Klahn v. Astrue

Filing 21

ORDER that the decision of the ALJ and the Commissioner of Social Security be affirmed; IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment accordingly. The judgment will serve as the mandate of this Court. Signed by Magistrate Judge Michelle H Burns on 03/22/12. (ESL)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 ) ) ) Plaintiff, ) ) vs. ) Michael J. Astrue, Commissioner of the ) ) Social Security Administration, ) ) Defendant. ) Shirley K. Klahn, CIV 10-8201-PCT-MHB ORDER 15 Pending before the Court is Plaintiff Shirley K. Klahn’s appeal from the Social 16 Security Administration’s final decision to deny her claim for disability insurance benefits 17 and supplemental security income benefits. After reviewing the administrative record and 18 the arguments of the parties, the Court now issues the following ruling. 19 I. PROCEDURAL HISTORY 20 On January 18, 2008, Plaintiff filed an application for disability insurance benefits and 21 supplemental security income benefits pursuant to Titles II and XVI of the Social Security 22 Act alleging disability since December 29, 2007, due to tarsal tunnel syndrome in her feet 23 following a motor vehicle accident. (Transcript of Administrative Record (“Tr.”) at 143-52.) 24 Her applications were denied initially and on reconsideration. (Tr. at 81-84.) Plaintiff, 25 subsequently, requested a hearing before an Administrative Law Judge (“ALJ”), (Tr. at 99), 26 which was held on February 22, 2010, (Tr. at 50-80). On April 1, 2010, ALJ Lauren R. 27 Mathon issued a decision finding that Plaintiff was not disabled. (Tr. at 26-35.) Thereafter, 28 the Appeals Council denied Plaintiff’s request for review, (Tr. at 6-8), rendering the ALJ’s 1 decision the final decision of the Commissioner. Plaintiff then sought judicial review of the 2 ALJ’s decision pursuant to 42 U.S.C. § 405(g). 3 II. STANDARD OF REVIEW 4 The Court must affirm the ALJ’s findings if the findings are supported by substantial 5 evidence and are free from reversible legal error. See Reddick v. Chater, 157 F.3d 715, 720 6 (9th Cir. 1998); Marcia v. Sullivan, 900 F.2d 172, 174 (9th Cir. 1990). Substantial evidence 7 means “more than a mere scintilla” and “such relevant evidence as a reasonable mind might 8 accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 9 (1971); see Reddick, 157 F.3d at 720. 10 In determining whether substantial evidence supports a decision, the Court considers 11 the administrative record as a whole, weighing both the evidence that supports and the 12 evidence that detracts from the ALJ’s conclusion. See Reddick, 157 F.3d at 720. “The ALJ 13 is responsible for determining credibility, resolving conflicts in medical testimony, and for 14 resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995); see 15 Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). “If the evidence can reasonably 16 support either affirming or reversing the [Commissioner’s] conclusion, the court may not 17 substitute its judgment for that of the [Commissioner].” Reddick, 157 F.3d at 720-21. 18 III. THE ALJ’S FINDINGS 19 In order to be eligible for disability or social security benefits, a claimant must 20 demonstrate an “inability to engage in any substantial gainful activity by reason of any 21 medically determinable physical or mental impairment which can be expected to result in 22 death or which has lasted or can be expected to last for a continuous period of not less than 23 12 months.” 42 U.S.C. § 423(d)(1)(A). An ALJ determines a claimant’s eligibility for 24 benefits by following a five-step sequential evaluation: 25 (1) determine whether the applicant is engaged in “substantial gainful activity”; 26 27 (2) determine whether the applicant has a medically severe impairment or combination of impairments; 28 -2- (3) determine whether the applicant’s impairment equals one of a number of listed impairments that the Commissioner acknowledges as so severe as to preclude the applicant from engaging in substantial gainful activity; 1 2 (4) if the applicant’s impairment does not equal one of the listed impairments, determine whether the applicant is capable of performing his or her past relevant work; 3 4 6 (5) if the applicant is not capable of performing his or her past relevant work, determine whether the applicant is able to perform other work in the national economy in view of his age, education, and work experience. 7 See Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987) (citing 20 C.F.R. § 404.1520). At the 8 fifth stage, the burden of proof shifts to the Commissioner to show that the claimant can 9 perform other substantial gainful work. See Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 5 10 1993). 