Catherine D. Van Holland v. Carolyn W. Colvin, No. 8:2016cv01169 - Document 19 (C.D. Cal. 2017)

Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that Judgment be entered AFFIRMING the decision of the Commissioner. (See document for further details). (bpo) (Entered: 06/14/2017)
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Catherine D. Van Holland v. Carolyn W. Colvin Doc. 19 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CATHERINE D. VAN HOLLAND, 12 Plaintiff, 13 Case No. SACV 16-1169 (SS) v. MEMORANDUM DECISION AND ORDER 14 NANCY A. BERRYHILL,1 Acting Commissioner of Social Security, 15 16 Defendant. 17 18 I. 19 INTRODUCTION 20 21 Catherine D. Van Holland (“Plaintiff”) brings this action 22 seeking to overturn the decision of the Commissioner of the Social 23 Security Administration (the “Commissioner” or “Agency”) denying 24 her application for Disability Insurance Benefits (“DIB”). The 25 parties the consented, pursuant to 28 U.S.C. § 636(c), to 26 1 27 28 Nancy A. Berryhill, Acting Commissioner of Social Security, is substituted for her predecessor Carolyn W. Colvin, whom Plaintiff named in the Complaint. See 42 U.S.C. § 405(g); Fed. R. Civ. P. 25(d). Dockets.Justia.com 1 jurisdiction of the undersigned United States Magistrate Judge. 2 (Dkt. Nos. 9, 10). 3 the Commissioner’s decision. For the reasons stated below, the Court AFFIRMS 4 5 II. 6 PROCEDURAL HISTORY 7 8 On February 17, 2012, Plaintiff filed an application for 9 Disability Insurance Benefits (“DIB”) pursuant to Title II of the 10 Social Security Act alleging a disability onset date of December 11 5, 12 application initially and on reconsideration. 13 Thereafter, Plaintiff requested a hearing before an Administrative 14 Law Judge (“ALJ”), (AR 114), which took place on May 21, 2014. 15 34-60). 16 finding that Plaintiff was not disabled because she could perform 17 her past relevant work. 18 Council denied Plaintiff’s request for review. 19 action followed on June 23, 2016. 2011. (AR 173-79). The Commissioner denied Plaintiff’s (AR 92-95, 101-06). (AR The ALJ issued an adverse decision on September 2, 2014, (AR 16-28). On May 6, 2016, the Appeals (AR 1-4). This 20 21 III. 22 FACTUAL BACKGROUND 23 24 Plaintiff was born on July 26, 1958. (AR 37, 173). She was 25 just over fifty-three years old on the alleged disability onset 26 date of December 5, 2011, and almost fifty-six years old when she 27 appeared before the ALJ on May 21, 2014. 28 attended college for three years, but did not obtain a degree. 2 (AR 16). Plaintiff (AR 1 38). 2 was sixteen years old at the time of the hearing. 3 Plaintiff previously worked as a secretary and office manager. 4 49-50). She is married and has one son from a prior marriage, who (AR 38). (AR 5 6 Plaintiff receives long-term disability payments of $2,024.00 7 per month through a Met Life Disability Insurance policy, though 8 she did not know when the payments would end. 9 summarized by the ALJ, Plaintiff’s DIB (AR 39). application As alleges 10 disability due to: degenerative disc disease of the cervical (neck) 11 and lumbar (low back) spine; spinal stenosis;2 failed cervical 12 spine fusion; pseudoarthrosis;3 diverticulitis;4 ventral hernia 13 repair surgery;5 carpal tunnel syndrome; left ulnar shortening 14 15 16 17 18 19 20 21 22 2 Spinal stenosis causes narrowing in the spine. (See https://medlineplus.gov/spinalstenosis.html). “The narrowing puts pressure on the [patient’s] nerves and spinal cord and can cause pain.” (Id.). Pseudarthrosis (variation pseudoarthrosis) occurs “[w]hen a solid fusion is not obtained after fusion surgery,” (see https://www.spine.org/KnowYourBack/Resources/Definitions.aspx), and “a false joint grows at the site.” (See https://medlineplus. gov/ency/article/007383.htm). 3 Diverticulitis is an “inflammation or infection of a diverticulum [pouch or sac] of the colon that is marked by abdominal pain or tenderness often accompanied by fever, chills, and cramping.” (See http://c.merriam-webster.com/medlineplus/diverticulitis). 4 23 24 25 26 27 28 5 Plaintiff states that the hernia repair surgery was due to complications from a colectomy, which she underwent to treat her diverticulitis. (AR 242). A colectomy is “surgery to remove all or part” of the large bowel. (See; https://medlineplus.gov/ency/ article/002941.htm). 3 1 surgery;6 thrombocytopenia;7 diabetes; neuropathy of the feet;8 2 kidney 3 depression; chronic pain and gastrointestinal distress; fatigue; damage; hemolytic anemia;9 calcified granulomas;10 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 The ulna is “the bone on the little-finger side of the human forearm that forms with the humerus the elbow joint and serves as a pivot in rotation of the hand.” (See http://c.merriamwebster.com/medlineplus/ulna). Osteoplasty is “plastic surgery on bone; especially: replacement of lost bone tissue or reconstruction of defective bony parts.” (See http://c.merriam-webster.com/ medlineplus/osteoplasty). Ulnar shortening osteoplasty is a “shortening of [the] carpal bone” in the wrist. (See http://bioportal.bioontology.org/ontologies/CPT?p=classes& conceptid=25394). 6 Ulnar shortening is distinct from a “carpal tunnel release,” during which “a surgeon makes an incision in the palm of [the patient’s] hand over the carpal tunnel ligament and cuts through the ligament to relieve pressure on the median nerve.” (See http://www.mayoclinic.org/diseases-conditions/carpal-tunnelsyndrome/multimedia/carpal-tunnel-release/img-20008129). At the May 21, 2014 ALJ hearing, the ALJ observed that Plaintiff still had not had a “carpal tunnel release.” (AR 44). Thrombocytopenia is “any disorder in which there is an abnormally low amount of platelets. Platelets are parts of the blood that help blood to clot. This condition is sometimes associated with abnormal bleeding.” (See https://medlineplus.gov/ency/article/ 000586.htm). 7 19 “Diabetic neuropathy is a peripheral nerve disorder caused by diabetes or poor blood sugar control. The most common types of diabetic neuropathy result in problems with sensation in the feet. . . . The symptoms are numbness, pain, or tingling in the feet or lower legs.” (See https://www.ninds.nih.gov/Disorders/ All-Disorders/Diabetic-Neuropathy-Information-Page). 8 20 21 22 23 Hemolytic anemia is a “condition in which red blood cells are destroyed and removed from the bloodstream before their normal lifespan is over.” (See https://www.nhlbi.nih.gov/health/healthtopics/topics/ha). 9 24 25 26 “A granuloma is a clump of cells that forms when the immune system tries to fight off a harmful substance but cannot remove it from the body.” (See https://medlineplus.gov/ency/ article/001251.htm). 10 27 28 4 1 medication side effects; inability to sit or stand for prolonged 2 periods; and difficulty using hands. (AR 23). 3 4 A. Plaintiff’s Testimony 5 6 7 Plaintiff testified that the only reason that she cannot work is because of her “debilitating pain.” (AR 41). She stated, 8 9 [M]y pain stems from all my spinal conditions, my bone 10 issues, anywhere from my neck to my thoracic spine to my 11 lower spine, down to my legs. 12 don’t sleep. . . . Even with sleep aids, . . . I never 13 stay asleep because I’ll wake up in pain. 14 get in a comfortable position. 15 goes, it really is truly unrelenting. 16 helps me, but nothing ever takes it away. It’s constant. My arms are affected. I I can never So as far as the pain The medication 17 18 (AR 53). 19 only relief she finds is in laying down on an adjustable bed. 20 54). 21 additional “spinal fusion surgery and the carpal tunnel surgery 22 and all the other surgeries [she is] going to have to face” in the 23 future. Plaintiff stated that even sitting is painful and the (AR She claimed not be healthy enough at present to undergo the (AR 55). 24 25 To treat her pain, Plaintiff takes Vicodin two to six times a 26 day, as well as Soma, another pain reliever. 