Charles Hocking v. Carolyn W. Colvin, No. 5:2016cv02611 - Document 23 (C.D. Cal. 2017)
Court Description: MEMORANDUM OPINION by Magistrate Judge Alka Sagar. The decision of the Commissioner is AFFIRMED. (See document for complete details) (afe)
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Charles Hocking v. Carolyn W. Colvin Doc. 23 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CHARLES HOCKING, 12 Plaintiff, v. 13 14 15 NANCY A. BERRYHILL,1 Acting Commissioner of Social Security, Defendant. 16 ) No. EDCV 16-2611-AS ) ) MEMORANDUM OPINION ) ) ) ) ) ) ) ) ) 17 18 Pursuant to Sentence 4 of 42 U.S.C. § 405(g), IT IS HEREBY 19 ORDERED that this matter is remanded 20 for further administrative action consistent with this Opinion. 21 PROCEEDINGS 22 23 24 On December 22, 2016, Plaintiff Charles Hocking (“Plaintiff”) 25 filed a Complaint seeking review of the denial of his application for 26 Disability Insurance Benefits (DIB). (Docket Entry No. 1). On May Nancy A. Berryhill is substituted for former Commissioner Carolyn W. Colvin. See Fed. R. Civ. P. 25(d). Acting 27 1 28 1 Dockets.Justia.com 1 23, 2017, Defendant filed an Answer along with the Administrative 2 Record 3 consented 4 (Docket Entry Nos. 11, 12). 5 a Joint Stipulation (“Joint Stip.”) setting forth their respective 6 positions regarding Plaintiff’s claim. (“AR”). to (Docket proceed Entry before Nos. a 15, United 16). The States parties Magistrate have Judge. On September 7, 2017, the parties filed (Docket Entry No. 21). 7 8 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 9 Plaintiff, 10 and formerly air employed conditioning as a installer, building (AR inspector 372), filed and his a 11 heating DIB 12 application on May 27, 2010, alleging a disabling condition beginning 13 October 9, 2009, (AR 358), as a result of lower back surgery and 14 lower back pain. (AR 371). 15 Law Judge (“ALJ”) examined the record and heard testimony from a 16 medical expert (“ME”), Dr. Alanson Mason; a vocational expert (“VE”), 17 Alan Boroskin; and Plaintiff, who was represented by counsel. 18 82-104). 19 denying Plaintiff’s application. 20 Appeals Council vacated the ALJ’s decision, and remanded the case 21 for 22 different ALJ examined the record and heard testimony from an ME, Dr. 23 Ronald Kendrick; a VE, Dr. Ronald Hatakeyama; and Plaintiff, who was 24 represented by counsel. 25 Plaintiff’s application in a written decision. On November 16, 2011, an Administrative (AR On January 20, 2012, the ALJ issued a written decision further proceedings. (AR (AR 113-21). 127-30). On On July 9, 2013, the March 31, 2015, a (AR 42-75). On July 29, 2015, the ALJ denied (AR 23-35). 26 27 28 The ALJ applied Plaintiff’s case. the requisite five-step process to evaluate At step one, the ALJ found that Plaintiff had not 2 1 engaged 2 October 9, 2009, to his date last insured of December 31, 2014. 3 26). 4 severe impairments: in substantial gainful activity from his onset date of (AR At step two, the ALJ found that Plaintiff had the following 5 6 degenerative disc disease of the lumbar spine (L2 through 7 S1); status-post laminectomy and fusion in 2009; status- 8 post redo fusion L4-S1 in August 2011; status-post redo 9 fusion L3-4 in June 2014; degenerative disc disease of the 10 cervical spine at C6-7 as of March 2014; status post right 11 total knee replacement in February 2013; and status-post 12 right knee revision surgery in August 2013. 13 14 (Id.). At step three, the ALJ determined 15 impairments did not meet or equal a Listing found in 20 C.F.R. Part 16 404, Subpart P, Appendix 1. 17 Plaintiff had the residual functional capacity (“RFC”)2 to perform 18 sedentary work with the following limitations: (AR 27). that Plaintiff’s Next, the ALJ found that 19 20 [Plaintiff] could occasionally climb stairs; could not 21 climb ladders, ropes or scaffolds; could occasionally bend, 22 balance, stoop, kneel, crouch and crawl; could occasionally 23 reach overhead with the bilateral upper extremities; could 24 not work at unprotected heights, around dangerous or fast- 25 moving machinery, and should avoid vibrating machinery. 