Doran v. Colvin

Filing 16

ORDER: The final decision of the Commissioner of Social Security is affirmed. The Clerk of Court shall enter judgment accordingly. Signed by Senior Judge James A Teilborg on 11/08/2016. (REK)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Thomas W. Doran,
Plaintiff,

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ORDER

v.

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No. CV-16-00334-PHX-JAT

Carolyn W. Colvin,

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Defendant.

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Pending before the Court is Plaintiff Thomas W. Doran’s appeal from the Social

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Security Commissioner’s (the “Commissioner’s”) partial denial of his application for

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disability insurance benefits and supplemental security income under the Social Security

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Act. Plaintiff argues that the administrative law judge (“ALJ”) erred by: (1) finding

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Plaintiff’s impairments do not meet Listing 1.04(A)’s criteria; (2) failing to allow a

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medical expert to testify during the administrative hearing; and (3) finding Plaintiff’s

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testimony to be non-credible. The Court now rules on Plaintiff’s appeal.

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I.

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BACKGROUND
A.

Procedural Background

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Plaintiff filed for disability insurance benefits on October 31, 2006, alleging
disability as of January 25, 2006. He also filed a concurrent application for Supplemental
Security Income (“SSI”) under Title XVI of the Social Security Act. In September 2011,
an ALJ determined that Plaintiff was disabled as of December 2, 2009. The Appeals
Council affirmed the ALJ’s finding but remanded for reconsideration of certain evidence

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relating to the time before December 2, 2009. Notably, Plaintiff sought a determination

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that he was disabled before December 31, 2008, the date on which he was last insured for

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disability benefits. 1 On remand, however, the ALJ determined that Plaintiff was not

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disabled before December 2, 2009. At issue here is whether substantial evidence supports

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the Commissioner’s decision that Plaintiff was not disabled before December 2, 2009.

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B.

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Plaintiff’s Background

Plaintiff was born on December 3, 1954. He has a high-school equivalent
education (“GED”) and two years of college. (Tr. 31–32). 2 Plaintiff served in the military
from 1974 to 1981 (Tr. 238, 585). His subsequent employment included administrative,
banking, and service work. (Tr. 31–32, 126–27, 148–49, 238, 260). The vocational expert
classified Plaintiff’s past relevant work as skilled and semi-skilled, ranging from
sedentary to a medium exertional level. (Tr. 44–46).

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C.

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Plaintiff claims that he suffers from an extensive list of impairments, including

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Medical Background

“degenerative disc disease of the cervical and lumbar spine, seizure disorder,
posttraumatic stress disorder (PTSD), depression, and anxiety disorder with panic
attacks.” (Doc. 13 at 3). Plaintiff received extensive treatment for both his physical and
mental impairments, which this Court summarized in its earlier Order. See Doran v.
Astrue, No. CV-10-8155-PCT-LOA, 2011 WL 4032320, at *2–12 (D. Ariz.
Sept. 12, 2011).
II.

LEGAL STANDARD

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The ALJ’s decision to deny benefits will be overturned “only if it is not supported

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by substantial evidence or is based on legal error.” Magallanes v. Bowen,

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A disability insurance benefits claimant must establish disability prior to
expiration of the claimant’s insured status. Lester v. Chater, 81 F.3d 821, 825
(9th Cir. 1996).
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Citations to “Tr.” are to the certified administrative transcript of record.
(Doc. 10).
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881 F.2d 747, 750 (9th Cir. 1989) (quotation omitted). “Substantial evidence” means

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more than a mere scintilla, but less than a preponderance. Reddick v. Chater,

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157 F.3d 715, 720 (9th Cir. 1998).

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“The inquiry here is whether the record, read as a whole, yields such evidence as

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would allow a reasonable mind to accept the conclusions reached by the ALJ.” Gallant v.

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Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (citation omitted). In determining whether

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there is substantial evidence to support a decision, the Court considers the record as a

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whole, weighing both the evidence that supports the ALJ’s conclusions and the evidence

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that detracts from the ALJ’s conclusions. Reddick, 157 F.3d at 720. “Where evidence is

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susceptible of more than one rational interpretation, it is the ALJ’s conclusion which

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must be upheld; and in reaching his findings, the ALJ is entitled to draw inferences

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logically flowing from the evidence.” Gallant, 753 F.2d at 1453 (citations omitted); see

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Batson v. Comm’r of the Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). This is

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because “[t]he trier of fact and not the reviewing court must resolve conflicts in the

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evidence, and if the evidence can support either outcome, the court may not substitute its

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judgment for that of the ALJ.” Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992);

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see also Young v. Sullivan, 911 F.2d 180, 184 (9th Cir. 1990).

