Tenorio v. Colvin

Filing 23

ORDER - Based on the foregoing, the Commissioner's decision is affirmed. The clerk of court shall enter judgment dismissing plaintiff's complaint with prejudice. (See document for further details). Signed by Judge H Russel Holland on 4/8/1. (LAD)

WO

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

MAE A. TENORIO,

)
)
Plaintiff,
)
)
vs.
)
)
CAROLYN W. COLVIN, acting
)
Commissioner, Social Security
)
Administration,
)
)
Defendant.
)
__________________________________________)

No. 2:14-cv-0276-HRH

ORDER
This is an action for judicial review of the denial of disability benefits under Title XVI
of the Social Security Act, 42 U.S.C. §§ 1381-1383f. Plaintiff has timely filed her opening
brief,1 to which defendant has responded.2 Oral argument was not requested and is not
deemed necessary.
Procedural History
Plaintiff is Mae A. Tenorio. Defendant is Carolyn W. Colvin, acting Commissioner
of Social Security.

1

Docket No. 20.

2

Docket No. 21.
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On June 15, 2010, plaintiff filed an application for disability benefits under Title XVI
of the Social Security Act.3 Plaintiff alleged that she became disabled on June 1, 2010.
Plaintiff alleged that she is disabled due to back surgery. Plaintiff’s application was denied
initially and upon reconsideration. After a hearing on March 29, 2012, an administrative law
judge (ALJ) denied plaintiff’s claim. On June 10, 2013, the Appeals Council denied plaintiff’s
request for review, thereby making the ALJ’s April 9, 2012 decision the final decision of the
Commissioner. On February 13, 2014, plaintiff commenced this action in which she asks the
court to find that she is entitled to disability benefits.
General Background
Plaintiff was born on March 26, 1959. She was 53 years old at the time of the hearing.
Plaintiff has a high school education and was enrolled in college at the time of the hearing.
Plaintiff lives in a house with friends. Plaintiff’s past relevant work includes work as a case
manager in a family shelter and a cashier/hostess.
The ALJ’s Decision
The ALJ applied the five-step sequential analysis used to determine whether an
individual is disabled.4

3

Plaintiff had previously filed an application for disability benefits, which was denied
on initial review in June 2008. Admin. Rec. at 154. Plaintiff did not seek further review of
that denial.
4

The five steps are as follows:
(continued...)
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At step one, the ALJ found that plaintiff had “not engaged in substantial gainful
activity since June 15, 2010, the application date....”5
At step two, the ALJ found that plaintiff had “the following severe impairments:
degenerative disc disease and hepatitis C....”6 The ALJ found that plaintiff’s substance abuse
was not a severe impairment because she has been “clean and sober” since 2008 and because
“the record contains no objective findings that [plaintiff’s] substance abuse more than

4

(...continued)
Step one: Is the claimant presently engaged in substantial
gainful activity? If so, the claimant is not disabled. If not,
proceed to step two.
Step two: Is the claimant’s alleged impairment sufficiently
severe to limit ... her ability to work? If so, proceed to step three.
If not, the claimant is not disabled.
Step three: Does the claimant’s impairment, or combination of
impairments, meet or equal an impairment listed in 20 C.F.R.,
pt. 404, subpt. P, app. 1? If so, the claimant is disabled. If not,
proceed to step four.
Step four: Does the claimant possess the residual functional
capacity (“RFC”) to perform ... her past relevant work? If so, the
claimant is not disabled. If not, proceed to step five.
Step five: Does the claimant’s RFC, when considered with the
claimant’s age, education, and work experience, allow ... her to
adjust to other work that exists in significant numbers in the
national economy? If so, the claimant is not disabled. If not, the
claimant is disabled.

Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006).
5

Admin. Rec. at 21.

