Arturo Armas v. Carolyn W. Colvin

Filing 19

MEMORANDUM OPINION AND ORDER by Magistrate Judge John D. Early. Consistent with the foregoing, IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner and dismissing this action with prejudice. IT IS FURTHER ORDERED that the Clerk serve copies of this Order and Judgment on the counsel for both parties. (es)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 ARTURO ARMAS, ) Case No.: CV 16-07926-JDE ) Plaintiff, ) ) MEMORANDUM OPINION AND vs. ) ORDER ) 1 NANCY A. BERRYHILL, Acting ) Commissioner of Social Security, ) ) ) Defendant. ______________________________ ) I. 11 12 13 14 15 16 17 18 19 PROCEEDINGS 20 Plaintiff Arturo Armas (“Plaintiff ”) filed a complaint on October 25, 2016 21 22 seeking review of the Commissioner’s denial of his application for Disability 23 Insurance Benefits (“DIB”) and supplemental security income (“SSI”). The parties 24 filed consents to proceed before the undersigned Magistrate Judge. (Dkt. Nos. 11, 25 16.) Consistent with the Order Re: Procedures in Social Security Appeal (Dkt. No. 26 27 28 Nancy A. Berryhill is now Acting Commissioner of Social Security (“Commissioner” or “Defendant”) and is substituted in as defendant. See 42 U.S.C. 205(g). 1 1 1 9), the parties filed a Joint Stipulation addressing their respective positions. (Dkt. 2 No. 18 (“Jt. Stip.”).) The Court has taken the Joint Stipulation under submission 3 without oral argument and as such, this matter is now ready for decision. 4 II. 5 LEGAL STANDARD 6 A. Standard of Review 7 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision 8 denying benefits to determine whether it is free from legal error and supported by 9 substantial evidence in the record as a whole. Orn v. Astrue, 495 F.3d 625, 630 10 (9th Cir. 2007). “Substantial evidence” is “more than a mere scintilla but less than 11 a preponderance; it is such relevant evidence as a reasonable mind might accept as 12 adequate to support a conclusion.” Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 13 519, 522-23 (9th Cir. 2014) (citations and internal punctuation omitted). The 14 standard of review of a decision by an Administrative Law Judge (“ALJ”) is 15 “highly deferential.” Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1002 16 (9th Cir. 2015) (citation omitted). Section 405(g) permits a court to enter a 17 judgment affirming, modifying, or reversing the Commissioner’s decision. 42 18 U.S.C. § 405(g). The reviewing court may also remand the matter to the Social 19 Security Administration (“SSA”) for further proceedings. Id. 20 “The ALJ is responsible for determining credibility, resolving conflicts in 21 medical testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d 22 1035, 1039 (9th Cir. 1995). Although this Court cannot substitute its discretion for 23 the Commissioner’s, the Court nonetheless must review the record as a whole, 24 “weighing both the evidence that supports and the evidence that detracts from the 25 [Commissioner’s] conclusion.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th 26 Cir. 2007) (internal quotation marks and citation omitted). “Even when the 27 evidence is susceptible to more than one rational interpretation, we must uphold 28 2 1 the ALJ’s findings if they are supported by inferences reasonably drawn from the 2 record.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012); see also Burch v. 3 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (court will uphold Commissioner’s 4 decision when evidence is susceptible to more than one rational interpretation). 5 However, the Court may only review the reasons provided by the ALJ in the 6 disability determination, and may not affirm the ALJ on a ground upon which the 7 ALJ did not rely. Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014) (citation 8 omitted); see also Orn, 495 F.3d at 630 (citation omitted). 9 Lastly, even if an ALJ erred, a reviewing court will still uphold the decision 10 if the error was inconsequential to the ultimate non-disability determination, or 11 where, despite the error, the ALJ’s path “may reasonably be discerned,” even if 12 the ALJ explained the decision “with less than ideal clarity.” Brown-Hunter v. 13 Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (citations, internal punctuation omitted). 