Phillip E. Hatcher v. Carolyn W. Colvin, No. 5:2015cv01352 - Document 28 (C.D. Cal. 2016)
Court Description: MEMORANDUM DECISION AND ORDER AFFIRMING COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner, DENYING Plaintiff's request for remand, and DISMISSING this action with prejudice. (See Order for details) (bem)
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Phillip E. Hatcher v. Carolyn W. Colvin Doc. 28 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 PHILLIP E. HATCHER,1 Plaintiff, 12 13 v. 14 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 15 Defendant. 16 ) Case No. EDCV 15-1352-JPR ) ) ) MEMORANDUM DECISION AND ORDER ) AFFIRMING COMMISSIONER ) ) ) ) ) ) ) 17 18 19 I. PROCEEDINGS Plaintiff seeks review of the Commissioner’s final decision 20 denying his applications for Social Security disability insurance 21 benefits (“DIB”) and supplemental security income benefits 22 (“SSI”). 23 undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c). 24 matter is before the Court on the parties’ Joint Stipulation, 25 filed June 24, 2016, which the Court has taken under submission The parties consented to the jurisdiction of the The 26 27 28 1 The documents in the Administrative Record seem to indicate that Plaintiff’s first name is spelled with one “l.” The Court uses the spelling on the Complaint, however. 1 Dockets.Justia.com 1 without oral argument. 2 Commissioner’s decision is affirmed. 3 II. 4 For the reasons stated below, the BACKGROUND Plaintiff was born in 1959. (Administrative Record (“AR”) 5 31.) 6 supervisor, sales assistant, auto detailer, and plumber (AR 7 1056). He obtained a GED (AR 1034) and worked as a construction 8 On January 27, 2012, Plaintiff filed an application for SSI 9 and on January 30 he filed one for DIB, alleging in each that he 10 had been unable to work since October 1, 2006 (AR 99, 153), 11 because of two shoulder surgeries and “constant low back pain” 12 radiating down his legs (AR 31, 163). 13 were denied initially and on reconsideration, he requested a 14 hearing before an Administrative Law Judge. 15 was held on January 29, 2013, at which Plaintiff, who was 16 represented by counsel, testified, as did a vocational expert. 17 (AR 1030-66.) 18 onset date to January 1, 2011. 19 issued December 26, 2013, the ALJ found Plaintiff not disabled. 20 (AR 13-29.) 21 and on May 11, 2015, it denied review. 22 followed. 23 III. STANDARD OF REVIEW 24 After his applications (AR 67.) A hearing At the hearing, Plaintiff amended his alleged (AR 1052.) In a written decision Plaintiff requested review from the Appeals Council, (AR 7-10.) This action Under 42 U.S.C. § 405(g), a district court may review the 25 Commissioner’s decision to deny benefits. 26 decision should be upheld if they are free of legal error and 27 supported by substantial evidence based on the record as a whole. 28 See id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra 2 The ALJ’s findings and 1 v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial 2 evidence means such evidence as a reasonable person might accept 3 as adequate to support a conclusion. 4 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 5 It is more than a scintilla but less than a preponderance. 6 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 7 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 8 substantial evidence supports a finding, the reviewing court 9 “must review the administrative record as a whole, weighing both Richardson, 402 U.S. at To determine whether 10 the evidence that supports and the evidence that detracts from 11 the Commissioner’s conclusion.” 12 720 (9th Cir. 1996). 13 either affirming or reversing,” the reviewing court “may not 14 substitute its judgment” for the Commissioner’s. 15 IV. Reddick v. Chater, 157 F.3d 715, “If the evidence can reasonably support Id. at 720-21. THE EVALUATION OF DISABILITY 16 People are “disabled” for purposes of receiving Social 17 Security benefits if they are unable to engage in any substantial 18 gainful activity owing to a physical or mental impairment that is 19 expected to result in death or has lasted, or is expected to 20 last, for a continuous period of at least 12 months. 21 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 22 1992). 42 U.S.C. 23 A. The Five-Step Evaluation Process 24 The ALJ follows a five-step sequential evaluation process to 25 assess whether a claimant is disabled. 26 §§ 404.1520(a)(4), 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 27 828 n.5 (9th Cir. 1995) (as amended Apr. 9, 1996). 28 step, the Commissioner must determine whether the claimant is 3 20 C.F.R. In the first 1 currently engaged in substantial gainful activity; if so, the 2 claimant is not disabled and the claim must be denied. 3 §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). 4 If the claimant is not engaged in substantial gainful 5 activity, the second step requires the Commissioner to determine 6 whether the claimant has a “severe” impairment or combination of 7 impairments significantly limiting his ability to do basic work 8 activities; if not, the claimant is not disabled and his claim 9 must be denied. 10 §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a “severe” impairment or combination of 11 impairments, the third step requires the Commissioner to 12 determine whether the impairment or combination of impairments 13 meets or equals an impairment in the Listing of Impairments 14 (“Listing”) set forth at 20 C.F.R. part 404, subpart P, appendix 15 1; if so, disability is conclusively presumed. 16 §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). 17 If the claimant’s impairment or combination of impairments 18 does not meet or equal an impairment in the Listing, the fourth 19 step requires the Commissioner to determine whether the claimant 20 has sufficient residual functional capacity (“RFC”)2 to perform 21 his past work; if so, he is not disabled and the claim must be 22 denied. 23 has the burden of proving he is unable to perform past relevant 24 work. 25 burden, a prima facie case of disability is established. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). Drouin, 966 F.2d at 1257. The claimant If the claimant meets that Id. 26 27 28 2 RFC is what a claimant can do despite existing exertional and nonexertional limitations. §§ 404.1545, 416.945; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 4 1 If that happens or if the claimant has no past relevant 2 work, the Commissioner then bears the burden of establishing that 3 the claimant is not disabled because he can perform other 4 substantial gainful work available in the national economy. 5 §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Drouin, 966 F.2d at 1257. 6 That determination comprises the fifth and final step in the 7 sequential analysis. 8 Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257. 9 B. 10 §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); The ALJ’s Application of the Five-Step Process At step one, the ALJ found that Plaintiff had not engaged in 11 substantial gainful activity since January 1, 2011, the alleged 12 onset date. 13 had severe impairments of degenerative disc disease, 14 spondylosis,3 degenerative joint disease, chronic pain, 15 hypertension, and compression fracture. 16 determined that Plaintiff’s impairments did not meet or equal a 17 listing. 18 (AR 19.) At step two, he concluded that Plaintiff (Id.) At step three, he (AR 20.) At step four, the ALJ found that Plaintiff had the RFC to 19 perform light work but was limited to “occasional postural 20 activities” and “occasional overhead reaching bilaterally.” 21 21.) 22 and should avoid all exposure to hazards. 23 to unskilled work “largely due to [his] physical impairments” and 24 “must be allowed to have a sit/stand option every 30 minutes.” 25 (Id.) 26 limit Plaintiff to four hours of standing a day, consistent with (AR Plaintiff could never climb ladders, ropes, or scaffolds (Id.) He was limited The Commissioner contends that by this the ALJ intended to 27 28 3 Spondylosis refers generally to degeneration of the vertebrae. Stedman’s Medical Dictionary 1678 (27th ed. 2000). 5 1 the treating doctors’ opinions. 2 (J. Stip. at 13.) Based on the VE’s testimony, the ALJ concluded that 3 Plaintiff could not perform his past relevant work. (AR 26-27.) 4 At step five, he relied on the VE’s testimony to find that given 5 Plaintiff’s RFC for light work “impeded by additional 6 limitations,” he could perform three light, unskilled 7 “representative occupations” in the national economy: (1) “small 8 products assembler II,” DOT 739.687-030, 1991 WL 680180; (2) 9 “cashier II,” DOT 211.462-010, 1991 WL 671840; and (3) “bench 10 assembler,” DOT 706.684-042, 1991 WL 679055. (AR 27-28.) 