Vilma Romero Mullis v. Michael J. Astrue

Filing 21

MEMORANDUM OPINION AND ORDER AFFIRMING THE COMMISSIONER by Magistrate Judge Jean P Rosenbluth: IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner and dismissing this action with prejudice. IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment on counsel for both parties. (rla)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 VILMA ROMERO MULLIS, Plaintiff, 13 v. 14 15 16 MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 17 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 11-0542 JPR MEMORANDUM OPINION AND ORDER AFFIRMING THE COMMISSIONER 18 19 I. PROCEEDINGS 20 Plaintiff seeks review of the Commissioner’s final decision 21 denying her application for Social Security Disability Insurance 22 Benefits and Supplemental Security Income (“SSI”). 23 consented to the jurisdiction of the undersigned U.S. Magistrate Judge 24 pursuant to 28 U.S.C. § 636(c). 25 the parties’ Joint Stipulation, filed December 14, 2011. 26 has taken the Joint Stipulation under submission without oral 27 argument. 28 is affirmed and this action is dismissed. The parties This matter is before the Court on The Court For the reasons stated below, the Commissioner’s decision 1 2 II. BACKGROUND Plaintiff was born on November 8, 1961. (Administrative Record 3 (“AR”) 26.) 4 skills. 5 Honduras. 6 January 1, 1986. 7 since 1987 except “again very little in 2003.” 8 9 She is a native of Honduras and has limited English (AR 26-27.) (AR 27.) She obtained an eighth-grade education in Plaintiff claims to have been disabled since (AR 78, 82.) She claims that she has not worked (AR 83.) On March 2, 2007, Plaintiff filed an application for SSI. 78-81.) (AR On April 18, 2007, Plaintiff filed an application for 10 disability insurance benefits. 11 applications were denied, she requested a hearing before an 12 Administrative Law Judge (“ALJ”). 13 2008, and Plaintiff appeared with counsel and testified on her own 14 behalf. 15 claims, determining that Plaintiff has the severe impairments of 16 “headaches, back, left arm, bilateral foot and knee pain, 17 hypothyroidism, and a depressive disorder, not otherwise specified,” 18 but that she is not disabled because she has the residual functional 19 capacity (“RFC”)1 to perform medium work. 20 23, 2010, the Appeals Council denied Plaintiff’s request for review. 21 (AR 1-4.) (AR 23-36.) (AR 82-86.) (AR 53.) After Plaintiff’s It was held on October 6, On November 4, 2008, the ALJ denied Plaintiff’s (AR 17-21.) On November This action followed. 22 Plaintiff raises two disputed issues: 23 1. Koroshec, allegedly Plaintiff’s treating physician; 24 25 Whether the ALJ properly rejected the opinion of Dr. David 2. Whether the ALJ properly rejected as not credible 26 27 28 1 RFC is what a claimant can still do despite existing exertional and nonexertional limitations. 20 C.F.R. § 404.1545(a); § 416.945(a); see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 2 1 Plaintiff’s hearing testimony. 2 (J. Stip. at 3-4.) 3 III. STANDARD OF REVIEW 4 Pursuant to 42 U.S.C. § 405(g), a district court may review the 5 Commissioner’s decision to deny benefits. 6 findings and decision should be upheld if they are free from legal 7 error and are supported by substantial evidence based on the record as 8 a whole. 9 Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971); Parra v. Astrue, 481 F.3d The Commissioner’s or ALJ’s § 405(g); Richardson v. Perales, 402 U.S. 389, 401, 91 S. 10 742, 746 (9th Cir. 2007). 11 a reasonable person might accept as adequate to support a conclusion. 12 Richardson, 402 U.S. at 401; Lingenfelter v. Astrue, 504 F.3d 1028, 13 1035 (9th Cir. 2007). 14 preponderance. 15 Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 16 substantial evidence supports a finding, the reviewing court “must 17 review the administrative record as a whole, weighing both the 18 evidence that supports and the evidence that detracts from the 19 Commissioner’s conclusion.” 20 Cir. 1998). 21 or reversing,” the reviewing court “may not substitute its judgment” 22 for that of the Commissioner. 23 IV. 24 Substantial evidence means such evidence as It is more than a scintilla but less than a Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. To determine whether Reddick v. Chater, 157 F.3d 715, 720 (9th “If the evidence can reasonably support either affirming Id. at 720-21. THE EVALUATION OF DISABILITY People are “disabled” for purposes of receiving Social Security 25 benefits if they are unable to engage in any substantial gainful 26 activity owing to a severe physical or mental impairment that is 27 expected to result in death or which has lasted, or is expected to 28 last, for a continuous period of at least 12 months. 