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The ALJ is responsible for resolving conflicts in medical testimony, determining

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credibility, and resolving ambiguities. See Andrews v. Shalala, 53 F.3d 1035, 1039

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(9th Cir. 1995). Thus, if on the whole record before the Court, substantial evidence

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supports the Commissioner’s decision, the 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) (2012). On the other hand,

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the Court “may not affirm simply by isolating a specific quantum of supporting

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evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (quotation omitted).

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Notably, the Court is not charged with reviewing the evidence and making its own

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judgment as to whether Plaintiff is or is not disabled. Rather, the Court’s inquiry is

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constrained to the reasons asserted by the ALJ and the evidence relied upon in support of

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those reasons. See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003).

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A.

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To qualify for disability benefits under the Social Security Act, a claimant must

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show that, among other things, he is “under a disability.” 42 U.S.C. § 423(a)(1)(E)

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(2012). The Social Security Act defines “disability” as the “inability to engage in any

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substantial gainful activity by reason of any medically determinable physical or mental

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impairment which can be expected to result in death or which has lasted or can be

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expected to last for a continuous period of not less than 12 months.” Id. § 423(d)(1)(A).

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A person is:

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under a disability only if his physical or mental impairment or
impairments are of such severity that he is not only unable to
do his previous work but cannot, considering his age,
education, and work experience, engage in any other kind of
substantial gainful work which exists in the national
economy.

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Definition of Disability

Id. § 423(d)(2)(A).

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B.

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The Social Security regulations set forth a five-step sequential process for

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evaluating disability claims. 20 C.F.R. § 404.1520(a)(4) (2016); see also Reddick,

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157 F.3d at 721. A finding of “not disabled” at any step in the sequential process will end

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the inquiry. 20 C.F.R. § 404.1520(a)(4). The claimant bears the burden of proof at the

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first four steps, but the burden shifts to the Commissioner at the final step. Reddick,

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157 F.3d at 721. The five steps are as follows:

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Five-Step Evaluation Process

1. 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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2. 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.”

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Id. § 404.1520(a)(4)(ii). To be considered severe, the impairment must “significantly

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limit[] [the claimant’s] physical or mental ability to do basic work activities.”

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Id. § 404.1520(c). Basic work activities are the “abilities and aptitudes to do most jobs,”

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such as lifting, carrying, reaching, understanding, carrying out and remembering simple

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instructions, responding appropriately to co-workers, and dealing with changes in

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routine. Id. § 404.1521(b). Further, the impairment must either have lasted for “a

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continuous period of at least twelve months,” be expected to last for such a period, or be

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expected “to result in death.” Id. § 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). If

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the claimant does not have a severe impairment, then the claimant is not disabled.

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3. Having found a severe impairment, the ALJ next determines whether the

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impairment “meets or equals” one of the impairments 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 further

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inquiry. If not, before proceeding to the next step, the ALJ will make a finding regarding

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the claimant’s “residual functional capacity [“RFC”] based on all the relevant medical

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and other evidence in [the] case record.” Id. § 404.1520(e). A claimant’s RFC is the most

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he can still do despite all his impairments, including those that are not severe, and any

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related symptoms. Id. § 404.1545(a)(1).

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4. At step four, the ALJ determines whether, despite the impairments, the claimant

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can still perform “past relevant work.” Id. § 404.1520(a)(4)(iv). To make this

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determination, the ALJ compares his RFC “assessment . . . with the physical and mental

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demands of [the claimant’s] past relevant work.” Id. § 404.1520(f). If the claimant can

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still perform the kind of work he previously did, the claimant is not disabled. Otherwise,

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the ALJ proceeds to the final step.

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5. 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. Id. § 404.1520(a)(4)(v). In

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making this determination, the ALJ considers the claimant’s RFC and his “age,

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education, and work experience.” Id. § 404.1520(g)(1). If the claimant can perform other

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work, he is not disabled. If the claimant cannot perform other work, he will be found

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disabled.

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In evaluating the claimant’s disability under this five-step process, the ALJ must

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consider all evidence in the case record. See id. §§ 404.1520(a)(3), 404.1520b. This

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includes medical opinions, records, self-reported symptoms, and third-party reporting.

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See id. §§ 404.1527, 404.1529; SSR 06-3P, 71 Fed. Reg. 45593–97 (Aug. 9, 2006).

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C.

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At step one of the sequential evaluation process, the ALJ found that Plaintiff did

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not engage in substantial gainful activity since his alleged onset date. (Tr. 607). At step

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two, the ALJ concluded that Plaintiff had the following severe impairments:

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“degenerative disc disease of the cervical and lumbar spine, seizure disorder,

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posttraumatic stress disorder (PTSD), depression, and anxiety disorder with panic

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attacks.” (Tr. 607–08). At step three, the ALJ determined that Plaintiff’s mental and

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physical impairments did not meet or equal any of the listed impairments in the Social

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Security regulations. (Tr. 608–11).

