Stevens v. Astrue

Filing 28

ORDER that the decision of the ALJ and the Commissioner of Social Security be affirmed; IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment accordingly. The judgment will serve as the mandate of this Court. Signed by Magistrate Judge Michelle H Burns on 3/29/11. (KMG)

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Stevens v. Astrue Doc. 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WO IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ) ) ) Plaintiff, ) ) vs. ) Michael J. Astrue, Commissioner of Social) ) Security, ) ) Defendant. ) Sheila M. Stevens, CIV 10-633-PHX-MHB ORDER Pending before the Court is Plaintiff Sheila M. Stevens' appeal from the Social Security Administration's final decision denying her claim for disability insurance benefits. After reviewing the administrative record and the arguments of the parties, the Court now issues the following ruling. I. PROCEDURAL HISTORY In January of 2006, Plaintiff filed an application for disability insurance benefits pursuant to Title II of the Social Security Act. (Transcript of Administrative Record ("Tr.") at 15.) Her application was denied both initially and on reconsideration. (Tr. at 15.) A hearing was held before an Administrative Law Judge ("ALJ") on February 20, 2008. (Tr. at 15.) After taking the matter under advisement, the ALJ denied Plaintiff's claim on March 27, 2008. (Tr. at 15-21.) Plaintiff subsequently requested review of the ALJ's decision by the Appeals Council. (Tr. at 9.) On January 22, 2010, the Appeals Council denied Plaintiff's request for review, thereby rendering the ALJ's decision the final decision of the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Commissioner. (Tr. at 1.) Plaintiff then commenced the instant action for judicial review pursuant to 42 U.S.C. 405(g). II. STANDARD OF REVIEW The Court must affirm the ALJ's findings if the findings are supported by substantial evidence and are free from reversible legal error. See Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Marcia v. Sullivan, 900 F.2d 172, 174 (9th Cir. 1990). Substantial evidence means "more than a mere scintilla" and "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971); see Reddick, 157 F.3d at 720. In determining whether substantial evidence supports a decision, the Court considers the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the ALJ's conclusion. See Reddick, 157 F.3d at 720. "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995); see Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). "If the evidence can reasonably support either affirming or reversing the [Commissioner's] conclusion, the court may not substitute its judgment for that of the [Commissioner]." Reddick, 157 F.3d at 720-21. III. THE ALJ'S FINDINGS In order to be eligible for disability or social security benefits, a claimant must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. 423(d)(1)(A). An ALJ determines a claimant's eligibility for benefits by following a five-step sequential evaluation: (1) determine whether the applicant is engaged in "substantial gainful activity"; (2) determine whether the applicant has a medically severe impairment or combination of impairments; -2- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (3) determine whether the applicant's impairment equals one of a number of listed impairments that the Commissioner acknowledges as so severe as to preclude the applicant from engaging in substantial gainful activity; (4) if the applicant's impairment does not equal one of the listed impairments, determine whether the applicant is capable of performing his or her past relevant work; (5) if the applicant is not capable of performing his or her past relevant work, determine whether the applicant is able to perform other work in the national economy in view of his age, education, and work experience. See Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987) (citing 20 C.F.R. 404.1520). At the fifth stage, the burden of proof shifts to the Commissioner to show that the claimant can perform other substantial gainful work. See Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993). At step one, the ALJ found that Plaintiff had not engaged in "substantial gainful activity" since her alleged onset date. (Tr. at 17.) At step two, the ALJ determined that Plaintiff did not have a medically determinable severe impairment. (Tr. at 17-20.) Thus, the ALJ concluded that Plaintiff was not disabled. (Tr. at 20-21.) IV. DISCUSSION Plaintiff contends that the ALJ erred in resolving her case at step two of the sequential evaluation process by finding that she did not suffer from "medically determinable musculoskeletal and skin disorders that caused more than a minimal effect on her ability to work." Specifically, Plaintiff