Steven Hernandez Jr v. Carolyn W Colvin, No. 5:2014cv00321 - Document 19 (C.D. Cal. 2016)

Court Description: DECISION AND ORDER by Magistrate Judge Victor E Bianchini. (See Order for complete details.) IT IS THEREFORE ORDERED that: Judgment be entered AFFIRMING the Commissioner's decision; and The Clerk of the Court shall file this Decision and Order, serve copies upon counsel for the parties, and CLOSE this case. (wr)

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Steven Hernandez Jr v. Carolyn W Colvin Doc. 19 O 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 CENTRAL DISTRICT OF CALIFORNIA 7 Case No. EDCV14-00321-VEB 8 STEVEN HERNANDEZ, JR., 9 DECISION AND ORDER Plaintiff, 10 vs. 11 12 13 CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. 14 I. INTRODUCTION 15 In September of 2010, Plaintiff Steven Hernandez, Jr. applied for Disability 16 Insurance Benefits under the Social Security Act. The Commissioner of Social 17 Security denied the application. Plaintiff, represented by Bill LaTour, Esq., 18 19 20 1 DECISION AND ORDER – HERNANDEZ v COLVIN 14-CV-03195-VEB Dockets.Justia.com 1 commenced this action seeking judicial review of the Commissioner’s partial denial 2 of benefits pursuant to 42 U.S.C. §§ 405 (g) and 1383 (c)(3). 3 The parties consented to the jurisdiction of a United States Magistrate Judge. 4 (Docket No. 9, 10). On December 28, 2015, this case was referred to the 5 undersigned pursuant to General Order 05-07. (Docket No. 18). 6 7 II. BACKGROUND 8 Plaintiff applied for benefits on September 27, 2010, alleging disability 9 beginning May 4, 2009, due to various physical impairments. (T at 59).1 The 10 application was denied initially and on reconsideration. Plaintiff requested a hearing 11 before an Administrative Law Judge (“ALJ”). On January 20, 2012, a hearing was 12 held before ALJ Mark Greenberg. (T at 30). Plaintiff appeared with his attorney and 13 testified. (T at 33-47). The ALJ also received testimony from Gloria Lasoff, a 14 vocational expert (T at 48-53). 15 On January 27, 2012, the ALJ issued a written decision denying the 16 application for benefits. 17 Commissioner’s final decision on January 10, 2014, when the Appeals Council 18 denied Plaintiff’s request for review. (T at 1-3). 19 1 20 (T at 11-28). The ALJ’s decision became the Citations to (“T”) refer to the administrative record at Docket No. 14. 2 DECISION AND ORDER – HERNANDEZ v COLVIN 14-CV-03195-VEB 1 On February 20, 2014, Plaintiff, acting by and through his counsel, filed this 2 action seeking judicial review of the Commissioner’s decision. (Docket No. 3). The 3 Commissioner interposed an Answer on August 27, 2014. (Docket No. 13). The 4 parties filed a Joint Stipulation on November 24, 2014. (Docket No. 17). 5 After reviewing the pleadings, Joint Stipulation, and administrative record, 6 this Court finds that the Commissioner’s decision should be affirmed and this case 7 be dismissed. 8 9 10 III. DISCUSSION A. Sequential Evaluation Process 11 The Social Security Act (“the Act”) defines disability as the “inability to 12 engage in any substantial gainful activity by reason of any medically determinable 13 physical or mental impairment which can be expected to result in death or which has 14 lasted or can be expected to last for a continuous period of not less than twelve 15 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a 16 claimant shall be determined to be under a disability only if any impairments are of 17 such severity that he or she is not only unable to do previous work but cannot, 18 considering his or her age, education and work experiences, engage in any other 19 substantial work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 20 3 DECISION AND ORDER – HERNANDEZ v COLVIN 14-CV-03195-VEB 1 1382c(a)(3)(B). Thus, the definition of disability consists of both medical and 2 vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). 3 The Commissioner has established a five-step sequential evaluation process 4 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520, 416.920. Step 5 one determines if the person is engaged in substantial gainful activities. If so, 6 benefits are denied. 20 C.F.R. §§ 404. 1520(a)(4)(i), 416.920(a)(4)(i). If not, the 7 decision maker proceeds to step two, which determines whether the claimant has a 8 medially severe impairment or combination of impairments. 20 C.F.R. §§ 9 404.1520(a)(4)(ii), 416.920(a)(4)(ii). 