Annie Pearl Murphy v. Carolyn W Colvin, No. 5:2015cv01588 - Document 25 (C.D. Cal. 2017)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Douglas F. McCormick. For the reasons stated above, the decision of the Social Security Commissioner is AFFIRMED and the action is DISMISSED with prejudice. (twdb)
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Annie Pearl Murphy v. Carolyn W Colvin Doc. 25 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 ANNIE PEARL MURPHY, Plaintiff, 12 v. 13 14 15 Case No. ED CV 15-01588-DFM MEMORANDUM OPINION AND ORDER NANCY A. BERRYHILL, Acting Commissioner of Social Security,1 16 Defendant. 17 18 Annie Pearl Murphy (“Plaintiff”) appeals from the Social Security 19 20 Commissioner’s final decision denying her application for Social Security 21 Disability Insurance Benefits (“DIB”). For the reasons discussed below, the 22 Commissioner’s decision is affirmed and the matter dismissed with prejudice. 23 /// 24 /// 25 /// 26 27 28 1 On January 21, 2017, Berryhill became the Acting Social Security Commissioner. Thus, she is automatically substituted as defendant under Federal Rule of Civil Procedure 25(d). Dockets.Justia.com 1 I. 2 BACKGROUND 3 Plaintiff applied for DIB on April 5, 2012, alleging disability beginning 4 January 1, 2010. Administrative Record (“AR”) 90, 140-47. After her 5 application was denied, AR 91-95, 98-102, she requested a hearing before an 6 Administrative Law Judge (“ALJ”), AR 105-06. An AJL held a hearing on 7 June 7, 2013, taking testimony from Plaintiff, who was unrepresented, as well 8 as a Vocational Expert (“VE”). AR 31-64. 9 In a written decision issued January 7, 2014, the ALJ denied Plaintiff’s 10 claim for benefits. AR 13-30. In reaching his decision, the ALJ found that 11 Plaintiff last met the insured status of the Social Security Act on September 30, 12 2011. AR 18. Through Plaintiff’s date last insured of September 30, 2011, the 13 ALJ found that Plaintiff had the severe impairments of: “polyarthralgia and 14 polymyalgia; lateral epicondylitis of both elbows; DeQuervain’s tendinitis of 15 the bilateral wrists; greater trochanteric bursitis of the hips; degenerative 16 spurring in the right knee; hypothyroidism with thyroid lesions and nodules; 17 headaches; and obesity.” Id. He found that notwithstanding those 18 impairments, Plaintiff retained the residual functional capacity (“RFC”) to 19 perform light work with the following additional limitations: only occasional 20 climbing ramps and stairs, but never climbing ladders, ropes, or scaffolds; only 21 frequent balancing, stooping, kneeling, crouching, crawling, pushing and/or 22 pulling with the upper and lower extremities, and handling and fingering with 23 the bilateral upper extremities; and no exposure to unprotected heights. AR 19. 24 Based on the VE’s testimony, the ALJ found that, through Plaintiff’s date last 25 insured, she could perform her past relevant work as a housekeeping cleaner, 26 both as actually and generally performed, and in the alternative, that a 27 hypothetical person with Plaintiff’s age, education, work experience, and RFC 28 was capable of making a successful adjustment to other work in the national 2 1 economy. AR 24-25. As such, he concluded that Plaintiff was not disabled 2 through her date last insured. AR 25-26. Plaintiff requested review of the ALJ’s decision. AR 8-9. On June 15, 3 4 2015, the Appeals Council denied review. AR 1-7. This action followed. 5 II. 6 DISCUSSION The parties dispute whether the Commissioner: (1) properly considered 7 8 the medical evidence of record; and (2) properly assessed Plaintiff’s credibility. 9 See Joint Stipulation (“JS”) at 3-4. 10 11 A. Medical Evidence of Record Relying extensively on evidence submitted to the Appeals Council after 12 the ALJ’s decision, Plaintiff argues that the ALJ erred by failing to impose 13 limitations based on her back and shoulder impairments and by giving “little 14 weight” to her treating physicians’ opinions. See JS at 4-12. For the reasons 15 discussed below, the Court disagrees. 16 17 1. Relevant Facts a. Pre-2009 Medical Records Relating to Plaintiff’s Injuries, Shoulders, and Back 18 19 Plaintiff’s Injuries. On May 26, 2003, while working as a hotel laundry 20 attendant, Plaintiff bent down to fold table linens. AR 718. She then lifted a 21 bag of wet linens and felt a sharp pain in her back as she was trying to stand 22 up. AR 696, 718, 747. Plaintiff reported the injury to her supervisor and went 23 to the emergency room. AR 696, 709. She missed work for two days, after 24 which she returned to modified work. AR 709-10, 718-19. 