3 42 U.S.C. 1 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 2 1992). 3 A. The Five-Step Evaluation Process 4 The Commissioner (or ALJ) follows a five-step sequential 5 evaluation process in assessing whether a claimant is disabled. 20 6 C.F.R. § 404.1520(a)(4); § 416.920(a)(4); Lester v. Chater, 81 F.3d 7 821, 828 n.5 (9th Cir. 1995) (as amended Apr. 9, 1996). 8 step, the Commissioner must determine whether the claimant is 9 currently engaged in substantial gainful activity; if so, the claimant In the first 10 is not disabled and the claim is denied. § 404.1520(a)(4)(i); 11 § 416.920(a)(4)(i). 12 gainful activity, the second step requires the Commissioner to 13 determine whether the claimant has a “severe” impairment or 14 combination of impairments significantly limiting her ability to do 15 basic work activities; if not, a finding of nondisability is made and 16 the claim is denied. 17 the claimant has a “severe” impairment or combination of impairments, 18 the third step requires the Commissioner to determine whether the 19 impairment or combination of impairments meets or equals an impairment 20 in the Listing of Impairments (“Listing”) set forth at 20 C.F.R., Part 21 404, Subpart P, Appendix 1; if so, disability is conclusively presumed 22 and benefits are awarded. 23 (iii). 24 does not meet or equal an impairment in the Listing, the fourth step 25 requires the Commissioner to determine whether the claimant has 26 sufficient RFC to perform her past work; if so, the claimant is not 27 disabled and the claim is denied. 28 (4)(iv). If the claimant is not engaged in substantial § 404.1520(a)(4)(ii); § 416.920(a)(4)(ii). If § 404.1520(a)(4)(iii); § 416.920(a)(4) If the claimant’s impairment or combination of impairments § 404.1520(a)(4)(iv); § 416.920(a) The claimant has the burden of proving that she is unable to 4 1 perform past relevant work. 2 claimant meets that burden, a prima facie case of disability is 3 established. 4 relevant work, the Commissioner then bears the burden of establishing 5 that the claimant is not disabled because she can perform other 6 substantial gainful work available in the national economy. 7 § 404.1520(a)(4)(iv); § 416.920(a)(4)(iv). 8 comprises the fifth and final step in the sequential analysis. 9 § 404.1520; § 416.920; Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 10 Id. Drouin, 966 F.2d at 1257. If the If that happens or if the claimant has no past That determination 1257. 11 B. The ALJ’s Application Of The Five-Step Process 12 At step one, the ALJ found that Plaintiff had not engaged in any 13 substantial gainful activity since January 1, 1986. (AR 17.) At step 14 two, the ALJ concluded that Plaintiff “has the following severe 15 impairments: headaches, back, left arm, bilateral foot and knee pain, 16 hypothyroidism, and a depressive disorder, not otherwise specified.” 17 (Id.) 18 impairment or combination of impairments that meets or equals any of 19 the impairments in the Listing. 20 that Plaintiff “has the residual functional capacity to perform medium 21 work as defined in 20 C.F.R. 404.1567(c) and 416.967(c)” and that 22 Plaintiff “can lift and carry 50 pounds occasionally and 25 pounds 23 frequently and can sit, stand and walk for 6 hours out of an 8 hour 24 day.” 25 exist in the national economy that Plaintiff can perform. 26 Specifically, based on the hearing testimony of the Vocational Expert, 27 the ALJ found that Plaintiff was capable of performing the jobs of 28 “hand packager” and “sandwich maker.” At step three, the ALJ found that Plaintiff did not have an (AR 19.) (AR 18.) At step four, the ALJ found At step five, the ALJ found that sufficient jobs 5 (Id.) (AR 21.) 1 The ALJ expressly rejected the August 11, 2008, opinion of 2 Plaintiff’s alleged treating physician, Dr. David Koroshec of the 3 BAART Clinic. 4 clinic multiple times, but she appears to have been treated almost 5 exclusively by physician’s assistant Cosmas Nwosu and nurse 6 practitioner Emily Borkhovich. 7 whether Plaintiff was ever seen by Dr. Koroshec prior to August 11, 8 2008, when Dr. Koroshec completed an RFC form for Plaintiff.2 9 284-87.) Between 2007 and 2009, Plaintiff visited the BAART (AR 165-206, 257-83.) It is unclear (AR On that form, Dr. Koroshec left blank the questions 10 concerning when and how often he had treated Plaintiff. 