Kenner v. Astrue
Filing
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ORDER, the decision of the Administrative Law Judge is affirmed; the Clerk shall enter judgment accordingly; the judgment shall serve as the mandate of this Court. Signed by Senior Judge James A Teilborg on 7/29/13. (REW)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Plaintiff,
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vs.
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Michael Astrue, Commissioner, Social)
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Security Administration,
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Defendant.
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Toniann Kenner,
No. CV 12-0800-PHX-JAT
ORDER
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Pending before the Court is Plaintiff’s appeal from the Administrative Law Judge’s
(“ALJ”) denial of Plaintiff’s Title II application for disability insurance benefits.
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I.
PROCEDURAL BACKGROUND
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Plaintiff Toniann Kenner filed a Title II application for Disability Insurance Benefits
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on October 2, 2008, alleging that her disability began on February 22, 2002. (Record
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Transcript (“TR”) 116).1 Plaintiff was 38 years old at the time of filing her application, and
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listed her illnesses, injuries, and conditions as back, shoulder, neck, and knee pain. (TR 134).
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Plaintiff’s application was denied initially and upon reconsideration. (TR 70, 75). On May
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8, 2009, Plaintiff filed a request for a hearing, and, on December 11, 2009, Plaintiff appeared
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at a video hearing before an ALJ. (TR 80; TR 45). On December 22, 2009, the ALJ issued
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Although both parties indicate that Plaintiff’s application was filed in September
2008, the application itself is dated October 2, 2008. (TR 116).
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an unfavorable decision. (TR 24). On July 25, 2011, the Appeals Council denied Plaintiff’s
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January 11, 2010 request for review. (TR 14; TR 22).
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On April 17, 2012, Plaintiff filed her Complaint for Judicial Review of the ALJ’s
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decision. (Doc. 1). Plaintiff argues that the Court should vacate the Administrative Law
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Decision because: (1) the ALJ erred by rejecting the opinions of treating physicians; and (2)
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the ALJ erred by rejecting Plaintiff’s symptom testimony in the absence of clear and
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convincing reasons for so doing. (Doc. 12).
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II.
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The Commissioner’s decision to deny benefits will be overturned “only if it is not
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supported by substantial evidence or is based on legal error.” Magallanes v. Bowen, 881 F.2d
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747, 750 (9th Cir. 1989) (internal quotation omitted). Substantial evidence is more than a
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mere scintilla, but less than a preponderance. Reddick v. Charter, 157 F.3d 715, 720 (9th Cir.
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1998). It is such relevant evidence as a reasonable mind might accept as adequate to support
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a conclusion. Id.
LEGAL STANDARD
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In determining whether there is substantial evidence to support a decision, this Court
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considers the record as a whole, weighing both the evidence that supports the administrative
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law judge’s conclusions and the evidence that detracts from the administrative law judge’s
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conclusions. Id. If there is sufficient evidence to support the Commissioner’s determination,
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the Court cannot substitute its own determination for that of the ALJ. Id. Additionally, the
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administrative law judge is responsible for resolving conflicts in medical testimony,
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determining credibility, and resolving ambiguities. See Andrews v. Shalala, 53 F.3d 1035,
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1039 (9th Cir. 1995). Thus, if on the whole record before this Court, substantial evidence
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supports the Commissioner’s decision, this Court must affirm it. See Hammock v. Bowen,
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879 F.2d 498, 501 (9th Cir. 1989); see also 42 U.S.C. § 405(g).
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A.
Definition of Disability
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To qualify for disability benefits under the Social Security Act, a claimant must show,
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among other things, that he is “under a disability.” 42 U.S.C. § 423(a)(1)(E). The Social
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Security Act defines “disability” as the “inability to engage in any substantial gainful activity
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by reason of any medically determinable physical or mental impairment which can be
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expected to result in death or which has lasted or can be expected to last for a continuous
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period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). A person is “under a disability
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only if his physical or mental impairment or impairments are of such severity that he is not
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only unable to do his previous work but cannot, considering his age, education, and work
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experience, engage in any other kind of substantial gainful work which exists in the national
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economy.” 42 U.S.C. § 423(d)(2)(A).
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B.
