Casey Howell v. Nancy A. Berryhill, No. 5:2018cv00116 - Document 20 (C.D. Cal. 2018)
Court Description: MEMORANDUM DECISION AND ORDER AFFIRMING COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. IT IS ORDERED that judgment be entered AFFIRMING the Commissioner's decision, DENYING Plaintiff's request for remand or an award of benefits, and DISMISSING this action with prejudice. (See document for further details.) (sbou)
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Casey Howell v. Nancy A. Berryhill Doc. 20 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CASEY H.,1 Plaintiff, 12 13 v. 14 15 NANCY A. BERRYHILL, Acting Commissioner of Social Security, 16 Defendant. ) Case No. EDCV 18-0116-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 under 28 U.S.C. § 636(c). 24 Court on the parties’ Joint Stipulation, filed September 18, 25 2018, which the Court has taken under submission without oral The parties consented to the jurisdiction of the The matter is before the 26 27 28 1 Plaintiff’s name is partially redacted in compliance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States. 1 Dockets.Justia.com 1 argument. 2 decision is affirmed. 3 II. 4 For the reasons stated below, the Commissioner’s BACKGROUND Plaintiff was born in 1969. 5 164.) 6 as a truck driver (id. at 32). 7 (Administrative Record (“AR”) He has a high school diploma (id. at 33) and last worked On July 19, 2013, Plaintiff applied for DIB and SSI, 8 alleging that he had been unable to work since June 20, 2013, 9 because of injuries to his lower back. (AR 57-58, 65-66, 164, 10 167, 172.) 11 reconsideration (id. at 57-74, 75-98), he requested a hearing 12 before an Administrative Law Judge (id. at 118-19). 13 was held on October 7, 2016, at which Plaintiff, who was 14 represented by counsel, testified, as did a vocational expert. 15 (Id. at 30-51.) 16 the ALJ found Plaintiff not disabled. 17 Appeals Council review (id. at 163), which was denied on December 18 4, 2017 (id. at 1-6). 19 III. STANDARD OF REVIEW 20 After his applications were denied initially and on A hearing In a written decision issued November 18, 2016, (Id. at 15-23.) He sought This action followed. Under 42 U.S.C. § 405(g), a district court may review the 21 Commissioner’s decision to deny benefits. 22 decision should be upheld if they are free of legal error and 23 supported by substantial evidence based on the record as a whole. 24 See Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. 25 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 26 means such evidence as a reasonable person might accept as 27 adequate to support a conclusion. 28 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 2 The ALJ’s findings and Substantial evidence Richardson, 402 U.S. at 401; It 1 is more than a scintilla but less than a preponderance. 2 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 3 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 4 substantial evidence supports a finding, the reviewing court 5 “must review the administrative record as a whole, weighing both 6 the evidence that supports and the evidence that detracts from 7 the Commissioner’s conclusion.” 8 720 (9th Cir. 1998). 9 either affirming or reversing,” the reviewing court “may not To determine whether Reddick v. Chater, 157 F.3d 715, “If the evidence can reasonably support 10 substitute its judgment” for the Commissioner’s. 11 IV. Id. at 720-21. THE EVALUATION OF DISABILITY 12 People are “disabled” for purposes of receiving Social 13 Security benefits if they are unable to engage in any substantial 14 gainful activity owing to a physical or mental impairment that is 15 expected to result in death or has lasted, or is expected to 16 last, for a continuous period of at least 12 months. 17 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 18 1992). 42 U.S.C. 19 A. 20 The ALJ follows a five-step evaluation process to assess The Five-Step Evaluation Process 21 whether a claimant is disabled. 22 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 23 1995) (as amended Apr. 9, 1996). 24 Commissioner must determine whether the claimant is currently 25 engaged in substantial gainful activity; if so, the claimant is 26 not disabled and the claim must be denied. 27 416.920(a)(4)(i). 28 20 C.F.R. §§ 404.1520(a)(4), In the first step, the §§ 404.1520(a)(4)(i), If the claimant is not engaged in substantial gainful 3 1 activity, the second step requires the Commissioner to determine 2 whether the claimant has a “severe” impairment or combination of 3 impairments significantly limiting his ability to do basic work 4 activities; if not, the claimant is not disabled and his claim 5 must be denied. 6 §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a “severe” impairment or combination of 7 impairments, the third step requires the Commissioner to 8 determine whether the impairment or combination of impairments 9 meets or equals an impairment in the Listing of Impairments set 10 forth at 20 C.F.R. part 404, subpart P, appendix 1; if so, 11 disability is conclusively presumed. 12 416.920(a)(4)(iii). §§ 404.1520(a)(4)(iii), 13 If the claimant’s impairment or combination of impairments 14 does not meet or equal an impairment in the Listing, the fourth 15 step requires the Commissioner to determine whether the claimant 16 has sufficient residual functional capacity (“RFC”)2 to perform 17 his past work; if so, he is not disabled and the claim must be 18 denied. 19 has the burden of proving he is unable to perform past relevant 20 work. 21 burden, a prima facie case of disability is established. 22 that happens or if the claimant has no past relevant work, the 23 Commissioner then bears the burden of establishing that the 24 claimant is not disabled because he can perform other substantial §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). Drouin, 966 F.2d at 1257. The claimant If the claimant meets that Id. If 25 2 26 27 28 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). The Commissioner assesses the claimant’s RFC between steps three and four. Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017) (citing § 416.920(a)(4)). 4 1 gainful work available in the national economy. 2 §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Drouin, 966 F.2d at 1257. 3 That determination comprises the fifth and final step in the 4 sequential analysis. 5 Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); 6 B. 7 At step one, the ALJ found that Plaintiff had not engaged in The ALJ’s Application of the Five-Step Process 8 substantial gainful activity since June 20, 2013, the alleged 9 onset date. (AR 17.) At step two, he concluded that Plaintiff 10 had the following severe impairments: “strain/sprain of the 11 lumbar spine with superimposed upon 3mm disc bulge with 12 degenerative disc disease, annular tear, and mild facet 13 arthropathy and mild endplate degenerative changes[.]” 14 (citing §§ 404.1520(c) & 416.920(c)).) 15 determined that Plaintiff’s impairments did not meet or equal a 16 listing. 17 RFC to perform a “less than sedentary” exertional level of work:3 18 Specifically, the claimant can lift and carry 10 pounds 19 occasionally and 10 pounds frequently. 