workers 4 compensation case. 5 On April 10, 2008, Plaintiff had MRIs performed of the 6 lumbar and cervical spine. (AR 272-74, 278-80.) The lumbar- 7 spine MRI showed [d]iffuse mild spondylosis, congenital 8 stenosis of the thecal sac, and posterior disc bulges of one to 9 two millimeters at the L3-L4 level and five to six millimeters at 10 the L5-S1 level without evidence of neural foraminal narrowing 11 or of spondylolysis, spondylolisthesis, or signal abnormality. 12 (AR 272-73.) The cervical spine MRI showed [d]iffuse 13 spondylosis, a one- to two-millimeter posterior disc bulge at 14 the C2-C7 level with uncovertebral osteophyte formation at C3-4 15 and C4-5 without evidence of canal stenosis or neural foraminal 16 narrowing, and nonspecific straightening of the normal cervical 17 lordosis, possibly as a result of muscle strain, but no evidence 18 of spondylolysis, spondylolisthesis, or signal abnormality. 19 278-80.) (AR On the same day, Plaintiff also underwent an MRI of his 20 right shoulder, which revealed a full focal thickness tear of the 21 supraspinatus tendon at its insertion, acromioclavicular 22 osteoarthritis, and bicipital tenosynovitis. 23 (AR 275-77.) On April 21, 2008, a lower-extremity electromyography 24 suggested an active bilateral L5-S1 lumbar radiculopathy, the 25 right greater than the left. (AR 283.) On the same day, a nerve 26 conduction study showed reduced amplitude in the left lateral 27 plantar motor, left medial plantar motor, right medial plantar 28 motor, and right peroneal motor. (AR 285-92.) 7 The peroneal 1 motor nerve also showed abnormal left-right amplitude 2 differences, and the tibial H-reflex showed abnormal left-right 3 latency differences. 4 (Id.) Between May 2008 and September 2010, Plaintiff visited 5 chiropractor Bryan Aun, who was Plaintiff s primary treating 6 physician for purposes of his workers compensation case. 7 AR 225.) (See Aun periodically examined Plaintiff, evaluated his work 8 status, and referred Plaintiff to various doctors for 9 consultation. 10 (AR 225, 233-62, 464-560, 563-68.) On June 4, 2008, Plaintiff visited orthopedist Kamran 11 Aflatoon. (AR 294.) Dr. Aflatoon noted Plaintiff s complaints 12 of moderate discomfort in his lower back and very limited 13 range of motion in the right shoulder. (Id.) Plaintiff stated 14 that he was unable to do overhead activities but denied any 15 pain or symptoms in other areas of the body. (AR 294-95.) Dr. 16 Aflatoon noted that Plaintiff was in no acute distress, had a 17 [n]ormal gait with no evidence of antalgia, had [n]o evidence 18 of foot drop, was [a]ble to walk on tip toes and heels with 19 some radiation of pain, and was [a]ble to squat down without 20 difficulty. (AR 296.) His range of motion in the lumbar spine 21 was slightly below normal, he had tenderness and pain in some 22 areas, and there was loss of the normal lumbar lordosis, but 23 no visible deformity[] or step-off existed and he had no 24 palpable abnormalities. (AR 297.) His range of motion in the 25 right shoulder was below normal, but his range of motion in the 26 left shoulder and in both elbows, wrists, and hands was normal. 27 (AR 298.) 28 299.) Plaintiff s mental status was noted as normal. (AR Dr. Aflatoon diagnosed Plaintiff with a tear in his right 8 1 rotator cuff and lumbar radiculopathy; he recommended 2 arthroscopic surgery for Plaintiff s shoulder. 3 (Id.) On September 22, 2008, Plaintiff visited Dr. Suchandra 4 Turner as part of his workers compensation case. (AR 549.) Dr. 5 Turner noted that Plaintiff s musculoskeletal examination was 6 unchanged and that Plaintiff should continue on his current 7 medications. 8 (AR 549-50.) On October 7, 2008, Plaintiff underwent an electromyography 9 and nerve conduction study, which showed carpal tunnel syndrome, 10 moderate on the right and severe on the left. (AR 545-47.) 11 There was no evidence of cervical radiculopathy or any other 12 peripheral nerve compression. 13 (Id.) On December 17, 2008, Plaintiff had x-rays taken of his 14 cervical spine, hip, and pelvis, none of which showed any 15 abnormalities. (AR 256-57.) An x-ray of his lumbar spine showed 16 small degenerative anterior marginal spurs at the L4 and L5 level 17 but no disc narrowing or signs of spondylolysis or 18 spondylolisthesis. 19 (AR 256.) On February 23, 2009, Aun referred Plaintiff to workers 20 compensation Agreed Medical Examiner Dr. David Kim for 21 evaluation. (AR 234-62.) Dr. Kim reviewed Plaintiff s medical 22 records and noted Plaintiff s complaints of neck pain, right23 shoulder pain, and low-back pain. (AR 234-52.) Plaintiff 24 reported difficulty lifting, carrying, bending, twisting, 25 pushing, pulling, reaching, kneeling, squatting, crawling, stair 26 climbing, and walking and standing for too long. 27 also reported symptoms of depression and anxiety. (AR 253.) (Id.) He Dr. 28 Kim s examination of Plaintiff s cervical spine and lumbar spine 9 1 showed normal results except for some tenderness to palpation. 2 (AR 253-55.) Plaintiff s right shoulder had tenderness to 3 palpation but was otherwise normal. (AR 254.) Plaintiff was 4 able to walk normally and climbed onto the examination table 5 without difficulty. (AR 256.) He showed no signs of muscle 6 weakness, and his straight-leg raising was positive on the right 7 but negative on the left. X-rays of the lumbar spine (Id.) 8 showed only mild abnormalities. (AR 286-57.) Dr. Kim diagnosed 9 Plaintiff with chronic cervical sprain or strain, right-shoulder 10 strain, and lumbosacral sprain or strain. (AR 257.) Dr. Kim 11 concluded that Plaintiff in the future is precluded from heavy 12 work activities and could not return to his former job. (AR 13 260-61.) 14 Between March 2009 and September 2010, Aun referred 15 Plaintiff to Dr. Grant Williams for pain management in connection 16 with his workers compensation case. (AR 217-23, 338-463.) 17 During each examination, Dr. Williams reported Plaintiff s 18 subjective complaints and then performed a physical examination. 19 (See id.) Dr. Williams diagnosed Plaintiff with a host of 20 disorders, including displacement of cervical intervertebral 21 discs without myelopathy at the C2-3 and C6-7 levels; brachial 22 neuritis or radiculitis not otherwise specified; displacement of 23 the lumbar intervertebral disc without myelopathy at the L3-4, 24 L4-5, and L5-S1 levels; lumbosacral neuritis or radiculitis 25 unspecified; rotator-cuff sprain and right-rotator-cuff tear; 26 headache; abnormal weight gain; sexual dysfunction; dysthymic 27 disorder/depression; insomnia; lumbosacral facet joint syndrome; 28 cervical facet joint hypertrophy; and TMJ syndrome. 