Samuel Edmond v. Carolyn W Colvin, No. 5:2013cv01108 - Document 22 (C.D. Cal. 2014)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Alka Sagar. The decision of the Administrative Law Judge is affirmed. (See Order for complete details) (afe)

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Samuel Edmond v. Carolyn W Colvin Doc. 22 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 SAMUEL EDMOND, 12 13 14 15 Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, 16 Defendant. 17 ) NO. EDCV 13-1108-AS ) ) ) MEMORANDUM OPINION AND ORDER ) ) ) ) ) ) ) ) ) 18 19 PROCEEDINGS 20 21 On July 1, 2013, Plaintiff filed a Complaint seeking review of 22 the Commissioner's denial of Plaintiff’s application for a period 23 of disability, and disability insurance benefits (“DIB”), and 24 supplemental security income (“SSI”). 25 August 27, 2013, the matter was transferred and referred to the 26 current Magistrate Judge. 27 28 (Docket Entry No. 3). (Docket Entry No. 14). On On December 30, 2013, Defendant filed an Answer and the Administrative Record (“A.R.”). (Docket Entry Nos. 19, 20). The parties have consented 1 Dockets.Justia.com 1 to proceed before a United States Magistrate Judge. 2 Nos. 15, 16). 3 Stipulation 4 positions regarding Plaintiff's claim. (Docket Entry No. 21). The 5 Court has taken this matter under submission without oral argument. 6 See C.D. Local R. 7-15; “Case Management Order,” filed August 7, 7 (Docket Entry On March 3, 2014, the parties filed a Joint (“Joint Stip.”) setting forth their respective 2013 (Docket Entry No. 6). 8 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 9 10 Plaintiff, a former medical technician, phlebotomist, and 11 medical receptionist (A.R. 16), asserts disability beginning May 12 13, 209, based on the alleged physical impairments of degenerative 13 14 disk disease of the lumbar spine; colon cancer, status post resection; hypertension; gastroesophageal reflux disease; and 15 history of coronary artery disease, status post single coronary 16 artery bypass and recent history of a borderline electrocardiogram. 17 (Id. 9; Joint Stip. 2). 18 Law Judge, Paula J. Goodrich (“ALJ”), examined the record and heard 19 testimony from Plaintiff and a vocational expert (“VE”), Troy L. 20 Scott. On February 29, 2012, the Administrative (A.R. 24-63). 21 22 On April 6, 2012, the ALJ issued a decision denying (Id. 9-17). The ALJ 23 Plaintiff's applications for DIB and SSI. 24 found that Plaintiff has the severe impairment of degenerative disc 25 disease of the lumbar spine. 26 Plaintiff has the nonsevere conditions of colon cancer, status post 27 resection; 28 hypertension; (Id. 11). She also determined that gastroesophageal reflux disease; and history of coronary artery disease, status post single coronary 2 1 artery bypass graft, and recent 2 electrocardiogram. 3 alleged depression is not medically determinable. (Id. 11-12). history of a borderline She determined that Plaintiff’s (Id. 12). 4 The ALJ determined that Plaintiff has the residual functional 5 6 7 capacity (“RFC”) to perform the full range of medium work. (Id. 13). 8 Relying on the testimony of the VE, the ALJ determined that 9 Plaintiff was able to perform his past relevant work, as actually 10 and generally performed, as a medical technician (Dictionary of 11 Occupational Titles (“DOT”) No. 078.381-014); phlebotomist (DOT No. 12 079.364-022); and medical receptionist (DOT No. 237.367-038). (Id. 13 16). 14 15 Accordingly, the ALJ found that Plaintiff was not disabled at 16 any time from the alleged disability onset date of May 13, 2009, 17 through April 6, 2012, the date of the decision. (Id. 17). 18 19 PLAINTIFF’S CONTENTIONS 20 21 Plaintiff contends that the ALJ erred (1) in rejecting the 22 opinions of his treating 23 Plaintiff’s credibility. physician; and (2) in discounting (Joint Stip. 3). 24 STANDARD OF REVIEW 25 26 This Court reviews the Commissioner’s decision to determine 27 28 if: (1) the Commissioner’s findings are supported by substantial 3 1 evidence; and (2) the Commissioner used proper legal standards. 42 2 U.S.C. § 405(g); see Carmickle v. Comm’r, 533 F.3d 1155, 1159 (9th 3 Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). 4 “Substantial evidence is more than a scintilla, but less than a 5 preponderance.” 6 1998) (citing Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 7 8 1997). Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. It is relevant evidence “which a reasonable person might accept as adequate to support a conclusion.” Hoopai, 499 F.3d at 1074; Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996)). To 9 determine whether substantial evidence supports a finding, “a court 10 must ‘consider the record as a whole, weighing both evidence that 11 supports and evidence that detracts from the [Commissioner’s] 12 conclusion.’” 13 14 15 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 1997) (citation omitted); see Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006) (inferences “reasonably drawn from the record” can constitute substantial evidence). 16 17 This Court “may not affirm [the Commissioner’s] decision 18 simply by isolating a specific quantum of supporting evidence, but 19 must also consider evidence that detracts from [the Commissioner’s] 20 conclusion.” 21 (citation and internal quotation marks omitted); Lingenfelter v. 22 Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (same). 23 Court cannot disturb findings supported by substantial evidence, 24 even though there may exist other evidence supporting Plaintiff’s 25 claim. 26 “If 27 reversing 28 Ray v. Bowen, 813 F.2d 914, 915 (9th Cir. 1987) However, the See Torske v. Richardson, 484 F.2d 59, 60 (9th Cir. 1973). the evidence the can reasonably [Commissioner’s] support conclusion, either [a] affirming court substitute its judgment for that of the [Commissioner].” 4 may or not Reddick, 1 157 F.3d 715, 720-21 (9th Cir. 1998) (citation omitted). 2 DISCUSSION 3 4 5 After consideration of the record as a whole, the Court finds 6 that the Commissioner’s findings are supported by substantial 7 evidence and are free from material1 legal error. 8 A. Applicable Law 9 10 “The Social Security Act defines disability as the ‘inability 11 to engage in any substantial gainful activity by reason of any 12 medically determinable physical or mental impairment which can be 13 14 expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.’” Webb 15 v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (quoting 42 U.S.C. 16 § 423 (d)(1)(A)). The ALJ follows a five-step, sequential analysis 17 to determine whether a claimant has established disability. 18 C.F.R. § 404.1520. 20 19 20 At step one, the ALJ determines whether the claimant is 21 engaged 22 404.1520(a)(4)(i). 23 “work that . . . [i]nvolves doing significant and productive 24 physical or mental duties[] and . . . [i]s done (or intended) for in substantial gainful employment activity. Id. § “Substantial gainful activity” is defined as 25 1 26 27 28 The harmless error rule applies to the review of administrative decisions regarding disability. See McLeod v. Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (stating that an ALJ’s decision will not be reversed for errors that are harmless). 5 1 pay or profit.” 2 that the claimant is not engaged in substantial gainful activity, 3 the ALJ proceeds to step two which requires the ALJ to determine 4 whether 5 combination of impairments that significantly limits his ability to 6 do basic work activities. 7 8 the Id. §§ 404.1510, 404.1572. claimant Webb, 433 F.3d at 686. has a medically See id. § If the ALJ determines severe impairment or 404.1520(a)(4)(ii); see also The “ability to do basic work activities” is defined as “the abilities and aptitudes necessary to do most jobs.” 20 C.F.R. § 404.1521(b); Webb, 433 F.3d at 686. An 9 impairment is not severe if it is merely “a slight abnormality (or 10 combination of slight abnormalities) that has no more than a 11 minimal effect on the ability to do basic work activities.” Webb, 12 433 F.3d at 686. 13 14 If the ALJ concludes that a claimant lacks a medically severe 15 impairment, the ALJ must find the claimant not disabled. 16 C.F.R. § 1520(a)(ii); Ukolov v. Barnhart, 420 F.3d 1002, 1003 (9th 17 Cir. 2005) (ALJ need not consider subsequent steps if there is a 18 finding of “disabled” or “not disabled” at any step). Id.; 20 19 20 However, if the ALJ finds that a claimant’s impairment is 21 severe, then step three requires the ALJ to evaluate whether the 22 claimant’s impairment satisfies certain statutory requirements 23 entitling him to a disability finding. 24 the 25 entitling the claimant to a disability finding, the ALJ must 26 determine the claimant’s RFC, that is, the ability to do physical 27 and mental work activities on a sustained basis despite limitations 28 impairment does not from all his impairments. satisfy Webb, 433 F.3d at 686. the statutory 20 C.F.R. § 416.920(e). 