Lisa Jo Wyatt v. Michael J Astrue

Filing 18

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. (twdb)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 LISA JO WYATT, 10 Plaintiff, 11 vs. 12 13 CAROLYN W. COLVIN, Acting Commissioner of Social Security,1 14 Defendant. 15 ) Case No. CV 12-3672-JPR ) ) ) MEMORANDUM OPINION AND ORDER ) AFFIRMING THE COMMISSIONER ) ) ) ) ) ) ) 16 17 I. PROCEEDINGS 18 Plaintiff seeks review of the Commissioner’s final decision 19 denying her applications for Social Security disability insurance 20 benefits (“DIB”) and Supplemental Security Income benefits 21 (“SSI”). The parties consented to the jurisdiction of the 22 undersigned U.S. Magistrate Judge pursuant to 28 U.S.C. § 636(c). 23 This matter is before the Court on the parties’ Joint 24 Stipulation, filed March 14, 2013, which the Court has taken 25 26 1 On February 14, 2013, Colvin became the Acting 27 Commissioner of Social Security. Pursuant to Federal Rule of Civil Procedure 25(d), the Court therefore substitutes Colvin for 28 Michael J. Astrue as the proper Respondent. 1 1 under submission without oral argument. For the reasons stated 2 below, the Commissioner’s decision is affirmed and this action is 3 dismissed. 4 II. BACKGROUND 5 Plaintiff was born on August 31, 1964. 6 Record (“AR”) 110, 113.) 7 of college. (Administrative She completed high school and one year (AR 37, 159.) She previously worked as a bus driver 8 and a food demonstrator at grocery stores and markets. (AR 38- 9 39, 139, 155.) 10 On September 22, 2008, Plaintiff filed applications for DIB 11 and SSI, alleging that she had been unable to work since March 12 24, 2005, because of several medical conditions, including neck 13 and back injuries, right-elbow tendonitis, and knee problems. 14 (AR 39-40, 110-26, 154.) After her applications were denied, 15 Plaintiff requested a hearing before an Administrative Law Judge 16 (“ALJ”). (AR 69.) A hearing was held on July 22, 2010, at which 17 Plaintiff, who was represented by counsel, testified, as did a 18 vocational expert. (AR 34-49.) In a written decision issued 19 August 24, 2010, the ALJ found that Plaintiff was not disabled. 20 (AR 22-29.) On February 28, 2012, the Appeals Council denied 21 Plaintiff’s request for review. (AR 1-5.) This action followed. 22 III. STANDARD OF REVIEW 23 Pursuant to 42 U.S.C. § 405(g), a district court may review 24 the Commissioner’s decision to deny benefits. The ALJ’s findings 25 and decision should be upheld if they are free of legal error and 26 supported by substantial evidence based on the record as a whole. 27 § 405(g); Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 28 1420, 1427, 28 L. Ed. 2d 842 (1971); Parra v. Astrue, 481 F.3d 2 1 742, 746 (9th Cir. 2007). Substantial evidence means such 2 evidence as a reasonable person might accept as adequate to 3 support a conclusion. Richardson, 402 U.S. at 401; Lingenfelter 4 v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 5 a scintilla but less than a preponderance. It is more than Lingenfelter, 504 6 F.3d at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 7 882 (9th Cir. 2006)). To determine whether substantial evidence 8 supports a finding, the reviewing court “must review the 9 administrative record as a whole, weighing both the evidence that 10 supports and the evidence that detracts from the Commissioner’s 11 conclusion.” 12 1996). Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. “If the evidence can reasonably support either affirming 13 or reversing,” the reviewing court “may not substitute its 14 judgment” for that of the Commissioner. Id. at 720-21. 15 IV. THE EVALUATION OF DISABILITY 16 People are “disabled” for purposes of receiving Social 17 Security benefits if they are unable to engage in any substantial 18 gainful activity owing to a physical or mental impairment that is 19 expected to result in death or which has lasted, or is expected 20 to last, for a continuous period of at least 12 months. 42 21 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 22 (9th Cir. 1992). 23 A. 24 The ALJ follows a five-step sequential evaluation process in The Five-Step Evaluation Process 25 assessing whether a claimant is disabled. 20 C.F.R. 26 §§ 404.1520(a)(4), 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 27 828 n.5 (9th Cir. 1995) (as amended Apr. 9, 1996). In the first 28 step, the Commissioner must determine whether the claimant is 3 1 currently engaged in substantial gainful activity; if so, the 2 claimant is not disabled and the claim must be denied. 3 §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not 4 engaged in substantial gainful activity, the second step requires 5 the Commissioner to determine whether the claimant has a “severe” 6 impairment or combination of impairments significantly limiting 7 her ability to do basic work activities; if not, a finding of not 8 disabled is made and the claim must be denied. 9 §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a 10 “severe” impairment or combination of impairments, the third step 11 requires the Commissioner to determine whether the impairment or 12 combination of impairments meets or equals an impairment in the 13 Listing of Impairments (“Listing”) set forth at 20 C.F.R., Part 14 404, Subpart P, Appendix 1; if so, disability is conclusively 15 presumed and benefits are awarded. 16 416.920(a)(4)(iii). §§ 404.1520(a)(4)(iii), If the claimant’s impairment or combination 17 of impairments does not meet or equal an impairment in the 18 Listing, the fourth step requires the Commissioner to determine 19 whether the claimant has sufficient residual functional capacity 20 (“RFC”)2 to perform her past work; if so, the claimant is not 21 disabled and the claim must be denied. 22 416.920(a)(4)(iv). §§ 404.1520(a)(4)(iv), The claimant has the burden of proving that 23 she is unable to perform past relevant work. 24 1257. Drouin, 966 F.2d at If the claimant meets that burden, a prima facie case of 25 26 2 RFC is what a claimant can still do despite existing 27 exertional and nonexertional limitations. 20 C.F.R. §§ 404.1545, 416.945; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th 28 Cir. 1989). 4 1 disability is established. Id. If that happens or if the 2 claimant has no past relevant work, the Commissioner then bears 3 the burden of establishing that the claimant is not disabled 4 because she can perform other substantial gainful work available 5 in the national economy. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 6 That determination comprises the fifth and final step in the 7 sequential analysis. §§ 404.1520, 416.920; Lester, 81 F.3d at 8 828 n.5; Drouin, 966 F.2d at 1257. 9 10 B. The ALJ’s Application of the Five-Step Process At step one, the ALJ found that Plaintiff had not engaged in 11 any substantial gainful activity since March 24, 2005. (AR 24.) 