argues that the ALJ erred by (1) rejecting her symptom testimony in the absence of clear and convincing reasons for doing so, and (2) rejecting the assessment of her treating physician, Carolyn Barlow, D.O., who assessed limitations facially inconsistent with the ability to perform sustained work. Plaintiff requests that the Court remand for a determination of disability benefits. At step two of the sequential evaluation, the ALJ determines whether a claimant suffers from a "severe" impairment, i.e., one that significantly limits her physical or mental ability to do basic work activities. See 20 C.F.R. 404.1520(c). To satisfy step two's requirement of a severe impairment, the claimant must prove the existence of a physical or mental impairment by providing medical evidence consisting of signs, symptoms, and -3- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 laboratory findings; the claimant's own statement of symptoms alone will not suffice. See 20 C.F.R. 404.1508. The Commissioner has passed regulations which guide dismissal of claims at step two. Those regulations state an impairment may be found to be not severe when "medical evidence establishes only a slight abnormality or a combination of slight abnormalities which would have no more than a minimal effect on an individual's ability to work." SSR 85-28. "The severity requirement cannot be satisfied when medical evidence shows that the person has the ability to perform basic work activities, as required in most jobs." Id. Basic work activities include: "walking, standing, sitting, lifting, pushing, pulling, reaching, carrying or handling; seeing, hearing, and speaking; understanding, carrying out, and remembering simple instructions; responding appropriately to supervision, coworkers, and usual work situation." Id. As explained in the Commissioner's policy ruling, "medical evidence alone is evaluated in order to assess the effects of the impairment(s) on ability to do basic work activities." SSR 85-28. Nonetheless, "credibility determinations do bear on evaluation of medical evidence when an ALJ is presented with conflicting medical opinions or inconsistency between a claimant's subjective complaints and [her] diagnosed conditions." Webb v. Barnhart, 433 F.3d 683, 688 (9th Cir. 2005). Where, as here, clinical records and objective medical evidence are inconsistent with afflictions claimed, Plaintiff's credibility is considered at step two. See id. 1. Credibility of Plaintiff's Subjective Complaints In Cotton v. Bowen, 799 F.2d 1403 (9th Cir. 1986), the Ninth Circuit established two requirements for a claimant to present credible symptom testimony: The claimant must produce objective medical evidence of an impairment or impairments, and he must show the impairment or combination of impairments could reasonably be expected to produce some degree of symptom. See id. at 1407. The claimant, however, need not produce objective medical evidence of the actual symptoms or their severity. See Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). -4- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 If the claimant satisfies the above test and there is not any affirmative evidence of malingering, the ALJ can reject the claimant's pain testimony only if he provides clear and convincing reasons for doing so. See Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007) (citing Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)). General assertions that the claimant's testimony is not credible are insufficient. See id. The ALJ must identify "what testimony is not credible and what evidence undermines the claimant's complaints." Id. (quoting Lester, 81 F.3d at 834). In weighing a claimant's credibility, the ALJ may consider many factors, including, "(1) ordinary techniques of credibility evaluation, such as the claimant's reputation for lying, prior inconsistent statements concerning the symptoms, and other testimony by the claimant that appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and (3) the claimant's daily activities." Smolen, 80 F.3d at 1284; see Orn v. Astrue, 495 F.3d 625, 637-39 (9th Cir. 2007). The ALJ also considers "the claimant's work record and observations of treating and examining physicians and other third parties regarding, among other matters, the nature, onset, duration, and frequency of the claimant's symptom; precipitating and aggravating factors; functional restrictions caused by the symptoms; and the claimant's daily activities." Smolen, 80 F.3d at 1284 (citation omitted). At the administrative hearing on February 20, 2008, Plaintiff testified that she had been working full-time since January of 2008, and had worked part-time beginning in April of 2006. (Tr. at 27-30, 42-43.) She stated that her abdominal pain began in September of 2004, (Tr. at 