Luis Salazar v. Commissioner Social Security

Filing 24

MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that Judgment be entered AFFIRMING the decision of the Commissioner. The Clerk of the Court shall serve copies of this Order and the Judgment on counsel for both parties. (See document for further details). (mr)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 LUIS SALAZAR, 12 Case No. CV 16-6721 (SS) Plaintiff, 13 v. 14 NANCY A. BERRYHILL,1 Acting Commissioner of Social Security, 15 16 MEMORANDUM DECISION AND ORDER Defendant. 17 18 I. 19 INTRODUCTION 20 21 Luis Salazar (“Plaintiff”) brings this action seeking to 22 overturn the decision of the Commissioner of the Social Security 23 Administration 24 application for Supplemental Security Income (“SSI”) benefits. The 25 parties 26 27 28 (the consented, “Commissioner” pursuant to 28 or “Agency”) U.S.C. § denying 636(c), to his the Nancy A. Berryhill is now the Acting Commissioner of Social Security and is substituted for Acting Commissioner Carolyn W. Colvin in this case. See 42 U.S.C. § 405(g); Fed. R. Civ. P. 25(d). 1 1 jurisdiction of the undersigned United States Magistrate Judge. 2 (Dkt. Nos. 11, 12). For the reasons stated below, the Court AFFIRMS 3 the Commissioner’s decision. 4 5 II. 6 PROCEDURAL HISTORY 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Plaintiff filed an application for SSI on May 16, 2013. (AR 134-39). Plaintiff alleged a disability onset date of November 19, 2005. (AR 118). October 3, 2013. The Agency denied Plaintiff’s application on (AR 59-67). On October 10, 2013, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). (AR 71). On December 29, 2014, ALJ David G. Marcus conducted a hearing to review Plaintiff’s claim. (AR 39-58). On January 29, 2015, the ALJ found that Plaintiff was not disabled under the Social Security Act. (AR 28-35). Plaintiff sought review of the ALJ’s decision before the Appeals Council on March 16, 2015. 22). 10). On June 29, 2016, the Appeals Council denied review. (AR (AR 8- The ALJ’s decision then became the final decision of the Commissioner. (AR 8). September 7, 2016. Plaintiff commenced the instant action on (Dkt. No. 1). 22 23 24 III. FACTUAL BACKGROUND 25 26 27 Plaintiff was born on March 9, 1965. (AR 134). He was 40 years old as of the alleged disability onset date of November 19, 28 2 1 2005, and 49 years old when he testified before the ALJ. 2 134). 3 mover/driver. 4 lower back injury/screws in back, low blood count, stomach surgery 5 for holes in esophagus, and depression. Plaintiff previously (AR 46, 34). worked as a security (AR 39, guard and Plaintiff alleges disability due to (AR 59, 161). 6 7 A. Plaintiff’s Testimony And Statements 8 9 Plaintiff testified that he worked as a mover and driver for 10 approximately five years beginning in 2001. 11 1999 and 2000, Plaintiff worked as a security guard at a homeless 12 shelter. 13 his application for SSI benefits in May 2013. (AR 46-47, 162). (AR 46, 161-62). In Plaintiff has not worked since he filed (AR 48). 14 15 Plaintiff 16 February 2010. 17 “ball” in the lumbar area of his back at the location of his past 18 surgeries that “hurts” and does “not feel right.” 19 This pain prevents him from laying on his bed and leaning over. 20 (AR 52). had prior back (AR 164). surgeries in February 2009 and Plaintiff testified that there is a (AR 51-52). Plaintiff testified that he “can’t do anything.” (Id.). 21 22 Plaintiff reports that his condition has worsened since his 23 initial 24 testified that, due to his back pain and other limitations, he can 25 lift only ten to fifteen pounds, stand for three to four hours out 26 of an eight-hour work day, and walk for about eight hours out of 27 an eight-hour work day. application for SSI benefits. (AR 53-55). 28 3 (AR 170). Plaintiff 1 Plaintiff testified that the only medical care he is receiving 2 is for treatment of his back. 3 saw a doctor for his back symptoms was in March 2013.2 4 Plaintiff has not seen a doctor since that time “because they cut 5 me off of my workman’s comp . . . [, i.e.,] being covered.” 6 51). 