Morgan v. Astrue

Filing 21

ORDER Defendant's decision denying benefits is affirmed. The Clerk is directed to enter judgment accordingly. Signed by Judge David G Campbell on 8/12/2013. (KMG)

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Morgan v. Colvin Doc. 21     1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Mike W. Morgan, No. CV12-1983 PHX DGC Plaintiff, 10 11 v. 12 ORDER Carolyn W. Colvin, Commissioner of Social Security, 13 Defendant. 14 15 Plaintiff Mike W. Morgan applied for disability insurance benefits and 16 supplemental security income on May 13, 2008, claiming to have been disabled as of 17 September 15, 2006. Tr. 165. His claim was denied initially on September 18, 2009 18 (Tr. 90-93), and upon reconsideration on January 6, 2009 (Tr. 99-101). Plaintiff was 19 granted a video teleconference hearing in which he appeared in Phoenix, Arizona, before 20 an Administrative Law Judge (“ALJ”) who presided over the hearing from San Jose, 21 California, on November 9, 2010. Tr. 25, 42. The ALJ determined that Plaintiff was not 22 disabled within the meaning of the Social Security Act. Tr. 25-37. The ALJ’s decision 23 became Defendant’s final decision when the Appeals Council denied review on July 26, 24 2012. Tr. 1-3. Plaintiff then commenced this action for judicial review pursuant to 25 42 U.S.C. § 405(g). Doc. 1. The parties have not requested oral argument. For reasons 26 that follow, the Court will affirm Defendant’s decision. 27 I. 28 Standard of Review. Defendant’s decision to deny benefits will be vacated “only if it is not supported     1 by substantial evidence or is based on legal error.” Robbins v. Soc. Sec. Admin., 466 F.3d 2 880, 882 (9th Cir. 2006). “‘Substantial evidence’ means more than a mere scintilla, but 3 less than a preponderance, i.e., such relevant evidence as a reasonable mind might accept 4 as adequate to support a conclusion.” 5 supported by substantial evidence, the Court must consider the record as a whole, 6 weighing both the evidence that supports the decision and the evidence that detracts from 7 it. Reddick v. Charter, 157 F.3d 715, 720 (9th Cir. 1998). The Court cannot affirm the 8 decision “simply by isolating a specific quantum of supporting evidence.” 9 Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975); see Robbins, 466 F.3d at 882. 10 II. Id. In determining whether the decision is Day v. Analysis. 11 For purposes of Social Security benefits determinations, a disability is “the 12 inability to do any substantial gainful activity by reason of any medically determinable 13 physical or mental impairment which can be expected to result in death or which has 14 lasted or can be expected to last for a continuous period of not less than 12 months.” 15 20 C.F.R. § 404.1505. Determining whether a claimant is disabled involves a five-step 16 evaluation. The claimant bears the burden in steps one through four of showing that 17 (1) he is not engaged in a substantial gainful activity, (2) he has a severe medically 18 determinable physical or mental impairment, and (3) the impairment meets or equals a 19 listed impairment or (4) his residual functional capacity (“RFC”) precludes him from 20 performing his past work.1 If at any step the Commissioner determines that a claimant is 21 or is not disabled, the analysis ends; otherwise it proceeds to step five. 22 Commissioner bears the burden at step five of showing that the claimant has the RFC to 23 perform other work that exists in substantial numbers in the national economy. 24 See 20 C.F.R. §§ 404.1520(a)(4)(i)-(v) & 416.920(a)(4)(i)-(v). The 25 The ALJ found at step one that Plaintiff had not engaged in substantial gainful 26 1 27 RFC is the most a claimant can do in light of the limitations caused by his impairments. See Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989); 20 C.F.R. § 416.945 (a); SSR 96-8p, 1996 WL 374184 (July 2, 1996). 