12 At step two, the ALJ concluded that Plaintiff had the severe 13 impairments of obesity and degeneration of the cervical spine, 14 lumbar spine, and bilateral knees. (Id.) At step three, the ALJ 15 determined that Plaintiff’s impairments did not meet or equal any 16 of the impairments in the Listing. (Id.) At step four, the ALJ 17 found that Plaintiff retained the RFC to perform a limited range 18 of light work,3 specifically, she could “stand and walk for no 19 more than six of eight hours, cumulatively”; “sit for no more 20 than six of eight hours, cumulatively”; only occasionally climb, 21 22 23 24 25 26 27 28 3 “Light work” is defined as involving “lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds.” 20 C.F.R. §§ 404.1567(b), 416.967(b). The regulations further specify that “[e]ven though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls.” Id. A person capable of light work is also capable of “sedentary work,” which involves lifting “no more than 10 pounds at a time and occasionally lifting or carrying [small articles]” and may involve occasional walking or standing. §§ 404.1567(a)-(b), 416.967(a)-(b). 5 1 balance, stoop, kneel, crouch, or crawl; and never be exposed to 2 unprotected heights or moving machinery. (Id.) Based on the 3 VE’s testimony, the ALJ concluded that Plaintiff was capable of 4 performing jobs that existed in significant numbers in the 5 national economy. (AR 28-29.) Accordingly, the ALJ determined 6 that Plaintiff was not disabled. (AR 29.) 7 V. DISCUSSION 8 Plaintiff alleges that the ALJ’s RFC finding and credibility 9 determination lacked the support of substantial evidence. (J. 10 Stip. at 4.) 11 A. 12 Plaintiff contends that in determining her RFC, the ALJ The ALJ Did Not Err in Determining Plaintiff’s RFC 13 erred by relying on the opinions of the consulting and reviewing 14 physicians because they were rendered before her right-knee 15 surgery and updated MRIs of her cervical and lumbar spine. 16 Stip. at 5.) (J. Plaintiff further argues that in light of those 17 later medical records, the ALJ should have “utilized the services 18 of a medical expert” or “arranged for an updated orthopedic 19 consultative examination.” (J. Stip. at 5-6.) Remand is not 20 warranted on this basis, however, because the ALJ properly 21 determined Plaintiff’s RFC. 22 23 1. Applicable law A district court must uphold an ALJ’s RFC assessment when 24 the ALJ has applied the proper legal standard and substantial 25 evidence in the record as a whole supports the decision. 26 v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). Bayliss The ALJ must 27 consider all the medical evidence in the record and “explain in 28 [his or her] decision the weight given to . . . [the] opinions 6 1 from treating sources, nontreating sources, and other 2 nonexamining sources.” 3 416.927(e)(2)(ii). 20 C.F.R. §§ 404.1527(e)(2)(ii), In making an RFC determination, the ALJ may 4 consider those limitations for which there is support in the 5 record and need not consider properly rejected evidence or 6 subjective complaints. See Bayliss, 427 F.3d at 1217 (upholding 7 ALJ’s RFC determination because “the ALJ took into account those 8 limitations for which there was record support that did not 9 depend on [claimant’s] subjective complaints”). The Court must 10 consider the ALJ’s decision in the context of “the entire record 11 as a whole,” and if the “evidence is susceptible to more than one 12 rational interpretation, the ALJ’s decision should be upheld.” 13 Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) 14 (internal quotation marks omitted). 15 16 2. Relevant facts Plaintiff alleged that her knees began hurting when she was 17 working as a bus driver and that her back and elbow conditions 18 resulted from being rear-ended while driving a bus. (AR 39.) 19 She filed a worker’s compensation case regarding her injuries. 20 (See AR 236-41.) 21 On May 4, 2005, Dr. Robert W. Hunt evaluated Plaintiff and 22 later completed a report as part of Plaintiff’s worker’s 23 compensation case. (AR 359-82.) Dr. Hunt noted that Plaintiff 24 was five feet four inches tall and weighed 275 pounds. (AR 369.) 25 She had normal range of motion of the neck but complained of 26 tenderness and pain with neck motion. (AR 370.) Plaintiff had 27 reduced range of motion of the elbows and knees and normal range 28 of motion of the hips. (AR 370, 374-75.) 7 Her sensation was 1 decreased over the sole of her left foot but otherwise intact, 2 and she had full motor power and reflexes. (AR 372, 376.) 3 Plaintiff had normal gait and posture, some tenderness to 4 palpation over the lumbar spine, no thoracic or lumbar muscle 5 spasm, and full range of motion of the lumbar spine. 6 (AR 373.) Dr. Hunt diagnosed cephalgia, cerviothoracic strain, right- 7 elbow strain, thoracolumbar strain, bilateral knee strain, and 8 plantar fusion of the right foot. (AR 377.) He noted that 9 Plaintiff’s weight was “delaying her recovery” from her injury. 10 (AR 379.) He prescribed Darvocet, a pain medication; Ativan and 11 Soma, muscle relaxants; Relafen, a nonsteroidal anti-inflammatory 12 agent; Lidoderm patches; and an anti-inflammatory topical 13 ointment. (AR 378.) Dr. Hunt also recommended physical therapy, 14 chiropractic therapy, braces and supports, a heating pad, 15 biofeedback, and a weight-loss program. (AR 378-79.) Dr. Hunt 16 believed that Plaintiff was temporarily totally disabled but 17 estimated that she would be able to return to modified work in 18 four to six weeks. 19 (AR 380.) On May 13, 2005, electromyographic and nerve-conduction 20 studies were normal. (AR 393-97.) On May 27, 2005, an MRI of 21 Plaintiff’s right knee showed chondromalacia of the patella and a 22 grade I sprain of the medial collateral ligament (AR 428), but 23 MRIs of her left knee, right ankle, and right foot were normal 24 (AR 427, 429-30). 25 normal. 26 On June 21, 2005, a right-elbow MRI was (AR 431.) On June 6, 2005, a cervical-spine MRI showed at C2/3, disc 27 desiccation with a 1.9-millimeter central-disc protrusion that 28 produced mild spinal-canal narrowing; at C3/4 and C4/5, disc 8 1 desiccation with 1.9-millimeter disc bulges, mild spinal-canal 2 narrowing, and facet arthropathy producing mild neuroforaminal 3 encroachment; at C5/6, disc desiccation with a 3.9-millimeter 4 disc protrusion, mild spinal-canal narrowing, and bilateral facet 5 arthropathy producing mild bilateral neuroforaminal encroachment; 6 and at C6/7 and C7/T1, disc desiccation. (AR 280.) A 7 thoracic-spine MRI showed disc desiccation at T1/2 through T8/9; 8 2.1-millimeter disc protrusions at T5/6 and T6/7 that produced 9 mild spinal-canal narrowing; and a 1.5-millimeter disc protrusion 10 at T8/9 that produced mild spinal-canal narrowing. (AR 417.) A 11 lumbar-spine MRI showed a 2.3-millimeter disc bulge at L1/2 that 12 produced mild spinal-canal narrowing and mild bilateral 13 neuroforaminal encroachment; a 2.6-millimeter disc bulge at L2/3 14 that produced mild spinal-canal narrowing and mild bilateral 15 neuroforaminal encroachment; a 3.5-millimeter disc bulge at L3/4 16 that produced mild spinal-canal narrowing and mild to moderate 17 bilateral neuroforaminal encroachment; a 3.5-millimeter disc 18 bulge and facet arthropathy at L4/5 that produced mild to 19 moderate spinal-canal narrowing and mild bilateral neuroforaminal 20 encroachment; and mild hypolordosis of the lumbar spine.4 (AR 21 953-54.) 