6 If requirements 1 Once the RFC is determined, the ALJ proceeds to step four to 2 assess whether the claimant is able to do any work that he or she 3 has done in the past, defined as work performed in the last fifteen 4 years prior to the disability onset date. 5 the claimant is not able to do the type of work that he or she has 6 done in the past or does not have any past relevant work, the ALJ 7 proceeds to step five to determine whether - taking into account 8 the claimant’s age, education, work experience and RFC - there is 9 any other work that the claimant can do and if so, whether there 10 are a significant number of such jobs in the national economy. 11 12 13 If the ALJ finds that Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999); 20 C.F.R. § 404.1520(a)(4)(iii)-(v). The claimant has the burden of proof at steps one through four, and the Commissioner has the burden of proof at step five. Tackett, 180 F.3d at 1098. 14 15 B. The ALJ Properly Discounted the Opinions of Plaintiff’s 16 Treating Physician 17 18 1. Legal Standard 19 20 In evaluating medical opinions, the case law and regulations 21 distinguish among the opinions of three types of physicians: 22 those who treat the claimant (treating physicians); (2) those who 23 examine but do not treat the claimant (examining physicians); and 24 (3) those who neither examine nor treat the claimant (nonexamining 25 or reviewing physicians). 26 416.902, 416.927; see also Lester v. Chater, 81 F.3d 821, 830 (9th 27 Cir. 1995). 28 given greater weight than those of other physicians, because 7 (1) See 20 C.F.R. §§ 404.1502, 404.1527, Generally, the opinions of treating physicians are 1 treating physicians are employed to cure and therefore have a 2 greater opportunity to know and observe the claimant. 3 Astrue, 495 F.3d 625, 631 (9th Cir. 2007); Smolen, 80 F.3d at 1285. 4 Where, as here, a treating physician’s opinion is contradicted by 5 another doctor, the ALJ must provide specific and legitimate 6 reasons supported by substantial evidence to properly reject it. 7 Lester, 81 F.3d at 830-31 (citing Andrews v. Shalala, 53 F.3d 1035, 8 1043 (9th Cir. 1995)); see also Orn, 495 F.3d at 632-33; Soc. Sec. 9 Ruling 96-2p. Orn v. 10 2. 11 The ALJ Properly Discounted the Opinions of Dr. Lee 12 On April 13, 2011, plaintiff’s treating physician, Jonathan 13 Lee, MD, completed a “Primary Treating Physician’s Progress 14 Report,” for Plaintiff’s Worker’s Compensation Claim. (A.R. 492- 15 95). In that report, Dr. Lee opined that Plaintiff was temporarily 16 restricted to “modified duty,” limiting him to sedentary work. 17 18 (Id. 494). another One month later, on May 11, 2013, Dr. Lee opined in progress report that Plaintiff was “permanent and 19 stationary with restrictions of no prolonged standing, walking, 20 sitting, stooping and bending and no repetitive lifting.” 21 490). (Id. 22 23 24 With respect to Dr. Lee’s opinions, the ALJ stated the following: 25 26 Dr. Lee treated the claimant over a lengthy period, was 27 reporting 28 certifications, and had access to the claimant’s medical 8 within the bounds of his professional 1 records; however, he did not cite to the records in 2 support of his conclusions, there is no indication that 3 he bears even a passing familiarity with the disability 4 process, his opinion altered in the space of [a] single 5 month with no changes in his objective findings to 6 explain such a shift, his opinion reported degrees of 7 functional limitation that finds no foundation in his 8 objective findings and his opinion was offered to a 9 different government program, with different objectives. 10 Accordingly, little weight was accorded either of his opinions. 11 12 13 (Id. 15-16). 14 Plaintiff argues that the ALJ improperly rejected the April 15 13, 2011, and May 11, 2011, opinions of Dr. Lee. (Joint Stip. 3- 16 9). 17 18 He contends that the ALJ failed to state whether she accepted or rejected Dr. Lee’s opinions, and did not provide specific and legitimate reasons supported by substantial evidence for rejecting 19 his opinions. 20 failed to articulate with any degree of specificity any evidence to 21 support her conclusory findings regarding Dr. Lee’s opinions; 22 failed 23 Plaintiff; improperly relied on a finding that Dr. Lee is not 24 familiar with the disability process; and erred in concluding that 25 Dr. Lee’s opinions had no foundation in his objective findings. 