Sherry Lynne Faust v. Commissioner of Social Security Administration, No. 8:2013cv01803 - Document 16 (C.D. Cal. 2014)

Court Description: MEMORANDUM AND OPINION by Magistrate Judge Alka Sagar. For all of the foregoing reasons, the decision of the Administrative Law Judge is affirmed. (See Order for complete details) (afe)

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Sherry Lynne Faust v. Commissioner of Social Security Administration Doc. 16 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 ) No. SA CV13-01803-AS ) ) MEMORANDUM AND OPINION Plaintiff, ) v. ) ) CAROLYN W. COLVIN, ) Acting Commissioner of the Social Security Administration, ) ) ) Defendant. ) ) SHERRY LYNNE FAUST, 17 PROCEEDINGS 18 19 20 Plaintiff Sherry Lynne Faust ( Plaintiff ), a former insurance 21 agent and waitress, asserts disability since January 1, 2007, based 22 on alleged physical and mental impairments. 23 Administrative 24 testimony from Plaintiff and a vocational expert on July 26, 2012. 25 (A.R. 26 decision. 27 ALJ s decision. 31 48). Law The Judge ALJ (A.R. 14 30). ( ALJ ) denied examined Plaintiff (A.R. 133 40). the records benefits in and a The heard written The Appeals Council denied review of the (A.R. 1 3). 28 1 Dockets.Justia.com 1 On November 20, 2013, Plaintiff filed a Complaint, pursuant to 2 42 U.S.C. §§ 405(g) and 1383(c), alleging that the Social Security 3 Administration erred 4 Entry No. 3). On March 24, 2014, Defendant filed an Answer to the 5 Complaint (Docket Entry No. 12), and the Certified Administrative 6 Record ( A.R. ) (Docket Entry No. 13). 7 proceed before a United States Magistrate Judge (Docket Entry Nos. 7, 8 10). 9 Stip. ) setting forth their respective positions on Plaintiff s claim 10 in denying her disability benefits. (Docket The parties have consented to On June 4, 2014, the parties filed a Joint Stipulation ( Joint (Docket Entry No. 23). 11 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 12 13 Social Security disability benefits claimants have the burden 14 15 of proving disability. 16 F.3d 1380, 1380 (9th Cir. 1985). 17 the 18 reason 19 impairment...which 20 continuous 21 § 22 disabled, ALJs follow a five-step process set forth in 20 C.F.R. 23 § 404.1520(a)(4). 24 one through four. 25 2007). inability of to any period 423(d)(1)(A). Bellamy v. Sec y Health & Human Serv., 755 engage in A claimant is disabled if she has any substantial medically determinable has or of In lasted not less order to can than be 12 determine gainful physical expected to months. whether a activity by or mental last for 42 a U.S.C. claimant is The claimant bears the burden of proving steps Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 26 27 At step one, the ALJ must determine whether or not claimant is 28 actually engaged in any substantial gainful activity, as defined by 2 1 20 C.F.R. § 404.1572. If claimant is not so engaged, the evaluation 2 continues to step two. See 20 C.F.R. § 404.1520(a)(4)(i). 3 4 At step two, the ALJ determines whether the claimed physical or 5 mental impairments are severe. 6 determining severity, the ALJ must consider the combined effect of 7 all of the claimant s impairments on her ability to function, without 8 regard to whether each alone was sufficiently severe. Smolen v. 9 Chater, 42 80 F.3d 423(d)(2)(B)). 1273, 20 C.F.R. § 404.1520(a)(4)(ii). 1290 (9th evidence establishes a slight abnormality that has no more than a 12 minimal effect on an individual s ability to work. 13 (quoting Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988)). 14 the ALJ concludes that the claimant does have a medically severe 15 impairment, the ALJ proceeds to the next step in the sequence. 16 v. 17 § 404.1520(a)(4)(ii). 683, 686 (9th Cir. severe U.S.C 11 F.3d considered (citing § 433 are 1996) 10 Barnhart, Impairments Cir. When 2005); unless the Id. at 1290 See 20 [I]f Webb C.F.R. 18 19 At step three, the ALJ considers whether the claimant s severe 20 impairments are disabling. 20 C.F.R. § 404.1520(a)(4)(iii). The 21 claimant is considered disabled if her purported conditions meet or 22 are medically equivalent to a listing found in 20 C.F.R. Part 404, 23 Subpart P, Appendix 1. 24 Cir. 2005). 25 impairment in appendix 1 if it is at least equal in severity and 26 duration 27 404.1526. 