28 -2-     1 activity since his alleged onset date. Tr. 27. At step two, the ALJ found that Plaintiff 2 suffered from the following severe impairments: 3 polyneuropathy and moderate lumbar degenerative disc disease. Id. The ALJ determined 4 at step three that none of these impairments or their combination met or equaled a listed 5 impairment. Tr. 33. The ALJ then considered the entire record and determined that 6 Plaintiff has the RFC to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 7 416.967(b) with the following restrictions: stand for no more than two hours in an eight- 8 hour workday; no more than occasionally push, pull, balance, climb stairs or ramps, and 9 operate foot controls with the lower extremities; never climb ladders, ramps, or scaffolds; 10 no more than frequently stoop, kneel, crouch, and crawl; and avoid moderate exposure to 11 environments with unprotected heights and rapidly moving machinery. Tr. 33. At step 12 four, the ALJ determined that Plaintiff was not disabled because he was capable of 13 performing his past relevant work. Tr. 37. idiopathic sensory peripheral 14 Plaintiff argues that the ALJ erred by improperly weighing medical opinions 15 (Doc. 13 at 7-17) and by improperly rejecting his symptom allegations (id. at 17-24). 16 Defendant contends the decision is supported by substantial evidence and free from legal 17 error. Doc. 15 at 1. 18 A. Medical Opinion Evidence. 19 “The ALJ must consider all medical opinion evidence.” Tommasetti v. Astrue, 20 533 F.3d 1035, 1041 (9th Cir. 2008); see 20 C.F.R. § 404.1527(d); SSR 96-5p, 21 1996 WL 374183, at *2 (July 2, 1996). Regarding the weight that an ALJ should give to 22 a particular medical opinion, the Ninth Circuit distinguishes between the opinions of 23 treating physicians, examining physicians, and non-examining physicians. See Lester v. 24 Chater, 81 F.3d 821, 830 (9th Cir. 1996). “The ALJ need not accept the opinion of any 25 physician, including a treating physician, if that opinion is brief, conclusory, and 26 inadequately supported by clinical findings.” Thomas v. Barnhart, 278 F.3d 947, 957 27 (9th Cir. 2002). The ALJ may reject the opinion of a treating or examining physician by 28 making “findings setting forth specific legitimate reasons for doing so that are based on -3-     1 substantial evidence in the record.” Id. “The ALJ can meet this burden by setting out a 2 detailed and thorough summary of the facts and conflicting clinical evidence, stating 3 h[er] interpretation thereof, and making findings.” Id. 4 Opinions of examining or consulting physicians alone may constitute substantial 5 evidence supporting the ALJ’s decision when they are consistent with other evidence in 6 the record. See Magallanes v. Bowen, 881 F.2d 747, 752 (9th Cir. 1989) (“[T]he reports 7 of consultative physicians . . . may serve as substantial evidence.”); Morgan v. Comm’r of 8 Soc. Sec. Admin, 169 F.3d 595, 600 (9th Cir. 1999) (“Opinions of a nonexamining, 9 testifying medical advisor may serve as substantial evidence when they are supported by 10 other evidence in the record and are consistent with it.”); Thomas, 278 F.3d at 957 (“The 11 opinions of non-treating or non-examining physicians may . . . serve as substantial 12 evidence when the opinions are consistent with independent clinical findings or other 13 evidence in the record.”); see also 20 C.F.R. § 404.1527(f) (stating that the opinions of 14 non-examining physicians constitute medical evidence). 1. 15 Drs. Jose Pierrend, M.D., and Richard Tapia, M.D. 16 Plaintiff’s treating physician, Dr. Pierrend, completed a work-related activities 17 assessment in September 2009. Tr. 516. Dr. Tapia, Plaintiff’s other treating physician, 18 completed a similar assessment in October 2010. 