26 (Id. 6-7). to (Id. 4). credit Dr. Specifically, he argues that the ALJ Lee’s longitudinal The Court disagrees. 27 28 9 relationship with 1 a. Dr. Lee’s Changed Opinion 2 3 As discussed, one reason the ALJ discounted Dr. Lee’s opinions 4 was that those opinions changed in the space of a month from 5 “[m]odified 6 stationary with restrictions of no prolonged standing, walking, 7 sitting, stooping and bending and no repetitive lifting,” which 8 would preclude even sedentary work. 9 409). 10 duty, sedentary work only,” to “permanent and (Compare A.R. 494 with id. The ALJ also found that Dr. Lee’s opinions were unsupported by Dr. Lee’s objective findings. (Id. 15-16). 11 12 13 A review of Dr. Lee’s April and May 2011 reports shows that despite Dr. Lee’s change in opinion in May 2011, he stated in that later report that Plaintiff’s “[c]urrent complaints are unchanged 14 from his previous visit,” and that since Plaintiff’s last visit 15 “there have not been any new injuries.” (Id. 488.) Moreover, the 16 Court 17 18 19 notes that Dr. Lee had also assessed “Modified duty, sedentary work only,”2 in all of his prior reports, dated October 20, 2010, November 17, 2010, December 15, 2010, January 19, 2011, February 16, 2011, and March 16, 2011. (Id. 501-29). 20 21 Dr. Lee provided no explanation for this sudden change in 22 opinion after nine months of treating Plaintiff and finding him 23 capable of modified sedentary work throughout that time. This 24 inconsistency is a basis for rejecting Dr. Lee’s opinion. See 25 2 26 27 28 An August 24, 2010 “Initial Orthopedic/Neurologic Consultation and Request for Authorization of Medical Treatment for Utilization Review Purposes” completed by Gail Hopkins, II, MD, also noted that Plaintiff should continue “on the same modified duties at sedentary work . . . .” (A.R. 529). 10 1 Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995) (ALJ 2 properly 3 “conclusory 4 documentation”); Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 5 2001) (ALJ properly discounted treating doctor’s opinions for being 6 “so extreme as to be implausible,” and “not supported by any 7 findings,” where there was “no indication in the record what the 8 basis for these restrictions might be”). rejected physician’s and determination unsubstantiated by where it relevant was medical 9 b. 10 Lack of Objective Findings 11 An 12 13 ALJ including “need conclusory a not treating and accept the physician, inadequately opinion if of any that supported opinion by clinical physician, is brief, findings.” 14 Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); 20 C.F.R. § 15 404.1527(d)(2) (“If we find that a treating source’s opinion . . . 16 is well-supported . . . and not inconsistent with the other 17 18 substantial evidence controlling weight”). in your case record, we will give it Additionally, an ALJ may properly discount 19 a 20 findings” where there is “no indication in the record what the 21 basis for these restrictions might be.” 22 see also 20 C.F.R. § 404.1527(c)(2); Valentine v. Comm’r Soc. Sec. 23 Admin., 574 F.3d 685, 692-93 (9th Cir. 2009) (contradiction between 24 a treating physician’s opinion and his treatment notes constitutes 25 a 26 physician’s opinion); Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th 27 Cir. 2005) (contradiction between treating physician’s assessment 28 and clinical notes justifies rejection of assessment); see also treating specific physician’s and limitations legitimate reason 11 as for “not supported by any Rollins, 261 F.3d at 856; rejecting the treating 1 Johnson, 2 determination where it was “conclusory and unsubstantiated by 3 relevant medical documentation”). 60 F.3d at 1432 (ALJ properly rejected physician’s 4 5 Here, Dr. Lee’s objective findings fail to support his May 6 2011 opinions. 7 that Plaintiff was a “well-developed, well-nourished male who 8 ambulates into the examination room with a normal heel to toe gait, 9 independently, without assistive device.” 