33), and that from November of 2004 to December of 2007, she spent most days lying on the couch with a heating pad because her abdominal pain was so bad she could not stand (Tr. at 34, 35). She said, during that time, she would go the grocery store monthly with her roommate, but could not stay to check out or carry groceries. (Tr. at 39.) Plaintiff indicated that her only social activity was going to someone's house, (Tr. at 39-40), but admitted that she traveled abroad on one occasion (Tr. at 42-43). She believed her abdominal pain was caused by an "intense infection in [her] intestines," and that she also developed -5- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 "intestinal ulcers." (Tr. at 36, 40-41, 44-45.) She said her doctors would not prescribe strong pain medications because they did not know what was causing her pain. (Tr. at 39.) Having reviewed the record along with the ALJ's credibility analysis, the Court finds that the ALJ made extensive credibility findings and identified several clear and convincing reasons supported by the record for discounting Plaintiff's statements regarding her limitations. In his evaluation of Plaintiff's testimony, the ALJ first referenced the fact that none of Plaintiff's medical records submitted in support of her claim of disability based on a claim of severe chronic pain reflected a definitive diagnosis. See Bray v. Astrue, 554 F.3d 1219, 1227 (9th Cir. 2009) (inconsistencies between claimant's testimony and the objective medical evidence did not support her the claimant's claims of disabling respiratory illness); Carmickle v. Comm'r of Social Sec., 533 F.3d 1155, 1161 (9th Cir. 2008) ("Contradiction with the medical record is a sufficient basis for rejecting the claimant's subjective testimony.") (citation omitted). The ALJ stated, in pertinent part: Claimant testified that she believed her pain resulted from an infection. However, that pain does not appear to have begun until about 11 months after her initial surgery and just prior to the series of cosmetic surgeries to align her body with her gastric bypass. Claimant testified to several courses of antibiotics during the period of issue, from ten to sixty days. However, no physician has indicated infection as the cause of claimant's alleged pain. Likewise, radiological, CT and MRI examinations have revealed no evidence of any medical condition which is severe enough to have prevented the claimant from working as she has alleged. The claimant has not satisfied the 12 continuous month requirement necessary for a medical condition to be considered severe as required by the Social Security Act and regulations. (Tr. at 20.) The ALJ additionally discredited Plaintiff's subjective complaints finding that she "alleged incapacitating pain during a period of time when she was undergoing a series of purely cosmetic medical procedures," and noting that said procedures "followed a period of time when she had not been engaged in full time employment for a number of years." (Tr. at 20); see Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (affirming the ALJ's credibility analysis which was based, in part, on the plaintiff's "extremely poor work history"); Bean v. Chater, 77 F.3d 1210, 1213 (10th Cir. 1995) (claimant's prior work record can be considered in evaluating credibility; ALJ did not err in considering that claimant quit -6- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 working several years before the alleged onset of disability). Moreover, the ALJ found that Plaintiff was not prescribed narcotic pain medications stating that there "is no medical basis other than short periods of post surgical recovery for her allegations and no course of treatment or prescribed course of medication consistent with her allegations." (Tr. at 20); see Moncada v. Chater, 60 F.3d 521, 524 (9th Cir. 1995) (allegations of disabling pain could be discredited by evidence of infrequent medical treatment or the minimal use of pain medication). To the contrary, Dr. Freedman noted that Plaintiff's abdominal pain responded well to Ultram and over-the-counter Advil. (Tr. at 174); Crane v. Shalala, 76 F.3d 251, 254 (9th Cir. 1996) (an impairment that could reasonably be alleviated by medication or treatment could not serve as a basis for a finding of disability). Lastly, in discounting her testimony, the ALJ determined that Plaintiff's activities during the period at issue, which included a "full social life and foreign travel" was not consistent with the limitations alleged. (Tr. at 20); see, e.g., Bray, 554 F.3d at 1227 (claimant's daily activities, which included cleaning, cooking, walking dogs, and driving to appointments, did not support allegations of disability). In summary, the ALJ provided a sufficient basis to find Plaintiff's allegations not entirely