10 If the claimant does not have a severe impairment or combination of 11 impairments, the disability claim is denied. If the impairment is severe, the 12 evaluation proceeds to the third step, which compares the claimant’s impairment(s) 13 with a number of listed impairments acknowledged by the Commissioner to be so 14 severe as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii), 15 416.920(a)(4)(iii); 20 C.F.R. § 404 Subpt. P App. 1. If the impairment meets or 16 equals one of the listed impairments, the claimant is conclusively presumed to be 17 disabled. If the impairment is not one conclusively presumed to be disabling, the 18 evaluation proceeds to the fourth step, which determines whether the impairment 19 prevents the claimant from performing work which was performed in the past. If the 20 4 DECISION AND ORDER – HERNANDEZ v COLVIN 14-CV-03195-VEB 1 claimant is able to perform previous work, he or she is deemed not disabled. 20 2 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At this step, the claimant’s residual 3 functional capacity (RFC) is considered. If the claimant cannot perform past relevant 4 work, the fifth and final step in the process determines whether he or she is able to 5 perform other work in the national economy in view of his or her residual functional 6 capacity, age, education, and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 7 416.920(a)(4)(v); Bowen v. Yuckert, 482 U.S. 137 (1987). 8 The initial burden of proof rests upon the claimant to establish a prima facie 9 case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th 10 Cir. 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden 11 is met once the claimant establishes that a mental or physical impairment prevents 12 the performance of previous work. The burden then shifts, at step five, to the 13 Commissioner to show that (1) plaintiff can perform other substantial gainful 14 activity and (2) a “significant number of jobs exist in the national economy” that the 15 claimant can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). 16 B. Standard of Review 17 Congress has provided a limited scope of judicial review of a Commissioner’s 18 decision. 42 U.S.C. § 405(g). A Court must uphold a Commissioner’s decision, 19 made through an ALJ, when the determination is not based on legal error and is 20 5 DECISION AND ORDER – HERNANDEZ v COLVIN 14-CV-03195-VEB 1 supported by substantial evidence. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 2 1985); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). 3 “The [Commissioner’s] determination that a plaintiff is not disabled will be 4 upheld if the findings of fact are supported by substantial evidence.” Delgado v. 5 Heckler, 722 F.2d 570, 572 (9th Cir. 1983)(citing 42 U.S.C. § 405(g)). Substantial 6 evidence is more than a mere scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119 7 n 10 (9th Cir. 1975), but less than a preponderance. McAllister v. Sullivan, 888 F.2d 8 599, 601-02 (9th Cir. 1989). Substantial evidence “means such evidence as a 9 reasonable mind might accept as adequate to support a conclusion.” Richardson v. 10 Perales, 402 U.S. 389, 401 (1971)(citations omitted). “[S]uch inferences and 11 conclusions as the [Commissioner] may reasonably draw from the evidence” will 12 also be upheld. Mark v. Celebreeze, 348 F.2d 289, 293 (9th Cir. 1965). On review, 13 the Court considers the record as a whole, not just the evidence supporting the 14 decision of the Commissioner. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 15 1989)(quoting Kornock v. Harris, 648 F.2d 525, 526 (9th Cir. 1980)). 16 It is the role of the Commissioner, not this Court, to resolve conflicts in 17 evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational 18 interpretation, the Court may not substitute its judgment for that of the 19 Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th 20 6 DECISION AND ORDER – HERNANDEZ v COLVIN 14-CV-03195-VEB 1 Cir. 1984). Nevertheless, a decision supported by substantial evidence will still be 2 set aside if the proper legal standards were not applied in weighing the evidence and 3 making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 4 432, 433 (9th Cir. 1987). Thus, if there is substantial evidence to support the 5 administrative findings, or if there is conflicting evidence that will support a finding 6 of either disability or non-disability, the finding of the Commissioner is conclusive. 7 Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 8 C. Commissioner’s Decision 9 The ALJ determined that Plaintiff had not engaged in substantial gainful 10 activity since May 4, 2009 (the alleged onset date) and met the insured status 11 requirements of the Social Security Act through December 31, 2012. (T at 16). The 12 ALJ found that Plaintiff’s degenerative disc disease with failed back syndrome post 13 fusion and history of reported seizures were “severe” impairments under the Act. 14 (Tr. 16). 