28 not meet a listing, [m]edical equivalence must be based on medical Burch v. Barnhart, 400 F.3d 676, 679 (9th [An] impairment is medically equivalent to a listed to the criteria of any listed impairment. 20 C.F.R. While the objective medical evidence of equivalence may 3 1 findings. 2 (citing 20 C.F.R. § 404.1526). Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999) 3 4 If the ALJ concludes that claimant is not disabled at step 5 three, the ALJ moves to step four and considers whether the claimant 6 can return to her past relevant work. 7 C.F.R. § 404.1520(a)(4)(iv). 8 claimant s 9 § 404.1520(a)(4)(iv). Residual despite Burch, 400 F.3d at 679; See 20 In order to do so, the ALJ determines Functional Capacity ( RFC ). 20 C.F.R. A claimant s RFC is what [claimant] can still 10 do [claimant s] limitations, and is based on 11 relevant medical and other evidence in [the] case record. 12 416.945(a)(1). 13 her past relevant work, she is not considered disabled. 14 all the F.3d at 679. 20 C.F.R. If the claimant s RFC dictates that she can return to Burch, 400 15 If the claimant proves in step four that she cannot return to 16 17 her past relevant work, the ALJ proceeds to step five. 18 § 404.1520(a)(4)(v). 19 Secretary to show that the claimant can do other kinds of work. 20 Embrey v. Bowden, 849 F.2d 418, 422 (9th Cir. 1988). 21 ALJs can call upon a vocational expert to testify as to: (1) what 22 jobs the claimant, given his or her [RFC], would be able to do; and 23 (2) the availability of such jobs in the national economy. 24 180 F.3d at 1101. If claimant does not have the RFC to work in any 25 available she 26 § 404.1520(a)(4)(v). 27 /// 28 /// jobs, 20 C.F.R. At step five the burden of proof shifts to the is considered 4 disabled. At this point, 20 Tackett, C.F.R. BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 1 2 3 In applying for disability insurance benefits, Plaintiff alleged 4 the 5 arthritis, depression, high blood pressure, and menopause. 6 164). 7 Plaintiff 8 work. 9 January 1, 2007. following disabling severe impairments: chronic back pain, (A.R. Additionally, at the hearing before the ALJ on July 26, 2012, testified that (A.R. 40 42). depression also impaired her ability to The alleged onset date of these impairments was (A.R. 19, 35, 133, 161). At the July 26, 2012 10 hearing before the ALJ, Plaintiff testified that she had lower back 11 pain that would traverse her left leg and even stretch as far as her 12 left foot. 13 sit for more than an hour due to the purported discomfort. 14 39). 15 with people due to her depression. (A.R. 38). Plaintiff claimed that she could not stand or (A.R. 38 Plaintiff also testified that she had difficulties interacting (A.R. 35) 16 The 17 ALJ applied the five-step to the record in 18 Plaintiff s case. 19 that 20 activity. 21 medical evidence, heard Plaintiff s testimony, and found that she has 22 the 23 depressive disorder, and a history of drug and alcohol abuse. 1 24 19). 25 26 27 28 Plaintiff is not (A.R. 19). following The (A.R. 17 27). process ALJ severe also At step one, the ALJ determined engaged in any substantially gainful At step two, the ALJ examined the objective impairments: found hypertension, Plaintiff s 1 obesity osteoarthritis, to be a (A.R. severe Although the ALJ found hypertension to be a severe impairment, the ALJ noted that [i]f the evidence regarding the impairments alleged by the claimant was strictly considered, hypertension would not be found to be both medically determinable and severe. (A.R. 23). The ALJ based this statement on the findings by Plaintiff s doctors that her hypertension was benign and caused no functional limitations. (A.R. 242, 246, 248 50, 283). 5 1 impairment. 2 diabetes to be severe because the condition has been managed with 3 oral medications. (A.R. 23). The ALJ did not find Plaintiff s diagnosed (A.R. 20, 42 43, 281). 4 5 At step three, the ALJ found that Plaintiff s severe impairments 6 did not meet or equal a listing found in 20 C.F.R. Part 404, Subpart 7 P, Appendix 1. 8 the 9 impairments ALJ (A.R. 20). determined could Based on the objective medical evidence, that reasonably (A.R. 22). Plaintiff s be medically expected 10 symptoms. 11 statements 12 effects of these symptoms are not credible. concerning to determinable cause the alleged The ALJ also found, however, that Plaintiff s the intensity, persistence and limiting (A.R. 22). 