20 and/or walk for 2 hours out of an 8-hour workday, but (AR 17.) (Id. At step three, the ALJ At step four, he found that Plaintiff had the He can stand 21 22 3 “Sedentary work” is defined as 23 24 25 26 27 lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met. 28 §§ 404.1567(a) & 416.967(a). 5 1 requires the use of a cane for walking. 2 6 hours in an 8-hour workday. The claimant cannot bend 3 or 4 scaffolds. 5 routine and repetitive tasks due to the effects of 6 narcotic pain medication. 7 twice per month due to his medical condition. stoop and he cannot climb He can sit for ladders, ropes or Additionally, the claimant is limited to 8 (AR 18; see also id. at 21.) The claimant may miss work Based in part on the vocational 9 expert’s testimony, the ALJ found that Plaintiff could not perform 10 his past relevant work. (Id. at 21.) At step five, the ALJ 11 concluded that given Plaintiff’s age, education, work experience, 12 and RFC, he could perform at least two representative jobs in the 13 national economy, both sedentary unskilled positions. 14 22.) Thus, he found Plaintiff not disabled. 15 V. RELEVANT BACKGROUND 16 A. 17 18 (Id. at (Id. at 22-23.) Treating Physicians 1. Dr. Bott On June 25, 2013, shortly after the alleged onset date, 19 Plaintiff went to see Dr. Frank Bott4 at the San Bernardino 20 Medical Group for treatment of low-back pain. (AR 267.) Dr. Bott 21 diagnosed “significant lumbar spasm with marked limitation in the 22 motion of the low back.” (Id.) 23 recommended two weeks off work. He prescribed Vicodin5 and (Id.) Dr. Bott noted that 24 4 25 The record does not indicate Dr. Bott’s medical specialty. 5 26 27 28 Vicodin is used to relieve moderate to severe pain. See Vicodin, WebMD, https://www.webmd.com/drugs/2/drug-3459/ vicodin-oral/details (last visited Oct. 29, 2018). It contains an opioid (hyrdrocodone) and a nonopioid pain reliever (acetaminophen). Id. Hydrocodone works in the brain to change how the body feels and responds to pain. Id. 6 1 Plaintiff was considering seeking permanent disability. 2 2. 3 (Id.) Dr. Sowell On July 1, 2013, Plaintiff went to see his primary-care 4 physician, Dr. Bryan Sowell (AR 267-68), at San Bernardino Medical 5 Group (id. at 268). Dr. Sowell diagnosed acute lumbar spasm with 6 degenerative disc disease and refilled his prescription for 7 hydrocodone with acetaminophen. (Id.) Plaintiff declined 8 physical therapy and stated that he was “planning on getting 9 permanent disability.” (Id.) He also underwent an x-ray of his 10 lumbar spine, which showed “normal curvature and alignment,” 11 “intact” “pedicles and transverse processes,” and “no 12 spondylolysis or spondylolisthesis.” 13 lumbar spine was “normal.” 14 (Id. at 270.) Overall his (Id.) Plaintiff returned for a follow-up visit with Dr. Sowell on 15 July 15, 2013. (AR 269.) Dr. Sowell noted Plaintiff’s history of 16 degenerative disc disease and normal lumbar-spine x-ray results. 17 (Id.) He extended Plaintiff’s time off work for another month, 18 with a return-to-work date of August 19, 2013. (Id.) He also 19 recommended Plaintiff see an orthopedist and return for a follow20 up visit in five weeks. 21 22 3. (Id.) Emergency treatment Plaintiff visited the Arrowhead Regional Medical Center twice 23 in October 2013 for emergency treatment of his back pain. 24 287-88 (Oct. 11), 285-86 (Oct. 23).) 25 refill his Norco6 prescription. (Id.) (AR At both visits he sought to The handwritten reports of 26 27 28 6 Norco is used to relieve moderate to severe pain. See Norco, WebMD, https://www.webmd.com/drugs/2/drug-63/norco-oral/ details (last visited Oct. 29, 2018). It contains hydrocodone. Id. 7 1 these visits are difficult to decipher, but it appears Plaintiff 2 was prescribed more Norco at the first such visit (AR 287) but his 3 request was refused at the second (id. at 286). 4 5 4. Dr. Goharbin Plaintiff saw Dr. Amir Goharbin7 at the Arrowhead Regional 6 Medical Center on October 24, 2013. (AR 293-95.) He reported 7 getting some relief of his symptoms with Vicodin, but his pain was 8 increasing as he gained weight. (Id. at 294.) He further 9 reported that he had “gotten physical therapy in the past, which 10 helped with his low back pain[.]” (Id.) Dr. Goharbin refilled 11 his Norco prescription, referred Plaintiff to physical therapy, 12 and told him to consider pain management or epidural steroid 13 injections if his pain did not improve. (Id.) 14 recommended a follow-up visit in two months. 15 Dr. Goharbin (Id.) Plaintiff went back to Arrowhead for treatment of his low- 16 back pain one month later, on November 22, 2013. (AR 301-02.) 17 The handwritten reports are illegible in parts, and it is 18 impossible to discern whether Dr. Goharbin was the treating 19 doctor. 20 at 301.) (Id.) Plaintiff’s low-back pain was a “7” of 10. (Id. He said Norco relieved his pain and he did not want to 21 reduce its dosage, but he agreed to a pain-clinic referral. (Id. 22 at 302.) 23 On February 5, 2014, Plaintiff returned to see Dr. Goharbin. 24 (AR 306-08.) During this visit, he reported that he went to 25 physical therapy in December 2013 and experienced some relief of 26 27 28 7 The record does not indicate Dr. Goharbin’s medical specialty. 8 1 his symptoms.8 2 pain. (Id.) (Id. at 307.) Vicodin also helped relieve his Dr. Goharbin prescribed more Vicodin and stressed 3 the need for continued physical therapy and anti-inflammatory 4 medication for pain control and long-term management. (Id.) That 5 same day, Plaintiff underwent another x-ray of his lumbar spine, 6 which showed normal disc spaces and facet joints. 7 (Id. at 300.) On March 27, 2014, Plaintiff returned for a follow-up visit 8 with Dr. Goharbin. (AR 312-13.) He reported that Norco was the 9 only medication working to relieve his pain. (Id. at 313.) He 10 further noted that it “allow[ed] him to do his activities of daily 11 living.” (Id.) Dr. Goharbin refilled Plaintiff’s Norco 12 prescription and recommended that he bring his MRI disk to the 13 medical center to allow referral to a “pain specialist” or 14 orthopedic clinic as necessary. 15 (Id.) On May 1, 2014, Plaintiff saw Dr. Goharbin for a Norco 16 prescription refill. (AR 310.) He “almost beg[ged]” Dr. Goharbin 17 for the refill and reported that Norco allowed him to “do his ADLs 18 without drowsiness[.]” (Id.) Dr. Goharbin told Plaintiff he 19 might have developed a Norco dependency and again urged him to 20 bring in his MRI to allow referral to a pain specialist. (Id.) 21 Plaintiff agreed to do so (id.), but the record contains no such 22 evidence. After Plaintiff “insisted numerous times,” Dr. Goharbin 23 agreed to prescribe him additional Norco but explained that he 24 would no longer do so because of the dangers of prolonged use and 25 availability of other treatment options. (Id.) 26 27 28 8 The medical records contain a single physical-therapy report for one date of service, on December 26, 2013, at which time Plaintiff discontinued the therapy because of pain. (See AR 279-81.) 9 1 Plaintiff again returned to Arrowhead on June 6, 2014, for a 2 follow-up visit. (AR 314-15.) As with the November 22, 2013 3 visit, the reports are illegible in places and fail to identify 4 the treating physician. (Id.) Plaintiff claimed his back pain 5 was at an “8” of 10 and was diagnosed with lumbago. (Id. at 314.) 