Yolanda Walker v. Carolyn W Colvin, No. 5:2014cv02072 - Document 20 (C.D. Cal. 2016)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Sheri Pym. IT IS THEREFORE ORDERED that Judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits, and dismissing the complaint with prejudice. (See document for specifics.) (iva)

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Yolanda Walker v. Carolyn W Colvin Doc. 20 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 YOLANDA WALKER, 12 13 14 15 16 17 18 ) ) ) Plaintiff, ) ) v. ) ) ) CAROLYN W. COLVIN, Acting Commissioner of Social Security ) ) Administration, ) ) Defendant. ) ) Case No. ED CV 14-2072-SP MEMORANDUM OPINION AND ORDER 19 I. 20 INTRODUCTION 21 On October 16, 2014, plaintiff Yolanda Walker filed a complaint against 22 defendant, the Commissioner of the Social Security Administration 23 (“Commissioner”), seeking a review of a denial of supplemental security income 24 (“SSI”). Both plaintiff and defendant have consented to proceed for all purposes 25 before the assigned Magistrate Judge pursuant to 28 U.S.C. § 636(c). The court 26 deems the matter suitable for adjudication without oral argument. 27 Plaintiff presents three issues for decision: (1) whether the Administrative 28 1 Dockets.Justia.com 1 Law Judge (“ALJ”) applied the correct legal standard when considering the 2 medical opinions; (2) whether the ALJ properly considered plaintiff’s credibility; 3 and (3) whether the ALJ’s residual functional capacity determination was 4 supported by substantial evidence. Plaintiff’s Memorandum in Support of Relief 5 Requested in Plaintiff’s Complaint (“P. Mem.”) at 2-10; Memorandum in Support 6 of Defendant’s Answer (“D. Mem.”) at 2. 7 Having carefully studied the parties’ moving and opposing papers, the 8 Administrative Record (“AR”), and the decision of the ALJ, the court concludes 9 that, as detailed herein, the ALJ did not err. Consequently, the court affirms the 10 decision of the Commissioner denying benefits. 11 II. 12 FACTUAL AND PROCEDURAL BACKGROUND 13 Plaintiff, who was forty-two years old on her alleged disability onset date, 14 completed one year of college.1 AR at 70, 198. Plaintiff has no past relevant 15 work. Id. at 22. 16 On May 7, 2010, plaintiff filed an application for disability insurance 17 benefits (“DIB”) due to allergies, HIV, hypertension, high cholesterol, chronic 18 pain, high blood pressure, and depression. See id. at 71, 177-87. The application 19 was denied on November 18, 2010. See id. at 71. 20 On August 29, 2011, plaintiff filed an application for SSI, alleging an onset 21 date of August 1, 2006 due to HIV, asthma, high cholesterol, high blood pressure, 22 and left knee and hip pain. Id. at 70. The Commissioner denied plaintiff’s 23 application initially and upon reconsideration, after which she filed a request for 24 hearing. Id. at 98-102, 106-11, 156. 25 On January 8, 2013, plaintiff, represented by counsel, appeared and testified 26 27 1 As discussed below, plaintiff provided conflicting statements as to her 28 education. See AR at 37, 198, 456, 466. 2 1 at a hearing before the ALJ. Id. at 29-69. The ALJ also heard testimony from 2 Aida Worthington, a vocational expert. Id. 61-67. On February 14, 2013, the ALJ 3 denied plaintiff’s claim for benefits. Id. at 13-23. 4 Applying the well-known five-step sequential evaluation process, the ALJ 5 found, at step one, that plaintiff had not engaged in substantial gainful activity 6 since August 29, 2011, the application date. Id. at 15. 7 At step two, the ALJ found plaintiff suffered from the following severe 8 impairments: human immunodeficiency virus (“HIV”) infection and depression. 9 Id. 10 At step three, the ALJ found plaintiff’s impairments, whether individually 11 or in combination, did not meet or medically equal one of the listed impairments 12 set forth in 20 C.F.R. part 404, Subpart P, Appendix 1 (the “Listings”). Id. at 16. The ALJ then assessed plaintiff’s residual functional capacity (“RFC”),2 and 13 14 determined that she had the RFC to perform a range of medium work, with the 15 limitations that plaintiff: could lift/carry fifty pounds occasionally and twenty-five 16 pounds frequently; could stand/walk/sit for six hours out of an eight-hour workday 17 with regular breaks; was unlimited with respect to pushing and/or pulling other 18 than as indicated for lifting/carrying; could frequently perform postural activities; 19 must avoid concentrated exposure to the extremes of temperature and airborne 20 irritants; was limited to simple tasks; and could have only occasional interaction 21 with the public. Id. at 17. 22 The ALJ found, at step four, that plaintiff had no past relevant work. Id. at 23 24 2 Residual functional capacity is what a claimant can do despite existing 25 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 26 1155-56 n.5-7 (9th Cir. 1989). “Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ 27 assesses the claimant’s residual functional capacity.” Massachi v. Astrue, 486 28 F.3d 1149, 1151 n.2 (9th Cir. 2007). 