7 over-the-counter Ibuprofen and Tylenol. (AR 50). The last time Plaintiff (Id.). (AR Plaintiff testified that the only medications he takes are (Id.). 8 9 B. Physicians’ Opinions 10 11 1. Worker’s Compensation Physician Simon Lavi, D.O. 12 13 Simon Lavi, D.O., was Plaintiff’s original worker’s 14 compensation physician. 15 ongoing symptoms associated with retained symptomatic lumbar spine 16 hardware and status post L4 to S1 bilateral transforaminal lumbar 17 interbody fusion. 18 examination on October 18, 2013, revealed tenderness from the mid 19 to distal lumbar segment of Plaintiff’s spine. 20 reported pain with terminal motion and a positive seated nerve root 21 test with dysesthesia at the L5-S1 dermatome. 22 treatment 23 imaging of Plaintiff’s lumbar spine and bilateral lower extremities 24 and 25 radicular symptoms. plan ordering Dr. Lavi treated Plaintiff for (AR 258; see also AR 50). included an (AR 31). obtaining electromyogram updated study to Dr. Lavi’s physical (AR 257). (Id.). Dr. Lavi’s magnetic assess Dr. Lavi resonance Plaintiff’s (AR 258). 26 27 Plaintiff’s medical records indicate that he last saw a physician in October, not March, 2013. (AR 256-60). 2 28 4 1 2. 2 Consultative Examining Physician Conception A. Enriquez, M.D. 3 4 On September 11, 2013, Plaintiff was examined by Conception 5 A. Enriquez, M.D., a consultative examining internist. (AR 244- 6 47). 7 for a history of peptic ulcer disease and back pain. 8 Dr. 9 appointment. Dr. Enriquez noted that Plaintiff presented for treatment Enriquez reported that Plaintiff (AR 244). drove himself to of Plaintiff’s his (AR 245). 10 11 Dr. Enriquez’s physical examination spine 12 revealed that his cervical spine range of motion was within normal 13 limits with no tenderness or muscle spasm. 14 was tenderness in Plaintiff’s lumbosacral spine with decreased 15 range of motion at 70/90 degrees on trunk flexion, there was no 16 tenderness to palpation or muscle spasm in that area. 17 Plaintiff’s straight leg raising test was positive at 70 degrees. 18 (Id.). (AR 246). While there (Id.). 19 20 Dr. Enriquez reported that Plaintiff’s gait and balance are 21 within normal limits and Plaintiff does not require an assistive 22 device for ambulation. 23 Dr. Enriquez noted that Plaintiff is able to generate 80 pounds of 24 force using his right hand and 90 pounds of force using his left 25 hand. 26 examination of Plaintiff were unremarkable. (AR 245). The (AR 247). remaining 27 28 5 Using the Jamar dynamometer, portions of Dr. Enriquez’s (AR 244-47). 1 Dr. Enriquez’s medical impressions were that Plaintiff’s back 2 revealed 3 lumbosacral spine area with signs of radiculopathy. 4 a functional assessment, the doctor opined that Plaintiff can 5 occasionally lift or carry twenty pounds and frequently lift and/or 6 carry ten pounds, stand and/or work with normal breaks for six 7 hours in an eight-hour work day, sit with normal breaks for six 8 hours in an eight-hour work day, and occasionally bend, stoop, and 9 twist. tenderness and decreased range of motion in the (AR 247). As (Id.). 10 11 3. Consultative Examining Physician Richard Pollis, M.D. 12 13 On August 7, 2014, Plaintiff underwent a consultative 14 orthopedic examination by Richard Pollis, M.D. 15 Pollis reported that Plaintiff’s gait was “normal without signs of 16 limp or antalgia.” 17 Plaintiff is able to stand on his heels and toes without difficulty 18 and no evidence of weakness in the ankle flexors and extensors. 19 (Id.). 20 the examination table, sat in a chair comfortably without tilt, is 21 able to rise from a sitting and supine position, and requires no 22 assistive devices to ambulate. (AR 668). (AR 666-71). Dr. Dr. Pollis further noted that Further, Plaintiff has no difficulty getting on and off of (Id.). 23 24 Dr. Pollis’s examination of Plaintiff’s spine revealed 25 paravertebral muscle tenderness and spasm, forward flexion to 70 26 degrees, extension to zero degrees, right and left lateral flexion 27 to fifteen degrees, and straight leg raise test to 80 degrees 28 bilaterally with hamstring spasm. 