6 He requested an increase in his Norco prescription, which he 7 reported allowed him to do his activities of daily living without 8 constipation or drowsiness. 9 5. (Id. at 315.) Dr. Wang Plaintiff began seeing Dr. Ying Fuh Wang9 at the Pomona 10 11 Community Health Center on April 30, 2015, to follow up on his 12 complaints of back pain and to refill his medications. 13 26.) (AR 424- He described his pain as severe and sought a letter for 14 “DPSS.” (Id. at 424.) Dr. Wang’s assessment of Plaintiff’s back 15 pain was “stable” and “mildly improved [with] more walking.” 16 at 425.) (Id. Dr. Wang prescribed Norco, Flexeril,10 and ibuprofen. 17 (Id.) 18 Plaintiff returned to see Dr. Wang just over three months 19 later, on August 5, 2015. (AR 427-29.) The doctor noted that 20 without medication, Plaintiff was “able to walk a maximum of about 21 1/4 block[.]” (Id. at 427.) Dr. Wang refilled Plaintiff’s 22 medications and wrote a letter for possible “disability.” (Id. at 23 419 (letter), 427 (treatment note indicating that Plaintiff 24 25 9 26 10 27 28 The record does not indicate Dr. Wang’s medical specialty. Flexeril (which has the generic name cyclobenzaprine) is a muscle relaxant used short term to treat muscle spasms. See Flexeril Tablet, WebMD, https://www.webmd.com/drugs/2/drug-11372/ flexeril-oral/details (last visited Oct. 29, 2018). It is usually used with rest and physical therapy. Id. 10 1 “need[ed] note for disability”).) This letter explained that 2 Plaintiff’s “chronic back pain . . . limits his ability to walk 3 long distances” and that his September 3, 2013 MRI showed “lumbar 4 spondylosis at L4-L5, L5-S1, and a 4 mm disc protrusion at L5-S1.” 5 (Id. at 419.) 6 impairments. 7 It did not mention any other limitations or (Id.) Two months later, on October 5, 2015, Plaintiff returned to 8 see Dr. Wang. (AR 430-32.) He described his back pain as “up and 9 down,” with the medication helping but still necessary. 10 430.) Once again Dr. Wang refilled Plaintiff’s prescriptions for 11 Norco, Flexeril, and ibuprofen. 12 (Id. at (Id.) On June 13, 2016, Plaintiff returned to see Dr. Wang as a 13 follow up for lower-back pain. (AR 446-48.) Dr. Wang noted that 14 he refilled Plaintiff’s Norco and ibuprofen and prescribed a new 15 medication, for insomnia. 16 17 6. (Id. at 447-48.) Dr. Jewell On November 6, 2015, Plaintiff began seeing primary-care 18 physician Dr. David Jewell at Pomona (AR 40, 433-35) for follow-up 19 treatment of his chronic back pain (id. at 433). Dr. Jewell noted 20 that Plaintiff had never undergone pain management or epidurals 21 and had one trial of physical therapy, which Plaintiff said made 22 the pain worse. (Id.) 23 control with Norco[.]” Plaintiff said his pain was “under good (Id.) Dr. Jewell’s “Assessment/Plan” 24 indicated that Plaintiff’s “pain seems controlled on low dose 25 narcotics” and that he should “[c]ontinue to keep pain management 26 in mind [and] consider epidurals if pain worsens.” (Id. at 434.) 27 Dr. Jewell prescribed Norco and ibuprofen, and he directed 28 Plaintiff to return for a follow-up visit in two months. 11 (Id.) 1 On January 6, 2016, Plaintiff again saw Dr. Jewell for low- 2 back pain. (AR 436-38.) He stated that his pain was “[s]till 3 relieved with Norco,” but he was developing some sciatica in his 4 left buttock. (Id. at 436.) Dr. Jewell noted that Plaintiff was 5 not interested in receiving epidurals. (Id.) His 6 “Assessment/Plan” indicated that he would recommend pain 7 management if the pain worsened, and he prescribed Norco and 8 ibuprofen. 9 (Id. at 437-38.) Also on January 6, 2016, after just his second visit with 10 Plaintiff, Dr. Jewell completed a medical-opinion form provided by 11 Plaintiff’s counsel. (AR 402-04.) He indicated his “opinion” of 12 Plaintiff’s “ability to do work-related activities on a day-to-day 13 basis in a regular work setting” by answering a series of 14 questions. (Id.) Each answer consisted of checking a box, 15 circling numbers, or filling in blanks. (Id.) Dr. Jewell 16 indicated that Plaintiff could lift less than 10 pounds on an 17 occasional and frequent basis (id. at 402); stand, walk, or sit 18 for less than two hours during an eight-hour day (id.); sit for 19 between 15 and 30 minutes before changing position (id.); and 20 stand for five to 20 minutes before changing position (id.). In 21 addition, Dr. Jewell opined that Plaintiff must walk around every 22 30 minutes for 15 minutes each time (id. at 403) and needed an 23 opportunity to shift positions or lie down during a work shift 24 every day (id.). In answer to the form’s question, “What medical 25 findings support the limitations described above?” Dr. Jewell 26 answered, “MRI shows lumbar DDD[.]” (Id.) Dr. Jewell also 27 checked a box indicating that Plaintiff would need to miss work 28 more than three times a month because of his impairment. 12 (Id. at 1 404.) Each of the limitations Dr. Jewell assessed was the most 2 severe available on the form. (Id. at 402-04.) According to 3 Plaintiff’s testimony, he told Dr. Jewell how to answer each 4 question, although it is not clear whether the doctor used those 5 answers or provided his own. 6 (Id. at 46-47.) Plaintiff next returned to see Dr. Jewell two months later, 7 on March 3, 2016. (AR 439-41.) He reported that his pain was “no 8 worse but no better” and was “adequately controlled with his 9 current meds,” and he saw “no need” for a referral to pain 10 management. (Id. at 439.) Dr. Jewell refilled his prescriptions 11 for Norco and ibuprofen and noted that Plaintiff “state[d] his 12 attorney had him do an MRI recently and he [would] get a copy of 13 the report.” (Id. at 441.) Dr. Jewell recommended a follow-up 14 visit one month later. (Id.) 15 On April 8, 2016, Plaintiff again saw Dr. Jewell for an 16 office visit. (AR 442-45.) He reported no significant change in 17 his pain and said several surgeons told him his problems were not 18 severe enough to require surgery. 19 pain as “0/10.” (Id. at 443.) (Id. at 442.) He reported his Dr. Jewell’s “Assessment/Plan” 20 indicated that Plaintiff should continue his current medications 21 (which included Norco and ibuprofen) and schedule a follow-up 22 visit in a month. 23 24 25 B. (Id. at 444.) Examining and Reviewing Physicians 1. Dr. Beck Worker’s-compensation physician Dr. John L. Beck, an 26 orthopedic surgeon, examined Plaintiff for three hours on March 27 20, 2014, and produced a detailed 18-page report. (AR 378-95.) 28 Dr. Beck’s “objective findings” were “lumbar spondylosis at L4-L5 13 1 and L5-S1, 4 mm posterior disc protrusions and lumbar disc 2 displacements, back muscle spasms and invertebral disc 3 degeneration.” (Id. at 392.) He concluded that Plaintiff’s “work 4 restrictions” were “limited standing, limited overhead work, 5 limited stooping and bending, limited kneeling and squatting, 6 limited neck and waist bending, no operation of heavy equipment 7 including driving, limited lifting over 10 pounds and limited 8 pushing/pulling up to 10 pounds.” (Id. at 393.) He further 9 opined that Plaintiff needed to consider surgery and recommended 10 consultation with a “spine specialist.” (Id.) As part of his 11 report, Dr. Beck completed a check-box summary of Plaintiff’s 12 “Work & Functional Capacity Activity Estimation[.]” (Id. at 395.) 