22 On December 8, 2005, Dr. Eduardo E. Anguizola, who was board 23 certified in pain management, performed a pain-management 24 evaluation of Plaintiff. (AR 323-30.) Plaintiff had normal 25 reflexes, intact cranial nerves, and normal sensation. (AR 326.) 26 27 28 4 The MRI report first states that Plaintiff had a 2.6millimeter disc bulge at L3/4 but then states that she had a 3.5millimeter disc bulge there. (See AR 954.) 9 1 Her cervical spine had reduced range of motion with pain and 2 spasm; her thoracic spine had moderate muscle spasm with pain and 3 tenderness; and her lumbar spine had decreased range of motion 4 with pain, tenderness, and muscle spasm. (AR 326-27.) 5 straight-leg-raising test was positive bilaterally. A (AR 327.) 6 Dr. Anguizola diagnosed cervical disc disease, bilateral cervical 7 facet arthropathy with cerviogenic headaches, cervical 8 radiculopathy, thoracic disc disease, lumbosacral disc disease, 9 bilateral lumbar radiculopathy, and bilateral lumbar facet 10 arthropathy. (AR 328.) He recommended lumbar steroid injections 11 and diagnostic facet blocks. 12 (AR 329.) On January 20, 2006, orthopedic surgeon Timothy J. Hunt 13 evaluated Plaintiff’s right knee.5 (AR 303-12.) He noted that 14 Plaintiff weighed about 270 pounds and that her right knee had 15 tenderness, slightly decreased patellar mobility, decreased range 16 of motion, good sensation, and some hyperextension and flexion. 17 (AR 309-10.) 18 309.) She had a negative straight-leg-raising test. (AR Dr. T. Hunt diagnosed right-knee patellofemoral syndrome 19 and chondromalacia. (AR 310.) He found that Plaintiff would 20 “[c]learly . . . do much better if she were about 120 pounds 21 lighter” and recommended that she lose weight and work on muscle 22 strengthening. (Id.) He believed that once she had “given her 23 best effort” in those respects, they could consider an injection 24 or possibly arthroscopy. 25 (Id.) On March 23, 2006, Dr. Anguizola noted that Plaintiff’s 26 cervical spine had decreased range of motion, pain, tenderness, 27 5 The Court refers to Dr. Timothy J. Hunt as Dr. T. Hunt 28 because he shares the same last name as Dr. Robert W. Hunt. 10 1 and mild paraspinal muscle spasms. (AR 434.) He noted that 2 Plaintiff’s thoracic spine had pain and tenderness and her 3 lumbosacral spine had reduced range of motion, pain, tenderness, 4 and spasm. (AR 434-35.) 5 positive bilaterally. A straight-leg-raising test was (AR 435.) Dr. Anguizola diagnosed 6 cervical disc disease, bilateral cervical facet arthropathy with 7 cerviogenic headaches, thoracic disc disease with facet 8 arthropathy, lumbosacral disc disease, bilateral lumbar 9 radiculopathy, and bilateral lumbar facet arthropathy. (Id.) He 10 recommended that she undergo lumbar steroid injections and 11 diagnostic facet blocks and continue her prescribed medications. 12 (AR 436.) 13 On May 1 and 15, 2006, Plaintiff received lumbar steroid 14 injections. (AR 438-39, 447-48.) On June 1, 2006, Dr. Anguizola 15 found that Plaintiff’s cervical spine had decreased range of 16 motion, pain, tenderness, and spasm; her thoracic spine had mild 17 pain on palpation; and her lumbar spine had decreased range of 18 motion, pain, and tenderness. 19 raising test was negative. (AR 454-55.) (AR 455.) A straight-leg- Dr. Anguizola diagnosed 20 cervical disc disease, bilateral cervical facet arthropathy, 21 cerviogenic headaches, thoracic disc disease with mild facet 22 arthropathy, lumbosacral disc disease, bilateral lumbar 23 radiculopathy, bilateral lumbar facet arthropathy, and possible 24 discogenic pain. (Id.) Dr. Anguizola noted that Plaintiff had 25 “good pain relief” with her cervical epidural steroid injections 26 but had some residual pain.6 (AR 456.) He recommended a 27 6 The record does not reflect when Plaintiff received the 28 cervical epidural steroid injections. 11 1 diagnostic lumbar facet block and suggested that she consider 2 cervical facet blocks in the future if her pain persisted. (Id.) 3 On August 21, 2006, Dr. Anguizola administered a right-lumbar 4 diagnostic facet block. 5 (AR 508.) On October 16, 2006, orthopedic surgeon Daniel A. Capen 6 diagnosed Plaintiff with mulitlevel lumbar-disc protrusion and 7 early degenerative discopathy, cervical- and lumbar-spine strain, 8 and morbid obesity. (AR 536.) He noted that Plaintiff was 9 receiving facet blocks and recommended that she join a 10 weight-loss program and consider obesity surgery. (Id.) He 11 opined that a “combination of weight loss and water aerobics and 12 block should suffice,” but if she did not improve then she “may 13 have to consider surgery.” (Id.) He also opined that she needed 14 “absolutely no cervical spine surgery” and that an exercise 15 program would help with her cervical-spine condition. 16 (Id.) On January 9, 2007, Dr. Hunt found that Plaintiff’s neck was 17 painful but had adequate range of motion, her right elbow was 18 tender but had adequate range of motion, and her low back was 19 tender but without paravertebral spasm. (AR 228.) He diagnosed 20 cervical- and lumbar-disc displacement, “[c]ephalgia/[r]ight 21 elbow strain,” and “[c]ervicothoracic strain/bilateral knee 22 strain.” (Id.) On January 16, 2007, Dr. Hunt completed a 23 supplemental report noting that Plaintiff had reduced range of 24 motion of the knees. 25 (AR 223-26.) On June 8, 2007, an MRI of Plaintiff’s cervical spine showed 26 at C2/C3, a 2.2-millimeter broad-based disc protrusion that 27 effaced the thecal sac, patent neural foramina, and normal 28 exiting nerve roots; at C3/C4, a 2.1-millimeter broad-based disc 12 1 protrusion that indented the spinal cord and left neuroforaminal 2 narrowing causing encroachment on the left-C4 exiting nerve root; 3 at C4/C5, a 2.1-millimeter broad-based disc protrusion that 4 effaced the thecal sac and right neuroforaminal narrowing causing 5 encroachment on the right-C5 exiting nerve root; at C5/C6, a 2.16 millimeter left lateral disc protrusion that effaced the thecal 7 sac and left neuroforaminal narrowing causing encroachment on the 8 left-C6 exiting nerve root; at C6/C7, a “subtle disc bulge” that 9 effaced the thecal sac and bilateral neuroforaminal narrowing 10 causing encroachment on the C7 exiting nerve root; and posterior 11 osteophytes from C2 to C5. 