10 (See AR 343, 1 358, 368, 378, 395, 407, 417, 421-22, 430, 444, 452-53, 460.) 2 Dr. Williams prescribed steroid injections and radiofrequency 3 rhizotomy of the lumbar facet joints. 4 (Id.) On September 29, 2009, Dr. Williams filled out a Physical 5 Capacities Evaluation form, in which he noted that Plaintiff 6 could sit for only two hours and stand for only one hour in an 7 eight-hour workday, could not walk at all, and needed to be in a 8 horizontal position for the majority of the day. (AR 361.) He 9 stated that Plaintiff could never lift or carry more than five 10 pounds and could not grasp, push, pull, perform fine 11 manipulation, or do repetitive movements at all on either the 12 right or the left. (Id.) He also stated that Plaintiff could 13 never bend, squat, crawl, climb, or reach, and he was completely 14 restricted from unprotected heights, being around moving 15 machinery, exposure to changes in temperature and humidity, 16 driving automotive equipment, and exposure to pulmonary 17 irritants. (Id.) He described Plaintiff s symptoms as back 18 pain, neck pain, right shoulder pain, headaches, [and] insomnia 19 and noted that test results and clinical findings showed 20 herniated discs in the cervical and lumbar spine and a right21 rotator-cuff tear. 22 (AR 362.) On September 5, 2009, state-agency physician Dr. R. Bitonte 23 reviewed the evidence of record and concluded that Plaintiff 24 could perform a range of light work with occasional postural 25 activities and limited reaching, but he must avoid concentrated 26 exposure to extreme cold, vibration, and hazards. (AR 227-29.) 27 On January 13, 2010, state-agency reviewing physician Dr. S. Lee 28 reviewed the record and concurred with Dr. Bitonte that Plaintiff 11 1 could perform light work. 2 (AR 263-64.) On October 29, 2009, Aun referred Plaintiff to Dr. Sanjay 3 Deshmukh for a consultation. (AR 469.) Dr. Deshmukh noted 4 slightly lower grip strength in Plaintiff s right hand, slightly 5 reduced abduction, flexion, and external rotation in his right 6 shoulder, and reduced motion in the lumbar spine, but otherwise 7 Plaintiff s examination results were grossly normal. (AR 472- 8 77.) 9 On September 7, 2010, Dr. Williams evaluated Plaintiff after 10 Plaintiff had received a series of three lumbar epidural steroid 11 injections and undergone a successful percutaneous epidural 12 decompression neuroplasty of the lumbosacral nerve roots with 13 lumbar facet blocks. (AR 338-45, 395-99, 421-25.) Dr. Williams 14 noted that Plaintiff had increased range of motion, restored 15 ability to function in his lower back, and a 75 percent reduction 16 in pain. 17 (AR 340.) On August 11, 2010, Aun reported that Plaintiff had a 18 chronic condition preventing him from working and that he was 19 not able to work. (AR 479.) Nonetheless, on September 29 and 20 30, 2010, Aun reported that Plaintiff could return to modified 21 work as of August 11, 2010, with the restrictions that he 22 perform [n]o very heavy work, [n]o very repetitive overhead 23 work, and [n]o repetitive bending or stooping. 24 (AR 465-66.) On February 24, 2011, after the ALJ issued his unfavorable 25 decision, Aun filled out a Physical Residual Functional Capacity 26 Questionnaire, on which he stated that Plaintiff could not sit or 27 stand for more than 15 minutes; needed to walk for two minutes 28 every 15 minutes, change positions at will, and take unscheduled 12 1 breaks two or three times a week; could occasionally lift up to 2 20 pounds; did not have any significant limitations in doing 3 repetitive reaching, handling, or fingering; could bend and twist 4 25 percent of the time; and would need to be absent from work 5 more than three times a month. (AR 564-67.) He concluded by 6 stating that Plaintiff was limited to no very heavy work. (AR 7 567.) 8 Chiropractor Aun also facilitated Plaintiff s mental-health 9 evaluations as part of his workers compensation case. On 10 November 13, 2008, Aun referred Plaintiff to psychiatrist Dr. 11 David Dye for a Psychological Consultation for Pain Management.4 12 (AR 320.) Dr. Dye noted that Plaintiff complained of 13 frustration, anxiety, and depression as a result of his chronic 14 pain. (AR 322.) He noted that Plaintiff s appearance and 15 behavior were appropriate and he responded well to questions. 16 (AR 323.) Plaintiff appeared to be in moderate psychological 17 distress, but his attention, concentration, memory, fund of 18 information, abstracting ability, language skills, and cognitive 19 processes were unimpaired, and his insight and judgment were 20 fair. (Id.) Dr. Dye performed a series of psychological 21 tests, which showed moderate impairment. (AR 324-26.) Dr. Dye 22 assessed Plaintiff s prognosis as good and noted that he had 23 only slight to moderate impairments in work functions. 24 327-28.) (AR Dr. Dye assigned Plaintiff a Global Assessment of 25 26 4 In his written decision, the ALJ incorrectly stated 27 that Plaintiff s November 13, 2008 visit was with Dr. Bal Grewal, a colleague of Dr. Dye s who examined Plaintiff in November 2009. 28 (AR 37, 301-02, 320.) 13 1 Functioning ( GAF )5 score of 43. 2 (AR 327, 329.) On November 5, 2009, Aun referred Plaintiff to psychiatrist 3 Dr. Bal Grewal for a Psychological Permanent and Stationary 4 Evaluation in connection with his workers compensation case. 5 (AR 301-02.) Dr. Grewal noted that Plaintiff complained of 6 intense and constant pain in his neck and right side and 7 emotional upset, including frustration, anxiety, and depression 8 in reaction to chronic pain and limitations. (AR 303.) Dr. 9 Grewal noted that Plaintiff s appearance and behavior were 10 appropriate, he had no difficulty answering questions, and he was 11 polite and responsive. (AR 304.) Plaintiff s level of 12 responsiveness did not show obvious effects of pain, medications, 13 or drugs, and his level of psychological distress appeared to 14 be mild. (Id.) Plaintiff exhibited slight worry and 15 uneasiness and some feelings of sadness. 