Paul V. Contreras v. Carolyn W. Colvin

Filing 21

MEMORANDUM DECISION AND ORDER AFFIRMING COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner, DENYING Plaintiff's request for remand, and DISMISSING this action with prejudice. (See Order for details) (bem)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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PAUL V. CONTRERAS,
Plaintiff,

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v.

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NANCY A. BERRYHILL, Acting
Commissioner of Social
Security,

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Defendant.

) Case No. CV 16-6650-JPR
)
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) MEMORANDUM DECISION AND ORDER
) AFFIRMING COMMISSIONER
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I.

PROCEEDINGS

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Plaintiff seeks review of the Commissioner’s final decision

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denying his application for Social Security disability insurance

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benefits (“DIB”).

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the undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c).

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The matter is before the Court on the parties’ Joint Stipulation,

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filed April 18, 2017, which the Court has taken under submission

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without oral argument.

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Commissioner’s decision is affirmed.

The parties consented to the jurisdiction of

For the reasons stated below, the

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II.

BACKGROUND

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Plaintiff was born in 1965.

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148.)

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(Administrative Record (“AR”)

insurance agent (AR 54, 180).

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He graduated from high school (AR 32) and worked as an

On November 15, 2013, Plaintiff filed an application for

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DIB, alleging that he had been unable to work since August 21,

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2013, because of traumatic brain injury, memory loss, migraine

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headaches, blurred vision, dizzy spells, loss of balance, and

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injuries to his right arm, neck, back, knees, and feet.

(AR 59-

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60, 148-49.)

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reconsideration (AR 59-83), he requested a hearing before an

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Administrative Law Judge (AR 97).

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2015, at which Plaintiff, who was represented by counsel,

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testified, as did a vocational expert.

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decision issued May 29, 2015, the ALJ found Plaintiff not

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disabled.

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Appeals Council, and on July 7, 2016, it denied review.

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3.)

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III. STANDARD OF REVIEW

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After his application was denied initially and on

(AR 7-21.)

A hearing was held on April 1,

(AR 25-58.)

In a written

Plaintiff requested review from the
(AR 1-

This action followed.

Under 42 U.S.C. § 405(g), a district court may review the

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Commissioner’s decision to deny benefits.

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decision should be upheld if they are free of legal error and

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supported by substantial evidence based on the record as a whole.

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See id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra

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v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007).

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evidence means such evidence as a reasonable person might accept

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as adequate to support a conclusion.

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401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007).
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The ALJ’s findings and

Substantial

Richardson, 402 U.S. at

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It is more than a scintilla but less than a preponderance.

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Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec.

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Admin., 466 F.3d 880, 882 (9th Cir. 2006)).

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substantial evidence supports a finding, the reviewing court

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“must review the administrative record as a whole, weighing both

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the evidence that supports and the evidence that detracts from

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the Commissioner’s conclusion.”

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720 (9th Cir. 1996).

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either affirming or reversing,” the reviewing court “may not

To determine whether

Reddick v. Chater, 157 F.3d 715,

“If the evidence can reasonably support

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substitute its judgment” for the Commissioner’s.

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IV.

Id. at 720-21.

THE EVALUATION OF DISABILITY

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People are “disabled” for purposes of receiving Social

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Security benefits if they are unable to engage in any substantial

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gainful activity owing to a physical or mental impairment that is

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expected to result in death or has lasted, or is expected to

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last, for a continuous period of at least 12 months.

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§ 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir.

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1992).

42 U.S.C.

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A.

The Five-Step Evaluation Process

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The ALJ follows a five-step sequential evaluation process to

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assess whether a claimant is disabled.

20 C.F.R.

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§ 404.1520(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th

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Cir. 1996) (as amended).

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must determine whether the claimant is currently engaged in

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substantial gainful activity; if so, the claimant is not disabled

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and the claim must be denied.

In the first step, the Commissioner

§ 404.1520(a)(4)(i).

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If the claimant is not engaged in substantial gainful

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activity, the second step requires the Commissioner to determine
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whether the claimant has a “severe” impairment or combination of

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impairments significantly limiting his ability to do basic work

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activities; if not, the claimant is not disabled and his claim

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must be denied.

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§ 404.1520(a)(4)(ii).

If the claimant has a “severe” impairment or combination of

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impairments, the third step requires the Commissioner to

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determine whether the impairment or combination of impairments

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meets or equals an impairment in the Listing of Impairments set

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forth at 20 C.F.R. part 404, subpart P, appendix 1; if so,

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disability is conclusively presumed.

§ 404.1520(a)(4)(iii).

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If the claimant’s impairment or combination of impairments

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does not meet or equal an impairment in the Listing, the fourth

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step requires the Commissioner to determine whether the claimant

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has sufficient residual functional capacity (“RFC”)1 to perform

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his past work; if so, he is not disabled and the claim must be

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denied.

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proving he is unable to perform past relevant work.

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F.2d at 1257.

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case of disability is established.

§ 404.1520(a)(4)(iv).

The claimant has the burden of
Drouin, 966

If the claimant meets that burden, a prima facie
Id.

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If that happens or if the claimant has no past relevant

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work, the Commissioner then bears the burden of establishing that

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the claimant is not disabled because he can perform other

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substantial gainful work available in the national economy.

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§ 404.1520(a)(4)(v); Drouin, 966 F.2d at 1257.

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determination comprises the fifth and final step in the

That

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RFC is what a claimant can do despite existing exertional
and nonexertional limitations. § 404.1545; see Cooper v.
Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989).
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sequential analysis.

§ 404.1520(a)(4)(v); Lester, 81 F.3d at 828

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n.5; Drouin, 966 F.2d at 1257.

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B.

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At step one, the ALJ found that Plaintiff had not engaged in

The ALJ’s Application of the Five-Step Process

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substantial gainful activity since August 21, 2013, the alleged

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onset date.

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had the severe impairment of chronic headaches.2

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three, he determined that Plaintiff’s impairment did not meet or

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equal a listing.

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(AR 12.)

At step two, he concluded that Plaintiff
(Id.)

At step

(AR 16.)

At step four, the ALJ found that Plaintiff had the RFC to

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perform light work except that he “can sit, stand or walk for six

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hours out of an eight-hour workday; [he] can frequently climb and

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balance; [and he] can occasionally climb ladders, ropes or

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scaffolds, stoop, kneel, crouch or crawl.”

