(SS) Lambert v. Commissioner of Social Security, No. 1:2009cv00186 - Document 19 (E.D. Cal. 2010)
Court Description: DECISION and ORDER DENYING Plaintiff's Social Security Complaint 1 ; ORDER DIRECTING the Entry of Judgment for Defendant Michael J. Astrue, Commissioner of Social Security, and Against Plaintiff Sheila Lambert, signed by Magistrate Judge Sandra M. Snyder on 4/1/10. (CASE CLOSED)(Hellings, J)
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 SHEILA LAMBERT, 10 Plaintiff, 11 v. 12 MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL 13 SECURITY, 14 15 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) 1:09-cv-00186-SMS DECISION AND ORDER DENYING PLAINTIFF S SOCIAL SECURITY COMPLAINT (DOC. 1) ORDER DIRECTING THE ENTRY OF JUDGMENT FOR DEFENDANT MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, AND AGAINST PLAINTIFF SHEILA LAMBERT 16 Plaintiff is proceeding with counsel with an action seeking 17 judicial review of a final decision of the Commissioner of Social 18 Security (Commissioner) denying Plaintiff s application of March 19 23, 2004, made pursuant to Titles II and XVI of the Social 20 Security Act, for disability insurance benefits (DIB) and 21 supplemental security income (SSI), in which she alleged that she 22 had been disabled since November 10, 2002, due to degenerative 23 disc disease and carpal tunnel syndrome with associated back and 24 leg pain, weakness and numbness in the legs, inability to stand 25 more than thirty minutes at a time, inability to sit or lie for 26 prolonged periods, and need to use a cane to walk. (A.R. 189-92, 27 661-64, 208.) The parties have consented to the jurisdiction of 28 1 1 the United States Magistrate Judge pursuant to 28 U.S.C. § 2 636(c)(1), manifesting their consent in writings signed by the 3 parties authorized representatives and filed on behalf of 4 Plaintiff on January 29, 2009, and on behalf of Defendant on 5 March 2, 2009. Thus, the matter is assigned to the Magistrate 6 Judge to conduct all further proceedings in this case, including 7 entry of final judgment. 8 The decision under review is that of Social Security 9 Administration (SSA) Administrative Law Judge (ALJ) Patricia 10 Leary Flierl, dated September 4, 2008 (A.R. 16-24)1, and rendered 11 after a hearing held on June 27, 2008, at which Plaintiff 12 appeared and testified with the assistance of an attorney (A.R. 13 16, 64-97). Plaintiff s husband and a vocational expert also 14 testified. (A.R. 16.) 15 The Appeals Council denied Plaintiff s request for review of 16 the ALJ s 2008 decision on December 18, 2008 (A.R. 8-10), and 17 thereafter Plaintiff filed the complaint in this Court on January 18 29, 2009. Appellant s opening brief was filed on August 6, 2009, 19 and Defendant s motion for summary judgment was filed on August 20 31, 2009. Plaintiff s reply was timely filed on September 22, 21 2009, after the refiling of Defendant s responsive brief. The 22 matter has been submitted without oral argument to the Magistrate 23 Judge. 24 25 26 27 28 1 The ALJ had previously held a hearing and issued a decision dated February 21, 2007, on Plaintiff s applications. (A.R. 114-25.) On October 13, 2007, the Appeals Council granted Plaintiff s request for review of the ALJ s decision, vacated the decision, and remanded the case to an ALJ to obtain further evidence and to consider and resolve issues concerning, and make appropriate findings regarding, the opinion of Plaintiff s treating physician, Dinesh Sharma, M.D., regarding Plaintiff s residual functional capacity, and the weighing of the testimony of Plaintiff s husband. (A.R. 127-28.) 2 1 I. Jurisdiction 2 This Court has subject matter jurisdiction pursuant to 42 3 U.S.C. §§ 1383(c)(3) and 405(g), which provide that an applicant 4 suffering an adverse final determination of the Commissioner of 5 Social Security with respect to disability or SSI benefits after 6 a hearing may obtain judicial review by initiating a civil action 7 in the district court within sixty days of the mailing of the 8 notice of decision. Plaintiff timely filed her complaint on 9 January 29, 2009, less than sixty days after the mailing of 10 denial of review by the Appeals Council on December 18, 2008. 11 II. Standard and Scope of Review 12 Congress has provided a limited scope of judicial review of 13 the Commissioner's decision to deny benefits under the Act. In 14 reviewing findings of fact with respect to such determinations, 15 the Court must determine whether the decision of the Commissioner 16 is supported by substantial evidence. 42 U.S.C. § 405(g). 17 Substantial evidence means "more than a mere scintilla," 18 Richardson v. Perales, 402 U.S. 389, 402 (1971), but less than a 19 preponderance, Sorenson v. Weinberger, 514 F.2d 1112, 1119, n. 10 20 (9th Cir. 1975). It is "such relevant evidence as a reasonable 21 mind might accept as adequate to support a conclusion." 22 Richardson, 402 U.S. at 401. The Court must consider the record 23 as a whole, weighing both the evidence that supports and the 24 evidence that detracts from the Commissioner's conclusion; it may 25 not simply isolate a portion of evidence that supports the 26 decision. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 27 2006); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 28 It is immaterial that the evidence would support a finding 3 1 contrary to that reached by the Commissioner; the determination 2 of the Commissioner as to a factual matter will stand if 3 supported by substantial evidence because it is the 4 Commissioner s job, and not the Court s, to resolve conflicts in 5 the evidence. Sorenson v. Weinberger, 514 F.2d 1112, 1119 (9th 6 Cir. 1975). 7 In weighing the evidence and making findings, the 8 Commissioner must apply the proper legal standards. Burkhart v. 9 Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must 10 review the whole record and uphold the Commissioner's 11 determination that the claimant is not disabled if the 12 Commissioner applied the proper legal standards, and if the 13 Commissioner's findings are supported by substantial evidence. 14 See, Sanchez v. Secretary of Health and Human Services, 812 F.2d 15 509, 510 (9th Cir. 1987); Jones v. Heckler, 760 F.2d at 995. If 16 the Court concludes that the ALJ did not use the proper legal 17 standard, the matter will be remanded to permit application of 18 the appropriate standard. Cooper v. Bowen, 885 F.2d 557, 561 (9th 19 Cir. 1987). 20 21 22 III. Disability A. Legal Standards In order to qualify for benefits, a claimant must establish 23 that she is unable to engage in substantial gainful activity due 24 to a medically determinable physical or mental impairment which 25 has lasted or can be expected to last for a continuous period of 26 not less than twelve months. 42 U.S.C. §§ 416(i), 1382c(a)(3)(A). 27 A claimant must demonstrate a physical or mental impairment of 28 such severity that the claimant is not only unable to do the 4 1 claimant s previous work, but cannot, considering age, education, 2 and work experience, engage in any other kind of substantial 3 gainful work which exists in the national economy. 42 U.S.C. 4 1382c(a)(3)(B); Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th 5 Cir. 1989). The burden of establishing a disability is initially 6 on the claimant, who must prove that the claimant is unable to 7 return to his or her former type of work; the burden then shifts 8 to the Commissioner to identify other jobs that the claimant is 9 capable of performing considering the claimant's residual 10 functional capacity, as well as her age, education and last 11 fifteen years of work experience. Terry v. Sullivan, 903 F.2d 12 1273, 1275 (9th Cir. 1990). 13 The regulations provide that the ALJ must make specific 14 sequential determinations in the process of evaluating a 15 disability: 1) whether the applicant engaged in substantial 16 gainful activity since the alleged date of the onset of the 17 impairment, 20 C.F.R. § 404.1520;2 2) whether solely on the basis 18 of the medical evidence the claimed impairment is severe, that 19 is, of a magnitude sufficient to limit significantly the 20 individual s physical or mental ability to do basic work 21 activities, 20 C.F.R. § 404.1520(c); 3) whether solely on the 22 basis of medical evidence the impairment equals or exceeds in 23 severity certain impairments described in Appendix I of the 24 regulations, 20 C.F.R. § 404.1520(d); 4) whether the applicant 25 has sufficient residual functional capacity, defined as what an 26 individual can still do despite limitations, to perform the 27 28 2 All references are to the 2008 version of the Code of Federal Regulations unless otherwise noted. 5 1 applicant s past work, 20 C.F.R. §§ 404.1520(e), 404.1545(a); and 2 5) whether on the basis of the applicant s age, education, work 3 experience, and residual functional capacity, the applicant can 4 perform any other gainful and substantial work within the 5 economy, 20 C.F.R. § 404.1520(f). 6 With respect to SSI, the five-step evaluation process is 7 essentially the same. See 20 C.F.R. § 416.920. 8 9 B. The ALJ s Findings The ALJ found that Plaintiff met the insured status 10 requirements of the Act through December 31, 2007, but not 11 thereafter. Plaintiff had severe impairments of borderline carpal 12 tunnel syndrome, degenerative disc disease of the cervical spine, 13 and mild degenerative disc disease of the lumbar spine most 14 prominent at L4/5 and L5/S1, but Plaintiff had no impairment or 15 combination thereof that met or medically equaled a listed 16 impairment. (A.R. 19.) Plaintiff retained the residual functional 17 capacity (RFC) to lift and carry ten pounds occasionally, stand 18 and/or walk two hours, stoop occasionally, with no kneeling, 19 crouching, crawling, pushing, pulling, reaching at or above 20 shoulder level, or exposure to pulmonary irritants. (A.R. 19.) 