25 In 2004, Plaintiff was driving a vehicle that was hit on the passenger 26 side. AR 689. She said in a deposition that her lower back hurt as a result of 27 the accident. Id. 28 On November 8, 2005, Plaintiff slipped and fell on a wet floor during her 3 1 lunch break. AR 690, 725, 738, 745. As a result of the fall, she felt pain in her 2 shoulders, neck, and under her armpit. AR 690. She also had “a lot of leg 3 pain.” Id. A doctor cleared her to return three days after the fall to modified 4 work. AR 740, 742. According to records from an interview with Plaintiff in 5 December 2006, she was taken off work by her family physician and placed on 6 state disability six months after the fall. See AR 747.2 7 Plaintiff indicated that her car was rear-ended in August 2007 while she 8 waiting at a stop sign. AR 807. She said that the accident “made her entire 9 body hurt.” Id. 10 Plaintiff’s Shoulders. In May 2006, Plaintiff had an MRI examination of 11 both shoulders. AR 678-79. The images revealed no bony fracture or 12 contusion, intact glenoid labrums, and normally positioned bicipital tendons. 13 Id. The MRI of the left shoulder indicated moderate impingement on the 14 supraspinatus muscle and tendon as well as a tear of the tendon distally. AR 15 678. The MRI of the right shoulder indicated mild to moderate impingement 16 on the supraspinatus muscle and tendon, and a small tear anteriorly and 17 distally. AR 679. 18 On March 23, 2007, Dr. Peter J. Sofia performed decompression surgery 19 on Plaintiff’s left shoulder. AR 932-34. On May 9, 2007, Dr. Sofia noted that 20 Plaintiff’s left shoulder had “excellent motion” and “very good strength,” but 21 some pain. AR 942. He noted that Plaintiff’s right shoulder had full motion 22 and strength, but with pain. Id. He also noted a mildly positive impingement 23 sign, and recommended a steroid injection for her right shoulder. Id. On May 24 25 26 27 28 2 Plaintiff indicated that her last day of work was July 2, 2005. AR 747. It appears that her last day of work was actually in 2006, since she stated that “she worked for another six months” after her 2005 slip-and-fall injury, id., and she also stated in her application for DIB that she last worked in 2006, AR 142. 4 1 29, 2007, Dr. Sofia noted that Plaintiff “is still pleased with the right shoulder, 2 which was injected previously.” AR 945. She reported that her left shoulder 3 was improving and she was “fairly happy with the result” of the surgery. Id. On August 14, 2007, Dr. Sofia’s examination of Plaintiff’s left shoulder 4 5 revealed “full active and passive motion” with “very little discomfort,” 6 “excellent strength” with minimal pain, and no sign of impingement. AR 955. 7 He noted that Plaintiff’s right shoulder had an “excellent exam” with “full 8 motion and strength” and “almost no discomfort.” Id. Plaintiff reported that 9 she was “happy with her left shoulder” and had “no trouble” with the right. 10 AR 954. She stated that she could “probably work” and would “go back to 11 work.” Id. Dr. Sofia also opined that Plaintiff “could work at this time.” AR 12 955. 13 Plaintiff’s Back. On June 28, 2003, Plaintiff had an MRI examination of 14 her lumbosacral spine. AR 714-15. The MRI showed mild disc height 15 reduction at L3-L4 and mild posterior disc bulging without impingement at 16 L3-L4 and L4-L5. Id. The MRI also showed posterior disc protrusion 17 producing mild left and moderate right lateral recess stenosis at L5-S1 with 18 associated mild right L5 foraminal narrowing. AR 715. 19 A subsequent MRI examination on August 10, 2006, showed disc 20 protrusion at L2-L3, L3-L4, L4-L5, and L5-S1 producing bilateral 21 neuroforaminal encroachment. AR 919-20. The MRI also showed effacement 22 of the L2 exiting nerve roots and S1 transiting nerve roots, and impingement 23 on the L3, L4, and L5 exiting nerve roots. Id. The MRI showed straightening 24 of the lumbar spine with osteophytes throughout. AR 918, 920. The vertebral 25 body heights were maintained with disc desiccation at L3-L4 and L5-S1. Id. 26 27 28 b. Physicians’ Opinions On March 22, 2010, Dr. Asheesh Pasi, one of Plaintiff’s treating physicians, completed a check-the-box and fill-in-the-blank Physical Capacities 5 1 form for Plaintiff. AR 334-38. Dr. Pasi opined that Plaintiff could stand/walk 2 for 2 to 4 hours at one time, and sit for 2 to 4 hours at one time, in an 8-hour 3 workday. AR 336. Dr. Pasi checked a box indicating that Plaintiff is “restricted 4 in using hands/fingers for repetitive motions” due to left shoulder tendonitis 5 and decreased range of motion of her left upper extremities. Id. Dr. Pasi also 6 opined that Plaintiff could occasionally lift/carry 10 pounds and could never 7 lift/carry more than 10 pounds, climb, balance, stoop, kneel, crouch, crawl, or 8 reach. AR 337. 