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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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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LISA JO WYATT,

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Plaintiff,

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vs.

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CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,1

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Defendant.

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) Case No. CV 12-3672-JPR
)
)
) MEMORANDUM OPINION AND ORDER
) AFFIRMING THE COMMISSIONER
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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
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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

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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,
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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
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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,
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a682578.html
(last updated Aug. 1, 2010). Ultram, or tramadol, is an opiate
agonist used to relieve moderate to moderately severe pain.
Tramadol, MedlinePlus, http://www.nlm.nih.gov/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, http://www.nlm.nih.gov/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, http://www.nlm.nih.gov/medlineplus
/druginfo/meds/a682514.html (last updated Oct. 1, 2010).
Omeprazole is a proton-pump inhibitor used to treat
gastroesophageal-reflux disease. Omeprazole, MedlinePlus,
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a693050.html
(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, http://www.nlm.nih.gov/
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, Drugs.com, http://www.drugs.com/darvocet.html
(last updated Dec. 13, 2010); Propoxyphene, MedlinePlus,
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a682325.html
(last updated Feb. 1, 2011). Midrin is a medication used to
relieve tension and migraine headaches. Drugs & Medications MIDRIN Oral, WebMD, http://www.webmd.com/drugs/drug-6603-MIDRIN
+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, http://www.nlm.nih.gov/medlineplus/druginfo/meds/
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, http://www.nlm.nih.gov/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

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13
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15
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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