27 daily prescription medications include Atenolol (hypertension), 28 5 (AR 41). Plaintiff’s 1 Lisinopril 2 (diabetes). (hypertension), Metformin (diabetes), and Onglyza (Id.). 3 4 Plaintiff stated that she suffers from diverticulitis and She still has “a lot of issues from [her] 5 fatty liver. 6 colectomy,” 7 Plaintiff still wears a binder, and while the hernia is better, 8 “it is still very painful.” (AR 55). including complications from a hernia. (AR 56). (Id.). 9 10 Plaintiff also claimed to suffer from numbness in her arms. 11 She testified that her right arm is “completely numb” “all the 12 time.” 13 as numb as her right, it is still “very painful.” (Id.). Plaintiff 14 has discussed carpal tunnel surgery with her doctors. (Id.). While she admitted that her left arm is not quite 15 16 B. Plaintiff’s Statements 17 18 Plaintiff filed a long term disability application with Met 19 Life in September 2012. 20 Plaintiff stated that “[b]oth hands and wrists are so painful that 21 doing basic household chores and personal hygiene are difficult.” 22 (AR 522). 23 follows: (AR 518-540). In the application, Plaintiff described her activities of daily living as 24 25 I usually start my day between 6:30 and 7:00 a.m. 26 take 27 approximately 10 to 20 minutes of riding slowly on the 28 recumbent stationary bike to loosen my muscles for my my morning medication 6 and begin with I doing 1 physical therapy stretches. 2 minutes of Physical Therapy neck and back exercises 3 . . . . I then use ice and electro stimulation therapy 4 for another 15 to 20 minutes. 5 usually quite sore and will watch some TV or read or 6 sometimes lay down for a bit. 7 chores like light dusting which involves no bending or 8 lifting. 9 just too tough on hands, wrist and back. I then perform 20 to 30 After my P.T. workout I’m I then try to do any small I can’t do laundry or vacuuming because it’s My husband 10 helps me prepare dinner and my son helps with the 11 cleaning 12 dishwasher[,] which is very hard for me to do. of dishes, like unloading and loading the 13 14 (AR 526). 15 the dishes, every day so long as she does not have to bend. 16 531). 17 accompany her “to push the cart & load & unload groceries.” 18 Plaintiff claimed that because it is hard to sit in “church seats,” 19 she watches “the services on line at home so I can stop & restart 20 when I need to take a break. Plaintiff states that she does housework, like doing (AR While Plaintiff shops for groceries, her husband or son must (Id.). (AR 529). 21 22 C. Treatment History 23 24 1. Diabetes 25 26 Plaintiff was diagnosed with diabetes well before her December 27 2011 disability onset date. 28 disability application dated September 14, 2012 in which Plaintiff (See, e.g., AR 522 (Met Life long term 7 1 claimed to have been diabetic for twenty years). 2 2012, 3 physician, 4 diabetes remained controlled and that Plaintiff “does not have 5 neuropathy.” 6 Menaka De Silva of the Pavillion Neurology Medical Group, Inc. 7 reported that Plaintiff had a “near global absence of sensory 8 responses in the lower extremities,” which was “consistent with a 9 diabetic axonal neuropathy.”11 and again Dr. on March Nadia 9, Elihu, (AR 301, 329). 2012, M.D., On January 16, Plaintiff’s reported primary that care Plaintiff’s However, on July 3, 2012, Dr. N. (AR 717). In addition, on January 10 14, 2013, Dr. Elihu noted that Plaintiff’s diabetic control was 11 worse, and that Plaintiff had not only “gained 20 lbs since [she] 12 started cymbalta, but [also] had gained 20 lbs prior to that, too. 13 [Plaintiff] admits to poor eating.” (AR 557). 14 15 Nonetheless, by December 14, 2013, Plaintiff’s 16 endocrinologist, Dr. John W. Geier, M.D., reported that Plaintiff 17 had gained “good overall control” over her diabetes using oral 18 medications and insulin therapy. 19 Plaintiff’s “diabetic therapy was adjusted to Actos 30mg, Nesina 20 25mg, and Glumetza 1000mg.”12 (AR 1087). At that time, Dr. Geier reported in both January 21 22 23 24 25 26 27 28 11 Plaintiff stated in her September 2012 Met Life long term disability application that she finds it “hard to control my blood sugars due to all the cortisone injections & stress my body is going through. I’m cutting way back on everything, but still having issues.” (AR 527). 12 These three drugs are oral diabetes medications. Actos is the trademark name of pioglitazone, “a thiazolidine derivative taken orally . . . to treat type 2 diabetes by decreasing insulin resistance.” (See http://c.merriam-webster.com/medlineplus/ pioglitazone). “Nesina (alogliptin) is an oral diabetes medicine that helps control blood sugar levels . . . by regulating the levels of insulin your body produces after eating.” (See 8 1 and April 2014 that Plaintiff maintained “good control” over her 2 diabetes. (AR 1085-86). 3 4 2. Thrombocytopenia 5 6 On October 15, 2010, oncologist Dr. Timothy E. Byun, M.D. 7 diagnosed Plaintiff with chronic moderate thrombocytopenia, noting 8 that Plaintiff reported easy bruising of the arms and legs. 9 491). (AR On November 3, 2011, Dr. Byun cleared Plaintiff for her 10 neck 11 “[c]urrently the patient is feeling well. 12 with blood sugar control, edema, or facial swelling.” 13 On August 7, 2012, Dr. Byun cleared Plaintiff for carpal tunnel 14 surgery, noting “[w]ith her current platelet count, the patient 15 should be able to tolerate carpal tunnel release surgery without 16 increased risk of bleeding complication.” 17 denied “any bleeding or bruising problems” at that time. surgery scheduled for December 5, 2011, noting that She denies any problem (AR 485). (AR 486). Plaintiff (Id.). 18 19 Plaintiff continued her treatment for thrombocytopenia with 20 Dr. Edward A. Wagner, M.D. 21 that Plaintiff “describe[d] to [him] clearly that she [has] never 22 had any major bleeding or hemorrhage spontaneously and all her 23 surgeries that she’s had documented have not resulted in any 24 bleeding or hemorrhage or transfusion of red cells or platelets.” On December 5, 2013, Dr. Wagner noted 25 26 27 28 https://www.drugs.com/nesina.html). Glumetza is the trademark name of metformin, an oral drug that “works by helping to restore your body’s proper response to the insulin you naturally produce.” (See http://www.webmd.com/drugs/2/drug-144868/glumetzaoral/details). 9 1 (AR 1048). 2 stating, “As long as her platelet count is over 50,000, the other 3 studies are unremarkable and [if] she discontinues the medications 4 [with a risk of causing bleeding, such as aspirin], her bleeding 5 risk during ventral hernia repair is minimal but not normal.” 6 1052). 7 upper and lower extremities on both sides were of “normal strength 8 and tone,” and that her mobility and gait were likewise normal. 9 (AR 1050-51). Dr. Wagner cleared Plaintiff for hernia surgery, (AR Dr. Wagner specifically noted in his exam that Plaintiff’s 10 11 On April 3, 2014, Dr. Wagner noted that there were “no major 12 complications” and “no bleeding episodes” from Plaintiff’s hernia 13 operation on January 27, 2014, (AR 1044), and observed once again 14 that 15 strength and tone, and that her gait was normal. 16 Dr. Wagner determined that there was “[n]o need for any treatment 17 at this time,” and that he would see Plaintiff again in nine months. 18 (AR 1047). Plaintiff’s upper and lower extremities were normal in (AR 1046). 19 20 3. Neck Fusion Surgery 21 22 On May 19, 2009, Plaintiff consulted with orthopedist While Plaintiff’s MRI scan 23 Dr. Jeffrey E. Deckey, M.D. 24 showed severe degenerative disk disease at L4-5, Dr. Decky stated 25 that 26 intervention” at that time. 27 2010, Dr. Deckey declined to “recommend any surgical intervention,” 28 but recommended instead “a course of epidurals as well as core he “certainly . . (AR 663). . would not (AR 664). 