12 (AR 403.) That same day, a lumber-spine MRI showed at L1/L2, a 2.8- 13 millimeter broad-based disc protrusion that abutted the thecal 14 sac, normal neural foramina and nerve roots, and facet-joint and 15 ligamenta-flava hypertrophy; at L2/L3, a 2.8-millimeter broad16 based disc protrusion with osteophyte that effaced the thecal 17 sac, bilateral neuroforaminal narrowing causing encroachment on 18 the nerve roots, and significant facet-joint and ligamenta-flava 19 hypertrophy that contributed to spinal-canal narrowing; at L3/L4, 20 a 2.8-millimeter broad-based disc protrusion with osteophyte that 21 effaced the thecal sac, bilateral neuroforaminal narrowing 22 causing encroachments on the nerve roots, and significant facet23 joint and ligamenta-flava hypertrophy that contributed to spinal24 canal narrowing; at L4/L5, a 2.8-millimeter broad-based disc 25 protrusion with osteophyte that effaced the thecal sac, bilateral 26 neuroforaminal narrowing causing encroachment on the right and 27 effacement of the left nerve roots, and significant facet-joint 28 and ligamenta-flava hypertrophy that was contributing to spinal13 1 canal narrowing; at L5/S1, a 2.5-millimeter broad-based disc 2 protrusion with osteophyte that was effacing the thecal sac, 3 bilateral neuroforaminal narrowing causing encroachment on the 4 right and effacement on the left nerve roots, and facet-joint and 5 ligamenta-flava hypertrophy. 6 (AR 399-400.) On June 11, 2007, Dr. Andrew R. Jarminski noted that 7 Plaintiff had a mild antalgic gait; her right knee had some 8 tenderness but full extension; her lumbar spine was tender with 9 limited range of motion; and her cervical spine had tenderness, 10 spasm, and pain. (AR 442.) He noted that Plaintiff had 11 undergone a percutaneous sterostatic and radiofrequency rhizotomy 12 in Febraury 2007, and he recommended that she obtain updated 13 MRIs, lose weight through a weight-loss program or gastric bypass 14 surgery, and attend pool therapy. (AR 442-43.) Dr. Jarminski 15 opined that Plaintiff was temporarily totally disabled. (AR 16 443.) 17 On July 23, 2007, Dr. Capen noted that Plaintiff had 18 difficulty with bending and rotation of both the cervical and 19 lumbar spine and that her obesity contributed to her low-back 20 condition. (AR 523.) He found that surgery was not warranted 21 and recommended conservative care. 22 (Id.) On December 13, 2007, neurologist Robert A. Rafael found 23 that Plaintiff had full neck range of motion, normal cranial 24 nerves, “5/5” motor strength, “2+” reflexes, normal gait and 25 station, normal coordination, and intact sensation. 26 387-88.) (AR 273-75, Dr. Rafael noted that Plaintiff’s neurological exam was 27 within normal limits and diagnosed posttraumatic headaches and 28 headaches secondary to cervical strain, but he found “no history” 14 1 that was “suggestive of migraine headaches.” 2 (AR 274.) On January 28, 2008, Dr. Khiem D. Dao diagnosed Plaintiff 3 with right chronic lateral epicondylitis and recommended a 4 cortisone injection. (AR 470.) On February 3, 2009, Dr. Arthur 5 Q. Nuval and Dr. Douglas E. Garland noted that Plaintiff was 6 complaining of neck, right-elbow, low-back, and bilateral knee 7 problems. (AR 720.) They noted that x-rays showed loss of 8 lordosis of the neck and bilateral chondromalacia patella and 9 that MRIs showed some cervical- and lumbar-spine degenerative 10 disc disease and possible tear of the meniscus. 11 the elbow and lumbar spine were normal. (Id.) (Id.) X-rays of They diagnosed 12 chronic cervical strain, chronic lumbar strain, right tennis 13 elbow, and bilateral chondromalacia patella. (Id.) They 14 injected Plaintiff’s right elbow with steroids and prescribed 7 15 Soma for muscle relaxation and Ultram for pain. 16 (Id.) On February 12, 2008, orthopedic surgeon Dr. T. Hunt 17 evaluated Plaintiff’s right knee. (AR 252-57.) He noted that 18 Plaintiff was five feet, four inches tall, weighed 270 pounds, 19 and denied taking medications at that time. (AR 254.) He found 20 that Plaintiff’s right knee was tender with “slightly decreased” 21 mobility, and she had a negative straight-leg-raising test. Dr. T. Hunt noted that x-rays showed appropriate alignment 22 (Id.) 23 7 Soma, or carisoprodol, is a muscle relaxant that is 24 used with rest, physical therapy, and other measures to relax 25 muscles and relieve pain and discomfort caused by strains, 26 27 28 sprains, and other muscle injuries. Carisoprodol, MedlinePlus, (last updated Aug. 1, 2010). Ultram, or tramadol, is an opiate agonist used to relieve moderate to moderately severe pain. Tramadol, MedlinePlus, druginfo/meds/a695011.html (last updated Oct. 15, 2011). 15 1 with no significant joint-space narrowing and that an MR 2 arthrogram of Plaintiff’s right knee did not show “any obvious 3 meniscal pathology” despite the radiologist’s contrary findings 4 on the report. (AR 255-56.) He diagnosed right-knee 5 patellofemoral syndrome and chrondomalacia, noted that she should 6 lose 100 to 120 pounds and strengthen her muscles, and offered 7 her a cortisone injection, which she declined. (AR 255.) Dr. T. 8 Hunt noted that after receiving an injection, Plaintiff could be 9 considered for an arthroscopy, but he would not consider more 10 aggressive treatment until she was “close to ideal body weight.” Dr. T. Hunt also noted that it was possible that once she 11 (Id.) 12 was the ideal body weight, she would “not need to do anything at 13 all.” (AR 256.) On March 13, 2008, Plaintiff settled her 14 worker’s compensation case. 15 (AR 237.) On November 17, 2008, Dr. Concepcion A. Enriquez, who was 16 “board eligible” in internal medicine, examined Plaintiff at the 17 Social Security Administration’s request. (AR 598-602.) 18 Enriquez noted that Plaintiff weighed 270 pounds. Dr. (AR 599.) Her 19 cervical spine was tender with decreased range of motion of 70/80 20 degrees on left lateral rotation. (AR 600.) Plaintiff’s lumbar 21 spine was tender with decreased range of motion, but she had no 22 muscle spasms and a negative straight-leg-raising test. (Id.) 23 Dr. Enriquez found that Plaintiff had no signs of radiculopathy 24 and normal range of motion of the shoulders, elbows, wrists, 25 hands, hips, and ankles. (AR 600-02.) Her range of motion of 26 both knees was decreased to 130/150 degrees on flexion secondary 27 to obesity, and her right knee was tender. (AR 601.) Plaintiff 28 had normal muscle tone and bulk without atrophy, “5/5” strength 16 1 throughout, intact sensation, and normal reflexes. (Id.) She 2 had a “very mild” limp on the right but normal balance, and she 3 could walk without an assistive device. (Id.) Dr. Enriquez 4 noted that the May 2005 right-knee MRI showed chondromalacia of 5 the patella and a sprain of the medial collateral ligament and 6 that the June 2007 MRIs of her cervical, thoracic, and 7 lumbosacral spine showed “moderate abnormalities,” especially in 8 the lumbosacral-spine area. (AR 601-02.) Dr. Enriquez opined 9 that Plaintiff could lift and carry 20 pounds occasionally and 10 10 pounds frequently; stand and walk for six hours and sit for six 11 hours in an eight-hour workday; and occasionally bend, stoop, 12 twist, squat, crouch, or kneel. (AR 602.) She believed that 13 Plaintiff must avoid unprotected heights and operating dangerous 14 machines. 