15 However, the ALJ concluded that Plaintiff did not have an impairment or 16 combination of impairments that met or medically equaled one of the impairments 17 set forth in the Listings. (T at 16). 18 The ALJ determined that Plaintiff retained the residual functional capacity 19 (“RFC”) to perform sedentary work as defined in 20 CFR § 416.967 (a), as follows: 20 7 DECISION AND ORDER – HERNANDEZ v COLVIN 14-CV-03195-VEB 1 he can lift/carry 10 pounds occasionally and less than 10 pounds frequently; he can 2 stand/walk for 6 hours in an 8-hour workday with regular breaks; he can sit for 6 3 hours in an 8-hour workday with regular breaks; he needs a sit/stand option every 20 4 to 30 minutes as needed; he has no limitation as to pushing or pulling; he can 5 perform occasional stooping, kneeling, crouching, crawling or balancing; he cannot 6 climb ladders, ropes, or scaffolds; he must avoid hazards and environments with 7 vibrations; and he must avoid concentrated extremes of cold or humidity. (T at 17). 8 The ALJ found that Plaintiff could not perform his past relevant work as a 9 store laborer, sales clerk, library helper, vehicle washer, waiter, or bell captain. (T at 10 22). Considering Plaintiff’s age (33 on the alleged onset date), education (at least 11 high school), work experience, and residual functional capacity, the ALJ determined 12 that there were jobs that exist in significant numbers in the national economy that 13 Plaintiff can perform. (T at 22). 14 As such, the ALJ found that Plaintiff was not entitled to benefits under the 15 Social Security Act from May 4, 2009 (the alleged onset date) through January 27, 16 2012 (the date of the ALJ’s decision). (T at 23-24). As noted above, the ALJ’s 17 decision became the Commissioner’s final decision when the Appeals Council 18 denied Plaintiff’s request for review. (T at 1-6). 19 20 8 DECISION AND ORDER – HERNANDEZ v COLVIN 14-CV-03195-VEB 1 D. Disputed Issues 2 As set forth in the parties’ Joint Stipulation (Docket No. 17), Plaintiff offers 3 two (2) arguments in support of his claim that the Commissioner’s decision should 4 be reversed. First, he contends that the ALJ did not properly weigh the medical 5 opinion evidence. Second, Plaintiff challenges the ALJ’s credibility determination. 6 This Court will address both arguments in turn. 7 8 9 IV. ANALYSIS A. Medical Opinion Evidence 10 In disability proceedings, a treating physician’s opinion carries more weight 11 than an examining physician’s opinion, and an examining physician’s opinion is 12 given more weight than that of a non-examining physician. Benecke v. Barnhart, 13 379 F.3d 587, 592 (9th Cir. 2004); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 14 1995). If the treating or examining physician’s opinions are not contradicted, they 15 can be rejected only with clear and convincing reasons. Lester, 81 F.3d at 830. If 16 contradicted, the opinion can only be rejected for “specific” and “legitimate” reasons 17 that are supported by substantial evidence in the record. Andrews v. Shalala, 53 F.3d 18 1035, 1043 (9th Cir. 1995). Historically, the courts have recognized conflicting 19 medical evidence, and/or the absence of regular medical treatment during the alleged 20 9 DECISION AND ORDER – HERNANDEZ v COLVIN 14-CV-03195-VEB 1 period of disability, and/or the lack of medical support for doctors’ reports based 2 substantially on a claimant’s subjective complaints of pain, as specific, legitimate 3 reasons for disregarding a treating or examining physician’s opinion. Flaten v. 4 Secretary of Health and Human Servs., 44 F.3d 1453, 1463-64 (9th Cir. 1995). 5 An ALJ satisfies the “substantial evidence” requirement by “setting out a 6 detailed and thorough summary of the facts and conflicting clinical evidence, stating 7 his interpretation thereof, and making findings.” Garrison v. Colvin, 759 F.3d 995, 8 1012 (9th Cir. 2014)(quoting Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)). 9 “The ALJ must do more than state conclusions. He must set forth his own 10 interpretations and explain why they, rather than the doctors,’ are correct.” Id. 11 In this case, Dr. Sam Lin, Plaintiff’s treating physician, completed a Medical 12 Source Statement Concerning the Nature and Severity of an Individual’s Physical 13 Impairment in January of 2012. 