11 Accordingly, he found Plaintiff not disabled. (AR 29.) 12 V. 13 DISCUSSION Plaintiff argues that the ALJ erred in (1) assessing his 14 standing and reaching limitations; (2) assessing his credibility; 15 and (3) finding that he could perform light-exertion jobs. 16 J. Stip. at 4.) (See 17 A. 18 Plaintiff contends that the ALJ failed to properly assess The ALJ Properly Assessed the Medical Evidence 19 the medical evidence: specifically, he erred in “rejecting” the 20 opinions of Dr. Giorgio Roveran, Dr. Andrew Guo, and Dr. Roy 21 Rusch by finding that he could work with a “sit/stand option 22 every 30 minutes” and in “rejecting” the opinion of Dr. Mark 23 Stern by finding that Plaintiff had no forward- or side-reaching 24 limitations. 25 below, remand is not warranted on this ground. 26 1. (Id. at 6-12, 22-26.) For the reasons discussed Applicable law 27 Three types of physicians may offer opinions in Social 28 Security cases: (1) those who directly treated the plaintiff, (2) 6 1 those who examined but did not treat the plaintiff, and (3) those 2 who did neither. 3 opinion is generally entitled to more weight than an examining 4 physician’s, and an examining physician’s opinion is generally 5 entitled to more weight than a nonexamining physician’s. Lester, 81 F.3d at 830. A treating physician’s Id. 6 This is so because treating physicians are employed to cure 7 and have a greater opportunity to know and observe the claimant. 8 Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). 9 treating physician’s opinion is well supported by medically If a 10 acceptable clinical and laboratory diagnostic techniques and is 11 not inconsistent with the other substantial evidence in the 12 record, it should be given controlling weight. 13 §§ 404.1527(c)(2), 416.927(c)(2). 14 opinion is not given controlling weight, its weight is determined 15 by length of the treatment relationship, frequency of 16 examination, nature and extent of the treatment relationship, 17 amount of evidence supporting the opinion, consistency with the 18 record as a whole, the doctor’s area of specialization, and other 19 factors. 20 If a treating physician’s §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6). When a treating physician’s opinion is not contradicted by 21 other evidence in the record, it may be rejected only for “clear 22 and convincing” reasons. 23 Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) (citing Lester, 81 24 F.3d at 830-31). 25 only “specific and legitimate reasons” for discounting it. 26 (citing Lester, 81 F.3d at 830-31). 27 not accept the opinion of any physician, including a treating 28 physician, if that opinion is brief, conclusory, and inadequately See Carmickle v. Comm’r, Soc. Sec. When it is contradicted, the ALJ must provide 7 Id. Furthermore, “[t]he ALJ need 1 supported by clinical findings.” 2 947, 957 (9th Cir. 2002); accord Batson v. Comm’r of Soc. Sec. 3 Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). 4 2. 5 Relevant background a. 6 Thomas v. Barnhart, 278 F.3d Dr. Sheralene Ng Since the alleged onset date, January 1, 2011, Plaintiff had 7 been prescribed oxycodone and acetaminophen for his pain by his 8 primary-care doctor, Sheralene H. Ng.4 9 car accident on April 9, 2011, and was taken to the emergency (AR 545.) He was in a 10 room. 11 up on the ER visit, complaining of neck pain. 12 Ng noted that his neck pain “had resolved.” 13 wanted to see an orthopaedic specialist to check his right 14 shoulder and his “chronic lower back pain.” 15 that Plaintiff was “unable to lift over [his] head” on the right 16 side but had “no spinal tenderness.” 17 reported a “9/10” pain level in his right shoulder. 18 Dr. Ng referred him to an orthopaedic specialist. 19 (AR 293.) On April 22, 2011, he met with Dr. Ng to follow (AR 284-86.) (AR 284.) (Id.) (AR 285.) Dr. Plaintiff Dr. Ng noted Plaintiff (AR 287.) (AR 285.) On April 26, 2011, Plaintiff had x-rays of his lumbar spine 20 and right shoulder because of his “worsening back pain” and 21 right-shoulder pain. 22 (id.), but the shoulder x-ray showed “unchanged” minimal chronic 23 degenerative joint disease when compared to an image from 24 February 10, 2009 (AR 310, 361), and the lumbar-spine x-ray (AR 309-10.) Both revealed abnormalities 25 4 26 27 28 Oxycodone is an opiate used to relieve moderate to severe pain. See Oxycodone, MedLinePlus, https://medlineplus.gov/ druginfo/meds/a682132.html (last updated Aug. 15, 2016). Acetaminophen is a nonprescription pain reliever. See Acetaminophen, MedlinePlus, https://medlineplus.gov/druginfo/ meds/a681004.html (last updated Aug. 15, 2014). 8 1 showed “[s]evere” degenerative joint disease with “marginal” 2 osteophytosis present at L1-5, which indicated no “acute” change 3 from an image also taken on February 10, 2009 (AR 309, 362). 4 On May 26, 2011, Plaintiff complained of “constant neck 5 pain” and headaches, stating that he had hit his head on a garage 6 door after a fall. 7 specialist and stated that he had noticed memory loss. 8 June 8, 2011, Plaintiff complained of “low back” and knee pain, 9 both of which he rated as nine out of 10. (AR 277.) He requested referral to a (AR 275.) (Id.) On Dr. Ng 10 noted that Plaintiff had “not discussed his knee pain with [her] 11 before” and requested more history about his knees. 12 registered nurse reviewed Plaintiff’s records and informed Dr. Ng 13 that Plaintiff was seen by an orthopaedist for knee issues and 14 surgery in March 2007. 15 (AR 276.) A (AR 277.) On March 7, 2012, Plaintiff complained of right-shoulder and 16 left-index-finger pain. 17 “had seen a lawyer” and wanted Dr. Ng to “sign to say that he 18 cannot work as he wants to get SSI and disability.” 19 noted that Plaintiff had decreased range of motion in his right 20 shoulder and swelling and tenderness in his left index finger. 21 (AR 250-51.) 22 continuing pain medication and referral to a specialist to make a 23 functional assessment for disability purposes. 24 March 14, 2012, Plaintiff returned to Dr. Ng, complaining of back 25 pain. 26 provide a note stating that his condition was “the same [as] last 27 yr.” (AR 249.) Dr. Ng noted that Plaintiff (Id.) She For Plaintiff’s back pain, Dr. Ng recommended (AR 246.) (AR 251.) On On June 29, 2012, Plaintiff asked Dr. Ng to (AR 480.) 28 9 1 b. 2 Dr. Bryan H. To Dr. Bryan H. To, a consulting examiner specializing in 3 internal medicine, examined Plaintiff on July 27, 2011. (AR 226- 4 30.) 5 “radiation down his left leg more than [his] right leg.” 6 226.) 7 minutes or standing for 30 minutes. 8 Plaintiff’s grip strength; he had slightly better grip with his 9 left, nondominant hand, but both hands had grip strength of at Plaintiff reported back pain that was “getting worse,” with (AR He said his back pain was aggravated by sitting for 10 (Id.) Dr. To tested 10 least 110 pounds.5 11 “ambulat[ed] with a normal gait” and did not use any assistive 12 devices. 13 pain during the exam”; Dr. To found that Plaintiff had decreased 14 range of motion in his back but normal range of motion in his 15 knees and other extremities. 16 examination, Dr. To found that Plaintiff could push, pull, lift, 17 and carry 20 pounds occasionally and 10 pounds frequently; stand 18 and walk for six hours in an eight-hour workday; sit with no 19 restrictions; frequently walk on uneven terrain, climb ladders, 20 and work with heights; use his hands for fine and gross 21 manipulative movements without restriction; frequently bend, 22 kneel, stoop, crawl, and crouch; and hear and see with no 23 restrictions. 24 from working with heavy and moving machineries.” (Id.) (AR 227.) Dr. To reported that Plaintiff Plaintiff “complain[ed] of some range of motion (AR 229-30.) (AR 228-29.) Based on his Dr. To “would restrict [Plaintiff] (AR 230.) He 25 26 27 28 5 The mean grip strength for men Plaintiff’s then age, 52, is apparently about 114 pounds on the right and 102 on the left. See JAMAR Hydrolic Hand Dynamometer User Instructions (2004) https://www.chponline.com/store/pdfs/j-20.pdf (last visited Nov. 21, 2016). 10 1 reviewed two x-rays, of Plaintiff’s lumbar spine and right knee. 2 (AR 231.) 3 L1 of unknown age,” “[l]evo-scoliosis,”6 and “[s]pondylosis.” 4 (Id.) 5 degenerative changes of the knee and patello-femoral joints.” 