3 1 22. 2 At step five, the ALJ determined that, based upon plaintiff’s age, education, 3 work experience, and RFC, plaintiff could perform jobs “that exist in significant 4 numbers in the national economy,” including hand packager, bagger, and linen 5 room attendant. Id. at 22-23. Consequently, the ALJ concluded plaintiff did not 6 suffer from a disability as defined by the Social Security Act (“SSA”). Id. at 23. 7 Plaintiff filed a timely request for review of the ALJ’s decision, which was 8 denied by the Appeals Council. Id. at 1-3. The ALJ’s decision stands as the final 9 decision of the Commissioner. 10 III. 11 STANDARD OF REVIEW 12 This court is empowered to review decisions by the Commissioner to deny 13 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 14 Administration must be upheld if they are free of legal error and supported by 15 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) 16 (as amended). But if the court determines that the ALJ’s findings are based on 17 legal error or are not supported by substantial evidence in the record, the court 18 may reject the findings and set aside the decision to deny benefits. Aukland v. 19 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 20 1144, 1147 (9th Cir. 2001). 21 “Substantial evidence is more than a mere scintilla, but less than a 22 preponderance.” Aukland, 257 F.3d at 1035. Substantial evidence is such 23 “relevant evidence which a reasonable person might accept as adequate to support 24 a conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 25 F.3d at 459. To determine whether substantial evidence supports the ALJ’s 26 finding, the reviewing court must review the administrative record as a whole, 27 “weighing both the evidence that supports and the evidence that detracts from the 28 4 1 ALJ’s conclusion.” Mayes, 276 F.3d at 459. The ALJ’s decision “‘cannot be 2 affirmed simply by isolating a specific quantum of supporting evidence.’” 3 Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th 4 Cir. 1998)). If the evidence can reasonably support either affirming or reversing 5 the ALJ’s decision, the reviewing court “‘may not substitute its judgment for that 6 of the ALJ.’” Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 7 1992)). 8 IV. 9 DISCUSSION 10 A. The ALJ Applied the Proper Legal Standard to Considering the 11 Medical Opinions 12 Plaintiff argues the ALJ erred by applying “a reverse hierarchy approach to 13 the medical evidence.” P. Mem. at 2-5. Specifically, plaintiff argues the ALJ 14 improperly gave greater weight to the opinions of the consultative examiners than 15 to the opinions of the treating physicians. Id. In addition, plaintiff contends that 16 the ALJ failed to properly discuss the opinions of the treating physicians, the 17 ALJ’s reasons for rejecting the opinions of the treating physicians were not 18 supported by substantial evidence, and the ALJ failed to consider the opinions 19 provided in a prior application for DIB.3 Id. 20 In determining whether a claimant has a medically determinable 21 impairment, among the evidence the ALJ considers is medical evidence. 20 22 C.F.R. § 416.927(b). In evaluating medical opinions, the regulations distinguish 23 among three types of physicians: (1) treating physicians; (2) examining 24 25 3 Plaintiff also argues that the ALJ failed to include all of Dr. Unwalla’s opined limitations in his RFC determination. See P. Mem. at 5. Because this 27 argument is reiterated as a separate claim – the third claim – the court will not 28 discuss it here. 26 5 1 physicians; and (3) non-examining physicians.4 20 C.F.R. § 416.927(c), (e); 2 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (as amended). “Generally, a 3 treating physician’s opinion carries more weight than an examining physician’s, 4 and an examining physician’s opinion carries more weight than a reviewing 5 physician’s.” Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); 20 6 C.F.R. § 416.927(c)(1)-(2). The opinion of the treating physician is generally 7 given the greatest weight because the treating physician is employed to cure and 8 has a greater opportunity to understand and observe a claimant. Smolen v. Chater, 9 80 F.3d 1273, 1285 (9th Cir. 1996); Magallanes v. Bowen, 881 F.2d 747, 751 (9th 10 Cir. 1989). 11 Nonetheless, the ALJ is not bound by the opinion of the treating physician. 12 Smolen, 80 F.3d at 1285. If a treating physician’s opinion is uncontradicted, the 13 ALJ must provide clear and convincing reasons for giving it less weight. Lester, 14 81 F.3d at 830. If the treating physician’s opinion is contradicted by other 15 opinions, the ALJ must provide specific and legitimate reasons supported by 16 substantial evidence for rejecting it. Id. at 830. Likewise, the ALJ must provide 17 specific and legitimate reasons supported by substantial evidence in rejecting the 18 contradicted opinions of examining physicians. Id. at 830-31. The opinion of a 19 non-examining physician, standing alone, cannot constitute substantial evidence. 