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VE’s testimony, the ALJ concluded that Plaintiff could perform

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his past relevant work as an insurance agent, both as he actually

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performed it and as it is generally performed in the regional and

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national economy.

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disabled.

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V.

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(AR 20.)

(Id.)

Based on the

Accordingly, he found Plaintiff not

(AR 21.)

DISCUSSION
Plaintiff argues that the ALJ erred in (1) assessing the

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credibility of his subjective symptom statements and (2)

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determining his RFC.

(See J. Stip. at 4-11.)3

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Plaintiff does not challenge the ALJ’s step-two findings,
specifically, his failure to find any of Plaintiff’s other
alleged impairments “severe.”
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Plaintiff purports to raise one issue, “[w]hether the
ALJ’s physical residual functional capacity assessment is
supported by substantial evidence” (J. Stip. at 4), but he also
appears to contest the ALJ’s credibility findings, which he
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A.

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3

The ALJ Properly Assessed the Credibility of
Plaintiff’s Subjective Symptom Statements

Plaintiff argues that the ALJ failed to articulate legally

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sufficient reasons for rejecting his subjective complaints.

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Stip. at 9- 11.)

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not err.

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1.

(J.

For the reasons discussed below, the ALJ did

Applicable law4

An ALJ’s assessment of the credibility of a claimant’s
allegations concerning the severity of his symptoms is entitled

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to “great weight.”

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Cir. 1989); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1986).

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“[T]he ALJ is not required to believe every allegation of

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disabling pain, or else disability benefits would be available

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for the asking, a result plainly contrary to 42 U.S.C.

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§ 423(d)(5)(A).”

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2012) (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)).

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See Weetman v. Sullivan, 877 F.2d 20, 22 (9th

Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir.

In evaluating a claimant’s subjective symptom testimony, the

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ALJ engages in a two-step analysis.

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at 1035-36.

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has presented objective medical evidence of an underlying

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impairment [that] could reasonably be expected to produce the

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pain or other symptoms alleged.”

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medical evidence exists, the ALJ may not reject a claimant’s

See Lingenfelter, 504 F.3d

“First, the ALJ must determine whether the claimant

Id. at 1036.

If such objective

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identifies as a “separate and distinct” issue (id. at 9-10).
Court addresses the issues separately.
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The

Social Security Ruling 16-3p, 2016 WL 1119029, effective
March 28, 2016, rescinded SSR 96-7p, 1996 WL 374186 (July 2,
1996), which provided the framework for assessing the credibility
of a claimant’s statements. SSR 16-3p was not in effect at the
time of the ALJ’s decision on May 29, 2015, however.
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testimony “simply because there is no showing that the impairment

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can reasonably produce the degree of symptom alleged.”

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Chater, 80 F.3d 1273, 1282 (9th Cir. 1996) (emphasis in

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original).

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Smolen v.

If the claimant meets the first test, the ALJ may discredit

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the claimant’s subjective symptom testimony only if he makes

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specific findings that support the conclusion.

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Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010).

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affirmative evidence of malingering, the ALJ must provide “clear

See Berry v.
Absent a finding or

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and convincing” reasons for rejecting the claimant’s testimony.

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Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (as

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amended); Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090,

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1102 (9th Cir. 2014).

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(1) ordinary techniques of credibility evaluation, such as the

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claimant’s reputation for lying, prior inconsistent statements,

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and other testimony by the claimant that appears less than

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candid; (2) unexplained or inadequately explained failure to seek

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treatment or to follow a prescribed course of treatment; (3) the

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claimant’s daily activities; (4) the claimant’s work record; and

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(5) testimony from physicians and third parties.

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Comm’r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015) (as

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amended); Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir.

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2002).

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substantial evidence in the record, the reviewing court “may not

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engage in second-guessing.”

The ALJ may consider, among other factors,

Rounds v.

If the ALJ’s credibility finding is supported by

Thomas, 278 F.3d at 959.

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2.

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Relevant background

In his function report dated December 19, 2013, Plaintiff

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stated that he suffered from “[h]eadaches, [d]izzyness [sic],

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[and] [b]lurred vision”; “bad” knees and feet and a “bad” neck

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and right arm; a traumatic brain injury; and an inability to

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concentrate or keep his balance.

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[Veterans Administration] Hospital almost everyday for P/T and

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[traumatic brain injury] stuff.”

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own food, clean his room, do laundry, drive a car, shop in stores

(AR 168.)

(AR 169.)

He went “to the

He could prepare his

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and by computer for food and clothing, and handle money.

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170-71.)

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appointments at the Long Beach VA medical center.

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hobbies, he watched television and built models, although “it

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take[s] about a month or longer” for him to build one.

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His impairments affected his ability to lift, squat, bend, stand,

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reach, walk, sit, kneel, climb stairs, remember, concentrate,

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understand, and follow instructions.

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how long he could walk before needing to rest, but when he did

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rest he needed 10 to 15 minutes before he could resume walking.

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(Id.)

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He indicated that a cane, “brace/splint,” and “glasses/contacts”

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had all been prescribed to him by a doctor, and that he used them

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“all the time.”

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(AR

He went outside “4 to 5 times a week” for his various

(AR 173.)

(AR 171.)

For

(AR 172.)

He did not know

He could concentrate for only “about 5 minutes.”

(Id.)

(AR 174.)

At the April 1, 2015 hearing, Plaintiff testified that he

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left his last two jobs — as an insurance agent in 2011 and

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temporary telemarketer in 2013 — because he was unable to

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concentrate.

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problems,” “migraines all the time,” “neck pain,” and “nerve

(AR 35.)

He testified that he had “balance

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damage” in his left arm; he had never had surgery — orthopedic or

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otherwise — and he took Vicodin and Naproxen for his pain.5

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36.)

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July 2015.

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shower because of his “balance issues.”

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not attending sessions at the VA, Plaintiff spent his day on his

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back, trying not to strain it.

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arm “in the 90’s,” before he started military service.

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45.)

(AR

He was scheduled to have an epidural shot in his back in
(AR 40.)

He had to hold onto a bar when he took a

(AR 42.)

(AR 41.)