13 Dr. Beck checked a box on the form indicating that Plaintiff could 14 sit “frequently,” which was defined as three to six hours. 15 (Id.) On January 27, 2015, Dr. Beck completed a five-page 16 supplemental report, updating his earlier findings after 17 evaluating Plaintiff’s MRI results. (AR 373-77.) Dr. Beck 18 apparently consulted with a spinal orthopedic surgeon and 19 concluded that Plaintiff was not a candidate for surgery based on 20 his MRI results, which showed no herniated disc and an “annular 21 tear . . . clearly not as severe as anticipated.” (Id. at 374.) 22 Any future care would be palliative and could include physical 23 therapy to strengthen Plaintiff’s abdominal muscles and prevent 24 further injury. (Id. at 376.) 25 26 27 28 14 1 2 2. Dr. Taylor-Holmes On April 21, 2014, Dr. G. Taylor-Holmes, a preventative- 3 medicine physician,11 assessed Plaintiff’s injuries in connection 4 with his DIB and SSI claims. (AR 60-64, 68-72.) Dr. Taylor- 5 Holmes opined that Plaintiff was not disabled, as his RFC allowed 6 him to perform “light” work.12 (Id. at 63-64, 72.) Dr. Taylor- 7 Holmes found that Plaintiff could sit for about six hours and 8 stand or walk for about six hours during an eight-hour workday. 9 (Id. at 61, 69-70.) No absenteeism limitation was addressed or 10 found. 11 12 3. Dr. Goodrich On September 18, 2014, Dr. Martha A. Goodrich, an internal- 13 medicine physician,13 assessed Plaintiff’s impairments in 14 15 16 17 18 11 Dr. Taylor-Holmes’s electronic signature includes a medical-specialty code of 36, indicating a “[p]reventive [m]edicine” practice. (See AR 60, 68); Program Operations Manual System (POMS) DI 24501.004, U.S. Soc. Sec. Admin. (May 15, 2015), https://secure.ssa.gov/apps10/poms.nsf/lnx/0424501004. 12 19 “Light work” is defined as 26 lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time. 27 §§ 404.1567(b) & 416.967(b). 20 21 22 23 24 25 28 13 Dr. Goodrich’s electronic signature includes a medicalspecialty code of 19, indicating an internal-medicine practice. 15 1 connection with the reconsideration of his DIB and SSI claims. 2 (AR 79-85, 90-96.) She confirmed Dr. Taylor-Holmes’s findings. 3 (Id. at 81, 85, 92-96.) Thus, she concluded that his RFC allowed 4 him to perform light work, and he was not disabled. 5 95.) Dr. Goodrich did not note any absenteeism limitation. 6 7 (Id. at 84, 4. Dr. Karamlou In August 2014, Dr. Azizollah Karamlou, an internal-medicine 8 physician, examined Plaintiff at the request of the Department of 9 Social Services. (AR 320-24.) Dr. Karamlou provided a detailed 10 report on Plaintiff’s back injury, including his medical history, 11 his present condition, and a functional assessment. (Id.) Dr. 12 Karamlou noted that Plaintiff was taking medication for pain 13 management, had refused a nerve-block treatment because of 14 possible side effects, and was able to walk without using a cane 15 “for a short period of time” but needed a cane for “long 16 distances.” (Id. at 323.) Plaintiff had normal range of motion 17 in all his lower extremities. (Id. at 322.) The doctor’s 18 functional assessment concluded that Plaintiff was able to sit, 19 walk, and stand for six hours each in an eight-hour day. (Id.) 20 No opinion was given as to Plaintiff’s need to miss work. 21 22 5. Dr. Deckey Plaintiff underwent an orthopedic consultation14 with Dr. 23 Jeffrey Deckey on September 5, 2014. (AR 397-401.) In his 24 detailed five-page report, Dr. Deckey diagnosed Plaintiff with a 25 26 27 28 (See AR 83, 96); POMS DI 24501.004. 14 The record does not indicate Dr. Deckey’s medical specialty, but he was employed at an orthopedic specialty institute. (AR 397.) 16 1 degenerative disc and annular tear at L5-S1 and chronic low-back 2 pain (id. at 400). Having examined Plaintiff and reviewed the 3 September 3, 2013 MRI, Dr. Deckey further concluded that Plaintiff 4 was not a surgical candidate because he suffered no instability, 5 leg pain, or stenosis. (Id.) Instead, Dr. Deckey recommended 6 treating Plaintiff’s back pain with core strengthening, low-back 7 stabilization, a comprehensive weight-loss program, and pain 8 management. 9 10 6. (Id.) Dr. Watkin In his capacity as a worker’s-compensation physician, Dr. 11 George S. Watkin15 performed an orthopedic evaluation of Plaintiff 12 on October 26, 2015. (AR 339.) He examined Plaintiff for 30 13 minutes, reviewed Plaintiff’s medical records, and produced a 14 detailed 34-page report. (Id. at 339-72.) He noted that 15 Plaintiff reported he had tried physical therapy, which “helped 16 moderately,” but had discontinued it because “it was too painful 17 to his lumbar spine.” (Id. at 340.) Plaintiff walked without 18 “antalgic component”16 and “performed a full squat” (id. at 363), 19 and Dr. Watkin diagnosed him with “[s]train/sprain lumbar spine 20 superimposed upon 3mm disc bulge with degenerative disc disease, 21 annular tear, and mild facet arthropathy at L5-S1; 1 mm disc bulge 22 with mild facet arthropathy at L4-5; L1-2 and L2-3 mild 23 degenerative changes (MRI 11/12/15)” (id. at 365). In describing 24 25 26 27 28 15 The record does not indicate Dr. Watkin’s medical specialty. 16 A person walks with an “antalgic gait” when he limps to avoid putting pressure on a painful area in his foot, knee, or hip. See Antalgic Gait, Healthline, https://www.healthline.com/ health/antalgic-gait (last visited Oct. 29, 2018). 17 1 Plaintiff’s required work accommodations, Dr. Watkin specified “a 2 preclusion from heavy work, prolonged standing, and walking” but 3 gave no sitting or absenteeism restrictions. (Id. at 368.) He 4 recommended that Plaintiff be allowed orthopedic consultations, 5 physical therapy, chiropractic care, medications, diagnostic 6 studies, and possible surgery. (Id.) He suggested Plaintiff 7 “remain under the care of” a pain-management specialist17 to 8 decrease his pain and improve functioning. 9 C. 10 (Id.) Plaintiff’s Testimony Plaintiff testified that he could not work because of lower- 11 back pain (AR 33) and had been living with his parents since 12 around the alleged onset date (id. at 35). He used a cane to walk 13 (id. at 34) and took Norco and ibuprofen to ease his pain (id. at 14 35). Without the use of those medications, Plaintiff would be 15 bedridden. (Id.) He did not help his parents around the house 16 (id. at 37) and often was in so much pain that he spent the day in 17 bed watching television (id. at 38). He further testified that he 18 could lift five pounds (id. at 36-37),18 stand for up to two to 19 three hours at a time (id. at 42), and sit for 30 minutes to two 20 hours (id.). 21 VI. DISCUSSION 22 Plaintiff argues that the ALJ (1) improperly rejected certain 23 findings of Dr. Jewell, a treating physician (J. Stip. at 5-7), 24 17 25 26 27 28 The AR does not show that Plaintiff ever visited a painmanagement specialist, and Dr. Watkin’s comment was part of a paragraph with the heading “Future Medical Care.” (AR 368.) 18 Plaintiff subsequently clarified that he could lift a gallon of milk (AR 37), which weighs eight and a half pounds. See Hernandez v. Colvin, No. 1:12-CV-00330-SMS, 2013 WL 4041862, at *9 n.4 (E.D. Cal. Aug. 8, 2013). 