11 At step one, the ALJ found that Plaintiff had not engaged in substantial gainful 12 activity since her alleged onset date of December 29, 2007. (Tr. at 28.) At steps two and 13 three, the ALJ found that Plaintiff’s peripheral neuropathy was a “severe” impairment, but 14 that she did not have an impairment or combination of impairments that met or equaled one 15 of the per se disabling impairments listed at 20 C.F.R. pt. 404, subpt. P, app. 1. (Tr. at 28- 16 30.) After considering the entire record, including Plaintiff’s subjective complaints and the 17 objective medical evidence, the ALJ determined that Plaintiff had the residual functional 18 capacity to perform light work as defined in 20 C.F.R. § 404.1527(b) with: 19 20 21 22 • standing/walking up to six hours in an eight-hour workday and sitting up to six hours in an eight-hour workday (with normal breaks); • frequent use of ramps and stoop; • occasional use of stairs, balancing, kneeling, crouching, and crawling; • no climbing of ladders, ropes, or scaffolds; and • no concentrated exposure to hazards (such as heights or machines requiring agility) (Tr. at 30-34.)1 At steps four and five, the ALJ relied on vocational expert testimony to find 23 that Plaintiff could not perform her past relevant work as a licensed practical nurse (medium, 24 skilled), but that she had skills from that work that would transfer to the job of phlebotomist 25 26 1 27 28 “Residual functional capacity” is defined as the most a claimant can do after considering the effects of physical and/or mental limitations that affect the ability to perform work-related tasks. -3- 1 (light, semi-skilled). (Tr. at 34.) Based on the vocational expert’s testimony, the ALJ 2 concluded that Plaintiff could perform the job of phlebotomist, which existed in significant 3 numbers in the national economy. (Tr. at 34-35.) Thus, the ALJ determined that she was not 4 disabled. (Tr. at 35.) 5 IV. DISCUSSION 6 In her brief, Plaintiff contends that the ALJ erred by: (1) failing to properly weigh the 7 medical opinions of record; (2) failing to properly evaluate her credibility; and (3) relying 8 upon flawed vocational expert testimony. Plaintiff requests that the Court remand for 9 determination of disability benefits or, in the alternative, remand for further administrative 10 proceedings. 11 A. Medical Opinions of Record 12 Plaintiff first argues that the ALJ improperly rejected every treating and examining 13 source of record, all of whom are relevant specialists, and instead relied upon the opinions 14 of non-examining physicians who reviewed an incomplete record and gave opinions outside 15 their respective specialties. 16 Agency regulations distinguish among the opinions of three types of accepted medical 17 sources: (1) sources who have treated the claimant; (2) sources who have examined the 18 claimant; and (3) sources who have neither examined nor treated the claimant, but express 19 their opinion based upon a review of the claimant’s medical records. See 20 C.F.R. § 20 404.1527. A treating physician’s opinion carries more weight than an examining physician’s, 21 and an examining physician’s opinion carries more weight than a non-examining reviewing 22 or consulting physician’s opinion. See Benecke v. Barnhart, 379 F.3d 587, 592 (9th Cir. 23 2004); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). The Commissioner must provide 24 “clear and convincing” reasons for rejecting the uncontradicted opinion of a treating or 25 examining physician. See Lester, 81 F.3d at 830. If the opinion is contradicted, it can be 26 rejected for specific and legitimate reasons that are supported by substantial evidence in the 27 record. See Andrews, 53 F.3d at 1043. Since the opinions of treating physician, Dr. Charles 28 Tadlock, and examining physicians, Drs. Steven Holper and Neil Soni, were contradicted by -4- 1 the opinions of the reviewing state agency physicians, the specific and legitimate standard 2 applies. 3 Historically, the courts have recognized the following as specific, legitimate reasons 4 for disregarding a treating or examining physician’s opinion: conflicting medical evidence; 5 the absence of regular medical treatment during the alleged period of disability; the lack of 6 medical support for doctors’ reports based substantially on a claimant’s subjective complaints 7 of pain; medical opinions that are brief, conclusory, and inadequately supported by medical 8 evidence. See Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005); Flaten v. Secretary 9 of Health and Human Servs., 44 F.3d 1453, 1463-64 (9th Cir. 1995); Fair v. Bowen, 885 F.2d 10 597, 604 (9th Cir. 1989). Here, the Court finds that the ALJ properly gave specific and 11 legitimate reasons, based on substantial evidence in the record, for discounting the opinions 12 of Drs. Tadlock, Holper and Soni. 13 Plaintiff was involved in a motor vehicle accident on May 10, 2004. (Tr. at 220-33.) 