14 monthly since May of 2009. He diagnosed low back pain due to failed back surgery 15 and characterized Plaintiff’s prognosis as “poor.” (T at 531). He noted that Plaintiff 16 suffered from chronic pain, fatigue, and limited mobility, and was unable to bend, 17 stoop, or kneel. (T at 531). On a scale of 1-10, Dr. Lin rated Plaintiff’s level of pain 18 as a 9 and level of fatigue as a 7. (T at 531). Dr. Lin opined that Plaintiff could sit 19 for 0-2 hours in an 8-hour workday and stand/walk for 0-2 hours in an 8-hour 20 10 Dr. Lin reported that he had treated Plaintiff DECISION AND ORDER – HERNANDEZ v COLVIN 14-CV-03195-VEB 1 workday. (T at 532). He found that Plaintiff could not sit continuously in a work 2 setting, could not lift/carry any weight, had significant limitations with regard to 3 repetitive reaching, handling, fingering or lifting, and needed a cane or other 4 assistive device when standing/walking. (T at 532). 5 Dr. Lin believed Plaintiff’s condition would interfere with his ability to keep 6 his neck in a constant position (e.g. looking at a computer screen or down at a desk) 7 and opined that Plaintiff could not perform a full time competitive job that required 8 activity on a sustained basis. (T at 532-33). Dr. Lin stated that Plaintiff was not a 9 malingerer and was incapable of even a low stress job. (T at 533). He explained that 10 he would expect Plaintiff to be absent from work more than 3 times per month as a 11 result of his impairments or treatment. (T at 534). Dr. Lin reported that he expected 12 Plaintiff’s condition to worsen over time. (T at 535). 13 The ALJ afforded little weight to Dr. Lin’s opinion. (T at 20). This Court 14 finds the ALJ’s decision supported by substantial evidence and consistent with 15 applicable law. First, Dr. Lin did not cite detailed clinical or diagnostic findings to 16 support his highly restrictive assessment. The ALJ is not obliged to accept a treating 17 source opinion that is “brief, conclusory and inadequately supported by clinical 18 findings.” Lingenfelter v. Astrue, 504 F.3d 1028, 1044-45 (9th Cir. 2007) (citing 19 Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002)). 20 11 DECISION AND ORDER – HERNANDEZ v COLVIN 14-CV-03195-VEB 1 Second, the ALJ found that Dr. Lin’s assessment was inconsistent with his 2 contemporaneous treatment notes. On May 25, 2011, Dr. Lin noted that Plaintiff 3 wanted to decrease his pain medication and was able to walk without pain. (T at 4 522). On June 11, 2011, Dr. Lin described Plaintiff as “doing well” on methadone 5 and “happy” with his current medications. (T at 524). The treatment notes from 6 August 1, 2011 and October 10, 2011 indicate that Plaintiff planned to engage in 7 vocational training. (T at 525, 526). Notes from September and October of 2011 8 reported that Plaintiff was “more mobile” and not using a cane. (T at 526, 528). On 9 November 22, 2011, Dr. Lin described Plaintiff’s pain as “controlled.” (T at 529). 10 The ALJ reasonably relied on the inconsistency between Dr. Lin’s treatment 11 notes and his highly restrictive assessment as a reason for discounting the 12 physician’s opinion. 13 2005)(finding that “discrepancy” between treatment notes and opinion was “a clear 14 and convincing reason for not relying on the doctor's opinion regarding” the 15 claimant’s limitations). See Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 16 Third, the ALJ noted that Dr. Lin’s assessment was contradicted by the 17 conservative course of treatment and other evidence of record. The record indicated 18 that Plaintiff’s condition improved following surgery in May of 2009 and that his 19 pain was controlled with medication. (T at 19-20, 313, 316, 524, 525, 526). A 20 12 DECISION AND ORDER – HERNANDEZ v COLVIN 14-CV-03195-VEB 1 January 2010 lumbar spine x-ray showed the screws from Plaintiff’s surgery, but no 2 compromise of disc space height and no subluxation. (T at 256). A December 2010 3 MRI revealed no fracture or subluxation, no significant marrow signal abnormality, 4 mild diffuse disc bulge at L3-4, mild bilateral facet hypertrophy and mild right 5 neural foramen at L4-5 (but no disc protrusion or spinal stenosis), and mild bilateral 6 facet hypertrophy at L5-S1 (but no disc protrusion, spinal stenosis, or significant 7 neural foramen). (T at 412). The lack of medical support for a physician’s opinion is 8 a proper reason for discounting a treating physician’s opinion. Flaten v. Secretary of 9 Health and Human Servs., 44 F.3d 1453, 1463-64 (9th Cir. 1995). 