19 Drs. Pierrend and Tapia both opine that Plaintiff suffers from moderate to moderately 20 severe pain and is unable to work fulltime on a regular and consistent basis.2 Tr. 515-16, 21 696-97. Dr. Pierrend opined that in an eight-hour workday, Plaintiff could sit and stand 22 for less than one hour, and lift and carry between 10 and 20 pounds. Tr. 696. Dr. Tapia 23 opined that in an eight-hour workday, Plaintiff could sit and stand for less than two hours, 24 and lift and carry between 10 and 15 pounds. Id. 25 Tr. 697. In their assessments, The ALJ gave both treating physicians’ opinions “little weight.” Tr. 36. The ALJ 26 27 2 The Court addresses the opinions of Drs. Pierrend and Tapia together because the ALJ did (Tr. 36) and Plaintiff’s brief does the same (Doc. 13 at 7-14). 28 -4-     1 found that the opinions of Drs. Pierrend and Tapia were “too restrictive” and 2 “inconsistent” with their own objective findings and the medical findings of other 3 medical specialists who found normal neurological processes as well as equal and full 4 motor strength. 5 September 2009, when the medical assessment was completed, but did not follow up with 6 Dr. Pierrend again until July 2010. 7 [Dr. Pierrend’s] treatment with the claimant.” Id. The ALJ noted that Dr. Tapia’s 8 treatment notes show that he treated Plaintiff primarily for hypertension, suggesting that 9 “Dr. Tapia might not be in the best position to understand the limitations of the 10 claimant’s sensory peripheral neuropathy.” Id. The ALJ noted that Plaintiff visited a 11 pain clinic for foot pain, but otherwise did not seek treatment for his alleged impairments 12 from December 2009 to September 2010. The ALJ concluded that Plaintiff likely would 13 have sought “more frequent and substantial treatment” during this time if his restrictions 14 had been as severe as suggested by Drs. Pierrend and Tapia. Id. Id. The ALJ noted that Plaintiff met with Dr. Pierrend in The ALJ therefore “question[ed] the extent of 15 Plaintiff argues that the ALJ did not provide clear and convincing reasons to 16 discount the opinions and, in discounting the opinions, that the ALJ did not comply with 17 20 C.F.R. § 404.1527. 18 treatment notes allegedly indicating that his pain is consistent with objective findings (id. 19 at 8-9 (citing Tr. 290, 359, 362; 429, 512; 520-30, 734; 736-39)), but has not pointed to 20 the treatment notes of either Dr. Pierrend or Dr. Tapia, and thus has not shown that the 21 ALJ erred in finding their opinions inconsistent with their own objective findings. Id. at 22 8-10. Plaintiff argues that the ALJ erred in discounting the opinions of Drs. Pierrend and 23 Tapia by “offering a conclusion that the claimant was responding to treatment” (id. at 24 11), but that was not a reason the ALJ provided for discounting the opinions. See Tr. 36. 25 The ALJ rejected the opinions of Drs. Pierrend and Tapia by providing a lengthy 26 evaluation of the medical evidence (Tr. 27-33, 35) and pointing to clinical evidence that 27 does not comport with the restrictiveness of their opinions. This does not constitute legal 28 error. See Thomas, 278 F.3d at 957. The Court finds that the ALJ provided clear and Doc. 13 at 9-13. The Court disagrees. -5- Plaintiff points to     1 convincing reasons, described above, for discounting the opinions of Drs. Pierrend and 2 Tapia. 2. 3 Dr. William Allison, Ph.D., Psychology. 4 Dr. Allison completed a psychological examination of Plaintiff on September 10, 5 2008. Tr. 372. Dr. Allison’s notes from the examination indicate that Plaintiff’s chief 6 complaints were “neuropathy and ‘stroke.’” Tr. 373. Plaintiff reported that he drove 32 7 miles roundtrip to get to the appointment and that he had no problems driving (Tr. 372), 8 reported that he sleeps eight hours a night, that his appetite is good, and that he remains 9 interested and motivated (Tr. 373). Dr. Allison noted that Plaintiff exhibited a clear 10 sensorium, fluent speech without pressure, logical and goal-directed thinking, appropriate 11 affect, euthymic mood, intact judgment, poor insight, and no psychotic symptoms. 