credible. While perhaps the individual factors, viewed in isolation, are not sufficient to uphold the ALJ's decision to discredit Plaintiff's allegations, each factor is relevant to the ALJ's overall analysis, and it was the cumulative effect of all the factors that led to the ALJ's decision. The Court concludes that the ALJ has supported his decision to discredit Plaintiff's allegations with specific, clear and convincing reasons and, therefore, the Court finds no error. \\\ \\\ 2. Medical Evidence and Opinions -7- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In determining whether a claimant has a severe impairment, the ALJ evaluates the medical evidence submitted and must explain the weight given to the opinions of accepted medical sources in the record. Agency regulations distinguish among the opinions of three types of accepted medical sources: (1) sources who have treated the claimant; (2) sources who have examined the claimant; and (3) sources who have neither examined nor treated the claimant, but express their opinion based upon a review of the claimant's medical records. See 20 C.F.R. 404.1527. A treating physician's opinion carries more weight than an examining physician's, and an examining physician's opinion carries more weight than a non-examining reviewing or consulting physician's opinion. See Benecke v. Barnhart, 379 F.3d 587, 592 (9th Cir. 2004); Lester, 81 F.3d at 830. The Commissioner must provide "clear and convincing" reasons for rejecting the uncontradicted opinion of a treating or examining physician. See Lester, 81 F.3d at 830. If the opinion is contradicted, it can be rejected for specific and legitimate reasons that are supported by substantial evidence in the record. See Andrews, 53 F.3d at 1043. Since Dr. Barlow's opinion was contradicted by the opinions of the reviewing state agency physicians who opined that Plaintiff did not have severe impairments and the clinical findings of record, the specific and legitimate standard applies. Historically, the courts have recognized the following as specific, legitimate reasons for disregarding a treating or examining physician's opinion: conflicting medical evidence; the absence of regular medical treatment during the alleged period of disability; the lack of medical support for doctors' reports based substantially on a claimant's subjective complaints of pain; medical opinions that are brief, conclusory, and inadequately supported by medical evidence. See Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005); Flaten v. Secretary of Health and Human Servs., 44 F.3d 1453, 1463-64 (9th Cir. 1995); Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989). Here, the Court finds that the ALJ properly gave specific and legitimate reasons, based on substantial evidence in the record, for discounting the May 24, 2006 opinion of Dr. Barlow. In November of 2003, Plaintiff had gastric bypass surgery. (Tr. at 143.) As of -8- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 September 28, 2004, she had lost over 100 pounds and was interested in "multiple body recontouring procedures." Jeffrey Ptak, M.D., a plastic surgeon, noted that Plaintiff was healthy except for varicose vein disease. He discussed the risks of the procedures he planned to perform in three phases: first, liposuction of the thighs and calves with an arm lift and breast lift; second an abdominal lift with a buttocks and thigh lift; and, finally, an inner thigh lift. (Tr. at 146, 199, 342.) On December 1, 2004, Dr. Barlow cleared Plaintiff for plastic surgery. (Tr. at 278, 322.) Dr. Ptak preformed the first set of procedures (liposuction of the thighs, knees, and calves; a breast lift, and an arm lift) on December 14, 2004. (Tr. at 151-52, 185-87, 197, 341.) Within the month, Plaintiff was "doing well," and very pleased with her results. (Tr. at 194-95, 340-41.) On December 28, 2004, Plaintiff went to the emergency department with complaints of constipation. An enema relieved her symptoms. (Tr. at 154-57, 332-36.) As of January 5, 2005, Plaintiff was continuing to heal and "doing very well." Dr. Ptak noted that he would proceed with the second set of procedures. (Tr. at 189, 339.) In January of 2005, Nick Morrison M.D., performed a procedure to correct Plaintiff's varicose veins and associated venous insufficiency, (Tr. at 165, 173, 331, 339), and Dr. Ptak later aspirated a seroma in Plaintiff's left arm incision (Tr. at 167, 339). On February 22, 2005, Dr. Ptak performed the second set of procedures (buttocks, thigh, and abdominal lift with hernia repair). (Tr. at 141, 143-45, 166, 181-82.) On February 23, 2005, she complained of discomfort (Tr. at 142), but was feeling better the next day (Tr. at 142). By March of 2005, she was "very pleased" with her results. (Tr. at 164-65, 338-39.) On May 