Wanda Lee Jenkins-Hampton v. Carolyn W Colvin

Filing 18

MEMORANDUM OPINION AND ORDER REVERSING COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. Accordingly, IT IS HEREBY ORDERED that (1) the decision of the Commissioner is REVERSED; (2) Plaintiff's request for remand is GRANTED; and (3) this action is REMANDED for further proceedings consistent with this Memorandum Opinion. (See Order for details) (bem)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WANDA LEE JENKINS-HAMPTON, 11 Plaintiff, 12 vs. 13 14 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 15 Defendant. 16 ) Case No. CV 13-6074-JPR ) ) ) MEMORANDUM OPINION AND ORDER ) REVERSING COMMISSIONER ) ) ) ) ) ) ) 17 18 I. PROCEEDINGS 19 Plaintiff seeks review of the Commissioner’s final decision 20 denying her application for supplemental security income (“SSI”). 21 The parties consented to the jurisdiction of the undersigned U.S. 22 Magistrate Judge under 28 U.S.C. § 636(c). This matter is before 23 the Court on the parties’ Joint Stipulation, filed June 19, 2014, 24 which the Court has taken under submission without oral argument. 25 For the reasons discussed below, the Commissioner’s decision is 26 reversed and this action is remanded for further proceedings. 27 28 1 1 II. BACKGROUND 2 Plaintiff was born on March 7, 1956. 3 (“AR”) 171.) (Administrative Record She attended two years of nursing school (AR 305) 4 and worked briefly as a baggage clerk at a supermarket, a cashier 5 at Rite Aid, and a clerk at Walmart (AR 211). 6 On July 9, 2009, Plaintiff filed an application for SSI, 7 alleging that she had been unable to work since May 15, 2007, 8 because of diabetes, high blood pressure, and anxiety. 9 08, 171-73, 189.) After her application was denied, she 10 requested a hearing before an Administrative Law Judge. 11 124.) (AR 107- (AR A hearing was held by videoconference on November 8, 12 2011.1 (AR 70-106.) Plaintiff, who was represented by counsel, 13 testified, as did a vocational expert. (Id.) In a written 14 decision issued December 15, 2011, the ALJ determined that 15 Plaintiff was not disabled. (AR 23-35.) On June 27, 2013, the 16 Appeals Council denied Plaintiff’s request for review. (AR 1-3.) 17 This action followed. 18 III. STANDARD OF REVIEW 19 Under 42 U.S.C. § 405(g), a district court may review the 20 Commissioner’s decision to deny benefits. The ALJ’s findings and 21 decision should be upheld if they are free of legal error and 22 supported by substantial evidence based on the record as a whole. 23 Id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. 24 1 The hearing was initially scheduled for February 15, 2011, 25 but Plaintiff’s counsel appeared that day to report that 26 Plaintiff was unable to attend because she “physically is not capable of traveling” from her home in Long Beach to the hearing (AR 67.) The ALJ therefore continued the hearing so that Plaintiff could appear by videoconference from the agency’s Long Beach office. (AR 67-68.) 27 in Los Angeles. 28 2 1 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence 2 means such evidence as a reasonable person might accept as 3 adequate to support a conclusion. Richardson, 402 U.S. at 401; 4 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It 5 is more than a scintilla but less than a preponderance. 6 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 7 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). To determine whether 8 substantial evidence supports a finding, the reviewing court 9 “must review the administrative record as a whole, weighing both 10 the evidence that supports and the evidence that detracts from 11 the Commissioner’s conclusion.” 12 720 (9th Cir. 1996). Reddick v. Chater, 157 F.3d 715, “If the evidence can reasonably support 13 either affirming or reversing,” the reviewing court “may not 14 substitute its judgment” for that of the Commissioner. Id. at 15 720-21. 16 IV. THE EVALUATION OF DISABILITY 17 People are “disabled” for purposes of receiving Social 18 Security benefits if they are unable to engage in any substantial 19 gainful activity owing to a physical or mental impairment that is 20 expected to result in death or which has lasted, or is expected 21 to last, for a continuous period of at least 12 months. 42 22 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 23 (9th Cir. 1992). 24 A. 25 An ALJ follows a five-step sequential evaluation process to The Five-Step Evaluation Process 26 assess whether someone is disabled. 20 C.F.R. § 416.920(a)(4); 27 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995) (as 28 amended Apr. 9, 1996). In the first step, the Commissioner must 3 1 determine whether the claimant is currently engaged in 2 substantial gainful activity; if so, the claimant is not disabled 3 and the claim must be denied. § 416.920(a)(4)(i). If the 4 claimant is not engaged in substantial gainful activity, the 5 second step requires the Commissioner to determine whether the 6 claimant has a “severe” impairment or combination of impairments 7 significantly limiting her ability to do basic work activities; 8 if not, a finding of not disabled is made and the claim must be 9 denied. § 416.920(a)(4)(ii). If the claimant has a “severe” 10 impairment or combination of impairments, the third step requires 11 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). If the claimant’s impairment or combination of impairments 17 does not meet or equal one in the Listing, the fourth step 18 requires the Commissioner to determine whether the claimant has 19 sufficient residual functional capacity (“RFC”)2 to perform her 20 past work; if so, she is not disabled and the claim must be 21 denied. § 416.920(a)(4)(iv). The claimant has the burden of 22 proving she is unable to perform past relevant work. 23 F.2d at 1257. Drouin, 966 If the claimant meets that burden, a prima facie 24 case of disability is established. Id. If that happens or if 25 the claimant has no past relevant work, the Commissioner bears 26 27 28 2 RFC is what a claimant can do despite existing exertional and nonexertional limitations. § 416.945; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 4 1 the burden of establishing that the claimant is not disabled 2 because she can perform other substantial gainful work available 3 in the national economy. § 416.920(a)(4)(v). That determination 4 comprises the fifth and final step in the sequential analysis. 5 § 416.920; Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257. 6 B. 7 At step one, the ALJ found that Plaintiff had not engaged in The ALJ’s Application of the Five-Step Process 8 any substantial gainful activity since July 9, 2009, her 9 application date.3 (AR 25.) At step two, she found that 10 Plaintiff had the severe impairments of “obesity and diabetes 11 mellitus.” (Id.) She found that Plaintiff’s hypertension, 12 depression, and anxiety were not severe. (AR 27-29.) At step 13 three, the ALJ determined that Plaintiff’s impairments did not 14 meet or equal any of the impairments in the Listing. (AR 29.) 15 At step four, the ALJ found that Plaintiff had the RFC to perform 16 “medium work” but “must avoid concentrated exposure to 17 unprotected heights or hazardous machinery.”4 (AR 29.) The ALJ 18 then concluded that under Medical-Vocational Rules 203.14 and 19 203.21, see 20 C.F.R. pt. 404, subpt. P, app. 2, Rs. 203.14 & 20 21 22 23 24 25 26 27 28 3 The ALJ assessed whether Plaintiff had been under a disability on or after her application date rather than her alleged onset date. (AR 25, 35.) It is not clear whether Plaintiff amended her onset date to her application date at the hearing. (See AR 75.) But even if she did not, the ALJ’s use of the application date could not have prejudiced Plaintiff because the earliest month in which she could have received SSI benefits was the month following the month in which she filed her application. See § 416.335. 