11 also did not provide the requested diagnosis of or prognosis for 12 Plaintiff but noted that she had the symptoms of “pain in back, 13 shoulders, [right] knee.” 14 incapable of even “low stress” work; could not sit or stand for more 15 than five minutes at a time; could rarely lift more than 10 pounds and 16 could never lift more than that; could never climb ladders and could 17 rarely twist, stoop/bend, crouch, or climb stairs; and had “moderate” 18 limitations in doing repetitive reaching, handling, and fingering. 19 (AR 285-86.) 20 objective signs” supporting his diagnosis, prognosis, and description 21 of symptoms and resulting limitations, Dr. Koroshec wrote, “mostly 22 subjective, difficult to grasp clinical association but is very ‘real’ 23 to [patient].” 24 Dr. Koroshec checked “no” but qualified his answer by stating “not 25 consciously.” (AR 284.) (AR 284.) He He concluded that Plaintiff was When asked to identify all “clinical findings and (AR 284.) When asked if Plaintiff was a malingerer, (AR 285.) 26 2 27 28 Plaintiff’s hearing testimony regarding her visits to Dr. Koroshec’s office was unclear as to whether she was treated directly by Dr. Koroshec or whether she was instead treated by members of his staff. (See AR 30-31.) 6 The ALJ found that Dr. Koroshec’s opinion that Plaintiff had more 1 2 severe restrictions than those found by the consultative examining 3 doctors was not credible “because he offers no diagnosis nor any 4 findings in support of his assessment; he does not state that he 5 treated the claimant, but even if he did his conclusory report is at 6 variance with the remainder of the evidentiary record and is entitled 7 to no special weight.” The ALJ also noted that during the hearing Plaintiff “did not 8 9 (AR 20.) complain of serious pain and is not using any severe pain medication” 10 and that she “has not had any recent medical treatment, been 11 prescribed stronger, more potent medication for her pain [or] other 12 complaints and has not been referred to a specialist for her 13 complaints.” 14 not able to work because she suffers from the following ailments: “My 15 back pain, my knee, that I don’t have the strength to walk and I also 16 have gastritis problems and low acid,” and “my stomach feels like it’s 17 like I can have gas.” 18 had a tumor on my throat and I feel like it’s hurting.”3 19 Plaintiff stated that she “[tries] to walk slowly” and that her son 20 helps her with household chores, including vacuuming and cooking “when 21 [her] hands get numb.” 22 equilibrium and has to “walk on one side” to keep her balance. 23 32.) 24 she hears police or ambulance noises, and she is afraid of elevators. 25 (AR 32-33.) 26 (Id.) Plaintiff testified at the hearing that she was (AR 29.) Her “throat sometimes hurts because I (AR 29-30, 32.) (Id.) She has problems with her (AR Further, she gets “very nervous” and “feel[s] like crying” when The ALJ concluded that Plaintiff’s “hearing allegations were not 27 3 28 There are no laboratory or diagnostic findings in the record concerning a tumor. 7 1 credible or consistent with the credible medical evidence,” and that 2 Plaintiff’s “medically determinable impairments could reasonably be 3 expected to cause the alleged symptoms; however [her] statements 4 concerning the intensity, persistence and limiting effects of these 5 symptoms are not credible to the extent they are inconsistent with the 6 above residual functional capacity assessment.” (AR 20.) The ALJ noted that on June 1, 2007, Plaintiff was evaluated by a 7 8 consultative physician, Dr. Concepcion A. Enriquez, who found that 9 Plaintiff “had a history of asthma, peptic ulcer disease, chest, back 10 and joint pain and hypothyroidism” but did not find any abnormalities 11 during her examination of Plaintiff other than “tenderness and mild 12 decreased range of motion” and “recent abrasions” on the right knee 13 and “tenderness and mild decreased range of motion on the left 14 shoulder,” with “slightly decreased” grip strength on the left. 15 17-18.) 16 Earnest A. Bagner, III, diagnosed Plaintiff with “depressive disorder, 17 not otherwise specified” and found that she would have only “mild 18 limitations” in “maintaining concentration and attention and 19 completing simple tasks” and “a normal workweek,” with “mild to 20 moderate limitations in handling the stress and pressure inherent in 21 the workplace.” 