10 11 12 13 noted the In the examination on that date, Dr. Lee observed following: areas of (A.R. 489). tenderness on He also palpation of plaintiff’s lumbar area; Plaintiff’s lumbar range of motion was 70% of normal in flexion and extension; straight leg raising was negative; motor functioning was 5/5 bilaterally; Plaintiff’s reflexes were normal; and there was no atrophy, gross deformity, or 14 edema in Plaintiff’s upper and lower extremities. (Id.). These 15 findings were identical to Dr. Lee’s April 2011 findings; indeed, 16 they were identical to all of Dr. Lee’s previous findings in his 17 18 reports dated October 20, 2010, November 17, 2010, December 15, 2010, January 19, 2011, February 16, 2011, and March 16, 2011, and 19 in the August 24, 2010, initial consultation report completed by 20 Dr. Hopkins, who also took x-rays in her office on that date.3 21 (Id. 501-23, 524-29). 22 not a surgical candidate, and noted that although epidural steroid 23 injections had been recommended to Plaintiff after his 2002 MRI, 24 they were never performed because Plaintiff stated “that he opted Dr. Hopkins also stated that Plaintiff was 25 3 26 See also supra note 2. Dr. Hopkins noted that the x-rays of Plaintiff’s lumbar spine showed “degenerative disc disease at L5-S1 of moderate degree,” and x-rays of the thoracic spine showed “evidence of very mild degenerative changes consistent with age.” (A.R. 529). 28 27 12 1 not to undergo the injections.” (Id. 522, 525, 529). 2 3 Additionally, the only diagnostic studies referred to by Dr. 4 Lee in his records were a “repeat MRI of the lumbar spine” 5 performed on July 11, 2008, “which revealed mild degenerative disc 6 disease and facet osteoarthritis at L4-5 and L5-S1 with no evidence 7 of abnormal contrast enhancement or spinal stenosis”4 (id. 521), 8 and a March 24, 2011, MRI of the thoracic spine, which showed a 9 “[n]ormal thoracic spine” (id. 490, 494, 496). 10 11 12 13 Dr. Lee did not take any of his own x-rays, nor did he mention or appear to rely in any way on Dr. Hopkins’ x-rays. (Id.; see also supra note 3). Dr. Lee treated Plaintiff conservatively with medication (id. 490, 499, 503, 507, 511, 515, 522), and it was not until his May 11, 2011, report that he recommended Plaintiff receive “ten sessions of 14 physical therapy for the next five years.” (id. 490). 15 16 c. Worker’s Compensation Context 17 18 The ALJ also noted that Dr. Lee’s opinion, prepared in the 19 worker’s compensation context, contains no indication that “he 20 bears even a passing familiarity with the disability process.” 21 (A.R. 16). 22 regulations provide that “the amount of understanding of our 23 disability programs and their evidentiary requirements that an 24 acceptable medical source has . . . are relevant factors that we 25 will consider in deciding the weight to give to a medical opinion.” Although Plaintiff contends this is irrelevant, the 26 4 27 These findings were consistent with Plaintiff’s prior MRI on October 3, 2002. (See, e.g., A.R. 525). 28 13 1 20 C.F.R. § 404.1527(c)(6). 2 3 3. Conclusion 4 5 Based on the 6 legitimate 7 Therefore, there was no error. reasons foregoing, for the discounting ALJ the provided specific opinions of Dr. and Lee. 8 9 C. The ALJ Did Not Arbitrarily Discredit Plaintiff’s Testimony 10 11 12 Plaintiff contends Plaintiff’s credibility. that the ALJ erred in discounting (Joint Stip. at 12-15). 13 1. Legal Standard 14 15 Where, as here, the ALJ finds that a claimant suffers from a 16 medically determinable impairment that could reasonably be expected 17 18 to produce his or her alleged symptoms, the ALJ must evaluate “the intensity, persistence, and functionally limiting effects of the 19 individual’s symptoms . . . to determine the extent to which the 20 symptoms 21 activities. 22 credibility of the individual’s statements about the symptom(s) and 23 its functional effect.” affect the individual’s ability to do basic work This requires the [ALJ] to make a finding about the Soc. Sec. Ruling 96-7p. 24 25 An ALJ’s assessment of a claimant’s credibility is entitled to Anderson v. Sullivan, 914 F.2d 1121, 1124 (9th 26 “great weight.” 27 Cir. 1990); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985). 28 14 1 The ALJ may not discount the claimant’s testimony regarding the 2 severity 3 findings. 4 F.3d 1228, 1234 (9th Cir. 2010) (reaffirming same); but see Smolen, 5 80 F.3d at 1283-84 (indicating that ALJ must provide “specific, 6 clear and convincing reasons to reject a claimant’s testimony where 7 there is no evidence of malingering); see Rashad v. Sullivan, 903 8 F.2d 1229, 1231 (9th Cir. 1990).5 Generalized, conclusory findings 9 do not suffice. 