Christopher Kirkpatrick v. Carolyn W Colvin, No. 5:2013cv02034 - Document 17 (C.D. Cal. 2014)
Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that Judgment be entered AFFIRMING the decision of the Commissioner. (mr)
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Christopher Kirkpatrick v. Carolyn W Colvin Doc. 17 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER KIRKPATRICK, Plaintiff, 12 v. 13 14 15 Case No. EDCV 13-02034 SS MEMORANDUM DECISION AND ORDER CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant. 16 17 18 19 20 I. 21 INTRODUCTION 22 Christopher Kirkpatrick (“Plaintiff”) seeks review of the 23 24 final decision 25 Administration (the “Commissioner” or the “Agency”) finding him 26 eligible 27 Security Income from January 22, 2011 through February 16, 2012, 28 but denying him those benefits after February 16, 2012 because of for of the Disability Commissioner Insurance of the Benefits Social and Security Supplemental Dockets.Justia.com 1 medical 2 U.S.C. § 636(c), to the jurisdiction of the undersigned United 3 States 4 decision of the Commissioner is AFFIRMED. improvement. Magistrate The Judge. parties For the consented, reasons pursuant stated to below, 28 the 5 6 II. 7 PROCEDURAL HISTORY 8 9 Plaintiff applied for Title II Disability Insurance Benefits 10 (“DIB”) and Title XVI Supplemental Security Income (“SSI”) on 11 January 12 (Administrative Record (“AR”) 129, 136). 13 Plaintiff alleged a disability onset date of January 22, 2011. 14 (Id.). 15 March 8, 2011, (AR 62-66), and upon reconsideration on June 24, 16 2011. 17 hearing before an Administrative Law Judge (“ALJ”). 18 Plaintiff testified before ALJ Marti Kirby on September 7, 2012. 19 (AR 32-57). 20 decision on September 25, 2012. 21 Plaintiff was disabled within the meaning of the Social Security 22 Act from January 22, 2011 to February 16, 2012. 23 ALJ 24 February 17, 2012 due to medical improvement. 25 October 26 decision, which the Appeals Council denied on September 18, 2013. 27 (AR 1-5). 28 2013. 31, 2011 and February 3, 2011 respectively. In both applications, The Agency initially denied Plaintiff’s applications on (AR 60-61). (AR 73). The ALJ subsequently issued a partially favorable concluded, 10, On August 5, 2011, Plaintiff requested a however, 2012, that Plaintiff (AR 10-26). Plaintiff’s requested The ALJ found that (AR 26). disability review The ended (AR 10-11). of the on On ALJ’s Plaintiff filed the instant action on November 15, 2 1 III. 2 FACTUAL BACKGROUND 3 4 Plaintiff was born on November 6, 1978 and was thirty-two 5 years old on the date that he allegedly became disabled. 6 35). 7 (AR 8 substantial gainful activity after January 22, 2011 due to Stage 9 IV Hodgkin’s lymphoma. (AR Plaintiff did not graduate high school or obtain a GED. 36). Plaintiff alleged that he (AR 175, 178). could not engage in Plaintiff also claimed 10 that he suffered from blood clots in his arms, fatigue due to 11 chemotherapy, deep vein thrombosis (“DVT”) in his shoulders, and 12 peripheral neuropathy in his feet and hands. (AR 198, 216). 13 Plaintiff’s these 14 decreased in severity in the months following Plaintiff’s last 15 cycle of chemotherapy on October 14, 2011. 16 5, 2012, Plaintiff underwent surgery on his right knee to repair 17 a torn meniscus suffered in January of 2012, which resulted in a 18 Grade IV cartilage change to the knee. examining physicians found that (AR symptoms 458). On June (AR 365). 19 20 Plaintiff also claimed he suffered from severe depression. 21 (AR 22). 22 of 2012. 23 depressed, but 24 recommended that 25 Plaintiff 26 Lexapro in May of 2012. Plaintiff visited a mental health facility in January (AR 349). was was Examining physicians concluded Plaintiff was not Plaintiff later a risk begin prescribed to counseling. the (AR 390, 392). 27 28 3 himself or others (AR 349, antidepressant and 352). medication 1 Medical History: Treating And Examining Physicians’ Findings A. 2 3 1. Physical Condition 4 5 On January 22, 2011, Plaintiff (“Desert presented Regional”) to the Desert 6 Regional 7 California with fatigue, malaise, a lack of energy and weight 8 loss. 9 inguinal Medical (AR 235). lymph Center in Palm Springs, On January 25, 2011, Plaintiff underwent a left node biopsy which revealed that Plaintiff had 10 Stage IV Hodgkin’s lymphoma with bone marrow involvement. 11 241-44, 275). 12 started taking Coumadin for “bilateral upper extremity DVT caused 13 by his malignancy[.]” 14 physician 15 (“Cancer Center”), Dr. Murthy Andavolu, reported that Plaintiff 16 was “doing well,” having regained his appetite, and gained a 17 “significant amount” of weight. 18 nosebleeds or gum bleeding, no blood in his stool, no fevers or 19 night sweats, no neck pain or swelling, no abdominal pain, and no 20 leg swelling. at (AR Plaintiff commenced chemotherapy in early 2011 and Desert (AR 275). On March 9, 2011, Plaintiff’s Regional’s Comprehensive (Id.). Cancer Center Plaintiff reported no (Id.). 21 22 On March 23, 2011, Plaintiff saw Dr. Andavolu for a follow- 23 up visit. 24 and 25 remained 26 chemotherapy. 27 April 13, 2011 after completing his third cycle of chemotherapy. 28 (AR 279). his (AR 277). exam on was Plaintiff reported continued weight gain, otherwise Coumadin (Id.). for unremarkable. his DVT and (Id.). continued Plaintiff to undergo Plaintiff returned to Dr. Andavolu on Plaintiff reported no complaints and continued to 4 1 receive treatment for his DVT. 2 practitioner Cathy Warne conducted a follow-up examination of 3 Plaintiff. 4 congestion, and tenderness in his mouth. 5 purposeful weight loss, but no headaches, fevers, night sweats, 6 abdominal pain, chest pain, swelling, or shortness of breath. 7 (Id.). 8 chemotherapy well and had a good clinical response.” 9 Plaintiff’s PET-CT scan showed a “complete response.” (AR 282). Nurse Warne (Id.). On May 4, 2011, nurse Plaintiff complained of itchy eyes, nasal reported that (Id.). Plaintiff He reported “tolerated [his] (Id.). (Id.) Dr. 10 Andavolu confirmed the nurse’s findings in an additional report 11 and noted he increased Plaintiff’s Coumadin to 7.5 mg daily two 12 days earlier. (AR 284). 13 14 On May 11, 2011, Plaintiff underwent a bone marrow biopsy. 15 (AR 286). 16 microscopic examination of his biopsied bone marrow revealed no 17 evidence of Hodgkin’s lymphoma. 18 Plaintiff reported muscle and bone aches, but no other remarkable 19 symptoms. 20 Plaintiff continued to gain weight, his groin lymphadenopathy had 21 disappeared, and he reported no chest or abdominal pain. 22 466). Plaintiff continued to do well throughout July 2011 and 23 showed signs 24 lymphoma. 25 2011, showing no signs of fever, swelling, weight loss, chest 26 pain, 27 continued to tolerate his chemotherapy well throughout September 28 2011. Plaintiff tolerated the procedure well, (id.), and a (AR 467). of abdominal (AR 460). pain, On June 1, 2011, Dr. Andavolu noted on June 30, 2011 that near-complete (AR 464). (AR 290). resolution of his (AR Hodgkin’s Plaintiff also improved throughout August or distress. (AR 462). Plaintiff After briefly increasing Plaintiff’s Coumadin 5 1 to 2 Plaintiff’s dose back to 7.5 mg daily on September 22, 2011. 3 462, 460). 10 mg daily in late August 2011, Dr. Andavolu lowered (AR 4 5 On October 3, 2011, Plaintiff visited Dr. Apollo Gulle in 6 Yucca Valley, California to discuss his lab results. 7 Plaintiff reported no fatigue, fever, night sweats, coughing, 8 chest pain, irregular heartbeat, abdominal pain, constipation, 9 diarrhea, or vomiting. (Id.). (AR 342). Plaintiff was not under any 10 apparent distress, appeared well-nourished, and well-developed. 