When he was

He fractured his right
(AR 44-

He has had constant, debilitating headaches since he “left

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the military.”

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without pain, walk only 30 yards without having to take a break,

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and sit for only 15 to 20 minutes.

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that he had pain in the “three middle fingers on both hands,”

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rendering him unable to open a water bottle “on some days” and

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causing pain when he tried to type.

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that his doctor prescribed a cane “over a year” ago for his

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“balance issues.”

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headaches made him unable to “function properly” in the

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workplace.

(AR 46-47.)

(AR 51.)

He could lift only five pounds

(AR 47-49.)

(AR 49-50.)

He testified

He testified

He claimed that his anxiety and

(AR 52.)

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5

Vicodin is the brand name of a combination of
acetaminophen and hydrocodone. See Hydrocodone Combination
Products, Medline Plus, https://medlineplus.gov/druginfo/meds/
a601006.html (last updated Jan. 15, 2017); Naproxen is an NSAID
used to relieve pain, tenderness, swelling, and stiffness caused
by various types of arthritis. Naproxen, MedlinePlus, http://
www.nlm.nih.gov/medlineplus/druginfo/meds/a681029.html (last
updated July 15, 2016).
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3.

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Analysis

The ALJ found that Plaintiff’s “subjective complaints are

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less than fully credible” (AR 20) and that although his

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“medically determinable impairments could reasonably be expected

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to cause some of the alleged symptoms,” his “statements

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concerning the intensity, persistence and limiting effects” were

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not credible to the extent they were inconsistent with his RFC

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(AR 19).

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Plaintiff argues that the ALJ failed to give sufficient

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reasons for rejecting his subjective complaints.6

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9.)

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Plaintiff’s subjective complaints of decreased physical

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functioning: he limited him to “no more than occasional climbing

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ladders, ropes[,] or scaffolds, stooping, kneeling, crawling[,]

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or crouching.”

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extent the ALJ rejected Plaintiff’s subjective complaints of

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physical impairment, however, he provided clear and convincing

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reasons for doing so.

(J. Stip. at

As an initial matter, the ALJ afforded some weight to

(AR 20; see AR 16.)

As discussed below, to the

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First, the ALJ found that some of Plaintiff’s activities of

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daily living were “the same as those necessary for obtaining and

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maintaining employment” and were “inconsistent with the presence

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of an incapacitating or debilitating condition.”

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Plaintiff stated that he was able to prepare his own food, clean

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his room, do his own laundry, drive a car, shop in stores and on

(AR 18.)

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6

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Plaintiff objects to the ALJ’s credibility assessment only
as to his alleged physical impairments; he does not contest any
credibility assessment related to mental symptoms. (See J. Stip.
at 9-11.)
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the Internet for food and clothing, build models, and handle

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money.

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his various VA appointments (AR 171) and reported that he was

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attending computer classes three days a week (AR 287).

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“reasonably normal” daily tasks of keeping a space clean,

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attending appointments daily, handling money, attending school,

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and preparing simple meals are inconsistent with Plaintiff’s

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allegation that he is unable to “function properly.”

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Amezquita v. Colvin, No. CV 15-0188-KES, 2016 WL 1715163, at *7

(AR 170-72.)

He went outside “4 to 5 times a week” for

The

See, e.g.,

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(C.D. Cal. Apr. 28, 2016) (“That Plaintiff maintained a

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reasonably normal level of daily activities was a clear and

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convincing reason to discount his credibility, even if his

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impairments made those activities somewhat more challenging.”).

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An ALJ may properly discount the credibility of a plaintiff’s

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subjective symptom statements when they are inconsistent with his

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daily activities.

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discredit claimant’s testimony when “claimant engages in daily

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activities inconsistent with the alleged symptoms” (citing

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Lingenfelter, 504 F.3d at 1040)).

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activities suggest some difficulty functioning, they may be

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grounds for discrediting the claimant’s testimony to the extent

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that they contradict claims of a totally debilitating

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impairment.”

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See Molina, 674 F.3d at 1112 (ALJ may

“Even where those [daily]

Id. at 1113.

Second, the ALJ noted that Plaintiff received “grossly

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conservative treatment” and that his “medical records” showed

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“minimal positive objective findings, including negative

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diagnostic imaging” and “negative neurological examinations.”

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(AR 18.)

Indeed, as discussed in Section V.B., doctors and
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medical staff consistently recommended conservative treatment for

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Plaintiff’s allegations of pain, and his medical records are rife

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with normal or negative imaging and test results.

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valid consideration in rejecting Plaintiff’s subjective claims of

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more debilitating impairments.

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676, 681 (9th Cir. 2005) (“Although lack of medical evidence

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cannot form the sole basis for discounting pain testimony, it is

8

a factor that the ALJ can consider in his credibility

9

analysis.”); Parra, 481 F.3d at 751 (conservative treatment is

This was a

See Burch v. Barnhart, 400 F.3d

10

legitimate reason for ALJ to discredit claimant’s allegations of

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disability); Walter v. Astrue, No. EDCV 09-1569 AGR, 2011 WL

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1326529, at *3 (C.D. Cal. Apr. 6, 2011) (medication, physical

13

therapy, and single injection amounted to “conservative

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treatment”).

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Finally, the ALJ noted that according to Plaintiff his

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debilitating conditions began in the 1990s, but he was able to

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work as an insurance agent until 2011.

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hearing, the ALJ noted that Plaintiff was apparently able to work

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“for 20, 25 years” even though he had suffered from debilitating

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chronic headaches “ever since [he] left the military.”

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Plaintiff confirmed that he had “always had a constant headache.”

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(Id.)

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low-back pain since 1994 (AR 40); broken his right arm before he

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started his military service, reinjured it during service, and

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had had no injuries to it since then (AR 44-45); had pain in his

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feet “since the military” (AR 48-49); and had had bilateral knee

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pain since 1992 (AR 51-52).

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Plaintiff’s subjective statements demonstrates that those

(AR 17-19, 54.)

At the

(AR 47.)

Further, Plaintiff acknowledged that he had suffered from

Nothing in the record other than

12

1

conditions had worsened significantly since he stopped working.

2

The ALJ properly took into consideration the fact that Plaintiff

3

was apparently able to work for many years while suffering from

4

the same impairments he now alleges make him incapable of work.