6 (Id.) The knee x-ray showed “well-maintained” joints and “early 7 c. 8 9 The spine x-ray showed an “old compression fracture of Dr. Roger Gustafson On June 29, 2011, Plaintiff met with Dr. Roger Gustafson, an orthopaedic surgeon. (AR 273-74.) He complained of low-back 10 pain “7/10” and “radiating numbness and tingling down [his] 11 legs.” 12 “normal heel/toe walk.” 13 of Plaintiff’s lumbar spine and found “[m]ultilevel neural 14 foraminal stenosis,” a “stable old 40% anterior compression 15 fracture of L1,” and a “6mm posterior subluxation of L1.” 16 274.) 17 conservative treatment. 18 29, 2011, and it was noted that his right knee had normal 19 patellar tracking, minimal narrowing of the medial-knee-joint 20 compartment, patella spurring, and a possible loose body. 21 307.) 22 minimal narrowing, and normal patellar tracking. 23 noted that “[n]o att[ention] [was] needed.” Dr. Gustafson noted that Plaintiff had a (Id.) He looked at an April 1, 2009 MRI (AR Dr. Gustafson noted that Plaintiff preferred to start with (Id.) Plaintiff had an x-ray on June (AR In his left knee, he had minimal patellar spurring, d. 24 25 (AR 273.) (Id.) It was (Id.) Dr. Bradley Cole On July 14, 2011, Plaintiff had a consult with Dr. Bradley 26 27 28 6 Levo-scoliosis is abnormal lateral and rotational curvature of the vertebral column on the left side. Stedman’s, supra, at 994, 1606. 11 1 Cole, a neurologist. 2 neck pain and headaches following an accident in “late April,” 3 when he “hit his head on a garage door.” 4 neurologic examination and head CT were both normal, and 5 Plaintiff reported that his “symptoms [were] back to baseline” 6 and that “his headaches [were] better than they were years ago.” 7 (AR 269.) 8 that he was “able to perform tandem gait unassisted.” Plaintiff was complaining of (AR 268.) The Dr. Cole found Plaintiff’s gait “steady” and noted 9 10 (AR 268-70.) e. (Id.) Dr. Stern On July 28, 2011, Plaintiff met with Dr. Stern, an 11 orthopaedic specialist. 12 [his] right knee when he squats.” 13 swelling, deformity, or atrophy in Plaintiff’s right knee, which 14 had a full range of motion without pain. 15 Plaintiff had mild degenerative joint disease and a “possible” 16 loose body in his right knee. 17 right knee (id.), which Plaintiff had on July 29, 2011 (AR 304). 18 Plaintiff had 16-millimeter and 13-millimeter calcified intra- 19 articular loose bodies and a “probable anterior cruciate ligament 20 tear.” 21 joint effusion. 22 (AR 306.) (AR 267.) He reported “new” “pain in (Id.) (Id.) Dr. Stern found no (Id.) He noted that He ordered an MRI of the He had mild degenerative disease and small (Id.) On September 1, 2011, Plaintiff complained of bilateral knee 23 and right-shoulder pain. (AR 265.) Dr. Stern found that 24 Plaintiff had no diminished strength, swelling, or deformity. 25 (Id.) 26 reported “aching pain” in his right knee after the testing. 27 (Id.) 28 pain with “external rotation,” but he had severe tenderness and He had full range of motion in both knees without pain but A shoulder examination found no diminished strength and no 12 1 pain at “anterior-lateral aspect” of his shoulder with internal 2 rotation. 3 knee but had one in his right shoulder. 4 his left knee on October 17, 2011. 5 he had a “possible oblique tear.” 6 significant joint effusion, or degenerative disease were seen. 7 (AR 304.) 8 9 (Id.) Plaintiff refused a steroid injection for his (Id.) (AR 302.) (AR 303.) He had an MRI on It was noted that No fracture, On October 11, 2012, Plaintiff contacted Dr. Stern to ask for “a note to his attorney documenting that he cannot reach out 10 or work overhead without severe pain in the right shoulder.” 11 758.) 12 Dr. Stern wrote: (AR Relying on Dr. Rusch’s treatment note from May 17, 2012, 13 [Plaintiff] has been followed in the Orthopedic Clinic 14 for a severely painful right shoulder. 15 exacerbated by reaching out and by working overhead. This pain is 16 (Id.) 17 “acromio-clavicular joint arthritis and bursitis.” Plaintiff’s diagnoses were “gleno-humeral arthritis” and 18 19 f. (Id.) Other radiology reports On March 25, 2012, Plaintiff had an x-ray of his right knee, 20 which he had recently reinjured by falling. 21 comparison with a May 17, 2007 image, there was medial 22 compartment narrowing amounting to no “appreciabl[e] change[],” 23 “mild proliferative changes,” and “medial and lateral 24 chondrocalcinosis, which was not demonstrated on the previous 25 study.” 26 (Id.) 27 28 (AR 352.) (AR 351.) In A new possible loose body was identified. On March 27, 2012, Plaintiff had an x-ray of his right shoulder. (AR 350.) The x-ray showed moderate degenerative 13 1 change, with spurring (AR 350), from an April 22, 2011 study (AR 2 284-86). 3 “no substantial interval changes” were found. There was no evidence of fracture or subluxation, and 4 5 g. (Id.) Dr. Guo On April 20, 2012, Plaintiff was seen by Dr. Guo, a 6 specialist in occupational medicine, for a functional evaluation 7 of his right shoulder and right knee. 8 complained of “increasing pain in the knee with accelerated 9 development of arthritis” (AR 407), “inability to raise the (AR 407-10.) Plaintiff 10 shoulder over his head” (AR 408), “shooting tenderness from the 11 anterior shoulder to the lateral elbow” (id.), and “chronic back 12 pain due to [degenerative joint disease]” (id.). 13 that Plaintiff was applying for disability and that the exam had 14 been requested by Dr. Ng to “assist her in the [disability] 15 process.” 16 had low-back pain, osteoarthrosis of the knee, and joint pain in 17 his shoulder. 18 pull, or push over 25 pounds; reach overhead with the right arm; 19 squat, kneel, or crawl; climb ladders; run or jump; grasp heavy 20 objects with the right hand; “stand[]/walk[] over 30 minutes per 21 hour”; or bend repetitively. (Id.) 22 23 Dr. Guo examined Plaintiff and found that he (AR 410.) h. Dr. Guo noted He recommended that Plaintiff not lift, (Id.) Dr. Rusch On May 17, 2012, Plaintiff saw Dr. Rusch, an orthopaedic 24 specialist. (AR 483.) Plaintiff reported “mild pain with rest 25 and walking on flat surfaces” and a significant increase in pain 26 in walking on uneven surfaces or going up stairs. (Id.) 27 complained of right-shoulder pain at rest. Dr. Rusch 28 diagnosed “knee pain due to synovitis” and “[right] shoulder pain 14 (Id.) He also 1 due to Gleno-humeral arthritis, and subacromial bursitis and 2 [right] A/C arthritis.” 3 (AR 484.) On July 19, 2012, Dr. Rusch noted that he had “reviewed 4 [Plaintiff’s] VA orthopedic record from 2009 to the present” and 5 that “it is medically probable that the disability he currently 6 experiences with regards to his lumbar spine, shoulders and knee 7 existed at least 2 years ago.” 8 i. (AR 477.) Dr. H. Robbins On May 23, 2012, Dr. H. Robbins,7 a state-agency medical 9 10 consultant, assessed Plaintiff’s RFC on initial review. 11 42.) 12 walk” for a total of “[a]bout 6 hours in an 8-hour workday.” 13 38.) 14 sustained basis in an 8-hour workday.” 15 that Plaintiff had limited overhead-reaching ability on his right 16 side. Dr. Robbins opined that Plaintiff could “[s]tand and/or (AR He could sit for a total of “[m]ore than 6 hours on a (Id.) Dr. Robbins noted (AR 39.) 17 18 (AR 37- j. Dr. Roveran On October 2, 2012, Dr. Roveran completed a “treating 19 source” RFC questionnaire. 20 “[f]requency and length of contact,” Dr. Roveran wrote, 21 “[i]nformation from occupational medicine specialist report [of] 22 Dr. Guo 4/20/12 and records review.” 23 diagnosed Plaintiff with “low back pain,” a “vertebral fracture,” 24 “[right] knee osteoarthrosis,” and degenerative joint disease of 25 the right shoulder. (Id.) (AR 742-43.) In the section for (AR 742.) Dr. Roveran He noted that Plaintiff could walk 26 27 28 7 Dr. Robbins has a speciality code of “8,” indicating “[e]ar, [n]ose, and [t]hroat” (AR 43); see POMS DI 24501.004, U.S. Soc. Sec. Admin. (May 5, 2015), http://policy.ssa.gov/ poms.nsf/lnx/0424501004. 15 1 only one to two city blocks without rest or severe pain. 2 He could sit for 30 minutes “at one time . . . before needing to 3 get up” and stand “at one time” the same amount “before needing 4 to sit down, walk around, etc.” 5 “how long [Plaintiff] can sit and stand/walk total in an 8-hour 6 working day (with normal breaks),” Dr. Roveran marked “about 4 7 hours” for both sitting and standing/walking.8 8 Roveran noted that Plaintiff “needs to alternate sitting to 9 standing/walking due to pain.” 10 11 k. (Id.) (Id.) When asked to indicate (Id.) Dr. (Id.) Dr. C. Scott On January 30, 2013, Dr. C. Scott, a state-agency medical 12 consultant, completed a case analysis upon reconsideration. 13 49-56.) 14 Dr. Robbins’s May 23, 2012 assessment and affirmed his findings. 