16 of moderate depression. (Id.) (Id.) He complained His attention and concentration 17 were noted as significantly impaired, his immediate memory 18 showed some deficits, and his intellectual ability was low 19 average, but there was no evidence of cognitive deficits, his 20 fund of information was consistent with his background and 21 intelligence level, his judgment was adequate, and his 22 psychological functioning and adjustment appeared fair. (Id.) 23 5 A GAF score represents a rating of overall 24 psychological functioning on a scale of 0 to 100. See Am. 25 Psychiatric Ass n, Diagnostic and Statistical Manual of Disorders 26 27 28 [hereinafter DSM-IV], Text Revision 34 (4th ed. 2000). A GAF score between 41 and 50 indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). Id. 14 1 Dr. Grewal performed a series of psychological tests, the results 2 of which showed mild to moderate impairment. (AR 306-10.) Dr. 3 Grewal assigned a GAF score of 63, indicating mild-moderate 4 symptomotology. 6 (AR 312, 316.) Plaintiff was assessed as 5 having no impairment to moderate impairment in activities of 6 daily living; social functioning; concentration, persistence, and 7 pace; and adaptation and decompensation in work or worklike 8 settings. (AR 315-16.) Dr. Grewal noted that Plaintiff s 9 psychiatric symptoms had responded well to treatment.7 10 18.) (AR 317- He concluded that Plaintiff was permanent and stationary 8 11 and was not able to work in his usual and customary occupation 12 because of [c]hronic pain, functional limitations, depression, 13 anxiety, and physical difficulties. (AR 318.) 14 VI. DISCUSSION 15 Plaintiff alleges that the ALJ erred in the following ways: 16 (1) evaluating Plaintiff s credibility; (2) determining 17 Plaintiff s RFC; (3) evaluating the medical evidence of record; 18 6 A GAF score between 60 and 70 indicates some mild 19 symptoms (e.g. depressed mood and mild insomnia) OR some 20 difficulty in social, occupational, or school functioning . . . but generally functioning pretty well, has some meaningful DSM-IV at Text Revision 34. 21 interpersonal relationships. 22 23 24 25 26 27 28 7 As the ALJ noted, however (AR 37), the record contains no evidence that Plaintiff ever was prescribed or received any psychiatric treatment, not even medications for depression. Indeed, in his own report Dr. Grewal noted that Plaintiff acknowledged that the only even quasi-psychiatric treatment he received related to pain management. (AR 311.) 8 Permanent and stationary means that Plaintiff s medical condition [had] reached the maximum medical improvement and [was] unlikely to change. Hernandez v. Colvin, No. CV 123320-SP, 2013 WL 1245978, at *9 n.8 (C.D. Cal. Mar. 25, 2013) (citing 8 Cal. Code Regs. § 10152). 15 1 and (4) formulating the hypothetical to the VE and relying on the 2 VE s testimony to conclude that a significant number of jobs 3 existed in the economy that Plaintiff could perform. 4 at 3.) (J. Stip. None of these contentions warrant reversal.9 5 A. 6 Plaintiff claims that the ALJ erred in (1) rejecting Dr. The ALJ Properly Evaluated the Medical Evidence 7 Williams s and Aun s opinions and (2) failing to consider all of 8 his physical and mental impairments, either individually or in 9 combination. (J. Stip. at 23-31, 36-37.) These contentions do 10 not warrant reversal. 11 1. 12 13 The ALJ did not err in considering Aun s and Dr. Williams s opinions Plaintiff contends that the ALJ erred in failing to properly 14 consider Aun s and Dr. Williams s opinions. To the extent the 15 ALJ rejected those opinions, he provided specific and legitimate 16 reasons for doing so that were supported by substantial evidence. 17 Accordingly, he did not err. 18 19 a. Applicable law Three types of physicians may offer opinions in Social 20 Security cases: (1) those who directly treated the Plaintiff, (2) 21 those who examined but did not treat the Plaintiff, and (3) those 22 who did not directly treat or examine the Plaintiff. 23 F.3d at 830. Lester, 81 A treating physician s opinion is generally 24 entitled to more weight than that of an examining physician, and 25 an examining physician s opinion is generally entitled to more 26 27 28 9 The Court has rearranged the order in which it addresses Plaintiff s claims from that followed by the parties, to avoid repetition and for other reasons. 16 1 weight than that of a nonexamining physician. Id. When a 2 treating physician s opinion is not contradicted by another 3 physician, it may be rejected only for clear and convincing 4 reasons. Carmickle v. Comm r Soc. Sec. Admin., 533 F.3d 1155, 5 1164 (9th Cir. 2008) (quoting Lester, 81 F.3d at 830-31). When a 6 treating physician s opinion conflicts with another doctor s, 7 however, the ALJ must provide only specific and legitimate 8 reasons for discounting the treating physician s opinion. Id. 9 A treating physician is a claimaint s own physician who has 10 provided or continues to provide him with medical treatment or 11 evaluation in an ongoing treatment relationship. See Benton ex 12 rel. Benton v. Barnhart, 331 F.3d 1030, 1035 (9th Cir. 2003); 13 § 404.1502. 14 In determining disability, the ALJ must develop the record 15 and interpret the medical evidence but need not discuss every 16 piece of evidence in the record. Howard, 341 F.3d at 1012. The 17 ALJ is responsible for resolving conflicts in the medical 18 evidence. 19 Carmickle, 533 F.3d at 1164. An ALJ may not disregard a physician s medical opinion 20 simply because it was initially procured in the context of a 21 state workers compensation claim or framed in the terminology of 22 such proceedings. Booth v. Barnhart, 181 F. Supp. 2d 1099, 1105 23 (C.D. Cal. 2002). The ALJ must translate terms of art 24 contained in such medical opinions into the corresponding Social 25 Security terminology in order to accurately assess the 26 implications of those opinions for the Social Security disability 27 determination. Id. at 1106. 28 17 1 2 b. Discussion The ALJ gave little weight to Aun s August 11, 2010 3 opinion10 that Plaintiff was unable to return to work because (1) 4 it was inconsistent with his September 29, 2010 opinion that 5 Plaintiff could return to work as of August 11, 2010, with some 6 limitations; (2) it was not supported by objective evidence; (3) 7 it conflicted with Plaintiff s daily activities; and (4) Aun was 8 a chiropractor and thus did not qualify as an acceptable medical 9 source. (AR 38.) He also gave little weight to Dr. Williams s 10 September 2009 RFC assessment and his multiple diagnoses of 11 additional impairments because they were based on Plaintiff s 12 discredited subjective complaints, not supported by objective 13 evidence, and inconsistent with Plaintiff s daily activities and 14 other evidence in the record. (AR 36, 38.) The ALJ s analysis 15 was proper. 