11 (Id.). 12 regular, his abdomen was soft and non-tender, and his extremities 13 showed no signs of edema or cyanosis. 14 that Plaintiff’s cancer was in remission and his DVT in the upper 15 extremities 16 Plaintiff Fenofibrate (160 mg) and Nexium (40 mg), and modified 17 his Coumadin dosage to 5 mg. 18 visit, Plaintiff weighed 234 pounds. Plaintiff’s lungs remained were chronic. clear, his heart (Id.). (Id.). Dr. (AR 343). rhythm was Dr. Gulle noted Gulle prescribed At the time of his (AR 342). 19 20 On October 19, 2011, Plaintiff visited Dr. Andavolu for a 21 follow-up appointment. 22 Plaintiff 23 chemotherapy on October 14, 2011. was doing (AR 458). well after Dr. Andavolu reported that completing his last cycle of (Id.). 24 25 On November 22, 2011, Plaintiff returned to Dr. Gulle for a 26 follow-up examination. 27 dry feet, but no other remarkable symptoms. 28 prescribed Lidex solution (.05%) for Plaintiff’s skin condition (AR 340). 6 Plaintiff reported itchy and (Id.). Dr. Gulle 1 and Plaintiff continued to take Fenofibrate, Coumadin and Nexium. 2 (Id.). At the time of his visit, Plaintiff weighed 237 pounds. 3 4 On December 8, 2011, Plaintiff again presented with no signs 5 of fatigue, fever, night sweats, distress, respiratory problems, 6 or any other remarkable complications. 7 reported chest congestion, an itchy throat, a runny nose and body 8 aches. 9 mg) in addition to his regular medications. 10 (Id.). (AR 338). Plaintiff Dr. Gulle prescribed Plaintiff amoxicillin (500 (AR 339). weighed 236 pounds at the time of his examination. Plaintiff (AR 338). 11 12 Plaintiff returned to Dr. Gulle on January 16, 2012 13 complaining of a swollen right knee due to an attempt to return 14 to work as a construction worker. 15 that 16 right knee, x-rays of the knee were unremarkable and Plaintiff 17 reported no history of trauma, weakness or numbness. 18 Gulle 19 recommended treatment 20 immobilizer. (Id.). although Plaintiff diagnosed (AR 336). experienced Plaintiff with with a swelling and sprained NSAIDs, ice Dr. Gulle noted pain his (Id.). Dr. knee and right and in a wearable 21 22 On January 18, 2012, Plaintiff returned to Dr. Andavolu. Dr. Andavolu noted that Plaintiff’s cancer was in 23 (AR 457). 24 complete remission, although 25 Plaintiff complained of 26 required the use of crutches. 27 additional complaints. an his injury DVT to (Id.). (Id.). 28 7 persisted. his right knee, (Id.). which Plaintiff reported no 1 On February 1, 2012, Plaintiff visited Dr. Jeffrey Seip in 2 Yucca 3 reported mild joint pain and denied any locking, popping, or 4 other mechanical symptoms of the right knee. 5 also described a stable and nonprogressive pattern of symptoms. 6 (Id.). 7 diagnosed Plaintiff with a sprain of the right lateral collateral 8 knee ligament, and referred Plaintiff to physical therapy. 9 423). Valley for a knee examination. (AR 422). Plaintiff (Id.). Plaintiff Dr. Seip concluded Plaintiff was not at risk of falling, (AR 10 11 At a February 8, 2012 physical therapy session, Plaintiff 12 reported mild to moderate knee pain, which the physical therapist 13 noted was “significantly decrease[d]” by his knee brace. 14 359). 15 that included therapeutic and strengthening exercises, electric 16 stimulation, 17 treatment per day, twice a week for six weeks. (AR The physical therapist began Plaintiff on a treatment plan and hot/cold packs, with a frequency of one (AR 360). 18 19 Plaintiff returned to Dr. Andavolu on February 16, 2012 for 20 a follow-up visit regarding Plaintiff’s lymphoma. 21 Andavolu reiterated that Plaintiff was doing well and noted that 22 Plaintiff 23 earlier. 24 swelling and tenderness. had stopped (AR 451). taking Coumadin for his (AR 451). DVT two Dr. weeks Plaintiff’s right knee showed signs of (AR 452). 25 26 On February 20, 2012, Plaintiff visited Dr. Chahat Thakur in 27 Yucca Valley for a variety of lab tests related to his lymphoma. 28 (AR 419). There, Plaintiff reported that he was still taking 8 1 Coumadin at that time, in contrast to what Dr. Andavolu noted 2 about Plaintiff’s Coumadin dosage four days earlier. (AR 420). 3 4 Plaintiff also listed Coumadin as a current medication the 5 following day, during a follow-up appointment for his knee. 6 416). 7 no pain during several knee examinations, but did note lateral 8 joint 9 meniscus. (AR 418). Plaintiff underwent a procedure to drain 10 the knee of 11 afterwards. 12 with physical therapy. (AR Nurse practitioner Hector Alvarez reported Plaintiff had line right tenderness joint during an fluid exam and of Plaintiff’s reported no right complications (Id.). Nurse Alvarez ordered Plaintiff to continue (Id.). 13 14 On 15 further 16 hypertriglyceridemia. 17 taking Lopid for the condition, and had been complying with the 18 treatment and taking his medicine as directed. 19 denied experiencing any symptoms related to hypertriglyceridemia. 20 (Id.). 21 daily 22 Plaintiff did not list Coumadin as one of his current medications 23 at this visit. 24 of his examination. March lab 5, 2012, tests, Plaintiff this time (AR 413). returned to to Dr. evaluate Thakur Plaintiff for for Dr. Thakur noted Plaintiff was (Id.). Plaintiff Dr. Thakur prescribed Tricor (145 mg), to be taken once for 30 days, with (Id.). two refills following. (AR 414). Plaintiff weighed 246 pounds at the time (Id.). 25 26 Plaintiff returned to Nurse Alvarez on March 6, 2012 for a 27 follow-up 28 physical therapy. appointment on his (AR 410). knee and was referred for more During sessions held on March 14 9 1 and 2 moderate 3 Plaintiff was making slow progress at both sessions. 4 Plaintiff 5 March 29, 2012 session. March 29, knee 2012, pain, was Plaintiff and the discharged continued physical from to report therapist physical mild remarked therapy to that (AR 362). following the (AR 363). 6 7 On March 27, 2012, Plaintiff visited Dr. Navid Zenooz for a 8 chest 9 experiencing abdominal pain. x-ray and CT scan of his abdomen (AR 356, 428). and pelvis after Dr. Zenooz reported 10 that the CT scan revealed Plaintiff was suffering from umbilical 11 and bilateral inguinal hernias. 12 reported unremarkable and normal findings from both examinations. 13 (AR 356, 428). 14 general surgeon for the hernias. (AR 356). Dr. Zenooz otherwise The next day, Dr. Thakur referred Plaintiff to a (AR 406). 15 16 On April 10, 2012, Plaintiff visited Dr. Renato Guzman in 17 Yucca Valley following Dr. Thakur’s referral. 18 Guzman noted that both of Plaintiff’s hernias “have been present 19 for 20 [Plaintiff] when he lays on his stomach. The inguinal hernias are 21 asymptomatic.” 22 assessments 23 Plaintiff 24 medications. 25 of his examination with Dr. Guzman. years,” and that (Id.). or also orders did not (AR 400). “[t]he Dr. for umbilical Guzman’s further list (AR 399). hernia notes reveal treatment. Coumadin as only one (AR of Dr. bothers no other 399-400). his current Plaintiff weighed 241 pounds at the time (Id.). 26 27 28 Plaintiff returned to Nurse Alvarez on May 9, 2012 for a follow-up appointment on his knee. 10 (AR 393). Nurse Alvarez 1 referred Plaintiff to an orthopedist and also ordered an x-ray of 2 Plaintiff’s knee. 3 time of his visit with Nurse Alvarez. (AR 395). Plaintiff weighed 236 pounds at the (AR 394). 4 5 On May 17, 2012, Plaintiff returned to Dr. Andavolu for a 6 follow-up appointment regarding his lymphoma. 7 Andavolu reported Plaintiff had a high red blood cell count, 8 stemming 9 Plaintiff from was Plaintiff’s history doing otherwise well (Id.). of (AR 445). smoking, and his but noted lymphoma Dr. that was in 10 “complete remission.” 