15 (AR 49-50.) 16 (AR Dr. Scott considered medical evidence submitted since l. The VE’s testimony 17 At the 2013 hearing, the ALJ asked the VE to consider a 18 hypothetical individual “who is closely approaching advanced age, 19 with a GED . . . [restricted to] light work, occasional 20 posturals[,] . . . occasional overhead reaching bilaterally, no 21 ladders, ropes, or scaffolds or hazards, limited to unskilled 22 work with a sit/stand option every half-hour.” 23 The VE testified that such a person could perform three light, (AR 1057-58.) 24 25 26 27 28 8 It appears that Dr. Roveran initially marked “less than 2 hours” under the “stand/walk” column. (AR 742.) But he marked and also circled the “about 4 hours” column for both “sitting” and “stand/walk” and initialed the change with the notation “ERR” next to the “less than 2 hours” mark. (Id.) Thus, the Court assumes he found that Plaintiff could stand or walk four hours in an eight-hour day. 16 1 unskilled jobs but eroded the available jobs by 75 to 90 percent 2 primarily because of the sit-stand option. 3 testified that the sit-stand option would impair productivity 4 unless the person could alternate sitting and standing at “a work 5 site where it’s bench height with a stool.” 6 noted that for the job of cashier, for example, an individual 7 would be “at a height where they can stand or they can have 8 stools.” 9 bench-height stool to sit down at will, she eroded the job base 10 (Id.) 3. 12 The VE (AR 1062.) She Because the hypothetical person would need a by 75 to 90 percent. 11 (AR 1058.) (Id.) Analysis The ALJ found that Plaintiff could do light work but “must 13 be allowed to have a sit/stand option every 30 minutes.” 14 21.) 15 put no restrictions on reaching forward or to the side. 16 In so finding, the ALJ considered but gave “little weight” to the 17 opinions of Drs. Roveran, Rusch, and Stern and “partial weight” 18 to the opinion of Dr. Guo. 19 weight” to the opinions of the state-agency medical consultants, 20 Drs. Robbins and Scott, and to the opinion of the consultative 21 examiner, Dr. To. 22 Roveran, Rusch, Stern, and Guo were contradicted by other medical 23 opinions in the record, the ALJ had to give only specific and 24 legitimate reasons for discounting all or part of them. 25 Carmickle, 533 F.3d at 1164. 26 (AR He limited Plaintiff to “occasional overhead reaching” but (AR 25-26.) (AR 25.) (Id.) He assigned “great Because the opinions of Drs. See As discussed below, the ALJ did so. As an initial matter, it is not clear that all of these 27 doctors were treating Plaintiff. 28 been among Plaintiff’s treating doctors (see, e.g., AR 737 (Jan. 17 Dr. Roveran appears to have 1 2013 radiology report ordered by Dr. Roveran), 745 (health 2 summary listing Dr. Roveran as Plaintiff’s “PCMM Provider” as of 3 Nov. 2012), 748-49 (listing multiple visits with Dr. Roveran from 4 July to Oct. 2012), 761-64 (note signed by Dr. Roveran describing 5 Oct. 2012 physical exam of Plaintiff)), as does Dr. Stern (see, 6 e.g., AR 267 (clinic-visit note by Dr. Stern describing July 2011 7 right-knee exam and diagnosis), 265 (Sept. 1 2011 clinic-visit 8 note describing shoulder and knee exam, diagnosis, and treatment 9 provided).) Dr. Rusch appears to have had a more limited 10 relationship with Plaintiff; the record shows that Plaintiff saw 11 him in person only once before Dr. Rusch wrote his July 19, 2012 12 note and only once after. 13 Dr. Rusch detailing Plaintiff’s May 17, 2012 orthopaedic clinic 14 visit), 775 (health summary noting Sept. 4, 2012 outpatient 15 visit).) 16 of Plaintiff’s treating doctors. 17 the request of Dr. Ng. 18 functional evaluation noting that Plaintiff’s primary-care 19 provider “requested [the] exam to assist her” in the disability 20 process), 795 (follow-up note from Dr. Guo noting that Plaintiff 21 had called about a disability form).) 22 all were treating doctors, the length of the treatment 23 relationship is important in assessing whether the ALJ gave 24 specific and legitimate reasons for rejecting each doctor’s 25 opinion to the extent he did so. 26 a. 27 28 (See, e.g., AR 483-84 (note signed by There is no evidence in the record that Dr. Guo was one He examined Plaintiff once, at (See, e.g., AR 792-95 (Apr. 20, 2012 Even if the Court assumes See §§ 404.1527(c), 416.927(c). The sit-stand option Plaintiff argues that the ALJ erred in “rejecting” the opinions of Drs. Roveran, Guo, and Rusch as to Plaintiff’s 18 1 standing limitations. (J. Stip. at 6-12.) Specifically, 2 Plaintiff alleges that Dr. Roveran limited his standing and 3 walking to “only 30 minutes at a time with a total of standing 4 less than two hours in a day” (J. Stip. at 5), Dr. Guo assigned 5 “[n]o standing/walking over 30 minutes per hour” (id.), and Dr. 6 Rusch opined that Plaintiff was “unable to walk on uneven 7 surfaces and was only able to walk for two to three blocks at a 8 time because of his knee disorder” (id. at 6). 9 Plaintiff appears to concede that Dr. Roveran in fact found that In his reply, 10 he could stand four hours a day. 11 Roveran also opined that Plaintiff would be able to . . . 12 stand/walk about 4 hours in an 8-hour workday[.]”).) 13 (See J. Stip. at 21 (“Dr. The ALJ’s requirement of “a sit/stand option every 30 14 minutes,” when coupled with his finding that Plaintiff could 15 perform light-level work with some additional limitations, is 16 reasonably interpreted to mean that every 30 minutes Plaintiff 17 must be allowed to take a short break from walking or standing 18 but that he could walk or stand for a total of six hours a day. 19 See SSR 83-10, 1983 WL 31251, at *6 (Jan. 1, 1983) (defining “the 20 full range of light work” as requiring “standing or walking, off 21 and on, for a total of approximately 6 hours of an 8-hour 22 workday”); see also Buckner-Larkin v. Astrue, 450 F. App’x 626, 23 627 (9th Cir. 2011) (court using information from record to 24 interpret intended meaning of sit-stand option); cf. SSR 83-12, 25 1983 WL 31253, at *4 (Jan. 1, 1983) (describing, under heading 26 “[a]lternate [s]itting and [s]tanding,” an individual who “may be 27 able to sit for a time, but must then get up and stand or walk 28 for awhile before returning to sitting”). 19 Interpreted this way, 1 the ALJ’s sit-stand option appears to be inconsistent with the 2 medical-opinion evidence, which generally limits Plaintiff to 3 four hours of standing a day. 4 limiting Plaintiff to four hours of daily standing), 410 (Dr. Guo 5 limiting Plaintiff to no more than 30 minutes of standing an 6 hour); see also J. Stip at 13 (Defendant conceding that Plaintiff 7 was limited to four hours of standing a day).) 8 below, however, any error was harmless. 9 (See, e.g., AR 742 (Dr. Roveran As explained The VE interpreted the ALJ’s sit-stand option to mean that 10 Plaintiff had to be able to sit or stand “at will.” 11 VE’s primary reason for eroding the available jobs by 75 to 90 12 percent was Plaintiff’s need to be “at a bench height with a 13 stool.” 14 standing would have to be at a work site where it’s bench height 15 with a stool” because “[o]therwise, it’s going to impair 16 productivity.” 17 option not just allowing the individual to stand or sit briefly 18 every 30 minutes but one in which the individual could choose to 19 sit or stand at will throughout the workday, remaining generally 20 at “bench height” so as not to impair productivity. 21 (AR 1062.) Indeed, the She noted that “alternating sitting and (Id.) Thus, the VE contemplated a sit-stand Because the “at will” sit-stand option considered by the VE 22 to determine the job base accommodated a limit to no more than 23 four hours of standing a day, any error was harmless. 24 v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) 25 (nonprejudicial or irrelevant mistakes harmless); cf. Heston v. 26 Comm’r of Soc. Sec., 245 F.3d 528, 536 (6th Cir. 2001) (finding 27 harmless error when ALJ did not discuss opinion of treating 28 physician but VE took relevant limitations into consideration 20 See Stout 1 anyway). 2 the three jobs listed by the VE adequately took into account 3 Plaintiff’s limitation of four hours of standing a day as well as 4 the specific limits imposed by Drs. Roveran, Guo, and Rusch. 5 Moreover, as explained below, the ALJ’s RFC finding — with a sit- 6 stand option interpreted as the VE and Commissioner have done — 7 was fully supported by the record. 