4 “Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds.” § 416.967(c). 5 1 203.21, Plaintiff was not disabled. (AR 34-35.) 2 V. DISCUSSION 3 Plaintiff contends that the ALJ erred in (1) failing to 4 include any mental limitations in her RFC; (2) rejecting the 5 opinions of her treating physician, Dr. Stanley Golanty; (3) 6 discounting her credibility; and (4) evaluating her obesity.5 7 (J. Stip. at 3.) 8 A. 9 10 The ALJ Erred in Assessing Plaintiff’s Mental Limitations Plaintiff contends that the ALJ erred by “misinterpret[ing]” 11 the medical record and failing to include in her RFC a limitation 12 to “simple repetitive tasks.” (J. Stip. at 20.) For the reasons 13 discussed below, the Court finds that remand is appropriate. 14 15 1. Applicable law “RFC is an administrative assessment of the extent to which 16 an individual’s medically determinable impairment(s), including 17 any related symptoms, such as pain, may cause physical or mental 18 limitations or restrictions that may affect [her] capacity to do 19 work-related physical and mental activities.” 20 374184, at *2 (July 2, 1996). SSR 96-8p, 1996 WL A district court must uphold an 21 ALJ’s RFC assessment when the ALJ has applied the proper legal 22 standard and substantial evidence in the record as a whole 23 supports the decision. 24 (9th Cir. 2005). Bayliss v. Barnhart, 427 F.3d 1211, 1217 The ALJ must consider all the medical evidence 25 in the record and “explain in [his] decision the weight given to 26 27 5 The Court addresses the disputed issues in an order 28 different from that followed by the parties. 6 1 . . . [the] opinions from treating sources, nontreating sources, 2 and other nonexamining sources.” 20 C.F.R. § 416.927(e)(2)(ii); 3 see also § 416.945(a)(1) (“We will assess your residual 4 functional capacity based on all the relevant evidence in your 5 case record.”); SSR 96-8p, 1996 WL 374184, at *2 (RFC must be 6 “based on all of the relevant evidence in the case record”). 7 In making an RFC determination, the ALJ may consider those 8 limitations for which there is support in the record and need not 9 consider properly rejected evidence or subjective complaints. 10 See Bayliss, 427 F.3d at 1217 (upholding ALJ’s RFC determination 11 because “the ALJ took into account those limitations for which 12 there was record support that did not depend on [claimant’s] 13 subjective complaints”); Batson v. Comm’r of Soc. Sec. Admin., 14 359 F.3d 1190, 1197 (9th Cir. 2004) (ALJ not required to 15 incorporate into RFC evidence from treating-physician opinions 16 that were “permissibly discounted”). Moreover, the ALJ must 17 consider limitations imposed by all of the claimant’s medically 18 determinable impairments, even those that are not severe. 19 § 416.945(a)(2). 20 21 2. Background On October 7, 2009, Dr. Nathan E. Lavid, a board-certified 22 psychiatrist, performed a complete psychiatric evaluation of 23 Plaintiff at the agency’s request. (AR 304-07.) He found that 24 Plaintiff complained of panic attacks and took the medication 25 Ativan,6 which she said was helpful. (AR 304.) Plaintiff was 26 27 28 6 Ativan, or lorazepam, is a benzodiazepine used to relieve anxiety. Lorazepam, MedlinePlus, http://www.nlm.nih.gov/ medlineplus/druginfo/meds/a682053.html (last updated Oct. 1, 7 1 well dressed, had good hygiene, a normal gait, and a full range 2 of affect. (AR 304, 306.) Her thought processes were goal 3 directed and she was able to recall three items immediately and 4 one item after five minutes. (AR 306.) Dr. Lavid noted that 5 Plaintiff was “unable to perform serial 3s accurately, but was 6 able to concentrate throughout the evaluation.” 7 diagnosed “Panic Disorder vs. Anxiety Disorder.” (Id.) (Id.) He Under 8 “functional assessment,” Dr. Lavid noted that the examination 9 “revealed no evidence of cognitive deficits, perceptual 10 disturbances or delusional disorders” and that Plaintiff was able 11 to “focus her attention adequately,” “follow 1- and 2-part 12 instructions,” and “adequately remember and complete simple 13 tasks.” (AR 307.) Dr. Lavid found that “[c]onsidering that 14 [Plaintiff] reports a partial response to treatment and performed 15 reasonably well during the mental status examination today, I 16 believe that in her current mental state, she does have the 17 ability to tolerate the stress inherent in the work environment, 18 maintain regular attendance, and work without supervision.” 19 (Id.) 20 On October 28, 2009, Dr. L.O. Mallare, a psychiatrist,7 21 reviewed Plaintiff’s medical records and completed psychiatric22 review-technique and mental-RFC forms. (AR 313-26.) In the PRT 23 24 2010). 25 7 Dr. Mallare’s electronic signature includes a medical 26 specialty code of 37, indicating psychiatry. (AR 313); see Program Operations Manual System (“POMS”) DI 26510.089, U.S. Soc. 27 Sec. Admin. (Oct. 25, 2011), http://policy.ssa.gov/poms. nsf/lnx/0426510089; POMS DI 26510.090, U.S. Soc. Sec. Admin. 28 (Aug. 29, 2012), http://policy.ssa.gov/poms.nsf/lnx/0426510090. 8 1 form, Dr. Mallare opined that Plaintiff suffered from an anxiety 2 disorder that resulted in mild restriction of activities of daily 3 living, mild difficulties in maintaining social functioning, and 4 mild difficulties in maintaining concentration, persistence, or 5 pace. (AR 317, 321.) He noted that Plaintiff was able to 6 perform “SRT,” or simple repetitive tasks. (AR 323.) In the 7 mental-RFC form, Dr. Mallare found that Plaintiff was “moderately 8 limited” in her ability to understand, remember, and carry out 9 detailed instructions but was not significantly limited in any 10 other area, including her ability to understand, remember, and 11 carry out very short and simple instructions. (AR 324-35.) He 12 found that Plaintiff had “adequate mental function to perform 1-2 13 step instr[uctions],” was able to “interact appropriately w[ith] 14 others,” and could “adapt to simple changes in the work-place.” 15 (AR 326.) On December 29, 2009, Dr. P.M. Balson, also a 16 psychiatrist,8 reviewed Plaintiff’s medical records and affirmed 17 Dr. Mallare’s findings. 18 19 3. (AR 330-31.) Analysis The ALJ concluded that Plaintiff’s depression and anxiety 20 “d[id] not cause more than minimal limitation in [Plaintiff’s] 21 ability to perform basic mental work activities” and were 22 therefore “nonsevere.” (AR 28.) In doing so, the ALJ summarized 23 Dr. Lavid’s opinion as finding that Plaintiff was “able to 24 perform simple and complex tasks, maintain regular work 25 attendance, work without supervision, and tolerate normal work 26 27 8 Like Dr. Mallare, Dr. Balson’s signature included a medical (AR 331.) 28 specialty code of 37, indicating psychiatry. 9 1 environment stress.” (AR 27.) The ALJ concluded that Dr. Lavid 2 “effectively found [Plaintiff] to have no mental impediments to 3 functioning in a work environment” and that Drs. Mallare and 4 Balson found “no more than, at most, mild deficits.” (AR 28.) 5 The ALJ, moreover, “reject[ed]” Dr. Mallare’s finding on the 6 mental-RFC form that Plaintiff’s ability to perform “complex 7 tasks” was moderately limited, finding it inconsistent with “the 8 other medical evidence of record,” Dr. Lavid’s “clinical 9 findings,” Plaintiff’s “statements regarding her mental ability 10 to perform daily living tasks to Dr. Lavid,” and Dr. Mallare’s 11 finding in the PRT form that Plaintiff had “no more than ‘mild’ 12 deficit in all areas of mental functioning.” 