14 Among other complaints, Plaintiff indicated that she had been barefoot when the accident 15 occurred and had tingling in her toes and diffuse foot and ankle pain. (Tr. at 238.) 16 Subsequent x-rays of Plaintiff’s left foot post-motor vehicle accident were normal. (Tr. at 17 262.) 18 Kenneth Blocher, D.P.M., evaluated Plaintiff on August 3, 2004. (Tr. at 258.) At that 19 time, Plaintiff complained of bilateral foot pain that was somewhat worse on the right. (Tr. 20 at 258.) She also described tingling in her toes that sometimes changed to sharp discomfort. 21 (Tr. at 258.) Upon examination, Dr. Blocher noted diffuse tenderness in the plantar aspects 22 of both feet, right greater than left, and pain with mild percussion of the tarsal tunnel areas, 23 right greater than left. (Tr. at 258.) Dr. Blocher diagnosed tarsal tunnel syndrome and a right 24 ankle injury, which improved “to about 50% with physical therapy.” (Tr. at 258.) On 25 August 11, 2004, Plaintiff reported no improvement with extreme pain in the evening. (Tr. 26 at 258.) Dr. Blocher provided orthotics. (Tr. at 257-58.) 27 Nerve conduction studies of Plaintiff’s lower extremities conducted on September 15, 28 2004, were normal, however, showing no evidence of right or left tarsal tunnel syndrome. -5- 1 (Tr. at 238-39.) Plaintiff had full (5/5) lower extremity strength and intact reflexes. (Tr. at 2 238.) Later, on September 22, 2004, Plaintiff told Dr. Blocher that she had been unable to 3 tolerate the orthotics. (Tr. at 257.) So, on September 29, 2004, Dr. Blocher adjusted them 4 and administered a trigger point injection. (Tr. at 256.) 5 On October 20, 2004, Plaintiff reported that the injection had helped and that the pain 6 from her orthotics had improved. (Tr. at 256.) The following month, though, she stated that 7 the orthotics were not helping, and that she continued to have tenderness and tingling 8 sensations and requested surgical intervention. (Tr. at 255.) 9 On December 3, 2004, Plaintiff underwent bilateral tarsal tunnel release surgery, 10 performed by Dr. Blocher. (Tr. at 253-254.) She improved (Tr. at 252) and, as of January 11 3, 2005, was doing well except for occasional discomfort of the bottoms of her feet, (Tr. at 12 251). By late January of 2005, she had some localized redness and swelling and some 13 numbness and tingling, which was “improving daily.” (Tr. at 250.) Overall, she had 14 “significantly improved,” was able to wear regular shoes, and was returning back to work. 15 (Tr. at 250.) 16 On July 12, 2005, nerve conduction studies of Plaintiff’s lower extremities were again 17 normal. (Tr. at 234-35.) A bone scan later showed mild increased tracer uptake along the 18 right superior talus region and dorsal aspect of left mid-foot. (Tr. at 310.) On August 10, 19 2005, an MRI of left foot showed mild insertional tendinitis with minimal interstitial partial 20 tearing of the posterior tibial tendon and mild degenerative changes of the first MTP joint. 21 (Tr. at 308.) An MRI of the right foot suggested plantar fasciitis and showed degenerative 22 changes of the mid-foot and talonavicular joint. (Tr. at 309.) 23 On August 19, 2005, Stanley Graves, M.D., an orthopedist, reviewed the MRI and 24 explained, “I do not think that this coalition has anything to do with her injury or her present 25 complaints. The degenerative changes are secondary to the compensation for the coalition 26 in the talonavicular joint and the abnormal shape is also secondary to this congenital 27 condition and not related to the accident.” (Tr. at 279-81.) Dr. Graves stated that Plaintiff 28 would have permanent impairment to both lower extremities no matter what treatment was -6- 1 pursued, and assessed a 10% impairment of bilateral lower extremities. (Tr. at 279-81.) He 2 noted that Plaintiff had been able to return to rather significant function. (Tr. at 279-81.) He 3 said she stood frequently at her job, but not as much as she had previously, and that she could 4 stand for up to six hours (with intermittent breaks) without significant restriction. (Tr. at 5 279-81.) On January 5, 2006, Dr. Graves noted that Plaintiff had continued ankle symptoms, 6 and that surgery was warranted. (Tr. at 278.) Following the surgery on February 14, 2006, 7 (Tr. at 241-44, 276-77), Plaintiff continued to have some discomfort, but was better than 8 before surgery, (Tr. at 273-75). 