6

Admin. Rec. at 21.
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minimally affected her ability to perform basic work activities.”7 The ALJ also found that
plaintiff’s gall bladder condition was not severe because “the record contains no objective
findings or medical evidence that [this] condition imposed more than a minimal limitation
on her ability to perform basic work activities for any continuous 12 month period[.]”8
At step three, the ALJ found that plaintiff did “not have an impairment or
combination of impairments that meets or medically equals the severity of one of the listed
impairments in 20 CFR Part 404, Subpart B, Appendix 1....”9 The ALJ considered Listing 1.04
(disorders of the spine) and 5.05 (chronic liver disease).10
“Between steps three and four, the ALJ must, as an intermediate step, assess the
claimant’s RFC.” Bray v. Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1222-23 (9th Cir. 2009).
The ALJ found that plaintiff
has the residual functional capacity to perform light work as
defined in 20 CFR 416.967(b) except she can occasionally lift 20
pounds and frequently lift 10 pounds; sit for up to 6 hours in an
8 hour workday; stand and/or walk for approximately 6 hours
in an 8 hour workday with normal breaks; frequently climb
ramps or stairs; never climb ladders, ropes or scaffolds; perform
frequent balancing, occasional stooping, frequent kneeling,

7

Admin. Rec. at 21.

8

Admin. Rec. at 22.

9

Admin. Rec. at 22.

10

Admin. Rec. at 22.
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occasional crouching and frequent crawling.[11]
The ALJ gave great weight12 to the opinions of Dr. Newton13 and Dr. Haveliwala.14
The ALJ gave no weight15 to Dr. Bai’s opinion.16 The ALJ also gave no weight to Dr. Castro-

11

Admin. Rec. at 22.

12

Admin. Rec. at 27.

13

On October 28, 2010, Dr. Newton opined that plaintiff could occasionally lift 20
pounds; frequently lift 10 pounds; stand/walk for 6 hours; sit for 6 hours; was unlimited as
to pushing/pulling; could never climb ladder/rope/scaffolds; could occasionally stoop and
crouch; and could frequently climb ramp/stairs, balance, kneel, and crawl. Admin. Rec. at
336-337.
14

On March 14, 2011, Dr. Haveliwala agreed with Dr. Newton’s assessment. Admin.
Rec. at 354.
15

Admin. Rec. at 28.

16

On October 13, 2010, Feng Bai, M.D., examined plaintiff. Dr. Bai opined that

plaintiff
is able to carry and lift less than 10 pounds frequently and
occasionally. Standing and walking less than two hours of an
eight-hour workday and sitting for less than 6 hours of an eighthour workday. No pushing or pulling limitations other than
carrying and lifting.... She should avoid climbing ladders, but
[is] able to occasionally climb a few stairs. She should avoid
stooping, kneeling, and crouching at this time. She had no
manipulative limitations in bilateral upper extremity to reach all
directions, doing gross or fine manipulations. Due to she has
low back pain, for every one hour of constant standing and
walking and constant sitting, she needs to change the position
and also for every 30 minutes of constant walking or standing,
she needs to change the position to relieve the pain. She had no
vision, communicative, or environmental limitations. She is still
(continued...)
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Moure’s opinion.17
The ALJ found plaintiff’s pain and symptom statements less than credible because
they were not corroborated by the medical evidence; because plaintiff received only
conservative treatment after her June 2010 back surgery; because the evidence was
inconsistent as to why plaintiff did not take narcotic pain medication; because plaintiff did
not “follow[] up on recommendations for pain management therapy, [did not] receive[] any
epidural steroid injections, or use[] a TENS unit[;]” because plaintiff’s statements about the
extent of her limitations were inconsistent; and because of plaintiff’s reported daily
activities.18
At step four, the ALJ found that plaintiff was “capable of performing past relevant
work as a case manager in social services.”19 This finding was based on the testimony of the

16

(...continued)
in a recovery phase. Her symptoms and function [are] significantly expected to improve in the next six months and may
consider reevaluation at that time.

Admin. Rec. at 328.
17

Admin. Rec. at 28. Dr. Castro-Moure was plaintiff’s neurosurgeon and his opinion
is discussed below in detail.
18

Admin. Rec. at 24-27.