21 Plaintiff could not perform her past relevant work, but 22 Plaintiff, who was thirty-eight years old on the alleged date of 23 onset of disability, could perform other jobs that existed in 24 significant numbers in the national economy, such as ticket 25 counter, order clerk, and receptionist. (A.R. 22-23.) 26 Accordingly, Plaintiff was not disabled at any time from November 27 10, 2002, through September 4, 2008, the date of decision. (A.R. 28 23-24.) 6 1 2 C. Plaintiff s Contentions Plaintiff argues that with respect to her residual 3 functional capacity, the ALJ failed to 1) state clear and 4 convincing reasons, supported by substantial evidence, for 5 negative findings concerning Plaintiff s credibility; 2) state 6 legally sufficient reasons concerning Plaintiff s husband s 7 testimony, and 3) state legally sufficient reasons, supported by 8 substantial evidence in the record, for rejecting the opinion of 9 Plaintiff s treating physician, Dinesh Sharma, M.D. 10 IV. Plaintiff s Testimony 11 Plaintiff, who was born in 1965 and was forty-three years 12 old at the time of the hearing, testified that she had pain in 13 her neck, shoulder, back, arms, wrists, legs, and knees. (A.R. 14 71.) Her back and legs had been about the same in the past couple 15 of years, but her neck had been progressively worsening; it 16 caused migraine headaches, which in turn made it difficult for 17 Plaintiff to concentrate, and it resulted in a cold, numb feeling 18 in the jaws and ears. (A.R. 87-88.) Plaintiff testified that she 19 had mild carpal tunnel in both wrists, although Dr. Sharma had 20 told her that the jerkiness and pain in her hands was due to her 21 neck condition. (A.R. 89.) 22 Monthly injections in the neck helped loosen the muscles and 23 increase mobility. (A.R. 71-72.) Dr. Sharma had also recommended 24 a traction unit for Plaintiff s neck for use at home, and she was 25 awaiting approval through worker s compensation. (A.R. 72.) She 26 used the TENS unit, which helped, four days a week for most of 27 the day, and even slept with it on really low. She would have 28 used it more, but it irritated her skin. (A.R. 73.) For two years 7 1 she had taken Darvocet and Naproxen for pain and inflammation, 2 Ambien for sleep, and three to six Soma daily to relax her 3 muscles. The medications helped but caused chronic constipation, 4 and the Soma made her loopy to the point that she did not feel 5 competent to drive. She experienced soreness after the 6 injections. (A.R. 74-75, 84, 86.) She used a cane three to four 7 days a week when she left her small house and believed that she 8 should use it more often for stability, but she was tired of 9 dragging it around. (A.R. 76.) She sometimes used a shopping cart 10 as a walker and also used motorized carts to shop, but she tried 11 to follow her doctor s advice to walk as much as possible. (A.R. 12 76-77.) She sometimes took her son to help her with shopping. 13 (A.R. 78.) 14 Plaintiff awoke early, fixed lunch and coffee for her 15 husband, and drove several times a week (A.R. 85-86.) 16 Plaintiff could lift and briefly carry about ten pounds, 17 stand a maximum of two hours but on an average for thirty minutes 18 if she was able to move around, sit for about two hours maximum, 19 and walk less than a block. She could not lift ten pounds for two 20 to three hours of an eight-hour day. (A.R. 89.) She would take 21 four to five rest breaks lasting fifteen minutes to half a day in 22 an eight-hour day; she had four to five really bad days a month. 23 She sometimes had trouble writing for prolonged periods and 24 grasping small things because her thumb would lock up. She could 25 use a keyboard for thirty or forty-five minutes until her wrist 26 tired to the point of weakness and quivering; she had no typing 27 skills. (A.R. 80-84.) 28 For a month and one-half, Plaintiff had been temporarily 8 1 baby sitting her grandchildren with the help of her son, with 2 whom she shared the money she made. (A.R. 78.) 3 Plaintiff testified that Dr. Sharma had said he would put 4 in for surgery for Plaintiff s neck when she was ready, but 5 Plaintiff was scared by the uncertainty of what would happen to 6 her. (A.R. 86.) 7 V. Testimony of Plaintiff s Husband 8 Steven Lambert, Plaintiff s husband of twenty-seven years, 9 testified that he could tell when Plaintiff was in pain because 10 she complained, cried, and was unable to do normal, routine, 11 household things such as cook without complaining of pain; he 12 confirmed that grasping things was a problem sometimes. She could 13 not sit for prolonged periods without pain and needing to move 14 around. She used the cane sixty to seventy percent of the time, 15 and monthly she had at least three to four bad days on which she 16 was unable to do anything. (A.R. 90-94.) 17 18 VI. Medical Evidence 19 On December 28, 2000, David Tenn, M.D., of the Valley 20 Industrial Medical Group examined Plaintiff for a work injury she 21 sustained on November 24, 2000, when she had been using a floor 22 scrubber machine seven hours a day on a regular basis and began 23 to experience bilateral shoulder pain with radiation into both 24 forearms. (A.R. 334-35, 340.) There was mild diffuse tenderness 25 of the trapezius bilaterally without appreciable spasm, and mild 26 tenderness over the thenar area of the right thumb. The 27 assessment was improved overuse myalgias of the upper extremities 28 and upper back and neck, improved with conservative treatment, 9 1 including physical therapy; residual complaints did not require 2 any extensive work-up. Plaintiff was to complete physical therapy 3 and was released to regular work on a trial basis because she had 4 been moved to a position folding clothes on the night shift. Id. 5 In January 2001, Plaintiff visited Dr. Pradeep K. Kamboj, 6 M.D., concerning her worker s compensation injury in her hands 7 and shoulders due to use of a floor scrubber at work. Examination 8 showed tenderness of the palmer aspect of the right thumb 9 overlying the metacarpal phalangeal area as well as myofascial 10 stiffness of the trapezius bilaterally. The asssessment was 11 trigger thumb, right side, to be treated with a brace and Vioxx. 12 (A.R. 409.) Several weeks later Dr. Kamboj assessed myofascial 13 neck pain based on a finding of stiffness of the trapezius 14 bilaterally, with the remainder of the exam being unremarkable. 15 Plaintiff was gradually improving. (A.R. 408.) In April 2001, 16 Plaintiff reported she was felling a little better. (A.R. 407.) 17 Dr. Dinesh Sharma, M.D., a treating specialist in physical 18 medicine and rehabilitation, saw Plaintiff on April 17, 2001, for 19 her upper extremity pain. Paraspinal and trapezius muscles were 20 mildly to moderately tender, neck mobility was sixty percent of 21 normal, Spurling s maneuver was mildly positive on turning to the 22 right and into the right shoulder as well as in turning to the 23 left on extension. Both shoulder girdles had good mobility with 24 some tenderness in the parascapular region. Plaintiff had mild 25 tenderness along the lateral aspect of the elbows and on the left 26 wrist dorsum, mildly positive Phalen s sign on the right, and 27 slight weakness of the right hand. Dr. Sharma diagnosed cervical 28 radiculitis, bilateral, left greater than right, and overuse 10 1 syndrome of the upper extremities bilaterally, to be explored 2 with tests and to be treated with medication (Vioxx and 3 Zanaflex). (A.R. 471.) 4 Dr. Sharma opined that nerve conduction studies of the right 5 arm performed on May 9, 2001, were mildly abnormal and appeared 6 to reflect evidence of borderline compression of the median 7 sensory fibers, which suggested borderline carpal tunnel syndrome 8 (CTS). (A.R. 472.) Electromyographic examination of the muscles 9 undertaken the same day was normal. (A.R. 473.) Dr. Sharma opined 10 that a nerve conduction study and an electromyographic 11 examination of the left arm performed on May 16, 2001, were 12 normal. (A.R. 467.) An x-ray and CT scan of the cervical spine 13 reflected a benign-appearing lesion of uncertain etiology in the 14 C7 vertebral body, hypolordosis that was possibly secondary to 15 positioning and/or muscle spasm, and degenerative disc disease 16 with osteophytes from the C5 to C7 levels and a slight narrowing 17 of the C6/C7 disc space without gross evidence of large, 18 posterior disc protrusions or significant narrowing of the neural 19 canals. (A.R. 464.) Dr. Mario Deguchi, a radiologist, opined that 20 a MRI study of the cervical spine performed on May 9, 2001, 21 reflected reversal of the cervical curvature, also possibly due 22 to positioning or muscle spasm; mild degenerative disc disease 23 with a small anterior disc protrusion at C6/C7; a bone lesion of 24 uncertain etiology involving the C7 vertebral body; and a 25 posterocentral disc protrusion measuring approximately three 26 millimeters at C5/C6. (A.R. 474-75.) 27 Dr. Deguchi opined that an x-ray and CT scan of the 28 cervical spine taken in June 2001 demonstrated the same 11 1 impressions as the MRI study from May 9, 2001. Dr. Deguchi stated 2 there was only a slight narrowing of the C6/C7 intervertebral 3 disc space and no evidence of large posterior disc protrusions or 4 significant narrowing of the neural canals. The posterocentral 5 disc protrusion at C5/C6 measured about three millimeters. (A.R. 6 391-93.) 