9 She returned to Dr. Graves on May 12, 2006, stating that her pain had worsened. (Tr. 10 at 272.) On examination, she had tenderness and minimal swelling. (Tr. at 272.) Dr. Graves 11 explained that it would “take many months to know how well she will do,” and that she could 12 maintain her light duty work status where she usually sat on the job. (Tr. at 272.) He said 13 her treatment should include three to four office visits a year over the next 10 years and 14 occasional pain management. (Tr. at 272.) The following month, Plaintiff still had foot and 15 ankle discomfort, but had made some progress, her medications helped, and she continued 16 to work. (Tr. at 271.) Dr. Graves later opined that Plaintiff’s symptoms had reached a 17 “stationary status” and that Plaintiff could walk for 15 minutes at a time. (Tr. at 270.) He 18 concluded, “[a]t this stage I do not see that she will require future surgery.” (Tr. at 270.) 19 On November 10, 2006, Plaintiff returned to Dr. Graves for her foot complaints, but 20 stated that her medication helped. (Tr. at 269.) Upon examination, she had mild swelling 21 and intermittent radiating pain, but good range of motion. (Tr. at 269.) Dr. Graves felt 22 Plaintiff would probably “always have discomfort,” but did not think working would cause 23 any harm. (Tr. at 269.) Several months later, in June of 2007, Dr. Graves ordered MRIs of 24 Plaintiff’s feet. (Tr. at 268.) The right foot MRI showed ankle joint effusion with no tears, 25 fluid around flexor hallucis tendon consistent with a focal area of tenosynovitis, some edema 26 within the anterior talus, and no fractures. (Tr. at 282.) The left foot MRI showed edema at 27 the ankle joint with effusion, but intact tendons and no fractures. (Tr. at 283.) Dr. Graves 28 -7- 1 later noted that the MRIs did not show significant arthrosis and stated, “[a]fter reviewing her 2 MRI, I don’t see anything that should require surgery at this point.” (Tr. at 267.) He 3 recommended orthotic management further stabilize Plaintiff and administered injections. 4 (Tr. at 267.) 5 On January 24, 2008, Plaintiff saw pain management specialist Charles Tadlock, M.D. 6 (Tr. at 315-17.) Upon examination, Plaintiff had intact motor and sensory function and no 7 edema. (Tr. at 315-17.) Dr. Tadlock diagnosed status post-multiple foot surgeries with ankle 8 and foot pain. (Tr. at 315-17.) He prescribed a new medication. (Tr. at 315-17.) 9 On March 29, 2008, Plaintiff saw Neil Soni, M.D., with complaints of foot pain. (Tr. 10 at 318-22.) She told Dr. Soni that she was unable to cook, clean, vacuum, mop, sweep, or 11 do yard work, but that she could use the dishwasher, care for her personal needs, and drive 12 using cruise control (even for short distances). (Tr. at 318-22.) She stated that she spent her 13 days sitting in a chair with her feet elevated watching television, reading, or using a 14 computer, and that she liked to sew. (Tr. at 318-22.) She also indicated that standing or 15 dangling her feet made her pain worse. (Tr. at 318-22.) 16 On examination, Plaintiff walked independently with a limp, was able to get on and 17 off of exam table, was able get in and out of a chair, and take her socks off and on without 18 difficulty. (Tr. at 318-22.) She had some swelling of her ankles and was unable to tandem 19 walk, but could stand on her toes and heels with pain. (Tr. at 318-22.) She had pain with 20 resistence to the ankles, but not with active range of motion. (Tr. at 318-22.) She had full 21 motor strength, normal reflexes, and hypersensitivity to touch and pinprick in feet and ankles. 22 (Tr. at 318-22.) Dr. Soni diagnosed peripheral neuropathy of feet with allodynia. (Tr. at 23 318-22.) He opined that Plaintiff could be expected to: stand less than two hours in an eight- 24 hour workday; sit unlimited in an eight-hour workday as long as the feet were elevated; and 25 lift 10 pounds frequently and 20 pounds occasionally. (Tr. at 318-22.) 26 On June 12, 2008, Jean Goerss, M.D., state agency physician, reviewed all of the 27 evidence and found that Plaintiff could lift/carry 20 pounds occasionally and 10 pounds 28 -8- 1 frequently; sit and stand/walk about six hours each in an eight-hour workday; frequently 2 stoop; occasionally climb ramps/stairs, balance, kneel, crouch, and crawl; and never climb 3 ladders/ropes/scaffolds. (Tr. at 323-30.) Dr. Goerss also found that Plaintiff should avoid 4 concentrated exposure to hazards. (Tr. at 323-30.) Ultimately, Dr. Goerss concluded that 5 Plaintiff is capable of light exertional work and that “[t]he diagnosis of tarsal tunnel 6 syndrome is entirely based on [symptoms] in this case.” (Tr. at 323-30.) Specifically, Dr. 7 Goerss stated that “[t]he only objective sign is an MRI of the R foot (6/8/07) showing a small 8 effusion at the flexor hallicus longus near the talus which is the location of the nerve that is 9 entrapped or damaged in tarsal tunnel syndrome. The MRI of the L foot was normal. EMG 10 is normal.” (Tr. at 323-30.) 