The ALJ’s Evaluation under the Five-Step Process

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Before moving on to step four, the ALJ conducted a RFC determination in light of

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Plaintiff’s testimony and the objective medical evidence. (Tr. 611–22). The ALJ found

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that Plaintiff had the RFC, during the period of January 25, 2006 to December 1, 2009,

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to:

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perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) except [he] could not climb ladders, ropes, or
scaffolds. He could occasionally crawl. He could occasionally
reach overhead, bilaterally. He should avoid all use of
hazardous machinery, which does not include motor vehicles,
and all exposure to unprotected heights, open flames, and
open bodies of water. [He] was limited to work which was
simple and routine in task, with requiring only occasional
decision making and occasional changes in the work setting.
[He] was limited to occasional interaction with public and coworkers, and only occasional and superficial interaction with
supervisors.

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(Tr. 611–12). At step four, the ALJ found that Plaintiff could not perform any past

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relevant work. (Tr. 622). Finally, the ALJ concluded at step five that, based on Plaintiff’s

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RFC, age, education, and work experience, Plaintiff could perform a significant number

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of jobs existing in the national economy. (Tr. 622–23). Consequently, the ALJ found that

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Plaintiff was not disabled under the Social Security Act during the period beginning on

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January 25, 2006 and ending on December 1, 2009.” (Tr. 623).

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III.

ANALYSIS

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Plaintiff makes three arguments for why the Court should reverse the ALJ’s

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decision. Specifically, Plaintiff asserts that the ALJ committed the following errors:

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(1) failing to provide a full evaluation as to whether Plaintiff’s cervical spine impairment

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met or equaled Social Security listed impairments; (2) failing to obtain medical expert

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testimony during step three; and (3) rejecting Plaintiff’s symptom testimony without clear

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and convincing reasons for doing so. (Doc. 13). The Court will now address each

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argument in turn.

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A.

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Plaintiff argues that at step three of the sequential evaluation process, the ALJ

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erred by failing to find Plaintiff’s cervical spine impairment met or equaled

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Listing 1.04(A), which covers disorders of the spine. (Id. at 21–25).

Whether the ALJ Properly Considered Listing 1.04(A)’s Criteria

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Legal Standard

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At step three, the ALJ must assess whether the claimant has an impairment or

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combination of impairments that meets or equals an impairment listed in the Appendix to

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the federal regulations. 20 C.F.R. 404, subpart P, Appendix 1. Conditions set forth in the

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Listing of Impairments (“Listings”) are considered to be so severe that “they are

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irrebuttably presumed disabling, without any specific finding as to the claimant’s ability

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to perform his past relevant work or any other jobs.” Lester, 81 F.3d at 828. The claimant

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bears the burden of establishing a prima facie case of disability under the Listings. See

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Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999) (“[Claimant] had to establish that

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he met or equaled each of the following characteristics of a listing.”). “For a claimant to

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show that his impairment matches a listing, it must meet all of the specified medical

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criteria.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990). “An impairment that manifests

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only some of those criteria, no matter how severely, does not qualify.” Id. (citations

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omitted).

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Listing 1.04 requires a finding of disability for a claimant who: (1) has a

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“[d]isorder[] of the spine,” such as “herniated nucleus pulposus, spinal arachnoiditis,

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spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, [or] vertebral

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fracture,” (2) that results in “compromise of a nerve root . . . or the spinal cord,” and

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(3) which is accompanied by the additional requirements set forth under subsections

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1.04(A), 1.04(B), or 1.04(C). 20 C.F.R. 404, subpart P, Appendix 1, § 1.04. Section

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1.04(A), the subsection at issue here, requires:

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Evidence of nerve root compression characterized by neuroanatomic distribution of pain, limitation of motion of the
spine, motor loss (atrophy with associated muscle weakness
or muscle weakness) accompanied by sensory or reflex loss
and, if there is involvement of the lower back, positive
straight-leg raising test (sitting and supine).