19

Admin. Rec. at 28.
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vocational expert.20
The ALJ also made step five findings. The ALJ found that, based on the testimony
of the vocational expert, plaintiff could work as a small parts assembler or a small products
assembler.21
Thus, the ALJ concluded that plaintiff “has not been under a disability, as defined in
the Social Security Act, since June 15, 2010, the date the application was filed....”22
Standard of Review
Pursuant to 42 U.S.C. § 405(g), the court has the “power to enter, upon the pleadings
and transcript of the record, a judgment affirming, modifying, or reversing the decision of
the Commissioner....” The court “properly affirms the Commissioner’s decision denying
benefits if it is supported by substantial evidence and based on the application of correct
legal standards.” Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997). “Substantial
evidence is ‘more than a mere scintilla but less than a preponderance; it is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.’” Id.
(quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). “‘To determine whether
substantial evidence supports the ALJ’s decision, [the court] review[s] the administrative

20

Admin. Rec. at 28. Malcolm Brodzinsky testified as the vocational expert. Admin.
Rec. at 63-67.
21

Admin. Rec. at 29.

22

Admin. Rec. at 30.
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record as a whole, weighing both the evidence that supports and that which detracts from
the ALJ’s conclusion.’” Id. If the evidence is susceptible to more than one reasonable
interpretation, the court must uphold the Commissioner’s decision. Id. But, the Commissioner’s decision cannot be affirmed “‘simply by isolating a specific quantum of supporting
evidence.’” Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001) (quoting Tackett v.
Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)).
Discussion
Plaintiff first argues that the ALJ erred at step four because the ALJ misidentified her
past relevant work. The ALJ, based on the testimony of the vocational expert, identified
plaintiff’s past relevant work as that of a case manager in social services, DOT code 195.107030. DOT code 195.107-030 is the job description for a medical social worker with the
following job duties:
Assists patients and their families with personal and environmental difficulties which predispose illness or interfere with
obtaining maximum benefits from medical care: Works in close
collaboration with physicians and other health care personnel
in patient evaluation and treatment to further their understanding of significant social and emotional factors underlying
patient's health problem. Helps patient and family through
individual or group conferences to understand, accept, and
follow medical recommendations. Provides service planned to
restore patient to optimum social and health adjustment within
patient's capacity. Utilizes community resources to assist
patient to resume life in community or to learn to live within
limits of disability. Prepares patient histories, service plans, and
reports. Participates in planning for improving health services
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by interpreting social factors pertinent to development of
program. Provides general direction and supervision to
workers engaged in clinic home service program activities.
Works in general hospitals, clinics, rehabilitation centers, drug
and alcohol abuse centers, or related health programs. May be
employed as consultant in other agencies. Usually required to
have knowledge and skill in casework methods acquired
through degree program at school of social work.
Plaintiff argues that this does not describe her job as a case worker. Rather, plaintiff
argues that her job as a case worker was a composite job.
“Work involving significant elements of two or more occupations is composite in
nature and has no counterpart in the DOT.” Ferguson v. Colvin, Case No. 3:13–CV00262–RCJ–VPC, 2014 WL 1382523, at *7 (D. Nev. April 3, 2014). “Composite jobs often
comprise a variety of duties and strength demands, and ‘[t]o classify an applicant’s “past
relevant work” according to the least demanding function of the claimant’s past occupations
is contrary to the letter and spirit of the Social Security Act.’” Id. (quoting Valencia v.
Heckler, 751 F.2d 1082, 1086 (9th Cir. 1985). “‘[Composite] situations will be evaluated
according to the particular facts of each individual case.’” Id. (quoting SSR 82–61). If the
claimant’s past relevant work is a composite job, then at step four, the ALJ should not
consider whether the claimant can perform her past relevant work as generally performed.
Thompson v. Colvin, Case No. EDCV 14–990 JC, 2014 WL 6750308, at *3 (C.D. Cal. Nov. 26,
2014).
In describing her job, plaintiff wrote that she “monitor[s] mothers and children[] in
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the shelter[]. I cook dinner, breakfast for like 30 people, put away groceries ... from Costco,
sweep & mop the floor, climb stairs to wak[e] up clients, sit [at] front computer to write
report on my shift.”23 Her work as a case manager plainly involved elements of two or more
occupations and thus was composite work.
Because plaintiff’s job as a case manager was composite work, the ALJ erred in
finding that plaintiff could perform this work as “generally performed.” This error,
however, was harmless because the ALJ made alternative step five findings.