15 (Id.) On December 9, 2008, state-agency medical consultant Dr. R. 16 May reviewed Plaintiff’s medical records and completed a 17 physical-residual-functional-capacity assessment. (AR 608-13.) 18 Dr. May found that Plaintiff could lift and carry 20 pounds 19 occasionally and 10 pounds frequently; stand and walk for about 20 six hours and sit for about six hours in an eight-hour day; 21 occasionally climb, balance, stoop, kneel, crouch, or crawl; and 22 never climb ladders, ropes, or scaffolds or be exposed to 23 hazards. (AR 609, 611-12.) On May 16, 2009, state-agency 24 medical consultant Dr. Henry Scovern reviewed Dr. May’s opinion 25 and agreed with it. 26 (AR 626-28.) On December 9, 2008, Dr. Nuval noted that Plaintiff 27 complained of right-knee meniscal tear and degenerative disc 28 disease of the lumbosacral spine. 17 (AR 605.) He discussed 1 weight-reduction diet and exercise; referred her to a dietician 2 and the orthopedics clinic; and prescribed ibuprofen, omeprazole, 8 3 and cyclobenzaprine. 4 (AR 606.) On June 9, 2009, Dr. Garland noted that Plaintiff was 5 following up for her tennis elbow and neck. (AR 945.) He 6 injected Plaintiff’s right elbow with steroids and lidocaine and 7 prescribed physical therapy and Tramadol. (Id.) On August 10 8 and September 10, 2009, Plaintiff attended physical therapy. (AR 9 834-35, 843-44.) 10 On April 15, 2010, an MRI of Plaintiff’s cervical spine 11 showed at C2/C3, normal disc height, normal spinal canal, and 12 normal neural foramina; at C3/C4, mild loss of disc height, a 13 one-to-two-millimeter broad-based protrusion that deformed the 14 thecal sac but did not result in central spinal stenosis, and a 15 mildly narrowed left neural foramen; at C4/C5, mild loss of disc 16 height, a one-millimeter broad-based protrusion resulting in mild 17 central spinal stenosis, and mild right and moderate left neural18 foraminal narrowing; at C5/C6, a mild loss of disc height, two19 millimeter protrusion resulting in mild central spinal stenosis, 20 21 22 23 24 25 26 27 28 8 Prescription ibuprofen, a nonsteroidal anti-inflamatory drug, is used to relieve pain, tenderness, swelling, and stiffness caused by osteoarthritis and rheumatoid arthritis. Ibuprofen, MedlinePlus, druginfo/meds/a682159.html (last updated Oct. 1, 2010). Cyclobenzaprine, a muscle relaxant, is used with rest, physical therapy, and other measures to relax muscles and relieve pain and discomfort caused by strains, sprains, and other muscle injuries. Cyclobenzaprine, MedlinePlus, /druginfo/meds/a682514.html (last updated Oct. 1, 2010). Omeprazole is a proton-pump inhibitor used to treat gastroesophageal-reflux disease. Omeprazole, MedlinePlus, (last updated Jan. 15, 2013). 18 1 and mild bilateral neural-foraminal narrowing, left greater than 2 right; at C7/T1, normal disc height, normal central spinal canal, 3 and normal neural foramina; and at T1/T2, normal disc height, 9 4 normal central spinal canal, and normal neural foramina. 5 961-62.) (AR The radiologist’s impression was mild discogenic 6 changes of the cervical spine from C3 to C7, mild central 7 stenosis at C4 to C6, and mild to moderate multilevel neural 8 foraminal narrowing that was more pronounced on the right. (AR 9 962.) 10 That same day, an MRI of Plaintiff’s lumbar spine showed at 11 L1/L2, mild loss of disc height and disc desiccation with normal 12 central spinal canal and neural foramina; at L2/L3, mild loss of 13 disc height and disc desiccation, two-millimeter disc bulge 14 resulting in mild central spinal stenosis, a two-millimeter left15 paracentral extrusion, patent right neural foramen, and mildly 16 narrowed left neural foramen; at L3/L4, mild loss of disc height 17 and disc desiccation, normal central spinal canal, mild bilateral 18 neural foraminal narrowing that was greater on left, and 19 hypertrophic changes of the facet joints; at L4/L5, normal disc 20 height, normal central spinal canal, normal right neural foramen, 21 a two-millimeter left extraforaminal protrusion resulting in 22 moderate left neural foraminal narrowing but without evidence of 23 neural compression, and hypertrophic changes of the facet joints; 24 and at L5/S1, normal disc height, normal central spinal canal, 25 mild to moderate bilateral neural foraminal narrowing, and 26 hypertrophic changes of the facet joints. (AR 963-64.) The 27 9 The 2010 MRI made no findings as to Plaintiff’s (See AR 961-62.) 28 cervical spine at C6/C7. 19 1 radiologist’s impression was mild diffuse facet arthropathy of 2 the lumbar spine, mild discogenic changes of the lumbar spine at 3 L1-S1, mild central spinal stenosis at L2-L3 associated with a 4 two-millimeter left paracentral extrusion that did not result in 5 neural compression, and mild to moderate neural foraminal 6 narrowing at L3-S1 related to disc bulge and facet arthropathy. 7 (AR 964.) 8 On June 16, 2010, Dr. Garland performed an arthroscopy, 9 menisctomy, and debridement of Plaintiff’s right knee. (AR 958- 10 60.) 3. 11 12 Discussion The ALJ found that Plaintiff retained the RFC to perform a 13 limited range of light work. (AR 24.) In doing so, the ALJ 14 accepted the findings of examining physician Enriquez and 15 reviewing physicians May and Scovern, who were the only doctors 16 who offered opinions as to Plaintiff’s functional limitations. 17 (AR 26.) 18 The ALJ was entitled to rely on the opinions of Drs. 19 Enriquez, May, and Scovern to find that Plaintiff retained the 20 RFC to perform a limited range of light work. (AR 24, 26.) Dr. 21 Enriquez’s opinion was supported by independent clinical findings 22 and thus constituted substantial evidence upon which the ALJ 23 could properly rely. See Tonapetyan v. Halter, 242 F.3d 1144, 24 1149 (9th Cir. 2001); Andrews v. Shalala, 53 F.3d 1035, 1041 (9th 25 Cir. 1995). Dr. Enriquez conducted a full physical exam, noting 26 that Plaintiff had decreased ranges of motion and tenderness of 27 the knees and cervical and lumbar spine, normal muscle strength 28 and tone, intact sensation, normal reflexes, and a “very mild 20 1 limp,” among other things. (See AR 599-601.) Dr. Enriquez’s 2 findings were largely consistent with those of Plaintiff’s 3 treating physicians. (See, e.g., AR 228 (Dr. Hunt’s finding of 4 pain and “adequate” range of motion of cervical spine and pain 5 and tenderness, but no spasm, of lumbar spine); AR 272-73 (Dr. 6 Rafael’s finding that Plaintiff had full range of motion of neck, 7 normal gait and reflexes, full strength, and intact sensation); 8 AR 326-27 (Dr. Anguizola’s finding of reduced ranges of motion, 9 pain, tenderness, and spasm of cervical and lumbar spine); AR 10 434-35 (Dr. Anguizola’s findings of neck and lumbar-spine pain, 11 tenderness, spasm, and decreased range of motion); AR 442 (Dr. 12 Jarminski’s finding of mild antalgic gait, tenderness but full 13 extension of knee, reduced range of motion and tenderness of 14 lumbar spine, and tender and painful cervical spine).) 