16 Initially, the ALJ correctly gave little weight to Aun s 17 conclusion that Plaintiff could not work in part because Aun was 18 not an acceptable medical source. See (AR 38); § 404.1513(a) & 19 (d); Gomez v. Chater, 74 F.3d 967, 970-71 (9th Cir. 1996) 20 (opinions from other sources given less weight than acceptable 21 medical sources ); Bunnell v. Sullivan, 912 F.3d 1149, 1152 (9th 22 Cir. 1990) ( Although a claimant is free to offer chiropractic 23 evidence to help the Secretary understand his inability to work, 24 . . . there is no requirement that the Secretary accept or 25 26 27 28 10 The ALJ stated that Aun opined Plaintiff could not work on October 10, 2010. (AR 38.) In fact, the opinion the ALJ referenced appears to be dated August 11, 2010, though it notes that Plaintiff was due for a follow-up appointment on October 10. (See AR 478.) 18 1 specifically refute such evidence. ), superseded on other grounds 2 by 947 F.2d 341 (9th Cir. 1991) (en banc); Kottke v. Astrue, No. 3 CV 07-05618-VBK, 2008 U.S. Dist. LEXIS 73329, at *13 (C.D. Cal. 4 Aug. 1, 2008) (holding that ALJ was not bound to accept a 5 residual functional capacity assessment rendered by a 6 chiropractor based on his own diagnosis because [t]o do so 7 would blur the line between the type of evidence which may be 8 considered from acceptable medical sources, as against evidence 9 from other sources ). 10 The ALJ also properly rejected Aun s and Dr. Williams s 11 opinions to the extent they were not supported by their own 12 clinical findings and conflicted with the other evidence of 13 record. See § 404.1527(d)(4) (explaining that more weight should 14 be afforded to medical opinions that are consistent with the 15 record as a whole). As the ALJ correctly noted, in September 16 2009, Aun found that Plaintiff was capable of working with 17 certain restrictions that essentially corresponded to the ALJ s 18 restriction to light work. (AR 38, 465-66.) His previous 19 opinions that Plaintiff could not work, rendered close in time to 20 the September 2009 opinion, appeared to be based on a finding 21 that Plaintiff should remain off work in order to undergo 22 surgery; once surgery was off the table, it appears that Aun 23 found Plaintiff could go back to work as long as he was limited 24 to essentially light work. (AR 38, 40, 465-66, 479.) Moreover, 25 as the ALJ pointed out, nearly all the objective evidence in the 26 record, including the reports of Drs. Kim, Aflatoon, Turner, 27 Deshmukh, Bitonte, and Lee, supported the ALJ s conclusion that 28 Plaintiff had impairments in his back and shoulder but was not 19 1 completely precluded from working. 2 263-64, 294-99, 469-77, 549-50.) (AR 39-40, 227-29, 234-62, Even Dr. Williams noted that 3 Plaintiff s symptoms improved significantly after he underwent 4 epidural injections. (AR 340.) The ALJ therefore properly 5 concluded that Dr. Williams s highly restrictive RFC finding, 6 rendered on a check-box form and unsupported by objective 7 clinical findings, was entitled to little weight. (AR 38); see 8 Batson v. Comm r of Soc. Sec. Admin., 359 F.3d 1190, 1194-95 (9th 9 Cir. 2004) (holding that treating physicians conflicting, 10 checklist-form opinions were entitled to minimal weight). For 11 the same reason, Aun s RFC finding, submitted to the Appeals 12 Council after the ALJ s decision, does not mandate reversal. 13 563-67.) (AR Indeed, it is at least somewhat consistent with the 14 ALJ s RFC finding, as Aun apparently concluded that Plaintiff was 15 limited only to no very heavy work. 16 (AR 567.) The ALJ also properly rejected Dr. Williams s diagnoses of 17 additional impairments such as cephalgia, cervical radiculitis, 18 brachial neuritis, sexual dysfunction, insomnia, and TMJ syndrome 19 because they were not supported by any evidence in the record. 20 (AR 36.)11 As the ALJ noted, the record showed that Plaintiff 21 received no treatment for any of those diagnoses even though he 22 had medical insurance and received regular treatment for his 23 other impairments. 24 medical coverage).) (AR 36; see AR 60 (Plaintiff discussing his No other doctor to examine Plaintiff 25 26 27 28 11 Dr. Williams opined that as a result of all of Plaintiff s alleged impairments, he was totally restricted from driving a car. (AR 361.) He apparently was not aware that by Plaintiff s own testimony, he spent almost all day driving four of his five children to and from school. (AR 67-69.) 20 1 diagnosed any of those impairments. 2 77, 549-50.) (See AR 234-62, 294-99, 469- Indeed, Dr. Williams s and Aun s RFC findings for 3 Plaintiff were inconsistent with each other: Dr. Williams said 4 that Plaintiff could occasionally lift only up to five pounds and 5 could never use either of his hands for simple grasping, 6 pushing, pulling, or fine manipulation (AR 361), whereas Aun said 7 that Plaintiff could occasionally lift up to 20 pounds and had no 8 limitations in doing repetitive reaching, handling, or fingering 9 or in grasping, turning, or twisting objects, performing fine 10 manipulations, or overhead reaching on either side (AR 566). 11 Moreover, Dr. Williams was not a mental-health specialist, and 12 thus the ALJ properly gave his additional diagnosis of depression 13 little weight. (AR 36); see § 404.1527(d)(5); Holohan v. 14 Massanari, 246 F.3d 1195, 1203 n.2 (9th Cir. 2001) (physician s 15 opinion may be entitled to little if any weight if physician 16 offers an opinion on a matter not related to her . . . area of 17 specialization ). 18 Further, the ALJ properly rejected Aun s and Dr. Williams s 19 opinions to the extent they were based on Plaintiff s discredited 20 subjective complaints. As discussed more fully in Section VI.C 21 below, the ALJ s rejection of Plaintiff s subjective testimony 22 was proper. As the ALJ pointed out, Dr. Williams seemed to 23 accept uncritically as true most, if not all, of what the 24 claimant reported. (AR 36; see generally AR 338-459.) To the 25 extent Aun and Dr. Williams relied on Plaintiff s discredited 26 subjective complaints, the ALJ was entitled to disregard their 27 opinions. See Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 28 1995) ( [A]n opinion of disability premised to a large extent 21 1 upon the claimant s own accounts of his symptoms and limitations 2 may be disregarded, once those complaints have themselves been 3 properly discounted. ). 