26 27 28 2 A Residual Functional Capacity is what a claimant can still do despite existing exertional and nonexertional limitations. See 20 C.F.R. § 404.1545(a)(1). 3 1 (AR 28). 2 3 At step four, the ALJ determined that Plaintiff was not able to 4 perform his past relevant work as an “HVAC Installer” and a “Building 5 Inspector.” 6 the 7 experience, and RFC, could perform the following representative jobs 8 existing in significant numbers in the national economy: Telephone 9 Information Clerk (Dictionary of Occupational Titles (“DOT”) 237.367- ALJ (AR 33). found Relying on the VE’s testimony at step five, that Plaintiff, with his age, (AR 34). education, work 10 046) and Lens Inserter (DOT 713.687-026). Accordingly, the 11 ALJ concluded that Plaintiff “was not disabled . . . at any time from 12 October 9, 2009, his alleged onset date, through December 31, 2014, 13 the date last insured.” (AR 35). 14 15 On October 20, 2016, the Appeals Council denied Plaintiff’s 16 request to review the ALJ’s Decision. (AR 1-3, 18-19). The ALJ’s 17 Decision then became the Commissioner’s final decision, allowing this 18 Court to review it. See 42 U.S.C. §§ 405(g), 1383(c). 19 STANDARD OF REVIEW 20 21 22 This Court reviews the Administration’s decision to determine if 23 it is free of legal error and supported by substantial evidence. 24 Brewes v. Comm’r, 682 F.3d 1157, 1161 (9th Cir. 2012). 25 evidence” 26 preponderance. 27 2014). 28 “a court must consider the record as a whole, weighing both evidence is more than a mere scintilla, but See “Substantial less than a Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. To determine whether substantial evidence supports a finding, 4 1 that supports and evidence that detracts from the [Commissioner’s] 2 conclusion.” 3 2001) (internal quotation omitted). 4 can support either affirming or reversing the ALJ’s conclusion, [a 5 court] 6 Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). may Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. not substitute [its] As a result, “[i]f the evidence judgment for that of the ALJ.” 7 8 PLAINTIFF’S CONTENTIONS 9 10 Plaintiff raises two grounds for relief. Plaintiff contends 11 that 12 conflicts with the Occupational Outlook Handbook (“OOH”). 13 Stip. at 5-9, 11-12); and (2) rejecting Plaintiff’s testimony. 14 at 12-19, 27-29). the ALJ erred in (1) relying on the VE’s testimony that (Joint (Id. 15 16 DISCUSSION 17 18 After considering the record as a whole, the Court finds that 19 the Commissioner’s findings are supported by substantial evidence and 20 are free from material legal error.3 21 // 22 // 23 // 24 25 26 27 3 The harmless error rule applies to the review of administrative decisions regarding disability. See McLeod v. Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (an ALJ’s decision will not be reversed for errors that are harmless). 28 5 1 A. Plaintiff Waived The Issue Of Whether A Conflict Exists Between 2 The VE’s Testimony And The Occupational Outlook Handbook 3 4 Plaintiff contends that the ALJ erred in relying on the VE’s 5 testimony to find that Plaintiff could perform the occupations of 6 Telephone Information Clerk (DOT 237.367-046) and Lens Inserter (DOT 7 713.687-026) because the ALJ failed to reconcile a conflict between 8 the 9 these VE’s testimony positions in and the corresponding the Occupational job Outlook classifications Handbook (“OOH”), for an 10 occupational information resource published by the Bureau of Labor 11 Statistics. 12 that 13 information clerk and lens inserter – “receptionists and information 14 clerks” and “production workers, all other,” respectively – require a 15 high school diploma or equivalent. 