See

Tommasetti v. Astrue, 533 F.3d 1035, 1042 (9th Cir. 2008) (“Although the ALJ’s step four
determination constitutes error, it is harmless error in light of the ALJ's alternative finding
at step five”).
Plaintiff next argues that the ALJ erred in rejecting Dr. Castro-Moure’s opinion. On
November 4, 2011, Dr. Castro-Moure opined that plaintiff could walk 1 block; could sit for
less than 2 hours in an eight-hour work day; could stand/walk for less than 2 hours in an
eight-hour work day; needs to be able to get up and walk around every 10-15 minutes;
needs a job with a sit/stand option; needs unscheduled breaks every 20-40 minutes; could
rarely lift/carry less than 10 pounds; could rarely look down, turn head left to right, look up,
or hold head in static position; could never twist, stoop, crouch, or climb ladders/stairs; was
limited as to handling, fingering, and reaching; and would be absent more than four days

23

Admin. Rec. at 194.
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per month.24 Dr. Castro-Moure also opined that plaintiff’s pain would constantly interfere
with her ability to concentrate and pay attention.25
“As a general rule, more weight should be given to the opinion of a treating source
than to the opinion of doctors who do not treat the claimant.” Lester v. Chater, 81 F.3d 821,
830 (9th Cir. 1995). “At least where the treating doctor’s opinion is not contradicted by
another doctor, it may be rejected only for ‘clear and convincing’ reasons.” Id. (quoting
Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991)). “[I]f the treating doctor’s opinion is
contradicted by another doctor, the Commissioner may not reject this opinion without
providing ‘specific and legitimate reasons’ supported by substantial evidence in the record
for so doing.” Id. (quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). Here, the
ALJ was required to give specific and legitimate reasons for rejecting Dr. Castro-Moure’s
opinion as it was contradicted by the opinion of Dr. Newton.
The ALJ gave Dr. Castro-Moure’s opinion no weight because “it is contradicted by
the medical evidence of record, especially his own treatment notes, which demonstrate[]
significant medical improvement and a higher level of functioning.”26 The ALJ noted that
Dr. Castro-Moure had determined that plaintiff could go back to work in September 2010

24

Admin. Rec. at 365-367.

25

Admin. Rec. at 365.

26

Admin. Rec. at 28.
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with limitations of no heavy lifting, bending, or twisting, but that by November 2011, Dr.
Castro-Moure found plaintiff had severe limitations.27 The ALJ also noted that in November
2011, Dr. Castro-Moure “opined that [plaintiff’s] back condition was stable, and recommended only conservative treatment of ongoing pain management therapy and physical
therapy.”28
Plaintiff argues that there was objective evidence supporting Dr. Castro-Moure’s
opinion. Plaintiff points out that in November 2011, Dr. Castro-Moure indicated that the
positive objective signs supporting his opinion were reduced range of motion in the lower
back and lower extremities, a positive straight leg raising test, abnormal gait, sensory loss,
reflex changes, swelling, muscle spasms, muscle atrophy, and tenderness.29
Dr. Castro-Moure did list these objective findings on the residual functional capacity
form he used. But, nowhere in his treatment notes does Dr Castro-Moure make any of these
objective findings. On June 11, 2010, nine days after her surgery, plaintiff told Dr. CastroMoure that she was “doing extremely well”, that she had “only 3% pain left in her leg[,]”
and that her pain was 6/10 without pain medication and much better with her pain

27

Admin. Rec. at 28.

28

Admin. Rec. at 28.

29

Admin. Rec. at 364.
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medication.30 Dr. Castro-Moure’s examination of plaintiff’s back revealed that the “incision
[was] well approximated with no signs of pus or discharge. No erythema or warmth. Her
TLSO brace is fitting her, however, it needs some minor adjustments.”31 In August 2010,
although plaintiff complained of left leg pain, her MRI showed “good bony fusion” and she
had 5/5 strength in all muscle groups and her “sensation [was] grossly intact throughout.”32
In October 2010, plaintiff told Dr. Castro-Moure that “she has gotten quite a bit improved
since her surgery. She no longer has any right leg pain complaints, but she still has left leg
pain complaints....”33 On November 19, 2010, plaintiff reported that “overall, her symptomatology has improved 60% to 70%, but some pain still remains, especially in the back,
occasionally in the left hip, but no radicular pain down the legs has been present any longer
after the surgery.”34 Dr. Castro-Moure noted plaintiff “will see us again in three to four
weeks [but] no further close neurological followup will be necessary after that time.”35
Plaintiff next saw Dr. Castro-Moure on November 4, 2011, when reported that she
has ongoing postoperative low back pain that radiates into her

30

Admin. Rec. at 385.