11 Plaintiff admitted to smoking marijuana. 12 ordered to undergo lab tests and a PET-CT scan and follow up with 13 Dr. Andavolu in another three months. Dr. Andavolu also commented that (Id.). Plaintiff was (Id.). 14 On May 29, 2012, Plaintiff saw Nurse Alvarez for a pre- 15 16 operation appointment on his knee. (AR 386). 17 moderate pain in the knee. (Id.). Nurse Alvarez noted Plaintiff 18 had osteoarthritis. 19 described 20 giving away of his knee. 21 these symptoms occurred for less than fifteen minutes upon waking 22 up each morning, but later said his symptoms occurred several 23 times daily. 24 ten blocks, walk up stairs normally, and walk down stairs with a 25 rail. 26 during any of these estimated activities. 27 weighed 233 pounds at the time of his visit with Nurse Alvarez, 28 and did not report Coumadin as one of his current medications. a family history joint (Id.). of stiffness, (Id.). as well (Id.). as Plaintiff reported (Id.). locking, Plaintiff popping, and Plaintiff told Nurse Alvarez Plaintiff estimated he could walk five to Plaintiff denied the need of an assistive device 11 (Id.). Plaintiff 1 (AR 387-388). 2 of 3 refills. Norco, Nurse Alvarez prescribed Plaintiff thirty tablets a hydrocodone/acetaminophen medication, with no (AR 388). 4 5 Plaintiff underwent arthroscopic surgery on his right knee 6 on June 5, 2012 in Yucca Valley. 7 the 8 cartilage change to the majority of Plaintiff’s right knee joint. 9 (Id.). 10 surgery and Dr. procedure. made Seip a (AR 365). post-operation reported no Dr. Seip performed diagnosis other of Grade complications from IV the (Id.). 11 12 Plaintiff returned to Nurse Alvarez on June 12, 2012 for a 13 post-operation 14 “[Plaintiff’s] course has improved,” and that despite Plaintiff’s 15 family history of osteoarthritis, Plaintiff’s personal medical 16 history was negative for the condition. 17 also 18 following the surgery. 19 findings one week later on June 19, 2012, and ordered Plaintiff 20 to visit Dr. Seip to remove Plaintiff’s remaining sutures. 21 379-381). reported appointment. that (AR Plaintiff 383). had (Id.). Nurse Alvarez (Id.). been noted Nurse Alvarez prescribed Vicodin Nurse Alvarez reported similar (AR 22 23 On June 20, 2012, Plaintiff visited Dr. Thakur to treat a 24 toenail fungal infection 25 bothering him for 26 confirmed the infection 27 Plaintiff antibiotics. about that six on Plaintiff days. the (AR 378). 28 12 right (AR claimed 376). toenail and had Dr. been Thakur prescribed 1 Plaintiff saw Dr. Thakur again on June 27, 2012 for a 2 follow-up appointment regarding Plaintiff’s hypertriglyceridemia. 3 (AR 373). 4 the condition and Dr. Thakur noted Plaintiff’s overall compliance 5 with the treatment plan. 6 (20 mg), to be taken once daily for 30 days with no refills. 7 375). Plaintiff denied experiencing any symptoms related to Dr. Thakur prescribed Plaintiff Crestor (AR 8 9 On July 2, 2012, Plaintiff visited Nurse Alvarez a 10 follow-up appointment on Plaintiff’s knee. 11 patellofemoral noted some 12 tenderness in Plaintiff’s medial and lateral joint lines. (AR 13 372). 14 medication, to be taken twice daily for 10 days. and meniscal exams, (AR 370). for Nurse Alvarez During the Nurse Alvarez prescribed Plaintiff Naprosyn, a naproxen (Id.). 15 16 Plaintiff visited Dr. Renato Guzman in Yucca Valley on July 17 3, 2012 to address his toenail infection. 18 reported no infection, but that examinations revealed ingrown 19 toenails on 20 surgery. (AR 369). 21 medical 22 procedure. both records of Plaintiff’s big (AR 368). toes, and Dr. Guzman recommended However, there is no other evidence in the indicating Plaintiff has undergone any such 23 24 On August 14, 2012, Plaintiff visited Dr. Sumit Mahajan in 25 Yucca Valley for an appointment regarding Plaintiff’s peripheral 26 neuropathy. 27 “diagnosed [six] months ago.” 28 that “[t]he course has been progressively worsening” and is of (AR 635). Dr. Mahajan notes the condition was (Id.). 13 Dr. Mahajan also remarked 1 “moderate intensity.” 2 occurred 3 exertion, and were relieved by “lying perfectly still.” 4 Dr. Mahajan prescribed Plaintiff thirty tablets of Neurontin (300 5 mg) to control the nerve pain. several (Id.). times Plaintiff reported symptoms that daily, were aggravated by walking and (Id.). (AR 637). 6 7 Plaintiff 8 experiencing 9 bothered saw Dr. shortness Plaintiff Thakur of “for on breath, the August which past Dr. [two] 20, 2012 Thakur weeks.” after noted (AR had 632). 10 Plaintiff reported an associated cough symptom but denied any 11 other symptoms. 12 his chest was negative for a pulmonary embolism and that all 13 other 14 However, because of Plaintiff’s history of cancer, Dr. Thakur 15 recommended Plaintiff visit Dr. Andavolu two days later for a 16 follow-up 17 before the ALJ that he never received a diagnosis from the August 18 20, 2012 visit but was eventually prescribed an inhaler. 19 42). (Id.). examinations Dr. Thakur noted Plaintiff’s CT scan of were appointment. unremarkable. (AR 634). (AR Plaintiff 643, 633-634). later testified (AR 20 21 2. Mental Condition 22 23 On January 23, 2012, Plaintiff visited Morongo Basin Mental 24 Health Services (“Morongo Basin”) in Yucca Valley. 25 Plaintiff 26 unemployment, 27 Plaintiff was treated by examining clinician Dana Conner and Dr. 28 Paul True, Psy. D. (AR 349, 354). reported his experiencing cancer stress diagnosis, 14 and and (AR 349). anxiety finances. due to (Id.). Ms. Conner reported Plaintiff 1 also complained of irritability, trouble sleeping, short term 2 memory lapses, “lash[ing] out if confronted with too many tasks,” 3 and emotions that “change drastically.” 4 in the same report, boxes were checked indicating Plaintiff had 5 neither 6 reported no other interpersonal impairment. 7 used marijuana a few times a week, but “ceased using speed 15 8 years ago.” sleeping nor eating (Id.). problems. (AR However, later 351). Plaintiff (AR 349). Plaintiff (AR 350). 9 10 Dr. True diagnosed Plaintiff with chronic adjustment 11 disorder with anxiety, cannabis dependence without physiological 12 dependence, memory impairment due to chemotherapy, and chronic 13 pain. 14 hypercholesterolemia, 15 social support, and occupational problems. 16 also concluded Plaintiff was not a danger to himself or others. 17 (AR 349). 18 “appropriate/normal” and Plaintiff’s mood as “depressed.” 19 352). 20 (Id.). (AR 354). Dr. True also digestive diagnosed disorders, Plaintiff ulcers, (Id.). with inadequate The doctors They ruled Plaintiff’s appearance and behavior as (AR The doctors recommended that Plaintiff begin counseling. 21 22 On May 14, 2012, Plaintiff visited Dr. Thakur to evaluate 23 Plaintiff for depression. 24 appointment was a “routine follow-up” and that “[t]he diagnosis 25 of depression was made [ten] years ago.” 26 reported a “mild degree of depression” with “fairly infrequent” 27 symptoms to Dr. Thakur. 28 “[c]urrent medications include an antidepressant,” but Plaintiff (AR 390). (Id.). 15 Dr. Thakur noted this (Id.). Plaintiff Dr. Thakur also noted that 1 did 2 appointment or at other doctor visits leading up to May 14, such 3 as the appointments on April 11 and May 9, 2012. 4 394). 5 to be taken once daily, with no refills. not report any such medications at the May 14, 2012 (AR 391, 397, Dr. Thakur prescribed Plaintiff thirty tablets of Lexapro, (AR 392). 6 7 Plaintiff subsequently reported Lexapro as a current 8 medication at doctor visits on May 29 and June 12, 2012. 9 387, 384). (AR Plaintiff then did not list Lexapro as a current 10 medication during visits on June 19, June 20, or June 27, 2012. 11 (AR 380, 377, 374). 