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Id. § 1.04(A). Thus, four elements are required to meet Listing 1.04(A), plus an

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additional element if the lower back is involved: (1) a disorder of the spine as specified;

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(2) evidence of nerve root compromise; (3) limitation of motion of the spine; (4) motor

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loss (atrophy with associated muscle weakness) accompanied by sensory or reflex loss;

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and, in cases of lower back involvement, (5) a positive straight-leg raising test. Id. In

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other words, evidence of both motor loss—i.e., muscle weakness or atrophy associated

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therewith—and sensory or reflex loss, in addition to limitation of motion of the spine, is

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required. Furthermore, each Listing 1.04(A) element must be simultaneously present to

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meet the listing criteria. See SSAR 15-1(4), 80 Fed. Reg. 57418, 57420 (Sept. 23, 2015)

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(“Listing 1.04A uses the conjunction ‘and’ when enumerating the medical criteria in

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order to establish that the entire set of criteria must be present at the same time on

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examination.”). Finally, the claimant must establish that the impairment satisfies the 12-

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month durational requirement. See id. (“[T]he simultaneous presence of all of the medical

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criteria in paragraph A must continue, or be expected to continue, for a continuous period

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of at least 12 months.” (citing 20 C.F.R. §§ 404.1525(c)(4), 416.925(c)(4))).

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2.

Analysis

The ALJ summarized the medical records and noted:
[T]here are no findings based on diagnostic, clinical, and/or
objective evaluations, including reports of laboratory test and
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diagnostics imaging, consistent with the level of severity that
meets the criteria under the Listings. As well, no examining
or treatment physician or medical provider reported findings
since the alleged onset date that meet the criteria under the
Listings.
(Tr. 608–09). While noting that some elements of Listing 1.04(A) might have been met at
times between 2005 and 2009, the ALJ found that “there is no consistent evidence of
limitation of motion of the spine, motor loss . . . accompanied by sensory or reflex loss
and, if there is involvement of the lower back, positive straight-leg raising test (sitting
and supine).” (Tr. 609). To bolster this finding, the ALJ cited to a February 2007 report
by Dr. Keith Cunningham, indicating “normal range of motion throughout, normal gait,
normal coordination, motor and sensory testing normal throughout, ambulation normal,
and negative straight leg raise, bilaterally.” (Tr. 609, 261).
Plaintiff contends “[t]here is ample evidence in the record [showing he met] or
equal[ed] all elements of Listing 1.04(A) with regard to [his] cervical spine degenerative
disc disease.” (Doc. 13 at 22). Thus, Plaintiff argues that the ALJ failed to adequately
consider the listing criteria and record. (Id.). Plaintiff contends that the record reflects the
Listing 1.04(A) elements, including: (1) neuroanatomic distribution of pain, as diagnosed
by Nurse Practitioner Debra Hiller in June 2008, (Tr. 537); (2) limitation of motion, as
diagnosed by Dr. William Lawrence in May 2007, (Tr. 329–30); (3) motor loss and
sensory or reflex loss in the upper extremities, as recognized by Dr. Lawrence in May
2007, (Tr. 329–30), Nurse Hiller in June 2008, (Tr. 537), and Dr. Samuel Foote in August
2006, (Tr. 349). (Doc. 13 at 22). However, Plaintiff fails to cite to any single physician’s
report—or even reports taking place within the same 12-month-period—indicating that
Plaintiff met or equaled all elements of Listing 1.04(A) simultaneously and satisfying
Listing 1.04(A)’s durational requirement.
While the ALJ acknowledged the existence of much of the evidence Plaintiff cites
to, the ALJ recognized that “abnormal radicular findings have not been persistent on
exams.” (Tr. 610). Plaintiff also failed to meet his burden of providing evidence
indicating he met all of the Listing 1.04(A) criteria, including the durational and
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simultaneity requirements. Even to the extent that Plaintiff sought the ALJ to infer the

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simultaneity of the Listing 1.04(A) criteria given the independent evidence, the ALJ

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found that Dr. Cunningham’s report supported the conclusion that Plaintiff did not meet

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the Listing 1.04(A) criteria. See Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012)

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(“Even when the evidence is susceptible to more than one rational interpretation, we must

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uphold the ALJ’s findings if they are supported by inferences reasonably drawn from the

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record.”). Thus, based on Dr. Cunningham’s report, there was substantial evidence to

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support the ALJ’s conclusion that Plaintiff’s cervical spine condition was not limiting in

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a way that satisfied all of the requirements of Listing 1.04(A). 3

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Plaintiff also contends that the ALJ erred by considering whether Plaintiff met the

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criteria for Listings 1.04(B) and 1.04(C), despite Plaintiff only arguing that he met

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Listing 1.04(A). (Doc. 13 at 23). Plaintiff appears to be concerned that the ALJ

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erroneously believed that Plaintiff must meet “all three [Listing 1.04] A, B, and C criteria

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to meet or equal . . . Listing [1.04].” (Id.). However, the ALJ clearly considered Listings

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1.04(A), (B), and (C) separately. In reciting Plaintiff’s burden, the ALJ recognized that

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Plaintiff “must prove a disorder of the spine . . . resulting in compromise of a nerve

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root . . . or the spinal cord with at least one of these additional criteria: A . . . OR