22 V. 23 24 25 26 27 28 (AR The ALJ further noted that the consultative psychiatrist, Dr. (AR 18.) DISCUSSION A. The ALJ Did Not Err In His Evaluation Of Plaintiff’s Alleged Treating Physician’s Opinion Reversal is not warranted based on the ALJ’s alleged failure to properly evaluate Dr. Koroshec’s opinion. A treating physician’s opinions are entitled to special weight because a treating physician is employed to cure and has a greater 8 1 opportunity to know and observe the patient as an individual. See 2 McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989). 3 treating physician’s opinion is not, however, necessarily conclusive 4 as to either a physical condition or the ultimate issue of 5 disability.” 6 The weight given a treating physician’s opinion depends on whether it 7 is supported by sufficient medical data and is consistent with other 8 evidence in the record. 9 416.927(d)(2). “The Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). See 20 C.F.R. §§ 404.1527(d)(2), If the treating physician’s opinion is uncontroverted 10 by another doctor, it may be rejected only for “clear and convincing” 11 reasons. 12 Baxter v. Sullivan, 923 F.3d 1391, 1396 (9th Cir. 1991). 13 treating physician’s opinion is controverted, it may be rejected only 14 if the ALJ makes findings setting forth specific and legitimate 15 reasons that are based on the substantial evidence of record. 16 e.g., Reddick, 157 F.3d at 725. 17 See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995); When the See, First, it is unclear that Dr. Koroshec was Plaintiff’s treating 18 physician. See 20 C.F.R. § 404.1502 (defining “treating source” as a 19 medical source who “has, or has had, an ongoing treatment relationship 20 with” the claimant); § 416.902 (same). 21 that she visited Dr. Koroshec’s offices once a month, her testimony is 22 unclear as to whether she actually saw Dr. Koroshec or only other 23 members of his staff. 24 that Plaintiff was treated by Dr. Koroshec directly other than on 25 August 11, 2008, the date he filled out the form. 26 entitled to give less weight to Dr. Koroshec’s opinion on that basis. 27 See Bari v. Astrue, No. CV 08-5753-MAN, 2010 WL 3750049, at *3 (C.D. 28 Cal. Sept. 24, 2010) (upholding ALJ’s rejection of physician’s “check- (AR 30-31.) Although Plaintiff testified The record contains no evidence 9 The ALJ was 1 box form opinion[]” when “the record demonstrates that plaintiff saw 2 [the physician] only once . . . the date the physician filled out the 3 form”). 4 Second, even if Dr. Koroshec is properly considered a treating 5 physician, his opinion was unsupported by objective medical evidence 6 in the record, and the ALJ was entitled to give less weight to his 7 opinion. 8 the form of a checklist,” lack “supportive objective evidence,” and 9 are contradicted by other evidence in the record. An ALJ is entitled to reject medical opinions that are “in Batson v. Comm’r of 10 Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2003); see also Crane 11 v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996) (ALJ “permissibly 12 rejected [psychological evaluations] because they were check-off 13 reports that did not contain any explanation of the bases of their 14 conclusions”). 15 Third, the ALJ’s decision was consistent with the medical (See AR 19.) Other than Dr. Koroshec’s 16 evidence in the record. 17 opinion, which was not supported by any clinical findings, no credible 18 evidence in the record supports Plaintiff’s claims as to her 19 functional restrictions.4 Plaintiff has not pointed to any such 20 4 21 22 23 24 25 26 27 28 The only other evidence in the record supporting Plaintiff’s claims as to her functional restrictions is an RFC Questionnaire form filled out by physician’s assistant Nwosu after the ALJ issued his decision; it is almost word-for-word identical to the one filled out by Dr. Koroshec six months earlier. (Compare AR 284-87 with AR 289-93.) Thus, it was completed after Plaintiff learned that the ALJ had rejected Dr. Koroshec’s opinion because he was not her treating doctor. As a physician’s assistant, Mr. Nwosu is likely not an “acceptable” medical source under the regulations, unless he was “working closely with, and under the supervision of,” a physician. See 20 C.F.R. § 404.1502; § 416.913(a); Taylor v. Comm’r of Soc. Sec. Admin., 659 F.3d 1228, 1234 (9th Cir. 2011) (internal quotation marks omitted) (citing Gomez v. Chater, 74 F.3d 967, 971 (9th Cir. 1996)). Regardless of whether Mr. Nwosu is an “acceptable” source, his opinion was a “check-box” form unsupported by medical evidence in the record and was properly rejected 10 1 additional evidence. To the contrary, the record supports the ALJ’s 2 conclusions. 