6 (Id.). The Jamar dynamometer 1 measured Plaintiff’s grip strength at 80/70/80 in both hands. 2 667). 3 Plaintiff were unremarkable. (AR The remaining portions of Dr. Pollis’s examination of (AR 666-71). 4 5 Dr. Pollis diagnosed Plaintiff with “[l]ower back pain, status 6 post lumbar laminectomy and fusion.” 7 source statement, Dr. Pollis opined that Plaintiff is capable of 8 lifting and carrying twenty pounds occasionally and ten pounds 9 frequently, standing and walking six hours out of an eight-hour 10 work day with appropriate breaks, and sitting six hours out of an 11 eight-hour work day with appropriate breaks. 12 further assessed the limitation of occasional bending, climbing, 13 stooping, kneeling, and crouching. (AR 670). In his medical (Id.). Dr. Pollis (AR 670-71). 14 15 4. State Agency Reviewing Physician L. Limos, M.D. 16 17 On October 2, 2013, L. Limos, M.D., concluded that Plaintiff 18 has a severe back condition that does not medically meet or equal 19 a listed impairment. 20 that Plaintiff retains the ability to lift or carry twenty pounds 21 occasionally and ten pounds frequently, stand or walk six hours in 22 an eight-hour work day, sit six hours in an eight-hour work day, 23 and occasionally perform postural functions. 24 33). (AR 59-67; see also AR 33). 25 26 27 28 7 Dr. Limos opined (AR 64; see also AR 1 5. Worker’s Compensation Examiner Jeffrey A. Berman, M.D. 2 3 The Agreed Medical Examiner in Plaintiff’s Worker’s 4 Compensation case Jeffrey A. Berman, M.D., examined Plaintiff on 5 October 15, 2009. 6 Plaintiff’s lumbar spine revealed tenderness around and to the 7 sides of Plaintiff’s scar and a “needle” sensation reported by 8 Plaintiff upon palpation. 9 pain in the lower back with lumbar mobility, mainly with flexion (AR 424). Dr. Berman’s physical examination of (AR 427). Further, Plaintiff reported 10 and extension. 11 ability to perform sitting straight leg raise with stiffness in 12 the lower back and lower back complaints. 13 the doctor reported that Plaintiff is unable to sit and forward 14 flex to reach his fingertips to his toes. 15 position the doctor noted that a straight right leg raise elicits 16 a non-radiating lower back pain, while a straight left leg raise 17 elicits lower back pain and some radiation. (Id.). Dr. Berman noted a slightly diminished (Id.). (Id.). In addition, In a supine (Id.). 18 19 Dr. Berman reported that Plaintiff’s x-rays of his lumbar 20 spine show evidence of a decompression as well as screw fixations 21 and fusions. (AR 429). 22 unremarkable. (AR 424-36). Dr. Berman’s remaining findings were 23 24 Dr. Berman concluded that, as of October 2009, Plaintiff was 25 “permanent 26 improvement.” 27 resulting pain, as well as the “hint” of left side radiculopathy 28 in response and stationary, (AR 431). to straight having reached maximum medical Due to Plaintiff’s limited mobility and leg raising 8 and left calf atrophy 1 consistent 2 “precluded from substantial activities, along with prolonged weight 3 bearing activities.” with chronic radicular involvement, Plaintiff is (AR 432). 4 5 Based upon these findings, Dr. Berman initially assessed 6 Plaintiff with a 28 percent “whole person impairment.” 7 to Plaintiff’s additional weight-bearing limitation, however, Dr. 8 Berman assessed an additional nine percent impairment, for a total 9 orthopedic impairment of 34 percent. (AR 433-34). (Id.). Due Dr. Berman 10 opined that Plaintiff’s weight-bearing limitation would cause him 11 to fall into a category of persons able to rise to a standing 12 position and walk but having difficulty with elevations, grade, 13 stairs, deep chairs, and long distances. (AR 433). 14 15 IV. 16 THE FIVE STEP SEQUENTIAL EVALUATION PROCESS 17 18 To qualify for disability benefits, a claimant must 19 demonstrate a medically determinable physical or mental impairment 20 that prevents the claimant from engaging in substantial gainful 21 activity and that is expected to result in death or to last for a 22 continuous period of at least twelve months. 23 157 F.3d 715, 721 (9th Cir. 1998) (citing 42 U.S.C. § 423(d)(1)(A)). 