5

See Alexander v. Comm’r of Soc. Sec., 373 F. App’x 741, 744 (9th

6

Cir. 2010) (in discrediting allegations of disabling symptoms,

7

ALJ properly considered claimant’s ability to work after

8

fibromyalgia diagnosis but seven years before alleged onset

9

date).

10

In sum, the ALJ provided clear and convincing reasons for

11

finding Plaintiff’s subjective symptom allegations not credible.

12

Because those findings were supported by substantial evidence,

13

this Court may not engage in second-guessing.

14

F.3d at 959.

15

B.

16

Plaintiff contends that the ALJ erred in relying on the

See Thomas, 278

Plaintiff is not entitled to remand on this ground.

The ALJ Properly Determined Plaintiff’s RFC

17

opinions of state-agency doctors E. Christian and L.C. Chiang in

18

finding that he was physically capable of modified light work

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because “[t]he medical evidence as a whole” demonstrated that he

20

was not.

21

erred in relying on the state-agency doctors because they failed

22

to account for his “need to ambulate with a cane”; his “lumbar

23

spine condition,” which “has impacted his ability to engage in

24

sitting activities”; “any cervical spine restrictions”; and “the

25

frequency and duration of rest breaks required as a result of

26

[his] chronic headaches.”

27

below, remand is not warranted.

(J. Stip. at 5.)

Plaintiff further argues that the ALJ

(Id. at 8.)

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13

For the reasons discussed

1
2

1.

Applicable law

A claimant’s RFC is “the most [he] can still do” despite the

3

impairments and related symptoms that “may cause physical and

4

mental limitations that affect what [he] can do in a work

5

setting.”

6

ALJ’s RFC assessment when the ALJ has applied the proper legal

7

standard and substantial evidence in the record as a whole

8

supports the decision.

9

(9th Cir. 2005).

§ 404.1545(a)(1).

A district court must uphold an

Bayliss v. Barnhart, 427 F.3d 1211, 1217

The ALJ must consider all the medical opinions

10

“together with the rest of the relevant evidence [on record].”

11

§ 404.1527(b);7 see also § 404.1545(a)(1) (“We will assess your

12

residual functional capacity based on all the relevant evidence

13

in your case record.”).

14

Three types of physicians may offer opinions in Social

15

Security cases: (1) those who directly treated the plaintiff, (2)

16

those who examined but did not treat the plaintiff, and (3) those

17

who did neither.

18

opinion is generally entitled to more weight than an examining

Lester, 81 F.3d at 830.

A treating physician’s

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20
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22
23
24
25
26
27
28

7

Social Security regulations regarding the evaluation of
opinion evidence were amended effective March 27, 2017. When, as
here, the ALJ’s decision is the final decision of the
Commissioner, the reviewing court generally applies the law in
effect at the time of the ALJ’s decision. See Lowry v. Astrue,
474 F. App’x 801, 805 n.2 (2d Cir. 2012) (applying version of
regulation in effect at time of ALJ’s decision despite subsequent
amendment); Garrett ex rel. Moore v. Barnhart, 366 F.3d 643, 647
(8th Cir. 2004) (“We apply the rules that were in effect at the
time the Commissioner’s decision became final.”); Spencer v.
Colvin, No. 3:15-CV-05925-DWC, 2016 WL 7046848, at *9 n.4 (W.D.
Wash. Dec. 1, 2016) (“42 U.S.C. § 405 does not contain any
express authorization from Congress allowing the Commissioner to
engage in retroactive rulemaking”). Accordingly, citations to 20
C.F.R. § 404.1527 are to the version in effect from August 24,
2012, to March 26, 2017.
14

1

physician’s, and an examining physician’s opinion is generally

2

entitled to more weight than a nonexamining physician’s.

3

see § 404.1527(c)(1).

Id.;

4

This is so because treating physicians are employed to cure

5

and have a greater opportunity to know and observe the claimant.

6

Smolen, 80 F.3d at 1285.

7

nonexamining physician can amount to substantial evidence, so

8

long as other evidence in the record supports those findings.”

9

Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996) (per curiam).

10

But “the findings of a nontreating,

In making an RFC determination, the ALJ should consider

11

those limitations supported by the record and need not take into

12

account properly rejected evidence or subjective complaints.

13

Bayliss, 427 F.3d at 1217 (upholding ALJ’s RFC determination

14

because “the ALJ took into account those limitations for which

15

there was record support that did not depend on [claimant]’s

16

subjective complaints”); Batson v. Comm’r of Soc. Sec. Admin.,

17

359 F.3d 1190, 1197 (9th Cir. 2004) (ALJ not required to

18

incorporate into RFC those findings from physician opinions that

19

were “permissibly discounted”).

20

state-agency medical consultants and experts as opinion evidence.

21

§ 404.1527(e).

22

context of “the entire record as a whole,” and if the “‘evidence

23

is susceptible to more than one rational interpretation,’ the

24

ALJ’s decision should be upheld.”

25

528 F.3d 1194, 1198 (9th Cir. 2008) (citation omitted).

26

See

The ALJ considers findings by

The Court must consider the ALJ’s decision in the

Ryan v. Comm’r of Soc. Sec.,

“To find that a hand-held assistive device is medically

27

required, there must be medical documentation establishing the

28

need for a hand-held assistive device to aid in walking or
15

1

standing, and describing the circumstances for which it is

2

needed.”

3

Durfee v. Berryhill, C.A. No. 16-079M, 2017 WL 877272, at *5

4

(D.R.I. Feb. 15, 2017) (“a cane should not be woven into the RFC

5

or the VE hypothetical just because a claimant prefers to use it

6

or finds it helpful”), accepted by 2017 WL 875825 (D.R.I. Mar. 3,

7

2017).

8

‘significantly erode’ the occupational base for an individual who

9

must use such a device.”

SSR 96-9p, 1996 WL 374185, at *7 (July 2, 1996); see

Use of a cane, when medically required, “may

Cano v. Colvin, No. CV 14-4397-E, 2015

10

WL 10945616, at *4 (C.D. Cal. Jan. 26, 2015) (citing SSR 96-9p,

11

1996 WL 374185, at *7).

12

ability to perform light work, but it is less likely to preclude

13

sedentary work.