10 11 12 13 2004) of (the the symptoms without making “specific, cogent” Lester, 81 F.3d at 834; see also Berry v. Astrue, 622 See Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. ALJ’s credibility findings “must be sufficiently specific to allow a reviewing court to conclude the [ALJ] rejected [the] claimant’s testimony on permissible grounds and did not arbitrarily discredit the claimant’s testimony”) (citation and internal quotation marks omitted); Holohan v. Massanari, 246 F.3d 14 1195, 1208 (9th Cir. 2001) (the ALJ must “specifically identify the 15 testimony [the ALJ] finds not to be credible and must explain what 16 evidence undermines the testimony”); Smolen, 80 F.3d at 1284 (“The 17 18 19 ALJ must state specifically which symptom testimony is not credible and what facts in the record lead to that conclusion.”); see also Soc. Sec. Ruling 96-7p. 20 21 22 23 24 25 26 27 5 In the absence of evidence of “malingering,” most recent Ninth Circuit cases have applied the “clear and convincing” standard. See, e.g., Chaudhry v. Astrue, 688 F.3d 661, 670, 672 n.10 (9th Cir. 2012); Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012); Taylor v. Comm’r of Soc. Sec. Admin., 659 F.3d 1228, 1234 (9th Cir. 2011); Valentine, 574 F.3d at 693; Ballard v. Apfel, 2000 WL 1899797, at *2 n.1 (C.D. Cal. Dec. 19, 2000) (collecting cases). As set forth infra, the ALJ’s findings in this case are sufficient under either the “clear and convincing” standard, or the requirement that the ALJ make “specific findings” supported by the record in making the credibility evaluation, so the distinction between the two standards (if any) is academic. 28 15 1 An ALJ may consider a range of factors in assessing 2 credibility, including “(1) ordinary techniques of credibility 3 evaluation, such as the claimant's reputation for lying, prior 4 inconsistent 5 testimony by the claimant that appears less than candid; (2) 6 unexplained or inadequately explained failure to seek treatment or 7 to follow a prescribed course of treatment; and (3) the claimant's 8 daily activities.” statements concerning the symptoms, and other Smolen, 80 F.3d at 1284. 9 2. 10 The ALJ’s Credibility Finding 11 The ALJ stated that Plaintiff “alleges chronic, severe back 12 13 pain with muscle spasms and numbness in his legs.” (A.R. 13). She stated the following with respect to Plaintiff’s credibility: 14 15 After careful consideration of the evidence, the 16 undersigned 17 finds that the claimant’s medically determinable impairments could reasonably be expected to 18 cause the alleged symptoms; however, the claimant’s 19 statements concerning the intensity, persistence and 20 limiting effects of these symptoms are not credible to 21 the extent they are inconsistent with the above residual 22 functional capacity assessment. 23 24 (Id.) 25 26 27 The Court’s review of the ALJ’s decision shows that she discounted Plaintiff’s testimony 28 16 for the following specific 1 reasons: 2 whole, 3 impairment is “preclusive of all types of work”; (2) Plaintiff’s 4 prescription medication are effective, and without side effects; 5 (3) Plaintiff’s treatment has been conservative and routine in 6 nature; (4) Plaintiff declined to follow up on therapies somewhat 7 more invasive than physical therapy, including epidural steroid 8 injections, 9 activities which are not limited to the extent that would be 10 11 12 (1) diagnostic testing, and the record when viewed as a is expected not supportive and a given limitations; Plaintiff’s discogram; his and of (5) Plaintiff complaints (6) contention of Plaintiff made regarding his medication side effects. that described disabling symptoms inconsistent his daily and statements (Id. 14-15). 13 a. Objective Medical Evidence 14 15 Although a claimant’s credibility “cannot be rejected on the 16 sole ground that it is not fully corroborated by objective medical 17 18 evidence, the medical evidence is still a relevant factor . . .” Rollins, 261 F.3d at 857. Lack of supporting objective medical 19 evidence 20 credibility. 21 determining 22 statements about the intensity, persistence and limiting effects of 23 her symptoms “in relation to the objective medical evidence and 24 other evidence”). is a key consideration for the ALJ in evaluating See 20 C.F.R. §§ 404.1529(c)(4); 416.929(c)(4) (in disability, an ALJ must evaluate a claimant’s 25 26 Here, the ALJ reviewed the July 11, 2008, diagnostic imaging 27 of Plaintiff’s lumbar spine, which reported only mild degenerative 28 17 1 disc disease and osteoarthritic changes “from the L4 through L1 2 vertebral bodies.” (A.R. 14 (citing id. 525)). The ALJ also noted 3 that the imaging showed no evidence of canal or foraminal stenosis, 4 or nerve root involvement. (Id.). 