9 On March 8, 2011, Dr. Philip Scheel, another of Plaintiff’s treating 10 physicians, completed the Physical Capacities form. AR 349-51. Dr. Scheel 11 opined that Plaintiff could stand/walk for 0 to 2 hours at one time and 2 to 4 12 hours total in an 8-hour workday. AR 350. He also opined that Plaintiff could 13 sit for 2 to 4 hours at one time and 2 to 4 hours total in an 8-hour workday. Id. 14 Dr. Scheel checked the box indicating that Plaintiff is “restricted in using 15 hands/fingers for repetitive motions” due to chronic left shoulder pain and 16 bilateral wrist pain. Id. He opined that Plaintiff could never lift/carry any 17 weight, climb, balance, stoop, kneel, crouch, crawl, or reach. AR 351. Dr. 18 Scheel noted that Plaintiff would be evaluated by an orthopedist in the next 1 19 to 2 months. Id. 20 On June 27, 2012, Plaintiff was examined by Dr. Vicente R. Bernabe, a 21 consulting orthopedic surgeon. AR 213-18. Dr. Bernabe opined that Plaintiff 22 could walk and stand for 6 hours out of an 8-hour day and sit without 23 restriction. AR 217. He opined that Plaintiff could lift and carry, push and pull, 24 bend, crouch, stoop, crawl, walk on uneven terrain, climb ladders, and work at 25 heights without limitation. Id. He also found that Plaintiff did not have a hand 26 use or fine fingering manipulation impairment. Id. 27 28 On February 27, 2013, Plaintiff’s treating physician Dr. Alan Pan completed the Physical Capacities form. AR 339-43. Dr. Pan opined that 6 1 Plaintiff could stand/walk for 0 to 2 hours at one time and for 0 to 2 hours 2 total in an 8-hour workday. AR 341. He also opined that Plaintiff could sit for 3 0 to 2 hours at one time and for 0 to 2 hours total in an 8-hour workday. Id. 4 Dr. Pan checked the box indicating that Plaintiff is “restricted in using 5 hands/fingers for repetitive motions” due to arthritis in both hands. Id. Dr. 6 Pan opined that Plaintiff could occasionally lift/carry 10 pounds and could 7 never lift/carry more than10 pounds, climb, balance, stoop, kneel, crouch, 8 crawl, or reach. AR 342. c. 9 Alleged Amendment of Onset Date At the 2013 hearing, the ALJ explained to Plaintiff that if he found that 10 11 she was disabled, he would “have to also determine the date that [her] 12 disability began.” AR 35. He then asked, “you’re alleging that your disability 13 began on January 1st, 2010.” Id. Plaintiff responded, “Yes.” Id. 14 On July 16, 2014, Plaintiff’s counsel sent a letter to the Appeals Council, AR 15 205, along with medical records relating to Plaintiff’s treatment for a work- 16 related accident on May 26, 2003, AR 674-956. The letter stated, “We hereby 17 formally move to amend her [alleged onset date] to May 26, 2003.” AR 205. 18 Plaintiff’s counsel argued that “[w]ith this new evidence, it is clear that the 19 statements made by [Plaintiff] are supported by and consistent with the 20 objective evidence, and the treating physician statements are also supported by 21 objective evidence.” Id. The Appeals Council considered the letter and 22 additional medical records. See AR 2, 5-6. The Appeals Council “found that 23 this information does not provide a basis for changing the [ALJ’s] decision.” 24 AR 2. 25 2. Analysis 26 The Court begins with two preliminary issues before reaching Plaintiff’s 27 contentions that the ALJ erred in considering the medical evidence. First, the 28 Court agrees with Plaintiff that it must consider whether the ALJ’s decision 7 1 can stand notwithstanding the new evidence submitted to the Appeals Council. 2 Social Security Administration regulations “permit claimants to submit new 3 and material evidence to the Appeals Council and require the Council to 4 consider that evidence in determining whether to review the ALJ’s decision, so 5 long as the evidence relates to the period on or before the ALJ’s decision.” 6 Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1162 (9th Cir. 2012) 7 (citing 20 C.F.R. § 404.970(b)). “[W]hen the Appeals Council considers new 8 evidence in deciding whether to review a decision of the ALJ, that evidence 9 becomes part of the administrative record, which the district court must 10 consider when reviewing the Commissioner’s final decision for substantial 11 evidence.” Id. at 1163. “Remand is necessary where there is a ‘reasonable 12 possibility’ that the new evidence might change the outcome of the 13 administrative hearing.” Borrelli v. Comm’r of Soc. Sec., 570 F. App’x 651, 14 652 (9th Cir. 2014) (quoting Booz v. Sec’y of Health & Human Servs., 734 15 F.2d 1378, 1380-81 (9th Cir. 1984)). 16 Second, the Court rejects Plaintiff’s contention that it must review the 17 ALJ’s decision using the amended onset date of May 26, 2003. Plaintiff did not 18 seek to amend her onset date at the administrative hearing; to the contrary, she 19 confirmed that her disability began on January 1, 2010. AR 35. Later, in her 20 letter to the Appeals Council requesting review of the ALJ’s decision, Plaintiff 21 submitted new evidence for consideration and also requested to amend her 22 onset date to May 26, 2003. AR 205, 674, 956. The Appeals Council evaluated 23 Plaintiff’s new evidence and denied her request for review. AR 1-3. The 24 Appeals Council did not expressly address Plaintiff’s request to amend, and 25 adopted the ALJ’s decision as “the final decision of the Commissioner.” See 26 AR 1-7. The Court will review Plaintiff’s arguments using the