18 1 and (2) failed to provide a clear and convincing reason for 2 finding his testimony about his symptoms not fully credible (id. 3 at 13-18). For the reasons discussed below, remand is not 4 warranted on either basis. 5 A. 6 7 Reversal Is Not Warranted Based on the ALJ’s Rejection of Dr. Jewell’s Sitting and Absenteeism Limitations Plaintiff contends that the ALJ failed to provide a specific 8 and legitimate reason for rejecting portions of treating physician 9 Dr. Jewell’s medical opinion, specifically his sitting and 10 absenteeism limitations. (See J. Stip. at 6.) The ALJ did not 11 err as to the sitting limitation, and any error concerning 12 absenteeism was harmless. 13 14 1. Applicable law Three types of physicians may offer opinions in Social 15 Security cases: those who directly treated the plaintiff, those 16 who examined but did not treat the plaintiff, and those who did 17 neither. See Lester, 81 F.3d at 830. A treating physician’s 18 opinion is generally entitled to more weight than an examining 19 physician’s, and an examining physician’s opinion is generally 20 entitled to more weight than a nonexamining physician’s. 21 §§ 404.1527, 416.927.19 Id.; see But “the findings of a nontreating, 22 23 24 25 26 27 28 19 Social Security regulations regarding the evaluation of opinion evidence were amended effective March 27, 2017. When, as here, the ALJ’s decision is the Commissioner’s final decision, the reviewing court generally applies the law in effect at the time of the ALJ’s decision. See Lowry v. Astrue, 474 F. App’x 801, 804 n.2 (2d Cir. 2012) (applying version of regulation in effect at time of ALJ’s decision despite subsequent amendment); Garrett ex rel. Moore v. Barnhart, 366 F.3d 643, 647 (8th Cir. 2004) (“We apply the rules that were in effect at the time the Commissioner’s decision became final.”); Spencer v. Colvin, No. 3:15-CV-05925-DWC, 2016 WL 7046848, at *9 n.4 (W.D. Wash. Dec. 1, 19 1 nonexamining physician can amount to substantial evidence, so long 2 as other evidence in the record supports those findings.” Saelee 3 v. Chater, 94 F.3d 520, 522 (9th Cir. 1996) (per curiam) (as 4 amended). 5 The ALJ may disregard a physician’s opinion regardless of 6 whether it is contradicted. Magallanes v. Bowen, 881 F.2d 747, 7 751 (9th Cir. 1989); see also Carmickle v. Comm’r, Soc. Sec. 8 Admin., 533 F.3d 1155, 1164 (9th Cir. 2008). When a physician’s 9 opinion is not contradicted by other medical-opinion evidence, 10 however, it may be rejected only for a “clear and convincing” 11 reason. Magallanes, 881 F.2d at 751; Carmickle, 533 F.3d at 1164 12 (citing Lester, 81 F.3d at 830-31). When it is contradicted, the 13 ALJ must provide only a “specific and legitimate reason” for 14 discounting it. Carmickle, 533 F.3d at 1164 (citing Lester, 81 15 F.3d at 830-31); see also Orn v. Astrue, 495 F.3d 625, 632-33 (9th 16 Cir. 2007). The weight given a treating or examining physician’s 17 opinion, moreover, depends on whether it is consistent with the 18 record and accompanied by adequate explanation, among other 19 things. §§ 404.1527(c)(3)-(6), 416.927(c)(3)-(6). Those factors 20 also determine the weight afforded the opinions of nonexamining 21 physicians. §§ 404.1527(e), 416.927(e). The ALJ considers 22 findings by state-agency medical consultants and experts as 23 opinion evidence. 24 Id. Furthermore, “[t]he ALJ need not accept the opinion of any 25 26 27 28 2016) (“42 U.S.C. § 405 does not contain any express authorization from Congress allowing the Commissioner to engage in retroactive rulemaking”). Accordingly, citations to §§ 404.1527 and 416.927 are to the versions in effect from August 24, 2012, to March 26, 2017. 20 1 physician . . . if that opinion is brief, conclusory, and 2 inadequately supported by clinical findings.” Thomas v. Barnhart, 3 278 F.3d 947, 957 (9th Cir. 2002); accord Batson v. Comm’r of Soc. 4 Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). An ALJ need not 5 recite “magic words” to reject a physician’s opinion or a portion 6 of it; the court may draw “specific and legitimate inferences” 7 from the ALJ’s opinion. Magallanes, 881 F.2d at 755. The Court 8 must consider the ALJ’s decision in the context of “the entire 9 record as a whole,” and if the “evidence is susceptible to more 10 than one rational interpretation, the ALJ’s decision should be 11 upheld.” Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th 12 Cir. 2008) (citation omitted). 13 14 2. Analysis The ALJ gave “significant weight, but not full weight” to Dr. 15 Jewell’s medical opinions (AR 20), which included his indication 16 on a check-box form that Plaintiff could sit for a maximum of less 17 than two hours during an eight-hour workday (id. at 402) and would 18 need to miss work because of his impairment more than three times 19 a month (id. at 404). The ALJ also gave “significant weight” (id. 20 at 20) to the opinions of worker’s-compensation physicians Beck 21 (id. at 373-95) and Watkin (id. at 339-72), consulting examiner 22 Dr. Karamlou (id. at 320-24), and state-agency medical consultants 23 Drs. Taylor-Holmes (id. at 60-64, 68-72 (initial review)) and 24 Goodrich (id. at 79-85, 90-96 (reconsideration)). Four of those 25 doctors opined that Plaintiff could sit for up to six hours during 26 an eight-hour workday, but none of them provided any absenteeism 27 limitation or even addressed that issue other than Dr. Jewell. 28 (See id. at 20-21.) The ALJ explicitly declined to accept any 21 1 doctor’s “single assessment” as to Plaintiff’s RFC and instead 2 “adopted those specific restrictions on a function-by-function 3 basis that are best supported by the objective evidence as a 4 whole.” (Id. at 20). In addition, he explicitly considered “the 5 entire record” (id. at 18), including Plaintiff’s “medical record” 6 (id. at 20), in determining his RFC. a. 7 8 Sitting Limitation The medical opinions of Drs. Beck, Taylor-Holmes, Goodrich, 9 and Karamlou all contradict Dr. Jewell’s less-than-two-hour 10 sitting limitation. Accordingly, the ALJ was required to provide 11 only a “specific and legitimate reason” for rejecting it. 12 Carmickle, 533 F.3d at 1164. He did so. See As Plaintiff concedes, 13 “the ALJ was aware that Dr. Jewell had limited [Plaintiff] to 14 sitting no more than two hours.” (J. Stip. at 6; see also AR 20 15 (ALJ explicitly citing that portion of Dr. Jewell’s opinion).) He 16 gave numerous reasons to support his finding that Plaintiff could 17 sit for up to six hours a day. (See generally AR 18-20.) 18 Although he did not explicitly link each particular reason to his 19 rejection of Dr. Jewell’s sitting limitation, the latter may be 20 inferred from the ALJ’s detailed recitation of substantial 21 evidence in the objective record supporting his RFC determination. 22 (See id.); Magallanes, 881 F.2d at 755. 23 The ALJ discussed four separate medical opinions that limited 24 Plaintiff to sitting for six hours in an eight-hour workday. 