8 9 Thus, the ALJ’s finding that Plaintiff could perform To the extent the ALJ rejected any portions of the opinions of Drs. Roveran, Guo, and Rusch, he gave legally sufficient 10 reasons for doing so.9 11 the opinions of Drs. Rusch and Roveran and “partial weight” to 12 the opinion of Dr. Guo because they were inconsistent with the 13 medical record and unsupported by diagnostic evidence. 14 Dr. Roveran opined that Plaintiff could walk only one or two city 15 blocks without rest or severe pain. 16 apparently largely based on Dr. Guo’s report and a review of 17 Plaintiff’s medical records. 18 opined only that Plaintiff could not stand or walk “over 30 19 minutes per hour.” 20 opined “that it is medically probable that the disability 21 [Plaintiff] currently experiences with regards to his lumbar 22 spine, shoulders and knee” had existed for at least two years. 23 (AR 477.) 24 First, the ALJ gave “little weight” to (AR 410.) (Id.) (AR 742.) (AR 25.) This opinion was In his report, Dr. Guo In his brief note, Dr. Rusch The other medical evidence in the record, however, shows 25 9 26 27 28 As Defendant points out, the sit-stand option assessed by the ALJ is largely consistent with the standing and walking limitations assessed by Drs. Roveran and Guo. (J. Stip. at 13, 19.) Both opined that Plaintiff could stand or walk about four hours in an eight-hour workday, which was the same limitation applied by the VE. (See supra, Section V(A)(3)(a).) 21 1 that Plaintiff had a normal gait and could stand for six hours a 2 day. 3 gait,” did not use any assistive devices (AR 227), and could 4 “stand and walk for six hours in an eight-hour workday” and 5 “frequently walk on uneven terrain” (AR 230). 6 found that Plaintiff had a “normal heel/toe walk” (AR 273); Dr. 7 Cole noted that Plaintiff’s gait was “steady” and he was “able to 8 perform tandem gait unassisted” (AR 269). 9 agreed with Dr. To’s finding that he could walk “about” six hours 10 11 Dr. To reported that Plaintiff “ambulat[ed] with a normal a day. Dr. Gustafson Drs. Scott and Robbins (AR 38-39, 52.) Inconsistency with the medical record and lack of diagnostic 12 evidence are permissible reasons for the ALJ to give portions of 13 the opinions of Drs. Roveran, Guo, and Rusch little weight. 14 Batson, 359 F.3d at 1195 (ALJ may discredit treating physicians’ 15 opinions that are “unsupported by the record as a whole”); 16 Thomas, 278 F.3d at 957 (ALJ need not accept treating-physician 17 opinion that is “inadequately supported by clinical findings”); 18 cf. §§ 404.1527(c)(3), 416.927(c)(3) (“The more a medical source 19 presents relevant evidence to support an opinion, particularly 20 medical signs and laboratory findings, the more weight we will 21 give that opinion.”). See 22 Second, to the limited extent these opinions were more 23 restrictive than Plaintiff’s RFC, the ALJ gave them “little 24 weight” because they were inconsistent with Plaintiff’s “admitted 25 activities of daily living.” 26 Plaintiff “lived alone, drove, ran errands, shopped, cooked, 27 performed personal care tasks, and read.” 28 that the more restrictive findings — the limit to walking one or (AR 25.) 22 The ALJ noted that (Id.) The ALJ noted 1 two blocks at a time, for example — were contradicted by some of 2 these admitted activities of daily living, including regularly 3 running errands and shopping. 4 reason to disregard the medical opinions that Plaintiff had more 5 restrictive limitations than his assessed RFC. 6 Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (ALJ’s finding that 7 doctor’s “restrictions appear to be inconsistent with 8 [plaintiff’s] level of activity” was specific and legitimate 9 reason for discounting opinion); Morgan v. Comm’r of Soc. Sec. This is a specific and legitimate See Rollins v. 10 Admin., 169 F.3d 595, 601–02 (9th Cir. 1999) (ALJ permissibly 11 rejected treating physician’s opinion when it conflicted with 12 plaintiff’s activities); see also Fisher v. Astrue, 429 F. App’x 13 649, 652 (9th Cir. 2011) (conflict between doctor’s opinion and 14 claimant’s daily activities was specific and legitimate reason to 15 discount opinion). 16 Finally, the ALJ gave “great weight” to the opinions of Drs. 17 Robbins, Scott, and To because those opinions were consistent 18 with the diagnostic evidence and other medical evidence in the 19 record. 20 alone can be substantial evidence for the ALJ to rely on. 21 Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001); 22 Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). 23 (AR 25.) Because Dr. To examined Plaintiff, his opinion See Plaintiff argues that the ALJ erred in giving great weight 24 to the opinion of Dr. To because his condition worsened after Dr. 25 To’s July 2011 examination. 26 the medical evidence or by Plaintiff’s subjective complaints. 27 For example, on June 29, 2012, he told Dr. Ng that his 28 “condition” was “the same [as] last [year].” But this claim is not supported by 23 (AR 480.) Further, 1 as discussed in more detail below, despite his testimony at the 2 hearing to the contrary, Plaintiff’s subjective assessment of his 3 pain did not increase from 2011 to 2013 — rather, it fluctuated 4 between “8/10” and “9/10” (see, e.g., AR 477, 516), and Plaintiff 5 consistently reported that his pain reduced to “5/10” when he 6 used medication (see, e.g., AR 77, 262; see also infra, Section 7 V(B)(2) (describing Plaintiff’s subjective ratings of pain 8 between 2011 and 2013)).10 9 Plaintiff also argues that because (as Defendant concedes) 10 he can stand only up to four hours a day, he was “entitled to 11 disability” with application of the “sedentary” grid and that the 12 ALJ erred in not so finding. 13 grids do not “completely and accurately represent a claimant’s 14 limitations,” however, reliance on them is not appropriate and a 15 vocational expert’s testimony is warranted. 16 1101-02 (emphasis omitted). 17 a VE to determine whether any available light-work jobs would 18 adequately accommodate Plaintiff’s specific limitations. 19 83-12, 1983 WL 31253, at *2 (noting that when individual’s 20 exertional RFC does not coincide with any of defined ranges of 21 work but instead includes “considerably greater restriction(s),” 22 VE testimony can clarify extent of erosion of occupational base); 23 Moore v. Apfel, 216 F.3d 864, 870 (9th Cir. 2000) (“SSR 83–12 24 directs that when a claimant falls between two grids, 25 consultation with a VE is appropriate.”); Thomas, 278 F.3d at 960 (See J. Stip. at 21-22.) If the Tackett, 180 F.3d at The ALJ therefore properly consulted See SSR 26 27 28 10 Also, because Plaintiff’s date last insured was March 31, 2011 (see AR 17), for at least DIB purposes Dr. To’s assessment, dated July 2011, was more relevant than subsequent medical reports, including those from 2012. 24 1 2 (same). The VE applied a sit-stand option to the light-work jobs, 3 accommodating Plaintiff’s limitations as found by the ALJ and 4 noting appropriate levels of erosion in the job base. 5 The ALJ was entitled to rely on the VE’s informed, specific, and 6 uncontradicted explanation that consistent with his RFC for a 7 limited range of light work, Plaintiff was able to work as a 8 cashier II, small-products assembler II, and bench assembler. 9 See Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) (“A (AR 1058.) 10 VE’s recognized expertise provides the necessary foundation for 11 his or her testimony.”). 12 13 b. Accordingly, the ALJ did not err. Reaching limitations Plaintiff argues that the ALJ also erred in not including 14 any forward- or side-reaching limitations in his RFC. 15 at 22-26.) 16 credited Dr. Stern’s 2012 note stating that Plaintiff’s pain was 17 “exacerbated by reaching out and working overhead.” 18 (J. Stip. Specifically, he argues that the ALJ should have (AR 758.) Dr. Stern apparently wrote the note for Plaintiff at his (Compare AR 265 19 request after not having treated him for a year. 20 (Dr. Stern’s last treatment note, from Plaintiff’s Sept. 1, 2011 21 clinic visit), with AR 758 (Plaintiff’s Oct. 2012 request for 22 note from Dr. Stern).) 23 because it was not supported by the medical evidence. 24 most of the medical records before and after Dr. Stern wrote his 25 October 11, 2012 note do not support such a limitation. 26 e.g., AR 228-29 (July 2011: Dr. To noting normal range of motion 27 and normal motor function in all extremities), 898 (Dec. 2013: 28 “[f]ull active ROM” and “5/5” shoulder-rotation muscle strength The ALJ gave “little weight” to the note 25 Indeed, (See, 1 noted).) 