14

WL 2912655, at *4 n.5 (C.D. Cal. Sept. 8, 2009) (even when

15

medically required, use of cane does not preclude sedentary

16

work); White v. Astrue, No. 09 C 6612, 2011 WL 5373971, at *8

17

(N.D. Ill. Nov. 7, 2011) (discussing vocational expert’s opinion

18

that cane use in dominant hand precluded jobs “at the light

19

level”).

20

327794, at *7 (C.D. Cal. Jan. 29, 2013) (discussing vocational

21

expert’s testimony that adding requirement for cane “whenever

22

standing or walking” would not preclude performance of light-work

23

job).

24
25

Use of a cane may limit a claimant’s

See Harris v. Astrue, No. CV 08–2726 AJW, 2009

But see Alsyouf v. Astrue, No. EDCV 11–1867 SS, 2013 WL

2.

Relevant background

Between June 2013 and March 2015, with the exception of a

26

trip to Vietnam from September to December 2014, Plaintiff

27

visited the Long Beach VA medical center regularly, sometimes

28
16

1

four times a week, for kinesiotherapy,8 physical therapy, group

2

and individual psychotherapy, occupational therapy, psychiatry,

3

tai chi, and various other group-therapy sessions.

4

During his initial “physical medicine rehab consult,” on

5

August 6, 2013, Plaintiff complained of “neck pain, ankle pain,

6

and foot [pain]” and reported pain in his “lower back” and

7

“frequent loss of balance.”

8

ray of Plaintiff’s cervical spine from June 25, 2013 (AR 386),

9

the doctor discussed with him “the possible role of [alcohol]” in

(AR 385-86.)

After reviewing an x-

10

his history of falling (AR 387) and recommended physical-therapy

11

sessions two or three times a week, use of ice and heat, a home

12

exercise program, use of a TENS unit, and a trial of cervical

13

traction therapy (AR 388).

14

balance issues” and was referred to a kinesiotherapist.

15

388.)

16

issues,” he was issued one.

17

assessment on August 28, 2013, the therapist noted that Plaintiff

18

“uses a [single-point cane] for safety after having fallen down

19

the stairs,” but she did not find that Plaintiff had a medical

20

need for a cane, instead noting that his “Ambulatory/Prosthetic

21

Equipment Needs” were “tba”; the plan for physical therapy was

22

that he “[r]eturn to community distance ambulation with or

23

without” an assistive device.

24
25

Plaintiff requested “a cane for
(AR

Although “[h]e did not display any signs of balance
(AR 384-85.)

In a physical-therapy

(AR 374-76.)

In a September 25, 2013 consultation to assess a possible
traumatic brain injury, Plaintiff alleged that he had been “hit

26
27
28

8

Kinesitherapy, or kinesiotherapy, is physical therapy
involving motion and range-of-motion exercises. Stedman’s
Medical Dictionary 950 (27th ed. 2000).
17

1

in the head by a rucksack weighing about 65 pounds” during an

2

army training exercise in 1992.

3

military duty after the incident but “started having balance

4

problems and headaches.”

5

since the incident.

6

his balance and fell”; he fell again in 2013, “with head trauma”

7

but “no change.”

8

obvious gait abnormality . . . while walking at a normal pace

9

with appropriate arm swing, appropriate heel strike”; he was

(AR 356.)

(AR 355.)

(Id.)

(AR 355-56.)

He remained on

He has had chronic headaches

He reported that in 1998 he “lost

A physical examination revealed “[n]o

10

“[a]ble to ambulate on toes and heels.”

11

test was negative.9

(Id.)

(AR 358.)

No cane was mentioned.

A Romberg
(Id.)

12

Plaintiff had an audiology consultation on October 11, 2013;

13

he complained of “gradual hearing loss in both ears” (AR 333) but

14

was found to have “[e]ssentially normal hearing sensitivity” with

15

“normal” hearing “through the speech frequencies” (AR 334).

16

During an occupational-therapy session on October 16, 2013,

17

Plaintiff reported that he had “just purchased a bicycle and has

18

gone for a test drive” (AR 330-31); at his next appointment, on

19

October 28, he reported that he “was counseled by Physical

20

Therapy to avoid riding it due to balance issues” (AR 317-18).

21

The occupational therapist recommended that he increase his daily

22

walking; Plaintiff “stated that he would agree to this goal, but

23

that probably he would not meet the goal because he didn’t feel

24

like it.”

25

consultation, Plaintiff reported that he was attending “computer

(AR 320.)

In a November 7, 2013 speech-pathology

26
27
28

9

In a Romberg test, the subject stands “with feet
approximated . . . [and] with eyes open and then closed.”
Stedman’s, supra, at 1640. “[I]f closing the eyes increases the
[subject’s] unsteadiness, . . . the sign is positive.” Id.
18

1

classes” three times a week but had difficulty with his memory.

2

(AR 287.)

3

on December 24, 2013, Plaintiff’s results were “consistent with

4

normal VNG findings.”10

5

In a series of tests during an audiology consultation

(AR 568-69.)

Plaintiff began psychotherapy group sessions in December

6

2013 (AR 246-47) and started individual psychotherapy sessions in

7

January 2014 (AR 541-49), which he continued until July 2014,

8

when he “reported an improvement in his mood and ability to

9

function more effectively” (AR 789).

He responded well to heat

10

therapy and stretching during his physical-therapy sessions (see,

11

e.g., AR 244, 245-46, 255-56, 275-76, 285-86, 304-05, 313, 317)

12

but was noted to be noncompliant with his home exercise program

13

(see, e.g., AR 260, 490, 512).

14

were focused on relaxation and breathing techniques, and he was

15

advised to exercise and increase his activity level.

16

238-41, 263-66, 272-75, 661-63, 688-90.)

17

participant in his weekly hour-long tai chi classes.

18

AR 237, 244, 285, 467, 474, 484, 491, 508, 522, 554, 565, 634,

19

641, 644, 664, 668, 718, 735, 759, 856.)

20

regular kinesiotherapy sessions in March 2014 (AR 494-97), which

21

continued until June 2014 (AR 805-07).