3 actually treated Plaintiff repeatedly indicated that Plaintiff was 4 temporarily disabled at times but was not permanently disabled and not 5 “potentially SSI eligible.” 6 Practitioner Borkhovich found that Plaintiff had a “good response” to 7 medications. 8 showed only mild impairments. 9 on her function report that she handles stress and changes in routine The physician’s assistant and nurse practitioner who (AR 191.) (AR 121.) (See AR 182, 188, 196, 200, 205.) Nurse Plaintiff’s x-rays were either normal or (AR 215, 283.) Plaintiff herself noted 10 “alright.” Even Dr. Koroshec’s opinion notes that 11 Plaintiff’s complaints are “mostly subjective” and that she may be 12 malingering, albeit unconsciously. (AR 284-85.) Even assuming that Dr. Koroshec was a treating physician, the ALJ 13 14 was entitled to credit instead the finding of consultative physicians 15 Drs. Enriquez and Bagner because unlike Dr. Koroshec’s opinion, they 16 were supported by the doctors’ independent clinical findings and thus 17 constituted substantial evidence upon which the ALJ could properly 18 rely. 19 Any conflict in the properly supported medical-opinion evidence was 20 the sole province of the ALJ to resolve. 21 F.3d 1035, 1041 (9th Cir. 1995). 22 legitimate reasons for rejecting Dr. Koroshec’s opinion. 23 impairment cannot be based on the plaintiff’s subjective pain symptoms 24 alone, and, as the ALJ found (and as Dr. Koroshec’s opinion confirms), 25 no medical signs or laboratory findings supported Dr. Koroshec’s See Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). See Andrews v. Shalala, 53 The ALJ provided specific and Moreover, 26 27 28 for the same reasons the ALJ properly rejected Dr. Koroshec’s identical opinion and credited instead the opinions of the consultative examiners, who were actual doctors. 11 1 opinion. 2 (treating doctor’s opinion properly rejected when treatment notes 3 “provide no basis for the functional restrictions he opined should be 4 imposed on [claimant]”). 5 6 B. See Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 2003) The ALJ Did Not Err In His Evaluation Of Plaintiff’s Credibility And Subjective Symptoms 7 The ALJ found that Plaintiff’s subjective complaints regarding 8 her disabilities “were not credible or consistent with the credible 9 medical evidence” and that her “statements concerning the intensity, 10 persistence and limiting effects of these symptoms are not credible to 11 the extent they are inconsistent with [the ALJ’s] residual functional 12 capacity assessment.” 13 the ALJ’s alleged failure to make proper credibility findings and 14 properly consider Plaintiff’s subjective symptoms. (AR 20.) Reversal is not warranted based on 15 Although the medical evidence established that Plaintiff had 16 medically determinable physical impairments that were likely to cause 17 her some pain, the existence of some pain does not constitute a 18 disability if it does not prevent Plaintiff from working. 19 v. Schweiker, 694 F.2d 170, 171 (8th Cir. 1982) (“A showing that 20 [claimant] had a back ailment alone would not support a finding that 21 she was disabled unless the limitations imposed by the back ailment 22 prevented her from engaging in substantial, gainful activity.”); 23 Hopper v. Astrue, No. CV 10-5387 RNB, 2011 U.S. Dist LEXIS 55969, at 24 *3 (C.D. Cal. May 24, 2011) (“[T]he existence of some pain does not 25 constitute a disability, if the claimant is not thereby prevented from 26 working.”). 27 28 See Thorn An ALJ’s assessment of pain severity and claimant credibility is entitled to “great weight.” See Weetman v. Sullivan, 877 F.2d 20, 22 12 1 (9th Cir. 1989); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1986). 2 When the ALJ finds a claimant’s subjective complaints not credible, 3 the ALJ must make specific findings that support the conclusion. 4 Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en banc); 5 Varney v. Sec’y of Health & Human Servs., 846 F.2d 581, 584 (9th Cir. 6 1988) (citations omitted). 7 malingering, the ALJ must give “clear and convincing” reasons for 8 rejecting the claimant’s testimony. 9 is evidence of malingering, however, the ALJ may reject the claimant’s See Absent affirmative evidence of Lester, 81 F.3d at 834. If there 10 symptom testimony by making a credibility determination stating why 11 the testimony is unpersuasive. 