5 6 Furthermore, Plaintiff’s physical examinations “consistently, 7 albeit 8 findings.” 9 reflected normal posture when sitting and standing, rising without 10 difficulty from a sitting position or the examining table, a normal 11 12 13 not universally, (Id.). reported either minimal or normal For instance, various examination reports gait, no tenderness of the lumbar spine (although one report noted “areas of tenderness to palpation”), mildly reduced or full range of lumbar motion, negative straight leg raising, normal muscle strength, normal reflexes, normal sensation, and lack of an 14 assistive device for ambulation. (Id. (citing id. 367-69, 472-73, 15 502)). These are valid reasons for discounting Plaintiff’s 16 subjective complaints. 17 18 Morgan v. Comm’r of Soc. Sec., 169 F.3d 595, 600 (9th Cir. 1999) (conflict between subjective complaints and the objective medical evidence in the record is a sufficient 19 reason that undermines a claimant’s credibility; Osenbrock v. 20 Apfel, 240 F.3d 1157-1165-66 (9th Cir. 2001) (affirming ALJ’s 21 decision that relied in part on finding that neurological and 22 orthopedic evaluations revealed “very little evidence” of any 23 significant disabling abnormality of the claimant’s upper or lower 24 extremities, or spine). 25 26 27 Accordingly, substantial evidence supports the ALJ’s credibility analysis with respect to the objective medical evidence 28 18 1 and 2 Plaintiff’s credibility. this was a clear and convincing reason for discounting 3 4 More importantly, as discussed below, this was not the sole 5 legally sufficient reason for discounting Plaintiff’s credibility. 6 b. 7 Effective Medication Without Side Effects 8 9 The ALJ also discredited Plaintiff’s testimony because the 10 treatment notes reflected that Plaintiff follows “a regimen of 11 12 prescription medications,” which, according effective, and without side effects. to Dr. Lee are (A.R. 14). 13 The ALJ also reported that Plaintiff made inconsistent 14 statements regarding the side effects of his medications, noting 15 that in his disability report he reported side effects, but then 16 reported to his treating source that there are no side effects from 17 18 19 the same medications. (Id. 15 (citing id. 247 (claiming his medications may cause ringing in his ears), 429 (Plaintiff reported no side effects from the medication he “has been on regularly”)). 20 21 The record supports these findings. Plaintiff’s health 22 records do not indicate any complaints of side effects, and there 23 is no indication that any medications were discontinued or modified 24 as 25 continued prescribing Plaintiff the same medications. (Id. 247, 26 427-29, 480, 482, 484, 486, 488, 27 503, 505, 507, 509, 511, 513, 515)). a result of such complaints. 28 19 Indeed, Dr. Lee routinely 490, 492, 494, 497, 499, 501, On March 16, 2011, Dr. Lee 1 noted that he was renewing Plaintiff’s medication “as it allows 2 [Plaintiff] to function.” 3 told Dr. Lee he needs medication for his pain “which allows him to 4 function”)). 5 symptoms are “alleviated with massage, heat and medications,” 6 and/or therapy (Id. 488, 492, 497, 501, 505, 509, 513). 7 hearing, although Plaintiff noted that he sometimes feels dizzy, or 8 needs to take a nap during the day, he was not sure if it was 9 because of his medications or for other reasons. 10 (Id. 499; see also id. 482 (Plaintiff Dr. Lee also repeatedly noted that Plaintiff’s At the (Id. 41-42, 44). He did not mention ringing in his ears. 11 12 13 In assessing a claimant’s credibility about his symptoms, an ALJ may consider “the type, dosage, effectiveness, and side effects of any medication.” 20 C.F.R. § 404.1529(c). An ALJ may also rely 14 on “ordinary techniques of credibility evaluation,” in assessing 15 the credibility of the allegedly disabling symptoms. Bunnell v. 16 Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991). 17 18 19 In this case, Plaintiff’s statements in his disability report regarding possible medication side effects were inconsistent with the medical record and his testimony at the hearing. 20 21 22 Accordingly, these were valid reasons supported by substantial evidence of record for discounting Plaintiff’s credibility. 