20 Widmark v. Barnhart, 454 F.3d 1063, 1066 n.2 (9th Cir. 2006); Morgan v. 21 Comm’r, 169 F.3d 595, 602 (9th Cir. 1999); see also Erickson v. Shalala, 9 F.3d 22 813, 818 n.7 (9th Cir. 1993). 23 Plaintiff’s argument that the ALJ improperly applied a “reverse hierarchical 24 approach” by giving greater weight to the opinions of consultative examiners 25 implies that the ALJ must always give the greatest weight to the opinion of a 26 27 4 Psychologists are considered acceptable medical sources whose opinions 28 are accorded the same weight as physicians’. 20 C.F.R. § 416.913(a)(2). 6 1 treating physician. This argument is without merit. There is no requirement that 2 the treating physician’s opinion must be given the greatest weight. Instead, the 3 law is clear that although the opinion of a treating physician is generally given the 4 greatest weight, the ALJ may give an uncontradicted opinion less weight if he or 5 she can provide clear and convincing reasons, and may reject a contradicted 6 opinion if he or she can provide specific and legitimate reasons for doing so. See 7 Lester, 81 F.3d at 830. The mere fact that the ALJ gave the opinions of the 8 treating physicians less weight than the opinions of the examining physicians is 9 not error. 10 Nor is the ALJ required to specifically address the physicians’ specialties 11 and length of treatment relationship. See P. Mem. at 3. The ALJ is required to 12 consider these factors (see 20 C.F.R. § 416.927(c)), which the ALJ clearly does in 13 the decision as he mentions their status as treating physicians. But the ALJ is not 14 required to specifically discuss the length of the treatment relationship or 15 specialties.5 And as discussed below, the treatment notes were brief and did not 16 contain much information. 17 Thus, unless the ALJ failed to provide legally sufficient reasons supported 18 by substantial evidence for giving a treating physician’s opinion less weight, the 19 ALJ did not err. 20 1. 21 Dr. Ryan Zane 22 Dr. Ryan Zane, a preventive medicine specialist, treated plaintiff from Treating Physicians 23 August 30, 2010 through at least the date of the hearing. See AR at 580. Dr. 24 Zane’s treatment notes indicated he treated plaintiff’s HIV infection but were 25 26 5 Moreover, neither factor is helpful to plaintiff’s arguments. Dr. Zane 27 offered an opinion regarding plaintiff’s mental limitations but is not a psychiatrist. 28 Dr. Alfonso only examined plaintiff once before rendering an opinion. 7 1 sparse in detail. See, e.g., id. at 526, 666-68. Dr. Zane’s notes generally included 2 vitals and reflected that others in his clinic, including a marriage family therapist 3 (“MFT”), treated plaintiff. See, e.g., id. at 680. 4 In an HIV Assessment Form dated May 17, 2012, Dr. Zane noted plaintiff 5 had no functional limitations with regard to her daily activities. See id. at 581. Dr. 6 Zane opined that plaintiff had a depressed mood, mild impairment with memory 7 and concentration, and flat affect, as well as suffered from insomnia and 8 anhedonia. Id. Dr. Zane noted that a licensed MFT was providing individual and 9 group therapy. Id. 10 On August 30, 2012, Dr. Zane also completed a Medical Statement 11 Regarding HIV and AIDS for Social Security Disability Claim. See id. at 749-51. 12 In this opinion, Dr. Zane reported that plaintiff suffered from significant 13 weakness. Id. at 750. Dr. Zane further opined that plaintiff could only: work two 14 hours a day; stand fifteen minutes at one time; sit thirty minutes at one time; and 15 lift ten pounds occasionally and five pounds frequently. Id. Dr. Zane further 16 opined that plaintiff was moderately impaired in her ability to remember and carry 17 out short and simple instructions and interact appropriately with the general public 18 and markedly impaired in her ability to understand and carry out detailed 19 instructions, maintain attention and concentration, and ability to work with and get 20 along with others. Id. at 751. 21 Dr. Harbans Multani 22 Dr. Harbans Multani, a psychiatrist, treated plaintiff from February 16, 2012 23 through May 3, 2012. See id. at 573-79, 593. At the last session, Dr. Multani 24 noted plaintiff was taking all her medication, sleeping well, and had a good 25 appetite. Id. at 593. Dr. Multani stopped treating plaintiff when the Foothill 26 AIDS Project declined to continue paying for his services. See id. at 612. 