13 (Id.) The ALJ’s finding that Plaintiff’s mental impairment 14 resulted in no functional limitations must be reversed because it 15 is based on a mischaracterization of Dr. Lavid’s opinion and is 16 unsupported by substantial evidence. Contrary to the ALJ’s 17 observation, Dr. Lavid never opined that Plaintiff could perform 18 “complex tasks” or indicated that she “effectively” had no 19 impediment to maintaining employment. (See AR 27-28.) Rather, 20 Dr. Lavid’s “functional assessment” was that Plaintiff could 21 follow “1- and 2-part instructions” and adequately remember and 22 complete “simple tasks.” (AR 307 (emphasis added).) By the same 23 token, the ALJ erred in rejecting Dr. Mallare’s opinion as 24 inconsistent with Dr. Lavid’s findings and the record evidence, 25 because in fact the three physicians who rendered opinions 26 regarding Plaintiff’s mental functioning – Drs. Lavid, Mallare, 27 and Balson – all agreed that she should be limited to performing 28 some form of simple work. (See AR 307, 323, 326, 331.) 10 1 The ALJ also mistakenly rejected Dr. Mallare’s findings 2 based on Plaintiff’s statements to Dr. Lavid “regarding her 3 mental ability to perform daily living tasks.” (See AR 28.) 4 Plaintiff reported to Dr. Lavid that she was able to go on 5 errands, dress and bathe herself, attend church, and visit her 6 daughter and granddaughter. (AR 306.) None of those activities 7 appear to involve complex tasks or detailed instructions. As 8 such, they are not inconsistent with Dr. Mallare’s opinion. 9 Finally, the ALJ points to the supposed conflict between Dr. 10 Mallare’s finding in the PRT form that Plaintiff had only “mild” 11 deficits in all areas of functioning (AR 321) and his finding in 12 the mental-RFC assessment that she had “moderate” limitations in 13 understanding, remembering, and carrying out detailed 14 instructions (AR 324-25). (AR 28.) But those findings do not 15 necessarily conflict given that the language used in the two 16 check-off forms does not correspond: in the PRT form, the 17 “degree[s] of limitation” were listed as “none,” “mild,” 18 “moderate,” “marked,” and “extreme” (AR 321), whereas in the 19 mental-RFC form, the degrees of limitation were listed as “not 20 significantly limited,” “moderately limited,” and “markedly 21 limited”9 (AR 324-25). Moreover, in the mental-RFC assessment, 22 Dr. Mallare found that Plaintiff was moderately limited only in 23 understanding, remembering, and carrying out detailed 24 instructions and was not significantly limited in the other 18 25 categories, which does not appear to be inconsistent with the PRT 26 27 28 9 The mental-RFC form also included places for indicating “no evidence of limitation in this category” and “not ratable on available evidence.” (AR 324-25.) 11 1 form’s overall finding of only mild limitations. 2 324-25 with AR 321.) (Compare AR And in any event, in the PRT form, Dr. 3 Mallare explicitly referred to his findings in the mental-RFC 4 assessment and stated, consistent with his opinion in that 5 document, that Plaintiff was “capable of SRT,” or simple 6 repetitive tasks. (AR 323.) As such, his findings in the two 7 forms do not appear to be inconsistent. 8 Because the ALJ erred in rejecting the doctors’ findings 9 that Plaintiff was limited to simple tasks, that portion of her 10 decision must be reversed. 11 12 4. Remand for further proceedings is appropriate When, as here, the ALJ improperly discredited medical- 13 opinion evidence, the Court generally has discretion to remand 14 for further proceedings. See Harman v. Apfel, 211 F.3d 1172, 15 1175-78 (9th Cir. 2000). When no useful purpose would be served 16 by further administrative proceedings, however, or when the 17 record has been fully developed, it is appropriate under the 18 “credit-as-true” rule to direct an immediate award of benefits. 19 Id. at 1179 (noting that “the decision of whether to remand for 20 further proceedings turns upon the likely utility of such 21 proceedings”); see also Garrison v. Colvin, 759 F.3d 995, 1020 22 (9th Cir. 2014) (noting that credit-as-true rule applies to 23 medical opinion evidence). 24 Under the credit-as-true framework, three circumstances must 25 be present before the Court may remand to the ALJ with 26 instructions to award benefits: “(1) the record has been fully 27 developed and further administrative proceedings would serve no 28 useful purpose; (2) the ALJ has failed to provide legally 12 1 sufficient reasons for rejecting evidence, whether claimant 2 testimony or medical opinion; and (3) if the improperly 3 discredited evidence were credited as true, the ALJ would be 4 required to find the claimant disabled on remand.” 5 F.3d 1020. Garrison, 759 When, however, the ALJ’s findings are so 6 “insufficient” that the Court cannot determine whether the 7 rejected testimony should be credited as true, the Court has 8 “some flexibility” in applying the credit-as-true rule. Connett 9 v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003); see also 10 Garrison, 759 F.3d at 1020 (noting that Connett established that 11 credit-as-true rule may not be dispositive in all cases). This 12 flexibility should be exercised “when the record as a whole 13 creates serious doubt as to whether the claimant is, in fact, 14 disabled within the meaning of the Social Security Act.” 15 Garrison, 759 F.3d at 1021. 16 Plaintiff argues that if her RFC included a limitation to 17 simple repetitive tasks, she would be found disabled based on the 18 VE’s testimony in response to one of the ALJ’s hypotheticals. 19 (J. Stip. at 22; see also AR 99-100.) 20 however, Plaintiff’s argument fails. As a factual matter, The ALJ found that 21 Plaintiff had the RFC to perform essentially a full range of 22 medium work. (AR 29.) The ALJ’s hypothetical to the VE, 23 however, included a limitation to standing and walking only two 24 hours in an eight-hour day (see AR 99-100), whereas medium work 25 generally requires standing and walking six hours in an eight26 hour day, see SSR 83–10, 1983 WL 31251, at *6 (Jan. 1, 1983) 27 (“full range of medium work requires standing or walking, off and 28 on, for a total of approximately 6 hours in an 8–hour workday”) 13 1 and light work requires “a good deal of walking or standing” and 2 generally more than the two hours required by sedentary work, 3 id. at *5. Thus, the VE’s testimony does not establish that 4 Plaintiff would be unable to perform any light- or medium5 exertion work if she were limited to performing only simple 6 tasks. Accordingly, the third of the three requirements for a 7 remand for benefits has not been met. Moreover, because further 8 VE testimony is needed to determine whether sufficient jobs exist 9 that Plaintiff can perform, the first of the three requirements 10 has not been met, either. 11 Remand is appropriate so that the ALJ can reconsider 12 Plaintiff’s RFC in light of her apparent limitation to “simple 13 tasks” with one- to two-step instructions (see AR 307, 323, 326, 14 331) and elicit appropriate VE testimony regarding whether 15 sufficient jobs exist that Plaintiff can perform given her 16 physical and mental limitations. Because the parties’ other 17 contested issues will not necessarily be reassessed as part of 18 those proceedings on remand, the Court addresses each of them 19 below and finds that none warrant reversal. 20 21 22 B. The ALJ Properly Considered the Treating Physician’s Opinion Plaintiff contends that the ALJ committed reversible error 23 in not affording controlling weight to Plaintiff’s treating 24 physician, Dr. Golanty. 25 26 1. (J. Stip. at 4.) Applicable law Three types of physicians may offer opinions in Social 27 Security cases: (1) those who directly treated the plaintiff, (2) 28 those who examined but did not treat the plaintiff, and (3) those 14 1 who did not treat or examine the plaintiff. 2 830. Lester, 81 F.3d at A treating physician’s opinion is generally entitled to 3 more weight than that of an examining physician, and an examining 4 physician’s opinion is generally entitled to more weight than 5 that of a nonexamining physician. 