14 B. Standard for Determining Disability Benefits 15 When the claimant’s case has proceeded to consideration by an ALJ, the 16 17 18 19 20 ALJ conducts a five-step sequential evaluation to determine at each step if the claimant is or is not disabled. See Molina, 674 F.3d at 1110 (citing, inter alia, 20 C.F.R. §§ 404.1520(a), 416.920(a)). First, the ALJ considers whether the claimant currently performs “substantial gainful activity.” Id. If not, the ALJ proceeds to a 21 second step to determine if the claimant has a “severe” medically determinable 22 physical or mental impairment or combination of impairments that has lasted for 23 more than 12 months. Id. If so, the ALJ proceeds to a third step to determine if the 24 claimant’s impairments render the claimant disabled because they “meet or equal” 25 any of the “listed impairments” set forth in the Social Security regulations. See 26 20 C.F.R. Pt. 404, Subpt. P, App. 1; see also Rounds, 807 F.3d at 1001. If the 27 claimant’s impairments do not meet or equal a “listed impairment,” before 28 3 1 proceeding to the fourth step, the ALJ assesses the claimant’s residual functional 2 capacity (“RFC”), that is, what the claimant can do on a sustained basis despite 3 the limitations from her impairments. See 20 C.F.R. §§ 404.1520(a)(4), 4 416.920(a)(4); Social Security Ruling (“SSR”) 96-8p. After determining the 5 claimant’s RFC, the ALJ proceeds to the fourth step and determines whether the 6 claimant has the RFC to perform her past relevant work, either as she performed it 7 when she worked in the past, or as that same job is generally performed in the 8 national economy. See Stacy v. Colvin, 825 F.3d 563, 569 (9th Cir. 2016) (citing, 9 inter alia, SSR 82-61); see also 20 C.F.R. §§ 404.1560(b), 416.960(b). 10 11 12 13 14 15 16 If the claimant cannot perform her past relevant work, the ALJ proceeds to a fifth and final step to determine whether there is any other work, in light of the claimant’s RFC, age, education, and work experience, that the claimant can perform and that exists in “significant numbers” in either the national or regional economies. See 20 C.F.R. §§ 404.1520(g), 416.920(g); Tackett v. Apfel, 180 F.3d 1094, 1100-01 (9th Cir. 1999). If the claimant can do other work, she is not 17 disabled; if the claimant cannot do other work and meets the duration 18 requirement, the claimant is disabled. See Tackett, 180 F.3d at 1099 (citing 20 19 C.F.R. § 404.1560(b)(3)); see also 20 C.F.R. § 416.960(b)(3). 20 The claimant generally bears the burden at each of steps one through four to 21 show that she is disabled or that she meets the requirements to proceed to the next 22 step; the claimant bears the ultimate burden to show that she is disabled. See, e.g., 23 Molina, 674 F.3d at 1110; Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995). 24 However, at step five, the ALJ has a “limited” burden of production to identify 25 representative jobs that the claimant can perform and that exist in “significant” 26 numbers in the economy. See 20 C.F.R. §§ 404.1560(c)(1)-(2), 416.960(c)(1)-(2); 27 Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012); Tackett, 180 F.3d at 1100. 28 4 1 III. 2 BACKGROUND AND ADMINISTRATIVE PROCEEDINGS 3 Plaintiff was born on April 9, 1975. (Administrative Record (“AR”) 70.) On 4 December 7, 2012, Plaintiff filed a Title II application for DIB benefits and a Title 5 XVI application for SSI benefits, claiming disability beginning January 17, 2011 in 6 both applications. (AR 22, 165-71, 172-78.) After his applications were denied 7 initially and upon reconsideration (AR 112-13, 140-41), Plaintiff requested an 8 administrative hearing (AR 156-57). Plaintiff, represented by counsel, appeared 9 and testified at the hearing before the ALJ below on April 20, 2015. (AR 67-79.) 