27 Dr. Multani noted that plaintiff was listless, tearful, and anergic at the 28 8 1 sessions. See id. at 573-79, 593. Based on plaintiff’s complaints and his 2 observations, Dr. Multani diagnosed plaintiff with major depressive disorder, 3 recurrent, moderate but did not offer an opinion as to her functional limitations. 4 See id. 5 Dr. Imelda Alfonso 6 Dr. Imelda Alfonso, a psychiatrist, treated plaintiff on four occasions from 7 October 26, 2012 through the January 8, 2013 hearing date. See id. at 590, 611, 8 755-58. During those sessions, Dr. Alfonso observed that plaintiff had a 9 depressed mood, low energy, constricted affect, and fair judgment. See id. at 611, 10 756-58. Dr. Alfonso also noted that plaintiff denied suicidal ideation. See id. 11 In a Medical Statement Concerning Depression for Social Security 12 Disability Claim,6 Dr. Alfonso, after having only one session with plaintiff, opined 13 that plaintiff had anhedonia, appetite disturbance with change in weight, sleep 14 disturbance, psychomotor agitation, decreased energy, feelings of guilt, difficulty 15 concentrating, and thoughts of suicide. Id. at 590. Dr. Alfonso also opined that 16 plaintiff would have marked restrictions in activities of daily living, would have 17 marked difficulties in maintaining social functioning, would have deficiencies of 18 concentration, and had repeated episodes of deterioration or decompensation. Id. 19 2. 20 Dr. Ruben Ustaris 21 Dr. Ruben Ustaris, an internist, examined plaintiff on January 31, 2012. See Examining Physicians 22 id. at 557-61. Dr. Ustaris observed that plaintiff had a normal gait, mild palpable 23 tenderness and reduced adduction with mild pain in the left hip, and mild pain in 24 the left knee at the end of range of flexion, but had otherwise normal findings. See 25 id. Based on his examination, Dr. Ustaris opined that plaintiff: could lift/carry 26 27 6 The opinion is undated but must have been completed sometime between 28 October 26, 2012 and November 5, 2012. See AR at 590. 9 1 fifty pounds occasionally and twenty-five pounds frequently; could stand/walk/sit 2 six hours out of an eight-hour way with normal breaks; could push, pull, climb, 3 balance, kneel, crawl, walk on uneven terrain, climb ladders, and work at heights 4 frequently; and needed to avoid extremes in temperature, dust, odors, fumes, and 5 other pulmonary irritants. Id. at 560-61. 6 Dr. Khushro Unwalla 7 Dr. Khushro Unwalla, a psychiatrist, examined plaintiff on February 2, 8 2012. See id. at 562-66. During the mental status examination, Dr. Unwalla 9 observed that plaintiff had a sad and depressed mood, constricted affect, linear 10 thought, and impaired abstract thinking. Id. at 564. Dr. Unwalla also observed 11 that plaintiff had moderate difficulty interacting with the clinic staff and himself, 12 moderate difficulty maintaining composure and even temperament, mild 13 difficulties focusing, and moderate difficulties in concentration. Id. at 565. Based 14 on his examination and plaintiff’s reported history, Dr. Unwalla diagnosed 15 plaintiff with depressive disorder, not otherwise specified. Id. at 564. From a 16 functional perspective, Dr. Unwalla opined that plaintiff would have: mild 17 limitations performing simple and repetitive tasks; and moderate limitations 18 performing detailed and complex tasks, performing work activities on a consistent 19 basis without special or additional supervision, completing a normal work day or 20 week, accepting instructions from supervisors, interacting with coworkers and the 21 public, and handling the usual stresses and demands of employment. Id. at 565. 22 3. 23 The State Agency physicians – Dr. F. Kalmar, Dr. J. Hartman and Dr. D. State Agency Physicians 24 Funkenstein – reviewed plaintiff’s treatment records and rendered nearly identical 25 opinions regarding plaintiff’s functional limitations as Dr. Ustaris and Dr. 26 Unwalla. See id. at 74-81, 83-95. 27 28 10 1 4. 2 In reaching his RFC determination, the ALJ gave significant weight to the The ALJ’s Decision 3 opinions of Dr. Ustaris, Dr. Unwalla, and the State Agency physicians. Id. at 20. 4 The ALJ gave little weight to the opinions of Dr. Alfonso and Dr. Zane, noting 5 that the opinions were brief, conclusory, inadequately supported by clinical 6 findings, inconsistent with plaintiff’s daily activities, and not supported by the 7 treatment records. Id. at 21. The ALJ also gave little weight to the medical 8 opinions submitted in plaintiff’s prior application because they were assessments 9 of plaintiff’s condition prior to his current application date and were therefore 10 immaterial. Id. The ALJ’s reasons were specific and legitimate and supported by 11 substantial evidence. 