12 Tr. 375. On the Wechsler Adult Intelligence Scale III (“WAIS-III”), Plaintiff obtained an 13 89 full-scale IQ score, which is in the low average range. Tr. 375-76. On the Wechsler 14 Memory Scale III (“WMS-III”), Plaintiff obtained memory index scores ranging from 15 superior to low average. Tr. 377-78. Dr. Allison diagnosed Plaintiff as being status post 16 transient ischemic attack and with a Global Assessment of Functioning (“GAF”) score of 17 71.3 Tr. 379. Based on the evaluation, Dr. Allison noted that Plaintiff “demonstrated no 18 loss in cognitive abilities due to his transient ischemic attack.” 19 Dr. Allison concluded that “[t]here is no indication from the psychological testing or the 20 interview today of any cognitive difficulties which would preclude him from working. 21 He has no emotional or psychological difficulties that would require treatment.” Id. 22 Dr. Allison further opined that Plaintiff did not have a condition that would impose any 23 limitation for 12 months. Tr. 380. The ALJ gave “significant weight” to Dr. Allison’s Id. Additionally, 24 25 26 27 3 The GAF scale ranges from 1 to 100 and reflects a person=s overall psychological, social, and occupational functioning. See Morgan, 169 F.3d at 598 n.1; Vargas v. Lambert, 159 F.3d 1161, 1164 n.2 (9th Cir. 1998). A GAF score of 41 to 50 indicates severe symptoms or severe difficulty in functioning, while a GAF score of 51 to 60 indicates moderate symptoms or moderate difficulty in functioning. See id. 28 -6-     1 opinion, finding that the “opinion is consistent with his medical findings as well as [the] 2 paucity of psychiatric treatment.” Tr. 36-37. 3 Plaintiff argues that Dr. Allison failed to review Plaintiff’s medical records 4 predating his 2007 transient ischemic attack and, “[d]ue to this failure, Dr. Allison was 5 precluded from making a comparison with [Plaintiff]’s mental state pre transient 6 ischemic attack.” Doc. 13 at 14-15. Plaintiff submits that the “[t]he combined effect of 7 the impairments” resulting from his transient ischemic attack “were not addressed or 8 factored into Dr. Allison’s conclusions.” Id. at 15. Based on this failure, Plaintiff argues 9 that “it was error for the ALJ to interpret the opinion as demonstrating a lack of 10 11 exertional and non-exertional limitation.” Id. Plaintiff’s argument is wholly unpersuasive. Dr. Allison performed a 12 psychological evaluation (Tr. 372-82) and, based on that independent evaluation, offered 13 an opinion about Plaintiff’s psychological and psychiatric limitations. Dr. Allison did not 14 provide a consultative assessment based on other physicians’ treatment notes, and did not 15 offer an opinion about Plaintiff’s exertional limitations. 16 “Dr. Allison’s opinion as to whether a psychiatric impairment exists was entitled to 17 significant weight.” Doc. 13 at 15. Because this was the only opinion Dr. Allison 18 provided, the ALJ’s decision to rely on it in assessing Plaintiff’s psychological and 19 psychiatric limitations did not constitute legal error. 20 3. Plaintiff concedes that Dr. Teresa Pavese, M.D. 21 Dr. Pavese, a state agency medical consultant, reviewed Plaintiff’s medical 22 records and completed a physical RFC assessment on August 19, 2008. Tr. 364-71. As 23 to Plaintiff’s exertional limitations, the assessment indicates that Plaintiff could 24 occasionally lift 20 pounds, frequently lift 10 pounds, sit for about six hours in an eight- 25 hour workday, and had a limited ability to push and pull in his lower extremities. 