10 recommend any surgical Similarly, on June 29, 1 strengthening.” (AR 665). On September 8, 2011, Plaintiff 2 reported to Dr. Deckey that she has “severe pain” on a daily basis 3 and that her two most recent epidural injections “did not help.” 4 (AR 670). 5 proceed toward surgery.” Plaintiff informed Dr. Deckey that she “wishe[d] to (AR 671). 6 7 Dr. Deckey performed cervical spinal (neck) fusion surgery on 8 Plaintiff on December 5, 2011, her claimed disability onset date. 9 (AR 396, 522). Plaintiff was discharged the following day. (AR On December 20, 2011, Dr. Deckey reported that Plaintiff’s 10 406). 11 “anterior incision [was well healed” and that “there are no signs 12 of infection.” 13 to her primary care physician that her arm numbness had “resolved” 14 and that she was taking a muscle relaxant for the post-surgery pain 15 in the back of her head. (AR 326). On January 16, 2012, Plaintiff reported (AR 301). 16 17 The next day, on January 17, 2012, Dr. Deckey reported that 18 Plaintiff was “doing extremely well” and that the “fusion is 19 consolidating.” 20 that Plaintiff’s “neck [was] improving,” even though the fusion 21 was “not 100% healed.” (AR 321). 22 Dr. Deckey determined that Plaintiff’s neck appeared to be “doing 23 reasonably well.” (AR 323). On March 6, 2012, Dr. Deckey observed Nonetheless, on June 5, 2012, (AR 683). 24 25 On July 17, 2012, Physician’s Assistant Jason R. Cook observed 26 that Plaintiff was “doing very well with regard to her cervical 27 spine,” but that she complained of lower back pain. 28 August 14, 2012, Dr. Deckey reported that Plaintiff has “good 11 (AR 508). On 1 overall alignment” and that she “is actually doing fairly well with 2 regard to her neck.” 3 Plaintiff see Dr. Albert Lai for pain management. (AR 505). Dr. Deckey recommended that (AR 506). 4 5 On February 14, 2013, Mr. Cook noted that although Plaintiff 6 stated that she had “some persistent neck pain, she denies any 7 radicular type symptoms.” 8 reviewing the results of the CT scan, Mr. Cook noted that Plaintiff 9 had pseudarthroses at the C5-C6 bone graft, (AR 586), but not at (AR 583). On February 19, 2013, upon 10 the C4-C5 and the C6-C7 disc levels. 11 Mr. Cook noted that Plaintiff “appear[ed] to have consolidation of 12 her fusion and bone healing at C5-6.” (AR 598). On June 25, 2013, (AR 694). 13 14 4. Diverticulitis 15 16 On January 27, 2012, Dr. Tackson Tam treated Plaintiff for an 17 episode of diverticulitis, noting that because this was Plaintiff’s 18 “3d attack, she should consider surgery in [the] near future.” 19 340). 20 medication (Cipro and Flagyl) “for better control.” 21 February 3, 2012, Plaintiff was “much improved” and was “advancing 22 her diet” to include more fiber. 23 Plaintiff reported to St. Joseph’s Hospital for a pre-op visit, 24 stating that her “pain was almost gone.” 25 2012, gastroenterologist Dr. Haig Najarian, M.D. gave a second 26 opinion 27 Plaintiff had had “multiple bouts of diverticulitis at [a] younger 28 age.” (AR Plaintiff was advised to go on a clear liquid diet and began concurring with the (AR 337). decision (AR 371). 12 (AR 340). On On February 22, 2012, (AR 425). to operate On March 1, given that 1 On March 13, 2012, Dr. Theodore Coutsoftides, M.D., performed 2 a laparascopic sigmoid resection with colorectal anastomosis.13 (AR 3 419-22; see also AR 383-84). 4 noted that the surgical incision was “healing well without any 5 infection or herniation” and that Plaintiff was “doing well and 6 has no complaints.” 7 midline incision was “well healed,” there was “no hernia,” and 8 Plaintiff was in “no acute distress.” 9 given a booklet on a high fiber diet. On March 26, 2012, Dr. Coutsoftides (AR 414). On April 12, 2012, Plaintiff’s (AR 413). Plaintiff was (Id.). On June 7, 2012, 10 Plaintiff was “stable and doing well,” with “minimal incisional 11 tenderness.” (AR 410). 12 13 Two years later, on July 17, 2014, Plaintiff presented to 14 Dr. Shahram Javaheri, M.D., complaining of “severe abdominal pain” 15 that she thought might be a recurrence of diverticulitis. 16 1106). 17 pain,” (AR 1107), and concluded that he was “not sure if she has 18 diverticulitis.” 19 complete her course of antibiotics and ordered additional tests. 20 (Id.). (AR Dr. Javaheri noted that Plaintiff “seem[ed] to be in mild (AR 1108). Dr. Javaheri advised Plaintiff to 21 22 23 A laparascope is a “rigid endoscope that is inserted through an incision in the abdominal wall and is used to examine visually the interior of the peritoneal cavity.” (See http://c.merriamwebster.com/medlineplus/laparoscope). The sigmoid colon is “the contracted and crooked part of the colon immediately above the rectum.” (See http://c.merriam-webster.com/medlineplus/sigmoid). Anastomosis is “the surgical union of parts and especially hollow tubular parts.” (See http://c.merriam-webster.com/medlineplus/ anastomosis). Plaintiff refers to this in her testimony. 13 24 25 26 27 28 13 1 5. Carpal Tunnel Syndrome 2 3 On August 14, 2012, Plaintiff consulted with Dr. Mark Halikis, 4 M.D. after an “EMG” test demonstrated “moderate carpal tunnel 5 syndrome.”14 6 Plaintiff’s right hand was “tender” at her MP joint of the thumb 7 and “nontender” at the CMC joint and the A1 pulley. 8 Plaintiff’s left wrist showed a good range of motion. (Id.). 9 Dr. Halikis tunnel (AR 505). diagnosed On August 20, 2012, Dr. Halikis noted that Plaintiff with “bilateral (AR 630). carpal 10 syndrome, moderate,” with arthrosis in her right thumb MP joint 11 and left wrist. 12 “none of these problems have to be treated urgently” and that she 13 is “not really looking towards surgery in the near future.” 14 630-31). 15 canals and prescribed a splint and a topical gel. (Id.). Dr. Halikis explained to Plaintiff that (AR Dr. Halikis gave her injections in her bilateral carpal (AR 631). 16 17 On September 17, 2012, Dr. Halikis informed Plaintiff that 18 surgery on her right hand “would likely give her good relief” and 19 gave her an injection in her left hand “not for the carpal tunnel, 20 but for the arthrosis itself.” 21 Plaintiff reported that she was “doing well,” including “quite 22 well” in her right hand and “fairly well” in her left. 23 On December 5, 2012, Dr. Halikis stated that Plaintiff’s injections (AR 632). On October 15, 2012, (AR 634). 24 25 26 27 28 An EMG test “studies nerve conductions (by delivering electrical impulses to the nerves) and muscles (by inserting a needle probe into different muscles)” and is considered a “useful and sensitive test for carpal tunnel syndrome.” (See https://teleemg.com/carpaltunnel-ulnar-nerve-symptoms-forum/). 14 14 1 were “holding her up okay” on her right side, but that the results 2 on the left side were “transient.” (AR 636). 3 4 On January 9, 2013, Plaintiff decided to undergo an “ulnar 5 shortening osteoplasty as well as excision of the ossicles in the 6 left wrist.” 7 February 26, 2013. (AR 643). On March 4, 2013, Plaintiff’s “wounds 8 look well healed,” and her x-rays showed “good placement of the 9 plate, good apposition of the osteotomy site, and debridement of (AR 638). wrist.” (AR Dr. Halikis performed the osteoplasty on 10 the 11 discomfort,” but Dr. Halikis referred her to her pain management 12 doctor. 13 healed” and Plaintiff had “minimal swelling.” 14 25, 2013, Plaintiff was out of her cast and was sent to therapy to 15 start on “splinting and rehabilitation.” 16 2013, Plaintiff was “making good gains in therapy” and her x-rays 17 showed “excellent progress in healing.” 18 2013, Plaintiff evidenced “some improvement,” but also complained 19 of “a generalized reaction of the surgical procedure which goes 20 beyond what [Dr. Halikis] did.” 21 that Plaintiff “continue therapy and introduce the element of 22 stress loading” into the therapy. (Id.). 640). Plaintiff reported “significant On March 4, 2013, Plaintiff’s wounds were “well (AR 787). (AR 830). (AR 641). (AR 806). On March On April 22, On May 20, Dr. Halikis recommended (Id.). 