16 to 17 determining whether there were jobs in the national economy that 18 Plaintiff could perform. the assume (Joint Stip. at 5-9). OOH’s an job Specifically, Plaintiff asserts classifications individual with corresponding to telephone However, the ALJ directed the VE an eleventh grade education in (Id.; AR 72). 19 20 Plaintiff also claims that he did not waive this issue by 21 failing to raise it before the ALJ because the OOH, like the DOT, is 22 designated as a source of administrative notice, making it one of the 23 Commissioner’s own resources. (Joint Stip. at 8; see 20 C.F.R. § 24 404.1566(d)(5)). Plaintiff 25 between the VE’s testimony and the OOH, as with the DOT, should not 26 have to be raised before the ALJ to be preserved on review in this 27 Court. Therefore, (Joint Stip. at 8-9). 28 6 contends that conflicts 1 The Ninth Circuit has recently held that conflicts with the OOH 2 are waived if not raised in the administrative proceedings. 3 Shaibi v. Berryhill, 870 F.3d 874 (9th Cir. 2017), the plaintiff 4 argued, for the first time before the district court, that the ALJ 5 erred in crediting the VE’s testimony about the number of existing 6 jobs in the national economy for certain representative occupations 7 because the VE’s numbers were contradicted by the OOH and another 8 resource, the County Business Patterns (“CBP”). 9 Court held that “when expert's job a claimant to challenge administrative a vocational 11 before the agency, the claimant waives such a challenge on appeal, at 12 least when that claimant is represented by counsel.” 13 noted that its “holding encompasses challenges based on an alleged 14 conflict with alternative job numbers gleaned from the CBP or the 15 OOH.” 16 part on Meanel v. Apfel, 172 F.3d 1111 (9th Cir. 1999), which held 17 that claimants represented by counsel “must raise all issues and 18 evidence at their administrative hearings in order to preserve them 19 on appeal.” 20 1115). 21 principle that an agency, its experts, and its administrative law 22 judges are better positioned to weigh conflicting evidence than a 23 reviewing court.” 24 pointed out that while an ALJ is required to resolve conflicts with 25 the DOT, there was no authority requiring an ALJ to do the same with 26 the OOH. The during entirely The 10 Id. at 881. numbers fails Id. at 881. In Id. proceedings The court The court also noted that its holding rested in Shaibi, 870 F.3d at 881 (quoting Meanel, 172 F.3d at decision in Meanel Id. at 881-82. Id. at 882. 27 28 7 was based on “the fundamental Finally, the Court, in Shaibi, 1 Here, Plaintiff was represented by counsel and did not raise the 2 OOH 3 contends, therefore, that Shaibi “forecloses Plaintiff’s OOH conflict 4 arguments.” 5 distinguishable because it concerned a conflict in estimates of job 6 numbers and “does not dispose of the proposition that the ALJ must 7 resolve conflicts between the [VE] testimony and the education and 8 skill level required of the identified work.” 9 12). conflict issue during administrative (Joint Stip. at 10). proceedings. Defendant Plaintiff argues that Shaibi is (Joint Stip. at 11- According to Plaintiff, Shaibi left the door open to permit 10 this further conflict with the OOH and the [VE] testimony.” 11 12). (Id. at The Court disagrees. 12 13 As set forth in Shaibi, although an ALJ is required to 14 investigate and resolve conflicts between the VE’s testimony and the 15 DOT, even if the claimant does not raise the issue, there is no 16 authority requiring the ALJ to do so for conflicts between the VE’s 17 testimony and the OOH. 18 (adjudicators must “[i]dentify and obtain a reasonable explanation 19 for any conflicts between occupational evidence provided by VEs ... 