25 AR 20-21.) (See Each of those included detailed findings supporting 26 the conclusions therein. (See id. at 373-95 (Dr. Beck), 60-64, 27 68-72 (Dr. Taylor-Holmes), 79-85, 90-96 (Dr. Goodrich), 320-24 28 (Dr. Karamlou).) Dr. Jewell’s less-than-two-hour sitting 22 1 limitation was the sole such medical opinion and was provided on a 2 check-box form with almost no explanation. (Id. at 402-04.) 3 Indeed, Dr. Jewell based almost all Plaintiff’s stated limitations 4 on his 2013 MRI, which was taken shortly after his alleged onset 5 date, and not on his examinations or other medical evidence, such 20 6 as the more recent normal x-rays. (Id. at 403.) Although Dr. 7 Jewell was a treating physician, at the time he assessed 8 Plaintiff’s limitations he had seen him only twice. 9 404, 433, 436.) (See id. at As explained below, the ALJ was not required to 10 accept his opinion on Plaintiff’s sitting limitation in light of 11 the meager support provided for that conclusion, the strong 12 contrary evidence in the record, and the doctor’s then-brief 13 relationship with Plaintiff. See Thomas, 278 F.3d at 957 (ALJ 14 properly rejected treating doctor’s form opinion that conflicted 15 with his more recent examination notes and other medical 16 opinions); see also Warner v. Astrue, No. CV 08-6001 ST, 2009 WL 17 1255466, at *9-11 (D. Or. May 4, 2009) (ALJ’s rejection of one 18 doctor’s stated limitation could be inferred from his adoption of 19 four other doctors’ less restrictive limitation). 20 As the ALJ noted, Dr. Jewell’s limitations were inconsistent 21 with his own treatment notes, which indicated that Plaintiff 22 reported that his back pain was under control with medication. 23 (See AR 20 (citing id. at 433 (“pain under good control with 24 Norco”)), 436 (“pain [s]till relieved with Norco”).) Yet Dr. 25 Jewell indicated on the check-box form the most restrictive 26 sitting limitation available: namely, that Plaintiff could sit for 27 28 20 In fact, some evidence in the record indicates that Dr. Jewell simply filled out the form as Plaintiff directed him to. (See AR 46-47.) 23 1 less than two hours in an eight-hour workday. (Id. at 402.) The 2 inconsistency was a proper basis for the limitation’s rejection by 3 the ALJ. See Saelee, 94 F.3d at 522 (ALJ properly disregarded 4 treating doctor’s report when it varied from his treatment notes); 5 O’Neal v. Barnhart, No. EDCV 04-01007-MAN, 2006 WL 988253, at *8 6 (C.D. Cal. Apr. 13, 2006) (inconsistency between treating 7 physician’s medical opinion and examination notes was specific and 8 legitimate reason for rejecting opinion). 9 In addition, the ALJ noted that Plaintiff’s July 1, 2013 x- 10 rays, taken just after his alleged onset date, “came back normal.” 11 (AR 19.) So did Plaintiff’s second set of x-rays, taken February 12 5, 2014, which showed that his “disk spaces and facet joints 13 [were] normal.” (Id. at 300.) Inconsistency with objective 14 medical evidence is a specific and legitimate reason for rejecting 15 a medical-source opinion. See Batson, 359 F.3d at 1195 (lack of 16 “supportive objective evidence” and “contradict[ion] by other 17 statements and assessments of [plaintiff’s] medical condition” 18 were “specific and legitimate reasons” to discount physicians’ 19 opinions). Although Plaintiff’s September 3, 2013 MRI results 20 showed lumbar spondylosis (AR 19), four doctors — including two 21 who examined Plaintiff — opined even after considering those 22 results that Plaintiff could sit for up to six hours. (See id. at 23 392 (Dr. Beck), 60, 68 (Dr. Taylor-Holmes), 79, 90 (Dr. Goodrich), 24 323 (Dr. Karamlou).) 25 The record also shows that Plaintiff’s most recent primary 26 treating physician, Dr. Wang, provided no sitting limitation in an 27 August 15, 2015 letter he wrote at Plaintiff’s request to support 28 his disability claim. (AR 419.) Dr. Wang noted Plaintiff’s 24 1 September 3, 2013 MRI results and indicated only that his back 2 injury limited his ability to walk long distances. (Id.) The 3 letter is inconsistent with Dr. Jewell’s restrictive sitting 4 limitation and further supports the ALJ’s rejection of it, 5 particularly given Dr. Wang’s longer and more recent treatment 6 relationship with Plaintiff. See Batson, 359 F.3d at 1195. 7 Indeed, Dr. Jewell apparently merely filled in for Dr. Wang when 8 he was unavailable for several months. (See AR 424-32 (records 9 showing Dr. Wang treated Plaintiff from April to October 2015), 10 446-48 (and then again beginning June 2016), 50-51 (Plaintiff 11 explaining that he saw Dr. Jewell while Dr. Wang was “working at 12 another clinic”).) Finally, the most recent treatment note in the 13 record, from Dr. Wang, indicates that Plaintiff rated his pain at 14 “0/10.” 15 (Id. at 443.) For all these reasons, the ALJ did not err when he rejected 16 Dr. Jewell’s less-than-two-hour sitting limitation. b. 17 18 Absenteeism The ALJ concluded that Plaintiff “may miss work twice per 19 month due to his medical condition” (AR 18), thus implicitly 20 rejecting Dr. Jewell’s more restrictive limitation of more than 21 three absences a month (id. at 404). Dr. Jewell’s opinion on 22 Plaintiff’s absenteeism was uncontradicted by any other medical23 opinion evidence. Accordingly, the ALJ was required to provide a 24 clear and convincing reason for implicitly rejecting the 25 limitation. See Carmickle, 533 F.3d at 1164. Although he erred 26 in failing to do so, any error was harmless. 27 As an initial matter, the ALJ was clearly aware of Dr. 28 Jewell’s absenteeism limitation, as he specifically asked the 25 1 vocational examiner about it. (See AR 48-49.) The VE testified 2 that Plaintiff could perform at least two jobs, addresser and 3 table worker, given his sedentary RFC. (Id. at 48.) The ALJ 4 asked if an individual could still perform those jobs while 5 missing work once or twice a month. 6 responded yes. (Id. at 49.) (Id. at 48-49.) She The ALJ next asked if there were any 7 jobs an individual could perform while missing work three times a 8 month. (Id.) She testified that there were not. (Id.) Thus, 9 the ALJ clearly considered and rejected Dr. Jewell’s absenteeism 10 limitation. This case is thus unlike those in which nothing in 11 the record indicated that the ALJ was even aware of the assessed 12 limitation. See, e.g., Marsh v. Colvin, 792 F.3d 1170, 1172-73 13 (9th Cir. 2015) (remanding for additional explanation when ALJ 14 “totally ignored” treating doctor and his notes). 15 Here, the ALJ’s reasons for rejecting the absenteeism 16 limitation are implicit in the record. As explained above, the 17 ALJ gave “significant weight” to the state-agency physicians’ 18 medical opinions. (AR 20-21.) Not one opined that Plaintiff 19 would need to miss any days of work from his impairment or on 20 account of treatment. (Id. at 378-95, 373-77 (Dr. Beck), 60-64, 21 68-72 (Dr. Taylor-Holmes), 79-85, 90-96 (Dr. Goodrich), 320-24 22 (Dr. Karamlou), 339-72 (Dr. Watkin).) Each of their medical 23 opinions was inconsistent with Dr. Jewell’s highly restrictive 24 absenteeism limitation. Such was also the case with Plaintiff’s 25 x-rays, which the ALJ noted were “normal.” (Id. at 19.) 26 Inconsistencies between a treating physician’s opinion and other 27 medical evidence meet the clear and convincing standard. See 28 Defrees v. Berryhill, 685 F. App’x 556, 557 (9th Cir. 2017) (ALJ’s 26 1 rejection of treating physician’s opinion based on inconsistency 2 with medical record met clear and convincing standard). 