10 The ALJ also noted the lack of aggressive treatment (e.g. additional surgical 11 intervention, referral to a specialist), finding the conservative course of treatment 12 inconsistent with the extreme restrictions assessed by Dr. Lin. (T at 18). The fact 13 that a claimant received only conservative treatment is a proper basis upon which to 14 reject an opinion that the impairment is disabling. See Johnson v. Shalala, 60 F.3d 15 1428,1434 (9th Cir. 1995)(finding that the claimant received only conservative 16 treatment for back injury is a clear and convincing reason for disregarding testimony 17 that the claimant is disabled). 18 Lastly, the ALJ noted that Dr. Lin’s opinion was contradicted by the 19 assessment of Dr. Francis Greene and Dr. Thu Do, non-examining State Agency 20 13 DECISION AND ORDER – HERNANDEZ v COLVIN 14-CV-03195-VEB 1 review physicians. In November of 2010, Dr. Greene reviewed the record and 2 concluded that Plaintiff could frequently lift 10 pounds, stand/walk for at least 2 3 hours in an 8-hour workday, and sit for about 6 hours in an 8-hour workday with 4 normal breaks. (T at 370). He opined that Plaintiff could occasionally climb ramps 5 and stairs, but never climb ladders/rope/scaffolds, and could occasionally balance, 6 stoop, kneel, crouch, and crawl. (T at 371). Dr. Greene concluded that Plaintiff 7 could perform sedentary work. (T at 373). Dr. Do performed a review in February of 8 2011 and likewise concluded that Plaintiff retained the RFC to perform sedentary 9 work. (T at 487-88). 10 State Agency review physicians are highly qualified experts and their 11 opinions, if supported by other record evidence, may constitute substantial evidence 12 sufficient to support a decision to discount a treating physician’s opinion. See Saelee 13 v. Chater, 94 F.3d 520, 522 (9th Cir. 1996); see also 20 CFR § 404.1527 14 (f)(2)(i)(“State agency medical and psychological consultants and other program 15 physicians, psychologists, and other medical specialists are highly qualified 16 physicians, psychologists, and other medical specialists who are also experts in 17 Social Security disability evaluation.”). 18 19 20 14 DECISION AND ORDER – HERNANDEZ v COLVIN 14-CV-03195-VEB 1 For the foregoing reasons, this Court finds the ALJ’s decision to discount the 2 opinion of Dr. Lin was supported by substantial evidence and consistent with 3 applicable law. 4 B. Credibility 5 A claimant’s subjective complaints concerning his or her limitations are an 6 important part of a disability claim. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 7 1190, 1195 (9th Cir. 2004)(citation omitted). The ALJ’s findings with regard to the 8 claimant’s credibility must be supported by specific cogent reasons. Rashad v. 9 Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent affirmative evidence of 10 malingering, the ALJ’s reasons for rejecting the claimant’s testimony must be “clear 11 and convincing.” Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). “General 12 findings are insufficient: rather the ALJ must identify what testimony is not credible 13 and what evidence undermines the claimant’s complaints.” Lester, 81 F.3d at 834; 14 Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 15 However, subjective symptomatology by itself cannot be the basis for a 16 finding of disability. A claimant must present medical evidence or findings that the 17 existence of an underlying condition could reasonably be expected to produce the 18 symptomatology alleged. See 42 U.S.C. §§423(d)(5)(A), 1382c (a)(3)(A); 20 C.F.R. 19 § 404.1529(b), 416.929; SSR 96-7p. 20 15 DECISION AND ORDER – HERNANDEZ v COLVIN 14-CV-03195-VEB 1 In this case, Plaintiff testified as follows: He was born in October of 1975 and 2 has a college education. He has been disabled since May of 2009, when he had the 3 first of two back operations. (T at 33). Neither surgery (the first, in May of 2009, or 4 the second, in February of 2011) were successful in terms of addressing Plaintiff’s 5 chronic pain. (T at 34). He made an attempt to return to work in June 2011 at a 6 “Michael’s” store, but it lasted only four hours and was a “nightmare.” (T at 34). He 7 cannot sit for more than 20-30 minutes before needing to get up due to chronic pain; 8 standing is limited to 30-45 minutes before he needs to lie down due to pain. (T at 9 35). Most of his day is spent lying down. (T at 35). 10 Medication helps Plaintiff function around the house, e.g. brushing teeth, 11 showering. (T at 35). He lives with his parents and spends his typical day dealing 12 with pain and limited mobility. (T at 35-36). He uses a cane to walk, even in the 13 house, and uses a “grabber” to pick items up. (T at 36). He lies down for 2 to 3 14 hours periods during each day and alternates between sitting, standing, and lying 15 down. (T at 38). Medication allows him to do laundry, use the computer, and make 16 doctors’ appointments. (T at 40). He can sit at a computer for about 15 minutes and 17 perform simple cooking tasks. (T at 40). He does no yard work and cannot lift more 18 than 10 pounds. (T at 41). He does not need assistance with self-care tasks, but it 19 takes longer than it did before his back problems. (T at 42). 