31

Admin. Rec. at 385.

32

Admin. Rec. at 442.

33

Admin. Rec. at 441.

34

Admin. Rec. at 440.

35

Admin. Rec. at 440.
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posterior side. The patient states she can only walk about half
a mile and then she has to sit down and rest for about 10-20
minutes because her left leg was numb and her right leg has
pins and needles sensation. She states her low back pain [is]
brought on with prolonged standing or sitting. The patient
recently had an MRI on November 3rd, to reevaluate.... The
alignment is stable, there is still L4-L5 foraminal stenosis, which
is unchanged and no central stenosis or granulation tissue
present.[36]
And, Dr. Castro-Moure noted that plaintiff “will just need ongoing pain management and
physical therapy.”37
Contrary to plaintiff’s contention, it is not post hoc rationalization to consider
whether these treatment notes include any objective findings. The ALJ rejected Dr. CastroMoure’s opinion because it was not consistent with the medical evidence of record,
“especially his own treatment notes[.]”38 These treatment notes contain no findings that
plaintiff had a reduced range of motion, no positive straight leg raising tests, and no findings
of abnormal gait, sensory loss, reflex changes, swelling, tenderness, muscle spasm, or muscle
atrophy. In short, there are no objective findings in Dr. Castro-Moure’s treatment notes to
support the limitations that Dr. Castro-Moure assessed. Thus, the ALJ properly found that
Dr. Castro-Moure’s November 2011 opinion was not supported by his treatment notes.

36

Admin. Rec. at 433. Plaintiff was seen at the Neurology Clinic in May and August
2011, but not by Dr. Castro-Moure. Admin. Rec. at 434-436.
37

Admin. Rec. at 433.

38

Admin. Rec. at 28.
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Plaintiff also argues that the ALJ erroneously relied on the fact that Dr. Castro-Moure
released her to work in August 2010, which was roughly four months post-surgery, to
discount Dr. Castro-Moure’s later opinion. Plaintiff argues that it is not inconsistent for Dr.
Castro-Moure to have released her to work with restrictions when it was not yet clear how
successful her surgery would be.
While it might not have been inconsistent for Dr. Castro-Moure to release plaintiff for
work in September 2010 and then find that she had significant limitations in November 2011,
that does not mean that the ALJ erred in rejecting Dr. Castro-Moure’s opinion. The ALJ
rejected Dr. Castro-Moure’s November 2011 opinion because it was inconsistent with his
treatment notes, which as discussed above, was a legitimate reason for rejecting Dr. CastroMoure’s opinion.
Plaintiff also argues that if the ALJ were going to rely on Dr. Castro-Moure’s August
2010 opinion that plaintiff could return to work, then the ALJ should have found that
plaintiff was precluded from twisting and stooping. In August 2010, Dr. Castro-Moure
cleared plaintiff to return to work “except with no heavy lifting, bending or twisting.”39
Plaintiff argues that these limitations should have been included in her RFC and that it was
error for the ALJ to only include the heavy lifting prohibition.
Plaintiff is, however, misreading the ALJ’s decision. The ALJ did not rely on Dr.

39

Admin. Rec. at 442.
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Castro-Moure’s August 2010 opinion.

Rather, the ALJ rejected Dr. Castro-Moure’s

November 2011 opinion because it was inconsistent with his treatment records, including
his records from August 2010, when he released plaintiff to work.
Plaintiff next argues that the ALJ failed to account for the fact that Dr. Castro-Moure
was a treating specialist. Specialists are given greater deference when evaluating medical
claims. Benecke v. Barnhardt, 379 F.3d 587, 594 n.4 (9th Cir. 2004). The ALJ did not
specifically mention that Dr. Castro-Moure was a neurosurgeon. But, a specialist’s opinion
must still be supported and must still be consistent with his treatment notes. As discussed
above, Dr. Castro-Moure’s opinion was not supported by his treatment notes. This is not
a situation akin to that in Garrison v. Colvin, 759 F.3d 995 (9th Cir. 2014), the case cited by
plaintiff. There, the ALJ discounted Dr. Wang’s opinion because “‘Dr. Wang provided no
rationale for his medical conclusions” and because his “findings d[id] not comport with the
improvement the claimant consistently showed when she adhered to her medication
regimen.‘” Id. at 1008. The court found that “[i]n evaluating [Dr.] Wang’s testimony, the
ALJ committed a variety of egregious and important errors[,]” including failing to
“recognize that because Wang is a specialist, his opinion is owed greater weight as a matter
of regulation[.]” Id. at 1013 (emphasis added). Here, the ALJ did not commit a variety of
errors. Although the ALJ did not specifically recognize that Dr. Castro-Moure was a
specialist, the ALJ analyzed Dr. Castro-Moure’s treatment records, considered whether his