12 one of his medications during doctor visits in August, 2012. 13 638, 636, 633). However, Plaintiff again listed Lexapro as (AR 14 15 IV. 16 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 17 18 To 19 demonstrate 20 impairment that prevents her from engaging in substantial gainful 21 activity and that is expected to result in death or to last for a 22 continuous period of at least twelve months. 23 157 24 § 423(d)(1)(A)). 25 incapable of performing the work she previously performed and 26 incapable of performing any other substantial gainful employment 27 that exists in the national economy. qualify F.3d a 715, for disability medically 721 The (9th benefits, determinable Cir. impairment 28 16 claimant physical 1998) must a or must mental Reddick v. Chater, (citing render 42 the U.S.C. claimant Tackett v. Apfel, 180 1 F.3d 1094, 2 § 423(d)(2)(A)). 1098 (9th Cir. 1999) (citing 42 U.S.C. 3 4 To decide if a claimant is entitled to benefits, an ALJ 5 conducts a five-step inquiry. 6 The steps are: 20 C.F.R. §§ 404.1520, 416.920. 7 8 (1) 9 gainful activity? 10 11 Is the claimant presently engaged in substantial not disabled. (2) If so, the claimant is found If not, proceed to step two. Is the claimant’s impairment severe? 12 claimant is found not disabled. 13 If not, the step three. 14 (3) If so, proceed to Does the claimant’s impairment meet or equal one 15 of the specific impairments described in 20 C.F.R. 16 Part 17 claimant is found disabled. 18 step four. 19 (4) 404, Subpart P, Appendix 1? If so, the If not, proceed to Is the claimant capable of performing his past 20 work? 21 If not, proceed to step five. 22 (5) If so, the claimant is found not disabled. Is the claimant able to do any other work? 23 not, the claimant is found disabled. 24 If claimant is found not disabled. If so, the 25 26 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 27 262 F.3d 949, 953-54 (9th Cir. 2001) (citations omitted); 20 28 C.F.R. §§ 404.1520(b)-(g)(1) & 416.920(b)-(g)(1). 17 1 The claimant has the burden of proof at steps one through 2 four, and the Commissioner has the burden of proof at step five. 3 Bustamante, 262 F.3d at 953-54. 4 affirmative duty to assist the claimant in developing the record 5 at every step of the inquiry. 6 claimant meets her burden of establishing an inability to perform 7 past 8 perform some other work that exists in “significant numbers” in 9 the national economy, taking into account the claimant’s residual 10 functional capacity (“RFC”), age, education, and work experience. 11 Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 721; 20 12 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 13 so by the testimony of a vocational expert or by reference to the 14 Medical-Vocational Guidelines appearing in 20 C.F.R. Part 404, 15 Subpart P, Appendix 2 (commonly known as “the Grids”). 16 v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). 17 has 18 limitations, the Grids are inapplicable and the ALJ must take the 19 testimony of a vocational expert. 20 869 (9th Cir. 2000) (citing Burkhart v. Bowen, 856 F.2d 1335, 21 1340 (9th Cir. 1988)). work, both the Commissioner exertional Additionally, the ALJ has an Id. at 954. must show If, at step four, the that the claimant can The Commissioner may do (strength-related) and Osenbrock When a claimant non-exertional Moore v. Apfel, 216 F.3d 864, 22 23 V. 24 THE ALJ’S DECISION 25 26 The ALJ employed the five-step sequential evaluation process 27 and concluded that Plaintiff was initially under a disability 28 within the meaning of the Social Security Act from January 22, 18 1 2011 through February 16, 2012. 2 found 3 employment since January 22, 2011. (AR 14). that Plaintiff had (AR 10). not engaged At step one, the ALJ in substantial gainful 4 5 At step two, the ALJ found that from January 22, 2011 6 through February 16, 2012, Plaintiff had the severe impairments 7 of 8 currently in remission after eight months of chemotherapy, but 9 with complications due to DVT in both shoulders and residual 10 Stage IV Hodgkin’s lymphoma with bone marrow peripheral neuropathy; depression; and obesity. involvement, (AR 14). 11 12 At step three, the ALJ found that during this period, 13 Plaintiff 14 impairments 15 impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. 16 15). did not that have met or an impairment medically equaled or combination one of the of listed (AR 17 18 The ALJ then found that Plaintiff was “unable to sustain 19 full time work activity on a regular and continuing basis because 20 of 21 treatment.” 22 the 23 Plaintiff’s 24 Plaintiff and his wife, regarding the severity of his symptoms 25 and limitations. chronic fatigue, and (AR 16). objective the frequency and effect of medical In making this finding, the ALJ noted that medical testimony, evidence as well supported as the written credibility statements of from (AR 17-18). 26 27 28 Consequently, the ALJ gave little weight to the opinions of the non-examining State physicians 19 at the initial and who “did not have the benefit of 1 reconsideration 2 considering additional evidence that was only available after 3 they 4 [Plaintiff’s] testimony at the hearing,” and who thereby failed 5 to 6 (AR 18-19). 7 examining 8 functionally nonsevere after 12 months from the [alleged onset 9 date],” levels, assessed “adequately [Plaintiff], consider including [Plaintiff’s] treatment subjective notes and allegations.” In particular, the ALJ noted that the initial nonphysician, and Dr. Dr. Cooper, Vu, the expected Plaintiff non-examining physician “to at be the 10 reconsideration 11 period, Plaintiff “would be able to perform work at the light 12 exertional 13 activities.” level, level . . expected . that [and] after the occasionally same perform 12 month postural (AR 18). 14 15 At step four, the ALJ determined that Plaintiff could not 16 perform his relevant past work as a construction worker. 17 19). 18 education, work experience and RFC and determined that “there 19 were no jobs that existed in significant numbers in the national 20 economy that [Plaintiff] could have performed.” 21 noted that “[Plaintiff’s] limitations prevented the performance 22 of sustained work-related physical activities in a work setting 23 on a regular and continuing basis at any exertional level.” 24 20). 25 Plaintiff was disabled, as defined by the Social Security Act, 26 from At step five, the ALJ considered Plaintiff’s (Id.). (AR age, The ALJ (AR Thus, the ALJ found after the five-step evaluation that January 22, 2011 through February 27 28 20 16, 2012. (AR 20). 1 However, the ALJ then determined that beginning February 17, 2 2012, Plaintiff experienced medical improvement that increased 3 Plaintiff’s RFC, despite retaining all pre-existing impairments. 4 (AR 21-22). 5 Plaintiff’s 6 disability ended as of February 17, 2012. 7 provided the following description of Plaintiff’s increased RFC: Thus, because Plaintiff’s increased RFC improved ability to work, the ALJ found that (AR 21). Plaintiff’s The ALJ then 8 9 [Plaintiff] can lift and/or carry 20 pounds 10 occasionally and 10 pounds frequently; he can stand 11 and/or walk for six hours out of an eight-hour workday 12 with regular breaks; he can sit for six hours out of an 13 eight-hour 14 alternate between 15 intervals; he 16 activities; he 17 ropes, or scaffolds; he is precluded from working at 18 heights, around moving machinery or other hazards; he 19 is 20 hypervigilance or intense concentration on a particular 21 task; and he is precluded from concentrated exposure to 22 extreme temperatures. workday precluded with regular sitting can is and from standing frequently precluded breaks; can one hour perform from performing at he postural climbing ladders, jobs that requires 23 In contrast to the ALJ’s previous disability finding, 24 (AR 22). 