13 14 15 16 17 18 Before proceeding to step four, the ALJ found that Plaintiff had the RFC to perform light work with the following limitations: lift/carry twenty pounds occasionally, ten pounds frequently; stand/walk for a total of six hours of an eight hour day; sit for a total of six hours of an eight hour day; occasionally climb ladders, ropes, scaffolds; perform simple tasks with simple work related decisions. 19 20 (A.R. 21). 21 opinion of Dr. John Godes, a consultative medical examiner. 22 24, 268 73). The ALJ based the finding of Plaintiff s RFC on the (A.R. 23 24 At step four, the ALJ determined that Plaintiff was unable to 25 return to her past work as 26 information clerk. 27 comparing Plaintiff s RFC with the requirements of her past relevant (A.R. 25). an insurance agent or policy holder The ALJ made this determination after 28 6 1 work, and after hearing testimony from a vocational expert. 2 25, 44-47). (A.R. 3 4 At step five, based on testimony from the vocational expert, who 5 had 6 Plaintiff had the RFC to work as a mail clerk or as a housekeeper. 7 (A.R. 26, 46 47). 8 in significant numbers in the national economy. 9 a result of these findings, the ALJ concluded that Plaintiff was not 10 considered Plaintiff s limitations, the ALJ concluded that Additionally, the ALJ found that these jobs exist (A.R. 26, 46 47). As disabled under 42 U.S.C. § 423(d)(1)(A). 11 STANDARD OF REVIEW 12 13 14 This court reviews the Administration s decisions to determine 15 if: (1) the Administration s findings are supported by substantial 16 evidence; and (2) The Administration used proper legal standards. 17 Smolen, 18 scintilla, but less than a preponderance. 19 F.3d 1035, 1039 (9th Cir. 1995). 20 evidence supports a finding, a court must consider [] the record as 21 a 22 detracts from the [Commissioner s] conclusion. 23 157 F.3d 715, 720 (9th Cir. 1998). 24 reasonably 25 conclusion, [a] court may not substitute its judgment for that of the 26 ALJ. 27 Cir. 2004). 80 whole, F.3d at weighing support 1279. both Substantial is more than a Andrews v. Shalala, 53 To determine whether substantial evidence either evidence that supports and evidence that Reddick v. Chater, As a result, [i]f evidence can affirming or reversing the ALJ s Batson v. Comm r of Soc. Sec. Admin., 359 F.3d 1190, 1196 (9th 28 7 PLAINTIFF S CONTENTIONS 1 2 3 Plaintiff contends that (1) the Appeals Council erred in finding 4 that 5 remand; 6 credibility. (See Joint Stip. 2.) the new and evidence (2) the submitted ALJ by erred in Plaintiff his did assessment not of warrant a Plaintiff s 7 DISCUSSION 8 9 10 After consideration of the record as a whole, the Court finds 11 that 12 evidence and are free from material 1 legal error. the Commissioner s findings are supported by substantial 13 A. The ALJ Did Not Err in Evaluating Plaintiff s Credibility 14 15 16 Plaintiff contends that the ALJ erred in evaluating her 17 credibility, and that because of this error, the ALJ failed to find 18 her disabled. (Joint Stip. 14 17, 21 24). 19 implicitly faults the ALJ s findings regarding step three of his 20 analysis, 21 impairments disabling. arguing that the ALJ should As a result, Plaintiff have found her severe 22 If a claimant asserts that pain is the primary reason a severe 23 24 impairment is disabling, the claimant s testimony regarding her 25 1 26 27 28 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) (stating that an ALJ s decision will not be reversed for errors that are harmless). 8 1 subjective symptoms may be crucial to the ALJ s evaluation. 2 Johnson v. Shalala, 60 F.3d 1428, 1433 (9th Cir 1995). 3 make 4 credibility is a critical factor in the Secretary s determination. 5 Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). 6 determine whether a claimant s testimony is credible, the ALJ engages 7 in a two-step analysis. 8 Cir. 2014). an explicit credibility finding whenever See The ALJ must the claimant s In order to Garrison v. Colvin, 759 F.3d 995, 1014 (9th 9 First, the claimant must produce objective medical evidence of 10 11 an underlying 12 produce the pain or other symptoms alleged. 13 947 14 423(d)(5)(A)(1988)). 15 impairment, the claimant need not produce objective medical evidence 16 of the pain or fatigue itself, or the severity thereof. Smolen, 80 17 F.3d that 18 impairment] could reasonably have caused some degree of the symptom. 19 Id. F.2d at impairment 341, 1282. 