Barbara Sue Ruffin v. Carolyn W Colvin, No. 5:2014cv02611 - Document 25 (C.D. Cal. 2015)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Karen E. Scott: Based on the foregoing, IT IS ORDERED THAT judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits. See document for further details. (lwag)
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Barbara Sue Ruffin v. Carolyn W Colvin Doc. 25 O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 Case No. CV 14-2611 KES BARBARA SUE RUFFIN, Plaintiff, 13 MEMORANDUM OPINION AND vs. 14 ORDER 15 16 CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, 17 Defendant. 18 19 20 21 This matter is before the Court for review of the decision by the Commissioner of Social 22 Security denying Plaintiff’s application for disability benefits. Pursuant to 28 U.S.C. § 636(c), 23 the parties have consented that the case may be handled by the Magistrate Judge. The action 24 arises under 42 U.S.C. § 405(g), which authorizes the Court to enter judgment upon the pleadings 25 and transcript of the Administrative Record (“AR”) before the Commissioner. The parties have 26 filed the Joint Stipulation (“JS”), and the Commissioner has filed the certified AR. 27 /// 28 /// 1 Dockets.Justia.com 1 I. BACKGROUND. 2 Plaintiff Barbara Sue Ruffin (“Plaintiff”) filed an application for disability insurance 3 benefits under Title II of the Social Security Act on October 20, 2011, alleging the onset of 4 disability on July 18, 2011. AR 24. 5 After the administrative hearing on March 7, 2013 (transcript at AR 39-84), the 6 Administrative Law Judge (“ALJ”) issued an unfavorable decision on April 12, 2013. AR 21- 7 34. The ALJ found that Plaintiff suffered from medically determinable severe impairments 8 consisting of “fibromyalgia, degenerative joint disease of both knees, status post two surgeries 9 on the left knee and one surgery on the right knee, obesity, major depressive disorder, and post- 10 traumatic stress disorder.”1 AR 26. The ALJ assessed Plaintiff as retaining the residual 11 functional capacity (“RFC”) to perform light work as defined in 20 C.F.R. § 404.1567(b) with 12 the following additional limitations: 13 [S]he is limited to occasional postural activities; she must avoid concentrated 14 exposure to extreme cold and vibration; she is limited to work involving 15 simple repetitive tasks; and she is limited to work involving no more than 16 occasional contact with co-workers and the public. 17 AR 28. 18 Up until 2011, Plaintiff worked as a preschool teacher, and she previously worked as a 19 bank teller and waitress. AR 46-49, 411. The ALJ decided that Plaintiff could no longer perform 20 her past relevant work. AR 33. The ALJ accepted testimony from a vocational expert (“VE”) 21 that an individual of Plaintiff’s age, education, work experience and residual functional capacity 22 could perform the representative jobs of mail clerk, routing clerk and cleaner. 23 Accordingly, the ALJ concluded that Plaintiff was not “disabled” between July 18, 2011, and the 24 date of the decision. AR 34. AR 34. 25 II. ISSUES PRESENTED. 26 Plaintiff’s appeal from the ALJ’s adverse decision raises the following two issues: 27 Psychiatric evaluation notes state that 16 years ago, Plaintiff “witnessed a gang fight and death and got robbed at gunpoint.” AR 578. 2 1 28 1 (1) Whether the ALJ erred in granting reduced or no weight to the physical 2 function assessments of treating physicians Green and McIvor and in resting 3 his RFC determination exclusively on the contrary assessments of non- 4 examining review physicians. 5 (2) Whether the finding that Ms. Ruffin’s claims are not credible to the extent 6 alleged is supported by clear and convincing evidence. 7 JS at 6. 