25 the ALJ found the objective medical evidence inconsistent with 26 both 27 Plaintiff and his wife regarding the intensity, persistence, and 28 limiting effects of Plaintiff’s symptoms since February 17, 2012. Plaintiff’s testimony and 21 the written statements from As a result, the ALJ found Plaintiff’s subjective 1 (AR 22). 2 complaints were “less than fully credible.” (AR 24.) 3 More 4 specifically, the ALJ took issue with Plaintiff’s 5 statements regarding the severity of the three main impairments 6 allegedly limiting Plaintiff’s ability to work after February 16, 7 2012: the ongoing effects of Plaintiff’s June 5, 2012 surgery on 8 his right knee; Plaintiff’s severe residual fatigue and weakness 9 upon 10 completion depression. of chemotherapy; and Plaintiff’s ongoing (AR 22-24). 11 12 Regarding Plaintiff’s knee surgery, the ALJ disagreed with 13 Plaintiff’s contention that the surgery failed. 14 The ALJ noted Plaintiff’s gait was normal while moving about the 15 hearing room and that Plaintiff did not use an assistive device 16 for ambulation. 17 ALJ during the hearing that he could stand and/or walk for over 18 an hour and vacuum at home. 19 Plaintiff admitted at a post-operative appointment that he could 20 walk five to ten blocks, climb stairs normally, and had only 21 occasional, moderate pain in his knee. (AR 22). (AR 22, 43). Furthermore, Plaintiff admitted to the (Id.). The ALJ also noted that (Id.). 22 23 Similarly, the progress ALJ concluded objective chemotherapy did evidence not for 24 Plaintiff’s 25 Plaintiff’s allegations of continued severe residual fatigue and 26 weakness. 27 records that Plaintiff ever reported such symptoms to a physician 28 during a follow-up appointment, but notes that Plaintiff did in (Id.). following the support The ALJ found no evidence in the medical 22 1 fact on several occasions deny having any ill effects. 2 Further, the ALJ pointed to diagnostic testing that “revealed 3 unremarkable findings” during this period. (Id.). (Id.). 4 5 Lastly, the ALJ found no support in the record for claims 6 that 7 Plaintiff’s depression. 8 occasions, [Plaintiff] described his depression as ‘mild,’ and 9 stated Plaintiff that and his his wife made (Id.). symptoms are regarding the severity of The ALJ noted that “on several infrequent,” and that Plaintiff 10 admitted to not receiving ongoing mental health treatment beyond 11 an initial prescription for medication. 12 acknowledged 13 hospitalized for mental impairments. 14 reasons, 15 Plaintiff 16 fatigue, and pain to be lacking credibility in light of the lack 17 of clinical or diagnostic medical evidence. the the ALJ lack of found continued to any (Id.). evidence testimony experience that The ALJ also Plaintiff (AR 22-23). from For these Plaintiff’s problems with was wife his that memory, (AR 23). 18 19 In finding the Plaintiff’s RFC had increased, the ALJ gave 20 some weight to the opinions of the State non-examining physicians 21 at the reconsideration level, who concluded that “beginning on 22 January 22, 2012, [Plaintiff] could perform work at the light 23 exertional 24 activities; and he was precluded from concentrated exposure to 25 pulmonary 26 However, the ALJ determined that while “this opinion is generally 27 consistent with the totality of the medical evidence . . . this level; irritants he and could occasionally temperature 28 23 perform extremes.” postural (AR 24). 1 opinion does not adequately consider [Plaintiff’s] obesity or his 2 subjective allegations of knee pain and residual fatigue.” 3 4 Taking Plaintiff’s obesity and subjective allegations into 5 consideration, the ALJ assigned Plaintiff a more restrictive, and 6 thus more favorable, RFC to accommodate the deficiencies the ALJ 7 perceived in the opinions of the non-examining physicians. 8 22, 24). 9 with an increased RFC, Plaintiff was still unable to perform his (AR Returning to step four, the ALJ determined that even 10 relevant past work as a construction worker. 11 step five, the ALJ considered Plaintiff’s age, education, work 12 experience, and increased RFC. 13 testimony of a vocational expert, the ALJ found that there were 14 jobs existing in significant numbers in the national economy that 15 Plaintiff could 16 cashier, garment 17 Accordingly, 18 disabled as of February 17, 2012. the perform as sorter, ALJ (AR 25). of February and that At Based in part on the 17, production determined (AR 24-25). 2012, such solderer. Plaintiff was as a (Id.). no longer (Id.). 19 20 VI. 21 STANDARD OF REVIEW 22 23 Under 42 U.S.C. § 405(g), a district court may review the 24 Commissioner’s decision to deny benefits. 25 aside the Commissioner’s decision when the ALJ’s findings are 26 based on legal error or are not supported by substantial evidence 27 in the record as a whole. Aukland v. Massanari, 257 F.3d 1033, 28 1035 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1097); Smolen 24 The court may set 1 v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing Fair v. 2 Bowen, 885 F.2d 597, 601 (9th Cir. 1989)). 3 “Substantial evidence is more than a scintilla, but less 4 5 than a preponderance.” 6 v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)). 7 evidence which a reasonable person might accept as adequate to 8 support a conclusion.” Id. (citing Jamerson, 112 F.3d at 1066; 9 Smolen, 80 F.3d at Reddick, 157 F.3d at 720 (citing Jamerson 1279). To determine It is “relevant whether substantial 10 evidence supports a finding, the court must “‘consider the record 11 as a whole, weighing both evidence that supports and evidence 12 that detracts from the [Commissioner’s] conclusion.’” 13 257 F.3d at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th 14 Cir. 15 affirming 16 substitute its judgment for that of the Commissioner. 17 157 F.3d at 720-21 (citing Flaten v. Sec’y, 44 F.3d 1453, 1457 18 (9th Cir. 1995)). 1993)). or If the evidence reversing that can reasonably conclusion, the Aukland, support court either may not Reddick, 19 20 VII. 21 DISCUSSION 22 23 Plaintiff contends the ALJ “erred in holding that 24 Plaintiff’s disability ended on February 16, 2012.” 25 in Support of Plaintiff’s Complaint (“MSPC”) at 2). 26 makes two specific challenges to the ALJ’s decision. 27 Plaintiff argues that pursuant to Social Security Ruling (“SSR”) 28 96-8p (“the Ruling”), the second RFC assessment that led to the 25 (Memorandum Plaintiff First, 1 determination of non-disability is erroneous because “the ALJ 2 failed to provide a proper narrative discussion describing how 3 the evidence supports her conclusion that Plaintiff became able 4 to perform a limited range of light work on February 17, 2012.” 5 (Id. at 3) (citing SSR 96-8p, 1996 WL 374184). 6 claims that also pursuant to the Ruling, “the ALJ failed to 7 resolve the numerous ambiguities present in the medical evidence 8 that she relied on in reaching her decision.” Second, Plaintiff (Id. at 5). 9 10 The Court disagrees with Plaintiff on both grounds. The ALJ 11 provided substantial evidence to support her RFC assessment and 12 provided clear and convincing reasons for finding Plaintiff’s 13 subjective testimony less than fully credible. 14 that the medical evidence after February 17, 2012 presented any 15 material ambiguities, the ALJ properly discussed and resolved 16 them with citations to substantial evidence from the objective 17 medical record. 