24 The impairment must render the claimant incapable of performing 25 the work she previously performed and incapable of performing any 26 other substantial gainful employment that exists in the national 27 economy. 28 (citing 42 U.S.C. § 423(d)(2)(A)). Reddick v. Chater, Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) 9 1 2 To decide if a claimant is entitled to benefits, an ALJ 3 conducts a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920. 4 steps are as follows: The 5 6 (1) Is the claimant presently engaged in substantial gainful 7 activity? 8 not, proceed to step two. 9 (2) Is the If so, the claimant is found not disabled. claimant’s impairment severe? 10 claimant is found not disabled. 11 If not, If the three. 12 (3) If so, proceed to step Does the claimant’s impairment meet or equal one of the 13 specific impairments described in 20 C.F.R. Part 404, 14 Subpart P, Appendix 1? 15 disabled. 16 (4) If so, the claimant is found If not, proceed to step four. Is the claimant capable of performing his past work? If 17 so, the claimant is found not disabled. 18 to step five. 19 (5) If not, proceed Is the claimant able to do any other work? 20 claimant is found disabled. 21 If not, the not disabled. If so, the claimant is found 22 23 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 24 262 F.3d 949, 953-54 (9th Cir. 2001); 20 C.F.R. §§ 404.1520(b)- 25 (g)(1) & 416.920(b)-(g)(1). 26 27 28 The claimant has the burden of proof at steps one through four and the Commissioner has the burden 10 of proof at step five. 1 Bustamante, 262 F.3d at 953-54. 2 affirmative duty to assist the claimant in developing the record 3 at every step of the inquiry. 4 claimant meets his or her burden of establishing an inability to 5 perform past work, the Commissioner must show that the claimant 6 can perform some other work that exists in “significant numbers” 7 in 8 residual functional capacity (“RFC”), age, education, and work 9 experience. the national economy, Additionally, the ALJ has an Id. at 954. taking into If, at step four, the account the claimant’s Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 10 721; 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 11 may do so by the testimony of a VE or by reference to the Medical- 12 Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart P, 13 Appendix 2 (commonly known as “the grids”). 14 240 F.3d 1157, 1162 (9th Cir. 2001). 15 exertional (strength-related) and non-exertional limitations, the 16 Grids are inapplicable and the ALJ must take the testimony of a 17 VE. 18 Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988)). The Commissioner Osenbrock v. Apfel, When a claimant has both Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000) (citing 19 20 V. 21 THE ALJ’S DECISION 22 23 The ALJ employed the five-step sequential evaluation process 24 and concluded that Plaintiff was not disabled within the meaning 25 of the Social Security Act. 26 that Plaintiff had not engaged in substantial gainful activity 27 since 28 application for SSI benefits. May 16, 2013, which (AR 35). is the (AR 30). 11 At step one, the ALJ found date Plaintiff filed his At step two, the ALJ found 1 that Plaintiff had the severe medically determinable impairments 2 of status posterior fusion with pedicle screw fixation (L4-5 and 3 L5-S1) and interbody fusions and obesity. 4 step, the ALJ found that the severe impairments at step two did 5 not meet or medically equal a listed impairment. (Id.). At the third (AR 31). 6 7 At step four, the ALJ found that Plaintiff had the RFC to 8 perform light work as defined in 20 C.F.R. § 416.967(b) except that 9 Plaintiff can lift or carry twenty pounds occasionally and ten 10 pounds frequently, stand and walk six hours in an eight-hour work 11 day, sit six hours in an eight-hour work day, and occasionally 12 bend, climb, stoop, kneel, and crouch. 13 that Plaintiff was capable of performing his past relevant work as 14 a security guard. 