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B . . . OR C . . . .” (Tr. 609). The ALJ then clearly indicated the parts of his findings

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where he was considering the criteria under Listing 1.04(A), 1.04(B), or 1.04(C). (See

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Tr. 609–611). Plaintiff also claims the ALJ erred simply by considering whether Plaintiff

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met either Listing 1.04(B) or 1.04(C). (See Doc. 15 at 6 (“[Plaintiff] does not request a

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Plaintiff also argues that the ALJ erred because his finding was inconsistent with
this Court’s earlier Order, which stated there was “evidence in the record that showed
that Plaintiff had spinal cord impingement and moderately severe neural foraminal
encroachment; cervical radiculopathy; limited rotation of the cervical spine; weakness of
the left bicep, reduced grip strength, absent left biceps reflex, and decreased left biceps
weakness.” (Doc. 13 at 22–23) (quoting Doran, 2011 WL 4032320, at *12). However,
Plaintiff’s argument is misguided. This Court never made a determination that Plaintiff
met or equaled the criteria in Listing 1.04(A). While the Court recognizes that evidence
of certain Listing 1.04(A) criteria is present in the record, Plaintiff was required to show
the criteria were met simultaneously and within the durational requirement. It is the
ALJ’s—not this Court’s—prerogative to make the ultimate factual determination. See
Molina, 674 F.3d at 1111.
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survey of all listed criteria, only an adequate review of the particular listing relevant to

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his case, section 1.04(A).”)). However, the Court fails to recognize how the ALJ’s robust

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review of the record and Listing 1.04 criteria amounted to any error.

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Given the above medical findings in the record, there was substantial evidence

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upon which the ALJ could draw his conclusion that Plaintiff’s impairments did not meet

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or equal the requirements of Listing 1.04(A). Accordingly, the ALJ did not err in finding

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that Plaintiff did not meet Listing 1.04(A) at step three.

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B.

Whether the ALJ Required a Medical Expert’s Testimony

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Plaintiff next contends that the ALJ erred at step three by failing to obtain the

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testimony of a medical expert regarding whether Plaintiff’s cervical spine impairment

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met or equaled the criteria of Listing 1.04(A). (Doc. 13 at 24–25). Plaintiff claims that

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Social Security Ruling 83-20 required the ALJ to seek testimony from a medical expert

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because the ALJ lacked an informed judgment on Plaintiff’s disability onset date. (Id.).

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Thus, Plaintiff argues, the ALJ erred by denying Plaintiff’s request for the ALJ to call a

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medical expert to testify. (Id.).

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1.

Legal Standard

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Social Security Ruling 83-20 provides guidance regarding the onset date of

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disability. In DeLorme v. Sullivan, the Ninth Circuit Court of Appeals (the “Ninth

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Circuit”) recognized that “[i]n the event that the medical evidence is not definite

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concerning the onset date and medical inferences need to be made, [Social Security

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Ruling] 83-20 requires the [ALJ] to call upon the services of a medical advisor and to

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obtain all evidence which is available to make the determination.” 924 F.2d 841, 848

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(9th Cir. 1991). Thus, an ALJ commits legal error by failing to call upon a medical expert

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to assist in determining the onset date of disability when that date is not otherwise

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established in the record. The purpose of this requirement is to assist the ALJ in

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determining the onset date of disability when a claimant suffers from a disabling

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impairment for an extended period of time before going to a doctor. See SSR 83-20,

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at *6–10 (Cum. Ed. 1983).

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2.

Analysis

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Here, Plaintiff’s alleged onset date of disability of January 25, 2006 does not pre-

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date medical examination reports that are part of the record. (See, e.g., Tr. 496–518

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(medical examination reports from December 2003 to January 2006)). Thus, a medical

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expert was unnecessary because the ALJ could determine the onset date based on the

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clear medical evidence in the record. Andrews, 53 F.3d at 1039 (“The ALJ is responsible

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for determining credibility, resolving conflicts in medical testimony, and for resolving

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ambiguities.”). Because the dispute is not over how long Plaintiff suffered from the

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cervical spine impairment before being diagnosed but, rather, at what point after being

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diagnosed his impairment worsened to such a degree that it became disabling, the ALJ

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did not err by failing to call a medical expert.

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C.

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Plaintiff finally argues that the ALJ erred when he determined that Plaintiff’s

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testimony regarding the intensity, persistence, and limiting effects of his impairments was

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“not fully credible.” (Tr. 613).

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1.

Whether the ALJ Properly Discredited Plaintiff’s Symptom Testimony

Legal Standard

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The ALJ is responsible for determining credibility, resolving conflicts in medical

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testimony, and resolving ambiguities. Reddick, 157 F.3d at 722. If credibility is critical,

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the ALJ must make an explicit credibility finding. Greger v. Barnhart, 464 F.3d 968, 972

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(9th Cir. 2006).