7 In October 2001, at Dr. Sharma s request, neurosurgeon Sana 8 U. Bhatti, M.D., examined Plaintiff concerning her upper body 9 pain, which Plaintiff reported continued but was under better 10 control with Ultram, Vioxx, and physical therapy. Plaintiff 11 denied numbness, paresthesis, or difficulty with gait; she 12 reported that she had been diagnosed with CTS, and she continued 13 working with an assignment which did not require significant 14 manual work. On examination, neck and back were non-tender to 15 palpation and percussion, extremities were unremarkable, motor 16 strength was 5/5 throughout, and sensation was intact. The 17 impression was cervical sprain; Dr. Bhatti found no evidence of 18 radiculopathy or myelopathy by history or exam; no operative 19 intervention was indicated. The lesion at C7 was a Schmorl s node 20 and did not require any further followup. (A.R. 460.) 21 In November 2001, an x-ray of the lumbar spine was negative 22 for a fracture or destructive process; vertebral body heights and 23 disc spaces were maintained. (A.R. 390.) Plaintiff complained to 24 Dr. Kamboj about chest pain and tightness; an EKG was 25 unremarkable. Dr. Kamboj gave Plaintiff Ibuprofen and ordered 26 Plaintiff s Xanax refilled for Plaintiff s complaint of anxiety. 27 (A.R. 406.) 28 Dr. Sharma prescribed a TENS unit on March 12, 2002. (A.R. 12 1 499.) Dr. Kamboj prescribed Bextra and Ultracet for back pain and 2 neck stiffness on May 7, 2002. (A.R. 406.) 3 Plaintiff suffered another work injury on May 27, 2002, when 4 she caught a twenty-five-pound rack of falling purses. As to that 5 injury only, on June 4, 2002, she was considered permanent and 6 stationary, and Dr. Yale opined that she was able to resume 7 regular duty work status with no residual deficits, limitations, 8 disability, or need for any further medical followup. (A.R. 3319 33.) 10 In June 2002, Dr. Sharma noted that Plaintiff was improving 11 with medications and physical therapy. (A.R. 449.) In July 2002, 12 he diagnosed her with CTS. (A.R. 447.) In August 2002, when 13 Plaintiff complained of increasing numbness, nerve conduction 14 studies of the right arm were repeated, and Dr. Sharma concluded 15 that no significant changes were noted; continued anti16 inflammatory medication and bracing were recommended. (A.R. 445.) 17 On November 6, 2002, Dr. Sharma directed Plaintiff to refrain 18 from forceful pulling with her hands at work. (A.R. 442.) 19 Plaintiff suffered another work injury on November 10, 2002, 20 involving pain in the lower back and shooting from the buttocks 21 down both legs due to bending. She was examined at the emergency 22 room (ER) by Douglas Malcolm, M.D., who assessed bilateral 23 paresthesias in the lower legs, low back pain, cervical disc 24 disease, bilateral CTS, and asthma. The physical exam revealed no 25 specific tenderness over the thoracic or lumbar spine, no 26 paraspinous muscle spasm, no sacroiliac or sciatic notch 27 tenderness, normal straight leg raising, deep tendon reflexes 2+ 28 throughout, intact sensation to light touch, full range of motion 13 1 of the back, and normal gait. No tests were run on Plaintiff s 2 nerves; Plaintiff had reported that she had bilateral carpal 3 tunnel syndrome, and she wore bilateral CTS splints. (A.R. 3884 89.) 5 On November 13, 2002, Dr. Sharma noted that the wrist braces 6 were being used and were working; Plaintiff had no new 7 complaints. The diagnosis was cervical radiculitis, overuse 8 syndrome, and lumbar spine flare-up; Plaintiff continued to work 9 with light duty. (A.R. 441.) 10 On November 22, 2002, Dr. Yale reported that Plaintiff 11 appeared with a TENS unit about her cervical region, wrist 12 splints, and an aluminum walker that she had obtained from a 13 deceased relative. Dr. Yale found normal and mild findings on 14 examination, but Plaintiff sought complete disability. He 15 reported that she had an extreme somatization personality, and 16 he placed her on modified duty work status from November 19, 17 2002, through November 25, 2002, restricting her to light work, 18 limited standing and walking, and prohibiting any climbing of 19 stairs or ladders, lifting over five pounds, or repetitive 20 bending. He also prescribed physical therapy, and he planned to 21 follow up with consideration of psychological evaluation for 22 somatization disorder. (A.R. 325-30.) In December 2002, Dr. 23 Sharma noted that Plaintiff was to be off work one month and was 24 to see a neurologist. (A.R. 437.) 25 Alan M. Birnbaum, M.D. a psychiatrist and neurologist, 26 performed a neurological consultation and examined Plaintiff on 27 January 30, 2003, concerning pain in the back and legs from the 28 work injury of November 10, 2002. (A.R. 345-61.) Dr. Birnbaum did 14 1 not have records of previous studies. Plaintiff reported that she 2 then took only Darvocet and Ibuprofen for what an MRI study had 3 shown were two herniated discs in her neck. She also stated that 4 nerve testing by Dr. Sharma showed carpal tunnel, with the 5 results of a second round of electro-diagnostic testing being 6 worse than the first round such that Plaintiff expected she would 7 have surgery for her CTS. (A.R. 349.) Physical therapy and 8 injections for the upper body had not helped. (A.R. 348.) 9 Dr. Birnbaum described Plaintiff as moderately dramatic, 10 (A.R. 352.) He concluded that with respect to her axial11 mechanical lower back pain, the symptomatology was atypical and 12 not suggestive of lumbosacral radiculopathy. No intrinsically 13 serious disorder was demonstrated, and although the onset of 14 symptoms as described by Plaintiff was dramatic and would be 15 anticipated to reflect a rather massive central disc herniation, 16 the actual physical exam failed to confirm findings that might 17 support such a conclusion. With respect to her history of CTS, 18 the symptomatology was again somewhat atypical and was being 19 treated with splints and not surgery. With respect to her 20 cervical disc disease, the current examination did not 21 demonstrate focal cervical radiculopathy or myelopathy. Because 22 of the extended course of treatment without resolution of 23 symptoms and the previous negative neurosurgical consultation, 24 Dr. Birnbaum had similar reservations regarding the intrinsic 25 seriousness of Plaintiff s condition of the upper body. (A.R. 26 356-58.) He recommended a MRI study of the lumbosacral spine 27 despite the fact that his expectation of any medically 28 significant, positive result was quite limited. Further, because 15 1 of Plaintiff s failure to respond to the long course of care for 2 her cervical disorder, Dr. Birnbaum found it unlikely that 3 Plaintiff would respond to virtually any form of intervention for 4 her lower back complaints. (A.R. 358.) If the MRI were to show 5 nothing but age-related changes, then he would have no basis to 6 conclude that Plaintiff sustained any medically significant 7 industrial injury on November 10, 2002. As to the claim of 8 November 24, 2000, Plaintiff appeared to be permanent and 9 stationary as of January 30, 2003. (A.R. 358.) 10 Radiologist Paul M. Loeffler, M.D., opined that an MRI study 11 of the lumbar spine performed for Dr. Birnbaum on January 28, 12 2003, revealed mild intervertebral disc degenerative changes at 13 L4-5 without evidence of spinal canal stenosis or additional, 14 significant abnormality to account for the patient s clinical 15 presentation. (A.R. 547.) Upon receipt of medical records, Dr. 16 Birnbaum stated in an addendum that findings on examination after 17 Plaintiff s onset of back symptoms were normal and identified no 18 neurological dysfunction. He also noted Dr. Yale s note of 19 November 27, 2002, in which he had reported that Plaintiff had a 20 collapsible walker with her, although she used it minimally and 21 was observed putting it in her car and entering the driver s seat 22 in a normal fashion; further, Dr. Yale concluded that Plaintiff 23 could pursue regular work. (A.R. 360-61.) 24 On January 8, 2003, after Plaintiff s evaluation by Dr. 25 Birnbaum, Dr. Sharma continued to diagnose Plaintiff with lumbar 26 spine strain and cervical spine radiculitis and to treat her with 27 medications (Ativan, Ambien, Soma, and Bextra). (A.R. 436, 430.) 28 In February and May 2003, Dr. Sharma ordered Plaintiff off work 16 1 for a month. (A.R. 435, 429.) Plaintiff s medications included 2 Tylenol with Codeine as of May 2003. (A.R. 430.) In July 2003, 3 Plaintiff reported that therapy was having good results. (A.R. 4 427.) In later 2003 and early 2004, Dr. Sharma continued with 5 treatment consisting of therapy and Bextra, Motrin, Darvocet, and 6 Soma. (A.R. 422-26.) 7 On February 23, 2004, James L. Strait, M.D., an orthopedic 8 surgeon, performed an agreed medical examination concerning 9 Plaintiff s neck, upper extremities, low back, and lower 10 extremities. (A.R. 365-77.) Plaintiff reported her history of 11 upper body pain with gradual onset in November 2000 resulting in 12 modified work and treatment, the lower back injury caused by the 13 purse rack in May 2002 which resolved gradually after two months 14 off work, and the sudden onset of severe low back and leg pain 15 after a lot of bending in November 2002. Plaintiff reported doing 16 light housework and cooking, driving short distances, and 17 shopping with a motorized cart. Dr. Strait assessed only 18 Plaintiff s upper body condition because he believed that a MRI 19 study of the lower spine was needed. The exam of the neck showed 20 normal spinal alignment, no muscle spasm or atrophy, generalized 21 tenderness in the neck and upper back, and eighty per cent of the 22 normal range of motion with pain on the extremes. The exam of the 23 upper extremities showed full, painless range of motion of both 24 shoulder joints, no atrophy of the arms or forearms by 25 measurement, no intrinsic muscle atrophy in either hand, normal 26 reflexes, negative Tinel s and Phalen s signs, normal sensory 27 exam, and normal grip strength and sensory exam. Exam of the 28 upper back showed tenderness over the thoracic spine and 17 1 paraspinous muscles, no muscle spasm or atrophy, and full range 2 of motion of the thoracic spine without pain. Examination of the 3 lower back showed normal spinal alignment; tenderness in the 4 lumbosacral region and sciatic notches; an absence of paraspinous 5 muscle tenderness, spasm, or atrophy; and eighty per cent of 6 normal range of motion with pain on the extremes. Examination of 7 the lower extremities showed negative bilateral straight leg 8 raising in seated and supine position, no calf or thigh atrophy, 9 full range of motion of both hips without pain, and normal deep 10 tendon reflexes, sensory and vascular exam, strength, and 11 reflexes. 