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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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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LUIS SALAZAR,

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Case No. CV 16-6721 (SS)
Plaintiff,

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v.

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NANCY A. BERRYHILL,1 Acting
Commissioner of Social
Security,

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MEMORANDUM DECISION AND ORDER

Defendant.

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I.

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INTRODUCTION

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21

Luis Salazar (“Plaintiff”) brings this action seeking to

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overturn the decision of the Commissioner of the Social Security

23

Administration

24

application for Supplemental Security Income (“SSI”) benefits. The

25

parties

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27
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(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.

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(Dkt. Nos. 11, 12). For the reasons stated below, the Court AFFIRMS

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the Commissioner’s decision.

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5

II.

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PROCEDURAL HISTORY

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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).

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24

III.
FACTUAL BACKGROUND

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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.

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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.

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“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.

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(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.).

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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

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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

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11

1.

Worker’s Compensation Physician Simon Lavi, D.O.

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13

Simon

Lavi,

D.O.,

was

Plaintiff’s

original

worker’s

14

compensation physician.

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ongoing symptoms associated with retained symptomatic lumbar spine

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hardware and status post L4 to S1 bilateral transforaminal lumbar

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interbody fusion.

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examination on October 18, 2013, revealed tenderness from the mid

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to distal lumbar segment of Plaintiff’s spine.

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reported pain with terminal motion and a positive seated nerve root

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test with dysesthesia at the L5-S1 dermatome.

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treatment

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imaging of Plaintiff’s lumbar spine and bilateral lower extremities

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and

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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

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1

2.

2

Consultative Examining Physician Conception A. Enriquez,
M.D.

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4

On September 11, 2013, Plaintiff was examined by Conception

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A. Enriquez, M.D., a consultative examining internist. (AR 244-

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47).

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for a history of peptic ulcer disease and back pain.

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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).

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11

Dr.

Enriquez’s

physical

examination

spine

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revealed that his cervical spine range of motion was within normal

13

limits with no tenderness or muscle spasm.

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was tenderness in Plaintiff’s lumbosacral spine with decreased

15

range of motion at 70/90 degrees on trunk flexion, there was no

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tenderness to palpation or muscle spasm in that area.

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Plaintiff’s straight leg raising test was positive at 70 degrees.

18

(Id.).

(AR 246).

While there

(Id.).

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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.

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Dr. Enriquez noted that Plaintiff is able to generate 80 pounds of

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force using his right hand and 90 pounds of force using his left

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hand.

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examination of Plaintiff were unremarkable.

(AR

245).

The

(AR 247).

remaining

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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.

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a functional assessment, the doctor opined that Plaintiff can

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occasionally lift or carry twenty pounds and frequently lift and/or

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carry ten pounds, stand and/or work with normal breaks for six

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hours in an eight-hour work day, sit with normal breaks for six

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hours in an eight-hour work day, and occasionally bend, stoop, and

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twist.

tenderness

and

decreased

range

of

motion

in

the

(AR 247).

As

(Id.).

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3.

Consultative Examining Physician Richard Pollis, M.D.

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13

On

August

7,

2014,

Plaintiff

underwent

a

consultative

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orthopedic examination by Richard Pollis, M.D.

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Pollis reported that Plaintiff’s gait was “normal without signs of

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limp or antalgia.”

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Plaintiff is able to stand on his heels and toes without difficulty

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and no evidence of weakness in the ankle flexors and extensors.

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(Id.).

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the examination table, sat in a chair comfortably without tilt, is

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able to rise from a sitting and supine position, and requires no

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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.).

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Dr.

Pollis’s

examination

of

Plaintiff’s

spine

revealed

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paravertebral muscle tenderness and spasm, forward flexion to 70

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degrees, extension to zero degrees, right and left lateral flexion

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to fifteen degrees, and straight leg raise test to 80 degrees

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bilaterally with hamstring spasm.
6

(Id.).

The Jamar dynamometer

1

measured Plaintiff’s grip strength at 80/70/80 in both hands.

2

667).

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Plaintiff were unremarkable.

(AR

The remaining portions of Dr. Pollis’s examination of
(AR 666-71).

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5

Dr. Pollis diagnosed Plaintiff with “[l]ower back pain, status

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post lumbar laminectomy and fusion.”

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source statement, Dr. Pollis opined that Plaintiff is capable of

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lifting and carrying twenty pounds occasionally and ten pounds

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frequently, standing and walking six hours out of an eight-hour

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work day with appropriate breaks, and sitting six hours out of an

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eight-hour work day with appropriate breaks.

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further assessed the limitation of occasional bending, climbing,

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stooping, kneeling, and crouching.

(AR 670).

In his medical

(Id.).

Dr. Pollis

(AR 670-71).

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4.

State Agency Reviewing Physician L. Limos, M.D.

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On October 2, 2013, L. Limos, M.D., concluded that Plaintiff

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has a severe back condition that does not medically meet or equal

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a listed impairment.

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that Plaintiff retains the ability to lift or carry twenty pounds

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occasionally and ten pounds frequently, stand or walk six hours in

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an eight-hour work day, sit six hours in an eight-hour work day,

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and occasionally perform postural functions.

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33).

(AR 59-67; see also AR 33).

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Dr. Limos opined

(AR 64; see also AR

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5.

Worker’s Compensation Examiner Jeffrey A. Berman, M.D.

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3

The

Agreed

Medical

Examiner

in

Plaintiff’s

Worker’s

4

Compensation case Jeffrey A. Berman, M.D., examined Plaintiff on

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October 15, 2009.

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Plaintiff’s lumbar spine revealed tenderness around and to the

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sides of Plaintiff’s scar and a “needle” sensation reported by

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Plaintiff upon palpation.

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pain in the lower back with lumbar mobility, mainly with flexion

(AR 424).

Dr. Berman’s physical examination of

(AR 427).

Further, Plaintiff reported

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and extension.

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ability to perform sitting straight leg raise with stiffness in

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the lower back and lower back complaints.

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the doctor reported that Plaintiff is unable to sit and forward

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flex to reach his fingertips to his toes.

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position the doctor noted that a straight right leg raise elicits

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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.).

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19

Dr. Berman reported that Plaintiff’s x-rays of his lumbar

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spine show evidence of a decompression as well as screw fixations

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and fusions.

(AR 429).

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unremarkable.

(AR 424-36).

Dr. Berman’s remaining findings were

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Dr. Berman concluded that, as of October 2009, Plaintiff was

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“permanent

26

improvement.”

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resulting pain, as well as the “hint” of left side radiculopathy

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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

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Plaintiff with a 28 percent “whole person impairment.”

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to Plaintiff’s additional weight-bearing limitation, however, Dr.

8

Berman assessed an additional nine percent impairment, for a total

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orthopedic impairment of 34 percent.

(AR 433-34).

(Id.).

Due

Dr. Berman

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opined that Plaintiff’s weight-bearing limitation would cause him

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to fall into a category of persons able to rise to a standing

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position and walk but having difficulty with elevations, grade,

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stairs, deep chairs, and long distances.

(AR 433).

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IV.

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THE FIVE STEP SEQUENTIAL EVALUATION PROCESS

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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.

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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

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other substantial gainful employment that exists in the national

27

economy.

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(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.

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to step five.

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(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

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20

V.

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THE ALJ’S DECISION

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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).

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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

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12
13

THIS DECISION IS NOT INTENDED FOR PUBLICATION IN WESTLAW, LEXIS OR
ANY OTHER LEGAL DATABASE.

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