15 Consistent with those findings, Dr. Enriquez concluded that 16 Plaintiff could lift and carry 20 pounds occasionally and 10 17 pounds frequently; stand or walk for six hours and sit for six 18 hours in an eight-hour workday; and occasionally bend, stoop, 19 twist, squat, crouch, or kneel. (AR 602.) She believed 20 Plaintiff must avoid unprotected heights and operating dangerous 21 machines. (Id.) Drs. May and Scovern’s opinions, moreover, were 22 consistent with Dr. Enriquez’s findings and those of the other 23 physicians. See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 24 2002) (“The opinions of non-treating or non-examining physicians 25 may also serve as substantial evidence when the opinions are 26 consistent with independent clinical findings or other evidence 27 in the record.”); 20 C.F.R. §§ 404.1527(c)(4) (ALJ will generally 28 give more weight to opinions that are “more consistent . . . with 21 1 the record as a whole”), 416.927(c)(4) (same). Drs. Enriquez, 2 May, and Scovern also reviewed Plaintiff’s medical records before 3 rendering their opinions. (AR 599, 601-02, 608-13, 626-28.) See 4 20 C.F.R. 404.1527(c)(3) (in weighing medical opinions, ALJ “will 5 evaluate the degree to which these opinions consider all of the 6 pertinent evidence in [claimant’s] claim, including opinions of 7 treating and other examining sources”), 416.927(c)(3) (same). 8 Indeed, the opinions of Drs. Enriquez, May, and Scovern are 9 uncontradicted because no other physician offered any opinion as 10 to Plaintiff’s functional impairments. 11 Plaintiff nevertheless argues that the opinions of Drs. 12 Enriquez, May, and Scovern could not serve as substantial 13 evidence supporting the ALJ’s decision because they were rendered 14 before Plaintiff underwent right-knee surgery and obtained 15 updated cervical- and lumbar-spine MRIs. (J. Stip. at 5.) The 16 ALJ, however, acknowledged Plaintiff’s right-knee surgery but 17 found “no reason to believe it was not successful,” a finding 18 Plaintiff does not challenge. (AR 26.) Indeed, Plaintiff cites 19 no evidence showing that her condition worsened, rather than 20 improved, as a result of her surgery, or even that she had any 21 specific knee limitations that were inconsistent with her RFC. 22 (See J. Stip. at 4-6, 9-10.) At the July 2010 hearing, Plaintiff 23 testified that she had undergone knee surgery five weeks earlier 24 but did not say that it had failed or in any way caused her 25 condition to worsen. 26 (AR 40.) Plaintiff also fails to cite any specific findings from the 27 2010 MRIs that conflicted with her RFC (see J. Stip. at 4-6, 9- 28 10); in fact, the June 2007 cervical- and lumbar-spine MRIs – 22 1 which Drs. Enriquez, May, and Scovern reviewed – actually reflect 2 similar or perhaps more serious findings than the later April 3 2010 MRIs. For example, Plaintiff’s 2007 cervical-spine MRI 4 showed a 2.2-millimeter disc protrusion at C2/C3; 2.1-millimeter 5 disc protrusions at C3/C4, C4/C5, and C5/C6; and a “subtle” disc 6 bulge at C6/C7 (AR 403), while her 2010 cervical-spine MRI showed 7 no disc protrusion at C2/C3, a one-to-two-millimeter disc 8 protrusion at C3/C4, a one-millimeter disc protrusion at C4/C5, 9 and a two-millimeter disc protrusion at C5/C6 (AR 961). 10 Plaintiff’s 2007 lumbar-spine MRI showed 2.8-millimeter disc 11 protrusions at L1/L2, L2/L3, L3/L4, and L4/L5 and a 2.512 millimeter disc protrusion at L5/S1 (AR 399-401), while her 2010 13 MRI showed a disc bulge of two millimeters at L2/L3 and 14 protrusions of two millimeters at only L2/L3 and L4/L5 (AR 96315 64). Unlike the 2010 MRIs, moreover, the 2007 MRIs showed nerve- 16 root encroachment at C3/C4, C4/C5, C5/C6, C6/C7, L2/L3, L3/L4, 17 L4/L5, and L5/S1 as well as hypertrophy at L1/L2 and L2/L3. 18 399-401.) (AR Contrary to Plaintiff’s claim, therefore, records of 19 her knee surgery and her updated MRIs fail in any way to 20 “demonstrate that [she] has a more restrictive RFC than found by 21 the ALJ.” 22 (J. Stip. at 5.) Plaintiff also argues that the ALJ’s finding that she could 23 stand for six hours in an eight-hour day “borders on the 24 fantastic . . . in light of [her] degenerative disease of the 25 cervical and lumbar spine and bilateral knees with the added 26 impairment of extreme obesity.” (J. Stip. at 5.) Plaintiff 27 again cites no evidence in support of her assertions, and all 28 three doctors who offered opinions as to Plaintiff’s functional 23 1 limitations found otherwise. See 20 C.F.R. §§ 404.1512(a) (“you 2 must furnish medical and other evidence that we can use to reach 3 conclusions about your medical impairment(s) and . . . its effect 4 on your ability to work on a sustained basis”), 416.912(a) 5 (same). Plaintiff relies on Barrett v. Barnhart, 355 F.3d 1065 6 (7th Cir. 2004), but in that case the Seventh Circuit rejected an 7 ALJ’s RFC finding because the court “d[id] not know on what basis 8 [the ALJ] decided that [the claimant] can stand for two hours at 9 a time,” noting that “[n]o physician said that” and the finding 10 had “no evidentiary basis.” Id. Here, however, the ALJ relied 11 on the uncontroverted opinions of three physicians. 12 Finally, Plaintiff argues that the ALJ “failed in his 13 affirmative obligation to fully and fairly develop the record” 14 because he “made no effort to utilize a medical expert or arrange 15 a consultative examination” after she submitted her surgery 16 report and 2010 MRIs. (J. Stip. at 5-6.) But those records were 17 not ambiguous, nor did they in any way conflict with the earlier 18 evidence. As such, they did not trigger the ALJ’s duty to 19 develop the record. See Mayes v. Massanari, 276 F.3d 453, 459-60 20 (9th Cir. 2001) (holding that ALJ’s duty to further develop 21 record triggered only when record contains ambiguous evidence or 22 is inadequate to allow for proper evaluation of evidence). 23 Moreover, Plaintiff’s reliance on Social Security Ruling 96-6p 24 (J. Stip. at 6) is misplaced because that ruling states that a 25 medical-expert opinion is required “[w]hen additional medical 26 evidence is received that in the opinion of the [ALJ] may change 27 [a medical consultant’s] finding that the impairment(s) is not 28 equivalent in severity to any impairment in the Listing of 24 1 Impairments.” See SSR 96-6p, 1996 WL 374180, at *4. The ALJ 2 made no such finding here, and Plaintiff fails to even assert 3 that her impairments equaled any Listing. Cf. Burch v. Barnhart, 4 400 F.3d 676, 683 (9th Cir. 2005) (“An ALJ is not required to 5 discuss the combined effects of a claimant’s impairments or 6 compare them to any listing in an equivalency determination, 7 unless the claimant presents evidence in an effort to establish 8 equivalence.”). 