12 Dr. Strait s impression was discogenic neck and upper 13 extremity pain, and probably discogenic low back pain; Plaintiff 14 was permanent and stationary and should have conservative 15 treatment with medications, including Ambien and Lorazepam. He 16 concluded that Plaintiff had degenerative cervical disc disease 17 with no evidence of disc herniation, radiculopathy, or peripheral 18 neuropathy. Plaintiff was precluded from heavy lifting and 19 repetitive overhead work due to her neck and upper extremities. 20 (A.R. 365-77.) 21 Jason Cord, M.D., opined that an MRI study of the 22 lumbosacral spine taken on April 13, 2004, showed relatively mild 23 degenerative disc disease most pronounced at the L4/5 and L5/S1 24 levels. (A.R. 585.) Mel Okeon, M.D., opined that an MRI study of 25 the cervical spine taken on April 29, 2004, reflected at C5/6 26 most prominently, but also at C6/7 and C7/T1, the formation of a 27 minimal posterior bulge of the disc and osteophyte measuring one 28 to three millimeters but without a herniated fragment, spinal 18 1 stenosis, or encroachment into a neural foramen. The remaining 2 cervical disc levels were normal. (A.R. 415, 584.) 3 In June 2004, Dr. Sharma ordered EMG and NCV testing of the 4 lower extremities because Plaintiff complained of pain and 5 numbness. (A.R. 412.)The results were normal. (A.R. 541-42.) In 6 June, Plaintiff visited the ER because of chest pain, which was 7 found to be probably musculoskeletal; x-rays of the chest, 8 cardiac monitoring, an EKG, a CBC, a renal panel, and cardiac 9 enzyme tests were all relatively within normal limits. Plaintiff 10 was given a shot of Toradol IM and was discharged to follow up 11 with her private medical doctor. (A.R. 381-84, 570.) Afterwards, 12 Dr. Kamboj assessed the incident as involving chest pain, 13 myofascial with anxiety component, which he treated with 14 Ibuprofen, noting that at Dr. Sharma s order, Plaintiff was 15 already taking many other medications, including Ativan for 16 anxiety. (A.R. 397, 571.) 17 On June 16, 2004, Dr. Sharma found moderate tenderness of 18 the low back, L5-S1 paraspinals, sacroiliac joints, and sciatic 19 notches and mild tenderness along the iliac crest; slow and 20 antalgic gait; restricted range of motion; but otherwise normal 21 signs and findings, including good bulk, tone, and fair strength 22 in the lower extremities. He assessed lower back chronic pain 23 with strain, degenerative disc disease at L4-5, and depression 24 based on Plaintiff s tearfulness during the exam. He planned 25 treatment with Motrin and Soma, physical therapy, and injections; 26 Tylenol with codeine was discontinued. (A.R. 544-46.) 27 In July 2004, a nerve conduction study of the bilateral 28 upper extremities was performed by Dr. Sharma because Plaintiff 19 1 complained of pain and numbness in the hands. There was evidence 2 of mild CTS and mild to moderate tardy ulnar palsy, a result that 3 was a mild progression of the right side findings as compared 4 with the evaluation of May 2001. An electromyographic exam was 5 normal. (A.R. 537-38.) 6 In August 2004, state agency medical consultant Archimedes 7 Garcia, M.D., a psychiatrist, opined that Plaintiff s mental 8 impairment of anxiety was not severe. (A.R. 510-26.) 9 On February 1, 2005, consultative examiner Leslie H. 10 Lessenger, Ph.D., performed a psychological evaluation of 11 Plaintiff, who reported two herniated discs in her neck and back, 12 carpal tunnel in both hands, and constant pain that began in 13 November 2002 and caused her to stop work in November 2002. 14 Plaintiff was oriented and exhibited a cooperative attitude, 15 euthymic affect, average abstract reasoning and intellectual 16 functioning with ability to perform simple arithmetic and read 17 and write a simple sentence, intact memory, good judgment, 18 average insight, and adequate concentration for conversation, but 19 she recited four of seven digits in reverse and made errors on 20 serial seven s. She could spell world backwards without 21 difficulty. Her fund of knowledge was adequate. Dr. Lessenger 22 made no diagnosis on axes I and II, and a global assessment of 23 functioning (GAF) of seventy was assessed. The doctor concluded 24 that any vocational limitation suffered by Plaintiff was due to 25 physical problems, and not to any cognitive or emotional 26 impairment. Plaintiff could manage benefit payments on her own 27 behalf. (A.R. 548-50.) 28 In March 2005, state agency consultant Evangeline Murillo, 20 1 M.D., opined that based on the lack of any treatment and the 2 opinion of Dr. Lessenger, Plaintiff had no medically determinable 3 mental impairment. (A.R. 552-55.) In the same month state agency 4 medical consultant Ernest Wong, M.D., affirmed an earlier 5 assessment and opined that Plaintiff could lift fifty pounds 6 occasionally and twenty-five pounds frequently, sit and stand 7 and/or walk about six hours in an eight-hour workday, engage in 8 unlimited pushing and pulling, frequently climb, balance, stoop, 9 kneel, crouch, and crawl, and engage in only occasional overhead 10 reaching with bilateral upper extremities. (A.R. 556-63.) 11 In May 2005, Dr. Sharma diagnosed CTS on the right. (A.R. 12 579.) 13 In October 2005, Dr. Sharma reported that EMG nerve 14 conduction studies of the right and left upper extremities were 15 mildly abnormal, reflecting borderline carpal tunnel bilaterally, 16 mildly more on the right, and he recommended conservative 17 treatment. Electromyographic examination of both upper 18 extremities was normal. (A.R. 567-69.) 19 On July 26, 2006, Dr. Sharma completed a RESIDUAL 20 FUNCTIONAL CAPACITY QUESTIONNAIRE form based on his having seen 21 Plaintiff monthly for about two years and his diagnosis of 22 cervical and lumbar arthritis and low back pain with strain/MRI 23 and with evidence of degenerative disc disease at L4-5, which 24 could be expected to last at least twelve months. (A.R. 593-97.) 25 He characterized Plaintiff s pain as constant in the back and 26 neck and worsening with activities of lifting and bending. He 27 opined that the impairments were reasonably consistent with the 28 symptoms and functional limitations; Plaintiff was not a 21 1 malingerer, emotional factors did not contribute to the severity 2 of her symptoms and limitations, and no psychological conditions 3 affected her physical condition. The clinical findings, objective 4 signs, and test results showing the impairment were MRI results 5 showing degenerative disc disease of the cervical and lumbosacral 6 spine. Side-effects of medication included drowsiness; 7 Plaintiff s symptoms were likely to produce good and bad days, 8 with the bad days numbering more than four days a month. 9 Plaintiff could carry ten pounds occasionally and twenty and 10 fifty pounds rarely, and she could occasionally look down with 11 sustained flexion of the neck, turn the head right to left, look 12 up, hold the head in a static position, twist, stoop, crouch, and 13 climb ladders and stairs. Plaintiff could repetitively grasp, 14 turn, or twist objects and reach with the arms, including 15 overhead, only twenty-five per cent of the time. Symptoms were 16 severe enough to interfere frequently with Plaintiff s attention 17 and the concentration needed to perform even simple work tasks; 18 Plaintiff could maintain concentration for fifteen minutes at one 19 time and was capable of only low stress jobs because stress 20 increased her pain. Plaintiff could walk one block, sit and stand 21 fifteen minutes each at one time and less than two hours in an 22 eight-hour working day with a need to include periods of walking 23 around for five minutes every thirty minutes, and with a need to 24 shift positions at will from sitting, standing, or walking and to 25 take five-minute breaks each hour. Plaintiff was required to use 26 a cane while occasionally standing or walking. (A.R. 593-97.) 27 On September 29, 2006, after Plaintiff complained of knee 28 pain, studies of Plaintiff s knees showed minimal, hypertrophic 22 1 changes of the margins of the femoral condyles, tibial plateaus, 2 and patella consistent with mild, early degeneration. (A.R. 6473 48.) 4 On October 20, 2006, consulting examiner Juliane Tran, M.D., 5 a specialist in physical medicine, performed a comprehensive 6 neurologic evaluation of Plaintiff, who complained of pain of 67 7/10 and numbness which had been relieved by therapy in the past. 8 (A.R. 608-16.) She reported that a bone spur was pressing on the 9 nerve. She reported that she had been using a four-prong cane 10 prescribed in 2002. Her pain medication was Darvocet N100 and 11 Naproxen, and she used a TENS unit. She had not received physical 12 therapy for a year and one-half. Dr. Tran noted that despite the 13 nerve conduction study noted for borderline carpal tunnel 14 syndrome bilaterally, it appeared from the evaluation of the 15 nerve conduction study of the upper extremities that the median 16 motor sensory nerve bilaterally was within normal limits. (A.R. 17 608.) Plaintiff ambulated slowly on and off the table and around 18 the room without a cane; she was able to don and doff her shoes 19 and the right wrist brace. Straightaway gait showed an 20 exaggerated, antalgic gait; toe-heel and tandem walking was 21 fairly slowly done with painful behavior, and she did not use an 22 assistive device. Range of motion of the lumbar and cervical 23 regions was limited and sometimes painful. Straight leg raising, 24 Neher s, Tinel s, and Phalen s were negative. Tenderness to 25 palpation was found over the cervical spine, cervical facet 26 joint, occipital muscle in the upper trapezius and second 27 costochondral junction, epicondyles of both elbows, medial aspect 28 of the knees, bilateral trochanter areas, and bilateral gluteal 23 1 regions. There was pain in bilateral sciatic notches. Motor 2 strength was 5/5 throughout, sensory and reflex exams were 3 normal, and Babinski was negative. 