8 This appeal is about the severity of Plaintiff’s pain caused by her fibromyalgia and knee 9 surgeries (i.e., left and right knee replacements in 2009 and 2011, respectively). Between January 10 and July 2012, two doctors reviewed Plaintiff’s entire medical record (A. Wong, M.D. at AR 85- 11 96 and S. Brodsky, D.O. at AR 97-110) while a third examined Plaintiff (A. Cruz, M.D. at AR 12 439-445) and assessed her functional capacity. All three physicians found Plaintiff retained the 13 functional capacity to perform light work with some postural limitations, such as avoiding 14 kneeling, and some environmental limitations, such as avoiding exposure to extreme cold. AR 15 92-93, 104-06, 444. In contrast, Plaintiff’s treating physicians Dr. Green (a family practitioner) 16 and Dr. McIvor (an orthopedic surgeon) opined that Plaintiff was limited to less than sedentary 17 work2 (AR 349-50, 431-32 [Drs. Green and McIvor found Plaintiff only capable of standing or 18 walking for less than 1 hour during a 8-hour work day, sitting for less than 1 or 2 hours during 19 a 8-hour work day, lifting and carrying no more than 5 or 10 pounds even occasionally, needing 20 to miss work more than three times each month, etc.]; AR 492, 607, 609 [both doctors found 21 Plaintiff incapable of performing full-time work]). III. 22 ISSUE ONE DISCUSSION. A. Legal Standard. 23 24 Neither party disputes that Drs. Green and McIvor are treating physicians, and that their 25 opinions concerning Plaintiff’s limitations are contradicted by the opinions of Drs. Cruz, Wong 26 27 28 If Plaintiff were found capable of only sedentary work, which requires two hours of standing and/or walking per day, she would be found presumptively disabled by the Grid rules due to her age. JS at 21. 3 2 1 and Brodsky. When a treating physician’s opinion is contradicted by other evidence in the record, 2 the ALJ must provide “specific and legitimate reasons that are supported by substantial evidence” 3 for rejecting the treating physician’s opinion. Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 4 (9th Cir. 2008). “Substantial evidence” means “such relevant evidence as a reasonable person 5 might accept as adequate to support a conclusion.” Garrison v. Colvin, 759 F.3d 995, 1009 (9th 6 Cir. 2014). 7 8 B. The ALJ Gave Four Specific and Legitimate Reasons Supported by Substantial Evidence for Rejecting the Opinions of Drs. McIvor and Green. 9 The ALJ gave four reasons for declining to give “any weight” to the highly restrictive 10 opinions of Plaintiff’s functional capacity offered by Drs. McIvor and Green. AR 31. Each of 11 the ALJ’s four reasons is discussed below. 12 13 1. The Treating Physicians’ Extreme Opinions Lack Supporting Medical Evidence. 14 First, the ALJ stated, “The extreme limitations asserted by Dr. McIvor and Dr. Green are 15 not justified by the medical evidence. In particular, there is a lack of objective medical findings 16 to support a residual functionality for work at the sedentary or lesser level.” AR 31. Typically, 17 the lack of medical evidence supporting a treating physician’s opinion is a legitimate basis to 18 reject it. See, e.g., Edlund v. Massanari, 253 F.3d 1152,1157 (9th Cir. 2001) (rejecting treating 19 physician’s opinion that claimant suffered from a herniated disk where no MRI scan ever showed 20 a herniated disk); 20 C.F.R. § 404.1527(c)(3) (in determining the weight to give to the opinion 21 of a treating physician, the ALJ should consider factors such as the degree to which the opinion 22 is supported by relevant medical evidence). 23 Plaintiff argues that her case is not typical, because (1) Drs. Green and McIvor both based 24 their opinions of her extreme limitations on their diagnosis of fibromyalgia (JS at 18; AR 429, 25 492, 513 [Dr. Green consistently lists “fibromyalgia” as first diagnosis]; AR 347-48 [Dr. McIvor 26 identifies the “precipitating factors” leading to Plaintiff’s pain as only “fibromyalgia?”] and 27 (2) fibromyalgia is not amenable to proof by objective medical means, such as the results of MRI 28 scans or blood tests. JS at 18-19. Defendant rightly points out, however, that Plaintiff is claiming 4 1 disability based on conditions other than fibromyalgia, such as degenerative joint disease of both 2 knees. JS at 25. Thus, the ALJ appropriately considered whether there was objective, medical 3 evidence that any of the conditions claimed by Plaintiff might cause the severe limitations found 4 by Drs. Green and McIvor.3 5 The ALJ’s finding that the record lacks such medical evidence is supported by substantial 6 evidence. In November 