15 did 16 precluded by Plaintiff’s RFC. 17 that Plaintiff was not under a disability as defined by the Social 18 Security Act since Plaintiff filed his application for SSI benefits 19 on May 16, 2013. not require (AR 34). the (AR 32). The ALJ found The ALJ determined that this past work performance of (Id.). work-related activities Accordingly, the ALJ found (AR 35). 20 21 VI. 22 STANDARD OF REVIEW 23 24 Under 42 U.S.C. § 405(g), a district court may review the 25 Commissioner’s decision to deny benefits. 26 aside the Commissioner’s denial of benefits when the ALJ’s findings 27 are based on legal error or are not supported by substantial 28 evidence in the record as a whole.” 12 “[The] court may set Aukland v. Massanari, 257 F.3d 1 1033, 1035 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1097); see 2 also Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing 3 Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989)). 4 5 “Substantial evidence is more than a scintilla, but less than 6 a preponderance.” 7 Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)). 8 evidence which a reasonable person might accept as adequate to 9 support a conclusion.” Reddick, 157 F.3d at 720 (citing Jamerson v. (Id.). It is “relevant To determine whether substantial 10 evidence supports a finding, the court must “‘consider the record 11 as a whole, weighing both evidence that supports and evidence that 12 detracts from the [Commissioner’s] conclusion.’” Aukland, 257 F.3d 13 at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 14 1993)). 15 or reversing that conclusion, the court may not substitute its 16 judgment for that of the Commissioner. 17 21 (citing Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 18 1457 (9th Cir. 1995)). 19 // 20 // 21 // 22 // 23 // 24 // 25 // If the evidence can reasonably support either affirming 26 27 28 13 Reddick, 157 F.3d at 720- 1 VII. 2 DISCUSSION 3 4 The ALJ’s Reasons For Rejecting Plaintiff’s Credibility Were 5 Clear And Convincing 6 7 Plaintiff alleges that the ALJ improperly assessed Plaintiff’s 8 credibility. 9 disagrees. The ALJ’s reasons for rejecting Plaintiff’s credibility 10 were supported by substantial evidence in the record and were clear 11 and convincing. 12 ALJ’s decision is AFFIRMED. (Pl’s Mem. in Support of Complaint at 3). The Court Accordingly, for the reasons discussed below, the 13 14 When assessing a claimant’s credibility regarding subjective 15 pain or intensity of symptoms, the ALJ must engage in a two-step 16 analysis. 17 Initially, the ALJ must determine if there is medical evidence of 18 an impairment that could reasonably produce the symptoms alleged. 19 Id. (citation omitted). 20 evidence of malingering, the ALJ must provide specific, clear and 21 convincing reasons for rejecting the claimant’s testimony about 22 the symptom severity. 23 ALJ may consider the following: Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012). If such evidence exists, and there is no Id. (citation omitted). In so doing, the 24 25 (1) ordinary techniques of credibility evaluation, such 26 as 27 inconsistent statements concerning the symptoms, and 28 other testimony by the claimant that appears less than the claimant’s reputation 14 for lying, prior 1 candid; 2 failure to seek treatment or to follow a prescribed 3 course 4 activities. (2) of unexplained treatment; and or (3) inadequately the explained claimant’s daily 5 6 Smolen, 80 F.3d at 1284; see also Tommasetti v. Astrue, 533 F.3d 7 1035, 1039 (9th Cir. 2008). 8 9 An AlJ also may rely upon inconsistencies between a claimant’s 10 testimony and conduct, or internal contradictions in the claimant’s 11 testimony. 12 1997). 13 treating and examining physicians regarding, among other matters, 14 the 15 Smolen, 80 F.3d at 1284 (citing Social Security Ruling (“SSR”) 88- 16 13). 17 testimony based “solely” on its inconsistencies with the objective 18 medical evidence presented. 19 554 F.3d 1219, 1227 (9th Cir. 2009) (citing Bunnell v. Sullivan, 20 947 F.2d 341, 345 (9th Cir. 1991)). Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. In addition, the ALJ may consider the observations of functional restrictions caused by a claimant’s symptoms. However, it is improper for an ALJ to reject subjective Bray v. Comm’r of Soc. Sec. Admin., 21 22 Regardless of the reason, the ALJ’s credibility determination 23 must be supported with findings that are “sufficiently specific to 24 permit the court to conclude that the ALJ did not arbitrarily 25 discredit [the claimant’s] testimony.” 26 1039 (citation omitted). 27 claimant’s testimony may not be the only reasonable one, if it is 28 supported by substantial evidence, “it is not [the court’s] role Tommasetti, 533 F.3d at Although an ALJ’s interpretation of a 15 1 to second-guess it.” 2 Cir. 2001) (citing Fair, 885 F.2d at 604). Rollins v. Massanari, 261 F.3d 853, 857 (9th 3 4 Here, Plaintiff testified to suffering from “unbearable,” 5 stabbing pain in his lower back that limits his ability to stand 6 and requires him to lay down for much of the day. 7 also AR 32). 8 lift only up to ten or fifteen pounds bilaterally, stand for one 9 hour at a time before he begins to feel pain, stand a total of 10 (AR 51-52; see Due to this pain, Plaintiff testified that he can three or four hours, and walk for eight hours a day. (AR 53-55). 11 12 The ALJ relied on the following reasons to reject Plaintiff’s 13 testimony: 14 medical 15 testimony 16 observations that 17 consultative examining 18 opinions that Plaintiff can do light work. 19 the ALJ’s reasons for discrediting Plaintiff’s statements were 20 based upon substantial evidence in the record and were clear and 21 convincing. (1) conservative treatment; (2) lack of objective evidence; and (3) inconsistencies conduct; (4) Plaintiff’s and Drs. gait state between Enriquez’s is agency Plaintiff’s and unimpaired; reviewing Pollis’s and (5) physicians’ As discussed below, 22 23 First, the ALJ properly rejected Plaintiff’s credibility 24 because Plaintiff’s treatment has been conservative. Evidence of 25 conservative treatment is sufficient to discredit a claimant’s 26 testimony regarding the severity of an impairment. 27 Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (citing Johnson v. 28 Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995)). 16 Parra v. 1 The ALJ found that Plaintiff is not a surgical candidate and 2 received 3 application in May 2013 and claiming that his condition worsened 4 after filing. 5 failed to seek treatment in 2014 because his worker’s compensation 6 coverage was terminated (AR 51), the ALJ noted that Plaintiff’s 7 medical 8 treatment.” 9 Lavi’s records show only conservative management after his second 10 surgery in 2010, including trigger point injections with symptom 11 relief. 12 to taking no prescribed medications for pain and using only over- 13 the counter Tylenol. no medical treatment (AR 32-33, 170). “records show[] (AR 33). (AR 34). that in 2014, despite filing his While Plaintiff explained that he his condition is responsive to In addition, the ALJ reasoned that Dr. The ALJ also took note that Plaintiff admitted (AR 33). 14 15 Substantial evidence in the record supports the ALJ’s 16 conclusion that 17 treatment. From this evidence, the ALJ properly could infer that 18 Plaintiff’s pain was exaggerated and not completely disabling. 19 Tommasetti, 533 F.3d at 1040 (favorable response to conservative 20 treatment, 21 assertions); Parra, 481 F.3d at 750-51 (“that [claimant’s] physical 22 ailments were treated with an over-the-counter pain medication” is 23 “evidence of conservative treatment . . . sufficient to discount a 24 claimant’s 25 Accordingly, Plaintiff’s conservative treatment was a clear and 26 convincing reason to discount the credibility of his statements. Plaintiff including credibility received medication, regarding 27 28 17 may conservative, undermine severity of an a effective Cf. claimant’s impairment”). 1 Second, while a lack of objective medical evidence may not 2 serve as the sole reason for an adverse credibility determination, 3 the ALJ properly relied on a lack of medical evidence as one of 4 many reasons to discount Plaintiff’s credibility. 