2 Plaintiff consistently complained to doctors that he was 3 “unable to lift over [his] head” on the right side (see, e.g., AR 4 285, 408) but did not complain of pain reaching forward or to the 5 side. 6 restrictions but did not cite any limitations in reaching forward 7 or to the side. 8 had normal range of motion in all extremities; could push, pull, 9 lift, and carry 20 pounds occasionally and 10 pounds frequently; Drs. Guo and Robbins mentioned Plaintiff’s overhead (See AR 39, 410.) Dr. To found that Plaintiff 10 and could even climb ladders. 11 26), even Dr. Stern’s own treatment notes do not support the 12 limitation. 13 pain” with “external rotation” of his shoulder, which presumably 14 would include reaching forward and to the side.11 15 (AR 228-30.) As the ALJ noted (AR He reported in September 2011 that Plaintiff had “no (AR 265.) Further, nothing indicates that Plaintiff’s shoulder 16 condition deteriorated after his assessment by Dr. To in 2011, as 17 Plaintiff alleges. 18 2012, he told Dr. Ng that his “condition” was “the same [as] last 19 [year]” (AR 480), and he described consistent levels of pain from 20 2011 to 2012 (see infra, Section V(B)(2)). 21 the medical evidence was a permissible reason for the ALJ to give 22 Dr. Stern’s opinion little weight. (See J. Stip. at 11-12.) Indeed, on June 29, Inconsistency with See Batson, 359 F.3d at 1195 23 24 25 26 27 28 11 External rotation of the shoulder is evaluated in part by asking patients to reach forward, keeping their elbow bent at 90 degrees, and rotate their arm outward. See A Practical Guide to Clinical Medicine, Univ. of Cal., San Diego, https:// meded.ucsd.edu/clinicalmed/joints2.htm (last updated Feb. 10, 2011). Internal rotation is evaluated by asking patients to place their hand behind their back and reach as high up the spine as possible. Id. External rotation, then, involves reaching both forward and to the side. 26 1 (ALJ may discredit treating physicians’ opinions that are 2 “unsupported by the record as a whole”); Thomas, 278 F.3d at 957 3 (ALJ need not accept treating-physician opinion that is 4 “inadequately supported by clinical findings”). 5 B. 6 Plaintiff argues that the ALJ failed to articulate legally The ALJ Properly Assessed Plaintiff’s Credibility 7 sufficient reasons for rejecting his testimony. 8 31.) 9 10 (J. Stip. at For the reasons discussed below, the ALJ did not err. 1. Applicable law An ALJ’s assessment of symptom severity and claimant 11 credibility is entitled to “great weight.” 12 Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. Heckler, 779 13 F.2d 528, 531 (9th Cir. 1986). 14 believe every allegation of disabling pain, or else disability 15 benefits would be available for the asking, a result plainly 16 contrary to 42 U.S.C. § 423(d)(5)(A).” 17 F.3d 1104, 1112 (9th Cir. 2012) (citing Fair v. Bowen, 885 F.2d 18 597, 603 (9th Cir. 1989)). 19 See Weetman v. “[T]he ALJ is not required to Molina v. Astrue, 674 In evaluating a claimant’s subjective symptom testimony, the 20 ALJ engages in a two-step analysis. 21 at 1035-36. 22 has presented objective medical evidence of an underlying 23 impairment [that] could reasonably be expected to produce the 24 pain or other symptoms alleged.” 25 medical evidence exists, the ALJ may not reject a claimant’s 26 testimony “simply because there is no showing that the impairment 27 can reasonably produce the degree of symptom alleged.” 28 80 F.3d at 1282 (emphasis in original). See Lingenfelter, 504 F.3d “First, the ALJ must determine whether the claimant 27 Id. at 1036. If such objective Smolen, 1 If the claimant meets the first test, the ALJ may discredit 2 the claimant’s subjective symptom testimony only if he makes 3 specific findings that support the conclusion. 4 Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). 5 affirmative evidence of malingering, the ALJ must provide “clear 6 and convincing” reasons for rejecting the claimant’s testimony. 7 Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (as 8 amended); Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 9 1102 (9th Cir. 2014). See Berry v. Absent a finding or The ALJ may consider, among other factors, 10 (1) ordinary techniques of credibility evaluation, such as the 11 claimant’s reputation for lying, prior inconsistent statements, 12 and other testimony by the claimant that appears less than 13 candid; (2) unexplained or inadequately explained failure to seek 14 treatment or to follow a prescribed course of treatment; (3) the 15 claimant’s daily activities; (4) the claimant’s work record; and 16 (5) testimony from physicians and third parties. 17 Comm’r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015) (as 18 amended); Thomas, 278 F.3d at 958-59. 19 finding is supported by substantial evidence in the record, the 20 reviewing court “may not engage in second-guessing.” 21 F.3d at 959. 22 2. Rounds v. If the ALJ’s credibility Thomas, 278 Relevant background Plaintiff reported consistent levels of pain — between 23 24 “8/10” and “9/10” without medication and “4/10” and “5/10” with 25 it — in his lower back, right shoulder, and knees from 2011 to 26 2012. 27 262 (Sept. 15, 2011: pain in low back “8/10,” shoulder “5/10,” 28 and knees “5/10”), 261 (Oct. 17, 2011: “9/10” pain in lower back, (See, e.g., AR 516 (Aug. 15, 2011: pain in back “9/10”), 28 1 shoulder, and knees), 259 (Nov. 15, 2011: “9/10” pain in lower 2 back, “5/10” pain in knees), 258 (Dec. 8, 2011: “8/10” pain in 3 lower back and knees, reduced to “4/10” with medication), 254-55 4 (Jan. 9 & Feb. 14, 2012: “8/10” pain in “low back” and knees), 5 481 (May 24, 2012: pain “8/10” in low back, knee, shoulder), 477 6 (July 19, 2012: “8/10” pain in back and shoulder), 756 (Oct. 16, 7 2012: pain in back “8/10” without medication, “5/10” with 8 medication), 771 (Sept. 20, 2012: pain in back “5/10” with 9 medication, “8/10” without).) On January 11, 2013, Plaintiff 10 reported “persistent pain” in his lower back. 11 rated the pain as “10” and stated that it was “so bad [he could] 12 hardly breath[e].” 13 (Id.) 14 (Id.) (AR 973.) He He could not lift over his head. In a March 22, 2012 exertion questionnaire, Plaintiff noted 15 that he could walk “for about 5 to 10 min. slowly” before needing 16 to stop. 17 he was able to do things “in moderation and slowly.” 18 was able to go shopping one or two times a week but could only 19 drive for about 10 minutes before experiencing intolerable back 20 and shoulder pain. 21 with “a lot of difficulty [and] pain.” 22 work on cars or do yard work. 23 (AR 178.) Basic cleaning was “hard and difficult,” but (AR 179.) (Id.) He He was able to dress himself, but (AR 178.) He did not (AR 179.) At the January 29, 2013 hearing, Plaintiff testified that he 24 was “in considerable pain, whether . . . standing or sitting.” 25 (AR 1037.) 26 was “unbearable to the point [he] need[ed] to sit.” (Id.) 27 sitting also caused him “considerable pain.” He testified 28 that he could sit for only “a half hour” before having to change Standing “beyond 20 minutes to a half hour” at a time 29 (Id.) But 1 position. (AR 1038.) 2 aching.” 3 one. 4 morphine sulfate, and lidocaine for his pain. (AR 1040.) 5 able to keep his house clean, cook, and shop. (AR 1041-42.) 6 had difficulty “shampooing” with his right arm. 7 lower back hurt when he bent over. 8 his recliner chair and drove his car “a few times a day.” 9 1043.) (Id.) Raising his right arm caused “considerable He had pain in his knees, especially the right (AR 1039-40.) He took ibuprofen, oxycodone, morphine, (Id.) He was (AR 1042.) He His He “frequently” used (AR He testified that he had “difficulty just with ordinary 10 tasks throughout the day” and was in “constant pain.” 11 He noted that his back pain had “increased considerably” in the 12 last two years. 13 2010 but “couldn’t even complete the job because of my shoulder.” 14 (AR 1050.) 15 “pretty much the same” as it was at the time of the hearing. 16 (Id.) 17 gallon of milk past a certain point12 and that he would have 18 issues lifting 20 pounds from the floor up to a table because of 19 his knee and back pain. 20 (Id.) (AR 1045.) He worked for a friend for two days in He noted, however, that his shoulder pain in 2010 was He testified that he would have difficulty lifting a (Id.) In early 2013 Plaintiff reported levels of pain similar to 21 those of 2011 and 2012. (See, e.g., AR 963 (Apr. 30, 2013: pain 22 in lower back “9/10” without medication, “5/10” with medication), 23 951 (May 28, 2013: pain in lower back “8/10” without medication, 24 “6/10” with medication).) 25 that he had been “working on [a] car engine,” which aggravated In November 2013 Plaintiff reported 26 27 28 12 A gallon of milk weighs approximately eight pounds. See Hernandez v. Colvin, No. 1:12-CV-00330-SMS, 2013 WL 4041862, at *9 n.4 (E.D. Cal. Aug. 8, 2013). 