6, 2005, Plaintiff saw Dr. Barlow for stomach muscle pain. She stated that she had experienced abdominal pain since October 2004, and that injections had helped. Dr. Barlow prescribed Levsin (medication to decrease stomach motion) and ordered tests. (Tr. at 277, 318.) An abdominal ultrasound was unremarkable except for a possible kidney stone (Tr. at 158, 169, 178, 276, 287, 317), and an abdominal CT scan was unremarkable except for small liver cysts (Tr. at 159, 169, 179-80, 276, 285-86, 317). -9- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Later in May of 2005, Dr. Ptak noted that Plaintiff had "a very nice result" post operatively and would have an inner thigh lift in the fall. (Tr. at 163, 338.) A few days later, Bruce Freedman, M.D., wrote a letter to Dr. Barlow. Dr. Freedman indicated that he had seen Plaintiff for her complaints of chronic abdominal pain, noting that her symptoms did not begin until well-after her previous surgeries. He also noted that her CT scan was "extremely unremarkable." He concluded her pain might be "musculoskeletal based on all her previous surgery, especially in light of the fact that it seems to respond well to Advil and Ultram ... ." He said it was also possible the pain was from adhesions, which would be "very difficult to prove." He recommended a colonoscopy, trigger point injections, and an abdominal ultrasound. (Tr. at 174, 229, 329, 312.) On June 9, 2005, Dr. Barlow treated Plaintiff for a urinary tract infection. (Tr. at 168, 275, 316.) Later that month, Plaintiff saw Dr. Ptak with complaints of abdominal pain. Examination showed "a little bit of point tenderness." Dr. Ptak felt she might have small neuromas in her incision, and suggested she return when they were tender. He said her symptoms should otherwise improve over time. (Tr. at 161, 338.) Later in June of 2005, Plaintiff saw Derek Landan, M.D., for complaints of abdominal pain and constipation since December of 2004. He scheduled a colonoscopy. (Tr. at 226-28, 236-38, 324, 325-26.) On July 6, 2005, Dr. Landan noted that Plaintiff's colonoscopy, (Tr. at 239-40, 32728), showed hemorrhoids and a few diverticula that were "not of an great concern." He prescribed Zelnorm for constipation. (Tr. at 233-35, 323.) Plaintiff also continued to follow up with Dr. Barlow for abdominal pain complaints from September of 2005 to January of 2006. (Tr. at 269-74, 308-11, 313-15.) In early April of 2007, Dr. Barlow noted that "Aciphex worked then quit working." She adjusted Plaintiff's medications. (Tr. at 307.) On April 27, 2006, Steven Otto, M.D., a state agency physician, reviewed the evidence and concluded that Plaintiff did not have any severe impairments. (Tr. at 298.) On May 24, 2006, Dr. Barlow referred Plaintiff to a gastrointestinal specialist for abdominal pain. (Tr. at 306.) Dr. Barlow also checkmarked boxes indicating Plaintiff had "Moderately Severe" pain, (Tr. at 302), that could "reasonably be expected to result from - 10 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 objective clinical or diagnostic findings" (Tr. at 302). She said movement/overuse, stress, and unknown factors exacerbated Plaintiff's pain, (Tr. at 302), and that Plaintiff's pain would cause deficiencies in concentration, persistence, or pace "[f]requently" (Tr. at 303). She also wrote a letter stating Plaintiff had been "unable to sustain work for eight hours per day, five days per week since December, 2004" due to abdominal pain. (Tr. at 301.) On August 15, 2006, Plaintiff complained of a headache and chest tightness. The treatment provider order tests. (Tr. at 398.) On August 28, 2006, Dr. Ptak responded to Plaintiff's request to review her medical records for complaints of abdominal pain during the fall of 2004. He stated, [T]o my best recollection, as is reflected in my progress note, it was a very generic consultation covering a lot of territory and options for surgery after her extreme weight loss, but no discussion of abdominal pain occurred. She, in fact, put the abdominal and buttock procedure behind in terms of importance. ... I do not have any recollection or notes reflecting discussion of abdominal pain between December [2004] and February 22, 2005, when she underwent her second staged procedure. ... She presented in my office on June 16, 2005, describing some crampy upper mid epigastrium pain and stated that she had seen her internist who was prescribing a GI work-up. To my exam on that day there were very nonspecific and very minimal findings that would relate to a surgical etiology of any abdominal wall discomfort. (Tr. at 337.) In October of 2006, Plaintiff complained of weight gain and tiredness, and had elevated blood pressure. (Tr. at 395.) On November 1, 2006, Ray Hughes, M.D., a state agency physician, reviewed the evidence and concluded