3 The ALJ also took note of Dr. Jewell’s medical reports 4 indicating that Plaintiff’s pain was under control with medication 5 (AR 20 (citing AR 433, 436)), as discussed above. Such findings 6 are inconsistent with his selection of the most restrictive 7 absentee limitation available on the check-box form. 8 404.) (Id. at Internal inconsistencies between a treating physician’s 9 opinion and his treatment notes meet the clear and convincing 10 standard. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 11 2005) (discrepancy between treating physician’s medical opinion 12 and treatment notes was clear and convincing reason for ALJ’s 13 rejection of standing limitation); Pyle v. Comm’r of Soc. Sec., 14 No. 2:16-CV-00172-JTR, 2017 WL 3484195, at *6 (E.D. Wash. Aug. 14, 15 2017) (ALJ appropriately gave little weight to treating doctor’s 16 medical opinion that was inconsistent with his treatment notes). 17 Furthermore, Dr. Jewell’s opinion that Plaintiff would be 18 absent from work more than three times a month because of his 19 injury (AR 404) was inconsistent with other evidence in the 20 record. Two treating physicians concluded that Plaintiff could 21 return to work after short absences. (Id. at 267, 269.) Dr. Bott 22 examined Plaintiff on June 25, 2013, just after his alleged onset 23 date, and recommended two weeks off work. (Id. at 267.) Dr. 24 Sowell, who treated Plaintiff on July 1 and 15, 2013, set 25 Plaintiff’s return-to-work date as August 19. (Id. at 269.) The 26 short duration of these recommended absences is inconsistent with 27 the need to miss work approximately once a week every month. 28 Accordingly, although the ALJ erred in not explicitly 27 1 rejecting Dr. Jewell’s absenteeism limitation, any error was 2 harmless. See Robbins, 466 F.3d at 885 (stating that error is 3 harmless if inconsequential to ultimate nondisability 4 determination); Hollingsworth v. Colvin, No. 3:12-CV-05643-BHS 5 (KLS), 2013 WL 3328609, at *5 (W.D. Wash. July 1, 2013) (ALJ’s 6 failure to address treating physician’s opinion of claimant’s 7 functional limitation was harmless when record contained 8 significant evidence supporting ALJ’s determination that claimant 9 was not disabled). 10 B. 11 Plaintiff claims the ALJ erred in partially rejecting his The ALJ Properly Discounted Plaintiff’s Testimony 12 subjective symptom testimony. (J. Stip. at 13-18.) As set forth 13 below, the ALJ provided ample support for his finding that 14 Plaintiff’s “statements concerning the intensity, persistence and 15 limiting effects of [his] symptoms [were] not entirely consistent 16 with the medical evidence and other evidence in the record” (AR 17 18-19). 18 19 Thus, remand is not warranted on this ground. 1. Applicable law An ALJ’s assessment of the credibility of a claimant’s 20 allegations concerning the severity of his symptoms is entitled to 21 “great weight.” See Weetman v. Sullivan, 877 F.2d 20, 22 (9th 22 Cir. 1989) (as amended); Nyman v. Heckler, 779 F.2d 528, 531 (9th 23 Cir. 1985) (as amended Feb. 24, 1986). “[T]he ALJ is not 24 ‘required to believe every allegation of disabling pain, or else 25 disability benefits would be available for the asking, a result 26 plainly contrary to 42 U.S.C. § 423(d)(5)(A).’” Molina v. Astrue, 27 674 F.3d 1104, 1112 (9th Cir. 2012) (quoting Fair v. Bowen, 885 28 F.2d 597, 603 (9th Cir. 1989)). 28 1 In evaluating a claimant’s subjective symptom testimony, the 2 ALJ engages in a two-step analysis. See Lingenfelter, 504 F.3d at 3 1035-36; see also SSR 16-3p, 2016 WL 1119029 (Mar. 16, 2016). 4 “First, the ALJ must determine whether the claimant has presented 5 objective medical evidence of an underlying impairment [that] 6 could reasonably be expected to produce the pain or other symptoms 7 alleged.” Lingenfelter, 504 F.3d at 1036. If such objective 8 medical evidence exists, the ALJ may not reject a claimant’s 9 testimony “simply because there is no showing that the impairment 10 can reasonably produce the degree of symptom alleged.” Smolen v. 11 Chater, 80 F.3d 1273, 1282 (9th Cir. 1996) (emphasis in original). 12 If the claimant meets the first test, the ALJ may discredit 13 the claimant’s subjective symptom testimony only if he makes 14 specific findings that support the conclusion. 15 Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). See Berry v. Absent a finding or 16 affirmative evidence of malingering, the ALJ must provide a “clear 17 and convincing” reason for rejecting the claimant’s testimony. 18 Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (as 19 amended); Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 20 1102 (9th Cir. 2014). In assessing credibility, the ALJ may 21 consider, among other factors, (1) ordinary techniques of 22 credibility evaluation, such as the claimant’s reputation for 23 lying, prior inconsistent statements, and other testimony by the 24 claimant that appears less than candid; (2) unexplained or 25 inadequately explained failure to seek treatment or to follow a 26 prescribed course of treatment; (3) the claimant’s daily 27 activities; (4) the claimant’s work record; and (5) testimony from 28 physicians and third parties. Rounds v. Comm’r Soc. Sec. Admin., 29 1 807 F.3d 996, 1006 (9th Cir. 2015) (as amended); Thomas, 278 F.3d 2 at 958-59. If the ALJ’s credibility finding is supported by 3 substantial evidence in the record, the reviewing court “may not 4 engage in second-guessing.” 5 6 2. Thomas, 278 F.3d at 959. Analysis Plaintiff argues that the ALJ merely recited the medical 7 evidence of record and thus did not provide a clear and convincing 8 reason for rejecting portions of his testimony. (J. Stip. at 15.) 9 In fact, the ALJ provided several: Plaintiff’s treatment was 10 “essentially routine and conservative in nature,” and “[t]he lack 11 of more aggressive treatment or even follow-up with a pain 12 management specialist suggests the claimant’s symptoms and 13 limitations were not as severe as he alleged” (AR 20); “the 14 medical records reveal that the medications have been relatively 15 effective in controlling claimant’s symptoms” (id. (citing AR 433, 16 436)); and Plaintiff failed to follow up with recommended 17 treatment (AR 20). 18 First, conservative treatment is a clear and convincing 19 reason for an ALJ to discredit a claimant’s testimony regarding 20 the severity of an impairment. 21 (9th Cir. 2007). Parra v. Astrue, 481 F.3d 742, 751 As noted by the ALJ, Plaintiff’s treatment was 22 principally “low dose” narcotic pain management. (AR 20; see also 23 id. at 434 (Dr. Jewell noting that Plaintiff reported that his 24 pain was controlled on low-dose narcotics).) He was not a 25 surgical candidate as he lacked instability, leg pain, or 26 stenosis, and an examining orthopedist recommended only core 27 strengthening, low-back stabilization exercises, a weight-loss 28 program, and pain management. (Id. at 19.) 