18 the ALJ’s decision must be AFFIRMED. To the extent Accordingly, for the reasons discussed below, 19 20 A. The ALJ Adequately Supported Her RFC Assessment 21 22 Plaintiff contends the ALJ did not properly support her RFC 23 assessment because the decision “relies on a handful of clinical 24 observations 25 condition improved” as of February 17, 2012. 26 Court disagrees, and finds the ALJ supported her RFC assessment 27 with extensive citation to and discussion of both medical and 28 nonmedical evidence contained in the record. that may or may not 26 indicate that Plaintiff’s (MSPC at 3). The 1 1. SSR 96-8P And The Relevant Legal Standard 2 3 The Ruling provides that the RFC assessment “is a function- 4 by-function assessment based upon all of the relevant evidence of 5 an individual's ability to do work-related activities,” which 6 also 7 evidence supports each conclusion....” 8 at 3-7. 9 facts (e.g., laboratory findings) and nonmedical evidence (e.g., 10 daily activities, observations),” and address “the individual's 11 ability to perform sustained work activities in an ordinary work 12 setting on a regular and continuing basis (i.e., 8 hours a day, 13 for 5 days a week, or an equivalent work schedule).” 14 In addition, the ALJ must “describe the maximum amount of each 15 work-related activity the individual can perform based on the 16 evidence available in the case record.” “must include a narrative discussion describing how the SSR 96-8p, 1996 WL 374184 In particular, the ALJ must “cit[e] specific medical (Id. at 7). (Id.). 17 18 When discussing cases in which subjective symptoms, such as 19 pain, are alleged, the RFC assessment “must include a discussion 20 of 21 restrictions can or cannot reasonably be accepted as consistent 22 with the medical and other evidence.” 23 considering medical opinions, “[i]f the RFC assessment conflicts 24 with 25 explain why the opinion was not adopted.” 26 source’s medical opinion on an issue of the nature and severity 27 of an individual’s impairment(s) is well-supported by medically 28 acceptable clinical and laboratory diagnostic techniques and is why an reported opinion symptom-related from a medical 27 functional limitations (Id.). source, the and Similarly, when adjudicator (Id.). must “If a treating 1 not inconsistent with the other substantial evidence in the case 2 record, the adjudicator must give it controlling weight.” (Id.). 3 4 SSR rulings are binding on an ALJ. 20 C.F.R. 5 § 402.35(b)(1). When the ALJ fails to identify specific reasons 6 for findings, 7 record, the Court cannot affirm an ALJ’s determination “even if 8 the ALJ had given facially legitimate reasons for his . . . 9 finding, [because] the complete lack of meaningful explanation 10 gives [the Court] nothing with which to assess its legitimacy.” 11 Robbins v. Soc. Sec. Admin., 466 F.3d 880, 884 (9th Cir. 2006). the stated supported by evidence in the case 12 13 2. Substantial Evidence Supports The ALJ’s Finding 14 That Plaintiff Was Not Disabled Beginning February 15 17, 2012 16 17 The Court finds the ALJ supported her finding that Plaintiff 18 was no longer disabled after February 17, 2012 with substantial 19 evidence. 20 condition and continuing limitations as of February 16, 2012, and 21 also 22 conflicting 23 medical opinions. The discussed ALJ how evidence provided she evidence reconciled from of her Plaintiff’s Plaintiff’s conclusions own testimony improved with or any other 24 25 As 26 “specific 27 improved. required medical by the Ruling, the facts” that show SSR 96-8p, 1996 WL 374184 at 7. 28 28 ALJ cited Plaintiff’s to several condition The ALJ stated: 1 The evidence shows [Plaintiff] completed chemotherapy 2 in 3 remission, and his condition has been stable since he 4 completed 5 developed a deep vein thrombosis during the course of 6 his 7 blood 8 despite 9 weight before he began his chemotherapy treatments, 10 the record demonstrates he regained weight during and 11 after his treatment. 12 February 13 complaints; 14 generally 15 diagnostic 16 generally normal findings. October 2011. cancer [Plaintiff’s] treatments. chemotherapy, thinners the and went into [Plaintiff] [Plaintiff’s] Additionally, [Plaintiff] initially lost At a follow-up appointment on [Plaintiff] physical unremarkable testing 2012, discontinued. that 2012, Although February were fact 16, by cancer stated he examination findings. after had no revealed Similarly, February 2012[] revealed 17 The ALJ went on to note that “[a] 18 (AR 21) (citations omitted). 19 PET scan performed in February 2012, demonstrated [Plaintiff] had 20 persistent, 21 “[l]aboratory testing from February 16, 2012, revealed benign 22 findings.” 23 and June 2012 showed [Plaintiff’s] white blood count was slightly 24 elevated; but the results were otherwise unremarkable.” 25 447). 26 revealed Plaintiff “had a single left inguinal lymph node, with 27 low-grade 28 studies” but nonmetabolicaly (AR 23, 453). active lymph nodes” and Also, “[l]aboratory testing from May (AR 23, The ALJ finally noted that a July 30, 2012 PET scan metabolic and a CT activity scan from that was not present the same day “reconfirmed 29 in prior that 1 several of [Plaintiff’s] lymph nodes had significantly diminished 2 in size after chemotherapy.” (AR 23-24, 644). 3 4 The ALJ also discussed relevant “nonmedical evidence,” such 5 as Plaintiff’s daily activities and the ALJ’s own observations of 6 Plaintiff. 7 noted that “during the hearing, [Plaintiff] admitted that as of 8 February 2012, he only sees his physician every three months.” 9 (AR 21). SSR 96-8p, 1996 WL 374184 at 7. Regarding Plaintiff’s knee For example, the ALJ pain, which Plaintiff 10 alleged was severe following an unsuccessful surgery, the ALJ 11 observed Plaintiff “ambulate around the hearing room,” and noted 12 that Plaintiff’s “gait was normal and he did not use an assistive 13 device for ambulation.” 14 that Plaintiff admitted at the hearing “he was able to stand 15 and/or walk for over an hour, and he acknowledged he was able to 16 vacuum.” 17 August 13, 2012 appointment, where he “admitted that he was able 18 to walk five to 10 blocks; he could climb stairs normally; and he 19 stated he had only occasional moderate pain in his knee.” 20 22, 638). (Id.). (AR 22). Moreover, the ALJ stressed Plaintiff made similar statements during an (AR 21 22 In addition, the ALJ properly considered “[Plaintiff’s] 23 ability to perform sustained work activities in an ordinary work 24 setting on a regular and continuing basis ([such as] 8 hours a 25 day, for 5 days a week, or an equivalent work schedule).” 26 96-8p, 1996 WL 374184 at 7. 27 amount can perform 28 based on the evidence available in the case record.” (Id.). of each work-related SSR The ALJ also described “the maximum activity 30 [Plaintiff] 1 Specifically, the ALJ performed a separate analysis of steps four 2 and five in the five-step evaluation process after determining 3 Plaintiff’s increased RFC. 4 step four that Plaintiff was still unable to perform his relevant 5 past work as a construction worker. 6 ALJ 7 unskilled and light work. concluded Plaintiff (AR 24-25). could The ALJ concluded at (AR 24). perform At step five, the a limited range of (AR 25-26). 8 9 The ALJ supported her findings at both steps by relying in 10 part on the testimony of Ms. Porter, a vocational expert. 11 48-53). 12 vocational 13 “contain[ing] 14 supported by substantial evidence in the record.” 15 Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). 16 may rely on a vocational expert’s testimony regarding the number 17 of relevant jobs in the national economy, as “[a]n ALJ may take 18 administrative notice of any reliable job information, including 19 information provided by a [vocational expert].” 