4 Dr. Tran opined that Plaintiff s complaints and examination 5 showing tender points throughout the body with multiple 6 symmetrical sites consistent with fibromyalgia, along with 7 decreased cervical and lumbar range of motion, suggested 8 fibromyalgia; Dr. Tran could not rule out lumbar disc disease, 9 but despite Plaintiff s complaints of neck and back pain, there 10 was no evidence from the exam to suggest lumbar or cervical 11 radiculopathy. Dr. Tran stated: 12 Examination is noted for an exaggerated antalgic gait and painful behavior. 13 (A.R. 611.) The doctor concluded that Plaintiff could lift twenty 14 or twenty-five pounds occasionally and ten pounds frequently, 15 stand and walk no more than six hours a day with unrestricted 16 sitting, frequently climb, balance, kneel, crouch, crawl, and 17 stoop, and there were no other limitations. Plaintiff did not 18 need to use an assistive device to ambulate. (A.R. 610-12.) 19 In November 2006, Dr. Kamboj noted that Plaintiff was 20 experiencing numbness and discomfort on the left side of the 21 face. (A.R. 617.) 22 In January and October 2007, Plaintiff continued to have 23 headaches and pain in the neck, lower back, and extremities; her 24 greater occipital and bilateral sciatic regions were injected 25 with Dexamethasone and Lidocaine. Anti-inflammatory medications, 26 muscle relaxants, and anti-depressants were continued. (A.R. 620, 27 634, 642.) 28 24 1 On March 28, 2008, Dr. Sharma completed another RESIDUAL 2 FUNCTIONAL CAPACITY QUESTIONNAIRE form based on his diagnosis of 3 cervical and lumbosacral radiculitis and degenerative disc 4 disease shown on an MRI, which resulted in moderate to severe 5 pain in the back, leg, neck, and arm that was constant and could 6 be expected to last more than a year. (A.R. 654-58.) He stated 7 that Plaintiff s prognosis was fair to good. He opined that the 8 impairments were reasonably consistent with the symptoms and 9 functional limitations; Plaintiff was not a malingerer, emotional 10 factors did not contribute to the severity of her symptoms and 11 limitations, and no psychological conditions affected her 12 physical condition. Side-effects of medication included 13 drowsiness; Plaintiff s symptoms were likely to produce bad days 14 numbering more than four per month. Plaintiff could only rarely 15 carry up to ten pounds, look down with sustained flexion of the 16 neck, turn the head right to left, look up, hold the head in a 17 static position, twist, stoop, crouch, and climb ladders and 18 stairs. Plaintiff had no significant limitations in repetitive 19 reaching, handling, or fingering. Symptoms were severe enough to 20 interfere frequently with Plaintiff s attention and concentration 21 needed to perform even simple work tasks; Plaintiff could 22 maintain concentration and attention for ten minutes at one time 23 and was incapable of even low-stress jobs because of her neck and 24 back pain. Plaintiff could walk two blocks, sit and stand fifteen 25 minutes each at one time and less than two hours in an eight-hour 26 working day with a need to include periods of walking around for 27 five minutes every fifteen minutes, and with a need to shift 28 positions at will from sitting, standing, or walking and to take 25 1 ten-minute breaks each hour. Plaintiff was required to use a cane 2 while occasionally standing or walking. (A.R. 593-97.) 3 Progress notes of Dr. Sharma from May 2001 through January 4 2006 reflect that Plaintiff s subjective complaints were noted 5 over forty times to be Doing fair. (A.R. 469, 466, 461-62, 4496 56, 446, 436-43, 434, 430-33, 420-28, 417-18, 411, 533-35, 5287 31, 588, 580-83, 577-78, 575, 618, 621-28, 630-33, 635-39, 640, 8 641, 643.) 9 10 VII. Findings concerning Plaintiff s Credibility Plaintiff argues that the ALJ failed to state clear and 11 convincing reasons for finding that although Plaintiff s 12 medically determinable impairments reasonably could have been 13 expected to produce the alleged symptoms, Plaintiff s statements 14 concerning the intensity, persistence, and limiting effects of 15 the symptoms were not credible to the extent they were 16 inconsistent with the ALJ s RFC assessment. (A.R. 20.) 17 18 A. Legal Standards Under the case law of this circuit, without affirmative 19 evidence showing that the claimant is malingering, the 20 Commissioner's reasons for rejecting the claimant's testimony 21 must be clear and convincing. If an ALJ finds that a claimant's 22 testimony relating to the intensity of pain and other limitations 23 is unreliable, the ALJ must make a credibility determination 24 citing the reasons why the testimony is unpersuasive. The ALJ 25 must specifically identify what testimony is credible and what 26 testimony undermines the claimant's complaints. In this regard, 27 questions of credibility and resolutions of conflicts in the 28 testimony are functions solely of the Commissioner. Valentine v. 26 1 Astrue, 574 F.3d 685, 693 (9th Cir. 2009) (citing Morgan v. Comm'r 2 of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999)). 3 Factors that an ALJ may consider in weighing a claimant's 4 credibility include reputation for truthfulness, inconsistencies 5 in testimony or between testimony and conduct, daily activities, 6 and unexplained, or inadequately explained, failure to seek 7 treatment or follow a prescribed course of treatment. Orn v. 8 Astrue, 495 F.3d 625, 635 (9th Cir. 2007). Additional factors to 9 be considered in weighing credibility include the location, 10 duration, frequency, and intensity of the claimant s pain or 11 other symptoms; factors that precipitate and aggravate the 12 symptoms; the type, dosage, effectiveness, and side effects of 13 any medication the claimant takes or has taken to alleviate the 14 symptoms; treatment, other than medication, the person receives 15 or has received for relief of the symptoms; any measures other 16 than treatment the claimant uses or has used to relieve the 17 symptoms; and any other factors concerning the claimant s 18 functional limitations and restrictions due to pain or other 19 symptoms. 20 C.F.R. §§ 404.1529, 416.929; S.S.R. 96-7p. 20 21 B. Analysis Here, the ALJ summarized Plaintiff s testimony concerning 22 her neck, back, shoulder, arm, wrist, and leg pain; her treatment 23 and appliances, consisting of monthly injections, the TENS unit, 24 the cane three to four days a week, the motorized carts for 25 shopping, and the anticipated traction apparatus for her neck; 26 her ability to sit for two hours at a time and stand for only 27 twenty to thirty minutes but not walk even a block; her 28 difficulty with a manual toothbrush and limited ability to use a 27 1 keyboard; and her daily activities of fixing lunch for her 2 husband and driving around town. (A.R. 20.) 3 The ALJ then cited multiple reasons for her findings. 4 The ALJ relied on the inconsistent medical evidence. (A.R. 5 20.) Although the inconsistency of objective findings with 6 subjective claims may not be the sole reason for rejecting 7 subjective complaints, Light v. Chater, 119 F.3d 789, 792 (9th 8 Cir. 1997), it is one factor which may be considered with others, 9 Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004); Morgan v. 10 Commissioner 169 F.3d 595, 600 (9th Cir. 1999); Burch v. Barnhart, 11 400 F.3d 676, 681 (9th Cir. 2005). 12 In this case, the ALJ referred to the findings of consulting 13 neurologist Dr. Julianne Tran, who in October 2006 reported that 14 although Plaintiff presented with significant complaints of neck 15 and back pain, there was no evidence upon examination to suggest 16 any cervical or lumbar radiculopathy. The ALJ noted that Dr. Tran 17 concluded that Plaintiff could lift twenty pounds occasionally 18 and ten pounds frequently and stand and walk for at least six 19 hours a day without restrictions on sitting or other postural or 20 non-exertional limitations. (A.R. 20.) The inconsistency of 21 medical opinions with a claimant s subjective complaints is 22 appropriately considered by an ALJ in rejecting a claimant s 23 credibility. Stubbs-Danielson, 539 F.3d 1169, 1175 (9th Cir. 24 2008). The ALJ s reasoning was clear and convincing. 25 Further, the ALJ noted that although Plaintiff had testified 26 that she could concentrate for only an hour at a time, consulting 27 psychological examiner Dr. Lessenger found that although 28 Plaintiff might suffer from chronic pain due to medical 28 1 conditions, she had no vocational limitations due to any 2 cognitive or emotional impairment, and she was assigned a global 3 assessment of functioning (GAF) of 70, indicating no more than 4 some mild symptoms. (A.R. 21.) 