2011, Dr. McIvor noted that although Plaintiff’s knees were “doing 7 well,” she was still “shooting for full disability due to her fibromyalgia and chronic pain” for 8 which he had made “no” supporting clinical findings. AR 31, referencing “post-operative 9 treatment notes” from Dr. McIvor at AR 322, 347. Similarly, Dr. Green noted Plaintiff had “full 10 range in motion of the extremities, without joint swelling, instability, or muscle atrophy of the 11 arms or legs.” AR 30, referencing AR 461, 468, 493. X-rays from September and October 2012 12 exhibited only “mild degenerative changes to the spine and minimal joint narrowing in the hands” 13 with no other bony or joint abnormalities. AR 30, referencing AR 519-20, 528. X-rays of her 14 post-surgery right knee showed “no abnormality.” AR 444. Nerve conduction studies (“NCS”) 15 performed in November 2012 were “normal,” except for “[m]ild left ulnar entrapment at elbow 16 (i.e., left ulnar nerve slowing),” which the examining physician specifically noted “may not even 17 be clinically significant as far as her widespread complaints.” AR 516. Physical examinations 18 also showed “a lack of extremity edema or joint crepitus, and with the exception of her knees, 19 [Plaintiff] maintained good mobility in the joints, and required no assistive device to walk.” AR 20 30, referencing AR 283, 360, 442, 495 (good/full range of motion); AR 493, 510, 525, 534, 595 21 (lack of cyanosis, clubbing, edema or crepitus); AR 443 (requiring no assistive device to 22 ambulate). 23 24 25 26 27 28 The ALJ needs only one legitimate and specific reason supported by substantial evidence to reject the severe limitations found by Drs. Green and McIvor. As a result, the Court need not resolve whether “lack of supporting medical evidence” is a legitimate reason in the context of a fibromyalgia claim. 5 3 2. 1 The Treating Physicians’ Extreme Opinions Conflict with the Findings of Examining Physician Cruz. 2 3 Second, the ALJ rejected limitations asserted by Dr. McIvor and Dr. Green as “extreme” 4 when compared to “the examination findings of record.” AR 31. In other words, the ALJ 5 determined that the opinions of Dr. McIvor and Dr. Green were inconsistent with the examination 6 findings of Dr. Cruz. Again, this is a legitimate reason for rejecting a treating physician’s 7 opinions. 8 (“Inconsistency between [examining] Dr. Grosscup’s and [treating] Dr. Reaves’s conclusions 9 provided the ALJ additional justification for rejecting Dr. Reaves’s opinion.”); 20 C.F.R. 10 § 404.1527(c)(4) (“Generally, the more consistent an opinion is with the record as a whole, the 11 more weight we will give to that opinion.”). Morgan v. Commissioner of the SSA, 169 F.3d 595, 602 (9th Cir. 1999) 12 The ALJ’s finding of inconsistency is specific and supported by substantial evidence, 13 because the ALJ provided valid examples. Cf., McAllister v. Sullivan, 888 F.2d 599, 602 (9th 14 Cir. 1989) (finding that rejecting the treating physician’s opinion on the grounds that it was 15 contrary to clinical findings in the record was “broad and vague, failing to specify why the ALJ 16 felt the treating physician’s opinion was flawed”). Here, the ALJ referenced Dr. Cruz’s findings 17 that Plaintiff had “normal motor strength” in all of her extremities and could walk without an 18 assistive device, along with Dr. Green’s finding that Plaintiff lacked the muscle atrophy that one 19 would expect in a person who spends nearly all of her time lying down. AR 31, referencing AR 20 441-43, 468. Dr. Cruz even found that Plaintiff could get on and off the examining table without 21 difficulty. AR 443. Dr. Cruz concluded that Plaintiff could sit, stand or walk for 6 hours during 22 an 8-hour day. AR 31, referencing AR 444. These findings are inconsistent with the findings of 23 Drs. Green and McIvor that Plaintiff experiences pain so disabling that she must lie down most 24 of the time (i.e., Plaintiff can only sit, stand or walk for less than 1 or 2 hours during an 8-hour 25 day). Similarly, Dr. Green found that Plaintiff was completely restricted from pushing or pulling 26 or ever lifting more than 5 pounds (AR 432, 435), which is inconsistent with Dr. Cruz’s 27 observations that Plaintiff’s “range of motion” in her shoulders and wrists was “grossly normal” 28 6 1 and she had normal strength in her extremities (AR 443) and even Dr. McIvor’s opinion which 2 did not specify any limitations on pushing or pulling (AR 350-51). 