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In assessing the credibility of a claimant’s testimony regarding subjective pain or

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the intensity of his symptoms, the ALJ must engage in a two-step analysis. Molina,

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674 F.3d at 1112. First, as a threshold matter, “the ALJ must determine whether the

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claimant has presented objective medical evidence of an underlying impairment ‘which

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could reasonably be expected to produce the pain or other symptoms alleged.’”

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Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (quoting Bunnell v. Sullivan,

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947 F.2d 341, 344 (9th Cir. 1991)). Second, if the claimant meets the first test, then “the

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ALJ ‘may not discredit a claimant’s testimony of pain and deny disability benefits solely

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because the degree of pain alleged by the claimant is not supported by objective medical

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evidence.’” Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (quoting Bunnell,

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947 F.2d at 346–47). Rather, “unless an ALJ makes a finding of malingering based on

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affirmative evidence thereof,” the ALJ may only find the claimant not credible by making

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specific findings supported by the record that provide clear and convincing reasons to

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explain his credibility evaluation. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883

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(9th Cir. 2006) (citing Smolen, 80 F.3d at 1283–84); Lingenfelter, 504 F.3d at 1036.

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In rendering a credibility determination, the ALJ may consider several factors,

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including: “(1) ordinary techniques of credibility evaluation, such as the claimant’s

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reputation for lying, prior inconsistent statements concerning the symptoms, and other

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testimony by the claimant that appears less than candid; (2) unexplained or inadequately

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explained failure to seek treatment or to follow a prescribed course of treatment; and

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(3) the claimant’s daily activities.” Tommasetti v. Astrue, 533 F.3d 1035, 1039

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(9th Cir. 2008) (quoting Smolen, 80 F.3d at 1284). If the ALJ relies on these factors and

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his reliance is supported by substantial evidence, the Court “may not engage in second-

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guessing.” Id. (quoting Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002)).

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2.

Analysis

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In this case, the ALJ found that Plaintiff’s “medically determinable impairments

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could reasonably be expected to cause the alleged symptoms; however, [Plaintiff’s]

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statements concerning the intensity, persistence and limiting effects of these symptoms

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[were] not entirely credible.” (Tr. 613). The ALJ discredited Plaintiff’s subjective

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testimony because: (1) Plaintiff’s overall treatment history—including the effectiveness

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of Plaintiff’s prescribed medication and his cooperation with physicians—was

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inconsistent with his testimony; (2) the objective medical evidence did not support

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Plaintiff’s testimony; and (3) Plaintiff’s daily activities undermined the alleged severity

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of his complaints. (Tr. 611–18). The ALJ also specified the portions of Plaintiff’s

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testimony he found lacking in credibility, including Plaintiff’s testimony regarding his

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pain, panic attacks, mental symptoms, and physical symptoms. (Tr. 612–13).

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a.

Overall Treatment History

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The ALJ initially discredited Plaintiff’s complaints of disabling symptoms due to

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inconsistencies between Plaintiff’s testimony and Plaintiff’s statements and conduct

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recorded during his overall treatment history. The ALJ partially supported his adverse

5

credibility determination by finding that Plaintiff “was not putting forth maximal effort or

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was not fully cooperating” during his testing and treatment. (Id. at 615); see Thomas,

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278 F.3d at 959 (recognizing that a claimant’s failure to cooperate with medical tests or

8

give consistent effort during evaluations lends support to an adverse credibility finding);

9

see also Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001).

10

For example, the ALJ cited to Dr. Charles House’s psychological evaluation notes

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indicating a suspicion that Plaintiff might have exaggerated or fabricated information

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regarding his alleged seizures. (Tr. 615, 285). However, Dr. House’s suspicion was weak

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as he postulated that his unfamiliarity with Plaintiff’s condition could also be due to a

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specific type of “seizure disorder” or Plaintiff’s “problems with anger.” (Tr. 285). The

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other evidence of noncooperation the ALJ cited to was a note by a pharmacist, in which

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she suspected Plaintiff was “not in compliance with formulary guidelines/criteria” and

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cancelled Plaintiff’s prescription. (Tr. 615, 374–75). Although this pharmacist reviewed

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pertinent parts of Plaintiff’s medical record in making her observation, treating doctors

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appeared to override this cancellation by prescribing antipsychotic medication a year

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later. (See Tr. 1125–29). Additionally, while Defendant cites to additional evidence in the

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record of physicians questioning the accuracy of Plaintiff’s statements during exams, (See

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Doc. 14 at 19; Tr. 1146–48), the ALJ never cited to these instances, see Treichler v.