12 First, the ALJ may properly reject a physician’s opinion “if that opinion is 13 brief, conclusory, and inadequately supported by clinical findings.” Thomas v. 14 Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); see Batson v. Comm’r, 359 F.3d 15 1190, 1195 (9th Cir. 2004) (ALJ may discredit treating physicians’ opinions that 16 are conclusory, brief, and supported by the record as a whole, or by objective 17 medical findings). Both Dr. Zane’s and Dr. Alfonso’s opinions were simply check 18 offs in a form document. See AR at 590, 749-51; see also id. at 580-82. Neither 19 Dr. Zane nor Dr. Alfonso provided any explanation for their opinions, and 20 therefore the opinions may be rejected on that basis. See Crane v. Shalala, 76 21 F.3d 251, 253 (9th Cir.1996) (evidence of an impairment in the form of “check-off 22 reports” may be rejected for lack of explanation of the bases for their conclusions). 23 Second, the ALJ properly determined that Dr. Alfonso’s opinions were 24 inconsistent with plaintiff’s daily activities. See Rollins v. Massanari, 261 F.3d 25 853, 856 (9th Cir. 2001) (inconsistency between a treating physician’s opinion 26 and a claimant’s daily activities may be a specific and legitimate reason for 27 rejecting the opinion). Plaintiff testified that she was able to wash dishes, do 28 11 1 housework, and do laundry. See AR at 56; see also id. at 581. Plaintiff also 2 reported that she cooked, could drive or walk to public transportation, and go 3 shopping. See id. at 563, 581. These activities are inconsistent with Dr. Alfonso’s 4 opinion that plaintiff had marked limitations in her ability to perform daily 5 activities.7 6 Finally, the ALJ correctly noted that Dr. Zane’s and Dr. Alfonso’s opinions 7 were not supported by the treatment records and objective medical evidence. See 8 id. at 21. Dr. Zane’s treatment notes, as well as the treatment notes from others at 9 his clinics, were bereft of any clinical findings to support Dr. Zane’s opined 10 physical and mental limitations. With regard to physical limitations, Dr. Zane’s 11 treatment notes were simply check marks on a form of his diagnosis and lab work 12 ordered, with no or little comments. See, e.g., AR at 530-32, 666-68. Even the 13 other treatment notes from other providers at Dr. Zane’s clinic did not contain 14 clinical findings. See, e.g., id. at 522-26. Instead the notes primarily reflected 15 plaintiff’s subjective complaints and the administrative tasks done concerning 16 plaintiff’s disability application. See, e.g., id. Nothing in the treatment notes 17 indicated that plaintiff’s HIV status resulted in any significant complications.8 18 Similarly, the treatment notes regarding plaintiff’s mental status only contained 19 20 7 Dr. Alfonso’s opinion that plaintiff had thoughts of suicide was also 21 inconsistent with her treatment notes, which indicated that plaintiff denied suicidal 22 ideation. See AR at 756-58. 23 24 25 26 27 28 8 Plaintiff cites to treatment records from another clinic, but those treatment records also do not reflect complications from HIV. See, e.g., AR at 496-507. Moreover, other than a finding that plaintiff has moderate osteoarthritis of the left knee and a small osteochondroma, the records do not support plaintiff’s claim of degenerative disc disease and neuropathy. See id. at 514, 633, 649. Even if plaintiff had degenerative disc disease and neuropathy and Dr. Zane had reviewed the results, those findings still do not support the extreme physical limitations opined by Dr. Zane. 12 1 subjective complaints. See, e.g., id. at 523-27. 2 As for Dr. Alfonso, at the time she submitted her opinion, she had only 3 treated plaintiff on one occasion. See id. at 590. Although Dr. Alfonso noted that 4 plaintiff had a depressed mood and constricted affect, those findings do not 5 support the marked limitations she opined. Even if the court were to take into 6 consideration the clinical findings of Dr. Marcia Hudson and Nancy Carota, the 7 psychiatrist and MFT at Dr. Alfonso’s clinic who conducted the initial 8 evaluations, there was still insufficient objective evidence to support Dr. Alfonso’s 9 opinion. Dr. Hudson noted that plaintiff was angry and depressed but her other 10 clinical findings were within normal limits. See id. at 613. Carota observed that 11 plaintiff was oriented, cooperative, and had fair insight. See id. at 617. None of 12 these findings support marked limitations.9 13 The ALJ also rejected the opinions of Dr. Sean To and Dr. Tanya Scurry, 14 physicians who examined plaintiff and rendered opinions in connection with 15 plaintiff’s prior application for DIB. Id. at 21; see id. at 455-59, 465-71. The ALJ 16 is not required to consider opinions predating the alleged onset of disability. See 17 Carmickle v. Comm’r, 533 F.3d 1155, 1165 (9th Cir. 2008) (“Medical opinions 18 that predate the alleged onset of disability are of limited relevance.”). But here, 19 although plaintiff only qualified for benefits beginning the month following the 20 month the application was filed, the opinions were rendered after the alleged onset 21 of disability and within the twelve months preceding her application. See 20 22 C.F.R. §§ 416.335, 416.912(d)(2). Thus, the question is whether the ALJ is 23 required to consider an opinion that had already been considered in a prior 24 25 9 Although plaintiff references the subjective symptoms she relayed to Dr. 26 Hudson and Carota as clinical findings supporting marked limitation, those are not objective clinical findings. See P. Mem. at 3. Further, as discussed infra, 27 plaintiff’s credibility was properly discounted. 