20 (citing Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995)). An ALJ may expert all properly where the rely the limitations on ALJ the the testimony poses ALJ a (AR of a hypothetical found credible and Bayliss v. Moreover, an ALJ Id. at 1218 21 22 At step four, the ALJ confirmed with Ms. Porter that 23 Plaintiff 24 worker. 25 whether jobs existed in the national economy for an individual 26 with Plaintiff’s age, education, work experience and RFC. 27 48-49). 28 Porter to consider, ranging from jobs requiring light to medium could not (AR 49). perform his past work as a construction At step five, the ALJ next asked Ms. Porter (AR The ALJ specified six different hypotheticals for Ms. 31 1 work; both with and without a sit/stand option; and accommodating 2 brief breaks each day and absences each week due to chronic pain 3 and ongoing medical treatment. 4 testified that an individual sharing Plaintiff’s age, education, 5 experience 6 light, unskilled work with a sit/stand option, such as a cashier, 7 garment sorter, and production solderer. 8 that 9 opportunity for short daily breaks and weekly absences, as a and Plaintiff mental could and (AR 48-52). physical perform medium Ms. Porter then limitations (AR 51). work, but could perform She testified also with the 10 laundry laborer, hospital cleaner, and industrial cleaner. 11 52). 12 unskilled work, allowing for similar breaks and absences, as a 13 sales attendant, mail clerk, and router. 14 also noted that all of these jobs existed in significant numbers 15 in the national economy and in Plaintiff’s local economy. 16 49-53). 17 that “beginning February 17, 2012, [Plaintiff] has been capable 18 of 19 significant numbers in the national economy.” (AR Finally, she testified that Plaintiff could perform light, (AR 52-53). Ms. Porter (AR The ALJ accepted Ms. Porter’s testimony and concluded making a successful adjustment 20 21 22 23 24 25 26 27 28 32 to work that (AR 26). exists in 1 3. The ALJ Cited Clear And Convincing Reasons For Finding 2 Plaintiff’s 3 Subjective Allegations Less Than Fully Credible 4 5 The ALJ emphasized that Plaintiff’s subjective testimony 6 regarding the severity and limitations of his symptoms as of 7 February 17, 2012 “cannot reasonably be accepted as consistent 8 with the medical and other evidence,” as required by the Ruling. 9 SSR 96-8p, 1996 WL 374184 at 7. 10 11 When assessing the credibility of a claimant, the ALJ must 12 engage in a two-step analysis. 13 1112 (9th Cir. 2012). 14 medical evidence of an impairment that could reasonably produce 15 the symptoms alleged. (Id.). Then, if there is, in order to 16 reject the must 17 findings. 18 may use “ordinary techniques of credibility evaluation.” 19 613 F.3d at 1224 (internal quotations omitted). The ALJ may also 20 consider any inconsistencies in the claimant’s conduct and any 21 inadequately or unexplained failure to pursue treatment or follow 22 treatment. 23 2008). 24 testimony where his normal activities can transfer to the work 25 setting. 26 (9th 27 underlying impairment. the First, the ALJ must determine if there is testimony, (Id.). ALJ make specific credibility In assessing the claimant’s testimony, the ALJ Turner, Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. Additionally, Cir. Molina v. Astrue, 674 F.3d 1104, the ALJ may discredit the claimant’s Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 600 1999). Here, there was medical evidence of an However, the ALJ articulated specific, 28 33 Plaintiff’s 1 clear 2 testimony about the severity of her physical and mental symptoms. and convincing reasons for discounting 3 The ALJ first summarized Plaintiff’s allegations of symptom- 4 5 related 6 statements, noting specifically Plaintiff’s claims of limitations 7 caused 8 depression. 9 testified he had an unsuccessful right knee surgery in 2012, and 10 he continued to have severe knee pain . . . [Plaintiff] alleged 11 he continued to have severe residual fatigue and weakness after 12 he completed his chemotherapy . . . [and Plaintiff] and his wife 13 alleged he has severe depression.” functional by the limitations knee (AR surgery, 22-23). in his testimony post-chemotherapy The ALJ noted and written treatment, that and “[Plaintiff (AR 22). 14 15 Then, the ALJ contrasted those subjective symptoms with 16 evidence from the medical record to support the conclusion that 17 “the claimant’s allegations concerning the intensity, persistence 18 and limiting effects of his symptoms are less than fully credible 19 since February 17, 2012.” 20 the ALJ noted that although Plaintiff alleged his surgery failed 21 and still caused severe pain, he presented at the hearing with a 22 normal gait and without an assistive device. 23 Plaintiff “admitted he was able to stand and/or walk for over an 24 hour, 25 Plaintiff made similar statements at a post-operative appointment 26 and stated he only had occasional, moderate pain in the knee. 27 (Id.). and he acknowledged (AR 22). he was 28 34 Regarding Plaintiff’s knee, able to (AR 22). vacuum.” Moreover, (Id.). The Court agrees with the ALJ’s finding that Plaintiff’s 1 2 limited 3 subjective testimony. 4 medications for his depression, “there is no evidence [Plaintiff] 5 was ever hospitalized for his mental impairments and he admitted 6 he has not received ongoing mental health treatments,” and that 7 “[o]n several occasions, [Plaintiff] described his depression as 8 “mild,” and stated that his symptoms are infrequent.” 9 23). pursuit of mental health treatment undermined his The ALJ noted although Plaintiff received (AR 22- Were Plaintiff’s symptoms as severe as he claimed, it seems 10 likely that he would have needed and sought treatment more often 11 than the record reflects, as he sought treatment for his other 12 medical 13 reliance on and citation to Plaintiff’s failure to seek more 14 treatment, 15 subjective testimony, was proper. 16 1039 (an ALJ may consider many factors in weighing a claimant’s 17 credibility, 18 failure to seek treatment”) (internal quotation marks omitted). 19 Where, as here, “a claimant[] fail[s] to assert a good reason for 20 not seeking treatment,” an ALJ may consider this inaction as 21 “cast[ing] doubt on the sincerity of the claimant’s” subjective 22 testimony. problems. as part Further, of including the as a matter ALJ’s of evaluation law, of the ALJ’s Plaintiff’s See Tommasetti, 533 F.3d at “unexplained or inadequately explained Molina, 674 F.3d at 1113). 23 24 The ALJ discussed allegations similar of ongoing reasons severe for discrediting 25 Plaintiff’s fatigue 26 chemotherapy treatment. 27 clinical and diagnostic findings since February 17, 2012 . . . do 28 not support more restrictive functional limitations than those following The ALJ noted “the positive objective 35 1 assessed herein.” 2 Plaintiff’s 3 Plaintiff’s cancer was in complete remission and that Plaintiff 4 was “doing well [and] . . . had no complaints” at a February 16, 5 2012 appointment. 6 with evidence of unremarkable physical examinations and PET-CT 7 scans ranging from February 2012 to late July 2012. 8 ALJ 9 written statements from Plaintiff’s wife regarding Plaintiff’s 10 also treating used condition. (Id.). physician, (Id.). these The ALJ pointed to the opinion of Dr. Andavolu, who noted The ALJ also supported her findings findings to discredit The testimony the (Id.). and (AR 23). 