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Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102–03 (9th Cir. 2014) (stating that it is

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the “ALJ’s responsibility to provide a discussion of the evidence” upon which he relied

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(quotations omitted)). Yet, even if the ALJ did err in basing his credibility determination

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on whether Plaintiff fully cooperated with treating physicians, it is harmless error as the

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ALJ provided other clear and convincing reasons for discrediting Plaintiff’s testimony, as

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discussed below. Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162

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(9th Cir. 2008) (recognizing harmless error where “two of the ALJ’s [four] reasons

2

supporting his adverse credibility finding [were] invalid”).

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The ALJ also recognized that “the record shows the medications were effective in

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improving and/or managing the claimant’s physical and mental symptoms.” See Warre v.

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Comm’r of the Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (“Impairments that

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can be controlled effectively with medication are not disabling for purposes of

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determining eligibility for SSI benefits.”). For example, Plaintiff indicated to physicians

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that he was able to either manage or improve the conditions of both his mental and

9

physical impairments due to medication. (Tr. at 614). Although Plaintiff argues that the

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ALJ cited to ambiguous statements by Plaintiff, such as “doing well,” the ALJ also cited

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to more objective indications of the medication’s effectiveness, such as Plaintiff rating

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his pain level at “0” in July 2009. (Id.). Thus, the effectiveness of Plaintiff’s prescribed

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medications is a clear and convincing reason to discount Plaintiff’s testimony.

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The ALJ next recognized that Plaintiff “missed many scheduled appointments and

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had significant gaps in treatment dates.” (Tr. at 614); see Fair v. Bowen,

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885 F.2d 597, 603 (9th Cir. 1989) (“[U]nexplained, or inadequately explained, failure to

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seek treatment . . . can cast doubt on the sincerity of [a] claimant’s pain testimony.”). For

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example, Plaintiff missed numerous scheduled appointments with various doctors and

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proffered excuses when a triage nurse suggested treatment. (Tr. 614). Plaintiff argues that

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the ALJ was obligated to confront and seek an explanation from Plaintiff regarding his

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behavior. In support, Plaintiff cites Singh v. Gonzales, an appeal of an immigration

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judge’s denial of asylum. 403 F.3d 1081 (9th Cir. 2005). Even if this case stands for the

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proposition Plaintiff claims, Plaintiff cites to no authority indicating this case would

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apply in the Social Security context. To the contrary, where substantial evidence supports

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an ALJ’s credibility determination, the Ninth Circuit has refused a claimant the chance to

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explain her inconsistent statements or conduct which led to an adverse credibility

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determination. See Tonapetyan, 242 F.3d at 1148. Thus, Plaintiff’s missed appointments

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are a clear and convincing reason to discount Plaintiff’s testimony about the severity of

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his symptoms.
b.

Objective Medical Evidence

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The ALJ also found that medical evidence of record contradicted Plaintiff’s

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testimony. (Tr. 614–18). Plaintiff testified that his physical symptoms included such

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severe neck and arm pain that holding a cup was difficult, and his pain forced him to

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spend each day lying down for four-to-five hours off and on. (Tr. 612–13, 649–50, 652).

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With regard to his mental symptoms, Plaintiff testified that he suffered from auditory

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hallucinations, poor memory, and an inability to be friendly. (Tr. 612, 646–48).

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Objective medical evidence is a relevant consideration regarding a claimant’s

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credibility. See, e.g., Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (“Although

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lack of medical evidence cannot form the sole basis for discounting pain testimony, it is a

12

factor that the [ALJ] can consider in his credibility analysis.”); Carmickle,

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533 F.3d at 1161 (“Contradiction with the medical record is a sufficient basis for

14

rejecting the claimant’s subjective testimony.”). Because an ALJ cannot simply state that

15

a claimant’s testimony is contradicted by the record, Holohan v. Massanari,

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246 F.3d 1195, 1208 (9th Cir. 2001) (“[G]eneral findings are an insufficient basis to

17

support an adverse credibility determination.”), the ALJ must specifically identify which

18

“testimony is not credible and what evidence suggests the complaints are not credible,”

19

Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993); see also Greger, 464 F.3d at 972.

20

Here, the ALJ found that both Plaintiff’s physical and mental symptom testimony

21

was contradicted by objective evidence in the medical record. The ALJ concluded that

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Plaintiff’s testimony as to the severity of Plaintiff’s neck and arm pain was contradicted

23

by an August 2006 examination report indicating “no focal motor weakness” and intact

24

motor strength in all four extremities. (Tr. 615). Plaintiff’s physical symptom testimony

25

was further undermined by Dr. Cunningham’s February 2007 examination report,

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indicating Plaintiff showed “no muscle spasm or point tenderness” in his neck or back.