4 The ALJ was also entitled to adopt the opinions of reviewing 5 physicians Bitonte and Lee over those of Aun and Williams. (AR 6 39); see Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) 7 ( [O]pinions of non-treating or non-examining physicians may . . 8 . serve as substantial evidence when . . . consistent with 9 independent clinical findings or other evidence in the record. ). 10 As the ALJ found, their opinions were consistent with Dr. 11 Deshmukh s examination showing essentially normal results and Dr. 12 Kim s findings that Plaintiff had sprains or strains in his right 13 shoulder and spine but was otherwise unimpaired and could do less 14 than heavy work. (AR 37, 39-40.) As noted, Dr. Williams s and 15 Aun s findings were largely inconsistent with each other. In any 16 event, any conflict in the properly supported medical-opinion 17 evidence was the sole province of the ALJ to resolve. 18 53 F.3d at 1041. Andrews, Indeed, the ALJ gave Plaintiff the benefit of 19 the doubt in concluding that he was capable of light work rather 20 than adopting Dr. Kim s finding that he could perform less than 21 heavy work. 22 (See AR 40.) The ALJ also was entitled to reject Aun s and Dr. Williams s 23 opinions on Plaintiff s ability to return to work to the extent 24 they were conclusions about Plaintiff s disability for workers 25 compensation purposes. See Coria v. Heckler, 750 F.2d 245, 247- 26 48 (3d Cir. 1984) (explaining that because of differences in the 27 definition of disability in the state workers compensation and 28 Social Security contexts, the ALJ could reasonably disregard so 22 1 much of the physicians reports as set forth their conclusions as 2 to [plaintiff s] disability for workers compensation purposes, 3 but objective medical evidence in reports elicited for workers 4 compensation should be evaluated by same standards as medical 5 evidence in Social Security reports). Moreover, the ALJ was 6 entitled to disregard Aun s and Dr. Williams s opinions to the 7 extent they were opinions on Plaintiff s ultimate disability 8 status, which the ALJ was not obligated to accept. See 9 § 404.1527(d)(1) ( A statement by a medical source that you are 10 disabled or unable to work does not mean that we will 11 determine that you are disabled. ); SSR 96-5p, 1996 WL 374183, at 12 *5 (explaining that treating-source opinions that a person is 13 disabled or unable to work can never be entitled to controlling 14 weight or given special significance ). Reversal is not 15 warranted on this basis. 16 17 18 2. The ALJ did not err in his consideration of Plaintiff s other impairments Plaintiff contends that the ALJ erred at step two by failing 19 to consider as severe Plaintiff s depression and the additional 20 physical impairments diagnosed by Dr. Williams. 21 28.) (J. Stip. at 24- Reversal is not warranted on this basis because substantial 22 evidence in the record supports the ALJ s step-two determination. 23 At step two of the sequential evaluation process, a 24 plaintiff has the burden to present evidence of medical signs, 25 symptoms, and laboratory findings that establish a severe 26 medically determinable physical or mental impairment that can be 27 expected to result in death or last for a continuous period of at 28 least 12 months. Ukolov v. Barnhart, 420 F.3d 1002, 1004-05 (9th 23 1 Cir. 2005) (citing 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D));12 see 2 20 C.F.R. §§ 404.1520, 404.1509. Substantial evidence supports 3 an ALJ s determination at step two that a claimant was not 4 disabled when there are no medical signs or laboratory findings 5 to substantiate the existence of a medically determinable 6 physical or mental impairment. 7 (citing SSR 96-4p). Ukolov, 420 F.3d at 1004-05 An impairment may never be found on the 8 basis of the claimant s subjective symptoms alone. 9 Id. at 1005. Step two is a de minimis screening device [used] to dispose 10 of groundless claims. Smolen, 80 F.3d at 1290. Applying the 11 applicable standard of review to the requirements of step two, a 12 court must determine whether an ALJ had substantial evidence to 13 find that the medical evidence clearly established the claimant 14 did not have a medically severe impairment or combination of 15 impairments. Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 16 2005); see also Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 17 1988) ( Despite the deference usually accorded to the Secretary s 18 application of regulations, numerous appellate courts have 19 imposed a narrow construction upon the severity regulation 20 applied here. ). An impairment or combination of impairments is 21 not severe if the evidence established only a slight 22 abnormality that had no more than a minimal effect on an 23 individual s ability to work. Webb, 433 F.3d at 686 (citation 24 omitted). 25 26 12 A medical sign is an anatomical, physiological, or 27 psychological abnormality that can be shown by medically acceptable clinical diagnostic techniques. Ukolov, 420 F.3d at 28 1005. 24 1 Plaintiff failed to meet his burden to present evidence of 2 medical signs, symptoms, and laboratory findings establishing 3 that his alleged depression constituted a medically determinable 4 mental impairment. See § 404.1508 ( A physical or mental 5 impairment must be established by medical evidence consisting of 6 signs, symptoms, and laboratory findings, not only by your 7 statement of symptoms. ). The ALJ was entitled to reject the GAF 8 score of 43 because it was inconsistent with the other evidence 9 in the record including a later GAF score of 63 showing that 10 Plaintiff s depression was not significantly limiting (AR 38, 11 40); in any event, GAF scores [do] not have a direct correlation 12 to the severity requirements in the Social Security 13 Administration s mental disorders listings, and an ALJ may 14 properly disregard a low GAF score if other substantial evidence 15 supports a finding that the claimant was not disabled. See Doney 16 v. Astrue, 485 F. App x 163, 