12 (9th Cir. 2006). 13 specifically identify what testimony is credible and what testimony 14 undermines the claimant’s complaints . . . .” 15 credibility finding is supported by substantial evidence in the 16 record, the reviewing court “may not engage in second-guessing.” 17 Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). 18 19 Greger v. Barnhart, 464 F.3d 968, 972 In making such a determination, the ALJ “must Id. If the ALJ’s Here, the ALJ did make specific findings in support of his adverse credibility determination: 20 The claimant’s 21 consistent with the credible medical evidence. 22 did not report experiencing any adverse side effects from any 23 prescribed or over the counter medication. 24 continues to engage in normal activities of daily living and 25 has normal hygiene 26 activities, meal preparation and household chores.5 She did no hearing reported allegations trouble with were performing not credible or The claimant The claimant 27 5 28 In her April 2008 SSI application, Plaintiff wrote: “I do not need help in personal care, hygiene or upkeep of a home.” (AR 79.) 13 1 admit to performing these chores with help from her son. 2 did not complain of serious pain and is not using any severe 3 pain medication. 4 treatment, been prescribed stronger, more potent medication 5 for her pain [or] other complaints and has not been referred 6 to a specialist for her complaints. 7 8 She The claimant has not had any recent medical (AR 20.) Plaintiff argues that under Bunnell, 947 F.2d at 345, the ALJ 9 erroneously rejected Plaintiff’s subjective pain testimony on the 10 ground that “it lacks support in the objective medical evidence.” 11 Stip. at 16.) 12 medical evidence of an underlying impairment, an adjudicator may not 13 reject a claimant’s subjective complaints based solely on a lack of 14 objective medical evidence to fully corroborate the alleged severity 15 of pain.” 16 in considering Plaintiff’s ability to engage in daily activities as 17 evidence of her lack of credibility. 18 v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001).) 19 his opinion “solely” on a lack of objective medical evidence 20 corroborating the severity of Plaintiff’s pain, however, nor solely on 21 Plaintiff’s ability to carry out daily activities; those were simply 22 two of the reasons the ALJ gave. 23 “did not complain of any serious pain,” had successfully received 24 limited and conservative treatment for her complaints, and had not 25 seen a specialist. 26 bases for discounting Plaintiff’s subjective symptom testimony. 27 e.g., Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (ALJ 28 may infer that claimant’s “response to conservative treatment (J. Bunnell held that “once the claimant produces objective 947 F.2d at 345. Plaintiff also argues that the ALJ erred (J. Stip. at 19 (citing Vertigan The ALJ did not base The ALJ also noted that Plaintiff The ALJ’s reasons in total constituted appropriate 14 See, 1 undermines [claimant’s] reports regarding the disabling nature of his 2 pain”); Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995) (ALJ 3 may properly rely on fact that only conservative treatment had been 4 prescribed); Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 5 1464 (9th Cir. 1995) (ALJ may properly rely on minimal medical 6 treatment); Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (ALJ 7 may consider failure to seek treatment in evaluating credibility); 8 Bunnell, 947 F.2d at 346 (ALJ may consider “unexplained, or 9 inadequately explained, failure to seek treatment or follow a 10 prescribed course of treatment”). 11 the ALJ’s credibility finding simply because the evidence may have 12 been susceptible of other interpretations more favorable to Plaintiff. 13 See Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). 14 Plaintiff’s contentions do not warrant remand. 15 VI. 16 This Court may not “second-guess” Thus, CONCLUSION Consistent with the foregoing, and pursuant to sentence four of 17 42 U.S.C. § 405(g),6 IT IS ORDERED that judgment be entered AFFIRMING 18 the decision of the Commissioner and dismissing this action with 19 prejudice. 20 Order and the Judgment on counsel for both parties. IT IS FURTHER ORDERED that the Clerk serve copies of this 21 22 23 DATED: 24 January 10, 2012 ______________________________ JEAN P. ROSENBLUTH U.S. Magistrate Judge 25 26 6 27 28 This sentence provides: “The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 15

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