3. 3 The Treating Physicians’ Extreme Opinions Conflict with Plaintiff’s Positive Response to Treatment. 4 5 Third, the ALJ rejected limitations asserted by Dr. McIvor and Dr. Green as “extreme” 6 when compared to Plaintiff’s “response to treatment.” AR 31. The ALJ noted that the “treatment 7 which has been rendered, to include medications, has been beneficial in alleviating her pain, at 8 least to some degree.” AR 33. Again, this is a legitimate consideration. 9 “[F]avorable responses to treatment can 10 undermine a claimant’s complaints of debilitating pain.” De Herrera v. Astrue, 372 Fed. App’x 11 771, 774 (9th Cir. 2010); see also Budde v. Callahan, 1997 U.S. App. LEXIS 27175, *3 (9th Cir. 12 Oct. 1, 1997) (unpub.) (rejecting treating physician’s opinion where it was inconsistent with a 13 report showing “a positive response to treatment.”). The ALJ’s finding that Plaintiff has responded positively to treatment is supported by 14 15 substantial evidence. The ALJ noted that at the hearing, Plaintiff “explained she used 16 medications for her pain and she described them as helpful.” AR 29, referencing AR 58 (Plaintiff 17 described hydrocodone as “helpful” for her pain, but “it makes me go to sleep”4 and causes 18 nausea) and AR 61 (Plaintiff testified nortriptyline and Cymbalta “help”). Plaintiff told Dr. 19 Green that she did not want to stop the anti-depressant nortriptyline because it was helping. AR 20 31 referencing AR 493. The ALJ also noted that Dr. Green’s own records reflect symptom 21 improvement with medication (AR 31 referencing AR 465 [“Pain as before, not as bad” and “No 22 side effects” to medication], AR 473 [“Some slight decrease in pain” and “ibuprofen 800 starting 23 to bother her stomach does help for pain”]) and that Dr. Green characterized Plaintiff as appearing 24 “comfortable” at her appointments (AR 31 referencing, e.g., AR 285, 287, 289, 290, 294). The 25 ALJ also noted that Plaintiff has “not sought or required treatment in a pain clinic.” AR 31. 26 Notes from 2012 treatment at Growth in Action Therapy Services say, “Patient was in good 27 28 4 Elsewhere, Plaintiff testified, “I pretty much don’t sleep much” because of pain. AR 66. 7 1 spirits. She discussed that her pain was mild and had fun during the Labor Day holiday with 2 family.” AR 570. The ALJ also noted that in February 2013, Plaintiff was “reporting moderate 3 improvement without any adverse side effects to medication.” AR 30 referencing AR 573 4 (treatment records from Dr. Nallamothu of Inland Psychiatric Medical Group that say, 5 “Medication Response: Moderate improvement” and “Side Effects/Adverse Reactions: 6 Denied”). Plaintiff testified that she had visited Dr. Nallamothu five times. AR 62. 7 Plaintiff does not dispute that she has obtained some relief from medication. Plaintiff, 8 however, contends that such relief has been “partial” and “intermittent” and therefore not 9 “meaningful.” JS at 17. The ALJ, however, did not find that Plaintiff’s medication regimen 10 totally and permanently eliminated her pain, but rather that it alleviated her pain sufficiently that 11 Plaintiff could perform light work with additional restrictions. Thus, even partial and intermittent 12 pain relief from treatment tends to undercut the opinions of Drs. Green and McIvor that Plaintiff 13 cannot do even sedentary work. 14 15 4. The Treating Physicians’ Extreme Opinions Rely on Plaintiff’s Discredited Subjective Testimony. 