26 Tr. 365. The report indicates that Plaintiff has “diminished sensation in both lower 27 extremities” and, because of this, “could only occasionally use his legs for feeling, as per 28 peddling, etc.” Tr. 366. As to Plaintiff’s postural limitations, the assessment indicates -7-     1 that Plaintiff could occasionally climb a ramp or stairs, that he could never climb a 2 ladder, rope, or scaffolds, that he could occasionally balance, and that he could frequently 3 kneel, crouch and crawl. 4 communicative limitations. Tr. 367-68. As to environmental limitations, Dr. Pavese 5 opined that Plaintiff must avoid moderate exposure to hazards like machinery and 6 heights, but was otherwise not limited. Tr. 368. Id. Dr. Pavese found no manipulative, visual, or 7 Plaintiff submits that Dr. Pavese “did not dispute moderate to moderately severe 8 pain” (Doc. 13 at 15) and “found [Plaintiff] to suffer a lack of sleep at night” (id. at 16), 9 and that these findings “are not inconsistent with treating physician opinions and 10 symptom reporting” (id.). Plaintiff argues that the ALJ’s failure to discuss Dr. Pavese’s 11 opinion of pain and fatigue was error. Id. The Court disagrees. Dr. Pavese assessed 12 Plaintiff’s RFC, and, in doing so, reviewed all the evidence in Plaintiff’s file (Tr. 364), 13 including evidence indicating that Plaintiff suffers from painful sensory peripheral 14 polyneuropathy, has chronic bilateral foot pain, and suffers from obstructive sleep apnea, 15 and uses medicines that cause daytime drowsiness. Based on this, Dr. Pavese assessed 16 Plaintiff’s RFC. Dr. Pavese did not offer an opinion about Plaintiff’s pain and fatigue; 17 she merely reviewed evidence showing that Plaintiff suffered from pain and fatigue.4 A 18 consultative physician’s review and description of evidence is not medical opinion 19 evidence. Accordingly, the Court cannot find that the ALJ erred in failing to evaluate the 20 portion of Dr. Pavese’s assessment that referred to evidence indicating Plaintiff suffers 21 22 23 24 25 26 27 4 Plaintiff cites to the vocational expert’s hearing testimony and argues that “such pain would preclude sustained full time competitive employment.” Doc. 13 at 15 n.5 (citing Tr. 79, 80). The vocational expert testified that someone with an ability to do work-related physical activities as opined by Dr. Tapia (Tr. 696-97) “would not be able to perform any work” (Tr. 80). Dr. Tapia’s assessment indicates that Plaintiff’s moderately severe pain would further limit his ability to sustain fulltime work. Tr. 697. Dr. Pavese’s RFC assessment does not indicate that Plaintiff suffers from “moderate to moderately severe pain” (Doc. 13 at 15). Accordingly, the Court cannot find that if the ALJ had accorded any weight to the portion of Dr. Pavese’s assessment that summarizes medical evidence that the ALJ would have been required to find Plaintiff disabled based on the vocational expert’s testimony. 28 -8-     1 from pain and fatigue. 2 Although the ALJ’s decision does not refer to Dr. Pavese’s opinion, the ALJ does 3 appear to have afforded the opinion some weight because, as Plaintiff submits, “the 4 ALJ’s [RFC] assessment is similar to that assessed by Dr. Pavese.” Doc. 19 at 6; 5 compare Tr. 33 with Tr. 365-68. Plaintiff argues that evidence in the record does not 6 support Dr. Pavese’s opinion because she completed the assessment two years before the 7 hearing and did not set forth the records she reviewed.5 Doc. 19 at 7. Dr. Pavese did not 8 specifically indicate which medical records she relied upon in making the RFC 9 assessment, but her explanation demonstrates that she relied upon records from 1993 10 through 2008. Tr. 365-66. Accordingly, the Court does not agree that Dr. Pavese’s 11 opinion is unsupported by record evidence. Plaintiff argues that Dr. Pavese’s opinion is 12 inconsistent with other medical evidence because it “is markedly different from all other 13 opinions in the file and ignores significant findings from lumbar and cervical spine 14 