5 The ALJ reasoned that the medical record as a whole 6 supported the findings of both consultative examiners that 7 Plaintiff remained physically and mentally capable of sustained 8 work activities. (A.R. 21.) The ALJ noted that following her 9 worker s compensation claim for bilateral shoulder and upper 10 extremity pain, physical examination revealed full range of 11 motion and negative Phelan s and Tinel s tests despite the 12 claimant s complaints. (A.R. 21.) The agreed medical examiner in 13 the original worker s compensation proceeding found that 14 Plaintiff was permanent and stationary with discogenic neck and 15 upper extremity pain despite the lack of any new diagnostic 16 studies and only minimal changes in previously existing studies; 17 he concluded that Plaintiff was precluded from heavy lifting and 18 repetitive overhead work, but he noted the MRI study of the 19 cervical spine that showed only minimal bulge and disc 20 protrusion, and the normal EMG and nerve conduction studies that 21 showed no evidence of carpal tunnel syndrome (CTS). (A.R. 21.) 22 The ALJ noted the very minimal cervical findings during the 23 consultative, neurosurgical examination. (A.R. 21-22.) She also 24 noted that although in June 2004 Dr. Sharma had diagnosed chronic 25 low back pain and strain and had relied on MRI evidence of 26 degenerative disc disease, the actual MRI revealed only 27 relatively mild degenerative disc disease. (A.R. 22.) More recent 28 test results and findings of Dr. Sharma included essentially 29 1 normal x-rays of Plaintiff s knees. (A.R. 22.) The Court notes 2 that substantial evidence supported this clear and convincing 3 reasoning. 4 The ALJ relied on the nature of the treatment that Plaintiff 5 received. (A.R. 21-22.) Scant treatment records from August 2006 6 through March 2008 showed only routine medication management for 7 Plaintiff s complaints and conditions, such as facial numbness, 8 bladder control issues, asthma, and right ear pain. (A.R. 21.) 9 The neurosurgical consultation revealed that Plaintiff needed 10 only conservative, non-surgical treatment for pain, and the 11 treatment records reflected medication management of Plaintiff s 12 complaints of low back and neck pain. (A.R. 21-22.) 13 The ALJ relied on evidence that Plaintiff exaggerated her 14 symptoms. Earlier in the decision, she had discussed Plaintiff s 15 exaggeration in connection with the suggestion that Plaintiff was 16 suffering from fibromyalgia, a diagnosis which the ALJ noted had 17 not been made by an treating physician. He then continued in 18 pertinent part: 19 20 21 22 It is clear form the medical record that the claimant is exaggerating her pain symptoms, particularly given the lack of any diagnostic signs upon physical examination, repeated diagnostic findings of only mild or minimal changes, negative EMG studies, and the claimant s exaggerated pain and obviously painful behavior during the recent consultative examination (citation omitted.) 23 (A.R. 19.) 24 In the later portion of the decision concerning credibility 25 findings, the ALJ noted that Dr. Tran had reported that her 26 examination of Plaintiff was notable for an exaggerated, antalgic 27 gait and exaggerated painful behavior. The ALJ referred to 28 30 1 Plaintiff s report to treating emergency room (ER) staff that she 2 had bilateral CTS and significant cervical disc disease, which 3 the ALJ characterized as [c]learly... an exaggeration. (A.R. 4 21.) Plaintiff had also complained of chest pain at the ER, but a 5 cardiac monitor and EKG studies revealed a normal sinus rhythm, 6 and her chest pain was noted to be atypical and probably 7 musculoskeletal. (A.R. 21.) 8 Amplification of symptoms can constitute substantial 9 evidence supporting the rejection of a subjective complaint of 10 severity of symptoms. Matthews v. Shalala, 10 F.3d 678, 680 (9th 11 Cir. 1993). A claimant s not having been a reliable historian and 12 having presented conflicting information about her history may 13 appropriately be considered. Thomas v. Barnhart, 278 F.3d 947, 14 959 (9th Cir. 2002). The ALJ may consider whether the Plaintiff s 15 testimony is believable or not. Verduzco v. Apfel, 188 F.3d 1087, 16 1090 (9th Cir. 1999). 17 The evidence reflects that Plaintiff repeatedly exaggerated 18 the seriousness of various symptoms to medical staff. The ALJ s 19 reasoning was clear and convincing in the circumstances of the 20 present case. 21 Plaintiff points to the objective evidence in the record 22 that supports or could be considered consistent with Plaintiff s 23 subjective complaints. However, it is not the role of this Court 24 to redetermine Plaintiff s credibility de novo; although evidence 25 supporting an ALJ s conclusions might also permit an 26 interpretation more favorable to the claimant, if the ALJ s 27 interpretation of evidence was rational, this Court must uphold 28 the ALJ s decision where the evidence is susceptible to more than 31 1 one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 2 680-81 (9th Cir. 2005). 3 In summary, the Court concludes that the ALJ cited clear and 4 convincing reasons for rejecting Plaintiff s subjective 5 complaints regarding the intensity, duration, and limiting 6 effects of her symptoms, and that the ALJ s reasons were properly 7 supported by the record and sufficiently specific to allow this 8 Court to conclude that the ALJ rejected the claimant's testimony 9 on permissible grounds and did not arbitrarily discredit 10 Plaintiff s testimony. 11 VIII. Findings concerning the Testimony of Mr. Lambert 12 Plaintiff contends that the ALJ failed to give reasons why 13 she rejected the testimony of Plaintiff s husband. Defendant 14 argues that the decision must be interpreted as containing a 15 single statement of reasons that applied jointly to the 16 credibility of both Plaintiff and her husband. Defendant cites 17 Moore v. Apfel, 216 F.3d 864, 867 (9th Cir. 2000) and argues that 18 because this issue of credibility findings was raised in 19 Plaintiff s brief submitted to the Appeals Council on his final 20 request for review (A.R. 667-68), the Court should interpret the 21 denial of the request for review as an interpretation by the 22 Appeals Council of the ALJ s decision that is consistent with 23 Defendant s. 24 It is established that lay witnesses, such as friends or 25 family members in a position to observe a claimant s symptoms and 26 daily activities, are competent to testify to a claimant s 27 condition; the Commissioner will consider observations by non28 medical sources as to how an impairment affects a claimant s 32 1 ability to work. Dodrill v. Shalala, 12 F.3d 915, 918-19 (9th Cir. 2 1993). An ALJ cannot discount testimony from lay witnesses 3 without articulating specific reasons for doing so. Id. at 919. 4 Lay witnesses area categorized as other, non-medical sources 5 under the pertinent regulations. 20 C.F.R. §§ 404.1513(d)(4), 6 416.913(d)(4). Information from such other sources cannot 7 establish the existence of a medically determinable impairment, 8 but it may be considered in determining the severity and effects 9 of an impairment or combination thereof. Soc. Sec. Ruling 06-03p 10 pp. 2-3. The weight to which such evidence is entitled will vary 11 according to the particular facts of the case; it is appropriate 12 to consider factors such as the nature and extent of the 13 relationship with the claimant, whether the evidence is 14 consistent with other evidence, and any other factors that tend 15 to support or refute the evidence. Soc. Sec. Ruling 06-03p p. 6. 16 Regulations provide that the adjudicator should generally 17 explain the weight given the opinions from such other sources or 18 otherwise ensure that the discussion of the evidence in the 19 determination or decision allows a claimant or subsequent 20 reviewer to follow the adjudicator s reasoning when such opinions 21 may have an effect on the outcome of the case. Id. 22 Here, in the second paragraph of the decision, the ALJ set 23 forth the substance of the direction of the Appeals Council to 24 her to make appropriate findings concerning the testimony of 25 Plaintiff s husband and provide a rationale germane to his 26 credibility. (A.R. 16.) The ALJ recited that she had considered 27 the symptoms, the objective medical evidence, the other evidence, 28 and the opinion evidence, and had done so in accordance with the 33 1 requirements of stated regulations and rulings; she expressly 2 cited Soc. Sec. Ruling 06-03p, which concerns other sources, 3 including lay witnesses. 4 After stating the law pertinent to findings concerning 5 Plaintiff s subjective complaints and credibility, the ALJ 6 recited all Plaintiff s subjective complaints. In the next 7 paragraph, she wrote: 8 9 10 11 Mr. Lambert testified that his wife complains of pain frequently and is in a bad mood when she s in pain. He said she has 3 to 4 bad days a month and cannot get things done at home because of the pain, which makes her cry. He said she complains of wrist pain and uses the cane 60 to 70% of the time. He said she can take care of her personal needs. 12 (A.R. 20.) The ALJ thus characterized the lay testimony as 13 relating to the frequency of Plaintiff s pain and its effects on 14 Plaintiff (causing complaints, bad moods, crying, and inability 15 to get things done around the house, but permitting personal 16 care). The decision itself makes it clear that the ALJ was aware 17 of the lay testimony concerning Plaintiff s pain and understood 18 that in substance it was consistent with Plaintiff s own 19 subjective complaints about the frequency and extent of her pain. 20 The ALJ then made her findings concerning the lack of 21 credibility of Plaintiff s statements about her symptoms and went 22 on to specify the reasoning, which has been set forth hereinabove 23 in connection with the discussion of Plaintiff s credibility. 24 (A.R. 20-22.) The ALJ did not expressly advert to the husband s 25 testimony in stating the reasoning for her findings concerning 26 Plaintiff s testimony. 