5 261 F.3d at 857 (“[w]hile subjective pain testimony cannot be 6 rejected on the sole ground that it is not fully corroborated by 7 objective evidence, the medical evidence is still a relevant factor 8 in 9 disabling effects”); see also 20 C.F.R. § 416.929(c)(2). determining the severity of the claimant’s Cf. Rollins, pain and its The ALJ 10 noted that Plaintiff’s medical treatment has not confirmed that 11 Plaintiff’s condition is worsening “per objective evidence.” 12 32). 13 2014 despite his claims of suffering from a worsening medical 14 condition. 15 indicated 16 Plaintiff’s back revealed no signs of radiculopathy. 17 Further, 18 radiculopathy on the left in response to straight leg raising. 19 34; see also AR 432). (AR Further, Plaintiff received no medical treatment at all in (AR 33; see also AR 50-51). that Dr. Dr. Enriquez’s Berman’s September examination In addition, the ALJ 2013 revealed examination only a of (AR 33). “hint” of (AR 20 21 This evidence was substantial and reasonably supported the 22 ALJ’s conclusion that Plaintiff’s symptoms were not consistent with 23 the objective medical evidence. 24 relied on a lack of objective medical evidence as one of several 25 reasons to discount Plaintiff’s credibility. Accordingly, the ALJ properly 26 27 28 Third, the ALJ properly relied on Plaintiff’s own conduct to impeach the credibility of his statements. 18 The ALJ noted that 1 Plaintiff “is able to drive a car, which reasonably supports a 2 retained 3 extremities in a coordinated fashion and an ability to turn his 4 neck.” 5 “testimony regarding the ability to lift or carry is undermined by 6 his ability to exert a grip force up to 80 pounds with the bilateral 7 extremities.” ability to (AR 33). bend, twist, use the upper and lower The ALJ further determined that Plaintiff’s (Id.) 8 9 Substantial evidence supported the ALJ’s conclusion. Dr. 10 Enriquez observed that Plaintiff drove himself to his appointment. 11 (AR 245). 12 pounds of force using the right hand and 90 pounds of force using 13 the left hand. 14 grip strength as 80/70/80 in both hands. 15 the inconsistencies between Plaintiff’s conduct and abilities and 16 his claimed limitations constitutes a clear and convincing reason 17 supporting the ALJ’s adverse credibility determination. Cf. Light, 18 119 F.3d at 792; see also Berry v. Astrue, 622 F.3d 1228, 1234 (9th 19 Cir. 20 entirely 21 complaints in [plaintiff’s] activity questionnaire and hearing 22 testimony and some of his other self-reported activities.”). He also reported that Plaintiff is able to generate 80 2010) (Id.). (ALJ credible Similarly, Dr. Pollis measured Plaintiff’s properly because “concluded he (AR 667). that found Accordingly, [claimant] contradictions was not between 23 24 Fourth, the ALJ properly relied on the observations of 25 Plaintiff’s examining 26 credibility. The ALJ found that Plaintiff “walks effectively as 27 noted 28 Further, the ALJ noted that Drs. Enriquez and Pollis failed to by the physicians consultative to examining 19 discount physicians.” Plaintiff’s (AR 34). 1 observe any gait disturbances or upper or lower extremity weakness 2 or loss of function. (AR 34). 3 4 Substantial evidence supported the ALJ’s finding. Dr. 5 Enriquez’s notes indicate that Plaintiff’s “[g]ait and balance are 6 within normal limits” and Plaintiff does not require an assistive 7 device for ambulation. 8 that 9 antalgia.” Plaintiff’s “gait (AR 668). (AR 247). is Dr. Pollis similarly reported normal without signs of limp or In addition, Dr. Pollis observed that 10 Plaintiff is able to stand on his heels and toes without difficulty 11 and there is no evidence of weakness in the angle flexors and 12 extensors. 13 difficulty getting on and off of the examination table, sat in a 14 chair comfortably, is able to rise from a sitting and supine 15 position, and requires no assistive devices to ambulate. (Id.). Further, he observed that Plaintiff had no (Id.). 16 17 Moreover, while Dr. Berman assessed a nine percent loss of 18 function 19 nonetheless noted that Plaintiff falls within a category of persons 20 who can rise to a standing position and walk, but has difficulty 21 with elevations, grade, stairs, deep chairs, and long distances. 