20 16 DECISION AND ORDER – HERNANDEZ v COLVIN 14-CV-03195-VEB 1 Pain causes difficulty sleeping. (T at 43). He has chronic fatigue. (T at 43). 2 He relies on his parents for shopping. (T at 43). He no longer engages in hobbies or 3 attends social functions. 4 activities with her are limited by pain. (T at 44). In September of 2010, Plaintiff was 5 looking for work, but he no longer believes he could perform full-time work. (T at 6 46). (T at 44). His daughter occasionally visits, but his 7 The ALJ concluded that Plaintiff’s medically determinable impairments could 8 reasonably be expected to cause the alleged symptoms, but that his statements 9 concerning the intensity, persistence, and limiting effects of the symptoms were not 10 fully credible. (T at 22). 11 This Court finds that the ALJ’s credibility determination was supported by 12 substantial evidence and consistent with applicable law. First, the ALJ noted that 13 Plaintiff’s testimony was contradicted by the objective medical evidence. Plaintiff 14 testified that he had experience no improvement in his symptoms since his first 15 surgery. (T at 34-35). However, as discussed above, the treatment notes showed 16 improvement and indicated that Plaintiff’s pain was generally well-controlled with 17 medication. (T at 524-30). The x-ray and MRI findings were also generally benign. 18 (T at 256-57, 412). Although the lack of supporting medical evidence cannot form 19 the sole basis for discounting subjective pain testimony, it is a factor the ALJ may 20 17 DECISION AND ORDER – HERNANDEZ v COLVIN 14-CV-03195-VEB 1 consider when analyzing credibility. Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2 2005). In other words, an ALJ may properly discount subjective complaints where, 3 as here, they are contradicted by medical records. Carmickle v. Comm’r of Soc. Sec. 4 Admin., 533 F.3d 1155, 1161 (9th Cir. 2008); Thomas v. Barnhart, 278 F.3d 947, 5 958-59 (9th Cir. 2002). 6 Second, the ALJ noted that Plaintiff had a conservative course of treatment, 7 e.g. no additional surgical intervention, no referral to a specialist. (T at 18). 8 “Evidence of ‘conservative treatment’ is sufficient to discount a claimant’s 9 testimony regarding the severity of an impairment.” Parra v. Astrue, 481 F.3d 742, 10 751 (9th Cir. 2007). 11 Third, the ALJ noted that Plaintiff was less than truthful regarding his receipt 12 of unemployment benefits. Although Plaintiff testified that he had not received 13 unemployment benefits since the alleged onset date (T at 46), this was contradicted 14 by the record. (T at 121, 367). This inconsistency was a valid reason for discounting 15 the overall credibility of Plaintiff’s claims. 16 In light of the above, this Court finds that the ALJ’s credibility determination 17 must be sustained. See Morgan v. Commissioner, 169 F.3d 595, 599 (9th Cir. 18 1999)(“[Q]uestions of credibility and resolutions of conflicts in the testimony are 19 functions solely of the [Commissioner].”). 20 18 DECISION AND ORDER – HERNANDEZ v COLVIN 14-CV-03195-VEB 1 V. CONCLUSION 2 After carefully reviewing the administrative record, this Court finds 3 substantial evidence supports the Commissioner’s decision, including the objective 4 medical evidence and supported medical opinions. It is clear that the ALJ thoroughly 5 examined the record, afforded appropriate weight to the medical evidence, including 6 the assessments of the examining medical providers and the non-examining 7 consultants, and afforded the subjective claims of symptoms and limitations an 8 appropriate weight when rendering a decision that Plaintiff is not disabled. This 9 Court 10 11 finds no reversible error and substantial evidence supports the Commissioner’s decision. VI. ORDERS 12 IT IS THEREFORE ORDERED that: 13 Judgment be entered AFFIRMING the Commissioner’s decision; and 14 The Clerk of the Court shall file this Decision and Order, serve copies upon 15 16 17 18 counsel for the parties, and CLOSE this case. DATED this 6th day of March, 2016. /s/Victor E. Bianchini VICTOR E. BIANCHINI UNITED STATES MAGISTRATE JUDGE 19 20 19 DECISION AND ORDER – HERNANDEZ v COLVIN 14-CV-03195-VEB

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