28 13 1 application. See Smith v. Colvin, 2015 WL 5838819, at *8 (E.D. Wash. Oct. 7, 2 2015) (finding it was not error to reject an opinion rendered prior to the relevant 3 period and that had already been considered in a previous application). The court 4 need not resolve that question here, because even assuming the ALJ was required 5 to consider the opinions, his failure to do so would be harmless. Dr. To and Dr. 6 Scurry’s opined limitations were consistent with, or less restrictive than, those of 7 Dr. Ustaris and Dr. Unwalla, to which the ALJ gave significant weight. Compare 8 AR at 459, 470 with id. at 560-61, 565. 9 In sum, the reasons cited by the ALJ for rejecting the opinions of Dr. Zane 10 and Dr. Alfonso were specific and legitimate. As such, the ALJ did not err by 11 giving greater weight to the opinions of the consultative examiners and State 12 Agency physicians than to the opinions of Dr. Zane and Dr. Alfonso. 13 B. The ALJ Properly Considered Plaintiff’s Credibility 14 Plaintiff argues that the ALJ failed to make a proper credibility 15 determination. P. Mem. at 5-7. Specifically, plaintiff contends that the ALJ’s 16 reasons were not supported by substantial evidence. Id. 17 The ALJ must make specific credibility findings, supported by the record. 18 Social Security Ruling (“SSR”) 96-7p.10 To determine whether testimony 19 concerning symptoms is credible, the ALJ engages in a two-step analysis. 20 Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). First, the ALJ 21 must determine whether a claimant produced objective medical evidence of an 22 underlying impairment “‘which could reasonably be expected to produce the pain 23 24 25 26 27 28 10 “The Commissioner issues Social Security Rulings to clarify the Act’s implementing regulations and the agency’s policies. SSRs are binding on all components of the SSA. SSRs do not have the force of law. However, because they represent the Commissioner’s interpretation of the agency’s regulations, we give them some deference. We will not defer to SSRs if they are inconsistent with the statute or regulations.” Holohan, 246 F.3d at 1203 n.1 (internal citations omitted). 14 1 or other symptoms alleged.’” Id. at 1036 (quoting Bunnell v. Sullivan, 947 F.2d 2 341, 344 (9th Cir. 1991) (en banc)). Second, if there is no evidence of 3 malingering, an “ALJ can reject the claimant’s testimony about the severity of her 4 symptoms only by offering specific, clear and convincing reasons for doing so.” 5 Smolen, 80 F.3d at 1281; Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 6 2003). The ALJ may consider several factors in weighing a claimant’s credibility, 7 including: (1) ordinary techniques of credibility evaluation such as a claimant’s 8 reputation for lying; (2) the failure to seek treatment or follow a prescribed course 9 of treatment; and (3) a claimant’s daily activities. Tommasetti v. Astrue, 533 F.3d 10 1035, 1039 (9th Cir. 2008); Bunnell, 947 F.2d at 346-47. 11 At the first step, the ALJ found plaintiff’s medically determinable 12 impairments could reasonably be expected to cause the symptoms alleged. AR at 13 18. At the second step, because the ALJ did not find any evidence of malingering, 14 the ALJ was required to provide clear and convincing reasons for discounting 15 plaintiff’s credibility. Here, the ALJ discounted plaintiff’s credibility because: 16 (1) plaintiff’s activities of daily living were inconsistent with her alleged 17 symptoms and demonstrated the capacity for work; (2) plaintiff made inconsistent 18 statements about her drug abuse history; and (3) plaintiff’s alleged symptoms were 19 inconsistent with the objective medical evidence. Id. at 18-19. 20 The ALJ’s first reason for finding plaintiff less credible was that plaintiff’s 21 activities of daily living were inconsistent with her testimony and they 22 demonstrated that she had the capacity to work. See Tommasetti, 533 F.3d at 1039 23 (inconsistency between a claimant’s alleged symptoms and her daily activities may 24 be a clear and convincing reason to find a claimant less credible); Bunnell, 947 25 F.2d at 346-47 (same). At the hearing, plaintiff testified she could only sit about 26 thirty minutes without pain, could stand about ten to fifteen minutes at a time, 27 could only walk twice the length of her driveway, had weak grip strength, could 28 15 1 only lift a gallon of milk at most, and could not kneel. See AR at 53-56. 