6 Id. This is true because treating physicians are employed to 7 cure and have a greater opportunity to know and observe the 8 claimant. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). 9 If a treating physician’s opinion is well supported by medically 10 acceptable clinical and laboratory diagnostic techniques and is 11 not inconsistent with the other substantial evidence in the 12 record, it should be given controlling weight. § 416.927(c)(2). 13 If a treating physician’s opinion is not given controlling 14 weight, its weight is determined by length of the treatment 15 relationship, frequency of examination, nature and extent of the 16 treatment relationship, amount of evidence supporting the 17 opinion, consistency with the record as a whole, the doctor’s 18 area of specialization, and other factors. 19 § 416.927(c)(2)-(6). When a treating or examining doctor’s opinion is not 20 contradicted by some evidence in the record, it may be rejected 21 only for “clear and convincing” reasons. See Carmickle v. 22 Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) 23 (quoting Lester, 81 F.3d at 830-31). When a treating or 24 examining physician’s opinion is contradicted, the ALJ must 25 provide only “specific and legitimate reasons” for discounting 26 it. Id. The weight given an examining physician’s opinion, 27 moreover, depends on whether it is consistent with the record and 28 accompanied by adequate explanation, among other things. 15 1 § 416.927(c)(3)-(6). 2 3 2. Relevant facts On September 30, 2009, Dr. Concepcion A. Enriquez, who was 4 board eligible in internal medicine, completed an internal 5 medical consultation at the agency’s request. (AR 300-03.) Dr. 6 Enriquez found that Plaintiff was 63.5 inches tall and weighed 7 225 pounds. (AR 301.) She was able to generate 25 pounds of 8 force using the right hand and 45 pounds of force with her left, 9 dominant hand. (Id.) Her cervical and lumbar spine had normal 10 ranges of motion, no tenderness, and no spasm. (AR 301-02.) She 11 had normal ranges of motion in her upper and lower extremities, 12 normal muscle tone and bulk, and “5/5” strength throughout. (AR 13 302.) Her sensation was “intact to pinprick and light touch.” 14 (Id.) Plaintiff’s gait and balance were normal, and she did not 15 need an assistive device to walk. (AR 302-03.) Dr. Enriquez 16 noted that Plaintiff “has symptoms of diabetic neuropathy, 17 including numbness on her hands and feet,” but on examination her 18 “[m]otor, sensory, and reflexes are all intact,” she could “do 19 fine and gross manipulation using her fingers with no problem,” 20 and her gait and balance were normal. 21 (AR 303.) Dr. Enriquez diagnosed history of high blood pressure and 22 diabetes. (AR 302.) She opined that Plaintiff could lift and 23 carry 50 pounds occasionally and 25 pounds frequently, stand and 24 walk with normal breaks for six hours in an eight-hour day, and 25 sit for six hours in an eight-hour day, and she must avoid 26 unprotected heights and operating dangerous machinery. 27 (AR 303.) On October 22, 2009, Dr. P.N. Ligot, who specialized in 28 16 1 internal medicine,10 reviewed Plaintiff’s medical records and 2 completed a physical-RFC-assessment form. (AR 308-12.) Dr. 3 Ligot listed Plaintiff’s diagnoses as diabetes mellitus, 4 hypertension, and morbid obesity. (AR 308.) He believed 5 Plaintiff could lift and carry 50 pounds occasionally and 25 6 pounds frequently, stand and walk about six hours in an eight7 hour day, sit about six hours in an eight-hour day, and perform 8 unlimited pushing and pulling; he also believed she must avoid 9 “concentrated exposure” to hazards such as machinery and heights. 10 (AR 309-11.) On December 24, 2009, Dr. Myung Sohn, who also 11 specialized in internal medicine,11 reviewed Plaintiff’s medical 12 evidence and affirmed Dr. Ligot’s assessment. 13 (AR 329.) On February 1, 2011, Plaintiff’s treating physician, Dr. 14 Golanty, completed a medical-statement form and physical-RFC 15 questionnaire. (AR 335-40.) In the medical-statement form, Dr. 16 Golanty checked that Plaintiff suffered from type II diabetes, 17 “[i]nsulin resistance,” neuropathy, and nephropathy; he wrote 18 “hands/feet” next to “nephropathy” on the form.12 (AR 335.) Dr. 19 20 10 Dr. Ligot’s electronic signature includes a medical (AR 312); see Program Operations Manual System (POMS) DI 26510.089, U.S. Soc. Sec. Admin. (Oct. 25, 2011), http://policy.ssa.gov/poms. nsf/lnx/0426510089; POMS DI 26510.090, U.S. Soc. Sec. Admin. (Aug. 29, 2012), http://policy.ssa.gov/poms.nsf/lnx/0426510090. 21 specialty code of 19, indicating internal medicine. 22 23 24 25 26 27 28 11 Dr. Sohn’s electronic signature also listed a medical specialty code of 19, indicating internal medicine. (AR 329.) 12 Diabetic nephropathy is kidney disease or damage that occurs in people with diabetes. Diabetes and kidney disease, MedlinePlus, http://www.nlm.nih.gov/medlineplus/ency/article/ 000494.htm (last updated Sept. 8, 2014). It is unclear why Dr. Golanty wrote “hands/feet” next to this entry on the form. 17 1 Golanty opined that Plaintiff could work zero hours a day, stand 2 15 minutes at a time, sit 60 minutes at a time, occasionally and 3 frequently lift five pounds, and occasionally balance. (Id.) He 4 wrote that her neuropathy prohibited standing for more than 15 5 mintues without a break to sit down. 6 (Id.) In the physical-RFC questionnaire, Dr. Golanty listed 7 Plaintiff’s diagnoses as insulin-requiring diabetes mellitus type 8 II. (AR 336.) He listed her symptoms as “parasthesias [sic],”13 9 pain, and numbness of the hands and feet, and the “clinical 10 findings and objective signs” as decreased sensation with 11 “microfilament.” (Id.) Dr. Golanty opined that Plaintiff could 12 not walk a block without rest or severe pain, could sit 15 13 minutes and stand 15 minutes at a time, and could sit or stand 14 each for less than two hours total in an eight-hour workday. 15 337-38.) (AR He believed Plaintiff needed to walk for 10 minutes 16 every 10 minutes in an eight-hour workday and would need to take 17 unscheduled breaks every 15 to 60 minutes. (AR 338.) 18 would not need to be elevated while sitting. (Id.) Her legs Dr. Golanty 19 checked that Plaintiff could “rarely” lift less than 10 pounds 20 and above, and she could only “occasionally” look down or up, 21 turn her head, or hold her head in a “static position.” 22 39.) (AR 338- She could rarely twist, stoop, or crouch and never climb 23 13 “Paresthesia refers to a burning or prickling sensation 24 that is usually felt in the hands, arms, legs, or feet, but can 25 also occur in other parts of the body.” NINDS Paresthesia Info. 26 27 28 Page, Nat’l Inst. Neurological Disorders and Stroke, http://www.ninds.nih.gov/disorders/paresthesia/paresthesia.htm (last updated Feb. 14, 2014). “The sensation, which happens without warning, is usually painless and described as tingling or numbness, skin crawling, or itching.” Id. 18 1 ladders or stairs. (AR 339.) Plaintiff had significant 2 limitations on her ability to perform “fingering.” (Id.) Dr. 3 Golanty opined that Plaintiff’s depression and anxiety affected 4 her physical condition, her pain would “constantly” interfere 5 with her ability to concentrate enough to perform simple work 6 tasks, and she was incapable of even “low stress” jobs. 7 337.) (AR He believed that she would miss more than four days of 8 work a month because of her impairments or treatment. (AR 339.) 9 At the end of the form, Dr. Golanty wrote, “[t]he problem is 10 neuropathy + insulin issues for [diabetes] care” and “[t]his is 11 not ortho stuff!” 