27

(Tr. 617). These medical findings, among others cited by the ALJ, contradict Plaintiff’s

28

allegations that his physical symptoms were completely debilitating. The ALJ also

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concluded that mental health assessments undermined Plaintiff’s testimony regarding his

2

debilitating mental health symptoms. (Id.). While the ALJ recognized some mental health

3

symptoms, the record indicated that Plaintiff had “denied all auditory or visual

4

hallucination or delusions” and was “fully oriented” during an August 2007 exam.

5

(Tr. 617, 1136–42). Subsequent medical examination reports also contradicted Plaintiff’s

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mental health symptom testimony. (Tr. 617–18 (recognizing that an October 2009 mental

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status exam “indicated the claimant with good mood, pleasant, cooperative, alert and

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oriented, no delusions, no hallucinations, good insight and judgment, cognition grossly

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intact, and no suicidal/homicidal ideations”), 1109–10).

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Plaintiff argues that the ALJ erred by failing to provide clear findings and, thus,

11

accuses the ALJ of “stepp[ing] out of his role as an administrative adjudicator” and into

12

the role of “a medical professional.” (See Doc. 13 at 14–16). This is not the case. Here,

13

while the ALJ did not restate Plaintiff’s symptom testimony before discussing

14

contradictions within the record, it was clear which testimony the ALJ was finding not

15

credible. See Molina, 674 F.3d at 1121 (“Even when an agency explains its decision with

16

less than ideal clarity, we must uphold it if the agency’s path may reasonably be

17

discerned.” (quotations omitted)). Thus, the inconsistencies between Plaintiff’s testimony

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and the objective medical record are a clear and convincing reason to discount Plaintiff’s

19

testimony.

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c.

Daily Activities

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The ALJ finally found that Plaintiff’s activities of daily living contradicted the

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level of impairment he claimed. (Tr. 613–14). The ALJ noted Plaintiff’s daily activities,

23

as he reported, include preparing simple meals, completing household chores, caring for

24

his pets, shopping for groceries, and maintaining his personal finances. (Tr. 613).

25

Additionally, Plaintiff occasionally uses public transportation or takes a taxi. (Id.).

26

Plaintiff also makes his own jewelry, watches television, and listens to the radio. (Id.).

27

“While a claimant need not vegetate in a dark room in order to be eligible for

28

benefits, the ALJ may discredit a claimant’s testimony when the claimant reports

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participation in everyday activities indicating capacities that are transferable to a work

2

setting.” Molina, 674 F.3d at 1112–13 (citations and quotations omitted). Here, even

3

though Plaintiff stated that he had difficulty functioning, the ALJ properly discounted the

4

credibility of Plaintiff’s subjective symptom testimony to the extent Plaintiff’s daily

5

activities were inconsistent with an inability to work in any capacity. See, e.g., id. at 1113

6

(“[An] ALJ may discredit a claimant’s testimony when the claimant reports participation

7

in everyday activities indicating capacities that are transferable to a work setting[,] [e]ven

8

where those activities suggest some difficulty functioning . . . .” (citations omitted));

9

Curry v. Sullivan, 925 F.2d 1127, 1130 (9th Cir. 1990) (finding that the claimant’s ability

10

to “take care of her personal needs, prepare easy meals, do light housework and shop for

11

some groceries . . . may be seen as inconsistent with the presence of a condition which

12

would preclude all work activity” (citations omitted)). By way of example, Plaintiff

13

testified that he had disabling difficulties with memory and concentration. (See Tr. 612,

14

646–48). Yet, the ALJ recognized that Plaintiff was able to pay bills, count change,

15

handle a savings account, and use a checkbook and money orders. (Tr. 613, 177). To the

16

extent that Plaintiff argues that other activities, such as “lying down [for] 4–5 hours off

17

and on,” (Tr. 613), occupied a more substantial part of Plaintiff’s day than the ALJ

18

concluded, the Court declines to second-guess the ALJ’s reasonable determination to the

19

contrary, even if the evidence could give rise to inferences more favorable to Plaintiff.

20

See Rollins, 261 F.3d at 857. Thus, Plaintiff’s daily activities are a clear and convincing

21

reason to discount Plaintiff’s symptom testimony.

22

In sum, the ALJ provided several clear and convincing reasons supported by

23

substantial evidence for finding Plaintiff’s physical and mental symptom testimony less

24

than fully credible. As such, the ALJ did not err in discounting Plaintiff’s credibility.

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28

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III.

CONCLUSION

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For the foregoing reasons,

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IT IS ORDERED that the final decision of the Commissioner of Social Security

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5

is affirmed. The Clerk of Court shall enter judgment accordingly. 4
Dated this 8th day of November, 2016.

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To the extent a mandate is required, the judgment shall serve as the mandate.
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