11 Later, on June 26, 2008, Plaintiff saw Dr. Tadlock with questions about her 12 medications. (Tr. at 338.) On examination, she had pain in her right foot but was alert, 13 oriented, and in no acute distress and had no edema. (Tr. at 338.) Dr. Tadlock continued 14 Plaintiff’s medications. (Tr. at 338.) One month later, Plaintiff was doing well with no 15 significant complaints. (Tr. at 337.) Examination and treatment recommendations were 16 unchanged. (Tr. at 337.) 17 18 On January 22, 2009, Thomas Glodek, M.D., a state agency physician, reviewed the evidence and concurred with Dr. Goerss’ prior assessment. (Tr. at 358; 323-30.) 19 On January 29, 2009, Plaintiff saw Dr. Tadlock for the first time since July of 2008. 20 (Tr. at 386.) Dr. Tadlock indicated that Plaintiff was “fully disabled” by her severe bilateral 21 tarsal tunnel and unrelenting pain, which made her unable to stand more than a few minutes 22 at a time. (Tr. at 386.) Examination and treatment recommendations were unchanged. (Tr. 23 at 386.) 24 Questionnaire stating that Plaintiff had a less than sedentary residual functional capacity, 25 would require frequent unscheduled breaks, and would miss more than thee days of work per 26 month. (Tr. at 367-74.) That same day, Dr. Tadlock completed a Lower Extremities Impairment 27 Ten months later, on November 20, 2009, Dr. Tadlock noted that Plaintiff was 28 satisfied with her activity level, which had improved with treatment. (Tr. at 379-80.) -9- 1 Plaintiff stated that her pain level was also acceptable, and that she was satisfied with her 2 medications. (Tr. at 379-80.) Upon examination, Plaintiff was alert, oriented, and in no 3 acute distress with intact motor function and sensation. (Tr. at 379-80.) 4 On February 5, 2010, Plaintiff saw Steven Holper, M.D., for a medical evaluation at 5 the request of her attorney. (Tr. at 388-92.) She complained of bilateral foot pain and right 6 hip pain. (Tr. at 388-92.) She stated that she “gets around the home environment” with an 7 electric wheelchair or cane, needed to elevate her feet, and that her husband did most of the 8 housework. (Tr. at 388-92.) She indicated that she was able to care for her personal needs 9 and drive. (Tr. at 388-92.) Dr. Holper diagnosed chronic/permanent neuropathic pain 10 syndrome of both lower extremities status post-bilateral tarsal tunnel surgeries. (Tr. at 388- 11 92.) He concluded that Plaintiff’s symptoms would “preclude and/or interfere with cognitive 12 endeavors in the work environment,” that she could not work an eight-hour day due to her 13 inability to stand or walk for at least six hours per day, and that she was likely “disabled 14 under the Social Security Act.” (Tr. at 388-92.) He also completed a Lower Extremities 15 Impairment Questionnaire, finding that Plaintiff had a less than sedentary residual functional 16 capacity, required unscheduled breaks, and would miss more than three days of work per 17 month. (Tr. at 394-401.) 18 On May 14, 2010, Dr. Tadlock sent Plaintiff for a podiatry consult and noted that she 19 was having hip pain and using a cane. (Tr. at 403-04.) His foot examination was unchanged. 20 (Tr. at 403-04.) He diagnosed degenerative disease of the right hip and foot pain, for which 21 he prescribed medications. (Tr. at 403-04.) 22 After considering the medical evidence, the ALJ first addressed Dr. Tadlock’s 23 conclusion, which, as previously indicated, found Plaintiff “fully disabled due to bilateral 24 tarsal tunnel syndrome and severe, unrelenting pain in her feet, making her unable to stand 25 for more than a few minutes.” (Tr. at 32-33.) The ALJ stated: 26 27 28 The undersigned declines to give controlling weight to Dr. Tadlock’s assessment. There is limited support in the contemporaneous treatment records for such a restrictive assessment. Dr. Tadlock’s treating notes basically summarize the claimant’s subjective complaints, diagnoses and medication, but do no present objective clinical or diagnostic findings to support his - 10 - 1 opinion. It is noted that there is no indication of the need for the claimant to keep her feet elevated. 2 (Tr. at 32-33.) Indeed, Dr. Tadlock’s reports showed that during 2008, Plaintiff, despite 3 allegations of debilitating pain, was alert, oriented, and in no apparent distress, (Tr. at 338), 4 and that she had intact motor and sensory function, (Tr. at 317). Although Plaintiff reported 5 doing well with no significant complaints in July of 2008, (Tr. at 337), Dr. Tadlock issued 6 an opinion of disabling limitations in January of 2009, (Tr. at 367-74, 386). At her next visit 7 ten months later, Plaintiff stated that she was satisfied with her activity and pain level, which 8 had improved with treatment. (Tr. at 379.) She was again noted to be in no apparent distress 9 with intact motor function. (Tr. at 379-80, 407-08.) 