22 (AR 433). 23 Plaintiff’s weight-bearing capacity as consistent with the opinions 24 of Drs. Pollis, Enriquez, and Limos. 25 Court’s task to second-guess the reasonable interpretation of an 26 ALJ when, as here, it is supported by substantial evidence. 27 Rollins, 261 F.3d at 857. 28 the observations of Plaintiff’s examining physicians to discount due to Plaintiff’s weight-bearing limitation, he The ALJ reasonably interpreted this assessment of (AR 34). It is not the Cf. Accordingly, the ALJ properly considered 20 1 Plaintiff’s credibility. 2 88-13). Cf. Smolen, 80 F.3d at 1284 (citing SSR 3 4 Fifth, the ALJ properly discounted Plaintiff’s credibility 5 because consultative examiners Drs. Pollis and Enriquez and state 6 agency reviewer Dr. Limos opined that Plaintiff was capable of 7 performing a level of work consistent with Plaintiff’s RFC. 8 33). 9 with the other medical opinion evidence and Plaintiff’s RFC. 10 (AR The ALJ also interpreted Dr. Berman’s opinion as consistent (AR 33-34). 11 12 The opinions of these physicians constituted substantial 13 evidence upon which the ALJ was entitled to rely to discount 14 Plaintiff’s credibility. 15 1169, 1175 (9th Cir. 2008 (“the medical evidence, including Dr. 16 Eather’s 17 [claimant] could perform a limited range of work – support the 18 ALJ’s credibility determination”); Molina, 674 F.3d at 1113 (ALJ 19 supported adverse credibility finding based on “conclusions of both 20 Dr. 21 anxiety disorder was not severe and that she was able to control 22 it 23 Enriquez opined that Plaintiff can occasionally lift or carry 24 twenty pounds and frequently lift and/or carry ten pounds, stand 25 and/or work with normal breaks for six hours in an eight-hour work 26 day, sit with normal breaks for six hours in an eight-hour work 27 day, and occasionally bend, stoop, and twist. Yost with report and and the Cf. Stubbs-Danielson v. Astrue, 539 F.3d Dr. state [medication] and Neville’s examining other 28 21 report – physician self-calming which that both found [claimant’s] measures”). (AR 247). Dr. 1 Dr. Pollis similarly opined that Plaintiff is capable of 2 lifting and carrying twenty pounds occasionally and ten pounds 3 frequently, standing and walking six hours out of an eight-hour 4 work day with appropriate breaks, and sitting six hours out of an 5 eight-hour work day with appropriate breaks. 6 noted the limitation of occasional bending, climbing, stooping, 7 kneeling, and crouching. 8 assessment 9 Enriquez and Pollis. was fully (AR 670-71). consistent with (AR 670). Dr. Pollis Dr. Limos’s functional the assessments of Drs. (AR 64). 10 11 Further, although Dr. Berman assessed Plaintiff with a 28 12 percent “whole person impairment” and an additional nine percent 13 impairment due to Plaintiff’s weight-bearing limitation, the ALJ 14 reasonably determined that Dr. Berman’s opinion nonetheless was 15 consistent with the other medical opinions. 16 “given the claimant’s pervious very heavy work activity,” he would 17 not be precluded from performing activities consistent with the 18 assessed RFC even with the percentage impairment assessed by Dr. 19 Berman. 20 interpretation where it is supported by substantial evidence in 21 the record. (AR 34). The ALJ reasoned that, The Court does not second-guess this reasonable Cf. Rollins, 261 F.3d at 857. 22 23 In sum, the ALJ offered clear and convincing reasons, 24 supported by substantial evidence in the record, for his adverse 25 credibility finding. 26 // 27 // 28 // Accordingly, no remand is required. 22 1 VIII. 2 CONCLUSION 3 4 Consistent with the foregoing, IT IS ORDERED that Judgment be 5 entered AFFIRMING the decision of the Commissioner. 6 the Court shall serve copies of this Order and the Judgment on 7 counsel for both parties. The Clerk of 8 9 DATED: June 12, 2017 10 /S/ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 11 12 13 THIS DECISION IS NOT INTENDED FOR PUBLICATION IN WESTLAW, LEXIS OR ANY OTHER LEGAL DATABASE. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23

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