16 Fourth and finally, the ALJ rejected the opinions of Drs. Green and McIvor citing as a 17 reason that they lack “any objective evidence to support restrictions to this degree or extent.” AR 18 31. This is a reference not just to the lack of supporting medical evidence, discussed above (e.g., 19 MRI scans or blood tests), but also to the lack of any objective evidence that would support the 20 conclusion Plaintiff’s pain is so debilitating, she must spend most of her time lying down (e.g., 21 personal observations or videos of Plaintiff performing daily activities, the results of exertion 22 testing, etc.). A treating physician’s opinion of disability “premised to a large extent upon the 23 claimant’s own accounts of his symptoms and limitations” may be disregarded where those 24 complaints have been “properly discounted.” Fair v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989), 25 citing Brawner v. Secretary of Health & Human Servs., 839 F.2d 432, 433-34 (9th Cir. 1988) 26 (ALJ appropriately found that the medical opinions “were not based on clinical or otherwise 27 reliable evidence, but on [claimant’s] own complaints” and because “[claimant’s] conduct 28 undermined his credibility, it was reasonable to question the reliability of a physician’s opinion” 8 1 relying on such complaints); cf., Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2 2008) (psychiatric evaluation was not based entirely on claimant’s subjective complaints where 3 the doctor included his own observations from clinical visits that supported his opinions, such as 4 odd mannerisms, rapid speech and agitation). 5 Here, the questionnaires completed by Drs. Green and McIvor do not contain any of their 6 own observations of Plaintiff trying to accomplish some exertion-related task, but being unable 7 to do so because of debilitating pain.5 Instead, both doctors are necessarily relying on Plaintiff’s 8 own account of the degree of her pain in opining that it is so severe, she cannot sit, walk or stand 9 for more than 1 or 2 hours each day. Plaintiff’s own testimony that she spends most of her life 10 lying down was appropriately found less than credible, for the reasons discussed below in 11 connection with Issue Two. As a result, the ALJ provided yet another “specific, legitimate reason 12 for rejecting the opinion of a treating physician” such as Drs. Green and McIvor. Fair, 885 F.2d 13 at 605. IV. 14 ISSUE TWO DISCUSSION. A. Legal Standard. 15 16 If a claimant produces evidence that he or she suffers from an ailment that could cause 17 pain, then the ALJ can reject the claimant’s testimony about the severity of his or her symptoms 18 “only by offering specific, clear and convincing reasons for doing so.” Light v. Soc. Sec. Admin., 19 119 F.3d 789, 792 (9th Cir. 1997). In weighing a claimant’s credibility, the ALJ may consider 20 his reputation for truthfulness, inconsistencies either in his testimony or between his testimony 21 and his conduct, his daily activities, his work record, and testimony from physicians and third 22 parties concerning the nature, severity, and effect of the symptoms of which he complains. Id. 23 But, because a claimant need not present clinical or diagnostic evidence to support the severity 24 of his pain, a finding that the claimant lacks credibility cannot be premised wholly on a lack of 25 medical support for the severity of his pain. Id. (citations omitted). “Excess pain is, by definition, 26 27 28 Plaintiff’s activities that both doctors would have been able to observe (e.g., driving to appointments, walking unassisted into the office, getting on and off the examining table, looking “alert and comfortable” [AR 63, 443, 285]) are inconsistent with total disability. 9 5 1 pain that is unsupported by objective medical findings.” Cotton v. Bowen, 799 F.2d 1403, 1407 2 (9th Cir. 1986). 3 If the ALJ’s credibility determination, however, relies on a conflict between the medical 4 evidence and the claimant’s subjective testimony, then that is a valid reason for rejecting the 5 claimant’s credibility. 6 complaints and the objective medical evidence in the record can constitute specific and 7 substantial reasons that undermine credibility.” Brumley v. Comm’r. of Soc. Sec., 2012 U.S. 8 Dist. LEXIS 85771, *20 (E.D. Cal. June 20, 2012), citing Morgan v. Comm’r. of Soc. Sec. 9 Admin., 169 F.3d 595, 600 (9th Cir. 1999). To rely on a conflict, “the ALJ must identify what 10 testimony is not credible and what evidence undermines the claimant’s complaints.” Lester v. 11 Chater, 81 F.3d 821, 834 (9th Cir. 1995). Generally, “conflicts between a claimant’s testimony of subjective B. The ALJ Properly Discredited Plaintiff’s Subjective Testimony by Citing 12 Conflicts Between that Testimony and the Medical Evidence. 