23 24 On June 17, 2013, Dr. Halikis told Plaintiff that “she needs 25 to get into therapy at least once a week,” and that even though 26 “that is a problem for her, . . . [if] she wants to move along, 27 she needs to get on it.” 28 noted that Plaintiff (AR 776). had been 15 On July 15, 2013, Dr. Halikis attending therapy and her 1 functionality 2 September 3 “[l]ast visit we explained to her that we did not have much else 4 to offer,” once again told her “that there is not much more for 5 [him] to do.” 16, had “increased 2013, Dr. significantly.” Halikis reported that (AR at 758). On Plaintiff’s (AR 743). 6 7 6. Pain Management 8 9 On September 20, 2012, Plaintiff consulted Dr. Albert Lai, 10 M.D. for pain management. 11 constant pain in her back, bones, and joints and rated the degree 12 of pain a “seven” on a scale of zero to ten. 13 prescribed a “medial branch block” and gave her a right heel lift. 14 (AR 1030). 15 to manage pain in her lower back and both hands. 16 October 23, 2012, Plaintiff reported that there was no change in 17 her pain level after the October 19 injection. 18 November 8, 2012, Plaintiff stated that the shoe lift seemed to 19 help her walk straighter, and that the medications were helping. 20 (AR 1014). 21 an assistive device and was not in “apparent distress.” (AR 1027). Plaintiff complained of (AR 1028). Dr. Lai On October 19, 2012, Plaintiff received an injection (AR 1020). (AR 1019). On On Dr. Lai observed that Plaintiff was ambulatory without (AR 1016). 22 23 On December 7, 2012, Dr. Lai prescribed Soma for pain 24 management and administered an injection. 25 December 13, 2012, Plaintiff reported that her pain level had 26 improved. (AR 610, 1007). Nonetheless, on January 3, 2013, 27 Plaintiff complained her 28 concentration and mood “sometimes,” and with her family function that 16 pain (AR 608, 1008-10). interfered with On her 1 and recreation “a lot.” (AR 612). 2 Plaintiff did not appear to be in any stress, (AR 613), and 3 Plaintiff admitted that the medications “are helping” and did not 4 cause any side effects. 5 on February 1, 2013, and reported that her condition had improved. 6 (AR 619). 7 Plaintiff stated that her pain level had not changed since her last 8 visit and that her “medications are less effective.” 9 989). (AR 614). However, Dr. Lai noted that Plaintiff received an injection However, on both February 21 and March 21, 2013, (AR 620, 10 11 On April 11 and May 16, 2013, Plaintiff reported that her pain 12 levels had decreased since the last visit. 13 21, 2013, a lumbar epidurogram showed “adequate flow into the 14 epidural space,” with no “filling defects,” and Plaintiff continued 15 to report that medications were helping. 16 2013, Plaintiff stated that her pain level had increased since her 17 prior visit on July 30, 2013 (AR 974), but once again admitted that 18 “medications are helping.” 19 Plaintiff received an injection to treat sacroiliac joint pain. 20 (AR 960, 962). On October 31, 2013, Plaintiff complained to Dr. Lai 21 that while her pain medications were “helpful,” they did not 22 alleviate the pain entirely. (AR 969). (AR 981, 985). (AR 979). On June On August 22, On September 27, 2013, (AR 954). 23 24 7. Arthritis 25 26 On October 8, 2012, Plaintiff consulted with Dr. Joo-Hyng Lee, 27 M.D. regarding joint pain. (AR 724). 28 Plaintiff feel that he “did not 17 that Dr. Lee explained to she had an underlying 1 connective tissue disorder.” (AR 726). 2 November 5, 2012, Dr. Lee reported that Plaintiff’s upper and lower 3 extremities were “normal” and that Plaintiff has “no current signs 4 of rheumatoid arthritis,” even though she did have “a low positive 5 rheumatoid factor.” 6 reported that the MRI of Plaintiff’s hands revealed “no indication 7 of any inflammatory arthritis currently.” (AR 730). In a follow-up visit on On January 29, 2013, Dr. Lee (AR 736). 8 9 8. Ventral Hernia 10 11 On January 27, 2014, Plaintiff had a ventral hernia operation. A physician’s assistant reported on February 3, 2014, 12 (AR 1038). 13 that 14 obstruction.” 15 Dr. Wagner that she had had “no major complications” and “no 16 bleeding episodes” from the hernia operation. Plaintiff was “doing (Id. 1033). well postoperatively” with “no On April 3, 2014, Plaintiff informed (AR 1044). 17 18 9. Depression 19 20 Plaintiff saw psychotherapist Anne Laptin, M.S., LCSW, for a 21 total of seven sessions between October and December 2012. 22 1092). 23 Plaintiff 24 Ms. Laptin diagnosed Plaintiff with Depressive Disorder Due to a 25 Medical Condition, and noted that while Plaintiff “showed mild 26 improvement” over the course of their sessions, the “extensive 27 focus on her medical needs, appointments and pain management made 28 it difficult to reduce her symptoms in a significant way in the (AR Ms. Laptin wrote a letter on April 30, 2014 stating that had presented with signs 18 of depression. (Id.). 1 time we worked together.” 2 was 3 psychiatrist Susan Zachariah, M.D. 4 initial visit with Dr. Zachariah appears to have been on October 5 23, 2012. 6 and 7 Plaintiff’s insight and judgment were intact, as was her memory 8 for recent and remote events. 9 Plaintiff stated that she was “doing much better” and felt “less seeing Ms. Laptin, (AR 1081). overwhelmed. (Id.). she At the same time that Plaintiff also had several visits with Plaintiff’s (AR 1081-83). Plaintiff complained of feeling sad, anxious (Id.). However, Dr. (AR 1083). (AR 1082). Zachariah noted that On November 27, 2012, 10 depressed and less anxious.” 11 Dr. Zachariah determined that Plaintiff was “anxious and mildly 12 depressed” and planned to take her off of Cymbalta. On January 7, 2013, (AR 1084). 13 14 In addition to Ms. Laptin and Dr. of Plaintiff’s 16 condition. 17 positive terms, even as they acknowledged that she presented with 18 some level of depression. 19 to person, place, time and general circumstances. 20 appropriate.”); AR 371 (4/19/12, “oriented to time, place, person, 21 and situation” demonstrating “appropriate affect and mood”); AR 22 1042 (12/4/13, “alert and oriented, no acute distress”); AR 1053 23 (3/26/14, “good energy level”); AR 1050 (4/9/14, mental status 24 alert, without anxiety or fear)). physicians Plaintiff’s many 15 treating assessed Zachariah, mental They typically described her general mental status in (See, e.g., AR 331 (3/9/12, “Oriented 25 26 27 28 19 Mood and affect 1 D. Non-Examining Physicians 2 3 1. Dr. M. Yee, M.D. 4 5 On 6 Determination 7 medical records. 8 Functional Capacity for the first twelve months after her alleged 9 disability onset date, i.e., between December 5, 2011 and December June 22, 2012, Explanation (AR 63). Dr. M. based Yee on provided his review a of Disability Plaintiff’s Dr. Yee assessed Plaintiff’s Residual 10 5, 2012. (AR 69). Dr. Yee determined that Plaintiff had four 11 severe impairments: (1) “Disorders of Back -- Discogenic and 12 Degenerative,” 13 (3) diabetes, and (4) anemia. 14 although Plaintiff had exertional limitations, she would be able 15 to: 16 stand for two hours and sit for six hours in a normal eight-hour 17 workday; climb ramps or stairs, stoop (bend at the waist), crouch 18 (bend at the knees), kneel and crawl occasionally, but never climb 19 ladders, ropes or scaffolds. 20 that Plaintiff should “avoid concentrated exposure” to hazards such 21 as “machinery, heights, etc.,” but that she had no manipulative, 22 visual or communicative limitations. 23 limitations, Dr. Yee determined that Plaintiff could perform her 24 past relevant work as an Order Clerk, DOT Code 249.362-026, and 25 was therefore not disabled. (2) “Disorders of Gastrointestinal (AR 68). System,” Dr. Yee concluded that lift ten pounds occasionally; less than ten pounds frequently; (AR 69-70). (AR 72). 26 27 28 20 Dr. Yee further found (AR 70-71). With these 1 2. Dr. R. Weeks 2 3 On 4 Determination 5 medical records, which he divided into two periods. 