30 1 his shoulder pain. 2 both shoulders (AR 929) but declined rotator-cuff surgery (AR 3 925). 4 (AR 930.) He requested pain injections in The pain was in his left arm and increased with movement. 5 6 (AR 925.) He reported it as “6/10.” 3. (AR 932.) Analysis The ALJ found Plaintiff “partially credible.” (AR 22.) But 7 he discredited some of Plaintiff’s complaints, finding that 8 although his “medically determinable impairments could reasonably 9 be expected to cause some of the alleged symptoms,” his 10 “statements concerning the intensity, persistence and limiting 11 effects of [those] symptoms” were not credible to the extent they 12 were inconsistent with his RFC. 13 the extent the ALJ rejected Plaintiff’s subjective complaints, he 14 provided clear and convincing reasons for doing so. 15 (Id.) As discussed below, to First, the ALJ found that Plaintiff’s “activities of daily 16 living” were inconsistent with his statements about his 17 disability and “demonstrate[d] [his] capacity for work.” 18 At the hearing, Plaintiff testified that he was able to keep his 19 house clean, cook, and shop as necessary. 20 worked on his car in 2013 (AR 925) despite stating in 2012 that 21 he was unable to do so (AR 179). 22 once or twice a week, driving, and working on a car are 23 inconsistent with Plaintiff’s allegation that he was unable to 24 reach forward or to the side, for example. 25 ALJ may properly discount a plaintiff’s credibility when his 26 daily activities are inconsistent with his subjective symptom 27 testimony. 28 claimant’s testimony when “claimant engages in daily activities (AR 1041-42.) (Id.) He Keeping a house clean, shopping (AR 758, 1039.) An See Molina, 674 F.3d at 1112 (ALJ may discredit 31 1 inconsistent with the alleged symptoms” (citing Lingenfelter, 504 2 F.3d at 1040)). 3 some difficulty functioning, they may be grounds for discrediting 4 the claimant’s testimony to the extent that they contradict 5 claims of a totally debilitating impairment.” 6 at 1113. 7 “Even where those [daily] activities suggest Molina, 674 F.3d Second, the ALJ found that Plaintiff’s testimony about his 8 daily activities and “statements concerning his capacity to walk” 9 were “inconsistent with statements from examining physicians” and 10 the medical evidence in the record. 11 discussed in detail above, Plaintiff’s alleged inability to walk 12 in excess of his assessed RFC and his alleged restrictions on 13 reaching forward or to the side are not supported by the medical 14 record. 15 his pain had “increased considerably” during the past two years, 16 but his own statements to various doctors from 2011 to 2013 17 showed a stable, if not decreasing, level of pain. 18 Section V(B)(2) (describing Plaintiff’s subjective rating of 19 pain).) 20 medical evidence was a permissible reason to discount his 21 subjective complaints. 22 assessing credibility, ALJ may consider inconsistencies either in 23 claimant’s testimony or between testimony and conduct). 24 Finally, the ALJ noted that the objective evidence (AR 22.) Indeed, as Further, Plaintiff testified on January 29, 2013, that (See supra, Inconsistency between Plaintiff’s testimony and the See Thomas, 278 F.3d at 958-59 (in 25 supporting Plaintiff’s subjective claims of symptom severity was 26 “meager.” 27 which appears to have been based at least in part on Plaintiff’s 28 subjective complaints, there is no evidence in the medical record (AR 23.) Indeed, other than Dr. Stern’s 2012 note, 32 1 that Plaintiff had any limitations reaching forward or to the 2 side. 3 medical evidence as one factor in assessing Plaintiff’s 4 subjective complaints and credibility. 5 400 F.3d 676, 681 (9th Cir. 2005) (“Although lack of medical 6 evidence cannot form the sole basis for discounting pain 7 testimony, it is a factor that the ALJ can consider in his 8 credibility analysis.”); Carmickle, 533 F.3d at 1161 9 (“Contradiction with the medical record is a sufficient basis for 10 11 The ALJ was entitled to consider the lack of objective See Burch v. Barnhart, rejecting the claimant’s subjective testimony.”). In sum, the ALJ provided clear and convincing reasons for 12 finding Plaintiff only partially credible. 13 findings were supported by substantial evidence, this Court may 14 not engage in second-guessing. 15 Plaintiff is not entitled to remand on this ground. 16 C. 17 18 Because those See Thomas, 278 F.3d at 959. Plaintiff’s Significant-Erosion Argument Under POMS Lacks Merit Plaintiff argues that the VE’s exclusion of 75 percent of 19 the total available cashier II jobs and 90 percent of the small- 20 products assembler II and bench assembler jobs caused a 21 “significant” erosion of the occupational base, necessitating 22 application of the “sedentary grid rule” under POMS. 23 at 39.) 24 ground. 25 26 (J. Stip. As discussed below, remand is not warranted on this 1. Applicable law Jobs are classified as “sedentary, light, medium, heavy, and 27 very heavy” according to their “physical exertion requirements.” 28 §§ 404.1567, 416.967. “Sedentary work” generally involves 33 1 lifting no more than 10 pounds at a time, with occasional lifting 2 or carrying of small objects and articles, and predominantly 3 features sitting, with walking or standing “required 4 occasionally.” 5 Ruling 83-10 further explains that “periods of standing or 6 walking should generally total no more than about 2 hours of an 7 8-hour workday, and sitting should generally total approximately 8 6 hours of an 8-hour workday.” 9 (describing requirements for “full range” of sedentary work). 10 “Light work” generally involves “lifting no more than 20 11 pounds at a time with frequent lifting or carrying of objects 12 weighing up to 10 pounds,” though “the weight lifted may be very 13 little.” 14 31251, at *5. 15 standing, or . . . involves sitting most of the time but with 16 some pushing and pulling of arm or leg controls.” 17 §§ 404.1567(b), 416.967(b); see SSR 83-10, 1983 WL 31251, at *5. 18 “To be considered capable of performing a full or wide range of 19 light work, [a claimant] must have the ability to do 20 substantially all of these activities.” 21 416.967(b). 22 §§ 404.1567(a), 416.967(a). Social Security SSR 83-10, 1983 WL 31251, at *5 §§ 404.1567(b), 416.967(b); see SSR 83-10, 1983 WL Light work “requires a good deal of walking or §§ 404.1567(b), At step five of the five-step process, the Commissioner has 23 the burden to demonstrate that the claimant can perform some work 24 that exists in “significant numbers” in the national or regional 25 economy, taking into account the claimant’s RFC, age, education, 26 and work experience. 27 Cir. 1999); see 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. 28 §§ 404.1560(c), 416.960(c). Tackett v. Apfel, 180 F.3d 1094, 1100 (9th The Commissioner may satisfy that 34 1 burden either through the testimony of a VE or by reference to 2 the grids. 3 Tackett, 180 F.3d at 1100-01. The DOT “is not the sole source of admissible information 4 concerning jobs,” and the ALJ “may take administrative notice of 5 any reliable job information, including the services of a 6 vocational expert.” 7 Cir. 1995) (alteration and citations omitted). 8 maximum requirements of occupations as generally performed, not 9 the range of requirements of a particular job as it is performed Johnson v. Shalala, 60 F.3d 1428, 1435 (9th The DOT “lists 10 in specific settings,” and a VE “may be able to provide more 11 specific information about jobs or occupations than the DOT.” 12 SSR 00-4p, 2000 WL 1898704, at *3 (Dec. 4, 2000). 13 recognized expertise provides the necessary foundation for his or 14 her testimony,” and “no additional foundation is required.” 15 Bayliss, 427 F.3d at 1218. 16 17 2. “A VE’s Relevant background The ALJ asked the VE to consider a hypothetical individual 18 “who is closely approaching advanced age, with a GED,” who could 19 perform “light work, occasional posturals[,] . . . occasional 20 overhead reaching bilaterally, no ladders, ropes or scaffolds or 21 hazards, limited to unskilled work with a sit/stand option every 22 half-hour.” 23 hypothetical individual could perform three jobs in the regional 24 and national economy: “small products assembler II,” “cashier 25 II,” and “bench assembler.” 26 sit-stand option, the VE eroded the “small products assembler II” 27 job by 90 percent, which “would leave 900 positions regionally 28 and 8,000 nationally.” (AR 1057-58.) The VE testified that such a (AR 1058.) (Id.) Taking into account the She eroded the “cashier II” job by 35 1 75 percent, leaving “1,125 positions regionally and 25,000 2 nationally.” 