13 14 Here, the ALJ did exactly that. The ALJ “carefully considered the claimant’s allegations 15 and testimony of chronic, debilitating pain … precluding the performance of all types of gainful 16 work.” AR 33. The ALJ determined that her “subjective allegations are not supported by 17 evidence of record and they are in conflict with those findings.” Id. (emph. added). For this 18 reason, the ALJ concluded that Plaintiff’s “statements concerning the intensity, persistence and 19 limiting effects of [her] symptoms are not entirely credible ….” AR 29. 20 Specifically, the ALJ noted that “claimant described a relatively inactive lifestyle, and as 21 having difficulty with virtually every area of functioning, including talking, hearing, seeing, 22 memory and concentration.” AR 31. This accurately summarizes Plaintiff’s testimony at the 23 hearing and her Adult Function Report. 24 At the hearing, Plaintiff testified she experienced pain throughout her “whole body” while 25 trying to work as a preschool teacher. AR 52. Now, she “pretty much stays in [her] room” and 26 just “sleeps a lot.” AR 54, 61.6 She spends “at least” 6 hours of each 8-hour day lying in bed or 27 28 6 She also testified, “I pretty much don’t sleep much” because of pain. AR 66. 10 1 on a reclining lounge chair. AR 65. Sometimes for three days at a time, she never leaves her 2 room even to go to the lounge chair. AR 69. She spends “at least four to five” days every week 3 “in [her] room all day.”7 AR 70. She usually stays in her pajamas all day. AR 65. She estimated 4 that she could only sit or stand for 15 minutes. AR 61. She cannot lift a gallon of milk, because 5 such exertion causes “too much pain.” AR 60. She does not read because it is too “hard to hold 6 the book.” AR 63. She cannot fold laundry because that requires “putting [her] arms up.” AR 7 64. She has “a really hard time writing” because of pain. AR 67. 8 In her Adult Function Report, she reported, “I don’t sleep much. My sleeping pills used 9 to work, but mostly I wake up in pain all night.” AR 213. She can only walk for 5-10 minutes. 10 AR 217. She says, “My memory is not too good when in pain too much.” AR 214. Similarly, 11 she reported, “If I’m in so much pain I think very slow ….” AR 215. In response to a question 12 asking her to check boxes indicating which of 19 items are affected by her condition, she checked 13 all 19 boxes, including seeing, talking and hearing. AR 217. She cannot follow a recipe to make 14 cookies without losing concentration and getting confused. AR 217. 15 The ALJ found that the severity of Plaintiff’s self-reported limitations is inconsistent with 16 medical observations in the record, providing specific examples. The ALJ noted “despite the 17 reporting of [Plaintiff] having pervasive and chronic pain, [Plaintiff] showed no muscle atrophy 18 in the arms or legs.” AR 31, referencing findings of Dr. Green (who noted “no atrophy arms or 19 legs” [AR 468]) and Dr. Cruz (who noted muscle “strength is 5/5 in all extremities” which is 20 normal [AR 443]). If Plaintiff were as inactive as she reported (i.e., lying down nearly all the 21 time), then reasonably, there would be at least some evidence of atrophy of her back or legs or 22 diminished muscle strength. See, e.g., Osenbrock v. Apfel, 240 F.3d 1157, 1166 (9th Cir. 2001) 23 (ALJ properly discredited excess pain testimony because “there is no evidence of disuse muscle 24 atrophy”); Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (ALJ properly discredited 25 testimony that claimant “experienced constant pain that required her to lie in a fetal position all 26 day” by noting that claimant did not exhibit “muscular atrophy or any other physical signs of an 27 Elsewhere she estimated that 3 or 4 days each week, she can leave her room and prepare a meal requiring minimal exertion, such as microwaving or making a sandwich. AR 64, 214. 