6 first period overlapped with Dr. Yee’s assessment, and continued 7 for approximately three months longer, i.e., from December 5, 2011 8 to February 25, 2013. 9 26, 2013 through February 26, 2014. May 28, 2013, Explanation Dr. R. based (AR 85). Weeks on provided his review a of Disability Plaintiff’s (AR 76). The The second period covered February (AR 87). 10 11 For the period between December 5, 2011 and February 25, 2013, 12 Dr. Weeks determined that Plaintiff had the same four severe 13 impairments identified by Dr. Yee -- (1) “Disorders of Back -- 14 Discogenic and Degenerative,” (2) “Disorders of Gastrointestinal 15 System,” (3) diabetes, and (4) anemia 16 (5) peripheral neuropathy. 17 found 18 occasionally; less than ten pounds frequently; stand for two hours 19 and sit for six hours in a normal eight-hour workday; climb ramps 20 or stairs, stoop (bend at the waist), crouch (bend at the knees), 21 kneel and crawl occasionally, but never climb ladders, ropes or 22 scaffolds. that Plaintiff (AR 84). would be -- and added a fifth, Also like Dr. Yee, Dr. Weeks able to: lift ten pounds (AR 85-86). 23 24 However, unlike Dr. Yee, Dr. Weeks determined that Plaintiff 25 had manipulative limitations in that she had a “limited” ability 26 to reach overhead with either arm and to handle or “finger” items 27 (gross and fine manipulation). 28 Plaintiff’s environmental limitations included not just the need (AR 86). 21 Dr. Weeks also found that 1 to 2 heights, but also to extreme cold and vibration. avoid concentrated exposure to hazards like machinery and (AR 87). 3 4 For the period between February 26, 2013 through February 26, 5 2014, Dr. Weeks assessed an RFC that was nearly identical to his 6 RFC assessment for the earlier period, with the following two 7 differences: 8 Plaintiff could “never” crawl, (AR 88), instead of “occasionally” 9 crawl; and that her gross manipulation ability was “unlimited,” for the latter period, Dr. Weeks concluded that 10 (id.), instead of “limited”. 11 Dr. Weeks determined that Plaintiff could perform her past relevant 12 work as an Order Clerk, DOT Code 249.362-026, and was therefore 13 not disabled. (Id.). With these limitations, 14 15 3. Dr. Malcolm Brahms 16 17 Impartial Medical Expert Dr. Malcolm Brahms testified at the 18 ALJ hearing on May 21, 2014. 19 the record reflects that Plaintiff is a “diabetic, slightly obese 20 individual who has a series of problems.” 21 include “a cervical spine problem, shoulder problems, carpal tunnel 22 syndrome,” 23 pseudoarthrosis, and cavovarus foot with related ankle problems.15 24 (Id.). 25 spine issues, she should “avoid any work above shoulder level” and 26 (AR 42-48). thrombocytopenia, 28 (AR 43). diabetes, These problems neuropathy, pain, Dr. Brahms stated that because of Plaintiff’s cervical “Cavovarus foot refers to a foot that has both cavus (high arch) and varus of the heel (a heel that is turned inward).” (See http://www.aofas.org/PRC/conditions/Pages/Conditions/CavovarusFoot.aspx). 15 27 Dr. Brahms stated that 22 1 “avoid repetitive lifting below waist level,” i.e., bending to 2 lift, although she could engage in below waist level lifting 3 “occasionally.” 4 issues, Dr. Brahms stated that Plaintiff could engage in “limited 5 walking” for short distances at a time. (AR 46). Because of Plaintiff’s feet and ankle (AR 46). 6 7 IV. 8 THE FIVE STEP SEQUENTIAL EVALUATION PROCESS 9 10 To qualify for disability benefits, a claimant must 11 demonstrate a medically determinable physical or mental impairment 12 that prevents the claimant from engaging in substantial gainful 13 activity and that is expected to result in death or to last for a 14 continuous period of at least twelve months. 15 157 F.3d 715, 721 (9th Cir. 1998) (citing 42 U.S.C. § 423(d)(1)(A)). 16 The impairment must render the claimant incapable of performing 17 the work she previously performed and incapable of performing any 18 other substantial gainful employment that exists in the national 19 economy. 20 (citing 42 U.S.C. § 423(d)(2)(A)). Reddick v. Chater, Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) 21 22 To decide if a claimant is entitled to benefits, an ALJ 23 conducts a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920. 24 steps are: The 25 26 (1) Is the claimant presently engaged in substantial gainful 27 activity? 28 not, proceed to step two. If so, the claimant is found not disabled. 23 If 1 (2) Is the claimant’s impairment severe? 2 claimant is found not disabled. 3 If not, the three. 4 (3) If so, proceed to step Does the claimant’s impairment meet or equal one of the 5 specific impairments described in 20 C.F.R. Part 404, 6 Subpart P, Appendix 1? 7 disabled. 8 (4) 9 If so, the claimant is found If not, proceed to step four. Is the claimant capable of performing his past work? If so, the claimant is found not disabled. 10 If not, proceed to step five. 11 (5) Is the claimant able to do any other work? 12 claimant is found disabled. 13 If not, the not disabled. If so, the claimant is found 14 15 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 16 262 F.3d 949, 953-54 (9th Cir. 2001); 20 C.F.R. §§ 404.1520(b)- 17 (g)(1) & 416.920(b)-(g)(1). 18 19 The claimant has the burden of proof at steps one through four 20 and 21 Bustamante, 262 F.3d at 953-54. 22 affirmative duty to assist the claimant in developing the record 23 at every step of the inquiry. 24 claimant meets his or her burden of establishing an inability to 25 perform past work, the Commissioner must show that the claimant 26 can perform some other work that exists in “significant numbers” 27 in 28 residual functional capacity (“RFC”), age, education, and work the the Commissioner national has economy, the burden of 24 at step five. Additionally, the ALJ has an Id. at 954. taking proof into If, at step four, the account the claimant’s 1 experience. 2 721; 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 3 may do so by the testimony of a VE or by reference to the Medical- 4 Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart P, 5 Appendix 2 (commonly known as “the grids”). 6 240 F.3d 1157, 1162 (9th Cir. 2001). 7 exertional (strength-related) and non-exertional limitations, the 8 Grids are inapplicable and the ALJ must take the testimony of a 9 VE. 10 Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at The Commissioner Osenbrock v. Apfel, When a claimant has both Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000) (citing Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988)). 11 12 V. 13 THE ALJ’S DECISION 14 15 The ALJ employed the five-step sequential evaluation process 16 and concluded that Plaintiff was not disabled within the meaning 17 of the Social Security Act. 18 that Plaintiff met the insured status requirements through March 19 31, 2017 and had not engaged in substantial gainful activity since 20 December 5, 2011, the alleged disability onset date. 21 step two, the ALJ found that Plaintiff had the severe medically 22 determinable impairments of slight obesity; diabetes mellitus; 23 degenerative disc disease 24 laminectomy16 and fusion 25 pseudoarthrosis at the C5-6 graft line; bilateral carpal tunnel 26 (AR 28). of in the 28 cervical December 2011 spine, with (AR 18). status At post suggestion of A laminectomy is the “surgical removal of the posterior arch of a vertebra (as to relieve compression of a spinal nerve root).” (See http://c.merriam-webster.com/medlineplus/laminectomy). 16 27 At step one, the ALJ found 25 1 syndrome; degenerative disc disease and stenosis of the lumbar 2 spine; status post left ulnar shortening osteoplasty in February 3 2013; anemia; peripheral neuropathy; and chronic thrombocytopenia. 4 (Id.). 5 6 At step three, the ALJ found that the severe impairments at 7 step two did not meet or medically equal a listed impairment. 8 20). 