12 (Id.) After summarizing the record evidence, the ALJ found that 13 Plaintiff could perform “medium work” that did not involve 14 unprotected heights, hazardous conditions, or dangerous 15 equipment. (AR 29.) The ALJ found that her RFC was consistent 16 with the evidence and the findings of Drs. Enriquez, Ligot, and 17 Sohn. (AR 34.) The ALJ, moreover, considered Dr. Golanty’s 18 opinion but gave several reasons for finding it not “persuasive 19 or controlling.” 20 21 3. (AR 33.) Analysis Contrary to Plaintiff’s contention (J. Stip. at 4), the ALJ 22 was not obligated to accord “controlling weight” to Dr. Golanty’s 23 opinion because she permissibly found that it was unsupported by 24 sufficient clinical evidence and inconsistent with the record. 25 See § 416.927(c)(2). As discussed below, moreover, the ALJ was 26 entitled to discount Dr. Golanty’s opinion for those reasons and 27 because it was based primarily on Plaintiff’s discredited 28 subjective complaints. 19 1 The ALJ permissibly discounted Dr. Golanty’s opinion because 2 his clinical findings and the record as a whole “fail to support 3 his highly restrictive functional assessment.” (AR 32); see 4 § 416.927(c)(4) (explaining that more weight should be afforded 5 to medical opinions that are consistent with the record as a 6 whole); Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 7 692–93 (9th Cir. 2009) (contradiction between treating 8 physician’s opinion and his treatment notes constitutes specific 9 and legitimate reason for rejecting opinion); Houghton v. Comm’r 10 Soc. Sec. Admin., 493 F. App’x 843, 845 (9th Cir. 2012) (holding 11 that ALJ’s finding that doctors’ opinions were “internally 12 inconsistent, unsupported by their own treatment records or 13 clinical findings, [and] inconsistent with the record as a whole” 14 constituted specific and legitimate bases for discounting them). 15 Indeed, Dr. Golanty found that Plaintiff was extremely limited by 16 her neuropathy and “insulin issues,” but very few clinical 17 findings support his conclusion. Physicians noted on a few 18 occasions that Plaintiff had decreased sensation in her 19 extremities (see, e.g., AR 266 (July 2009, noting decreased 20 sensation during foot exam), 341 (Feb. 2011, noting decreased 21 sensation in extremities bilaterally), 392 (Aug. 2011, noting 22 “some loss of protective sensation in both feet”)), but as the 23 ALJ noted, the record is devoid of any objective 24 “electromyographic tests” confirming or showing the extent of 25 Plaintiff’s “diminished sensation or nerve functioning” (AR 32). 26 Indeed, although one of Plaintiff’s treating physicians 27 apparently ordered such tests (see AR 266 (writing “NCT/EMG,” 28 presumably, nerve-conduction test and electromyography, under “P” 20 1 for plan in treatment note)), the results are not in the record 2 and nothing indicates that Plaintiff ever underwent them. 3 Moreover, Dr. Enriquez examined Plaintiff in September 2009 and 4 found that she had intact sensation and normal gait and balance 5 (AR 302), and during an emergency-room visit for treatment of a 6 cough in March 2009, Plaintiff was noted to have “5/5” motor 7 strength throughout, intact cranial nerves, and a “steady gait” 8 (AR 269). Such findings do not support Dr. Golanty’s opinion 9 that Plaintiff suffered from debilitating limitations because of 10 her peripheral neuropathy and “insulin issues.” 11 As the ALJ found, moreover, Dr. Golanty’s notes show that 12 Plaintiff “has only complained intermittently over the years of 13 tingling in her extremities, with large gaps in the record 14 between such complaints.” (AR 32.) Indeed, Plaintiff was first 15 noted to have diabetic neuropathy in March 2006, when she 16 complained of “tingling” in her hands and feet. (AR 292.) But 17 although Plaintiff claims to have been disabled since May 15, 18 2007 (AR 171), her doctors did not again note her complaints of 19 neuropathy symptoms until July 2009, when a physician in Dr. 20 Golanty’s office found that Plaintiff had decreased sensation in 21 her feet and diagnosed neuropathy.14 (AR 266.) Thereafter, 22 physicians in Dr. Golanty’s office noted Plaintiff’s reports of 23 neuropathy or related symptoms only in December 2009, May and 24 25 26 27 28 14 Specifically, no neuropathy symptoms were noted on treatment records dated March (AR 291), May (AR 290), July (AR 288), September (AR 284), and December 2006 (AR 282); May (AR 280) and November 2007 (AR 277); March (AR 276), April (AR 274), August (AR 273), and November 2008 (AR 271); and March 2009 (AR 351-52). 21 1 October 2010, and February 2011.15 (See AR 341-42, 345, 348.) 2 The ALJ also correctly noted that nothing supported Dr. Golanty’s 3 assertion that Plaintiff’s medical condition would require 4 frequent absences from work, because her treatment records showed 5 “little more than routine medical care or treatment for 6 transitory issues, and do not reflect a pattern of flare ups or 7 frequent exacerbations of her diabetes or other medical issues.” 8 (AR 32.) 9 The ALJ further found that Plaintiff did not have “any 10 orthopedic problems to account for Dr. Golanty’s restrictions 11 regarding [her] ability to lift, carry, move her neck and engage 12 in postural movement.” (Id.) Indeed, Dr. Golanty listed 13 Plaintiff’s symptoms as including only paresthesia, pain, and 14 numbness of the hands and feet (AR 336), none of which appear to 15 support his opinion that Plaintiff could, for example, only 16 occasionally look down, turn her head right or left, look up, and 17 hold her head in a static position; rarely twist, stoop, crouch, 18 and squat; and lift and carry only 5 pounds frequently and up to 19 50 pounds rarely (AR 335, 338-39).16 Dr. Golanty, moreover, 20 stated in his opinion that Plaintiff’s “problem” was neuropathy 21 22 23 24 25 26 27 28 15 In June 2010, Dr. Golanty noted that Plaintiff’s blood sugar was “ok” and did not mention any neuropathy symptoms or diagnosis. (AR 344.) 16 Dr. Golanty’s opinions in the medical-statement and physical-RFC forms also conflict with each other. For example, he opined in the medical-statement form that Plaintiff could occasionally and frequently lift only five pounds and could sit for 60 minutes at a time (AR 335), but in the physical-RFC form he checked that she could “rarely” lift and carry less than 10 pounds and above and could sit for only 15 minutes at a time (AR 337-38). 22 1 and “insulin issues,” not “ortho stuff” (AR 339), and none of his 2 treatment notes reflect that Plaintiff suffered from reduced 3 ranges of motion or that her ability to make certain movements 4 was in any way limited (see generally AR 266-93, 341-53). Dr. 5 Enriquez, moreover, examined Plaintiff and found that she had 6 normal ranges of motion of the cervical and lumbar spine and 7 upper and lower extremities, normal muscle tone and bulk, and 8 “5/5” strength throughout (AR 301-02), and an emergency-room 9 doctor similarly found that Plaintiff had “5/5” motor strength 10 (AR 269). Indeed, Plaintiff never asserted that her impairments 11 affected her ability to lift, squat, bend, or kneel. 12 (Plaintiff’s function report).) (See AR 200 For all of these reasons, the 13 ALJ was entitled to discount Dr. Golanty’s opinion that Plaintiff 14 suffered from debilitating physical limitations because it was 15 unsupported by his treatment notes and the record as a whole. 16 Plaintiff nevertheless argues that the ALJ’s rejection of 17 Dr. Golanty’s opinion was improper because she incorrectly found 18 that after March 2006, Plaintiff did not complain of neuropathy 19 symptoms again until October 2010 (AR 32), when in fact her 20 doctors noted such complaints beginning in July 2009 (see AR 21 266). (J. Stip. at 5.) But as discussed above, the ALJ 22 correctly noted “large gaps” between Plaintiff’s complaints of 23 neuropathy. Moreover, she correctly found that Dr. Golanty’s 24 opinion was unsupported by his treatment notes and the other 25 record evidence. As such, any error in the ALJ’s summary of the 26 evidence was harmless. See Stout v. Comm’r Soc. Sec. Admin., 454 27 F.3d 1050, 1055 (9th Cir. 2006) (nonprejudicial or irrelevant 28 mistakes harmless); see also Wright v. Comm’r of Soc. Sec., 386 23 1 F. App’x 105, 109 (3d Cir. 2010) (Tashima, J., sitting by 2 designation) (ALJ’s misstatements in written decision harmless 3 error when regardless of them “ALJ gave an adequate explanation 4 supported by substantial evidence in the record”). 