30 Several of his 1 doctors specifically noted that his treatment was and should be 2 “conservative.” (See, e.g., id. at 269, 400.) Such treatment, 3 particularly given the low dosages of the narcotic pain 4 medication, qualifies as conservative. See Tommasetti v. Astrue, 5 533 F.3d 1035, 1039-40 (9th Cir. 2008) (“physical therapy and the 6 use of anti-inflammatory medication, a [TENS] unit, and a 7 lumbosacral corset” qualified as conservative treatment); Walter 8 v. Astrue, No. EDCV 09-1569 AGR, 2011 WL 1326529, at *3 (C.D. Cal. 9 Apr. 6, 2011) (narcotic medication, physical therapy, and single 10 injection amounted to “conservative treatment”). 11 Second, as the ALJ explained (AR 20), treatment notes from 12 his own physicians confirmed that medication was effective in 13 controlling Plaintiff’s pain and allowing him to perform his 14 activities of daily living (see id. at 294 (Oct. 24, 2013: Vicodin 15 relieved his symptoms), 307 (Feb. 5, 2014: “medication allows him 16 to do his ADLs”), 313 (Mar. 27, 2014: “Norco does help alleviate 17 his pain and allows him to do his activities of daily living”), 18 310 (May 1, 2014: “medication allows him to do his ADLs”), 433 19 (Nov. 6, 2015: “pain under good control with Norco”), 436 (Jan. 6, 20 2016: pain “[s]till relieved with Norco”), 439 (Mar. 8, 2016: 21 “Still feels [pain] is adequately controlled with his current meds 22 and sees no need for [referral] for pain management.”).21 23 “Impairments that can be controlled effectively with medication 24 21 25 26 27 28 As noted, one of Plaintiff’s treating doctors was concerned that he had developed Norco dependency (see AR 310), and that seems to be borne out by Plaintiff’s repeated refusal to try other pain-management techniques because, he insisted, Norco resolved his issues and allowed him to perform his daily routine comfortably. This is, of course, inconsistent with his claims in conjunction with his DIB and SSI applications that he was disabled by pain. 31 1 are not disabling for the purpose of determining eligibility for 2 SSI benefits.” Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 3 1001, 1006 (9th Cir. 2006). To the extent the treatment notes 4 contradict Plaintiff’s testimony, they’re a sufficient basis for 5 rejecting it. Carmickle, 533 F.3d at 1161 (contradiction with 6 evidence in medical record is “sufficient basis” for rejecting 7 claimant’s subjective symptom testimony); Morgan v. Comm’r of Soc. 8 Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999) (upholding 9 “conflict between [plaintiff’s] testimony of subjective complaints 10 and the objective medical evidence in the record” as “specific and 11 substantial” reason undermining credibility). 12 Third, the ALJ noted Plaintiff’s repeated failure to follow 13 up on other consistently recommended treatments (AR 19-20), such 14 as physical therapy, pain management, and injections (see id. at 15 268 (July 1, 2013: declined physical therapy), 279-81 (Dec. 26, 16 2013: discontinued physical therapy even though it “helped 17 som[e]w[]hat wit[h] his mobility an[]d forward flexion” (AR 68, 18 307)), 310 (May 1, 2014: failed to take action needed to 19 participate in pain management and declined nonnarcotic treatment 20 options), 436 (Jan. 6, 2016: Plaintiff not interested in receiving 21 epidurals), 439 (Mar. 8, 2016: Plaintiff felt that pain was 22 “adequately controlled with . . . current meds” and saw no need 23 for pain management).) That Plaintiff essentially was treated 24 only with pain medication and did not pursue physical therapy, 25 specialized pain management, or injections was a clear and 26 convincing reason for discrediting his allegations of disabling 27 pain. See Tommasetti, 533 F.3d at 1039 (ALJ may discount 28 claimant’s testimony in light of “unexplained or inadequately 32 1 explained failure to seek treatment or to follow a prescribed 2 course of treatment”); SSR 16-3p, 2016 WL 1119029, at *8 (“[I]f 3 the frequency or extent of the treatment sought by an individual 4 is not comparable with the degree of the individual's subjective 5 complaints, or if the individual fails to follow prescribed 6 treatment that might improve symptoms, we may find the alleged 7 intensity and persistence of an individual’s symptoms are 8 inconsistent with the overall evidence of record.”). 9 Plaintiff also argues that the ALJ was required to consider 10 his good work history as proof of his credibility. 11 17.) (J. Stip. at An ALJ may consider a claimant’s prior work record when 12 evaluating the credibility of his testimony. 13 at 958-59. See Thomas, 278 F.3d Plaintiff cites no case law supporting his contention 14 that the ALJ was required to do so. Instead, he relies on Schaal 15 v. Apfel, 134 F.3d 496, 502 (2d Cir. 1998), an out-of-circuit 16 decision that does not support his contention. Rather, Schaal 17 “uses permissive language indicating only that a ‘good’ work 18 history ‘may’ help prove credibility.” Smith v. Colvin, No. 2:11- 19 CV-03045-KJN, 2013 WL 1156497, at *7 (E.D. Cal. Mar. 19, 2013) 20 (quoting Schaal, 134 F.3d at 503) (rejecting plaintiff’s 21 contention that under Schaal ALJ was required to consider her good 22 work history in evaluating credibility of her testimony). In any 23 event, Plaintiff’s history of working sporadically for 10 years, 24 quitting for three, and then working on and off for the next two 25 years before claiming disability (see AR 203-04; see also id. at 26 45, 166, 211, 213-15) was not so extraordinary as to tip the 27 28 33 1 balance in his favor.22 See Thomas, 278 F.3d at 959 (sporadic work 2 history is clear and convincing reason for discounting credibility 3 of subjective pain testimony); Simmons v. Colvin, No. EDCV 154 01865-SP, 2016 WL 6436829, at *8 (C.D. Cal. Oct. 31, 2016) 5 (periodic gaps in plaintiff’s earning history supported ALJ’s 6 negative credibility determination); Williams v. Colvin, No. 1:147 CV-0366-BAM, 2015 WL 5546920, at *1, 4 (E.D. Cal. Sept. 18, 2015) 8 (plaintiff’s sporadic work history, with periods of unemployment 9 and part-time work, was proper reason for ALJ to reject his 10 credibility). 11 Accordingly, the ALJ did not err in assessing Plaintiff’s 12 testimony. As such, remand is not warranted. See Batson, 359 13 F.3d at 1195; Morris v. Astrue, No. EDCV 08-71-PLA, 2009 WL 14 1357448, at *7 (C.D. Cal. May 12, 2009) (remand not warranted when 15 ALJ properly discredited plaintiff’s subjective pain testimony). 16 VII. CONCLUSION 17 Consistent with the foregoing and under sentence four of 42 18 U.S.C. § 405(g),23 IT IS ORDERED that judgment be entered AFFIRMING 19 20 21 22 23 24 25 26 27 28 22 Plaintiff claims that he “consistently worked from 1996 to 2007; became injured at work, and returned back from 2011 to 2013, for a total of 14 years.” (J. Stip. at 17 (citing AR 20304).) But the cited pages demonstrate that in many of those years Plaintiff barely worked. For example, his income in 1998 was just over $7500, whereas the year before he made nearly twice that. (See AR 203.) And in 2002 and 2004 Plaintiff had barely any income. (See id. at 204.) 23 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.” 34 1 the Commissioner’s decision, DENYING Plaintiff’s request for 2 remand or an award of benefits, and DISMISSING this action with 3 prejudice. 4 5 DATED: October 29, 2018 6 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 35
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