27 Defendant argues that it is appropriate to interpret the 28 opinion as pertaining to both spouses testimony. 34 1 The Court notes that some leeway in interpretation has been 2 found reasonable. For example, in Lewis v. Apfel, 236 F.3d 503, 3 511-12 (9th Cir. 2001), it was sufficient for the ALJ to state 4 expressly that the testimony of family members had been 5 considered, and to note that documented medical history and 6 findings and prior recorded statements were contrary to the 7 testimony. Discussions of the evidence from other portions of the 8 decision were consulted to discern the precise evidence relied 9 upon by the ALJ. The reviewing court found it sufficient that the 10 ALJ noted arguably germane reasons for dismissing the family 11 members testimony even if his determination was not clearly 12 linked to those reasons. Id. 13 The present case thus is not quite like Lewis v. Apfel, 14 because there the finding concerning the lay witnesses was more 15 express. 16 However, case before the Court is also not like Stout v. 17 Commissioner, 454 F.3d 1050, 1053-54, 1056 (9th Cir. 2005), in 18 which there was a complete silence as to the testimony. Here, it 19 is clear that the ALJ knew of and considered the husband s 20 testimony and rejected it. Further, the husband s testimony was 21 based on his wife s complaints of crying and claiming to be 22 unable to get work done at home; thus, the credibility of the 23 husband was based in turn on the wife s own expressions and 24 characterizations of her symptoms. The Court notes that the 25 extent to which evidence was based on Plaintiff s subjective 26 complaints was of major importance to the ALJ. For example, as 27 will be discussed below, the ALJ likewise rejected the opinion of 28 Dr. Sharma because it was based not on the objective evidence of 35 1 record, but rather on Plaintiff s subjective complaints. (A.R. 2 22.) 3 In light of the nature of the husband s testimony, the ALJ s 4 consideration of both sets of complaints, and the nature of the 5 reasoning set forth by the ALJ, it is reasonable to interpret the 6 decision as stating reasons applicable to both witnesses 7 testimony. The Plaintiff s propensity to exaggerate her symptoms 8 and the inconsistency of her complaints with the detailed medical 9 evidence were equally germane to the husband s testimony, which 10 purported to evaluate Plaintiff s functionality based on what 11 Plaintiff s own expressions and assessments of her pain were. 12 Although certainly not a model of exposition, the decision 13 permits the adjudicator s reasoning to be followed. 14 However, the Court concludes in the alternative that should 15 the linkage of the ALJ s reasoning to the testimony of the 16 husband be considered too speculative, then to the extent that 17 the ALJ could be considered to have failed properly to set forth 18 her reasoning concerning the husband s testimony, the Court 19 concludes with confidence that no reasonable ALJ, when fully 20 crediting the husband s testimony, could have reached a different 21 disability determination. See, Stout v. Commissioner, 454 F.3d 22 1050, 1056. This is because even if credited, the husband s 23 testimony was essentially his observations of Plaintiff s own 24 expressions and assessments of her own pain, which the ALJ had 25 already rejected as exaggerated and inconsistent with the 26 treatment received and the medical record, and which the ALJ had 27 already considered to be a sufficient basis to support in part 28 the rejection of even an expert opinion. 36 1 IX. Dr. Sharma s Opinion 2 Plaintiff argues that the ALJ erred in rejecting Dr. 3 Sharma s opinion because it was supported by the medical 4 evidence. Further, the ALJ failed to consider and state legally 5 sufficient reasons for not giving controlling weight to Dr. 6 Sharma s opinion of 2006. 7 8 A. Legal Standards The standards for evaluating treating source s opinions are 9 established: 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 By rule, the Social Security Administration favors the opinion of a treating physician over non-treating physicians. See 20 C.F.R. § 404.1527. If a treating physician's opinion is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record, [it will be given] controlling weight. Id. § 404.1527(d)(2). If a treating physician's opinion is not given controlling weight because it is not well-supported or because it is inconsistent with other substantial evidence in the record, the Administration considers specified factors in determining the weight it will be given. Those factors include the [l]ength of the treatment relationship and the frequency of examination by the treating physician; and the nature and extent of the treatment relationship between the patient and the treating physician. Id. § 404.1527(d)(2)(i)-(ii). Generally, the opinions of examining physicians are afforded more weight than those of non-examining physicians, and the opinions of examining non-treating physicians are afforded less weight than those of treating physicians. Id. § 404.1527(d)(1)-(2). Additional factors relevant to evaluating any medical opinion, not limited to the opinion of the treating physician, include the amount of relevant evidence that supports the opinion and the quality of the explanation provided; the consistency of the medical opinion with the record as a whole; the specialty of the physician providing the opinion; and [o]ther factors such as the degree of understanding a physician has of the Administration's disability programs and their evidentiary requirements and the degree of his or 37 1 her familiarity with other information in the case record. Id. § 404.1527(d)(3)-(6). 2 Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). 3 With respect to proceedings under Title XVI, the Court notes 4 that an identical regulation has been promulgated. See, 20 C.F.R. 5 § 416.927. 6 As to the legal sufficiency of the ALJ s reasoning, the 7 governing principles are likewise established: 8 9 10 11 12 13 14 15 16 17 18 19 20 The opinions of treating doctors should be given more weight than the opinions of doctors who do not treat the claimant. Lester [v. Chater, 81 F.3d 821, 830 (9th Cir.1995) (as amended).] Where the treating doctor's opinion is not contradicted by another doctor, it may be rejected only for clear and convincing reasons supported by substantial evidence in the record. Id. (internal quotation marks omitted). Even if the treating doctor's opinion is contradicted by another doctor, the ALJ may not reject this opinion without providing specific and legitimate reasons supported by substantial evidence in the record. Id. at 830, quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir.1983). This can be done by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings. Magallanes [v. Bowen, 881 F.2d 747, 751 (9th Cir.1989).] The ALJ must do more than offer his conclusions. He must set forth his own interpretations and explain why they, rather than the doctors', are correct. Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir.1988). Reddick v. Chater, 157 F.3d 715, 725 (9th Cir.1998); accord Thomas, 278 F.3d at 957; Lester, 81 F.3d at 830-31. 21 Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). 22 B. Analysis 23 After making her credibility findings, the ALJ noted the 24 findings and assessments of consulting examiners Dr. Tran and Dr. 25 Lessenger. The ALJ then assessed the record as a whole in detail, 26 reciting the mild findings and opinions of Plaintiff s capacities 27 rendered by various experts during the worker s compensation 28 38 1 proceedings, and noting the scant treatment records from August 2 2006 through March 2008 showing only routine medication 3 management of miscellaneous medical conditions. The ALJ concluded 4 that the medical evidence as a whole supported the findings of 5 both consulting examiners and their assessments that Plaintiff 6 had the physical and mental ability to perform sustained work 7 activities. (A.R. 21.) 8 The ALJ stated the following concerning Dr. Sharma: 9 A neurosurgical consultation revealed that the claimant needed to only (sic) be treated conservatively, with nonsurgical treatment for pain, (sic) was found to have very minimal cervical findings (Exhibit 6F, pp. 49-51). In June 2004, the claimant s treating physical medicine specialist, Dr. Sharma, diagnosed the claimant with low back chronic pain and strain, with MRI evidence of degenerative disc disease, and a component of depression (Exhibit 10F). However, electromyographic studies were normal (Exhibit 10F, pp. 12 and 16) and the actual MRI of the claimant s lumbosacral spine revealed only relatively mild degenerative disc disease, most pronounced at the L4-L5 and L5-S1 levels (Exhibit 16F, p. 11). 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Updated records from Dr. Sharma also contain x-rays of the bilateral knees which are essentially normal (Exhibit 23F, p. 30) and ongoing medication management for the claimant s complaints of low back pain and neck pain (Exhibit 23F, pp. 25, 17 and 3). Throughout the clinical notes, Dr. Sharma consistently states that the claimant is doing fair (Exhibit 23F, pp. 26, 24, 23, 22, 15, 2 and 1), and does not state that the claimant is disabled until his May 2008 Medical Source Statement, in which he says the claimant s prognosis is fair good, but still indicates that the claimant can rarely lift and carry even less than 10 pounds, sit, stand and/or walk less than 2 hours in an 8-hour workday, move her head in any direction, and rarely stoop, crouch, kneel, crawl, climb and balance, and will miss work more than 4 days a month because of her symptoms (Exhibit 25F). Clearly, Dr. Sharma is basing his opinion that the claimant has significant impairment (sic) based upon her subjective complaints, and not on the objective evidence of record. 