165 (9th Cir. 2012) (alterations and 17 citations omitted). Other than the one low GAF score, Dr. 18 Grewal s and Dr. Dye s evaluations generally supported the ALJ s 19 determination that Plaintiff s depression was not severe. For 20 example, Dr. Dye found that Plaintiff was alert and responded 21 well to questioning, his cognitive processes were not impaired, 22 he had a good prognosis and responded well to medications, and 23 he had only slight to moderate impairment in his ability to 24 perform work functions. (AR 323-28.) Dr. Grewal similarly found 25 that Plaintiff s symptoms were mild to moderate, he responded 26 well to treatment for his pain, and he appeared to be in only 27 mild distress. (AR 304, 315-18.) To the extent Dr. Grewal 28 suggested that Plaintiff s depression limited his ability to work 25 1 (see AR 318), the ALJ properly rejected that portion of the 2 opinion because it relied heavily on Plaintiff s discredited 3 subjective complaints (AR 40). See Andrews, 53 F.3d at 1043 4 ( [A]n opinion of disability premised to a large extent upon the 5 claimant s own accounts of his symptoms and limitations may be 6 disregarded, once those complaints have themselves been properly 7 discounted. ). Moreover, Dr. Grewal s opinion evaluated only 8 Plaintiff s ability to return to his former job, which the ALJ 9 agreed he could not do. 10 (See AR 41, 318.) Apart from Dr. Grewal s and Dr. Dye s evaluations obtained 11 for the purposes of Plaintiff s workers compensation case, the 12 record is devoid of any mental-health treatment notes or 13 functional limitations opined by any mental-health professional 14 resulting from Plaintiff s alleged depression. To the extent Dr. 15 Williams also opined that Plaintiff s depression affected his 16 ability to work, the ALJ properly rejected that opinion because 17 Dr. Williams was not a mental-health professional and his opinion 18 was not supported by any medical findings. (AR 36); see 19 § 404.1527(d)(5); Holohan, 246 F.3d at 1203 n.2. Even if 20 Plaintiff did suffer from depression, the ALJ was entitled to 21 infer that any symptoms were adequately controlled with 22 Plaintiff s pain medication. See § 404.1529(c)(3)(iv) (ALJ may 23 consider effectiveness of medication in evaluating severity and 24 limiting effects of impairment); Warre v. Comm r of Soc. Sec. 25 Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) ( Impairments that 26 can be controlled effectively with medication are not disabling 27 for the purpose of determining eligibility for [Social Security] 28 benefits. ). Further, Plaintiff testified that the only 26 1 impairments affecting his ability to work were related to his 2 back and shoulder; he never mentioned any symptoms resulting from 3 depression or any other impairments. 4 151.) (AR 54-70; see also AR Accordingly, substantial evidence supports the ALJ s 5 determination that Plaintiff s depression did not constitute a 6 medically determinable impairment. (AR 39); see Ukolov, 420 F.3d 7 at 1004-05. 8 Plaintiff also argues that the ALJ failed to address his 9 impairments of leg and foot pain, sexual dysfunction, headaches, 10 and insomnia as diagnosed by Dr. Williams, either individually or 11 in combination. (J. Stip. at 24-27.) Even assuming sufficient 12 evidence in the record showed that Plaintiff suffered from these 13 impairments, but see supra Section VI.A.1, these conditions did 14 not constitute severe impairments if they did not prevent 15 Plaintiff from working. See § 404.1520(c) (severe impairment is 16 one that significantly limits [claimant s] physical or mental 17 ability to do basic work activities ). Substantial evidence 18 supports the ALJ s finding that these impairments were not severe 19 because no doctor other than Dr. Williams diagnosed them, and 20 other than his taking medication for insomnia, which appeared to 21 control it (AR 219), there was no record of his receiving 22 treatment for any of the alleged impairments even though he had 23 insurance and received regular medical treatment for his other 24 impairments (AR 36, 60). See Houghton v. Comm r, Soc. Sec. 25 Admin., 493 F. App x 843, 845-46 (9th Cir. 2012) (holding that 26 ALJ was not required to discuss plaintiff s alleged limitations 27 arising from depression, a heart condition, sleep apnea, a right 28 heel injury, diabetes with neuropathy in the right leg, or 27 1 obesity in the absence of significant probative evidence that 2 they had some functional impact on [plaintiff s] ability to 3 work ). 4 To the extent Plaintiff claims the ALJ should have discussed 5 at step three the combined effect of his impairments (see J. 6 Stip. at 28-29), the ALJ is not required to discuss the combined 7 effects of a claimant s impairments or compare them to any 8 listing in an equivalency determination, unless the claimant 9 presents evidence in an effort to establish equivalence. Burch 10 v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005) (citing Lewis v. 11 Apfel, 236 F.3d 503, 514 (9th Cir. 2001)). Here, Plaintiff and 12 his counsel never asked the ALJ to consider any particular 13 Listings, and Plaintiff has failed to point to any credited 14 evidence of functional limitations that would have affected the 15 ALJ s analysis, nor has he offered any plausible theory of how 16 the combination of his impairments equaled a Listing. The ALJ 17 therefore did not commit reversible error by failing to make 18 additional findings at step three. 19 B. The ALJ Properly Assessed Plaintiff s RFC and Found 20 that a Significant Number of Jobs Existed that 21 Plaintiff Could Perform 22 23 RFC. Plaintiff argues that the ALJ did not properly evaluate his (J. Stip. at 16-21, 22-23.) Similarly, he argues that the 24 ALJ erred in determining that Plaintiff could perform a 25 significant number of jobs in the economy. 