January 1, 2010 27 onset date used by the ALJ after Plaintiff confirmed it at the administrative 28 hearing. See Anderson v. Comm’r of Soc. Sec. Admin., No. 13-145, 2014 WL 8 1 346296, at *6 (N.D. Ohio Jan. 30, 2014) (deciding to use onset date used by 2 ALJ where Appeals Council did not address claimant’s request to amend 3 alleged onset date); Freeman v. Comm’r of Soc. Sec., No. 07-536, 2008 WL 4 2074019, at *1 n.2 (W.D. Mich. May 14, 2008) (same).3 a. 5 Plaintiff Has Not Demonstrated that Shoulder or Back 6 Problems Had More Than a Minimal Effect on Her Ability 7 to Perform Basic Work Activities 8 Plaintiff argues that despite “substantial documentation of Plaintiff’s 9 bilateral shoulder impairments,” the ALJ “fail[ed] to find any impairments 10 involving Plaintiff’s shoulders.” JS at 6. Plaintiff further contends that the 11 ALJ’s finding that her back impairment was not severe “is clearly erroneous 12 and unsupported by the medical evidence.” Id. at 7. The Court disagrees. 13 The Social Security Act defines “disability” as the “inability to engage in 14 any substantial gainful activity by reason of any medically determinable 15 physical or mental impairment which can be expected to result in death or 16 which has lasted or can be expected to last for a continuous period of not less 17 than 12 months.” 42 U.S.C. § 423(d)(1)(A). At step two of the sequential 18 evaluation process, the claimant has the burden to show that she has one or 19 more “severe” medically determinable impairments that meets the “duration 20 requirement.” See Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (claimant bears 21 burden at step two); 20 C.F.R. § 404.1520(a)(4)(ii) (claimant not disabled at 22 step two if she does “not have a severe medically determinable physical or 23 mental impairment that meets the duration requirement”). 24 25 26 27 28 3 Moreover, the record contains at least some information at odds with a 2003 onset date. As previously discussed, the record indicates that Plaintiff returned to work after both her May 26, 2003 back injury and November 8, 2005 shoulder injury, albeit with modified duties, until she was taken off work in July 2006 by her doctor. See AR 725, 747. 9 1 The existence of a severe impairment is demonstrated when the evidence 2 establishes that an impairment has more than a minimal effect on an 3 individual’s ability to perform basic work activities. Webb v. Barnhart, 433 4 F.3d 683, 686-87 (9th Cir. 2005); Smolen v. Chater, 80 F.3d 1273, 1290 (9th 5 Cir. 1996); 20 C.F.R. § 404.1521(a). The regulations define “basic work 6 activities” as “the abilities and aptitudes necessary to do most jobs,” which 7 include physical functions such as walking, standing, sitting, pushing, and 8 carrying, and mental functions such as understanding and remembering 9 simple instructions; responding appropriately in a work setting; and dealing 10 with changes in a work setting. 20 C.F.R. § 404.1521(b). The inquiry at this 11 stage is “a de minimis screening device to dispose of groundless claims.” 12 Smolen, 80 F.3d at 1290 (citing Yuckert, 482 U.S. at 153-54). An impairment 13 is not severe if it is only a slight abnormality with “no more than a minimal 14 effect on an individual’s ability to work.” SSR 85-28, 1985 WL 56856, at *3 15 (1985); Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988). A “finding of no 16 disability at step two” may be affirmed where there is a “total absence of 17 objective evidence of severe medical impairment.” Webb, 433 F.3d at 688 18 (reversing a step two determination “because there was not substantial 19 evidence to show that [the claimant’s] claim was ‘groundless’”). 20 Here, the record does not establish that either of Plaintiff’s shoulders had 21 more than a minimal effect on her ability to perform basic work activities after 22 January 1, 2010. The additional evidence submitted by Plaintiff reflects that 23 before her surgery on March 23, 2007, she was limited due to left-shoulder 24 pain. See AR 678. This evidence also reflects that Plaintiff’s right shoulder was 25 somewhat limited due to pain before she was given a steroid injection in May 26 2007. See AR 679, 942 (May 2007 note indicating Plaintiff’s right shoulder had 27 full range of motion and strength, but with pain), 945. However, as of August 28 14, 2007, both of Plaintiff’s shoulders had improved. Dr. Sofia noted that 10 1 Plaintiff’s left shoulder had full motion and excellent strength with minimal 2 pain. AR 955. He also noted that her right shoulder had an “excellent exam” 3 with “full motion and strength” and “almost no discomfort.” Id. Plaintiff told 4 Dr. Sofia that she was “happy with her left shoulder, had “no trouble” with the 5 right, and could “probably work.” AR 954. 6 The only records from the relevant time period Plaintiff points to as 7 evidence of a severe shoulder impairment are the opinions of her treating 8 physicians, Dr. Pasi and Dr. Scheel. As discussed further below, the ALJ 9 properly discounted Dr. Pasi’s and Dr. Scheel’s opinions for several reasons, 10 including that they were not supported by the objective evidence. See AR 23. 