9 Plaintiff is not entitled to remand on this ground. 10 B. The ALJ Properly Assessed Plaintiff’s Credibility 11 Plaintiff argues that the ALJ’s credibility determination 12 must be reversed because it “lacks the requisite support of 13 substantial evidence” and was “a result of legal error.” (J. 14 Stip. at 10.) 15 16 1. Applicable law An ALJ’s assessment of pain severity and claimant 17 credibility is entitled to “great weight.” See Weetman v. 18 Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. Heckler, 779 19 F.2d 528, 531 (9th Cir. 1986). “[T]he ALJ is not required to 20 believe every allegation of disabling pain, or else disability 21 benefits would be available for the asking, a result plainly 22 contrary to 42 U.S.C. § 423(d)(5)(A).” Molina v. Astrue, 674 23 F.3d 1104, 1112 (9th Cir. 2012) (internal quotation marks and 24 citation omitted). In evaluating a claimant’s subjective symptom 25 testimony, the ALJ engages in a two-step analysis. 26 Lingenfelter, 504 F.3d at 1035-36. See “First, the ALJ must 27 determine whether the claimant has presented objective medical 28 evidence of an underlying impairment [that] could reasonably be 25 1 expected to produce the pain or other symptoms alleged.” 2 1036 (internal quotation marks omitted). Id. at If such objective 3 medical evidence exists, the ALJ may not reject a claimant’s 4 testimony “simply because there is no showing that the impairment 5 can reasonably produce the degree of symptom alleged.” 6 80 F.3d at 1282 (emphasis in original). Smolen, When the ALJ finds a 7 claimant’s subjective complaints not credible, the ALJ must make 8 specific findings that support the conclusion. 9 Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). See Berry v. Absent affirmative 10 evidence of malingering, those findings must provide “clear and 11 convincing” reasons for rejecting the claimant’s testimony. 12 Lester, 81 F.3d at 834. If the ALJ’s credibility finding is 13 supported by substantial evidence in the record, the reviewing 14 court “may not engage in second-guessing.” Thomas, 278 F.3d at 15 959. 2. 16 17 Relevant facts In an undated disability report, Plaintiff wrote that she 18 was unable to work because of “[t]wo disc injuries in [her] neck 19 and five on [her] lower back,” right-elbow tendonitis, “planter 20 problems,” and “left foot surgeries.” (AR 154.) She said that 21 her conditions caused pain and difficulty bending, standing, 22 pushing, pulling, and grasping with her hands. 23 (Id.) In an October 5, 2008 function report, Plaintiff wrote that 24 her daily activities included watching television, making lunch 25 and dinner, and sometimes going to the doctor. (AR 171.) She 26 tried to go for walks but had to stop and rest after about five 27 minutes. (Id.) Plaintiff washed dishes but had to stop and rest 28 because her back would hurt after standing for too long. 26 (Id.) 1 She took care of her animals by giving them food and water. 2 172.) (AR Plaintiff said she had problems with personal care because 3 bending her legs to put on her pants was difficult, her back hurt 4 after showering, and her elbows hurt when she combed her hair or 5 held a cup, among other things. (Id.) Plaintiff said that she went outside a few times a week and 6 7 would travel as a passenger in a car or by public transportation. 8 (AR 174.) 9 stairs. She did laundry but needed help carrying it up the (AR 173.) Plaintiff shopped for food every few days for 10 about an hour at a time. (AR 174.) She could count change, 11 handle a savings account, and use a checkbook or money orders. Plaintiff said that she loved to read but that her eyes 12 (Id.) 13 had “changed” since she got hurt. (AR 175.) She went to dinner 14 or the movies with friends about twice a week and also 15 communicated with them on the phone and over the computer. (Id.) 16 She regularly went to movies, concerts, and her friend’s house. 17 (Id.) Plaintiff wrote that her conditions affected her ability 18 to lift, squat, bend, stand, reach, walk, sit, kneel, climb 19 stairs, see, complete tasks, and use her hands. (AR 176.) She 20 could walk for five minutes before needing to rest for five 21 minutes. (Id.) She said that it was hard for her to pay 22 attention but she could follow spoken and written directions. 23 (Id.) Plaintiff sometimes used a cane in the house but it had 24 not been prescribed by a doctor. 25 (AR 177.) At the July 22, 2010 hearing before the ALJ, Plaintiff 26 testified that she was unable to work because her knees hurt and 27 because, while working as a bus driver, she had developed neck, 28 back, and elbow pain after “a couple of rear endings of the bus.” 27 1 (AR 39.) She said her neck injuries caused headaches and pain 2 that radiated down her back and that her lower-back pain radiated 3 down her hips and to both knees. (AR 39-40.) 10 4 doctors had recommended that she lose weight. She said her (AR 41.) 5 Plaintiff said that lying down usually helped to relieve her pain 6 and that her medications relieved her pain “a little bit.” (Id.) 7 Plaintiff testified that she could walk for about five minutes or 8 stand for “one second” before having pain. (AR 43.) She usually 9 prepared frozen meals, and when she did cook she usually sat on a 10 stool. (Id.) Plaintiff said she could shop in a grocery store, 11 wash dishes for a couple minutes before her lower back started 12 hurting, and shower herself with some difficulty. 3. 13 (AR 43-45.) Discussion The ALJ found that Plaintiff’s impairments could reasonably 14 15 be expected to cause the alleged symptoms but that her 16 “statements concerning the intensity, persistence and limiting 17 effects of these symptoms [were] not credible to the extent they 18 [were] inconsistent with” an RFC for a limited range of light 19 work. (AR 25.) Reversal is not warranted based on the ALJ’s 20 alleged failure to make proper credibility findings or properly 21 consider Plaintiff’s subjective symptoms. 22 First, the ALJ properly discounted Plaintiff’s credibility 23 24 25 26 27 28 10 Plaintiff also testified that she had “gained about 40 pounds” in the last “couple years.” (AR 41.) In fact, although the record does not seem to contain an indication of her weight at the time of the July 2010 hearing, it fluctuated by only two pounds from May 2005, when she weighed 275 (AR 369), to February 2010, five months before the hearing, when she weighed 277 (AR 814). At many points during that five-year period, she weighed 270 or less. (See, e.g., AR 254, 467, 598, 875.) 