23 24 c. Conservative and Routine Treatment 25 26 The ALJ’s credibility assessment also relies on the fact that 27 Plaintiff’s treatment for his “‘allegedly disabling impairment” has 28 20 1 been “essentially routine and/or conservative in nature.” 2 14). 3 was “discharged” from that practice on June 10, 2010, “having met 4 all of his goals.” (A.R. She noted that Plaintiff had received physical therapy, and (Id. (citing id. 405)). 5 6 A review of the record supports the ALJ’s conclusion. 7 instance, Plaintiff’s Worker’s Compensation reports indicated that 8 he had been treated conservatively for “the past four years,” with 9 medications and physical therapy. 10 11 (Id. 518, 525). For On July 27, 2010, Plaintiff was “instructed to finish his [physical] therapy and medications as well as his home exercise program.” (Id.). 12 13 The ALJ was entitled to discount Plaintiff’s credibility based on his positive response to conservative treatment. See Tommasetti 14 v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (ALJ may infer that 15 claimant’s “response to conservative treatment undermines 16 [claimant’s] reports regarding the disabling nature of his pain”); 17 18 Johnson, 60 F.3d at 1432 (ALJ may properly rely on the fact that only conservative treatment has been prescribed). 19 20 The ALJ also relied on the fact that Plaintiff had refused 21 “somewhat more invasive” therapies than physical therapy, including 22 epidural steroid injections, and a discogram. (A.R. 14 (citing id. 23 522, 525)). 24 claimant’s credibility, including “unexplained or inadequately 25 explained failure to seek treatment or to follow a prescribed 26 course of treatment. An ALJ may consider many factors in weighing a Tommasetti, 533 F.3d at 1039. 27 28 21 1 2 Accordingly, these were clear and convincing reasons to discount Plaintiff’s credibility. 3 4 d. Activities of Daily Living 5 6 The ALJ also discounted Plaintiff’s credibility to the extent 7 his complaints were inconsistent with his reported activities, 8 including the ability to attend to his own hygiene and grooming, 9 drive a car, attend to light yard work, attend to light mechanical 10 maintenance, prepare his own meals, shop in stores, and watch 11 12 television for pleasure. (A.R. 15 (citing id. 248)). The ALJ concluded: 13 In short, the claimant has described daily activities, 14 which are not limited to the extent one would expect, 15 given the complaints of disabling symptoms and 16 limitations. 17 18 It is noted that the scope of these activities is not consistent functional limitation with allegedly the the degree claimant, of and 19 although none of these activities, considered alone, 20 would warrant or direct a finding of not disabled, when 21 considered in combination, they strongly suggest that the 22 claimant 23 activity 24 capacity. would be capable contemplated by of the engaging in residual the work functional 25 26 27 (Id.). The ALJ also noted that although Plaintiff alleges he performs “few house chores,” he lives alone and does not report 28 22 1 that he gets any sort of help in maintaining his residence. (Id.). 2 Daily activities that are inconsistent with alleged symptoms are a 3 relevant credibility determination. Rollins, 261 F.3d at 857. 4 5 6 Accordingly, the Court finds that this was a legally sufficient reason for the ALJ’s adverse credibility finding. 7 8 3. Conclusion 9 10 11 12 13 The legally valid reasons given by the ALJ for discounting Plaintiff’s credibility sufficiently allow the Court to conclude that the ALJ credibility finding was based on permissible grounds. The Court therefore defers to the ALJ’s credibility determination. See Lasich v. Astrue, 252 Fed. App’x 823, 825 (9th Cir. 2007) 14 (court will defer to ALJ’s credibility determination when the 15 proper process is used and proper reasons for the decision are 16 provided); accord Flaten v. Sec’y of Health and Human Serv., 44 17 18 F.3d 1453, 1464 (9th Cir. 1995). Where the ALJ has made specific findings justifying a decision to disbelieve Plaintiff’s symptom 19 allegations 20 evidence in the record, “we may not engage in second guessing.” 21 Thomas, 278 F.3d at 958-59. and those findings are supported by substantial 22 23 ORDER 24 25 26 For all of the foregoing reasons, Administrative Law Judge is affirmed. 27 28 23 the decision of the 1 LET JUDGMENT BE ENTERED ACCORDINGLY. 2 DATED: December 3, 2014. 3 4 /s/ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 24

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