9 capacity (“RFC”) to perform sedentary work as defined in 20 C.F.R. (AR The ALJ then found that Plaintiff had the residual functional 10 404.156(a),17 except: 11 stand or walk 2 hours out of an 8-hour days with normal workday 12 breaks; occasionally life and carry 10 pounds, frequently lift and 13 carry less than 10 pounds; both lower extremities no bending over 14 to 15 balancing, stopping, crouching, crawling, kneeling; no ladders, 16 ropes or scaffolding; frequent gross and fine manipulation with 17 both upper extremities; no work above shoulder level with both 18 upper extremities; and no unprotected heights, dangerous or fast 19 moving machinery. 20 Plaintiff was capable of performing her past relevant work as a 21 secretary and office manager, which do not require the performance 22 of work-related activities precluded by Plaintiff’s RFC. (AR 27). 23 Accordingly, under lift from below the can sit for six hours out of an 8-hour day; the waist; (AR 22). ALJ found occasional stairs, bending, At step four, the ALJ found that that Plaintiff was not a 24 25 26 27 28 “Sedentary work involves 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.” See 20 C.F.R. § 404.1567(a). 17 26 1 disability as defined by the Social Security Act from December 5, 2 2011, the alleged onset date of her disability, to the date of the 3 ALJ’s decision. (AR 28). 4 5 VI. 6 STANDARD OF REVIEW 7 8 9 Under 42 U.S.C. § 405(g), a district court may review the Commissioner’s decision to deny benefits. “[The] court may set 10 aside the Commissioner’s denial of benefits when the ALJ’s findings 11 are based on legal error or are not supported by substantial 12 evidence in the record as a whole.” 13 1033, 1035 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1097); see 14 also Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing 15 Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989)). Aukland v. Massanari, 257 F.3d 16 17 “Substantial evidence is more than a scintilla, but less than 18 a preponderance.” 19 Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)). 20 evidence which a reasonable person might accept as adequate to 21 support a conclusion.” 22 evidence supports a finding, the court must “‘consider the record 23 as a whole, weighing both evidence that supports and evidence that 24 detracts from the [Commissioner’s] conclusion.’” Aukland, 257 F.3d 25 at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 26 1993)). 27 or reversing that conclusion, the court may not substitute its 28 judgment for that of the Commissioner. Reddick, 157 F.3d at 720 (citing Jamerson v. (Id.). It is “relevant To determine whether substantial If the evidence can reasonably support either affirming 27 Reddick, 157 F.3d at 720- 1 21 (citing Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 2 1457 (9th Cir. 1995)). 3 4 VII. 5 THE ALJ’S REASONS FOR REJECTING PLAINTIFF’S SUBJECTIVE TESTIMONY 6 WERE SPECIFIC, CLEAR AND CONVINCING 7 Plaintiff challenges the ALJ’s decision on the sole ground 8 9 that the ALJ improperly assessed Plaintiff’s credibility. 10 (Plaintiff’s Memorandum in Support of Complaint (“P Memo.”) at 3). 11 Plaintiff first contends that the ALJ improperly used boilerplate 12 language in finding her to be not entirely credible. 13 6). 14 purported 15 subjective claims of pain “is always legally insufficient” because 16 in Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991), the 17 Ninth Circuit rejected a standard that would require objective 18 evidence to prove the degree of such an impairment. 19 6-9). 20 the ALJ may only, but did not, “‘rely either on reasons unrelated 21 to the subjective testimony (e.g., reputation for dishonesty), on 22 conflicts between her testimony and her own conduct, or on internal 23 contradictions in that testimony.’” 24 Comm’r Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997) (“In 25 this case, the ALJ disbelieved Light because no objective medical 26 evidence supported Light’s testimony regarding the severity of 27 subjective symptoms from which he suffers, particularly pain. (P Memo. at Second, Plaintiff argues that the ALJ’s reliance on the lack of objective medical evidence to support her (P Memo. at According to Plaintiff, to find her testimony not credible, 28 28 (Id. at 8) (quoting Light v. An 1 ALJ may not discredit a claimant’s subjective testimony on that 2 basis.”)). 3 The ALJ generally contended that “the evidence submitted does 4 5 not support the 6 provided 7 testimony regarding her symptoms and limitations was “not entirely 8 credible,” 9 treatment history; (2) her failure to follow up on recommendations 10 made by her doctors; (3) inconsistencies between her testimony and 11 objective medical evidence, (AR 26-27), and (4) discrepancies 12 between Plaintiff’s activities of daily living and her allegations 13 of depression.18 14 reasons for rejecting Plaintiff’s credibility were specific, clear, 15 and convincing. 16 of the second reason did not support the ALJ’s conclusion, the 17 error was harmless. 18 the ALJ’s decision is AFFIRMED. four (AR severity primary 23): of symptoms reasons (1) for finding Plaintiff’s (AR 19-20). alleged,” (AR that “generally 26), and Plaintiff’s successful” The ALJ’s first, third and fourth To the extent that the evidence cited in support Accordingly, for the reasons discussed below, 19 20 A. Standard 21 22 When assessing a claimant’s credibility regarding subjective 23 pain or intensity of symptoms, the ALJ must engage in a two-step 24 25 26 27 28 The ALJ’s discussion of the discrepancy between Plaintiff’s allegations of depression and her activities of daily living was in the context of a lengthy discussion of whether Plaintiff’s mental condition was a severe impairment. (See AR 19-20). The ALJ concluded that despite Plaintiff’s claims, her mental impairment was “nonsevere.” (AR 20). 18 29 1 analysis. 2 Initially, the ALJ must determine if there is medical evidence of 3 an impairment that could reasonably produce the symptoms alleged. 4 Id. (citation omitted). 5 evidence of malingering, the ALJ must provide specific, clear and 6 convincing reasons for rejecting the claimant’s testimony about 7 the symptom severity. 8 F.3d at 1284 (“[T]he ALJ may reject the claimant’s testimony 9 regarding the severity of her symptoms only if he makes specific Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012). If such evidence exists, and there is no Id. (citation omitted); see also Smolen, 80 10 findings stating clear and convincing reasons for doing so.”). 11 so doing, the ALJ may consider the following: In 12 13 (1) ordinary techniques of credibility evaluation, such 14 as 15 inconsistent statements concerning the symptoms, and 16 other testimony by the claimant that appears less than 17 candid; 18 failure to seek treatment or to follow a prescribed 19 course 20 activities. the claimant’s (2) of reputation unexplained treatment; and or (3) for lying, inadequately the prior explained claimant’s daily 21 22 Id.; see also Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 23 2008). Inconsistencies between a claimant’s testimony and conduct, 24 or internal contradictions in the claimant’s testimony, also may 25 be relevant. 26 Cir. 1997). 27 treating and examining physicians regarding, among other matters, 28 the functional restrictions caused by the claimant’s symptoms. Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th In addition, the ALJ may consider the observations of 30 1 Smolen, 80 F.3d at 1284. 2 subjective testimony based “solely” on its inconsistencies with 3 the objective medical evidence presented. 