26 (A.R. 21-22.) The ALJ then noted the opinions of the state agency 27 physicians from 2005 that Plaintiff could essentially perform 28 39 1 medium work with postural and manipulative limitations. (A.R. 2 22.) 3 The ALJ thus relied on the inconsistency of the medical 4 record with Dr. Sharma s opinion, including the mild objective 5 findings throughout the record, conservative treatment by 6 medication from multiple medical sources, the opinion of a 7 specialist (neurosurgeon Bhatti in 2001) as to the lack of need 8 for treatment other than conservative measures, and the internal 9 inconsistency of Dr. Sharma s own prognosis of fair good and 10 notations concerning Plaintiff s doing fair with Dr. Sharma s 11 opinion of Plaintiff s limited RFC and disability. The ALJ also 12 relied on Dr. Sharma s apparent reliance on Plaintiff s 13 subjective complaints and not on the objective evidence of 14 record. 15 Reliance on the lack of supporting findings was appropriate. 16 The more consistent an opinion is with the record as a whole, the 17 more weight will be given to the opinion. 20 C.F.R. §§ 18 404.1527(d)(4), 416.927(d). A conclusional opinion that is 19 unsubstantiated by relevant medical documentation may be 20 rejected. See Johnson v. Shalala, 60 F.3d 1428, 1432-33 (9th Cir. 21 1995). It is appropriate for an ALJ to consider the absence of 22 supporting findings, and the inconsistency of conclusions with 23 the physician s own findings, in rejecting a physician s opinion. 24 Johnson v. Shalala, 60 F.3d 1428, 1432-33 (9th Cir. 1995); Matney 25 v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992); Magallanes v. 26 Bowen, 881 F.2d 747, 751 (9th Cir. 1989). 27 The fact that an opinion is based primarily on the patient s 28 subjective complaints may be properly considered. Matney on 40 1 Behalf of Matney v. Sullivan, 981 F.2d 1016, 1020 (9th Cir. 1992). 2 Where a treating source s opinion is based largely on the 3 Plaintiff s own subjective description of his or her symptoms, 4 and the ALJ has discredited the Plaintiff s claim as to those 5 subjective symptoms, the ALJ may reject the treating source s 6 opinion. Fair v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989). 7 Here, as the foregoing summary of evidence and discussion 8 demonstrate, the ALJ reasonably concluded with the support of 9 substantial evidence that Dr. Sharma s opinion of disability was 10 not well-supported by medically acceptable clinical and 11 laboratory diagnostic techniques and was not consistent with the 12 other substantial evidence in the record, including Dr. Sharma s 13 own treatment notes. The record likewise supports the ALJ s 14 conclusion that in forming his opinion, Dr. Sharma necessarily 15 relied on Plaintiff s subjective complaints, as distinct from the 16 medical evidence of record, which was notably inconsistent with 17 Dr. Sharma s assessment of Plaintiff s functionality. The ALJ s 18 reasoning was specific and legitimate. 19 Plaintiff argues that the ALJ failed expressly to address 20 Dr. Sharma s 2006 opinion, and the ALJ erroneously concluded that 21 the doctor did not opine that Plaintiff was disabled until 2008. 22 Dr. Sharma opined in 2006 that Plaintiff could perform low- 23 stress jobs, but in 2008, he expressly opined that Plaintiff was 24 incapable of even low-stress jobs because of her neck and back 25 pain. Although the functional limitations assessed by Dr. Sharma 26 in his 2006 opinion might have, if augmented by vocational 27 evidence, resulted in a conclusion of disability, the expert s 28 opinion was not that Plaintiff was per se disabled. Thus, the ALJ 41 1 correctly observed that Dr. Sharma did not state that Plaintiff 2 was disabled until the May 2008 medical source statement. 3 With respect to the ALJ s failure expressly to address Dr. 4 Sharma s opinion of 2006, the Court is mindful that a fundamental 5 principle of review operative in this case is that this Court is 6 limited to reviewing the findings of the ALJ and to reviewing the 7 specific facts and reasons that the ALJ asserts. Connett v. 8 Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). An ALJ need not 9 discuss evidence that is neither significant nor probative. 10 Howard v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003). However, 11 with respect to significant, probative evidence, such as an 12 expert opinion, an ALJ must explicitly reject the opinion and set 13 forth specific reasons of the requisite force for doing so. 14 Nguyen v. Chater, 100 F.3d 1462, 1464 (9th Cir. 1996). The 15 district court cannot make findings for the ALJ. Id. A district 16 court cannot affirm the judgment of an agency on a ground the 17 agency did not invoke in making its decision. Pinto v. Massanari, 18 249 F.3d 840, 847-48 (9th Cir. 2001). The authorities thus reflect 19 the basic principle that the ALJ s opinion must contain 20 sufficient findings to permit intelligent judicial review, 21 particularly with respect to significant probative evidence. 22 Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984). 23 Here, the ALJ s decision included a detailed summary of the 24 longitudinal course of Dr. Sharma s assessments and treatment of 25 Plaintiff. (A.R. 20-22.) The Appeals Council had directed the ALJ 26 to evaluate Exhibit 19F, which included the 2006 opinion of Dr. 27 Sharma that Plaintiff was restricted to a very limited range of 28 sedentary work and required a cane. (A.R. 127-28.) However, when 42 1 directing the ALJ to consider the treating source opinions and 2 explain the weight given to such evidence, the Appeals Council 3 stated: 4 5 6 7 8 As appropriate, the Administrative Law Judge may request the treating source to provide additional evidence and/or further clarification of the opinions and medical source statements about what the claimant can still do despite the impairments (20 CFR 404.1512 and 416.912). The Administrative Law Judge may enlist the aid and cooperation of the claimant s representative in developing evidence from the claimant s treating sources. 9 (A.R. 127-28.) 10 The ALJ s description of the development of Dr. Sharma s 11 treatment of Plaintiff as well as the ALJ s reference to the 12 Appeals Council s direction to the ALJ to consider the treating 13 source opinions pursuant to the regulations (A.R. 16) are 14 consistent with a conclusion that the ALJ was aware of Dr. 15 Sharma s opinion of 2006. Further, it is clear that upon remand, 16 additional treatment history and an updated opinion concerning 17 Plaintiff s RFC were obtained from Dr. Sharma. Finally, reference 18 to Dr. Sharma s two opinions shows that the differences between 19 them were generally slight: Plaintiff s capacity to carry ten 20 pounds occasionally and twenty to fifty rarely had deteriorated 21 to carrying only rarely up to ten pounds; Plaintiff s 22 manipulative limitations had disappeared; Plaintiff s ability to 23 concentrate and attend had deteriorated from a maximum of fifteen 24 minutes to ten minutes, her ability to walk had increased from 25 one to two blocks, the frequency of her needed five-minute breaks 26 for walking around increased from every half hour to every 27 fifteen minutes, and the length of the hourly breaks she needed 28 had increased from five to ten minutes. The only other change was 43 1 that Plaintiff s ability to tolerate low-stress jobs had been 2 replaced by an incapacity to tolerate even low-stress jobs due to 3 neck and back pain. 4 The ALJ s treatment of the reasons for not giving Dr. 5 Sharma s assessments controlling weight was not specific to 6 either opinion. The Court notes that although Plaintiff claimed 7 an escalating and debilitating array of subjective complaints, 8 the objective medical evidence and mild signs upon which the ALJ 9 relied remained essentially constant; this is not a case of a 10 dramatic worsening of objective signs over time or of any marked 11 progression of a seriously degenerative process. The reasons why 12 the ALJ rejected Dr. Sharma s assessments and judgment of 2008 13 did not differ, and would not have differed, from the reasons for 14 rejecting his judgment of 2006. The reasons related to the 15 inconsistency of the opinion with the general weight of the 16 evidence; the absence of objective medical evidence, such as 17 clinical findings, to support Plaintiff s exaggerated subjective 18 complaints; and to Dr. Sharma s apparent reliance on Plaintiff s 19 exaggerated reports, which the ALJ had determined were not worthy 20 of credence. A reading of the entirety of the ALJ s decision 21 leads to a conclusion that the ALJ failed to give controlling 22 weight to Dr. Sharma s opinions because they were inconsistent 23 with and unsupported by the objective medical evidence of record, 24 were inconsistent with Dr. Sharma s own treatment notes, and were 25 based on Plaintiff s subjective complaints. 26 In summary, the Court concludes that the ALJ did not fail to 27 state specific and legitimate reasons, supported by substantial 28 evidence, for his weighing of Dr. Sharma s opinions. 44 1 X. Disposition 2 Based on the foregoing, the Court concludes that the ALJ s 3 decision was supported by substantial evidence in the record as a 4 whole and was based on the application of correct legal 5 standards. 6 Accordingly, the Court AFFIRMS the administrative decision 7 of the Defendant Commissioner of Social Security and DENIES 8 Plaintiff s Social Security complaint. 9 The Clerk of the Court IS DIRECTED to enter judgment for 10 Defendant Michael J. Astrue, Commissioner of Social Security, 11 and against Plaintiff Sheila Lambert. 12 13 IT IS SO ORDERED. 14 Dated: icido3 15 April 1, 2010 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 45
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