11 As the ALJ noted, Plaintiff had “complaints of left shoulder pain” on March 12 22, 2010, AR 21 (citing AR 261), but an October 14, 2011 x-ray of her left 13 shoulder was “normal,” id. (citing AR 296, 574). The ALJ also considered the 14 opinion of Dr. Bernabe, the consultative orthopedic examiner, who noted that 15 Plaintiff had full and painless range of motion in both shoulders, with no sign 16 of impingement or instability. See AR 23, 215.4 17 Nor did Plaintiff meet her burden of demonstrating a severe back 18 impairment. As the ALJ acknowledged, Plaintiff had “significant treatment for 19 her back problems” before January 1, 2010, but “the evidence shows only 20 sporadic mention of back problems with minimal treatment that does not 21 support allegations that these symptoms caused significant limitations during 22 23 24 25 26 27 28 4 Some evidence indicates that Plaintiff’s right shoulder began to deteriorate after her date last insured. The doctor who performed an MRI examination of Plaintiff’s right shoulder on January 10, 2013, noted Plaintiff’s “history” was “[s]houlder pain and limited motion for nine months.” AR 556. On April 17, 2013, Plaintiff’s physical therapist noted that Plaintiff reported that her right shoulder pain “started insidiously” in February 2012. AR 463. Plaintiff does not, however, cite any evidence showing that she was limited by her right shoulder during the relevant time period. 11 1 the relevant period.” AR 18. On July 15, 2010, Plaintiff complained of back 2 pain and was prescribed medication. Id. (citing AR 260). However, Plaintiff 3 “had no further significant treatment for back pain until she fell and hurt her 4 back on March 14, 2011 and was simply seeking medication refills.” Id. (citing 5 AR 251). Indeed, Plaintiff testified at the hearing that her back had been 6 treated with just pain medication since 2007. AR 51. An x-ray shortly after the 7 relevant period on December 27, 2011 showed some straightening of the 8 cervical curve with “no other abnormalities.” AR 18-19 (citing AR 292); see 9 also AR 570. Again, Plaintiff relies heavily on the properly discounted 10 opinions of Dr. Pasi and Dr. Scheel. See JS at 9. Accordingly, the Court finds 11 that Plaintiff has not met her burden of showing that she had a severe shoulder 12 or back impairment. 13 14 15 b. The ALJ Did Not Err in Giving Little Weight to the Treating Physicians’ Opinions Plaintiff contends that “only after her worker’s compensation case is 16 considered and properly developed do the limitations expressed by the treating 17 physicians Drs. Pasi, Scheel, and Pan make sense,” because their opinions are 18 “completely consistent with and supported by the objective medical findings 19 and opinions expressed by worker’s compensation physicians.” JS at 9. 20 Three types of physicians may offer opinions in Social Security cases: 21 those who treated the plaintiff, those who examined but did not treat the 22 plaintiff, and those who did neither. See 20 C.F.R. § 404.1527(c); Lester v. 23 Chater, 81 F.3d 821, 830 (9th Cir. 1995) (as amended Apr. 9, 1996). A treating 24 physician’s opinion is generally entitled to more weight than an examining 25 physician’s opinion, which is generally entitled to more weight than a 26 nonexamining physician’s. Lester, 81 F.3d at 830. When a treating or 27 examining physician’s opinion is uncontroverted by another doctor, it may be 28 rejected only for “clear and convincing reasons.” See Carmickle v. Comm’r, 12 1 Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) (citing Lester, 81 F.3d 2 at 830-31). Where such an opinion is contradicted, the ALJ must provide only 3 “specific and legitimate reasons” for discounting it. Id.; see also Garrison v. 4 Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). Moreover, “[t]he ALJ need not 5 accept the opinion of any physician, including a treating physician, if that 6 opinion is brief, conclusory, and inadequately supported by clinical findings.” 7 Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). The weight accorded 8 to a physician’s opinion depends on whether it is consistent with the record 9 and accompanied by adequate explanation, the nature and extent of the 10 treatment relationship, and the doctor’s specialty, among other things. 20 11 C.F.R. § 404.1527(c). 