20 and information in the [DOT], including its companion publication, 21 the Selected Characteristics of Occupations Defined in the Revised 22 Dictionary of Occupational Titles (SCO)”). Shaibi, 870 F.3d at 882; see SSR 00–4p 23 24 Plaintiff contends that the Commissioner’s ruling on this point 25 (SSR 004p) “does not state that the ALJ may ignore the OOH,” nor does 26 it “preclude a claimant from comparing the testimony of the [VE] to 27 the [OOH] []or relieve the ALJ of the obligation to resolve facial, 28 direct, and obvious conflicts.” (Joint Stip. at 9) (citing Taylor v. 8 1 Comm’r of Soc. Sec. Admin., 659 F.3d 1228, 1235 (9th Cir. 2011). 2 However, Taylor involved the ALJ’s failure to ask the VE whether her 3 testimony conflicted with the DOT and does not stand for the broad 4 proposition that the ALJ must resolve all conflicts between the VE’s 5 testimony and the OOH. 6 simply 7 conflicts with the OOH, or with any resource other than the DOT (and 8 its 9 rejected arguments to the contrary. has no companion, Contrary to Plaintiff’s argument, an ALJ independent the SCO). obligation District to investigate courts in this or resolve circuit have See, e.g., Gandara v. Berryhill, 10 2017 WL 4181091, at *4 (E.D. Cal. Sept. 20, 2017)(“plaintiff fails to 11 provide authority for the proposition that an ALJ must sua sponte 12 identify 13 requirements 14 testimony, and determine any inconsistencies.”); Paris v. Berryhill, 15 2017 WL 4181093, at *4 (E.D. Cal. Sept. 20, 2017) (“the Ninth Circuit 16 has rejected plaintiff’s contention that the ‘OOH stands on the same 17 footing as the DOT.’”); Meza v. Berryhill, 2017 WL 3298461, at *8 18 (C.D. Cal. Aug. 2, 2017) (the ALJ was not required to resolve any 19 conflicts with the OOH); Palomino v. Colvin, 2015 WL 2409881, at *6 20 (C.D. Cal. May 20, 2015) (plaintiff has cited no authority for the 21 proposition that the ALJ is bound by the OOH). and take in the administrative OOH, compare notice them of with the the educational VE’s hearing 22 23 The Court finds that Plaintiff has waived this claim by failing 24 to raise it during administrative proceedings, and therefore remand 25 is not warranted on this issue.4 26 4 27 28 Even if the OOH was binding on the ALJ, Plaintiff fails to demonstrate that the VE’s testimony was in fact inconsistent with the OOH. Plaintiff points out that according to the OOH, the occupation of Telephone Information Clerk belongs to the occupational group of 9 1 B. The ALJ Did Not Err In Evaluating Plaintiff’s Credibility 2 3 An ALJ’s assessment of a claimant’s credibility is entitled to 4 “great weight.” See Anderson v. Sullivan, 914 F.2d 1121, 1124 (9th 5 Cir. 1990); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985). 6 “[T]he ALJ is not required to believe every allegation of disabling 7 pain, or else disability benefits would be available for the asking, 8 a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).” 9 Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012). Molina v. In order to determine 10 whether a claimant’s testimony is credible, the ALJ engages in a two- 11 step analysis. 12 2014). Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 13 First, the claimant “must produce objective medical evidence of 14 15 an underlying 16 produce the pain or other symptoms alleged.’” 17 947 18 § 423(d)(5)(A)(1988)). 19 impairment, “the claimant need not produce objective medical evidence 20 of the pain or fatigue itself, or the severity thereof.” 