2 Regarding her daily activities, plaintiff testified at the hearing and reported to Dr. 3 Unwalla that she cooked, cleaned, shopped, watched television, washed laundry, 4 and could attend church for a portion of the time. See id. at 53-56, 563. While it 5 appears from her daily activities that plaintiff may have been exaggerating her 6 limitations, her activities of daily living were not necessarily inconsistent wither 7 her alleged symptoms. Plaintiff may be able to perform these activities in short 8 intervals. Moreover, the mere fact that a claimant can engage in limited walking 9 for exercise does not detract from her credibility as to her overall disability. See 10 Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001)). If a claimant is “able to 11 spend a substantial part of [his] day engaged in pursuits involving the 12 performance of physical functions that are transferable to a work setting, a specific 13 finding as to this fact may be sufficient to discredit” him. Id. at 1049 (emphasis in 14 original) (citation and quotation marks omitted). But nothing in plaintiff’s 15 testimony suggests that she spent a substantial part of her day engaging in those 16 activities. As such, the ALJ’s first reason for finding plaintiff less credible was 17 not supported by substantial evidence. 18 The ALJ’s second reason for an adverse credibility finding was that plaintiff 19 made inconsistent statements regarding her history of drug abuse. AR at 18-19; 20 see Thomas, 278 F.3d at 959 (plaintiff’s conflicting statements about her drug and 21 alcohol usage were a clear and convincing reason for discounting plaintiff’s 22 credibility). The record clearly reflects that plaintiff has a history of drug and 23 alcohol abuse. See, e.g., AR at 441, 445, 590, 615. Nevertheless, plaintiff made 24 inconsistent statements about her drug abuse. Plaintiff admitted to Dr. Scurry that 25 she abused drugs and alcohol, but then told Dr. To that she did not drink. Id. at 26 456, 466. In connection with the instant application, plaintiff reported to Dr. 27 Unwalla that she did not have a history of alcohol and drug abuse. Id. at 563. 28 16 1 Plaintiff’s inconsistent statements about her alcohol and drug abuse was a clear 2 and convincing reason for finding plaintiff less than credible.11 3 Finally, the ALJ cited inconsistency between the objective medical evidence 4 and plaintiff’s alleged symptoms as a basis for discounting her credibility. Id. at 5 18-19. In other words, plaintiff’s complaints were not supported by the objective 6 medical evidence. Specifically, the ALJ noted that plaintiff listed HIV as a reason 7 for her alleged disability but that the record reflects that plaintiff experienced no 8 major complications from HIV. Id. Indeed, Dr. Ustaris noted that plaintiff’s HIV 9 was asymptomatic and Dr. Zane did not list any HIV-related symptoms. See id. at 10 560, 580; see also id. at 532. Plaintiff argues that her 25-pound weight loss in 11 thirty days and peripheral neuropathy were both complications of her HIV. P. 12 Mem. at 6. But plaintiff’s arguments are not supported by the record. First, there 13 is no evidence that plaintiff experienced a 25-pound weight loss in thirty days. 14 During her initial assessment on August 28, 2012, plaintiff reported to Carota that 15 she had experienced such a weight loss, but other than that statement there is 16 nothing in the record documenting a sudden weight loss. See AR at 614. And to 17 the contrary, at the January 2013 hearing, plaintiff testified that she gained about 18 forty pounds in the previous year, not simply that her weight fluctuated by forty 19 pounds as plaintiff argues. See id. at 35; Reply at 4. Similarly, the record does not 20 indicate that neuropathy was a complication from HIV. While neuropathy may be 21 a complication of HIV, it may also arise from other causes such as alcoholism and 22 23 24 25 26 27 28 11 In addition to the inconsistent statements about her drug abuse, plaintiff also made inconsistent statements concerning her education and criminal history. In her application, plaintiff wrote that she completed one year of college, but she reported to Dr. To that she completed two and half years of college and told Dr. Scurry and Dr. Unwalla that she completed high school. See AR at 198, 456, 466, 563. As for her criminal history, despite her incarceration, plaintiff told Dr. Multani that she had never been arrested or incarcerated. See id. at 578; see also id. at 563. 17 1 trauma. The record only contains self reports of neuropathy, and no physician 2 indicated that it was a complication of HIV. Indeed, in the HIV Assessment 3 completed by Dr. Zane, he did not list neuropathy as an HIV symptom. See AR at 4 580-83. 5 The ALJ also pointed out that contrary to plaintiff’s testimony that she had 6 difficulty walking, Dr. Ustaris noted that plaintiff had a normal gait and balance. 