4 Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) (citing Bunnell, 5 947 F.2d at 345). It is improper for an ALJ to reject Bray v. Comm’r of Soc. 6 7 Further, the ALJ must make a credibility determination with 8 findings that are “sufficiently specific to permit the court to 9 conclude that the ALJ did not arbitrarily discredit [the 10 claimant’s] testimony.” Tommasetti, 533 F.3d at 1039 (citation 11 omitted). ALJ’s 12 testimony may not be the only reasonable one, if it is supported 13 by substantial evidence, “it is not [the court’s] role to second- 14 guess it.” 15 (citing Fair, 885 F.2d at 604). Although an interpretation of a claimant’s Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) 16 17 18 B. Factors Supporting The ALJ’s Adverse Credibility Determination 19 20 The ALJ provided two specific, clear and convincing reasons 21 to find Plaintiff’s complaints of constant, all-consuming pain not 22 fully credible. 23 support the Commissioner’s decision. (AR 26-27). These reasons are sufficient to 24 25 1. Successful Treatment History 26 27 The ALJ found Plaintiff not entirely credible because even 28 though Plaintiff sought treatment for medical treatment for her 31 1 symptoms, the treatment was “generally successful in controlling 2 those 3 debilitating pain do not acknowledge. 4 ALJ explained that after Plaintiff underwent neck fusion surgery 5 on December 5, 2011 to treat cervical degenerative disc disease, 6 by “January 2012, her arm numbness had resolved and she was 7 reportedly doing extremely well. 8 motor and sensory exam was grossly within normal limits; subsequent 9 examinations symptoms,” which revealed (Id.). Plaintiff’s her (AR 26). of constant, For example, the Physical examination revealed was amply controlled 11 observations. 12 reported on January 17, 2012 that Plaintiff was “doing extremely 13 well,” and on June 5, 2012, that she was doing “reasonably well.” 14 (AR 323, 683). 15 17, 2012 that Plaintiff was “doing very well with regard to her 16 cervical spine.” Plaintiff’s supports surgeon, the with medication[.]” example, record well 10 For The pain complaints Dr. ALJ’s Deckey, Physician’s Assistant Mr. Cook observed on July (AR 508). 17 18 Similarly, the ALJ noted that Plaintiff’s thrombocytopenia 19 significantly improved with treatment. 20 that on November 3, 2011, Dr. Byun cleared Plaintiff for her neck 21 surgery, noting that “[c]urrently the patient is feeling well,” 22 (AR 486), and on August 7, 2012, Dr. Byun cleared Plaintiff for 23 carpal tunnel surgery, noting that in light of her current platelet 24 counts, Plaintiff should be able to tolerate the surgery without 25 increased risk of bleeding complications. 26 2013, Dr. Wagner also cleared Plaintiff for hernia surgery. 27 1052). 28 responded well to her sigmoid colon resection in March 2012. (Id.). (AR 26). The record shows (AR 485). In December (AR Finally, the ALJ noted that Plaintiff’s diverticulitis 32 1 Indeed, in a follow up visit on March 26, 2012, Dr. Coutsoftides 2 reported that Plaintiff “was doing well and has no complaints.” 3 (AR 414; see also AR 413 (April 12, 2012, reporting that Plaintiff 4 “is experiencing no new medical problems or complaints”); AR 410 5 (June 7, 2012, reporting same)). 6 7 The ALJ properly could infer, on the basis of ample medical 8 evidence demonstrating that Plaintiff was doing well after her 9 successful procedures, that Plaintiff’s testimony regarding her 10 degree of pain was exaggerated and not credible. 11 12 2. 13 Inconsistencies Between Plaintiff’s Testimony And Objective Medical Evidence 14 The ALJ found Plaintiff’s credibility diminished based on 15 16 inconsistencies 17 “debilitating” and “unrelenting,” (AR 41, 53), and the objective 18 medical evidence. 19 Plaintiff’s claims were inconsistent with her physical examination 20 with Dr. Wagner in December 2013. 21 examination “revealed normal strength and tone in both upper and 22 lower extremities, intact neurological findings, normal gait, no 23 memory impairment, and normal affect.” 24 52). 25 no need for any treatment (unless the platelet count dropped) in 26 an April 2014 follow-up visit and advised the claimant to return 27 in nine months for re-evaluation.” 28 47). between her (AR 26). testimony describing her pain as Specifically, the ALJ observed that According to the ALJ, that (AR 26) (citing AR 1048- The ALJ further noted that “Dr. Wagner concluded there was (AR 26-27) (citing AR 1044- The ALJ noted that, despite Plaintiff’s claims of depression 33 1 and sleep disturbance, her “neurological 2 examinations have been described as normal on numerous occasions 3 by her treating physicians.” 4 ALJ’s observations. (AR 27). and mental status The record supports the (See, e.g., AR 331, 371, 1042, 1050, 1053). 5 6 Furthermore, there is a contradiction between Plaintiff’s 7 claims of debilitating, constant pain and her own repeated reported 8 admissions to Dr. Lai that her pain levels improved under his care. 9 (See, e.g., AR 610 (12/13/12, pain level “improved” following 10 injection and prescription to Soma); AR 614 (1/3/13, medications 11 “are helping” and do not cause side effects); 12 condition “improved” after injection on February 1, 2013); AR 981 13 (4/11/13, pain levels decreased); AR 985 (5/16/13, pain levels 14 decreased); AR 969 (medications are “helping”); AR 954 (medications 15 are 16 (12/5/13, medications are “helping”). 17 admitted that she is able to do housework every day so long as it 18 does not involve bending, and that she begins each day by exercising 19 for twenty-five to forty minutes. “helpful,” but do not entirely alleviate AR 619 (2/13/13, pain); AR 950 In addition, Plaintiff (AR 526). 20 21 The inconsistencies between Plaintiff’s testimony and the 22 objective medical evidence constituted a clear and convincing 23 reason for the ALJ’s adverse credibility determination. 24 119 F.3d at 792; see also Berry v. Astrue, 622 F.3d 1228, 1234 (9th 25 Cir. 26 entirely 27 complaints in [plaintiff’s] activity questionnaire and hearing 28 testimony and some of his other self-reported activities). 2010) (ALJ credible properly because “concluded he 34 found that Cf. Light, [claimant] was contradictions not between 1 3. 2 Discrepancies Between Allegations Of Depression And Activities Of Daily Living 3 An 4 ALJ may consider the claimant’s daily activities in 5 weighing credibility. 6 80 F.3d at 1284). Here, the ALJ determined that despite Plaintiff’s 7 allegations of depression, her mental impairment was nonsevere. 8 (AR 19-20). 9 limitations in her “activities of daily living”: Tommasetti, 533 F.3d at 1039 (citing Smolen, The ALJ concluded that Plaintiff had only mild “There is no 10 evidence that [Plaintiff] is unable to perform personal grooming, 11 manage funds, drive or go out alone, or shop for groceries.” 12 19). 13 limitations in her social functioning: 14 and lives with her husband and teenage son; there is no evidence 15 of any problems getting along with family members, friends, or 16 neighbors; she has not alleged any problems getting along with 17 supervisors or coworkers.” 18 also had only mild limitations in concentration, persistence or 19 pace, as the evidence showed that she is able to “focus attention 20 during evaluations,” presents with a normal affect, and had no 21 impairment in memory. 22 Plaintiff exercises, cleans, cooks, and interacts with her husband 23 and son on a daily basis. 24 Plaintiff’s alleged depression and her daily activities supports 25 the ALJ’s determination that Plaintiff is not entirely credible. (AR Similarly, the ALJ concluded that Plaintiff had only mild (Id.). (AR 20). The ALJ noted that Plaintiff Indeed, the record shows that (AR 526-31). 26 27 28 35 “[Plaintiff] is married The discrepancy between 1 C. The Example Cited By The ALJ To Support Her Contention That 2 Plaintiff Did Not Follow Her Providers’ 3 Recommendations Appears Erroneous, But Is Harmless 4 5 The ALJ also found Plaintiff not credible in part because she 6 had allegedly failed to “follow up on recommendations made by her 7 treating doctors,” which “suggests that the symptoms may not have 8 been 9 application. (AR 26). A claimant’s refusal to follow a recommended 10 course of treatment supports a finding that the claimant is not 11 fully credible. 