MRIs.” Doc. 19 at 7. Dr. Pavese’s opinion is not consistent with the opinions of 15 Drs. Pierrend and Tapia, but the ALJ properly discounted those opinions, and her opinion 16 is consistent with the medical evidence summarized by the ALJ. See Tr. 35. Plaintiff 17 attempts to discredit Dr. Pavese’s opinion by stating that she is “an ophthalmologist and 18 not board certified in any specialty.” Doc. 19 at 7. As a state agency medical consultant, 19 the ALJ was obligated to consider Dr. Pavese’s opinion regardless of Plaintiff’s 20 allegations. See 20 C.F.R. § 404.1527(e). Because Dr. Pavese’s opinion is consistent 21 with other evidence in the record, and the ALJ’s RFC assessment mirrored her RFC 22 assessment, her opinion constitutes substantial evidence supporting the ALJ’s RFC 23 assessment. See Thomas, 278 F.3d at 957; Magallanes, 881 F.2d at 752. Any error in the 24 25 26 27 5 In his reply brief, Plaintiff argues that the ALJ erred in affording any weight to Dr. Pavese’s opinion. Doc. 19 at 7. Although the Court has considered and rejected the argument, the Court notes that it need not consider arguments raised for the first time in a reply brief. Lentini v. Cal. Ctr. for Arts, 370 F.3d 837 n.6 (9th Cir. 2004); Gadda v. State Bar of Cal., 511 F.3d 933, 937 n.2 (9th Cir. 2007). 28 -9-     1 ALJ’s failure to refer to Dr. Pavese’s opinion is harmless. See Tommasetti, 533 F.3d at 2 1038 (“the court will not reverse an ALJ’s decision for harmless error, which exists when 3 it is clear from the record that the ALJ’s error was inconsequential to the ultimate 4 nondisability determination.” (quotation marks and citations omitted)). 5 B. Plaintiff’s Testimony. 6 Plaintiff testified that he lives in a friend’s house with his wife and that friend. 7 Tr. 59. Plaintiff stated that he spends his typical day watching television, that he goes 8 grocery shopping with his wife for 45 minutes to an hour each week, and that he 9 occasionally sees his grandchildren. Tr. 57-59, 71. Plaintiff stated that he has not been 10 able to work because he forgets things, has pain and numbness in his feet, pain in his 11 lower back, and numbness in his fingers and hands. Tr. 59, 61. Plaintiff described 12 having had a stroke in 2005, and stated that after the stroke he suffered from weakness, 13 numbness, a generally weaker left side, and memory problems. Tr. 63-64. Plaintiff 14 testified that he had a transient ischemic attack – a stroke like incident – in 2007. Tr. 65. 15 Plaintiff stated that after the attack he continued to have problems with the left side of his 16 body as well as memory and concentration problems. Tr. 65-66. 17 Plaintiff rated his pain as a seven on a scale of one to ten, with ten being “terrible 18 pain.” Tr. 60. Plaintiff described having muscle spasms in the tops of his feet, sharp 19 pains on the sides of his feet, and numbness and weakness in his feet. Tr. 60-61. 20 Plaintiff testified that he sometimes falls because of the loss of feeling in his feet (Tr. 61) 21 and that standing too long aggravates his feet pain (Tr. 62). Plaintiff described his back 22 pain as “something slipping around,” and stated that the pain is not as bad as his feet pain 23 and that it is constant and worsens at night. Tr. 61. Plaintiff testified that bending and 24 kneeling aggravates his back pain. Tr. 62. Plaintiff stated that he must sit or lie down 25 because of his back pain and that morphine helps to alleviate the pain somewhat. Id. 26 Plaintiff described feeling drowsy and lightheaded from the morphine. Tr. 71. Plaintiff 27 described having chronic numbness and achiness in his hands, and stated that he 28 frequently drops things and has problems grasping because of this ailment. Tr. 63. - 10 -     1 Plaintiff stated that his memory problems cause him to forget things, and that he uses task 2 lists but still forgets things on his lists. Tr. 66. Plaintiff stated that he has concentration 3 problems that make it difficult for him to follow conversations. Id. Plaintiff stated that 4 his memory and concentration problems are constant. Tr. 66-67. Plaintiff testified that 5 he has high blood pressure that is currently under control with medication. Tr. 67. 