7 Although plaintiff had some lab results to support her pain allegations, there was 8 no documentation of difficulty walking in the treatment records. Id. at 19; see id. 9 at 558. Accordingly, there is substantial evidence supporting the ALJ’s finding 10 that plaintiff’s complaints were not all supported by the objective medical 11 evidence. 12 In sum, although one of the reasons cited by the ALJ was not clear and 13 convincing, the ALJ cited two other clear and convincing reasons supported by 14 substantial evidence for finding plaintiff less than credible. As such, the ALJ did 15 not err in discounting plaintiff’s credibility. 16 C. The ALJ’s RFC Assessment Is Supported by Substantial Evidence 17 Plaintiff argues that the ALJ’s RFC determination is not supported by 18 substantial evidence. P. Mem. at 7-10. Specifically, plaintiff contends that the 19 ALJ failed to consider evidence of her pain, fatigue, and need for supervision. 20 RFC is what one “can still do despite [his or her] limitations.” 20 C.F.R. 21 § 416.945(a)(1). The Commissioner reaches an RFC determination by reviewing 22 and considering all of the relevant evidence. Id. As discussed above, the ALJ 23 properly considered the medical evidence. The medical evidence supported the 24 ALJ’s determination that plaintiff could perform medium work. Plaintiff 25 complained of pain resulting from injuries that occurred many years prior to the 26 alleged onset date, and the diagnostic imagining reflected moderate osteoarthritis 27 of the left knee, osteitis pubis, and a small focal protrusion suggestive of a small 28 18 1 osteochondroma. See id. at 514, 633, 649. But Dr. Ustaris observed that plaintiff 2 had a normal gait and balance, did not require the use of assistive devices for 3 ambulation, had mild pain and tenderness in the left hip, and had otherwise normal 4 findings. See id. at 557-61. Moreover, plaintiff complained of pain and fatigue, 5 but such complaints are subjective and plaintiff’s credibility was properly 6 discounted. 7 As for plaintiff’s mental limitations, plaintiff argues the ALJ erred because, 8 despite giving significant weight to Dr. Unwalla, the ALJ only incorporated two of 9 his opined limitations, to simple repetitive tasks and occasional interaction with 10 the public. P. Mem. at 8. The ALJ is not required to adopt a physician’s opinion 11 in its entirety and, in fact, the ALJ expressly stated that he “adopted those specific 12 restrictions on a function-by-function basis that are best supported by the objective 13 evidence as a whole.” AR at 21; see Magallanes, 881 F.2d at 753. Although Dr. 14 Unwalla opined that plaintiff would have moderate difficulties performing work 15 activities without special or additional supervision, the ALJ was not required to 16 adopt that restriction. The ALJ indicated he found only the limitations to simple 17 work and limited public contact were supported by the objective evidence as a 18 whole. AR at 20-21. Plaintiff does not cite any objective evidence to support the 19 supervision limitation.12 20 Moreover, the ALJ’s limitation of plaintiff to simple and repetitive tasks 21 actually incorporates much of Dr. Unwalla’s opinion. In Dr. Unwalla’s opinion, 22 he lists the difficulties he observed during the examination, including mild 23 24 25 26 27 28 12 Plaintiff also argues that the vocational expert testified there would be no work she could perform if her RFC included the supervision limitations. See P. Mem. at 10. Plaintiff is incorrect. The vocational expert testified there would be no work plaintiff could perform if, beyond the probationary period, a supervisor was required to monitor plaintiff every hour for ten minutes. AR at 66. Dr. Unwalla’s opined limitations did not specify additional supervision every hour. See id. at 565. 19 1 difficulties focusing and maintaining attention, and moderate difficulties in 2 concentration, persistence, and pace. See AR at 565. Dr. Unwalla then opined the 3 functional limitations plaintiff would have due to the observed difficulties, 4 including mild limitations performing simple and repetitive tasks and moderate 5 limitations performing detailed and complex tasks. See id. Thus, Dr. Unwalla’s 6 opined limitation to simple and repetitive tasks captured the observed difficulties, 7 and the ALJ incorporated this limitation in his determined RFC. 8 Accordingly, the ALJ’s RFC determination was supported by substantial 9 evidence. 10 V. 11 CONCLUSION 12 IT IS THEREFORE ORDERED that Judgment shall be entered 13 AFFIRMING the decision of the Commissioner denying benefits, and dismissing 14 the complaint with prejudice. 15 16 DATED: March 21, 2016 17 18 SHERI PYM United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28 20

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