5 The ALJ also permissibly discounted Dr. Golanty’s finding of 6 extreme limitations because it appeared to be premised largely on 7 Plaintiff’s subjective complaints, which, as discussed in Section 8 V.B below, the ALJ properly discredited. (See AR 32-33 (noting 9 that Dr. Golanty “appears to have taken [Plaintiff’s] subjective 10 allegations at face value and merely reiterated those allegations 11 in his report and when making his assertions regarding 12 [Plaintiff’s] ability to work”); Tommasetti v. Astrue, 533 F.3d 13 1035, 1041 (9th Cir. 2008) (“An ALJ may reject a treating 14 physician’s opinion if it is based to a large extent on a 15 claimant’s self-reports that have been properly discounted as 16 incredible.” (internal quotation marks omitted)); Tonapetyan v. 17 Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (when ALJ properly 18 discounted claimant’s credibility, he was “free to disregard” 19 doctor’s opinion that was premised on claimant’s properly 20 discounted subjective complaints). Indeed, as previously 21 discussed, the treatment notes from Dr. Golanty’s office reflect 22 very few objective findings to support a diagnosis of peripheral 23 neuropathy and instead reflect mostly Plaintiff’s own report of 24 her symptoms.17 And in his physical-RFC assessment, Dr. Golanty 25 26 27 28 17 Specifically, in July 2009, a doctor conducted a foot examination and found that Plaintiff had decreased sensation (AR 266), and in February 2011, a doctor noted that Plaintiff had decreased sensation bilaterally in her extremities (AR 341). The other notes seem merely to record Plaintiff’s own report of her 24 1 listed only “decreased sensation” under “clinical findings and 2 objective signs.” (AR 336.) Thus, as the ALJ found, it appears 3 that much of Dr. Golanty’s opinion as to Plaintiff’s limitations 4 was based on her discredited subjective complaints, and the ALJ 5 was therefore entitled to discredit his opinion. 6 The ALJ also found that Dr. Golanty’s “general lack of 7 medical treatment beyond medication, insulin and advised 8 lifestyle changes fail [sic] to support his highly restrictive 9 functional assessment.”18 (AR 32); Rollins v. Massanari, 261 10 F.3d 853, 856 (9th Cir. 2001) (holding that ALJ properly rejected 11 opinion of treating physician who prescribed conservative 12 treatment yet opined that claimant was disabled). Plaintiff does 13 not contest that Dr. Golanty prescribed only medication, 14 including insulin, and recommended that she improve her diet and 15 exercise, but she argues that this was not a proper reason for 16 discounting his opinion because “[f]ailing to pursue non17 conservative treatment options is not substantial evidence where 18 symptoms. In December 2009, Dr. Golanty noted “neuropathy” and 19 Plaintiff’s report that it “affects hands/feet,” she “can’t 20 write,” and she “can’t stand.” (AR 348.) In May 2010, Dr. Golanty noted “neuropathy” but did not record any symptoms or (AR 345.) In June 2010, Dr. Golanty noted that Plaintiff’s blood sugar was “ok” and did not mention any neuropathy symptoms or diagnosis. (AR 344.) And in October 2010, Plaintiff reported that she had been unable to afford insulin, had not taken it for “months at a time,” and complained of “neuropathy in hands and feet,” but Dr. Golanty did not record any clinical findings to support Plaintiff’s complaints. (AR 342.) 21 clinical findings related to that condition. 22 23 24 25 26 27 28 18 In any event, it appears that Plaintiff often failed to follow her prescribed treatment. (See, e.g., AR 280 (noting Plaintiff had not been taking insulin because of “stress”), 342 (noting “poor diet and exercise control” and that Plaintiff “states she knows she needs to improve diet + exercise”). 25 1 none exists.” (J. Stip. at 6 (citing Lapeirre-Gutt v. Astrue, 2 382 F. App’x 662, 664 (9th Cir. 2010) (holding that “[a] claimant 3 cannot be discredited for failing to pursue non-conservative 4 treatment options where none exist”).) But Dr. Golanty 5 presumably could have provided other treatment, such as 6 prescribing a cane, recommending further testing of her 7 peripheral neuropathy, prescribing stronger pain medication, or 8 referring her to a pain-management doctor or other specialist. 9 In any event, even if the ALJ improperly relied on this finding 10 in discounting Dr. Golanty’s opinion, it was harmless because she 11 gave other legally sufficient reasons for doing so. See Stout, 12 454 F.3d at 1055; cf. Carmickle v. Comm’r, Soc. Sec. Admin., 533 13 F.3d 1155, 1162-63 (9th Cir. 2008) (ALJ’s reliance on erroneous 14 reasons for adverse credibility determination harmless when 15 substantial evidence supported determination and errors did not 16 negate its validity). 17 Moreover, the ALJ was entitled to rely on the opinions of 18 Drs. Enriquez, Ligot, and Sohn instead of Dr. Golanty’s opinion 19 because they were supported by independent clinical findings and 20 thus constituted substantial evidence. See Tonapetyan, 242 F.3d 21 at 1149; Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). 22 Before rendering her opinion, Dr. Enriquez performed an internal 23 medical examination of Plaintiff, finding, for example, that 24 Plaintiff had normal ranges of motion, intact sensation, normal 25 muscle tone, 5/5 strength, and normal gait and balance. 26 03.) (AR 300- Drs. Ligot’s and Sohn’s opinions, moreover, relied on Dr. 27 Enriquez’s and were consistent with it. (AR 312, 329); see 28 Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (“The 26 1 opinions of non-treating or non-examining physicians may also 2 serve as substantial evidence when the opinions are consistent 3 with independent clinical findings or other evidence in the 4 record.”). Dr. Sohn, moreover, explicitly stated that he had 5 “reviewed all the evidence in the file” before affirming Dr. 6 Ligot’s RFC finding. (AR 329); see § 416.927(c)(3) (in weighing 7 medical opinions, ALJ “will evaluate the degree to which these 8 opinions consider all of the pertinent evidence in [claimant’s] 9 claim, including opinions of treating and other examining 10 sources”). Thus, any conflict in the properly supported medical- 11 opinion evidence was “solely the province of the ALJ to resolve.” 12 Andrews, 53 F.3d at 1041. 13 Finally, to the extent Plaintiff argues that Dr. Golanty’s 14 opinion should have been credited over Dr. Enriquez’s because he 15 is Board certified and Dr. Enriquez is only Board eligible (J. 16 Stip. at 6-7), that argument fails.19 Dr. Enriquez did not need 17 to be Board certified to practice medicine in California, nor 18 does Plaintiff allege that her training was inadequate to permit 19 a thorough and valid examination. See Kladde v. Astrue, No. ED 20 CV 07-01439(SH), 2009 WL 838104, at *5 (C.D. Cal. Mar. 26, 2009) 21 (finding record supported ALJ’s decision to give greater weight 22 to examining doctor when Plaintiff did not allege that his 23 Board-eligible status rendered him unable to conduct valid 24 25 26 27 28 19 A physician becomes Board eligible upon completion of the training necessary for Board certification in a given specialty. See General Policies & Requirements, Am. Bd. of Internal Med., http://www.abim.org/certification/policies/general-policiesrequirements.aspx (last visited Sept. 18, 2014). Board eligibility lasts seven years or until the physician passes the examination for certification in a given specialty. Id. 27 1 assessment). 