10 Next, in assessing Dr. Holper’s opinion, the ALJ found that – although Dr. Holper 11 concluded that “the claimant would be unable to work an entire eight-hour workday,” “could 12 not be expected to sit for six hours per day nor stand or talk the remaining two hours,” “is 13 unable to stand/walk a minimum of six hours per day [–] precluding full time employment,” 14 “had symptoms that would preclude and/or interfere with cognitive endeavors in the work 15 place” – “this assessment has been evaluated and considered but is given limited weight as 16 it is based on a single evaluation and is apparently based to a great degree on the claimant’s 17 subjective complaints and indication that she needs to maintain her feet in an elevated 18 position.” (Tr. at 33.) 19 In her discussion of Dr. Soni’s March 29, 2008 medical source statement, the ALJ 20 stated that Dr. Soni “gave no postural limitation on bending, stooping, crouching or crawling 21 and no manipulative, environmental or other limitations.” (Tr. at 33.) Dr. Soni further 22 reported that, despite Plaintiff’s recognized foot pain, she retained the ability to walk 23 independently, get on and off of the examination table, get in and out of a chair, take her 24 socks on and off without difficulty, and stand on her toes and heels. (Tr. at 320-22.) She 25 also retained full motor strength and normal reflexes. (Tr. at 321-22.) The ALJ afforded Dr. 26 Soni’s assessment “limited weight as being based in part on the claimant’s subjective 27 28 - 11 - 1 complaints as opposed to objective medical evidence and is too restrictive in light of the 2 claimant’s daily activities.” (Tr. at 33.) 3 Lastly, the ALJ referenced the opinion of state agency physician, Dr. Goerss, who 4 reviewed the record on June 12, 2008, and found that Plaintiff was capable of light exertional 5 work. (Tr. at 33.) Significantly, the ALJ noted that Dr. Goerss determined that the diagnosis 6 of tarsal tunnel syndrome was based entirely on symptoms as “[a]n MRI of the foot was 7 normal and electromyography was normal.” (Tr. at 33.) The ALJ gave Dr. Goerss’ opinion 8 significant weight as being consistent with the overall evidence available at the hearing level. 9 (Tr. at 33.) 10 The ALJ is tasked with determining credibility and resolving conflicts in medical 11 testimony, not this Court. See Andrews, 53 F.3d at 1039. “The ALJ need not accept an 12 opinion of a physician ... if it is conclusionary and brief and is unsupported by clinical 13 findings.” Matney v. Sullivan, 981 F.2d 1016, 1020 (9th Cir. 1992). When “the evidence is 14 susceptible to more than one rational interpretation,” this Court “must uphold the ALJ’s 15 decision.” Andrews, 53 F.3d at 1039-40. 16 In light of the medical evidence, the Court finds that ALJ provided specific and 17 legitimate reasons, based on substantial evidence in the record, for discounting the opinions 18 of Drs. Tadlock, Holper and Soni as being based on Plaintiff’s subjective complaints. See 19 Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (since the record supported the 20 ALJ’s credibility finding, he was free to disregard opinion that was premised on subjective 21 complaints) (citing Fair, 885 F.2d at 605). Further, as the record demonstrates, the doctors’ 22 opinions were specifically contradicted by the opinions of the reviewing state agency 23 physicians and the clinical findings of record. 24 B. Credibility of Plaintiff’s Subjective Complaints 25 Plaintiff argues that the ALJ erred in failing to properly evaluate her credibility. In 26 Cotton v. Bowen, 799 F.2d 1403 (9th Cir. 1986), the Ninth Circuit established two 27 requirements for a claimant to present credible symptom testimony: The claimant must 28 produce objective medical evidence of an impairment or impairments, and he must show the - 12 - 1 impairment or combination of impairments could reasonably be expected to produce some 2 degree of symptom. See id. at 1407. The claimant, however, need not produce objective 3 medical evidence of the actual symptoms or their severity. See Smolen v. Chater, 80 F.3d 4 1273, 1284 (9th Cir. 1996). 5 If the claimant satisfies the above test and there is not any affirmative evidence of 6 malingering, the ALJ can reject the claimant’s pain testimony only if he provides clear and 7 convincing reasons for doing so. See Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007) 8 (citing Lester, 81 F.3d at 834). General assertions that the claimant’s testimony is not 9 credible are insufficient. See id. The ALJ must identify “what testimony is not credible and 10 what evidence undermines the claimant’s complaints.” Id. (quoting Lester, 81 F.3d at 834). 