3 “bench assembler” job, leaving “250 jobs regionally and 4,000 4 nationally.” 5 3. 6 (Id.) She applied a 90 percent erosion to the (Id.) Analysis As an initial matter, Plaintiff misplaces his reliance on 7 POMS DI 25001.001.B.72, available at https://secure.ssa.gov/ 8 poms.NSF/lnx/0425001001, which is a “Quick Reference Guide” 9 defining, among other terms, “[s]ignificant erosion” as “[a] 10 considerable reduction in the available occupations at a 11 particular exertional level.” 12 circumstances, an ALJ should generally “use a lower exertional 13 rule as a framework for a decision.” 14 It indicates that in such See id. Notably, POMS is an internal agency manual that “does not 15 have the force of law,” Warre v. Comm’r of Soc. Sec. Admin., 439 16 F.3d 1001, 1005 (9th Cir. 2006), and is binding on neither the 17 ALJ nor the Court, see Lockwood v. Comm’r Soc. Sec. Admin., 616 18 F.3d 1068, 1073 (9th Cir. 2010) (“POMS constitutes an agency 19 interpretation that does not impose judicially enforceable duties 20 on either this court or the ALJ.”). 21 the force and effect of law, POMS DI 25001.001 ¶ B.7113 does not 22 mandate the ALJ to use a lower exertional rule level”; 23 “[i]nstead, it merely suggests using a lower exertional rule as a 24 framework if there is a ‘considerable reduction in the available 25 occupations at a particular exertional level.’” 26 Astrue, No. CV 11-1211-SP, 2012 WL 682880, at *3 (C.D. Cal. Mar. Moreover, “even if POMS had Durden v. 27 28 13 Apparently former subsection B.71 was subsequently renumbered as B.72. 36 1 2, 2012) (citation omitted), aff’d, 546 F. App’x 690 (9th Cir. 2 2013). 3 Thus, the ALJ was free not to apply POMS subsection B.72. Here, application of subsection B.72 was not warranted 4 because there remained a significant number of available light- 5 exertional occupations identified by the VE after she had eroded 6 them.14 7 still left 25,000 such jobs available in the national economy; a 8 90 percent reduction in bench-assembler jobs left 4000 such jobs 9 nationally; a 90 percent reduction in small-products-assembler II A 75 percent reduction in available cashier II jobs 10 positions left 8000 such jobs nationally. 11 90 percent erosion applied by the VE left 37,000 jobs available 12 in the national economy. 13 See Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 528-29 (9th 14 Cir. 2014) (holding that 25,000 nationally available jobs 15 presented a “close call” but nonetheless sufficed as “work which 16 exists in significant numbers”). 17 animating POMS B.72 were not present here. 18 (AR 1058.) The 75 to That is a significant number of jobs. Accordingly, the concerns Plaintiff also argues that the ALJ “could only name” three 19 positions he could perform and that “[t]he full range of light 20 work is surely eroded significantly when only three jobs eroded 21 by 75 [percent] and 90 [percent] is all that is left of the 22 vocational base.” 23 the three light occupations the VE identified were merely 24 “representative” of occupations in the national economy that (J. Stip. at 41.) In fact, the ALJ said that 25 14 26 27 28 Plaintiff relies on Distasio v. Shalala, 47 F.3d 348 (9th Cir. 1995), to argue that the ALJ should have applied the sedentary grid rule. As Defendant correctly points out, however, in Distasio the VE expressly limited the claimant to sedentary work. Id. at 349-50. Here, the VE identified three light-work jobs Plaintiff was capable of performing. 37 1 Plaintiff could perform.15 2 occupation suffices as long as it provides a significant number 3 of jobs. See Tommasetti v. Astrue, 533 F.3d 1035, 1043-44 (9th 4 Cir. 2008) (holding that VE’s testimony describing single 5 occupation for which significant number of jobs existed 6 sufficed); Tamayo v. Colvin, No. CV 12-8484 JCG, 2013 WL 5651420, 7 at *2 (C.D. Cal. Oct. 11, 2013) (finding one occupation 8 sufficient “as long as [it] still has a significant number of 9 positions that exist in the national economy” (citation 10 (AR 28.) In any event, even just one omitted)). 11 The ALJ did not err in not applying the sedentary grid rule. 12 D. Substantial Evidence Supported the ALJ’s Determination 13 that Plaintiff Could Perform the Representative Light- 14 Exertion Jobs16 15 Plaintiff also argues that the ALJ’s nondisability finding 16 was “not supported by substantial evidence because it cannot be 17 determined whether [Plaintiff] would be performing the jobs (with 18 the sit-stand option and no lifting identified) in a sedentary 19 manner.” 20 have further developed the record to determine “whether the jobs 21 named retained the lifting requirements of light work.” 22 42.) 23 what actual lifting would be required” in the three jobs listed, (J. Stip. at 45.) Plaintiff claims that the ALJ should (Id. at Plaintiff states that the VE “offered no testimony as to 24 15 25 26 27 28 Indeed, no rule requires the VE to list all or even substantially all occupations a claimant can do. Given that the DOT includes thousands of occupations, any such rule would overwhelm the Agency and grind disability proceedings to a halt. 16 Plaintiff included this argument in his section on significant erosion. (See J. Stip. at 42, 45-46.) For clarity, the Court has separated it out into its own section. 38 1 and the ALJ failed to “establish . . . whether these three jobs 2 are actually being performed in a light manner.” 3 (Id.) Plaintiff’s RFC was reduced light work with limitations on 4 postural activities and overhead reaching; no climbing; and a 5 sit-stand option every 30 minutes. 6 “completely and accurately represent a claimant’s limitations,” 7 reliance on them is not appropriate and vocational-expert 8 testimony is necessary. 9 omitted). (AR 21.) If the grids do not Tackett, 180 F.3d at 1101-02 (emphasis The ALJ therefore properly consulted the VE to 10 determine whether any available light-work jobs would adequately 11 accommodate Plaintiff’s specific limitations. 12 1983 WL 31253, at *2 (noting that when individual’s exertional 13 RFC does not coincide with any of defined ranges of work but 14 instead includes “considerably greater restriction(s),” VE 15 testimony can clarify extent of erosion of occupational base); 16 Moore, 216 F.3d at 870; Thomas, 278 F.3d at 960. 17 See SSR 83-12, Substantial evidence supported the ALJ’s finding that 18 Plaintiff could perform the lifting requirements of the three 19 jobs identified by the VE. 20 lifting or carrying on the right side is limited to 10 pounds 21 rather than 10-20?” 22 not impact cashier II . . . [but] there could be further erosion 23 on the assembly positions, so another [five] percent.” 24 The ALJ’s question and the VE’s answer demonstrate that both 25 understood that the three jobs listed retained the normal lifting 26 limitations of light work. 27 (“Light work involves lifting no more than 20 pounds at a time 28 with frequent lifting or carrying of objects weighing up to 10 The ALJ asked the VE, “What if the (AR 1059.) The VE responded, “That would (Id.) See §§ 404.1567(b), 416.967(b) 39 1 pounds.”). The ALJ amended his hypothetical to the VE to account 2 for a potential lifting and carrying limitation on Plaintiff’s 3 right side. 4 previous erosion analysis for each job and concluded that it 5 would not affect the cashier II job and might erode the other two 6 jobs by a further five percent. 7 not include this limitation in Plaintiff’s RFC, a finding he has 8 not challenged. 9 20 pounds or frequently lift and carry up to 10 pounds. (AR 1059.) The VE applied the amendment to her (Id.) Ultimately, the ALJ did No doctor opined that Plaintiff could not lift 10 The ALJ was entitled to rely on the VE’s informed, specific, 11 and uncontradicted explanation that consistent with his RFC for a 12 limited range of light work, Plaintiff was able to work as a 13 cashier II, small-products assembler II, and bench assembler. 14 See Bayliss, 427 F.3d at 1218. 15 warranted on this basis. 16 VI. 17 Accordingly, remand is not CONCLUSION Consistent with the foregoing and under sentence four of 42 18 U.S.C. § 405(g),17 IT IS ORDERED that judgment be entered 19 AFFIRMING the decision of the Commissioner, DENYING Plaintiff’s 20 request for remand, and DISMISSING this action with prejudice. 21 22 DATED: 12/5/2016 23 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 24 25 26 27 28 17 That sentence provides: “The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 40
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