Five-Step Evaluation Process
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The Social Security regulations set forth a five-step sequential process for evaluating
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disability claims. 20 C.F.R. § 404.1520; see also Reddick, 157 F.3d at 721 (describing the
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sequential process). A finding of “not disabled” at any step in the sequential process will end
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the ALJ’s inquiry. 20 C.F.R. § 404.1520(a)(4). The claimant bears the burden of proof at
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the first four steps, but the burden shifts to the ALJ at the final step. Reddick, 157 F.3d at
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721.
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The five steps are as follows:
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1.
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First, the ALJ determines whether the claimant is “doing substantial gainful
activity.” 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not disabled.
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If the claimant is not gainfully employed, the ALJ next determines whether the
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claimant has a “severe medically determinable physical or mental impairment.” 20 C.F.R.
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§ 404.1520(a)(4)(ii). A severe impairment is one that “significantly limits [the claimant’s]
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physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). Basic work
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activities means the “abilities and aptitudes to do most jobs.” 20 C.F.R. § 404.1521(b).
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Further, the impairment must either be expected “to result in death” or “to last for a
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continuous period of twelve months.” 20 C.F.R. § 404.1509 (incorporated by reference in
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20 C.F.R. § 404.1520(a)(4)(ii)). The “step-two inquiry is a de minimis screening device to
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dispose of groundless claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996).
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3.
Having found a severe impairment, the ALJ next determines whether the
impairment “meets or equals” one of the impairments specifically listed in the regulations.
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20 C.F.R. § 404.1520(a)(4)(iii). If so, the claimant is found disabled without considering the
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claimant’s age, education, and work experience. 20 C.F.R. at § 404.1520(d).
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At step four, the ALJ determines whether, despite the impairments, the
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claimant can still perform “past relevant work.” 20 C.F.R. § 404.1520(a)(4)(iv). To make
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this determination, the ALJ compares the “residual functional capacity assessment . . . with
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the physical and mental demands of [the claimant’s] past relevant work.” 20 C.F.R. §
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404.1520(f). If the claimant can still perform the kind of work the claimant previously did,
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the claimant is not disabled. Otherwise, the ALJ proceeds to the final step.
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At the final step, the ALJ determines whether the claimant “can make an
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adjustment to other work” that exists in the national economy.
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404.1520(a)(4)(v). In making this determination, the ALJ considers the claimant’s residual
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functional capacity, together with vocational factors (age, education, and work experience).
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20 C.F.R. § 404.1520(g)(1). If the claimant can make an adjustment to other work, then he
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is not disabled. If the claimant cannot perform other work, he will be found disabled. As
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previously noted, the ALJ has the burden of proving the claimant can perform other
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substantial gainful work that exists in the national economy. Reddick, 157 F.3d at 721.
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III.
20 C.F.R. §
ANALYSIS
A.
Whether the ALJ Erred by Rejecting the Opinions of Treating
Physicians
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Plaintiff first argues that the ALJ erred in assigning only limited weight to the opinion
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of Dr. Bajpai while assigning significant weight to the opinion of Dr. Ani. Plaintiff does not
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appear to object to the assignment of probative weight to the opinion of Dr. Guice. All three
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physicians treated Plaintiff.
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The ALJ must consider all medical evidence in the record. 20 C.F.R. § 404.1527(b).
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“The ALJ is responsible for resolving conflicts in the medical record.” Carmickle v.
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Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008). Such conflicts may arise
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between a treating physician’s medical opinion and other evidence in the claimant’s record.
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A treating physician’s opinion is usually entitled to “substantial weight.” Bray v. Comm’r,
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Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009) (quoting Embrey v. Bowen, 849 F.2d
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418, 422 (9th Cir. 1988)). A treating physician’s opinion is given controlling weight when
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it is “well-supported by medically accepted clinical and laboratory diagnostic techniques and
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is not inconsistent with the other substantial evidence in [the claimant’s] case record.” 20
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C.F.R. § 404.1527(d)(2). On the other hand, if a treating physician’s opinion “is not well-
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supported” or “is inconsistent with other substantial evidence in the record,” then it should
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not be given controlling weight. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007).
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Substantial evidence that contradicts a treating physician’s opinion may consist of
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either (1) an examining physician’s opinion or (2) a nonexamining physician’s opinion
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combined with other evidence. Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). In the
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case of an examining physician, “[w]hen an examining physician relies on the same clinical
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findings as a treating physician, but differs only in his or her conclusions, the conclusions of
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the examining physician are not substantial evidence.” Orn, 495 F.3d at 632 (citing Murray
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v. Heckler, 722 F.2d 499, 501-502 (9th Cir. 1984)). To constitute substantial evidence, the
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examining physician must provide “independent clinical findings that differ from the findings
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of the treating physician.” Id. (citing Miller v. Heckler, 770 F.2d 845, 849 (9th Cir. 1985)).