12 The ALJ provided specific and legitimate reasons for giving “little 13 weight” to Dr. Pasi’s, Dr. Scheel’s, and Dr. Pan’s controverted opinions. AR 14 23. First, the ALJ noted that their opinions were set forth in “checklist-style 15 forms” that “appear to have been completed as an accommodation to” 16 Plaintiff and “include only conclusions regarding functional limitations 17 without any rationale for those conclusions.” Id. Despite finding that Plaintiff 18 had extreme physical limitations, Dr. Pasi, Dr. Scheel, and Dr. Pan cited no 19 supporting medical evidence, test results, or clinical findings in their Physical 20 Capacities forms. See AR 334-38, 338-43, 349-51. Nor does Plaintiff point to 21 any clinical findings in their treatment notes that would support such 22 limitations. And to the extent Dr. Pasi, Dr. Scheel, and Dr. Pan based their 23 opinions on Plaintiff’s own reports of her symptoms, the ALJ provided clear 24 and convincing reasons for discounting Plaintiff’s subjective complaints for the 25 reasons discussed below. As such, the ALJ permissibly discounted Dr. Pasi’s, 26 Dr. Scheel’s, and Dr. Pan’s opinions on this basis. See Thomas, 278 F.3d at 27 957 (stating that ALJ “need not accept the opinion of . . . a treating physician” 28 if it is “brief, conclusory, and inadequately supported by clinical findings”); 13 1 Tonapetyan v. Holder, 242 F.3d 1144, 1149 (9th Cir. 2001) (holding that when 2 ALJ properly discounted claimant’s credibility, he was “free to disregard” 3 doctor’s opinion that was premised on claimant’s subjective complaints). 4 Second, the ALJ found that Dr. Pasi’s, Dr. Scheel’s, and Dr. Pan’s 5 opinions were not supported by the objective evidence and “the course of 6 treatment pursued by these doctors have not been consistent with what one 7 would expect if [Plaintiff] was truly disabled.” AR 23. Plaintiff counters that 8 “the opinions expressed by these three treating physicians are consistent with 9 and supported by the totality of medical evidence of record . . . which now 10 includes the entire worker’s compensation record.” JS at 12. However, other 11 than general references to “surgical reports,” “epidural reports,” and “MRI 12 findings,” see id., Plaintiff does not identify any specific medical records nor 13 does she explain which functional limitations such records support. Moreover, 14 the ALJ extensively reviewed the medical evidence and noted that “the 15 positive objective clinical and diagnostic findings” did not support more 16 restrictive functional limitations than those assessed in Plaintiff’s RFC. See AR 17 21. As the ALJ noted, x-rays of Plaintiff’s knees and hands on September 23, 18 2010 revealed “no bony abnormalities.” AR 21 (citing AR 303-06, 582-85); see 19 also AR 258 & 444 (October 2010 progress note indicating “negative” results 20 of x-rays of both knees and hands). The ALJ noted that x-rays of Plaintiff’s left 21 shoulder, wrist, and elbow on October 14, 2011 were “normal.” AR 21 (citing 22 AR 296-98, 574-76). The ALJ also noted that diagnostic imaging of Plaintiff’s 23 right knee on January 4, 2012 showed “minimal degenerative spurring at the 24 medial tibial condyle, but was otherwise normal.” AR 21-22 (citing AR 290, 25 569). The ALJ noted that Plaintiff had a “normal” CT head scan on May 30, 26 2012. AR 22 (citing 567). The ALJ further noted that Plaintiff’s 27 hypothyroidism was managed by medication. Id. (citing AR 321, 370). 28 Likewise, the record reflects that Plaintiff’s pain symptoms were treated with 14 1 over-the-counter and prescription medication during the relevant time period. 2 See, e.g., AR 427, 429-36, 439-40, 444-50. It was permissible for the ALJ to 3 discount the opinions of Dr. Pasi, Dr. Scheel, and Dr. Pan on this basis. See 4 Thomas, 278 F.3d at 957; Senko v. Astrue, 279 F. App’x 509, 511 (9th Cir. 5 2008) (finding that ALJ gave several “clear and convincing” reasons for 6 rejecting treating doctor’s opinion, including that his opinion was not 7 supported by his treatment notes or other evidence in record and that treatment 8 notes showed that conditions responded to medication ). 9 B. 10 Plaintiff’s Credibility Plaintiff contends that the ALJ failed to give legally sufficient reasons for 11 discounting her credibility. JS at 25-30. For the reasons discussed below, the 12 Court disagrees. 13 1. Applicable Law 14 To determine whether a claimant’s testimony about subjective pain or 15 symptoms is credible, an ALJ must engage in a two-step analysis. Lingenfelter 16 v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007)). “First, the ALJ must 17 determine whether the claimant has presented objective medical evidence of an 18 underlying impairment ‘which could reasonably be expected to produce the 19 alleged pain or other symptoms alleged.’” Id. at 1036 (citation omitted). Once 20 a claimant does so, the ALJ “may not reject a claimant’s subjective complaints 21 based solely on a lack of objective medical evidence to fully corroborate the 22 alleged severity of pain.” Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) 23 (en banc). 