344 which (9th In Instead, could Cir. 1991) producing the reasonably expected to Bunnell v. Sullivan, (quoting evidence claimant be need of only 42 the show U.S.C. § underlying [the 20 21 Second, once the claimant has produced the requisite objective 22 medical evidence, 23 regarding the severity of her symptoms. 24 Absent affirmative evidence of malingering, however, the ALJ may only 25 reject 26 convincing reasons for doing so. 27 alleged symptoms, an ALJ may consider: (1) ordinary techniques of 28 credibility a the plaintiff s ALJ may testimony evaluation, such as reject by the testimony Smolen, 80 F.3d at 1284. offering Id. specific, clear and In assessing a claimant s claimant s 9 claimant s reputation for lying, 1 prior 2 testimony by the claimant that appears to be less than candid; (2) 3 unexplained or inadequately explained failure to seek treatment or to 4 follow a prescribed course of treatment; and (3) the claimant s daily 5 activities. 6 record 7 other third parties. inconsistent and statements Id. concerning the symptoms, and other An ALJ may also consider the claimant s work observations of treating and examining physicians and Id. 8 Here, 9 the ALJ examined the Administrative Record and heard 10 testimony from Plaintiff. 11 that 12 underlying impairment which could reasonably be expected to produce 13 the pain or other symptoms alleged. (A.R. 22). 14 rejected plaintiff s testimony regarding the disabling effects of her 15 symptoms and offered specific, clear and convincing reasons for doing 16 so. 17 record. Plaintiff had (A.R. 22-25). Based on the record, the ALJ determined produce[d] objective medical evidence of an However, the ALJ The reasons given by the ALJ are supported by the 18 [E]vidence 19 a of conservative claimant s is 21 impairment. Parra 22 2007)(holding that 23 medications to treat pain was inconsistent with Plaintiff s claims 24 that pain was disabling). Here, the ALJ found that the infrequent 25 treatment the 26 conservative and Plaintiff s since 481 F.3d 742, use Astrue, the of alleged non-emergency. 2 751 of (9th over-the-counter onset (A.R. severity to discount v. regarding sufficient 20 received testimony treatment 22). date was These an Cir. pain routine, facts are 27 28 2 she While Plaintiff s clinical visits may be described as frequent, did not present for back pain in each instance, but sought 10 1 supported by the administrative record. 2 found moderate relief from lower back pain through conservative 3 treatment such as taking Advil, and exercising. 4 Plaintiff s 5 examinations were routine and yielded no abnormalities. 6 211 14, 216, 227 33, 261 63, 277 305, 311 17, 320 21). 7 the ALJ included in his decision the fact that Plaintiff claimed she 8 was diagnosed with rheumatoid arthritis in 2001, but never sought out 9 treatment. clinical visits (A.R. 22, 211). 10 Plaintiff s 11 testimony based for both The ALJ noted that Plaintiff (A.R. 23, 239, 242). physical and psychological (A.R. 22, Furthermore, Accordingly, the ALJ properly discounted on the evidence of her conservative treatment 12 The 13 ALJ may rely on ordinary techniques of credibility 14 evaluation in considering Plaintiff s credibility. Smolen, 80 F.3d 15 at 1284. 16 allegations based on inconsistencies in the testimony or on relevant 17 character evidence. 18 the 19 statements regarding matters relevant to the issue of disability. 20 (A.R. 24). 21 reported that she was fired from her position at Chevron...yet she 22 admitted on disability report that she quit the job in August 2006. As a result, the adjudicator may discredit the claimant s record revealed Bunnell, 947 F.2d at 346. that Plaintiff ha[d] The ALJ s review of made inconsistent Specifically, the ALJ correctly noted that Plaintiff 23 24 25 26 27 28 treatment for other medical issues. (A.R. 227 37, 246 47, 248 50, 277 79, 281 83, 284 88, 311 13, 315 317). Therefore, while the actual number of clinical visits remained high, the occasions on which she sought out treatment for her severe impairments remained infrequent. (A.R. 211 13, 239 41, 251 53, 292 294, 295 305). Additionally, despite her continued medical appointments, her treatment for all of her conditions remained routine, conservative, and non-emergency. (A.R. 211 13, 227 37, 239 41, 246 47, 248 50, 251 53, 277 79, 281 83, 284 88, 292 294, 295 305, 311 13, 315 317). 11 1 (A.R. 24, 166). 