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Independent clinical findings can be either “diagnoses that differ from those offered by
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another physician and that are supported by substantial evidence, . . . or findings based on
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objective medical tests that the treating physician has not herself considered.” Id. (citing
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Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984); Andrews v. Shalala, 53 F.3d 1035, 1041
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(9th Cir. 1995)).
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“The opinion of a nonexamining physician cannot by itself constitute substantial
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evidence that justifies the rejection of the opinion of either an examining physician or a
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treating physician.” Lester, 81 F.3d at 831. Such an opinion is only substantial evidence if
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supported by “substantial record evidence.” Id.
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If the ALJ determines that a treating physician’s opinion is inconsistent with
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substantial evidence and is not to be given controlling weight, the opinion remains entitled
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to deference and should be weighed according to the factors provided in 20 C.F.R. §
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404.1527(d). Orn, 495 F.3d at 631; SSR 96–2p at 4. These factors include: (1) the length
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of the treatment relationship and the frequency of examination; (2) the nature and extent of
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the treatment relationship; (3) the extent to which the opinion is supported by relevant
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medical evidence; (4) the opinion’s consistency with the record as a whole; and (5) whether
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the physician is a specialist giving an opinion within his specialty. 20 C.F.R. § 404.1527(d).
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If a treating physician’s opinion is not sufficiently supported by medical evidence and
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other substantial evidence in the case, however, the ALJ need not give the opinion
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controlling weight. Orn, 495 F.3d at 631.
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In this case, the record supports the ALJ’s decision to give limited weight to the
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opinion of Dr. Bajpai while assigning significant weight to the opinion of Dr. Ani. The ALJ
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set out a detailed and thorough summary of the facts and conflicting clinical evidence by
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recounting Plaintiff’s testimony and the medical reports of all three treating physicians. After
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discussing Dr. Bajpai’s opinion, the ALJ stated that she found his opinion to be “not
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consistent with the medical evidence of record.” (TR 32). The ALJ further stated, “Dr.
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Bajpai’s own reports fail to reveal the type of significant clinical and laboratory
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abnormalities one would expect if the claimant were in fact disabled and the doctor did not
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specifically address this weakness.” (TR 32). The ALJ did not err in assigning limited weight
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to Dr. Bajpai’s opinion after determining that his opinion was brief and conclusory with few
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clinical findings to support it. Accordingly, the reasons the ALJ gave for assigning limited
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weight to Dr. Bajpai’s opinion were sufficient.
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B.
Whether the ALJ Erred by Rejecting Plaintiff’s Symptom
Testimony in the Absence of Clear and Convincing Reasons
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Plaintiff’s second argument is that the ALJ failed to provide clear and convincing
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reasons for rejecting Plaintiff’s subjective reports regarding her symptoms. Plaintiff objects
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to the ALJ’s determination that her statements concerning the intensity, persistence, and
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limiting effects of the symptoms were not credible to the extent that they were inconsistent
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with the residual functional capacity assessment. Specifically, Plaintiff argues that the ALJ
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erred in finding that the evidence regarding Plaintiff’s role as caretaker of her son
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contradicted Plaintiff’s reported levels of pain. Plaintiff further argues that the ALJ
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improperly found that Plaintiff’s earnings history undermined her credibility. (Doc. 12).
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“Once a claimant produces medical evidence of an underlying impairment which is
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reasonably likely to be the cause of some pain, the ALJ ‘may not discredit a claimant’s
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testimony of pain and deny disability benefits solely because the degree of pain alleged by
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the claimant is not supported by objective medical evidence.’” Orteza v. Shalala, 50 F.3d
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748, 749-750 (9th Cir. 1995) (quoting Bunnell v. Sullivan, 947 F.2d 341, 346-347 (9th Cir.
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1991) (en banc)). The ALJ must make specific findings based on the record for discounting
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a claimant’s subjective complaints. See Savage v. Astrue, No. CV-11-02103, 2013 WL
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551461, at *7 n. 1 (D. Ariz. Feb. 13, 2013).