22

appointments with a psychiatrist (see, e.g., AR 248, 294-95, 471-

23

72, 566-67, 659-60) and attended group-therapy classes on a

24

variety of topics, including chronic-pain management (see, e.g.,

His occupational-therapy sessions

(See AR

He was an active
(See, e.g.,

Plaintiff started

He had regular

25
10

26
27
28

Videonystagmography, or VNG, is a test used to determine
whether an ear disease may be causing a balance or dizziness
problem. Nat’l Dizzy & Balance Center, Videonystagmography,
http://www.nationaldizzyandbalancecenter.com/services/
balance-lab-testing/videonystagmography/ (last visited June 20,
2017).
19

1

AR 628, 640, 646, 667), “thoughts, feelings, and behavior” (AR

2

740), insomnia (AR 631), sleep (AR 651), anxiety and depression

3

(AR 639), diabetes (AR 451), and tinnitus management (AR 629).

4

He attended “integrative health and healing” sessions — which

5

involved “healing touch,” “aromatherapy,” breathing and

6

relaxation exercises, and music therapy — and he reported that

7

they were effective.

(See, e.g., AR 455, 766, 783, 808-09.)

8

Although he was observed to use a single-point cane for

9

balance at many of his visits to the VA (see, e.g., AR 270, 314,

10

349, 354, 370, 459, 637, 649), no doctor or medical staff

11

actually opined that he had a medical need for it, and he did not

12

always use it for ambulation (see AR 358 (Sept. 25, 2013:

13

observed “walking at a normal pace with appropriate arm swing,

14

appropriate heel strike” and “[n]o obvious gait abnormality”),

15

682 (Jan 8, 2015: “[g]ait steady, able to move all extremities,

16

left wrist in brace” but no cane mentioned)).

17

kinesiotherapy discharge session in June 2014, he had “good

18

mobility” for up to 20 seconds “without a gait aid” but

19

“require[d] a gait aid” for ambulation over 30 seconds (AR 805);

20

the kinesiotherapist noted that he “was unable to tolerate all

21

exercises toward the end of his treatment sessions due to

22

dizziness” (id.) and found that he had “good” balance when

23

sitting and “fair” balance when standing (AR 806).

24

who is right-handed (AR 173), was observed to hold the cane in

25

his left, nondominant hand (AR 637, 649).

26

At his

Plaintiff,

In a neurology clinic appointment on February 19, 2015, it

27

was noted that Plaintiff’s “[c]hronic daily” headaches were

28

“transformed by [his] analgesic overuse,” he had “never titrated
20

1

up” his analgesic medication as he was instructed to do,11 and he

2

had been without his medication for a month.

(AR 635-38.)

3

Other than a May 2014 abnormal ultrasound and an October

4

2013 MRI of his spine that both revealed spleen “lesions most

5

likely represent[ing] benign hemangiomas” (AR 292, 317, 411-12,

6

874), Plaintiff’s imaging results were generally normal or

7

unremarkable for his age (see, e.g., AR 408-09 (Nov. 14, 2013,

8

normal CT scan of head), 412-13 (Oct. 25, 2013, “unremarkable MRI

9

of the brain”), 416 (Oct. 11, 2013, unremarkable CT scan of

10

head), 417 (Sept. 25, 2013, wrist x-ray showing “no displaced

11

fracture or bone destruction” or “significant arthritis”), 363-64

12

(discussing Aug. 2013 x-rays of knees, feet, and spine, noting

13

“minimal,” “mild to moderate,” and “unremarkable” impressions),

14

417-18 (Aug. 28, 2013, foot x-ray showing “[n]o acute fracture

15

lines, dislocations[,] or bone erosions,” with “mild”

16

degenerative joint disease), 418 (Aug. 28, 2013, right-foot x-ray

17

showing “mild” degenerative joint disease and “unremarkable” bone

18

mineralization, no “acute fracture lines, dislocations[,] or

19

joint effusions”), 418-19 (Aug. 6, 2013, lumbar-spine x-ray

20

showing “mild to moderate discogenic and degenerative changes”),

21

419-20 (Aug. 6, 2013, knee x-ray showing “[m]inimal early

22

degenerative changes . . . not out of proportion for patient’s

23
11

24
25
26
27
28

To “titrate” means to analyze volumetrically by a
solution (the titrant) of known strength to an end point.
Stedman’s, supra, at 1839. In the medication context, dosage is
“titrated up” to the recommended final dose according to a
schedule, with the patient taking a progressively higher dose of
the medication and the doctor adjusting the dose as indicated by
the outcome of the titration. See Topamax Prescribing
Information, at 4-5, www/topamax.com/files/topamax.pdf (last
visited June 26, 2017) (showing recommended titration schedule
for Topamax when used to treat migraines).
21

1

age”), 420-21 (same), 421 (June 28, 2013, foot x-ray showing

2

“evidence for mild degree of hallux valgus” but “no evidence for

3

acute recent fracture or dislocation”), 421-22 (June 28, 2013, x-

4

ray of ankle showing “soft tissue swelling” but “no evidence for

5

fracture or dislocation”), 422 (June 25, 2013, cervical spine x-

6

ray showing “degenerative changes” but no fracture)).

7

Plaintiff’s imaging results were consistently interpreted to

8

warrant only conservative treatment.

9

(discussing Nov. 14, 2013 CT findings and recommending continuing

(See, e.g., AR 270-71

10

physical therapy), 241-42 (discussing Oct. 11, 2013 cervical-

11

spine CT and recommending home exercise and rehabilitation), 254-

12

55 (discussing Oct. 11, 2013 cervical-spine CT and recommending

13

physical therapy), 259-60 (same), 328-29 (discussing Oct. 11,

14

2013 cervical-spine CT and recommending physical therapy, home

15

exercise, “hot/cold pack,” TENS unit, and traction therapy).)

16

In a July 25, 2014 physical-therapy session, it was noted

17

that a “lesi” consultation was “pending” (AR 775), which

18

apparently is a “lumbar epidural steroid injection” (J. Stip. at

19

7), but Plaintiff had not had any pain injections as of the April

20

1, 2015 hearing (AR 40).

21

On February 10, 2014, state-agency medical consultant Dr. E.

22

Christian12 completed the physical portion of the disability

23

determination for Plaintiff’s DIB claim.

24

After reviewing the medical evidence, which included Plaintiff’s

(AR 62-64, 67-70.)