28 1 based on her “poor work history,” which showed that she had 2 “earned amounts above the substantial gainful activity level in 3 only four years.” (AR 27.) Indeed, Plaintiff’s work-history 4 report shows that she had no earnings at all from 1984 to 1985 5 and from 1988 to 1998. (AR 129.) And in eight of the 12 years 6 that she did work, her wages ranged from only a couple hundred 7 dollars to about $8000 a year. (Id.) Indeed, Plaintiff herself 8 acknowledges that her work history is “not a model of 9 consistency.” (J. Stip. at 13.) Thus, this was a clear and 10 convincing reason for discounting Plaintiff’s credibility. See 11 Thomas, 278 F.3d at 959 (credibility diminished when claimant 12 “had an extremely poor work history and has shown little 13 propensity to work in her lifetime” (internal quotation marks 14 omitted)). 15 The ALJ also permissibly discounted Plaintiff’s credibility 16 because her statements regarding her medications conflicted with 17 the medical record. (AR 27.) See Bray v. Comm’r of Soc. Sec. 18 Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) (ALJ permissibly 19 discounted credibility when claimant’s “statements at her hearing 20 [did] not comport with objective evidence in her medical 21 record”); Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 22 1161 (9th Cir. 2008) (“Contradiction with the medical record is a 23 sufficient basis for rejecting the claimant’s subjective 24 testimony.”); see also Garcia v. Comm’r of Soc. Sec. Admin., 498 25 F. App’x 710, 711 (9th Cir. 2012) (ALJ permissibly discounted 26 plaintiff’s credibility based on conflicts between his testimony 27 and doctor’s testimony). Plaintiff’s September 2008 treatment 28 records show that her only “active” prescription was for the 29 1 antifungal medication fluconazole, which was last filled in 11 2 December 2007. (AR 659, 661, 663.) In November 2008, however, 3 Plaintiff reported to Dr. Enriquez that she was currently taking 4 Soma, a muscle relaxant; Darvocet, a narcotic pain reliever; 5 Midrin, a migraine medication; and orphenadrine citrate, another 12 6 muscle relaxant. (AR 599.) Plaintiff’s December 2008 7 treatment note, moreover, showed that prescriptions had been 8 filled that day for only ibuprofen, a nonsteroidal anti9 inflammatory drug; cyclobenzaprine, a muscle relaxant; and 10 omeprazole, a proton-pump inhibitor. (AR 604.) The ALJ 11 reasonably discounted Plaintiff’s credibility based on that 12 inconsistency. 13 Plaintiff contends that her “prescription history 14 demonstrates that the ALJ’s statement is factually inaccurate,” 15 and cites, in support, a June 2009 medication list. 16 13 (citing AR 630-31).) 17 (J. Stip. at That list of “active medications” does 11 Fluconazole is a triazole used to treat fungal Fluconazole, MedlinePlus, medlineplus/druginfo/meds/a690002.html (last updated Dec. 15, 2011). 18 infections. 19 20 21 22 23 24 25 26 27 28 12 Darvocet is a combination of acetaminophen and propoxyphene, a narcotic pain reliever, which was used to relieve mild to moderate pain before being withdrawn from the market in 2010. Darvocet,, (last updated Dec. 13, 2010); Propoxyphene, MedlinePlus, (last updated Feb. 1, 2011). Midrin is a medication used to relieve tension and migraine headaches. Drugs & Medications MIDRIN Oral, WebMD, +Oral.aspx?drugid=6603&drugname=MIDRIN+Oral (last accessed June 13, 2013). Orphenadrine is a skeletal muscle relaxant that is used with other measures to relieve pain and discomfort caused by strains, sprains, and other muscle injuries. Orphenadrine, MedlinePlus, a682162.html (last updated Dec. 1, 2010). 30 1 include carisoprodol, the generic form of Soma, but states only 2 that it was last filled in May 2009, well after Plaintiff’s 3 November 2008 examination with Dr. Enriquez. (AR 630.) The 4 medication list also notes that Plaintiff filled a prescription 5 for the narcotic pain relievers hydrocodone-acetaminophen in 6 March 2009 and tramadol in February 2009, also postdating her 13 7 November 2008 examination. (AR 631.) The medication list 8 therefore does not establish that the ALJ’s finding was 9 “factually inaccurate.” 10 One of the ALJ’s reasons for finding that Plaintiff’s 11 subjective symptoms were not as bad as she claimed might not have 12 been clear and convincing, however. The ALJ found that Plaintiff 13 received only “conservative care” for her impairments, including 14 physical therapy and steroid injections to her spine and elbow, 15 up until the time of her surgery. (AR 27.) Indeed, Plaintiff’s 16 treatment included lumbar and cervical epidural injections (AR 17 217, 438-39, 447-48), a right-lumbar facet block (AR 508-09), and 18 a stereostatic and radiofrequency rhizotomy (AR 442-43). 19 Epidural and steroid injections, however, may not be consistent 20 with a finding of conservative treatment. See Tagle v. Astrue, 21 No. CV–11–7093–SP, 2012 WL 4364242, at *4 (C.D. Cal. Sept. 21, 22 2012) (“While physical therapy and pain medication are 23 conservative, epidural and trigger point injections are not.”); 24 Christie v. Astrue, No. CV 10–3448–PJW, 2011 WL 4368189, at *4 25 (C.D. Cal. Sept. 16, 2011) (refusing to characterize steroid, 26 13 Hydrocodone is a narcotic analgesic used in combination 27 with other ingredients to relieve moderate to severe pain. Hydrocodone, MedlinePlus, 28 /druginfo/meds/a601006.html (last updated May 15, 2013). 31 1 trigger-point, and epidural injections as conservative). Despite 2 that potential error, however, remand is not required because the 3 remainder of the ALJ’s credibility findings were supported by 4 substantial evidence in the record. See Carmickle, 533 F.3d at 5 1162; Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1197 6 (9th Cir. 2004). This Court may not “second-guess” the ALJ’s 7 credibility finding simply because the evidence may have been 8 susceptible of other interpretations more favorable to 14 9 Plaintiff. See Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th 10 Cir. 2008). Reversal is therefore not warranted on this basis. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 The parties contend that the ALJ discounted Plaintiff’s credibility based on her daily activities (J. Stip. at 12-13, 1516, 18); however, it appears that in determining Plaintiff’s RFC, the ALJ actually discredited the statements of a third party, Plaintiff’s friend Yvonne Bonds, based on Plaintiff’s own statements regarding her abilities (see AR 27 (summarizing Bond’s report and stating that “I do not find these statements credible” based on, among other things, Plaintiff’s statements that she could take public transportation and was able to bathe and groom herself)). 32 1 VI. CONCLUSION 2 Consistent with the foregoing, and pursuant to sentence four 15 3 of 42 U.S.C. § 405(g), IT IS ORDERED that judgment be entered 4 AFFIRMING the decision of the Commissioner and dismissing this 5 action with prejudice. IT IS FURTHER ORDERED that the Clerk 6 serve copies of this Order and the Judgment on counsel for both 7 parties. 8 9 10 DATED: June 25, 2013 11 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 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.” 33

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