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There is no question in this case that the ALJ found that there was medical evidence
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of underlying impairments reasonably likely to cause pain. See TR 31 (“the claimant’s
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medically determinable impairments could reasonably be expected to cause the alleged
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symptoms; however, the claimant’s statements concerning the intensity, persistence and
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limiting effects of these symptoms are not credible to the extent they are inconsistent with
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the above residual functional capacity assessment”).
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The question then is whether the ALJ discredited Plaintiff’s subjective reports of pain
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solely because such pain was not supported by objective medical evidence. “Although an
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ALJ ‘cannot be required to believe every allegation of disabling pain,’ the ALJ cannot reject
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testimony of pain without making findings sufficiently specific to permit the reviewing court
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to conclude that the ALJ did not arbitrarily discredit the claimant’s testimony.” Orteza, 50
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F.3d at 750 (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). The adjudicator
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should consider numerous factors when making such credibility determinations, including
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the nature, location, onset, duration, frequency, radiation, and intensity of any pain;
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precipitating and aggravating factors (e.g., movement, activity, environmental conditions);
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type, dosage, effectiveness, and adverse side-effects of any pain medication; treatment, other
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than medication, for relief of pain; functional restrictions; and the claimant’s daily activities.
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Bunnell, 947 F.2d at 346 (citing SSR 88-13, 1988 WL 236011, July 20, 1988).
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“[I]f the claimant engages in numerous daily activities involving skills that could be
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transferred to the workplace, an adjudicator may discredit the claimant’s allegations upon
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making specific findings relating to the claimant’s daily activities.” Id. (citing Fair, 885 F.2d
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at 603). “An adjudicator may also use ‘ordinary techniques of credibility evaluation’ to test
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a claimant’s credibility.” Id. (internal citation omitted). “So long as the adjudicator makes
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specific findings that are supported by the record, the adjudicator may discredit the
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claimant’s allegations based on inconsistencies in the testimony or on relevant character
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evidence.” Id.
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In this case, the ALJ made specific findings to support her determination that
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Plaintiff’s statements regarding the intensity, persistence, and limiting effects of her
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condition were not fully credible and did not prevent her from performing her past relevant
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work, which would not exceed her residual functional capacity to perform light work at a
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maximum specific vocational preparation (SVP) rating of three. In making the credibility
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determination, the ALJ considered the factors required by SSR 88-13.
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The ALJ compared the reports of Plaintiff’s treating physicians with Plaintiff’s own
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reports of her pain, and also examined Plaintiff’s own reports for internal consistency. The
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ALJ concluded that Plaintiff’s subjective reports of her pain were inconsistent with the fact
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that she “was able to care for her four year old son at home, which can be quite demanding
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both physically and emotionally, without any particular assistance on a regular basis.” (TR
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32). Plaintiff objects to this conclusion by pointing to her reports that her mother helped her
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with her son for a few months, that she would at times call her husband home from work to
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help with their son, and that she could not pick up her son once he weighed 10 pounds or
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play with him. (Doc. 12). These reports, however, do not overcome the fact that Plaintiff was
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regularly the only person at home to care for her son.
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The ALJ also noted that Plaintiff worked from 1986 to 2002, but that, during only five
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of those years, did she work at substantial gainful activity. The ALJ found that the earnings
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record “raise[d] a question as to whether [Plaintiff’s] continuing unemployment [was]
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actually due to medical impairments.” Plaintiff objects to this conclusion on the basis that the
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first year the ALJ considered was when Plaintiff was 16 years old and that the conclusion
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drawn “is unfounded and shows bias against lower wage earners.” (Doc. 12). Even if
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Plaintiff’s earnings history from the few years before she reached adulthood are disregarded,
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Plaintiff worked at substantial gainful activity for five out of fourteen or fifteen years. As
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such, the ALJ’s observation was not unfounded nor does it show bias against lower wage
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earners.
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Based on the foregoing, the ALJ did not “discredit a claimant’s testimony of pain and
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deny disability benefits solely because the degree of pain alleged by the claimant was not
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supported by objective medical evidence,” but rather made “specific findings that are
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supported by the record.”
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IV.
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Accordingly, the ALJ did not err in finding that Plaintiff was not disabled within the
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CONCLUSION
meaning of the Social Security Act.
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Based on the foregoing,
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IT IS ORDERED that the decision of the Administrative Law Judge is AFFIRMED.
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IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment
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accordingly. The judgment shall serve as the mandate of this Court.
DATED this 29th day of July, 2013.
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