25
26
27
28

12

Dr. Christian’s signature line includes a medicalconsultant code of “19,” indicating “[i]nternal [m]edicine” (AR
74); see Program Operations Manual System (POMS) DI 24501.004,
U.S. Soc. Sec. Admin. (May 5, 2015), https://secure.ssa.gov/
poms.nsf/lnx/0424501004.
22

1

medical records through December 2013, Dr. Christian found that

2

Plaintiff would be able to “lift and/or carry” 20 pounds

3

occasionally and 10 pounds frequently, “stand and/or walk” about

4

six hours in an eight-hour workday, and sit about six hours in an

5

eight-hour workday.

6

had no limitations pushing and pulling; could frequently balance

7

and climb ramps and stairs; could occasionally climb ladders,

8

ropes, and scaffolds; and could occasionally stoop, kneel,

9

crouch, and crawl.

10

(AR 67.)

Dr. Christian found that Plaintiff

(AR 67-68.)

On May 8, 2014, state-agency medical consultant Dr. L.C.

11

Chiang, a specialist in internal medicine, completed the physical

12

portion of the disability determination for Plaintiff’s DIB claim

13

on reconsideration.

14

considered additional evidence from Plaintiff’s 2014 VA medical

15

records.

16

assessment of Plaintiff’s limitations.

17

Christian and Dr. Chiang noted that Plaintiff had been observed

18

to ambulate with a single-point cane.

19
20

(AR 76.)

3.

(AR 73-75, 78-80, 83.)

Dr. Chiang

Dr. Chiang agreed with Dr. Christian’s
(AR 79.)

Both Dr.

(AR 61, 76.)

Analysis

Plaintiff argues that the ALJ erred in relying on the

21

opinions of the state-agency doctors.

22

The ALJ found that Plaintiff could perform light work with six

23

hours of standing, sitting, or walking each day and some postural

24

limitations.

25

impairments, he gave “great weight” to the opinions of Drs.

26

Christian and Chiang.

27

[Plaintiff]’s subjective complaints of back and knee pain” and,

28

without finding those impairments to be severe, included postural

(AR 16.)

(See J. Stip. at 4-5.)

In assessing Plaintiff’s physical

(AR 19.)

He “also generously considered

23

1
2

limitations in Plaintiff’s RFC to account for them.

(AR 19-20.)

The opinions of Drs. Christian and Chiang were substantial

3

evidence supporting the ALJ’s RFC assessment because those

4

opinions were consistent with each other and with the medical

5

evidence.

6

Cir. 2001) (although “opinion of a non-examining medical expert

7

does not alone constitute a specific, legitimate reason for

8

rejecting a treating or examining physician’s opinion, it may

9

constitute substantial evidence when it is consistent with other

See Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th

10

independent evidence in the record”); Andrews v. Shalala, 53 F.3d

11

1035, 1041 (9th Cir. 1995) (“reports of the nonexamining advisor

12

need not be discounted and may serve as substantial evidence when

13

they are supported by other evidence in the record and are

14

consistent with it”).

15

As an initial matter, Plaintiff fails to identify an opinion

16

by a treating or examining physician that contradicts the state-

17

agency doctors’ opinions or the ALJ’s RFC assessment.

18

mainly cites his own subjective complaints (see, e.g., J. Stip.

19

at 5 (citing Plaintiff’s subjective reports of low-back, knee,

20

right-ankle, foot, and neck pain), 6-7 (citing Plaintiff’s

21

subjective reports that he spent “a lot of time in bed with

22

minimum physical activity,” was not able to complete his home

23

exercise program, suffered from daily migraine headaches, had

24

difficulty with his school work, could not ride a bike because of

25

balance issues, had a “pain level” of “8 out of 10,” had

26

difficulty sleeping because of his pain, had “bad days with his

27

low back”)), but as discussed in more detail in Section V.A., the

28

ALJ properly discounted the credibility of Plaintiff’s subjective
24

Plaintiff

1

symptom complaints.

2

evidence or subjective complaints into an RFC assessment.

3

Bayliss, 427 F.3d at 1217.

4

The ALJ need not factor properly rejected
See

Plaintiff also points to diagnostic imaging results to

5

support his argument (see J. Stip. at 5 (discussing CT and MRI of

6

cervical spine), 6 (discussing MRI of lumbar spine), 7

7

(discussing x-rays of feet)), but as the ALJ noted (AR 15-16,

8

18), his imaging results were generally normal or unremarkable

9

for his age (see AR 408-09, 412-13, 417-22) and were consistently

10

interpreted by the doctors and medical staff to warrant only

11

conservative treatment (see AR 241-42, 254-55, 259-60, 270-71,

12

328-29, 363-64).

13

“degenerative changes” in his spine (J. Stip. at 5-6), which the

14

ALJ clearly considered by accurately describing those test

15

results as showing “minimal early degenerative changes” and “mild

16

to moderate discogenic and degenerative changes” (see, e.g., AR

17

15-16).

18

conservative treatment can be substantial evidence supporting an

19

ALJ’s RFC assessment.13

20

5:15-CV-02602 (VEB), 2016 WL 6768902, at *4 (C.D. Cal. Nov. 11,

21

2016) (substantial evidence supported ALJ’s RFC finding when he

22

“provided a detailed discussion of the clinical findings and

23

diagnostic imaging[,] . . . all of which were within normal

24

limits,” and “noted that Plaintiff received conservative

Indeed, Plaintiff cites evidence of

Substantially normal diagnostic imaging results and

See Villarreal v. Colvin, No.

25
26
27
28

13

“Nearly everyone experiences some disc degeneration after
age 40.” Degenerative Back Conditions, Cleveland Clinic, http://
my.clevelandclinic.org/services/orthopaedics-rheumatology/
diseases-conditions/degenerative-back-conditions (last visited
June 26, 2017).
25

1
2

treatment”); see also Walter, 2011 WL 1326529, at *3.
Plaintiff argues that the ALJ erred in failing to

3

incorporate his “use of a cane” into his RFC.

4

But Plaintiff himself requested the cane; no doctor opined that

5

he actually needed one.

6

record does not contain any “medical documentation establishing

7

the need for a hand-held assistive device to aid in walking or

8

standing, [or] describing the circumstances for which it is

9

needed.”