26 40.) (J. Stip. at 37-39, The essence of Plaintiff s arguments appears to be that in 27 determining Plaintiff s RFC, the ALJ should have accounted for 28 additional impairments, including depression and Dr. Williams s 28 1 various diagnoses, as well as Aun s and Dr. Williams s more 2 severe functional restrictions. As discussed above in Section 3 VI.A, however, the ALJ properly rejected that evidence. Thus, 4 his RFC finding, which accounted for all the impairments he 5 determined were properly supported by the medical evidence, was 6 proper. See Osenbrock v. Apfel, 240 F.3d 1157, 1164-65 (9th Cir. 7 2001) ( Nor was the ALJ bound to accept as true the restrictions 8 set forth in the second hypothetical question if they were not 9 supported by substantial evidence. An ALJ is free to accept or 10 reject restrictions in a hypothetical question that are not 11 supported by substantial evidence. ); Rollins, 261 F.3d at 857 12 ( [B]ecause the ALJ included all of the limitations that he found 13 to exist, and because his findings were supported by substantial 14 evidence, the ALJ did not err in omitting the other limitations 15 that Rollins had claimed, but had failed to prove. ). The VE 16 testified that an individual with Plaintiff s limited English 17 skills who was capable of light work but who could do [n]o work 18 above the right shoulder and [s]hould avoid concentrated 19 exposure to extreme cold, vibration, and hazards could not 20 perform Plaintiff s past work but could perform such jobs as 21 production assembler, cook helper, and housekeeping cleaner. 22 73-74.) The ALJ was entitled to credit that testimony. (AR See 23 Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007). 24 Because the ALJ s RFC assessment was supported by 25 substantial evidence and he properly relied on the VE s testimony 26 in finding that a significant number of jobs existed that 27 Plaintiff could perform, Plaintiff is not entitled to reversal on 28 these claims. 29 1 C. 2 Plaintiff argues that the ALJ failed to provide clear and The ALJ Properly Assessed Plaintiff s Credibility 3 convincing reasons for discounting his credibility. 4 3-11, 14-16.) (J. Stip. at Because the ALJ did provide clear and convincing 5 reasons supporting his evaluation of Plaintiff s testimony and 6 those reasons were supported by substantial evidence in the 7 record, reversal is not warranted on this basis. 8 9 1. Applicable law An ALJ s assessment of pain severity and claimant 10 credibility is entitled to great weight. See Weetman v. 11 Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. Heckler, 779 12 F.2d 528, 531 (9th Cir. 1986). [T]he ALJ is not required to 13 believe every allegation of disabling pain, or else disability 14 benefits would be available for the asking, a result plainly 15 contrary to 42 U.S.C. § 423(d)(5)(A). 16 F.3d 1104, 1122 (9th Cir. 2012). Molina v. Astrue, 674 In evaluating a claimant s 17 subjective symptom testimony, the ALJ engages in a two-step 18 analysis. See Lingenfelter, 504 F.3d at 1035-36. First, the 19 ALJ must determine whether the claimant has presented objective 20 medical evidence of an underlying impairment [that] could 21 reasonably be expected to produce the pain or other symptoms 22 alleged. Id. at 1036 (internal quotation marks omitted). If 23 such objective medical evidence exists, the ALJ may not reject a 24 claimant s testimony simply because there is no showing that the 25 impairment can reasonably produce the degree of symptom alleged. 26 Smolen, 80 F.3d at 1282 (emphasis in original). When the ALJ 27 finds a claimant s subjective complaints not credible, the ALJ 28 must make specific findings that support the conclusion. 30 See 1 Berry v. Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). Absent 2 affirmative evidence of malingering, those findings must provide 3 clear and convincing reasons for rejecting the claimant s 4 testimony. Lester, 81 F.3d at 834. If the ALJ s credibility 5 finding is supported by substantial evidence in the record, the 6 reviewing court may not engage in second-guessing. Thomas, 278 7 F.3d at 959. 8 2. 9 Background Plaintiff claimed in his Disability Report that his ability 10 to work was limited in the following ways: No lifting over 10 11 lbs, loss of memory, no prolonged[] standing, sitting, walking, 12 [u]nable to look over right side, and [n]umbness in right 13 hand. (AR 151.) At the hearing, Plaintiff testified that he 14 stopped working on December 22, 2006, because his company 15 closed. (AR 54.) As to his impairments, he stated that he was 16 unable to sit or stand for very long and could not be bent 17 over very, very much, go up stairs, or twist. (AR 58.) He 18 stated that he could stand for about 10 minutes before needing to 19 sit down and could not sit through an entire TV show without 20 having to lie flat on his back and rest. (AR 58-59.) He 21 testified that a problem with the discs in his middle to lower 22 back caused a pulsating pain in his back. (AR 61-62.) He stated 23 that he occasionally used medication and creams for the pain, 24 which helped, but mostly he lied down to ease the pain. 25 63.) (AR 62- He stated that he needed to rest for 10 to 15 minutes 26 throughout the day and had to wake up every 20 to 25 minutes at 27 night to change positions. 28 (AR 63-64.) As to his daily activities, Plaintiff testified that he lived with his wife and five children and was the only person in 31 1 the household who drove. (AR 67-68.) He drove his wife to go 2 grocery shopping and run errands and drove four of his five kids 3 to school and back; he essentially spent the entire day driving 4 his wife and kids back and forth. (AR 67-69.) He also attended 5 church on Sundays, cooked for himself, helped his children with 6 homework, and sometimes tried to do yard work, but it was 7 difficult because of his back pain. 8 9 3. (AR 68-69.) Discussion The ALJ evaluated Plaintiff s credibility as follows: 10 Despite his alleged impairments and difficulties, the 11 claimant has engaged in a somewhat normal level of daily 12 activity and interaction. 13 lives with his wife and five minor children. As the only 14 driver in his household, the claimant testified that he 15 drives his children to and from school and drives his 16 wife grocery shopping. 17 helps [with] household chores, cooks, helps his kids with 18 their homework and attends church on Sundays. 19 The claimant testified he The claimant admitted that he Some of the physical and mental abilities and social 20 interactions 21 activities are the same as those necessary for obtaining 22 and maintaining employment. 23 participate in such activities undermined the credibility 24 of the claimant s allegations of disabling functional 25 limitations. 26 . . . . 