that Plaintiff did not have any severe impairments. (Tr. at 343.) As of January 2007, Plaintiff was working part-time and "lov[ed] it." (Tr. at 378-79.) The next month, she complained of right knee pain and leg cramps, and wanted to lose weight. (Tr. at 383.) She later saw cardiologist Chris Geohas, M.D., for chest pain and heart palpitations, but was in no acute distress and her abdominal exam was benign. Dr. Geohas said Plaintiff's chest pain was likely non-cardiac. (Tr. at 349-50.) In March of 2007, Plaintiff's complaints to Dr. Barlow included stomach pain. (Tr. at 375-77.) In April of 2007, Dr. Barlow noted that Plaintiff was undergoing more liposuction in July, but was "going to England and other travels in May." (Tr. at 372-73.) - 11 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 The next month, Dr. Barlow saw Plaintiff for a pre-operative evaluation, and noted that her abdominal pain was "controlled" on Prevacid. (Tr. at 367-69.) During late 2007, Plaintiff saw Dr. Barlow with complaints including insomnia and allergies. (Tr. at 356-66.) A physical evaluation in January of 2008 was unremarkable; Plaintiff was in no acute distress and had normal heart rate and heart rhythm, normal heart sounds, normal breath sounds, normal bowel sounds, and no abdominal tenderness. (Tr. at 351-55.) After summarizing the medical evidence, the ALJ assessed Dr. Barlow's May 2006 opinion and found that Dr. Barlow failed to set forth any medically determinable impairment which could reasonably result in such limitations. The ALJ stated, "Dr. Barlow has simply accepted the claimant's subjective allegations of pain and adopted them as her opinion. As such, the undersigned rejects Dr. Barlow's medical source statement." (Tr. at 19.) The ALJ continued stating: The undersigned notes that, despite numerous diagnostic tests, the medical evidence does not contain any definitive objective medical evidence which might reasonably limit the claimant's residual functional capacity. In this regard, the undersigned notes that Dr. Barlow also prepared a medical source pain questionnaire statement and determined that the claimant had "moderately severe" pain in May 2006. Since the medical evidence, including Dr. Barlow's clinical records, reflect no objective signs of the effects of long-term severe chronic pain such as muscle atrophy, recurrent muscle spasm[,] motor[] function loss, range of movement restriction and the claimant has not been prescribed narcotic pain medication, Dr. Barlow's conclusions appear to be mere adoptions of the claimant's subjective allegations, the truth of which depend on her credibility. (Tr. at 19.) 20 The ALJ is tasked with determining credibility and resolving conflicts in medical 21 testimony, not this Court. See Andrews, 53 F.3d at 1039. "The ALJ need not accept an 22 opinion of a physician ... if it is conclusionary and brief and is unsupported by clinical 23 24 susceptible to more than one rational interpretation," this Court "must uphold the ALJ's 25 decision." Andrews, 53 F.3d at 1039-40. 26 In light of the medical evidence, the ALJ reasonably found that Plaintiff's abdominal 27 pain was not a medically determinable severe impairment and reasonably discounted Dr. 28 - 12 findings." Matney v. Sullivan, 981 F.2d 1016, 1020 (9th Cir. 1992). When "the evidence is 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Barlow's opinion to the contrary as being based on Plaintiff's subjective complaints which, as previously discussed, the ALJ properly found as not credible. See Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (since the record supported the ALJ's credibility finding, he was free to disregard opinion that was premised on subjective complaints) (citing Fair, 885 F.2d at 605). Further, as the Court has demonstrated, Dr. Barlow's opinion was contradicted by the opinions of the reviewing state agency physicians and the clinical findings of record. Thus, substantial evidence supports the ALJ's determination that Plaintiff did not have a medically determinable impairment that had more than a minimal effect on her ability to perform basic work activities. V. CONCLUSION Substantial evidence supports the ALJ's decision to deny disability benefits in this case. The ALJ properly discredited Plaintiff's subjective testimony of her symptoms and set forth specific and legitimate reasons for rejecting the testimony of Dr. Barlow. Consequently, the ALJ's decision is affirmed. Based upon the foregoing discussion, IT IS ORDERED that the decision of the ALJ and the Commissioner of Social Security be affirmed; IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment accordingly. The judgment will serve as the mandate of this Court. DATED this 29th day of March, 2011. - 13 -

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