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November 2011 opinion was consistent with those records, and properly concluded that Dr.
Castro-Moure’s opinion was not consistent with his treatment notes.
Plaintiff also takes issue with the ALJ’s observation that Dr. Castro-Moure had
recommended “conservative” treatment, arguing that the ALJ cited to no authority that Dr.
Castro-Moure would have had to recommend a second surgery in order for his opinion to
have been credited. But plaintiff is again misreading the ALJ’s decision. The ALJ did not
suggest that in order for plaintiff’s treatment to be considered something other than
conservative, plaintiff had to undergo a second surgery. The ALJ’s decision nowhere
mentions another surgery. Rather, the ALJ discussed the fact that Dr. Castro-Moure
recommended ongoing pain management and physical therapy, which the ALJ properly
classified as conservative treatment. See Gowell v. Apfel, 242 F.3d 793, 795 (8th Cir. 2001)
(“Her doctors have primarily ordered conservative treatment, such as physical therapy, pain
management”); Westbrook v. Hammond, Case No. C10–5392 BHS/KLS, 2011 WL 2006603,
at *9 (W.D. Wash. May 23, 2011) (“Plaintiff’s medical records reflect that conservative
treatment including physical therapy and pain management were provided to Plaintiff”).
Plaintiff also argues that to the extent that the ALJ relied on the opinions of Dr.
Newton and Dr. Haveliwala to reject Dr. Castro-Moure’s opinion, this reliance was error
because they were non-treating sources and their opinions were not based on actual
evidence. However, an ALJ may rely on the opinion of a non-examining physician if the

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opinion is “supported by other evidence in the record and [is] consistent with” that
evidence. Morgan v. Comm’r of Social Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999). The
ALJ found that Dr. Newton’s and Dr. Haveliwala’s opinions were supported by the medical
evidence of record.40 The ALJ was entitled to give these opinions more weight, as long as
he gave a legitimate and specific reason for rejecting Dr. Castro-Moure’s opinion, which the
ALJ did.
Lastly, in connection with Dr. Castro-Moure’s opinion, plaintiff contends that the ALJ
erred because he failed to consider that she had neuropathic pain and because he did not
consider her impairments in combination. As for plaintiff’s neuropathic pain, Dr. CastroMoure indicated that this was one of plaintiff’s diagnoses.41 But there is nothing in Dr.
Castro-Moure’s treatment notes that indicate that this pain was severe enough to cause the
limitations that he assessed. As for whether the ALJ considered plaintiff’s impairments in
combination, it is not clear what this has to do with Dr. Castro-Moure’s opinion or the ALJ’s
rejection thereof. The ALJ rejected Dr. Castro-Moure’s opinion because it was not consistent
with his treatment notes. This was a specific and legitimate reason to reject his opinion.
Finally, plaintiff argues that the ALJ erred in finding her pain and symptom
statements less than credible. “An ALJ engages in a two-step analysis to determine whether

40

Admin. Rec. at 27.