21 Chater, 80 F.3d 1273, 1282 (9th Cir. 1996). F.2d impairment 341, 344 ‘which (9th In could Cir. producing reasonably 1991) be expected to Bunnell v. Sullivan, (quoting evidence of the 42 U.S.C. underlying Smolen v. Instead, the claimant 22 23 24 25 26 27 receptionists. (Joint Stip at 7). The OOH states that receptionists “typically need a high school diploma or equivalent.” Id. It does not state that a high school diploma is required. See George v. Berryhill, 2017 WL 1709599 at *14 (C.D. Cal. Apr. 30, 2017) (the OOH descriptions describing an occupation as “usual[ly]” or “typical[ly]” requiring a high school diploma allow for less education). Plaintiff also fails to explain how his educational level or abilities are inconsistent with the occupations identified by the VE as defined by the DOT. 28 10 1 “need only show that [the impairment] could reasonably have caused 2 some degree of the symptom.” Id. 3 Second, once the claimant has produced the requisite objective 4 5 medical 6 regarding 7 affirmative evidence of malingering, however, the ALJ may reject a 8 plaintiff’s 9 convincing reasons for doing so.” 10 evidence, the the “ALJ severity testimony of may her only reject the symptoms.” “by Id. offering Id. claimant’s at testimony 1284. specific, Absent clear and In assessing a claimant’s alleged symptoms, an ALJ may consider the following: 11 12 (1) ordinary techniques of credibility evaluation, such as 13 claimant’s 14 statements concerning the symptoms, and other testimony by 15 the 16 unexplained 17 treatment or to follow a prescribed course of treatment; 18 and (3) the claimant’s daily activities. reputation claimant that or for appears lying, to inadequately be prior less explained than inconsistent candid; failure to (2) seek 19 20 Id. An ALJ may also consider “the claimant’s work record and 21 observations of treating and examining physicians and other third 22 parties.” Id. 23 Here, 24 the ALJ examined the Administrative Record, heard 25 testimony from Plaintiff, and determined that Plaintiff had produced 26 objective 27 reasonably be expected to cause some of the alleged symptoms.” 28 29). medical However, evidence the ALJ of underlying concluded 11 that impairments Plaintiff’s that “could (AR “statements 1 concerning the intensity, persistence and limiting effects of these 2 symptoms are not entirely credible.” (Id.). 3 Plaintiff 4 contends that the ALJ did not give clear and 5 convincing reasons for discounting his credibility. 6 for 7 experienced 8 expressed a desire to return to work at the time, (Joint Stip. at 16- 9 17), claiming that, despite this evidence, he continued to experience 10 pain and rely on pain medication, never returned to work, and later 11 underwent further surgical procedures between 2011 and 2014. 12 Plaintiff also claims that the ALJ took certain statements in the 13 record out of context, such as Plaintiff’s testimony, at the hearing, 14 that he could not “do anything,” which the ALJ partly relied on to 15 find that Plaintiff had exaggerated his limitations. 16 Plaintiff also avers that while certain treatment notes indicate that 17 he was doing “pretty well” with pain management, the same notes also 18 report a high pain rating. 19 his reported activities of daily living were more limited than the 20 ALJ indicated, and that the ALJ’s reliance on Plaintiff’s report of 21 these activities in August 2010 fails to account for Plaintiff’s 22 worsened condition in the following years. 23 Plaintiff 24 provide an independent, clear and convincing basis for rejecting pain 25 and limitation testimony.” 26 400 F.3d 676, 680 (9th Cir. 2005)). example, the some contends ALJ’s reliance improvement that in on late evidence 2009 (Id. at 17-18). a lack of and He challenges, that early Plaintiff 2010, (Id.). (Id. at 19). Plaintiff asserts (Id. at 18). objective and evidence that Finally, “does not (Id. at 17) (citing Burch v. Barnhart, 27 28 12 1 After consideration of the record as a whole, the Court finds 2 that the ALJ provided specific, clear and convincing reasons for 3 deeming 4 symptoms 5 determined that Plaintiff’s subjective symptoms lacked support in the 6 objective medical record. 