12 order to get benefits, you must follow treatment prescribed by your 13 physician if this treatment can restore your ability to work.”); 14 20 C.F.R. §§ 404.1530(b) and 416.930(b) (“If you do not follow the 15 prescribed treatment without a good reason, we will not find you 16 disabled.”); see also Molina, 674 F.3d at 1113 (a claimant’s 17 statements may be less than credible if the medical records “show 18 that the [claimant] is not following the treatment as prescribed 19 and there are no good reasons for this failure.”) (quoting SSR 96- 20 7p). as serious as [Plaintiff] alleged” in her disability See 20 C.F.R. §§ 404.1530(a) and 416.930(a) (“In 21 22 23 The ALJ based her conclusion that Plaintiff was noncompliant on a single, specific example: 24 25 The record reveals that the claimant failed to follow- 26 up on recommendations made by her treating doctors, and 27 has been noncompliant with her prescribed treatment and 28 medications . . . . For instance, the claimant has been 36 1 diagnosed with type II diabetes mellitus for which she 2 has been prescribed multiple medications. 3 claimant’s diabetes was reportedly uncontrolled in May 4 2014, she had been off insulin for a while (Exhibit 5 32F/s). 6 endocrinologist, consistently noted her diabetes had 7 been well controlled with medications (Exhibit 34F). 8 The claimant’s credibility is diminished because of 9 these inconsistencies. Prior to that, Dr. Geier, Although the the claimant’s 10 11 (AR 26) (some internal record citations omitted). 12 13 The specific records cited by the ALJ as do not support the 14 contention that Plaintiff’s diabetes was uncontrolled in May 2014, 15 and suggest that the reason she was no longer taking insulin was 16 because it was no longer prescribed. 17 if this particular example cited in the ALJ’s credibility finding 18 was factually unsupported, the error was harmless. (See AR 26). However, even 19 20 To support the proposition that Plaintiff’s diabetes was 21 uncontrolled in May 2014, the ALJ cited a May 2, 2014 medical 22 record drafted by Physician’s Assistant Kelly Fee. 23 record reflects that the purpose of the visit was to “discuss 24 medication.” (AR 1076). Ms. Lee wrote: 25 26 27 28 37 (Id.). The 1 [Plaintiff] saw Dr. Geier last week and the A1c was in 2 the 6s.19 3 lbs. 4 the medications through us for now. She has been off of insulin and has lost 30 Dr. Geier is retiring and she would like to get 5 6 (Id.) (footnote added). 7 a blood draw on April 2, 2014. (AR 1088). The lab report indicates 8 that her A1c was 6.5. 9 to ADA guidelines, hemoglobin A1c <7.0% [less than 7.0%] represents Prior to seeing Dr. Geier, Plaintiff had (Id.). The lab report states: diabetic “According patients.” (Id.). 10 optimal 11 Furthermore, Dr. Geier’s handwritten record of the April 25, 2014 12 consult with Plaintiff, to which the ALJ cites, plainly states: 13 “Type II diabetes [with] good control.”20 14 the reference in the May 2, 2014 record to Plaintiff’s A1c being 15 in the 6’s appears to indicate that her diabetes was in good 16 control, not uncontrolled.21 17 \\ 18 \\ control in non-pregnant (AR 1085). Accordingly, 19 An A1c test “shows how well [a diabetic patient’s] blood sugar levels have been controlled over a three-month period.” (See http://c.merriam-webster.com/medlineplus/A1c). 19 20 21 22 23 24 25 26 27 28 The symbol Dr. Geier used in this record, a “c” with a line over it, stands for “with.” (AR 1085; see also http://www.newhealthadvisor.com/C-with-a-Line-over-It.html (“ ‘c’ with a line over it is synonymous to ‘with.’”)). 20 21 The Court acknowledges that the ICD-9 code used to describe Plaintiff’s diabetes in the list of “active problems” in the May 2, 2014 medical record was 250.02, which is used for “diabetes type II, uncontrolled.” (AR 1076). However, as explained in this section, the record evidence shows that Plaintiff’s control of her diabetes between December 2013 and May 2014 was “good.” 38 1 Additionally, the fact that Plaintiff was no longer taking 2 insulin did not necessarily mean that she was not following her 3 providers’ recommendations. 4 2013, indicated that Plaintiff’s diabetes was being treated with 5 oral medications and “insulin therapy,” with good control. 6 1087). 7 diabetes “therapy was adjusted to Actos 30mg, Nesina 25mg, and 8 Glumetza 1000mg.” 9 Plaintiff’s treatment was “adjusted” did not include insulin. 10 Furthermore, Dr. Geier’s notes for the April 25, 2014 consult state 11 “continue oral therapy.” 12 Plaintiff was not taking insulin any longer in May 2014 because it 13 was no longer part of her diabetic therapy. 14 the May 2, 2014 record cited by the ALJ indicates that the purpose 15 of the visit was to discuss Plaintiff’s medications, insulin is 16 not included in the list Plaintiff’s current medications and was 17 not prescribed. However, that same (Id.). Dr. Geier’s record for December 14, record indicates that (AR Plaintiff’s The list of medications to which (AR 1085). It therefore appears that Notably, even though (AR 1077). 18 19 An invalid reason cited in support of an adverse credibility 20 finding does not require remand if the ALJ’s reliance on that 21 reason was harmless error. 22 Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (citing Batson v. 23 Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195–97 (9th Cir. 2004) 24 (applying harmless error standard where one of the ALJ’s several 25 reasons 26 invalid)). 27 \\ 28 \\ supporting an See Carmickle v. Comm’r, Soc. Sec. adverse credibility As the Ninth Circuit has explained, 39 finding was held 1 [R]eviewing the ALJ’s credibility determination where 2 the ALJ provides specific reasons supporting such is a 3 substantive 4 “substantial evidence supporting the ALJ’s conclusions 5 on . . . credibility” and the error “does not negate the 6 validity 7 conclusion,” 8 warrant reversal. 9 [Stout v. Comm’r of Soc. Sec. Admin., 454 F.3d 1050, 10 1055 (9th Cir. 2006)] (defining harmless error as such 11 error 12 nondisability determination”). analysis. of that the such is So ALJ's is long as ultimate deemed harmless there remains [credibility] and does not [Batson, 359 F.3d at 1197]; see also “inconsequential to the ultimate 13 14 Carmickle, 533 F.3d at 1162. “[T]he relevant inquiry in this 15 context is not whether the ALJ would have made a different decision 16 absent any error, it is whether the ALJ’s decision remains legally 17 valid, despite such error.” Id. (internal citation omitted). 18 19 Here, the specific example chosen by the ALJ in support of 20 the contention that Plaintiff was noncompliant appears to have been 21 based on an erroneous reading of the record. 22 not Plaintiff was compliant with her providers’ recommendations is 23 not essential to the ALJ’s ultimate determination that Plaintiff’s 24 claims of debilitating pain were not entirely credible. 25 other reasons, amply supported by evidence in the record, support 26 the ALJ’s conclusion. 27 reading of the May 2, 2014 record was erroneous, the error was 28 harmless. However, whether or The ALJ’s Accordingly, to the extent that the ALJ’s 40 1 In sum, the ALJ offered clear and convincing reasons, 2 supported by substantial evidence in the record, for her adverse 3 credibility findings. 4 supports the ALJ’s assessment of Plaintiff’s credibility, no remand 5 is required. Accordingly, because substantial evidence 6 7 VIII. 8 CONCLUSION 9 10 Consistent with the foregoing, IT IS ORDERED that Judgment be 11 entered AFFIRMING the decision of the Commissioner. 12 the Court shall serve copies of this Order and the Judgment on 13 counsel for both parties. The Clerk of 14 15 DATED: June 14, 2017 16 /S/ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 17 18 19 THIS DECISION IS NOT INTENDED FOR PUBLICATION IN WESTLAW, LEXIS OR ANY OTHER LEGAL DATABASE. 20 21 22 23 24 25 26 27 28 41