41

Admin. Rec. at 364.
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a claimant’s testimony regarding subjective pain or symptoms is credible.” Garrison, 759
F.3d at 1014. “‘First, the ALJ must determine whether the claimant has presented objective
medical evidence of an underlying impairment which could reasonably be expected to
produce the pain or other symptoms alleged.’“ Id. (quoting Lingenfelter v Astrue, 504 F.3d
1028, 1035-36 (9th Cir. 2007)). “In this analysis, the claimant is not required to show ‘that
h[is] impairment could reasonably be expected to cause the severity of the symptom []he has
alleged; []he need only show that it could reasonably have caused some degree of the
symptom.’” Id. (quoting Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996)). “Nor must
a claimant produce ‘objective medical evidence of the pain or fatigue itself, or the severity
thereof.’” Id. (quoting Smolen, 80 F.3d at 1281). “If the claimant satisfies the first step of this
analysis, and there is no evidence of malingering, ‘the ALJ can reject the claimant's
testimony about the severity of her symptoms only by offering specific, clear and convincing
reasons for doing so.’” Id. at 1014-15 (quoting Smolen, 80 F.3d at 1281). “This is not an easy
requirement to meet: ‘The clear and convincing standard is the most demanding required
in Social Security cases.’” Id. at 1015 (quoting Moore v. Comm’r of Soc. Sec. Admin., 278
F.3d 920, 924 (9th Cir. 2002)). “In evaluating the claimant’s testimony, the ALJ may use
‘ordinary techniques of credibility evaluation.’” Molina v. Astrue, 674 F.3d 1104, 1112 (9th
Cir. 2012) (quoting Turner v. Comm’r of Social Sec., 613 F.3d 1217, 1224 n.3 (9th Cir. 2010)).
“For instance, the ALJ may consider inconsistencies either in the claimant’s testimony or

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between the testimony and the claimant’s conduct, unexplained or inadequately explained
failure to seek treatment or to follow a prescribed course of treatment, and whether the
claimant engages in daily activities inconsistent with the alleged symptoms[.]” Id. (internal
citations omitted).
The ALJ found plaintiff’s pain and symptom statements less than credible because
they were not corroborated by the medical evidence; because plaintiff received only
conservative treatment after her June 2010 back surgery; because the evidence was
inconsistent as to why plaintiff did not take narcotic pain medication; because plaintiff did
not follow up on recommendations for pain management therapy and physical therapy;
”because plaintiff’s statements about the extent of her limitations have been inconsistent;
and because of plaintiff’s reported daily activities.42 Plaintiff argues that these were not
clear and convincing reasons.
As for the first reason, that plaintiff’s statements were not corroborated by the
medical evidence, “subjective pain testimony cannot be rejected on the sole ground that it
is not fully corroborated by objective medical evidence[.]” Rollins v. Massanari, 261 F.3d
853, 857 (9th Cir. 2001). This can only be a valid reason for finding plaintiff’s statements less
than credible if some of the other reasons given by the ALJ were proper.
The second reason given by the ALJ was that plaintiff received only conservative

42

Admin. Rec. at 24-27.
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treatment after her June 2010 back surgery. “[E]vidence of ‘conservative treatment’ is
sufficient to discount a claimant’s testimony regarding severity of an impairment.” Parra
v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (quoting Johnson v. Shalala, 60 F.3d 1428, 1434
(9th Cir. 1995)). As discussed above, the ALJ properly found that plaintiff’s treatment after
her back surgery was conservative. This was a convincing reason to find plaintiff’s
statements less than credible.
The third reason given by the ALJ was that the evidence was inconsistent as to why
plaintiff did not take narcotic pain medication. Plaintiff testified that she did not take
narcotic pain medication because she was an addict43 but the ALJ contends that Dr. CastroMoure decreased plaintiff’s pain medication because she was showing improvement.
However, the exhibit to which the ALJ cites does not support this contention. This was not
a convincing reason to find plaintiff’s statements less than credible.
The fourth reason given by the ALJ was that plaintiff did not follow up on
recommendations for pain management therapy and physical therapy. “[I]f a claimant
complains about disabling pain but fails to seek treatment, or fails to follow prescribed
treatment, for the pain, an ALJ may use such failure as a basis for finding the complaint
unjustified or exaggerated.” Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007). There is no
evidence in the record that after Dr. Castro-Moure recommended pain management therapy

43

Admin. Rec. at 45.
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and physical therapy, plaintiff pursued these treatment recommendations. Plaintiff has
offered no explanation as to why she did not pursue these treatment options. This was a
convincing reason to find plaintiff’s statements less than credible.
The fifth reason given by the ALJ was that some of plaintiff’s statements about the
extent of her limitations were inconsistent. The ALJ pointed out that plaintiff testified that
she could only walk one block before needing to rest, but also testified that she could walk
1/2 mile before needing to rest.44 The ALJ also noted that plaintiff testified that she could
only stand for 20 minutes and sit for 20 to 30 minutes, but that she never reported such
limitations to her treatment providers.45 The ALJ pointed out that plaintiff testified that she
could not lift anything, but then testified that she could lift a coffee cup with two hands and
that she reported that she could carry her purse all day long.46 The ALJ also pointed out that
plaintiff testified that her hobby was dancing, but then she testified that she had only danced
once since her surgery.47 The ALJ noted that plaintiff testified that her roommate did all the
grocery shopping, but she also testified that she drives to the grocery store and Walmart and

44

Admin. Rec. at 26.