11 7 28 1 inactive, totally incapacitated individual”); Cotton v. Astrue, 374 Fed. App’x 769, 770 (9th Cir. 2 2010) (unpub.) (ALJ properly discredited testimony that chronic fatigue, pain and fibromyalgia 3 that caused claimant to stay in bed for days, in part, because there was “no objective evidence of 4 a back disorder, loss of motor strength, diminished reflexes, dermatomal loss of sensation, spasm, 5 or loss of joint motion”); Stiles v. Astrue, 256 Fed. App’x 994, 997 (9th Cir. 2007) (unpub.) (ALJ 6 properly discredited excess pain testimony because there was “no evidence of disuse muscle 7 atrophy or wasting commonly associated with severe pain”); Lasich v. Astrue, 252 Fed. App’x 8 823, 825 (9th Cir. 2007) (unpub.) (ALJ properly discredited excess pain testimony due to “a lack 9 of muscle atrophy and weakness” to support claims of “inactivity, chronic fatigue and bedrest”). 10 The ALJ also noted that typical “manifestations of chronic pain” other than muscle atrophy, such 11 as “joint swelling, heat or effusion, have also not been apparent on examination.” AR 31, 12 referencing AR 461, 468 (Dr. Green found “no pedal edema or calf tenderness”) and AR 493 13 (“no crepitus, heat or effusion” and “no joint swelling around the ankles”). 14 Plaintiff argues that the ALJ was improperly practicing medicine by concluding that 15 clinical findings of muscle atrophy “must underlie a claim of disabling fibromyalgia.” JS at 39. 16 Not so. Certainly, a person can have fibromyalgia and not exhibit any muscle atrophy. Estok v. 17 Apfel, 152 F.3d 636, 640 (7th Cir. 1998) (“[F]ibromyalgia is not always (indeed, not usually) 18 disabling.”). If, however, a person claims that her fibromyalgia is so severe that it causes her to 19 spend the most of her life lying down, as Plaintiff testified in this case, then that person should 20 exhibit some loss of muscle strength and atrophy. 21 inconsistency between Plaintiff’s testimony and the clinical findings that she does not exhibit 22 muscle atrophy or other physical manifestations of chronic pain was a valid reason for the ALJ 23 to discredit her testimony. Per the above-cited authorities, the 24 There are other conflicts between Plaintiff’s testimony and the medical evidence in this 25 case. Even as to pain, on a scale of 1-10, Dr. Green indicated that her pain ranged between 4 (the 26 lowest number designated “moderate”) and 9 (“severe”) while Dr. McIvor circled a range from 27 4-6 (the “moderate” range). AR 431, 349. Both said Plaintiff’s condition would cause her to 28 experience “good days” and “bad days.” AR 435, 353. In contrast, Plaintiff testified that she 12 1 does not have any “good days.” AR 70. Her self-reported, extreme limitations on daily activities 2 are inconsistent with ever spending days in only the “moderate” range of pain. 3 The ALJ also pointed to conflicts between Plaintiff’s testimony and “the mental status 4 findings as recorded by her own treating source.” AR 32, citing to records from Dr. Nallamothu 5 of Inland Psychiatric Medical Group. Dr. Nallamothu opined that Plaintiff’s thought process, 6 memory and judgment were all “intact.” AR 580. The ALJ also noted conflicts between 7 Plaintiff’s testimony and Dr. Cruz’s evaluation. AR 32. For example, Dr. Cruz observed that 8 claimant was “in no acute distress,” “able to drive to the clinic” and “able to hear the conversation 9 across the examining room.” AR 439, 441. Dr. Cruz opined that claimant could lift or carry ten 10 pounds frequently and stand or walk for 6 hours in an 8-hour day. AR 444. These opinions are 11 inconsistent with Plaintiff’s testimony that her pain interferes with her concentration and 12 functioning to such a severe extent that she has trouble hearing, speaking, thinking, remembering 13 and following simple instructions like a cookie recipe. Thus, the ALJ’s adverse credibility 14 determination is supported by substantial evidence. 15 V. 16 Based on the foregoing, IT IS ORDERED THAT judgment shall be entered AFFIRMING 17 CONCLUSION. the decision of the Commissioner denying benefits. 18 19 20 21 22 Dated: October 06, 2015 ______________________________ KAREN E. SCOTT United States Magistrate Judge 23 24 25 26 27 28 13
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