11 In weighing a claimant’s credibility, the ALJ may consider many factors, including, 12 “(1) ordinary techniques of credibility evaluation, such as the claimant’s reputation for lying, 13 prior inconsistent statements concerning the symptoms, and other testimony by the claimant 14 that appears less than candid; (2) unexplained or inadequately explained failure to seek 15 treatment or to follow a prescribed course of treatment; and (3) the claimant’s daily 16 activities.” Smolen, 80 F.3d at 1284; see Orn v. Astrue, 495 F.3d 625, 637-39 (9th Cir. 2007). 17 The ALJ also considers “the claimant’s work record and observations of treating and 18 examining physicians and other third parties regarding, among other matters, the nature, 19 onset, duration, and frequency of the claimant’s symptom; precipitating and aggravating 20 factors; functional restrictions caused by the symptoms; and the claimant’s daily activities.” 21 Smolen, 80 F.3d at 1284 (citation omitted). 22 At the administrative hearing, Plaintiff testified that she stopped working on 23 December 29, 2007, because of foot pain that she had as a result of her automobile accident 24 in 2004. (Tr. at 55-56.) She indicated that she had numbness, tingling, and shooting pain in 25 her feet and ankles, and also had pain in her right hip since August of 2009. (Tr. at 56, 61.) 26 She stated that prolonged standing made her symptoms worse, (Tr. at 57, 59, 60), and that 27 sitting caused hip pain, (Tr. at 61-62). She said that after August of 2009 she could sit for 28 an hour or two. (Tr. at 62.) Plaintiff testified that she could lift five to 15 pounds without - 13 - 1 problems, (Tr. at 62); she said she had a walker, but had not used it since December of 2007, 2 (Tr. at 62); and she used a cane that was not prescribed since approximately August of 2009, 3 (Tr. at 62-63). 4 Plaintiff stated that her medications “curb[ed] the symptoms but did not get rid of it 5 completely,” and made her sleepy, (Tr. at 57), and that she elevated her feet, took showers, 6 and soaked her feet to help her symptoms, (Tr. at 58-59). She said that she had no difficulties 7 dressing or bathing herself and could drive short distances. (Tr. at 63-65.) She indicated that 8 she tried to cook and dust, but that housework was usually too painful for her to do for more 9 than a few minutes. (Tr. at 63-64.) She said that she went to church several times a week, 10 lead a woman’s Bible study, and played the piano without the foot pedals. (Tr. at 65-66.) 11 Generally, Plaintiff stated that she spent her time reading, watching television, or using a 12 computer for five or ten minutes at a time. (Tr. at 65.) She shopped while riding a cart, (Tr. 13 at 67), and also stated that she went to Las Vegas approximately once per year, (Tr. at 69). 14 During the hearing, Plaintiff stated that she went to South Carolina for a week in 2007 and 15 2008. (Tr. at 70.) 16 Having reviewed the record along with the ALJ’s credibility analysis, the Court finds 17 that the ALJ made extensive credibility findings and identified several clear and convincing 18 reasons supported by the record for discounting Plaintiff’s statements regarding her 19 limitations. Although the ALJ recognized that Plaintiff had medical impairments that could 20 produce some pain and other symptoms, she also found that her allegations concerning the 21 extent of her resulting limitations were not fully credible. (Tr. at 32.) 22 In her evaluation of Plaintiff’s testimony, the ALJ first referenced Plaintiff’s daily 23 activities – which included the abilities to drive short distances, attend church several times 24 a week, lead Bible study classes, play the piano (without using the foot pedals), attend choir 25 practice, run errands, shop, go out to eat, and care for her personal needs – finding that said 26 activities detracted from her claims of disability. (Tr. at 32, 64-67, 70.) The ALJ also 27 referenced an investigation, which revealed that Plaintiff was observed walking to and from 28 her vehicle and carrying things without apparent difficulty. (Tr. at 32, 199-202.) While not - 14 - 1 alone conclusive on the issue of disability, an ALJ can reasonably consider a claimant’s daily 2 activities in evaluating the credibility of her subjective complaints. See, e.g., Stubbs- 3 Danielson v. Astrue, 539 F.3d 1169, 1175 (9th Cir. 2008) (upholding ALJ’s credibility 4 determination based in part of the claimant’s abilities to cook, clean, do laundry, and help her 5 husband with the finances); Burch v. Barnhart, 400 F.3d 676, 680-81 (9th Cir. 2005) 6 (upholding ALJ’s credibility determination based in part on the claimant’s abilities to cook, 7 clean, shop, and handle finances). 