7 “sole ground” for rejecting subjective pain testimony, it “is still a 8 relevant factor in determining the severity of the claimant’s pain 9 and its disabling effects.” Plaintiff’s less testimony than fully about the credible. (Id.). limiting First, effects the ALJ of his reasonably While such evidence cannot be the Rollins v. Massanari, 261 F.3d 853, 856, 10 857 (9th Cir. 2001). 11 radiographic evidence did not support the severity of his subjective 12 complaints, noting that there were only “mild abnormalities” shown in 13 lumbar spine x-ray examinations in November 2008 and July 2009 and 14 MRI examinations in September 2009 and February 2010. 15 496-97, 501-02, 503, 505). 16 January 2011 MRI when Plaintiff went to an emergency room complaining 17 of back pain, (AR 29, 521-23, 528-29), as well as lumbar spine x-rays 18 in April 2011 that revealed only mild degenerative changes, and in 19 February 2014, showing “no acute abnormality.” 20 Moreover, 21 sufficient 22 Robbins v. Social Security Administration, 466 F.3d 880, 883 (9th 23 Cir. 2006) (ALJ may cite the medical record in concert with other 24 factors in assessing a claimant’s credibility). 25 as Second, Here, the ALJ properly found that Plaintiff’s discussed reason the for ALJ (Id.; see AR The ALJ also noted few abnormalities in a below, this discounting also was (AR 29-30, 751, 814). not Plaintiff’s reasonably found the sole legally credibility. that evidence See of 26 improvement in Plaintiff’s condition partly undermined the alleged 27 severity of Plaintiff’s pain and limitations. 28 instance, the ALJ noted that Plaintiff’s condition improved after he 13 (AR 29-30). For 1 underwent a lumbar laminectomy procedure on October 19, 2009, despite 2 Plaintiff’s testimony to the contrary. 3 October 29, 2009 indicates that Plaintiff experienced “significant 4 improvement 5 release to return to work after the procedure. 6 treating 7 Plaintiff 8 (Id.). 9 reported having “no new complaints,” “overall dramatic relief of his 10 preoperative symptoms,” and “complete resolution of his left lower 11 extremity pain,” though he complained of ongoing pain in his right 12 buttock, thigh and calf in January 2010. 13 The ALJ also reviewed records indicating that Plaintiff’s knee was 14 improving 15 medications 16 examinations, Plaintiff continued to report doing well, and stated 17 that he was pleased with the results of his surgeries and wished to 18 reduce his pain medications. in his physician avoid radicular provided bending, (AR 29). symptoms” the and release, twisting, A treatment note on that requested a (AR 29, 469). The recommending that while lifting he and climbing ladders. The ALJ also noted that over the next few months, Plaintiff after his were knee also surgery helping. in (AR 29, 465, 467, 468). August (AR 30, 2013, 859). and In that his subsequent (AR 30, 825, 839, 841, 853, 857). 19 20 Notwithstanding Plaintiff’s occasional improvement and 21 management of symptoms, however, the ALJ recognized that Plaintiff 22 continued 23 occasional periods when he was more limited and required surgery or 24 time for recovery. 25 the context of the record as a whole to determine that Plaintiff’s 26 conditions 27 Plaintiff 28 discount Plaintiff’s credibility. to were experience undergo treatment, and suffer The ALJ appropriately relied on such evidence in not alleged. pain, as debilitating This was a 14 or clear consistently and limiting convincing reason as to 1 2 Third, the ALJ found that – based on a variety of Plaintiff’s 3 statements and not just one particular statement that may have been 4 taken 5 limitations. 6 not do “anything,” that his pain was an “11” on a scale of zero to 7 ten, and that it took him ten or twenty minutes to walk ten to 8 fifteen yards, among other claims. 9 reasonably concluded that such claims were “simply not borne out by out of context (AR 31). - Plaintiff exaggerated his symptoms and For example, Plaintiff asserted that he could (AR 31, 86, 389). 