2 admitted to the medical examiner that she was fired from her job at 3 the Chevron station for absenteeism resulting from her drug use. 4 (A.R. 5 concluded that, the inconsistencies suggest that the information 6 provided by the claimant generally may not be entirely reliable. 7 (A.R. 24). 23 24, Additionally, the ALJ pointed out that Plaintiff 217). Based on these findings, the ALJ properly 8 Contradiction with the medical record is a sufficient basis for 9 10 rejecting the claimant s subjective testimony. 11 Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008); See also Burch 12 v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) ( Although lack of 13 medical evidence cannot form the sole basis for discounting pain 14 testimony, 15 credibility analysis. ). 16 ALJ found Plaintiff s credibility to be highly suspect based on the 17 discrepancy 18 objective medical evidence. 19 Plaintiff s complaints of myriad disabling conditions, one medical 20 examination revealed no abnormal findings except for two swollen and 21 tender fingers. 22 the 23 sensory abnormalities, no motor dysfunction, normal gait and stance, 24 no pain upon palpitation of spine and extremities, [and] no muscle 25 spasm. 3 fact it is a between that factor the the 22, ALJ can consider in his In addition to other inconsistencies, the claimant s subjective (A.R. 22). (A.R. 22, 211 13). during (A.R. that Carmickle v. Comm r medical 212 213). complaints and the The ALJ noted that despite Furthermore, the ALJ pointed to evaluation, Plaintiff Additionally, displayed despite no claiming a 26 27 28 3 While some later medical records show that Plaintiff did claim tenderness upon palpitation of her lower spine, (A.R. 213, 242, 252, 293, 298), others make no mention of tenderness or pain. (A.R. 12 1 diagnosis of rheumatoid arthritis, Plaintiff tested negative for the 2 condition. 3 objective medical evidence supporting Plaintiff s testimony in making 4 an adverse credibility determination. (A.R. 22, 224). The ALJ properly relied on the lack of 5 6 7 The Court finds that the ALJ stated legally sufficient reasons for his adverse credibility finding. 8 B. The New Evidence Submitted by Plaintiff to the Appeals 9 Council Does Not Warrant A Remand 10 11 12 Plaintiff contends that the Appeals Council erred by failing to 13 remand Plaintiff s case because new evidence submitted to the Appeals 14 Council purportedly undermines the sufficiency of the evidence to 15 support the ALJ s decision. (Joint Stip. 2 5, 11 14) 16 [T]he administrative record includes [new] evidence submitted 17 18 to and considered by the Appeals Council. 19 Sec. 20 Council, after considering the new evidence, denies review or, if it 21 accepts a case for review, issues its own findings on the merits. 22 Id. When the Appeals Council declines review, the ALJ s decision 23 becomes 24 Taylor v. Comm r of Soc. Sec. Admin., 659 F.3d 1228, 1231 (9th Cir. 25 2011)). 26 to the Appeals Council in determining whether the denial of benefits Admin., the 682 final F.3d 1157, decision 1162 of the (9th Brewes v. Comm r of Soc. Cir. 2012). commissioner. The Id. Appeals (quoting The district court will then consider new evidence submitted 27 28 240, 250, 282, 288). Plaintiff also only exhibited muscle spasm during a single examination. (A.R. 252). 13 1 was supported by substantial evidence, as long as the Appeals Council 2 has not rejected the evidence. 3 806 (9th Cir. 2010). See Lay v. Astrue, 373 Fed.Appx. 804, 4 5 To determine whether substantial evidence supports a decision, 6 a court must consider . . . the record as a whole, weighing both 7 evidence 8 [Commissioner s] conclusion. 9 contends that because the new evidence she submitted to the Appeals that supports and evidence that detracts Reddick, 157 F.3d at 720. from the Plaintiff 10 Council 11 disabling under 20 C.F.R. Pt. 404, Subpart P, Appendix 1, 1.04. shows nerve root compression, her condition is per se 12 13 14 Appendix 1, 1.04 provided that a claimant is disabled if they exhibit: 15 16 evidence of nerve root compression characterized by neuro- 17 anatomic distribution of pain, limitation of motion of the 18 spine, motor loss accompanied by sensory or reflex loss 19 and, if there is involvement of the lower back, positive 20 straight leg rais[e]. 21 22 20 C.F.R. Pt. 404, Subpart P, Appendix 1, 1.04 (emphasis added). 