24 If the claimant meets the first step and there is no affirmative evidence of 25 malingering, the ALJ must provide specific, clear and convincing reasons for 26 discrediting a claimant’s complaints. Robbins v. Soc. Sec. Admin., 466 F.3d 27 880, 883 (9th Cir. 2006) (citing Smolen, 80 F.3d at 1283-84). “General findings 28 are insufficient; rather, the ALJ must identify what testimony is not credible 15 1 and what evidence undermines the claimant’s complaints.” Brown-Hunter v. 2 Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (citation omitted). The ALJ may 3 consider, among other factors, a claimant’s reputation for truthfulness, 4 inconsistencies either in her testimony or between her testimony and her 5 conduct, unexplained or inadequately explained failure to seek treatment or 6 follow a prescribed course of treatment, her work record, and her daily 7 activities. Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997); 8 Smolen, 80 F.3d at 1283-84 & n.8. If the ALJ’s credibility finding is supported 9 by substantial evidence in the record, the reviewing court “may not engage in 10 second-guessing.” Thomas, 278 F.3d at 959. 11 2. Relevant Facts 12 At the hearing, Plaintiff testified that she lives with her husband and 13- 13 year-old daughter. AR 44. Plaintiff said that she is her daughter’s primary 14 caretaker. Id. Her husband is disabled, and his mother is his primary caretaker. 15 AR 45. Plaintiff testified that her mother-in-law, who lives about 30 minutes 16 away, comes to help them five days a week. AR 45-46. Plaintiff also has a 28- 17 year-old daughter who “comes over all the time and help[s] out.” Id. Plaintiff 18 said that her mother-in-law “do[es] everything,” and if her husband needs 19 something, one of their daughters will “go and get it for him.” AR 45. Plaintiff 20 testified that her mother-in-law takes care of the household and upkeep of the 21 house, including laundry, cooking, and cleaning. AR 46. Plaintiff has a driver’s 22 license and drives “four days a week,” usually to the store and her daughter’s 23 bus stop. Id. Plaintiff’s daughter accompanies Plaintiff when she shops for 24 groceries. Id. 25 Plaintiff testified that she has joint and muscle pain, which primarily 26 affects her legs and back. AR 47-48. “[I]t mess[es] with [her] walk” and 27 “keep[s] [her] from doing different stuff, washing dishes, cleaning the house.” 28 AR 48. Plaintiff’s whole right arm and fingers lock up. Id. She takes pain 16 1 medication twice a day and has also gone to physical therapy. AR 47-48. 2 Plaintiff has a cyst in the back of her right leg and “the pain just hit [her] all of 3 a sudden” when she is walking sometimes, and she feels like she is “about to 4 fall from that pain, it’s like a sharp pain in the back.” AR 50. Plaintiff reported 5 that she has a herniated disc that affects her left side, and when she tries to 6 clean or mop, “it goes all the way into the thigh, and it’s like a lot of pressure 7 there, pain in there.” AR 50-51. Plaintiff’s back has been treated only with pain 8 medication since 2007. AR 51. She also takes pain medication for headaches. 9 AR 51-52. Plaintiff has to exercise her neck because of stiffness, and recently 10 11 went to urgent care a few times to get a shot for the pain. AR 52-53. Plaintiff testified that “it’s hard” to lift and carry, and she “can’t lift 12 nothing heavy.” AR 54-55. When she tries to use a spoon or cut up food, she 13 has “a lot of tingling in [her] fingers.” AR 55. She said that if she stands at the 14 kitchen sink for a long time to “try to wash dishes, all the pressure goes from 15 the . . . back into the left leg into the thigh.” Id. At the end of the hearing, 16 Plaintiff asserted, 17 . . . I just wanted to say I’m not able to do housekeeping or 18 cleaning or any kind of job. Because if I’m—when I’m at home 19 and I try to do—it’s very physical work, it hurts a lot. It’s all in my 20 back, my hands, my arms, my right arm is always locking up on 21 me, my fingers, they cramps up. So I don’t—I’m not able to do 22 any kind of work. 23 AR 62. 24 3. Discussion 25 As an initial matter, the ALJ credited many of Plaintiff’s subjective 26 complaints, as reflected in the “limited light limitations adopted” in her RFC. 27 AR 24. The ALJ also noted that he had “generously consider[ed] [Plaintiff’s] 28 subjective complaints.” Id. To the extent the ALJ partially discredited 17 1 Plaintiff’s testimony and allegations, AR 20-21, he gave clear and convincing 2 reasons for doing so.5 3 First, the ALJ found that “the evidence submitted does not support the 4 severity of symptoms alleged.” AR 20. As discussed above, x-rays and other 5 diagnostic imaging during the relevant time period yielded mostly normal 6 results. Dr. Bernabe noted that Plaintiff had normal ranges of motion, intact 7 motor strength and sensation, and normal gait. See AR 215-16. The ALJ 8 permissibly relied on this evidence to discount Plaintiff’s allegations of 9 debilitating functional limitations, such as her claims that she has difficulty 10 walking, AR 47-48, 50, and “it’s hard” for her to lift and carry anything, AR 11 54-55. See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (“Although 12 lack of medical evidence cannot form the sole basis for