8 In addition to evidence of Plaintiff’s daily activities, the ALJ explained that there were 9 other inconsistencies that detracted from Plaintiff’s credibility. For instance, the ALJ noted 10 that Plaintiff went long periods of time (during the time period at issue) without seeking any 11 medical treatment. (Tr. at 32.) In so noting, the ALJ acknowledged Plaintiff’s claim the she, 12 at times, did not have insurance. (Tr. at 32.) There is, however, no evidence that Plaintiff 13 sought low or no cost treatment, or that she was denied care for financial reasons. See 14 Moncada v. Chater, 60 F.3d 521, 524 (9th Cir. 1995) (claimant’s allegations of disabling pain 15 could be discredited by evidence of infrequent medical treatment); Murphy v. Sullivan, 953 16 F.2d 383, 386-87 (8th Cir. 1992) (ALJ properly considered claimant’s failure to seek 17 treatment, despite allegations of an inability to afford such treatment, where the claimant had 18 not sought low cost treatment and had not been denied care for financial reasons). And, 19 when she did in fact receive treatment, the ALJ determined that “the claimant received only 20 minimal, conservative treatment for her complaints, consisting primarily of pharmacological 21 remedies, after her tarsal tunnel surgeries.” (Tr. at 32); see Johnson v. Shalala, 60 F.3d 1428, 22 1434 (9th Cir. 1995) (evidence of “conservative treatment” is sufficient to discount a 23 claimant’s testimony regarding severity of an impairment). 24 Lastly, the ALJ found that the objective medical evidence (previously discussed) did 25 not support limitations of the degree alleged. (Tr. at 32.); see Carmickle v. Comm’r, Soc. 26 Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008) (“Contradiction with the medical record 27 is a sufficient basis for rejecting the claimant’s subjective testimony.”) (citation omitted); 28 Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004) (lack of - 15 - 1 objective medical evidence supporting claimant’s allegations supported ALJ’s finding that 2 claimant was not credible). 3 In summary, the ALJ provided a sufficient basis to find Plaintiff’s allegations not 4 entirely credible. While perhaps the individual factors, viewed in isolation, are not sufficient 5 to uphold the ALJ’s decision to discredit Plaintiff’s allegations, each factor is relevant to the 6 ALJ’s overall analysis, and it was the cumulative effect of all the factors that led to the ALJ’s 7 decision. The Court concludes that the ALJ has supported her decision to discredit Plaintiff’s 8 allegations with specific, clear and convincing reasons and, therefore, the Court finds no 9 error. 10 C. Vocational Expert Testimony 11 Plaintiff contends that the ALJ relied upon flawed vocational expert testimony. 12 Plaintiff states that the “RFC presented in the hypothetical to the VE here was based entirely 13 upon the opinion of the non-examining physician.” Plaintiff argues that the opinion of the 14 non-examining physician is not substantial evidence. 15 The vocational expert testified that Plaintiff’s past work was as a licensed practical 16 nurse (medium, skilled), and that she had skills from that job that would transfer to the 17 occupation of phlebotomist (light, semi-skilled). (Tr. at 73-74.) The vocational expert 18 testified that someone with the limitations the state agency physicians assessed, (Tr. at 323- 19 30, 358), could perform the job of phlebotomist, (Tr. at 76), but that someone with the 20 limitations assessed by Dr. Tadlock, (Tr. at 366-74), or Dr. Holper (Tr. at 388-92), could not, 21 (Tr. at 77-78). 22 Plaintiff argument appears to misconstrue the record. The ALJ relied on vocational 23 expert testimony to conclude that someone with the residual functional capacity that she 24 ultimately found (after consideration of all the evidence on record) could perform the job of 25 phlebotomist, which existed in significant numbers in the national economy. (Tr. at 34-35, 26 76). Plaintiff does not challenge that someone with the residual functional capacity found 27 by the ALJ could perform a significant number of jobs in the national economy. Thus, the 28 Court finds no error. - 16 - 1 V. CONCLUSION 2 Substantial evidence supports the ALJ’s decision to deny Plaintiff’s claim for 3 disability insurance benefits and supplemental security income benefits in this case. The ALJ 4 gave specific and legitimate reasons, based on substantial evidence in the record, for 5 discounting the opinions of Drs. Tadlock, Holper and Soni, and properly discredited 6 Plaintiff’s credibility providing clear and convincing reasons supported by the record for 7 discounting Plaintiff’s statements regarding her limitations. Consequently, the ALJ’s 8 decision is affirmed. Based upon the foregoing discussion, 9 10 11 12 13 IT IS ORDERED that the decision of the ALJ and the Commissioner of Social Security be affirmed; IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment accordingly. The judgment will serve as the mandate of this Court. DATED this 22nd day of March, 2012. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 17 -

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