27 The claimant reports taking muscle relaxers, anti- 28 inflammatory, pain medications and sleep aids [(AR 154, 184, 188)]. required in order to perform these The claimant s ability to The claimant told his treating physician 32 1 that his prescribed medications have caused his stomach 2 to hurt. 3 2009, 4 psychologist that his pain medications were working and 5 he 6 inconsistency in reporting side effects to medications 7 reduces his credibility regarding these complaints. However, on November 13, 2008 and November 5, the claimant reported no told side his workers effects. The compensation claimant s 8 The claimant s testimony and statements of record 9 are only credible to the extent the claimant can do the 10 work 11 regarding the severity of his symptoms is diminished 12 because those allegations are greater than expected in 13 light of the objective evidence of record. described herein. The claimant s credibility 14 (AR 34-35.) 15 Reversal is not warranted based on the ALJ s alleged failure 16 to make proper credibility findings or properly consider 17 Plaintiff s subjective symptoms. To the extent the ALJ rejected 18 Plaintiff s allegations, he provided clear and convincing reasons 19 for doing so. As the ALJ noted, Plaintiff responded well to 20 treatment and did not appear to seek any additional treatment 21 outside that provided in connection with his workers 22 compensation case even though he had insurance. (AR 34-36); see 23 Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (ALJ may rely on 24 unexplained, or inadequately explained, failure to seek 25 treatment in rejecting claimant s credibility); Tommasetti v. 26 Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (ALJ may infer that 27 claimant s response to conservative treatment undermines 28 [claimant s] reports regarding the disabling nature of his pain ). Plaintiff also made inconsistent statements about the 33 1 side effects caused by his medications, which was a proper basis 2 for the ALJ to reject his credibility. (AR 34); see Burch, 400 3 F.3d at 680 (in determining credibility, ALJ may engage in 4 ordinary techniques of credibility evaluation ). Moreover, 5 Plaintiff admitted at the hearing that he initially stopped 6 working because he was laid off, not because he was injured. (AR 7 54); see Bruton v. Massanari, 268 F.3d 824, 826 (9th Cir. 2001) 8 (holding that ALJ properly considered fact that claimant stopped 9 working because he was laid off, not because of medical 10 disability). Plaintiff s testimony also conflicted with the 11 medical evidence of record, which showed that Plaintiff s 12 impairments had only mild to moderate effects on his ability to 13 function. (AR 34-36.) Even though Plaintiff allegedly injured 14 himself in June 2006, the record contains no evidence of his 15 having visited any doctor until March 2007, after he was laid off 16 and then filed a workers compensation claim. (See AR 236, 250.) 17 The ALJ was entitled to discount Plaintiff s subjective testimony 18 to the extent it conflicted with the medical record. See 19 Carmickle, 533 F.3d at 1161 ( Contradiction with the medical 20 record is a sufficient basis for rejecting the claimant s 21 subjective testimony. ); Lingenfelter, 504 F.3d at 1040 (in 22 determining credibility, ALJ may consider whether the alleged 23 symptoms are consistent with the medical evidence ); Burch, 400 24 F.3d at 681 ( Although lack of medical evidence cannot form the 25 sole basis for discounting pain testimony, it is a factor that 26 the ALJ can consider in his credibility analysis. ); Kennelly v. 27 Astrue, 313 F. App x 977, 979 (9th Cir. 2009) (same). 28 Moreover, as the ALJ noted, Plaintiff admitted that he was able to do a wide variety of daily activities, including 34 1 extensive driving, taking care of his five children, cooking, 2 doing household chores, and regularly attending church. 3 69, 34-35.) (AR 67- That Plaintiff s allegations of disabling pain were 4 inconsistent with his daily activities was a valid reason for the 5 ALJ to discount his testimony. See Bray v. Comm r of Soc. Sec. 6 Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) (ALJ properly 7 discounted claimant s testimony because she leads an active 8 lifestyle, including cleaning, cooking, walking her dogs, and 9 driving to appointments ); Molina, 674 F.3d at 1113 ( Even where 10 [claimant s] activities suggest some difficulty functioning, they 11 may be grounds for discrediting the claimant s testimony to the 12 extent that they contradict claims of a totally debilitating 13 impairment. ). 14 To the extent the ALJ found Plaintiff s statements were not 15 credible because he received only conservative treatment for his 16 impairments, limited to prescription pain medication, over the 17 counter medications, steroid injections, a home exercise program, 18 acupuncture, chiropractic visits, activity modification and 19 physical therapy (AR 35), that reasoning might not have been 20 clear and convincing because epidural and steroid injections may 21 not be consistent with a finding of conservative treatment. See 22 Tagle v. Astrue, No. CV 11 7093 SP, 2012 WL 4364242, at *4 (C.D. 23 Cal. Sept. 21, 2012) ( While physical therapy and pain medication 24 are conservative, epidural and trigger point injections are 25 not. ); Christie v. Astrue, No. CV 10 3448 PJW, 2011 WL 4368189, 26 at *4 (C.D. Cal. Sept. 16, 2011) (refusing to characterize 27 steroid, trigger-point, and epidural injections as conservative). 28 Despite that potential error, however, remand is not required because the remainder of the ALJ s credibility findings were 35 1 supported by substantial evidence in the record. See Carmickle, 2 533 F.3d at 1162; Batson, 359 F.3d at 1190, 1197. This Court may 3 not second-guess the ALJ s credibility finding simply because 4 the evidence may have been susceptible of other interpretations 5 more favorable to Plaintiff. See Tommasetti, 533 F.3d at 1039. 6 Reversal is therefore not warranted on this basis. 7 VII. CONCLUSION 8 Consistent with the foregoing, and pursuant to sentence four 9 of 42 U.S.C. § 405(g),13 IT IS ORDERED that judgment be entered 10 AFFIRMING the decision of the Commissioner and dismissing this 11 action with prejudice. IT IS FURTHER ORDERED that the Clerk 12 serve copies of this Order and the Judgment on counsel for both 13 parties. 14 15 DATED: August 26, 2013 16 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28 13 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. 36

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