2 Reversal is not warranted on this ground. 3 C. 4 Plaintiff contends that the ALJ’s adverse credibility The ALJ Properly Discounted Plaintiff’s Credibility 5 determination was not supported by substantial evidence. 6 Stip. at 12.) (J. Remand is not warranted on this ground, however, 7 because the ALJ provided clear and convincing reasons, supported 8 by substantial evidence, for discounting Plaintiff’s credibility. 9 10 1. Applicable law An ALJ’s assessment of symptom severity and claimant 11 credibility is entitled to “great weight.” See Weetman v. 12 Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. Heckler, 779 13 F.2d 528, 531 (9th Cir. 1986). “[T]he ALJ is not required to 14 believe every allegation of disabling pain, or else disability 15 benefits would be available for the asking, a result plainly 16 contrary to 42 U.S.C. § 423(d)(5)(A).” Molina v. Astrue, 674 17 F.3d 1104, 1112 (9th Cir. 2012) (internal quotation marks 18 omitted). In evaluating a claimant’s subjective symptom 19 testimony, the ALJ engages in a two-step analysis. 20 Lingenfelter, 504 F.3d at 1035-36. See “First, the ALJ must 21 determine whether the claimant has presented objective medical 22 evidence of an underlying impairment [that] could reasonably be 23 expected to produce the pain or other symptoms alleged.” 24 1036 (internal quotation marks omitted). Id. at If such objective 25 medical evidence exists, the ALJ may not reject a claimant’s 26 testimony “simply because there is no showing that the impairment 27 can reasonably produce the degree of symptom alleged.” 28 80 F.3d at 1282 (emphasis in original). 28 Smolen, When the ALJ finds a 1 claimant’s subjective complaints not credible, the ALJ must make 2 specific findings that support the conclusion. See Berry v. 3 Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). 4 Absent affirmative evidence of malingering, those findings 5 must provide “clear and convincing” reasons for rejecting the 6 claimant’s testimony. Lester, 81 F.3d at 834. If the ALJ’s 7 credibility finding is supported by substantial evidence in the 8 record, the reviewing court “may not engage in second-guessing.” 9 Thomas, 278 F.3d at 959. 10 11 2. Relevant facts In a July 2009 function report, Plaintiff stated that her 12 daily activities included reading the Bible, talking on the phone 13 with family members, spending time with her daughter, looking 14 after her granddaughter, and watching “small amounts” of 15 television. (AR 195.) She wrote that it took her almost 1.5 16 hours to perform personal care because of hand numbness. 17 196.) (AR She did not prepare meals or perform household chores. 18 (AR 197.) She went outside every day, but someone always had to 19 be with her because of her “severe” panic attacks. (AR 198.) 20 Plaintiff asserted that she wore glasses “because of diabetes.” 21 (AR 199.) 22 (Id.) She regularly went to church and her daughter’s house. Plaintiff reported that she could stand for one hour or 23 less, walk for 30 minutes or less, sit for one hour or less, use 24 her hands for 20 minutes, concentrate for one hour, and “pay 25 attention” for 30 minutes. (AR 200.) She could walk for 10 26 minutes before needing to rest for one hour. 27 (Id.) In an undated disability report, Plaintiff reported that as 28 of June 2009, she was able to use her hands only a few minutes at 29 1 a time, could not wear closed-toe shoes because of “pain [and] 2 swelling,” and had panic attacks that had worsened since the 3 death of her stepmother. (AR 235, 240.) In a January 2010 4 disability report, Plaintiff stated that as of October 1, 2009, 5 her hands and feet were numb “more often” and for “longer periods 6 of time,” she could not wear closed-toe shoes for long periods of 7 time, and “some days writing [was] hard.” 8 (AR 251.) At the November 8, 2011 hearing, Plaintiff testified that 9 she could no longer work because of “bad pain” in her legs, feet, 10 and fingers from neuropathy. (AR 81.) Plaintiff could no longer 11 write and could not wear shoes for more than 20 minutes because 12 of her condition. (Id.) She testified that she could walk from 13 her chair to the bathroom or to get a glass of water before 14 needing to sit for 15 to 20 minutes. (AR 82.) When caring for 15 her granddaughter, she only had to warm food for her and see that 16 she ate, and her granddaughter would just “sit with me the rest 17 of the day until her mother gets there.” (AR 83.) Plaintiff 18 said she needed to elevate both feet “[m]ostly all day.”20 19 84.) (AR She felt that her hammer toes and heel spurs contributed to 20 her foot pain. (AR 92.) Plaintiff was unable to “keep [her] 21 hands straight” or comb her hair because of hand pain. (AR 94.) 22 She asserted that her depression also played a role in her 23 disability. (AR 93-94.) She attended church every Saturday and 24 during church was able to walk around, remove her shoes, and lie 25 down. (AR 97.) 26 27 28 20 Plaintiff’s assertion conflicts with Dr. Golanty’s finding that her legs would not need to be elevated with prolonged sitting. (AR 338.) 30 1 2 3. Analysis The ALJ found that Plaintiff’s conditions could reasonably 3 be expected to cause her alleged symptoms, but her statements 4 concerning the intensity, persistence, and limiting effects of 5 those symptoms were not credible to the extent they were 6 inconsistent with Plaintiff’s RFC for medium work. (AR 30-31.) 7 For the reasons discussed below, the ALJ permissibly discounted 8 Plaintiff’s subjective symptom testimony. 9 The ALJ noted that Plaintiff “has generally not participated 10 in the work force in any significant manner and, since losing her 11 last job, has not apparently made a significant effort to seek 12 out new employment.” (AR 33.) Indeed, Plaintiff’s work-history 13 report showed only a few brief periods of employment, even before 14 she allegedly became disabled: she reported working as a 15 childcare provider for friends and relatives “only when needed” 16 from 1985 to 2000, a baggage clerk at a supermarket from May to 17 July 2004, a cashier at Rite Aid from April to May 2006, and a 18 clerk at Walmart from April to May 2007. (AR 211, 215.) 19 not sought employment since leaving her job at Walmart. She had (AR 83.) 20 Moreover, a Social Security earnings report shows that from 1985 21 to 2010, Plaintiff’s only earnings were $1766 in 2004, $1009 in 22 2006, and $342 in 2007. 23 earnings were $8174.21 (AR 176.) (Id.) Her total lifetime reported In discounting Plaintiff’s 24 credibility, the ALJ was entitled to rely on Plaintiff’s poor 25 work history even before she allegedly became disabled. See 26 27 28 21 Plaintiff earned less than $500 in each of the years 1977, 1978, 1982, 1983, and 1984, and she earned only about $2300 in 1979 and $1300 in 1981. (AR 176.) She had no income in 1980. (Id.) 31 1 Thomas, 278 F.3d at 959 (ALJ permissibly discounted credibility 2 when claimant “had an extremely poor work history and has shown 3 little propensity to work in her lifetime” (internal quotation 4 marks omitted)). 5 The ALJ also permissibly discounted Plaintiff’s credibility 6 based on her inconsistent statements regarding her limitations. 