10 the record and therefore cannot be considered credible.” 11 This 12 The ALJ credibility. was a clear and convincing reason to discount (AR 31). Plaintiff’s 13 14 The ALJ also reasonably determined that Plaintiff’s activities 15 of daily living did not support his allegations of total disability. 16 (AR 29-30). 17 living to show not only that Plaintiff is capable of performing work 18 in 19 Plaintiff’s credibility when such activities are inconsistent with 20 Plaintiff’s subjective allegations of disability. 21 F.3d at 1112—13; Valentine v. Astrue, 574 F.3d 685, 693 (9th Cir. 22 2009). 23 daily living showed that “he is not as limited as alleged and that he 24 appears to retain the capacity to perform activities consistent with 25 sedentary level work.” 26 reported 27 groceries from the car to the house, drive for one or two hours, and 28 sweep, vacuum, or water his yard for about forty-five minutes, (AR accordance An ALJ may rely on a claimant’s activities of daily with the RFC determination, but also to undermine See Molina, 674 Here, the ALJ found that Plaintiff’s reported activities of he could (AR 31). lift light The ALJ pointed out that Plaintiff objects 15 such as blankets, carry 1 30-31, 2 engage in these activities does not necessarily establish an ability 3 to obtain and maintain employment,” (AR 31), his ability to perform 4 the the 5 limitations, and suggested that Plaintiff “retain[ed] the capacity to 6 perform activities consistent with sedentary level work.” 7 This 8 credibility. 390-91), activities was a acknowledging did clear not and that support convincing while Plaintiff’s alleged reason to “ability severity discount of to his (Id.). Plaintiff’s 9 In addition, the ALJ addressed Plaintiff’s use of an assistive 10 11 device for 12 sometimes, but not always, used a cane or other assistive device and 13 that his “gait was generally reported as not antalgic.” 14 663, 15 physician helped Plaintiff obtain a power wheelchair or scooter in 16 July 2011 because he was “unable to lift anything” and “unable to 17 walk,” but noted that this was “shortly before” Plaintiff’s lumbar 18 fusion and bone graft procedure in August 2011. 19 69). 20 that Plaintiff may have needed an assistive device for up to three 21 months after surgery, but it was otherwise unnecessary. 22 The ALJ reasonably concluded that while Plaintiff “may have required 23 a cane for a few months, he has not required an assistive device for 24 any continuous 12-month period of time, and, as such, the need for an 25 assistive device cannot be considered an ongoing necessity.” 26 30). 826, walking. 830). The (AR ALJ 30). The ALJ acknowledged observed that that Plaintiff (AR 30, 659, Plaintiff’s treating (AR 30, 541, 568- The ALJ credited the testimony of Dr. Kendrick who testified 27 28 16 (AR 30, 49). (AR 1 The reasons given by the ALJ for discounting Plaintiff’s 2 credibility 3 provided 4 Plaintiff’s 5 Fed.App’x 6 credibility determination when the proper process is used and proper 7 reasons for the decision are provided). 8 specific findings justifying a decision to disbelieve Plaintiff’s 9 allegations and those findings are supported by substantial evidence 10 in the record, “we may not engage in second guessing.” Thomas v. 11 Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). sufficiently specific, clear subjective 823, 825 allow and the convincing statements. (9th Cir. Court 2007) See to find reasons Lasich (Court will that for v. the rejecting Astrue, defer ALJ to 252 ALJ’s Where the ALJ has made 12 CONCLUSION 13 14 15 16 For the foregoing reasons, the decision of the Commissioner is AFFIRMED. 17 18 LET JUDGMENT BE ENTERED ACCORDINGLY. 19 20 Dated: December 21, 2017. 21 22 23 _____________/s/______________ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 17
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