45

Admin. Rec. at 26.

46

Admin. Rec. at 26.

47

Admin. Rec. at 27.
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uses the electric cart to go shopping.48 And, the ALJ pointed out that in the 2010 function
report, plaintiff both stated that she could not clean at all and also that she cleans the
bathroom and bedroom, does dishes, sweeps, and mops.49
Plaintiff argues that the ALJ misinterpreted her 2010 function report. Plaintiff argues
that she did not state that she could not do any cleaning, but rather that she “can’t do any
lifting or cleaning and be on my feet too long.”50 Plaintiff also argues that the fact that she
had only danced once and still referred to this as her “hobby”51 is not an inconsistent
statement. And, defendant agreed that the ALJ erred in stating that plaintiff had never
reported to her treatment providers that she was limited to 20 to 30 minutes of standing.52
But even if the ALJ erred as to these three examples, plaintiff made other inconsistent
statements. Plaintiff’s statements about her ability to walk were inconsistent. Plaintiff
testified that she could walk less than one half mile53 but she also testified that she tries to
walk a mile, which she estimated to be four blocks, but that she takes a break after walking

48

Admin. Rec. at 27.

49

Admin. Rec. at 27.

50

Admin. Rec. at 164.

51

Admin. Rec. at 50 & 59.

52

Defendant’s Brief at 18 n.5, Docket No. 21.

53

Admin. Rec. at 49.
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each block.54 And plaintiff made other inconsistent statements. Plaintiff testified that she
could not lift anything,55 but she also testified that she could lift a coffee cup with both
hands56 and she reported that she carried her purse all day, every day.57 Plaintiff testified
that her roommate does all the grocery shopping,58 but she reported in her function report
that she goes grocery shopping once a month.59 An ALJ may consider such inconsistencies
in evaluating credibility. Light v. Social Sec. Adm., 119 F.3d 789, 792 (9th Cir. 1997).
The sixth reason given by the ALJ was that plaintiff’s reported daily activities
“undermine[d] her allegations of an inability to perform all work due to her condition.”60
The ALJ pointed out that plaintiff was attending college; that she testified that she gets
herself to school by driving, using BART, and the bus; that she does her homework on her
computer with 15 minute breaks; that she attends lectures at school by getting up when her
back starts hurting; that she goes to church once a week; walks a mile a day with breaks;

54

Admin. Rec. at 56.

55

Admin. Rec. at 49.

56

Admin. Rec. at 57.

57

Admin. Rec. at 165.

58

Admin. Rec. at 61.

59

Admin. Rec. at 165.

60

Admin. Rec. at 27.
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goes shopping; and cleans her bathroom slowly with breaks.61
However, the ALJ did not explain how these activities translate to the ability to
perform full-time work. See Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th Cir. 1990) (ALJ
must explain how “the ability to perform ... daily activities translated into the ability to
perform appropriate work”). This was not a convincing reason to find plaintiff’s statements
less than credible.
The ALJ erred as to two of the six reasons he gave for finding plaintiff’s pain and
symptom statements less than credible. But, this error was harmless because the other four
reasons constituted substantial evidence supporting the ALJ’s ultimate conclusion that
plaintiff’s pain and symptom statements were less than credible. Batson v. Comm’r of Social
Security Admin., 359 F.3d 1190, 1197 (9th Cir. 2004).
Conclusion
Based on the foregoing, the Commissioner’s decision is affirmed. The clerk of court
shall enter judgment dismissing plaintiff’s complaint with prejudice.
DATED at Anchorage, Alaska, this 8th day of April, 2015.
/s/ H. Russel Holland
United States District Judge

61

Admin. Rec. at 27.
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