11 12 The ALJ also properly discounted Plaintiff’s wife’s 13 testimony either 14 testimony (which, 15 discounted), 16 evidence, or for other reasons germane to the witness, i.e., that 17 as a lay witness she was not competent to render a diagnosis 18 about Plaintiff. her because for it was reasons testimony was identical stated to above, inconsistent Plaintiff’s was with properly the medical 19 20 For the above reasons, the Court finds the ALJ amply 21 supported the determination that Plaintiff experienced medical 22 improvement and an increased RFC as a result. 23 finds 24 discounting Plaintiff’s subjective testimony, as well as that of 25 Plaintiff’s wife. the ALJ provided clear 26 27 28 36 and The Court also convincing reasons for 1 B. 2 The ALJ Properly Discussed And Resolved Any Material Ambiguities In The Evidence 3 4 Plaintiff claims that the “numerous ALJ erred by finding non- 5 disability 6 evidence] which the ALJ’s decision failed to address.” 7 3). 8 not, “explain how any material inconsistencies or ambiguities in 9 the evidence in the case record were considered and resolved.” despite ambiguities [in the medical (MSPC at According to Plaintiff, the ALJ was obligated to, but did 10 (MSPC at 3-5) (citing SSR 96-8p, 1996 WL 374184 at 7). 11 disagrees 12 ambiguities, and finds that to the extent the medical evidence 13 created 14 resolved them with substantial evidence. that any the ALJ ambiguities, failed the to ALJ’s address any decision The Court material addressed and 15 16 An ALJ has a duty to develop the record “only when there is 17 ambiguous evidence or when the record is inadequate to allow for 18 proper evaluation of the evidence.” 19 1047, 1055 (9th Cir. 2012) (quoting Mayes v. Massanari, 276 F.3d 20 453, 21 requires the ALJ to recontact the treating physician to clarify 22 or amplify the reports if the medical evidence is insufficient. 23 Tonapetyan v. Halter, 242 F.3d 1144, 1151 (9th Cir. 2001). 459–60 (9th Cir. 2001). Ludwig v. Astrue, 681 F.3d More specifically, that duty 24 25 If the ALJ fails to develop the record despite ambiguous or 26 inadequate 27 social security disability cases are subject to the same harmless 28 error rule as generally applies to civil cases. medical evidence, the 37 Ninth Circuit has held that Ludwig, 681 F.3d 1 at 2 Cir.2011)). 3 evidence might have been obtained had there not been error, but 4 does 5 prejudice.’” 1054 (citing have McLeod Plaintiff to show v. Astrue, “need at not least 640 F.3d necessarily a 881, show ‘substantial 887 what (9th other likelihood of McLeod, 640 F.3d at 888. 6 7 Here, Plaintiff claims the ALJ failed to resolve several 8 ambiguities, 9 substantial likelihood of prejudicing Plaintiff, assuming any of but does not explain how any of them had a 10 Plaintiff’s observations identified ambiguities at all. 11 3-5). 12 appointments 13 subjective complaints and was found to have few ongoing symptoms 14 caused by his impairments,” despite “other treatment records from 15 the time period in question indicat[ing] that Plaintiff continued 16 to suffer from symptoms and limitations caused by his Hodgkin’s 17 lymphoma . . .” 18 follow-up appointments after February 16, 2012, Plaintiff still 19 reported “symptoms of moderate intensity, which were aggravated 20 by walking and relieved by ‘lying perfectly still.’” 21 4). (MSPC at For example, the ALJ observed that “during several medical after February 17, (MSPC at 3). 2012, Plaintiff reported no Plaintiff claims that during two (Id. at 3- 22 23 Similarly, Plaintiff contends that physical examinations 24 that found back pain and reduced range of motion during these 25 same appointments are evidence of unaddressed ambiguities that 26 nonetheless influenced the ALJ’s decision. 27 also alleges that despite the ALJ’s overall finding of medical 28 improvement as of February 17, 38 2012, “[o]n (Id.). August Plaintiff 14, 2012, 1 Plaintiff was diagnosed with peripheral neuropathy and prescribed 2 Neurontin (Gabapentin).” 3 to 4 notes 5 completion of his final chemotherapy treatment. 6 that the ALJ’s finding of increased RFC recognized “by February 7 2012, [Plaintiff’s] blood thinners were discontinued” but records 8 from the Cancer Center at that time state both that “Plaintiff 9 discontinued Coumadin 2 weeks ago” and that “he continues on 10 inconsistencies reflecting Coumadin.” in his (Id. at 5). the Cancer Lastly, Plaintiff points Center’s appointments at “Interval History” Center following the Plaintiff notes (MSPC at 4; AR 451). 11 12 The Court concludes that Plaintiff fails to demonstrate how 13 these observations demonstrate the medical record was inadequate 14 or insufficient to allow for a proper evaluation of Plaintiff’s 15 condition as of February 17, 2012. 16 contrary to an ALJ’s decision does not by itself establish that 17 the 18 otherwise prejudicial to Plaintiff. 19 Stone 20 assertion of an issue does not preserve a claim[]”) (internal 21 quotation marks omitted). decision is Magazine, unsupported 270 F.3d by 793, Identifying evidence that is substantial 793 evidence or is See D.A.R.E. Am. v. Rolling (9th Cir. 2001) (“A bare 22 23 Moreover, even if Plaintiff’s observations presented true 24 medical inconsistencies, such that the ALJ failed to address and 25 resolve them, the ALJ nonetheless provided enough evidence in 26 support of the non-disability finding that the errors would have 27 been harmless. 28 39 For 1 example, the ALJ’s RFC assessment provided several 2 specific references to objective medical evidence indicating that 3 Plaintiff 4 2012, all of which were noted “after careful consideration of the 5 entire 6 allegedly inconsistent notations regarding Plaintiff’s Coumadin 7 prescription, 8 clearly 9 Andavolu’s 10 Plaintiff’s 11 451). experienced record.” medical Though the ALJ’s indicates that treatment Coumadin improvement Plaintiff review no notes points of such from prescription as the of to February will Cancer “entire inconsistency 16, be February 17, Center’s record” more existed. 2012 Dr. state that discontinued. (AR 12 13 At subsequent medical appointments starting at least in 14 March, 15 medications. 16 medications at appointments on March 5, March 28, April 4, May 9, 17 June 12, and August 20, 2012. 18 Considering 19 conclusion that Plaintiff’s medical condition improved, the Court 20 does not view the alleged ongoing presence of Coumadin as a 21 dispositive fact that Plaintiff continued to suffer from severe 22 fatigue and weakness after February 2012. 23 evidence supports the inference that any lasting ambiguity over 24 Plaintiff’s Coumadin prescription after February 2012 is caused 25 only 26 Accordingly, in light of the above evidence provided by the ALJ, 2012, by an Plaintiff did (AR 413). Coumadin is not listed under Plaintiff’s the ample oversight not other in list Coumadin as one of his (AR 413, 405, 402, 394, 384, 633). evidence Cancer 27 28 40 supporting the ALJ’s If anything, such Center’s medical notes. 1 the 2 Plaintiff to be harmless and insufficient to overcome the ALJ’s 3 increased RFC assessment and non-disability finding. Court finds the alleged inconsistencies identified by 4 5 In sum, the ALJ’s RFC assessment properly satisfied 6 narrative 7 the evidence to resolve any inconsistencies raised by Plaintiff. discussion requirement and provided substantial 8 9 III. 10 CONCLUSION 11 12 13 Consistent with the foregoing, IT IS ORDERED that Judgment be entered AFFIRMING the decision of the Commissioner. 14 15 DATED: November 13, 2014 /S/ __________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 16 17 18 19 NOTICE 20 THIS DECISION IS NOT INTENDED FOR PUBLICATION IN WESTLAW, 21 LEXIS, OR ANY OTHER LEGAL DATABASE. 22 23 24 25 26 27 28 41
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