(J. Stip. at 8.)

(See AR 388, 384-85.)

See SSR 96-9p, 1996 WL 374185, at *7.

Indeed, the

Plaintiff

10

requested the cane (AR 388) and was issued one even though “[h]e

11

did not display any signs of balance issues” (AR 384-85).

12

August 28, 2013, Plaintiff’s physical therapist noted that his

13

“Ambulatory/Prosthetic Equipment Needs” were “tba” and that the

14

plan for physical therapy was that he “[r]eturn to community

15

distance ambulation with or without” an assistive device.

16

374-76.)

17

walking because he “didn’t feel like it.”

18

Plaintiff apparently did not always use a cane for ambulation.

19

(See AR 358 (Sept. 25, 2013, observed “walking at a normal pace

20

with appropriate arm swing, appropriate heel strike,” and “[n]o

21

obvious gait abnormality”), 682 (Jan. 8, 2015, “[g]ait steady,

22

able to move all extremities, left wrist in brace” but no cane

23

mentioned).)

24

to use a cane and various observations that he used one, which is

25

not sufficient to support incorporating a cane into his RFC.

26

Durfee, 2017 WL 877272, at *5.14

On

(AR

Plaintiff didn’t follow instructions to increase his
(AR 320.) And

The record reflects Plaintiff’s subjective desire

See

27
28

14

Even if the ALJ erred in failing to include Plaintiff’s
use of a cane into his RFC, any error was likely harmless. At
26

1

Plaintiff further argues that the ALJ erred in failing to

2

mention his “lumbar spine condition,” “cervical spine”

3

restrictions, or “the frequency and duration of rest breaks

4

required as a result of [his] chronic headaches.”

5

8.)

6

strain” and “osteoarthritis of the knee” but found that those

7

impairments “cause[d] only a slight abnormality that would have

8

no more than a minimal effect on his ability to work.”

9

In making that finding, the ALJ reviewed the diagnostic imaging

(J. Stip. at

The ALJ considered Plaintiff’s allegations of “lumbar

(AR 15.)

10

and other medical records and found that “[n]o aggressive

11

treatment was recommended or anticipated” for those conditions.

12

(AR 15-16.)

13

agency doctors’ findings that Plaintiff did not suffer from

14

severe lumbar- or cervical-spine impairments, or that he would

15

require rest breaks as a result of his headaches.

The record is consistent with the ALJ’s and state-

Indeed,

16
17

27

the hearing, the VE classified Plaintiff’s past work as that of
an insurance agent, DOT 250.257-010, 1991 WL 672355, a light-work
job that was “sedentary exertional as performed” by Plaintiff.
(AR 54.) Plaintiff does not contest the VE’s classification of
his past relevant work or his or the ALJ’s finding that Plaintiff
performed the job at the sedentary level. Even when medically
required, use of a cane does not preclude sedentary work. See
Harris, 2009 WL 2912655, at *4 n.5. Plaintiff alleged that he
needed a cane for “balance issues” (AR 51), which he has had
since at least 1998 (AR 322). And although he now apparently
uses a cane, he is right-handed and holds his cane in his left
hand. (AR 637, 649.) Because Plaintiff was able to perform the
work of an insurance agent in a sedentary manner in 1998 when his
balance problems began and continued to work in that job until
2011 (see AR 180), it would be reasonable to conclude that he
could perform the work even needing a cane, especially because
the cane was held in his nondominant hand. See White, 2011 WL
5373971, at *8 (discussing vocational expert’s opinion that cane
use in dominant hand precluded certain jobs).

28

27

18
19
20
21
22
23
24
25
26

1

Plaintiff does not identify any medical opinion finding that he

2

had a severe “lumbar spine condition” that “has impacted his

3

ability to engage in sitting activities,” he suffered from a

4

severe cervical-spine impairment, or his headaches would require

5

that he take frequent breaks (J. Stip. at 8), and the Court’s

6

review of the medical record does not reveal any.

7

Plaintiff has not directly challenged the ALJ’s step-two finding

8

that any such impairments were not severe.

9

into account properly rejected evidence or allegations that have

10
11

no support in the record.

Moreover,

The ALJ need not take

See Bayliss, 427 F.3d at 1217.

Finally, Plaintiff argues that because Drs. Christian and

12

Chiang reviewed his medical records only through April 17, 2014,

13

their opinions have “less probative value.”

14

But Plaintiff fails to identify any medical record from after

15

that date that contradicts the ALJ’s RFC findings.

16

Plaintiff’s more recent medical records do not reflect a

17

“progression” of Plaintiff’s physical impairments, as he

18

suggests.

19

four-month break for a trip to Vietnam, Plaintiff continued to

20

visit the VA for his regular kinesiotherapy, physical-therapy,

21

psychology, tai chi, and various group-therapy sessions.

22

generally AR 628-862.)

23

steady gait and no cane (AR 682); he continued with physical

24

therapy and was advised to exercise, sleep, and use a heating pad

25

(AR 690).

26

February 2015 but that he had been without one of his medications

(Id.)

Indeed,

Between April 2014 and March 2015, except for a

(See

In January 2015, he presented with a

He reported that “things [were] going well” in

27
28

(J. Stip. at 8.)

28

1

for a month (AR 648); it was noted that his noncompliance with

2

medication instructions was a likely cause of his aggravated

3

headaches (AR 638).

4

finding that Plaintiff’s conditions were progressively getting

5

worse or had in fact become disabling.

6

Thus, the medical records do not support a

The findings of the state-agency doctors are not

7

contradicted by the medical record; in fact, the record supports

8

them.

9

in support of the ALJ’s RFC assessment, and Plaintiff is not

Accordingly, those opinions amount to substantial evidence

10

entitled to remand on this ground.

11

VI.

12

See Saelee, 94 F.3d at 522.

CONCLUSION
Consistent with the foregoing and under sentence four of 42

13

U.S.C. § 405(g),15 IT IS ORDERED that judgment be entered

14

AFFIRMING the decision of the Commissioner, DENYING Plaintiff’s

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request for remand, and DISMISSING this action with prejudice.

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DATED: June 28, 2017

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______________________________
JEAN ROSENBLUTH
U.S. Magistrate Judge

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That 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.”

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