6 Plaintiff stated that he suffers from chronic kidney disease that causes him to have to go 7 to the bathroom more frequently than normal. Id. 8 Plaintiff testified that he can sit for about a half hour before he needs to stand 9 because of his feet and back pain. Tr. 68. Plaintiff testified that he can stand for about a 10 half hour before he has to sit down because of his pain. Id. Plaintiff stated that he gets 11 shortness of breath and that he can walk for about 15 to 20 minutes before his pain 12 intensifies. Tr. 69. Plaintiff described having to lie down and elevate his legs about three 13 to four times a day. Tr. 70. Plaintiff stated that he has difficulties falling asleep and 14 waking up. Tr. 69. Plaintiff testified that he cannot return to his past work fulltime and 15 that he cannot perform any work fulltime because he cannot sit or stand for very long. 16 Tr. 71-72. 17 The ALJ concluded Plaintiff’s statements concerning the intensity, persistence, 18 and limiting effects of his symptoms were not credible to the extent they are inconsistent 19 with the RFC assessment. Tr. 34. In reaching this conclusion, the ALJ evaluated 20 Plaintiff’s testimony using the two-step analysis established by the Ninth Circuit. 21 See Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). Applying the test of Cotton v. 22 Bowen, 799 F.2d 1403 (9th Cir. 1986), the ALJ first determined that Plaintiff’s 23 impairments could reasonably produce the symptoms alleged. 24 conclusion, and because there is no evidence of malingering, the ALJ was required to 25 present “specific, clear and convincing reasons” for finding Plaintiff not entirely credible. 26 Smolen, 80 F.3d at 1281. This clear and convincing standard “is the most demanding 27 required in Social Security cases.” Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 28 924 (9th Cir. 2002). - 11 - Tr. 34. Given this     1 Plaintiff argues that the ALJ improperly rejected his subjective complaints by not 2 specifying which statements are not credible and explaining why. Doc. 13 at 19. The 3 Court disagrees. The ALJ’s RFC assessment indicates that the ALJ found Plaintiff’s 4 statements about his ability to sit and stand not credible. In rejecting that testimony, the 5 ALJ first found the objective medical evidence inconsistent and unsupportive of 6 Plaintiff’s allegations, and second, the ALJ found Plaintiff not credible due to 7 inconsistencies in his testimony and inconsistencies between his testimony and his daily 8 activities. 9 As to the first, the ALJ examined the objective evidence of record and made the 10 following findings: (1) physical therapy notes showed improved peripheral neuropathy, 11 balance, and agility; (2) evaluation notes indicated normal posture and gait with no 12 unusual motor movements; (3) a September 2010 physical examination showed no 13 edema, full and equal strength, and no neurological deficits; (4) physical examinations 14 found normal neurological processes and treatment notes indicated stable processes; 15 (5) EEGs, lumbar MRIs and some EMG testing indicated no significant abnormality as to 16 muscle atrophy, gait, and motor loss; (6) subsequent clinical findings – including normal 17 brain MRI, normal EEG, normal IQ, and normal memory function – confirmed no 18 permanent residual impact from Plaintiff’s transient ischemic attack; (7) lab reports 19 showed no significant abnormalities of kidney functions; and (8) a psychological 20 examination showed a mood disorder that was nondurational and not acute. Tr. 35-36. 