discounting pain 13 testimony, it is a factor that the ALJ can consider in his credibility analysis.”); 14 Carmickle, 533 F.3d at 1161 (“Contradiction with the medical record is a 15 sufficient basis for rejecting the claimant’s subjective testimony.”); SSR 16-3p, 16 2016 WL 1119029, at *4 (Mar. 16, 2016) (“[O]bjective medical evidence is a 17 useful indicator to help make reasonable conclusions about the intensity and 18 19 20 21 22 23 24 25 26 27 28 5 In making his credibility finding, the ALJ did not cite any evidence of malingering. The Court notes that, on November 29, 2005, an examining physician noted as follows: Supine straight leg raising was achieved to 90 degrees and associated with pain in the back, but seated straight leg raising, which is the same maneuver, which achieved 90 degrees, resulted in no pain, which raises a red flag as the movements of forward flexion and supine and seated straight leg raising are the same movements done in different positions and should register the same responses. AR 732. On June 4, 2008, a different examining physician noted that Plaintiff “only performed 10% of a full squat” and “[i]t did not appear she was putting forth her best effort.” AR 656, 820. 18 1 persistence of symptoms, including the effects those symptoms may have on 2 the ability to perform work-related activities.”). 3 Second, the ALJ found that, despite Plaintiff’s allegedly debilitating 4 symptoms, her daily activities could be “quite demanding both physically and 5 emotionally.” AR 21. Plaintiff claimed that she was so debilitated by her 6 medical conditions that she was, for example, unable to care for her disabled 7 husband, wash dishes, clean the house, or use a spoon without difficulty. But 8 Plaintiff was the primary caretaker of her 13-year-old daughter, she drove four 9 times a week, and shopped for groceries with her daughter. The ALJ 10 permissibly discounted Plaintiff’s credibility based on the conflict between her 11 alleged limitations and her daily activities. See Molina v. Astrue, 674 F.3d 12 1104, 1112 (9th Cir. 2012) (holding that ALJ may discredit claimant’s 13 testimony when “claimant engages in daily activities inconsistent with the 14 alleged symptoms” (citing Lingenfelter, 504 F.3d at 1040)); id. (“Even where 15 those [daily] activities suggest some difficulty functioning, they may be 16 grounds for discrediting the claimant’s testimony to the extent that they 17 contradict claims of a totally debilitating impairment.”). 18 The ALJ also noted that the treatment Plaintiff received “has been 19 essentially routine and conservative in nature.” AR 20. As previously 20 discussed, the record reflects that Plaintiff’s symptoms were treated with over- 21 the-counter and prescription pain medication during the relevant time period. 22 See, e.g., AR 427, 429-36, 439-40, 444-50. Plaintiff also testified at the hearing 23 that her leg and back pain have been routinely treated with pain medication 24 and physical therapy. AR 47-48, 51. She takes pain medication for tendonitis, 25 which affects her arms, wrist, and fingers. AR 48. Plaintiff testified that pain 26 medication “helps” with her headaches. AR 52. A conservative treatment 27 history is a legitimate basis for an ALJ to discount a claimant’s credibility. See 28 Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008); Parra v. Astrue, 19 1 481 F.3d 742, 751 (9th Cir. 2007) (noting that evidence of conservative 2 treatment is sufficient to discount claimant’s testimony regarding severity of 3 impairment). 4 Plaintiff contends that her treatment history was not conservative, noting 5 that she “has undergone multiple surgical procedures including epidurals and 6 shoulder surgery.” See JS at 26. 6 This appears to refer to treatment Plaintiff 7 received before the onset date alleged in her application. As discussed above, 8 the record reflects that Plaintiff’s left shoulder improved post-surgery. But even 9 if the ALJ erred in analyzing Plaintiff’s treatment history, any error was 10 harmless because he provided two other reasons, both of which were supported 11 by substantial evidence, for discounting Plaintiff’s subjective complaints. See 12 Carmickle, 533 F.3d at 1162 (“So long as there remains ‘substantial evidence 13 supporting the ALJ’s conclusions on . . . credibility’ and the error ‘does not 14 negate the validity of the ALJ’s ultimate [credibility] conclusion,’ such is 15 deemed harmless and does not warrant reversal” (alterations in original)). 16 III. 17 CONCLUSION 18 19 For the reasons stated above, the decision of the Social Security Commissioner is AFFIRMED and the action is DISMISSED with prejudice. 20 21 Dated: March 31, 2017 ______________________________ DOUGLAS F. McCORMICK United States Magistrate Judge 22 23 24 25 26 27 28 6 Plaintiff also testified at the hearing that months after her date last insured, she got “some kind of shot” for neck pain a few times at urgent care. See AR 52-53. 20