23 However, 24 limitations of spinal motion, no motor loss, and a negative straight 25 leg raise, she is not disabled under that provision. 26 252, 270 72, 293, 298). 27 under Appendix 1. 28 to the Appeals Council provide objective medical evidence of an because Plaintiff exhibited normal stance and gait, no (A.R. 212 13, Therefore, Plaintiff does not meet a listing Although the x-rays and MRIs that were submitted 14 1 underlying impairment, Bunnell, 947 F.2d at 344, they do not provide 2 a basis to challenge the ALJ s finding that Plaintiff s medically 3 determinable impairments could reasonably be expected to cause the 4 alleged symptoms. 5 ALJ s credibility finding is supported by substantial evidence in the 6 record. 7 stated above, the ALJ found reason to doubt Plaintiff s credibility 8 using ordinary techniques of credibility evaluation, Smolen, 80 9 F.3d at 1284, and after finding evidence of conservative treatment, 10 Parra, 481 F.3d at 751, inconsistencies in plaintiff s statements, 11 and discrepancies between her subjective complaints and the objective 12 medical evidence. 13 evidence does not change the facts relied on by the ALJ in making his 14 adverse 15 supported by substantial evidence. 4 (A.R. 22). The analysis returns to whether the Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). credibility Carmickle, 533 F.3d at 1166. determination, that finding As Because the new remains properly 16 17 Furthermore, new evidence is part of the administrative record, 18 which the district court must consider in determining whether the 19 Commissioner s 20 Brewes, 682 F.3d at 1159 60. 21 new x-rays and MRIs that were submitted after the ALJ s decision, 22 tends 23 [I]f a claimant complains about disabling pain but fails to seek 24 4 25 26 27 28 to decision undermine is rather supported by substantial evidence. A review of the record, including the than bolster Plaintiff s credibility. Plaintiff also argues that remand is required because the ALJ was unable to consider her obesity in conjunction with the evidence of nerve root compression. (Joint Stip. 15). However, this argument is premised on Plaintiff s claim that evidence of nerve root compression meets or equals a listing. (Joint Stip. 12). As set forth above, Plaintiff s reliance on Appendix 1, 1.04, is misplaced. Therefore, a remand to consider Plaintiff s obesity in conjunction with this evidence is not required. 15 1 treatment, or fails to follow prescribed treatment, for the pain, an 2 ALJ 3 unjustified or exaggerated. 4 Cir. 2007). 5 x-ray and MRI appointment by Dr. Sarah Hwang, but failed to show, or 6 provide any explanation for her failure to do so. 7 was only after the ALJ found Plaintiff not disabled, and over a year 8 after Dr. Hwang scheduled the appointment, that Plaintiff reported 9 for the tests. may use such failure as a basis for finding the complaint Orn v. Astrue, 495 F.3d 625, 638 (9th The record reveals that Plaintiff was scheduled for an (A.R. 295). It These facts support the ALJ s finding that Plaintiff 10 treated her condition conservatively, and demonstrate that Plaintiff 11 was in less pain than she claim[ed]. 12 915, 918 (9th Cir. 1993). Dodrill v. Shalala, 12 F.3d 13 CONCLUSION 14 15 16 The legally valid reasons given by the ALJ for discounting 17 Plaintiff s credibility sufficiently allow the Court to conclude that 18 the ALJ s credibility finding was based on permissible grounds. The 19 Court therefore defers to the ALJ s credibility determination. See 20 Lasich v. Astrue, 252 Fed. App x 823, 825 (9th Cir. 2007) (court will 21 defer to ALJ s credibility determination when the proper process is 22 used and proper reasons for the decision are provided); accord Flaten 23 v. Sec y of Health and Human Serv., 44 F.3d 1453, 1464 (9th Cir. 24 1995). Where 25 decision to 26 findings are supported by substantial evidence in the record, we may 27 not engage in second guessing. the ALJ disbelieve has made Plaintiff s specific symptom findings justifying allegations Thomas, 278 F.3d at 958-59. 28 16 and a those ORDER 1 2 3 4 For all of the foregoing reasons, the decision Administrative Law Judge is affirmed. 5 6 LET JUDGMENT BE ENTERED ACCORDINGLY. 7 8 9 10 Dated: October 29, 2014. /s/___________________________ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17 of the

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