21 In noting the above, the ALJ found that that “the evidence as a whole does not support 22 that [Plaintiff’s] impairments are as severe as alleged.” Tr. 36. Plaintiff does not appear 23 to argue that the ALJ improperly rejected his subjective symptom testimony due to a lack 24 of supporting objective evidence, but, in any event, the Court finds that the ALJ did not 25 err in finding the objective medical evidence inconsistent and not supportive of Plaintiff’s 26 pain allegations. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 27 (9th Cir. 2008) (“Contradiction with the medical record is a sufficient basis for rejecting 28 the claimant’s subjective testimony.”) (citation omitted); Batson v. Comm’r of Soc. Sec. - 12 -     1 Admin., 359 F.3d 1190, 1197 (9th Cir. 2004) (lack of objective medical evidence 2 supporting claimant’s allegations supported ALJ’s finding that claimant was not 3 credible). 4 As to the second, the ALJ noted Plaintiff’s testimony about experiencing shortness 5 of breath (Tr. 69), and found that this testimony was inconsistent with treatment notes 6 indicating that Plaintiff denied shortness of breath. Tr. 36 (citing Tr. 267). The ALJ 7 found that Plaintiff’s activities of daily living do not support his allegations of severity 8 (Tr. 36), and, as an example, noted that Plaintiff described pain in his feet, but also 9 reported driving 16 miles to an appointment and had indicated having no problems with 10 driving (id (citing Tr. 372, 188)). The ALJ also found that treatment notes indicating that 11 Plaintiff had performed “some physical labor” “suggest[ed] that his back pain was not as 12 severe as alleged.” Tr. 36 (citing Tr. 432). Plaintiff argues that the ALJ did not explain 13 what alleged limitation conflicts with what daily activity (Doc. 13 at 19), and specifically 14 did “not cite any activity which demonstrates an ability to sustain a full time work pace, 15 even at a sedentary level of exertion” (id. at 20). The Court disagrees. The ALJ properly 16 considered inconsistencies in Plaintiff’s testimony and inconsistencies between his 17 conduct and daily activities in finding his testimony incredible. See Thomas, 278 F.3d at 18 958-59; see also Curry v. Astrue, No. 09-CV-2580-PHX-GMS, 2010 WL 3789535, at *6 19 (D. Ariz. Sept. 22, 2010); Burch v. Barnhart, 400 F.3d 676, 680-81 (9th Cir. 2005). 20 Plaintiff argues that the ALJ improperly rejected his subjective complaints based 21 on a finding that he was non-compliant with a prescribed treatment (Doc. 13 at 21-22), 22 and that his condition was improving with a successful course of treatment (id. at 22-24). 23 The ALJ did note that Plaintiff “refused an EMG of his upper extremities” and “did not 24 fill out” a prescription (Tr. 35), but she did not offer this noncompliance as a reason to 25 discredit Plaintiff’s testimony. The ALJ referenced the noncompliance in her discussion 26 of the objective medical evidence only. Similarly, the ALJ did not discredit Plaintiff’s 27 symptom allegations based on a finding that Plaintiff’s condition was improving. The 28 ALJ referred to medical notes indicating that Plaintiff was feeling better (Tr. 35 - 13 -     1 (citing Tr. 357, 530, 572, 698)) in her summary of medical evidence that did not comport 2 with Plaintiff’s complaints. 3 The Court concludes that inconsistencies between Plaintiff’s testimony and 4 objective medical evidence, as well as inconsistencies in Plaintiff’s testimony itself, 5 provide clear and convincing reasons, based upon substantial evidence, for discounting 6 Plaintiff’s credibility. 7 IT IS ORDERED: 8 1. Defendant=s decision denying benefits is affirmed. 9 2. The Clerk is directed to enter judgment accordingly. 10 Dated this 12th day of August, 2013. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 14 -

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