7 The ALJ noted that Plaintiff asserted that she was “severely 8 restricted in her ability to move about, perform even simple self 9 care tasks, and perform household chores” (AR 33), but in October 10 2009, she told examining psychiatrist Lavid that she could go on 11 errands, dress and bathe herself, attend church, and visit her 12 daughter and granddaughter (AR 33, 306). Plaintiff also claimed 13 that she was unable to go out alone because of her panic attacks 14 (AR 198) and that she could walk only from her chair to the 15 bathroom or kitchen before needing to rest for 15 to 20 minutes 16 (AR 82), but as the ALJ noted (AR 33), in February 2011, 17 Plaintiff reported to her doctor that she had walked “unassisted” 18 and alone from home to the medical clinic (AR 378).22 Such 19 inconsistencies are a clear and convincing reason for discounting 20 Plaintiff’s credibility. See Tommasetti, 533 F.3d at 1039 21 (holding that ALJ may consider many factors in weighing 22 claimant’s credibility, including “ordinary techniques of 23 credibility evaluation, such as . . . inconsistent statements 24 concerning the symptoms”). 25 22 Plaintiff asserts that the ALJ erred in relying on this 26 fact because she did not develop the record as to how far 27 Plaintiff lived from the doctor’s office. (J. Stip. at 13.) 28 But no matter how close it was, it was substantially farther than from the chair to the bathroom and thus undermined Plaintiff’s credibility. 32 1 The ALJ also noted that Plaintiff testified that she had 2 problems with prolonged sitting but was “able to apparently sit 3 comfortably during the 80-minute hearing”; moreover, although 4 Plaintiff reported difficulty concentrating, at the hearing her 5 thoughts “did not seem to wander and all questions were answered 6 alertly and appropriately.” (AR 33.) The ALJ was permitted to 7 rely on her observations of Plaintiff at the hearing as one of 8 several factors affecting Plaintiff’s credibility, given the 9 inconsistencies between Plaintiff’s claims and those 10 observations. See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 11 2007) (ALJ’s personal observations may be used in overall 12 evaluation of credibility but cannot form “sole basis” for 13 credibility determination); Thomas, 278 F.3d at 960 (ALJ properly 14 relied on claimant’s “demeanor at the hearing” in discounting 15 credibility); SSR 96–7p, 1996 WL 374186, at *5 (July 2, 1996) 16 (“[T]he adjudicator may also consider his or her own recorded 17 observations of the individual as part of the overall evaluation 18 of the credibility of the individual’s statements.”). 19 Plaintiff argues, however, that “[g]iven the 20 [videoconferenced] hearing and the technical difficulties, it 21 remains unclear to what extent the ALJ was able to adequately 22 observe [her] demeanor” at the hearing. (J. Stip. at 14.) It is 23 true that the hearing was conducted by videoconference (at 24 Plaintiff’s request (see AR 67-69)) and that the parties 25 experienced some lost connections or issues with the recording 26 equipment (see AR 72, 75, 85-87), but those problems were all 27 resolved and the hearing was successfully conducted and recorded 28 (see AR 77-78, 88). Plaintiff’s claim fails because nothing 33 1 indicates that the ALJ was unable to adequately observe Plaintiff 2 over the course of the lengthy hearing. See McGovern v. Astrue, 3 No. 3:11-CV-05148-RBL, 2012 WL 966430, at *15 (W.D. Wash. Mar. 1, 4 2012) (rejecting as “mere[] speculation” plaintiff’s argument 5 that ALJ was not able to notice plaintiff’s discomfort because 6 “only video hearings were held”), accepted by 2012 WL 963737 7 (W.D. Wash. Mar. 21, 2012). 8 Finally, the ALJ rejected Plaintiff’s testimony as 9 “generally unsupported by the medical evidence.” (AR 33.) 10 Indeed, although Plaintiff claimed to be significantly limited by 11 her neuropathy, examining physician Enriquez found that Plaintiff 12 had normal ranges of motion in her upper and lower extremities, 13 normal muscle tone and bulk, “5/5” strength throughout, intact 14 sensation, and normal gait and balance. (AR 302-03.) The ALJ 15 also noted that although Plaintiff claimed her diabetes affected 16 her vision (AR 199), Dr. Enriquez found that she “retained 20/30 17 bilateral uncorrected vision” (AR 32; see also 301), and 18 Plaintiff and her daughter both reported that she could read the 19 Bible (AR 32; see also AR 195, 203). This, too, was a clear and 20 convincing reason for discounting Plaintiff’s credibility. See 21 Carmickle, 533 F.3d at 1161 (“Contradiction with the medical 22 record is a sufficient basis for rejecting the claimant’s 23 subjective testimony.”); Lingenfelter, 504 F.3d at 1040 (in 24 determining credibility, ALJ may consider “whether the alleged 25 symptoms are consistent with the medical evidence”); see also 26 Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (“Although 27 lack of medical evidence cannot form the sole basis for 28 34 1 discounting pain testimony, it is a factor that the ALJ can 2 consider in his credibility analysis.”). 3 Because the ALJ’s credibility determination is supported by 4 substantial evidence, this Court may not second-guess it. 5 Thomas, 278 F.3d at 959. Reversal is not warranted on this 6 ground. 7 D. 8 Plaintiff contends that the ALJ committed “reversible error” The ALJ Properly Evaluated Plaintiff’s Obesity 9 by failing to “make any findings how or to what extent 10 [P]laintiff’s obesity affected [her] functional limitations.” 11 (J. Stip. at 19.) For the reasons discussed below, Plaintiff’s 12 argument fails. 13 As a general rule, an ALJ must determine the effect of a 14 claimant’s obesity upon her other impairments and ability to 15 work. Celaya v. Halter, 332 F.3d 1177, 1182 (9th Cir. 2003); see 16 also SSR 02–1p, 2002 WL 34686281 (Sept. 12, 2002) (requiring ALJ 17 to consider effects of obesity at several points in five-step 18 sequential evaluation). An ALJ must “evaluate each case based on 19 the information in the case record,” as obesity may or may not 20 increase the severity or functional limitations of other 21 impairments. 22 SSR 02–1p, 2002 WL 34686281, at *6. Here, the ALJ fully considered Plaintiff’s obesity when 23 formulating her RFC. The ALJ noted Plaintiff’s weights of 208, 24 225, and 228 pounds at various medical appointments (AR 25-26) 25 and concluded that her obesity was a severe impairment (AR 25). 26 And Dr. Ligot explicitly included in his physical-RFC assessment 27 a diagnosis of “Morbid Obesity (BMI 40).” (AR 308.) Plaintiff, 28 moreover, does not point to any limitations attributable to her 35 1 obesity that the ALJ ignored; instead, she cites to treatment 2 notes in which her doctors simply recommended that she lose 3 weight or exercise. 4 348).) (J. Stip. at 20 (citing AR 280, 282, 341-42, Indeed, Plaintiff’s own treating physician, Dr. Golanty, 5 failed even to list obesity among Plaintiff’s diagnoses in his 6 RFC opinions, nor did he attribute any of her alleged limitations 7 to that condition. (See AR 335-40.) As such, the ALJ adequately 8 considered Plaintiff’s obesity in formulating her RFC. See 9 Burch, 400 F.3d at 684 (ALJ adequately considered obesity in RFC 10 determination when he recognized obesity “likely contributed to 11 [plaintiff’s] back discomfort” and plaintiff “has not set forth, 12 and there is no evidence in the record, of any functional 13 limitations as a result of her obesity that the ALJ failed to 14 consider”); Garcia v. Comm’r of Soc. Sec. Admin., 498 F. App’x 15 710, 712 (9th Cir. 2012) (ALJ adequately considered obesity by 16 “recogniz[ing] [it] as a severe impairment” and “consider[ing] 17 his obesity and rel[ying] on functional limits suggested by 18 doctors who recognized it” when assessing RFC). 19 Plaintiff is not entitled to reversal on this ground. 20 VI. CONCLUSION 21 Accordingly, IT IS HEREBY ORDERED that (1) the decision of 22 the Commissioner is REVERSED; (2) Plaintiff’s request for remand 23 is GRANTED; and (3) this action is REMANDED for further 24 proceedings consistent with this Memorandum Opinion. 25 26 27 28 36 1 IT IS FURTHER ORDERED that the Clerk of the Court serve 2 copies of this Order and the Judgment herein on all parties or 3 their counsel. 4 5 6 7 DATED:September 30, 2014 8 9 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 37

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