10 On May 11, 2015, the ALJ returned an unfavorable decision. (AR 19-38.) At 11 step one of the sequential evaluation, the ALJ found that Plaintiff had not 12 engaged in substantial gainful activity since the alleged onset date of January 17, 13 2011. (AR 24.) At step two, the ALJ determined that Plaintiff had the following 14 severe impairments: morbid obesity; multilevel degenerative changes, lumbar 15 spinal disc bulge at L4-L5, and moderate to severe foraminal stenosis; diabetes 16 with neuropathy; and bipolar disorder. (AR 24.) At step three, the ALJ found that 17 none of these impairments or combination of impairments met or equaled a listed 18 impairment. (AR 28.) Next, the ALJ found that Plaintiff had the RFC to perform 19 light work, further limited as follows: (1) frequently climb, kneel, and crawl; (2) 20 occasionally crouch; (3) not engage in concentrated walking on uneven terrain; 21 and (4) perform only unskilled work. (AR 29.) At step four, the ALJ found that 22 Plaintiff was unable to perform any past relevant work (AR 31), and considering 23 his age, education, work experience, and RFC, there were jobs that existed in 24 significant numbers in the national economy that Plaintiff could perform. (AR 32.) 25 Based on the RFC and testimony of the Vocational Expert (“VE”), at step five, the 26 ALJ found that Plaintiff could perform work as a marker (Dictionary of 27 Occupational Titles (“DOT”) 209.587-034) and fast food worker (DOT 311.472- 28 5 1 010). (Id.) The ALJ concluded that Plaintiff was not disabled from the alleged 2 onset date of January 17, 2011, through the date of the decision. (Id.) 3 Plaintiff filed a request with the Appeals Council for review of the ALJ’s 4 decision. (AR 14-15). On August 26, 2016, the Appeals Council denied Plaintiff ’s 5 request for review, making the ALJ’s decision the Commissioner’s final decision. 6 (AR 1-6.) Plaintiff then commenced this action. 7 IV. 8 DISCUSSION 9 Plaintiff argues that the ALJ erred in: (1) evaluating the medical opinion 10 evidence; (2) discounting Plaintiff ’s subjective symptom testimony; and (3) 11 assessing Plaintiff ’s RFC. (See Jt. Stip. at 3.) 12 13 1. Physicians’ opinions Plaintiff argues that the ALJ erred in assessing the medical evidence in his 14 file, specifically in the evaluation of medical opinions. (Jt. Stip. at 3.) Plaintiff 15 contends that the ALJ erred in: (1) failing to consider medical evidence from 16 Plaintiff ’s psychiatrist, Dr. Mirakhor; (2) assigning little weight to the opinion of 17 the treating physician, Dr. Fouad; and (3) failing to appropriately consider the 18 listings at step two. (Id.) The Court finds that the ALJ appropriately evaluated the 19 medical evidence in the record. 20 21 a. Applicable Law Three types of doctors may offer opinions in Social Security cases: (1) those 22 who treated the plaintiff; (2) those who examined but did not treat the plaintiff; 23 and (3) those who did neither. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). 24 Treating doctors’ opinions are generally given more weight than those of 25 examining doctors, and examining doctors’ opinions generally receive more 26 27 28 weight than those of nonexamining doctors. Id. Treating doctors’ opinions receive greater weight because they are employed to cure and have more opportunity to 6 1 know and observe patients as individuals. See Magallanes v. Bowen, 881 F.2d 2 747, 751 (9th Cir. 1989). “The treating physician’s opinion is not, however, 3 necessarily conclusive as to either a physical condition or the ultimate issue of 4 disability.” Id. “The ALJ may disregard the treating physician’s opinion whether 5 or not that opinion is contradicted.” Id. An “ALJ need not accept the opinion of 6 any physician . . . if that opinion is brief, conclusory, and inadequately supported 7 by clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 8 (9th Cir. 2009); Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). To 9 reject the un-contradicted opinion of a treating doctor, the ALJ must provide 10 “clear and convincing reasons that are supported by substantial evidence.” Bayliss 11 v. Barhnart, 427 F.3d 1211, 1216 (9th Cir. 2005). Where a treating doctor’s 12 opinion is contradicted, the “ALJ may only reject it by providing specific and 13 legitimate reasons that are supported by substantial evidence.” Id. 14 An ALJ need not recite “magic words” to reject a treating physician’s 15 opinion; the court may draw “specific and legitimate inferences” from the ALJ’s 16 opinion. Magallanes, 881 F.2d at 755. “[I]n interpreting the evidence and 17 developing the record, the ALJ does not need to ‘discuss every piece of evidence.’” 18 Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (quoting 19 Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998)). 20 21 22 b. Analysis i. Dr. Mirakhor Plaintiff claims that the ALJ did not evaluate the opinion of Dr. Solomon 23 Mirakhor, a psychiatrist, asserting that the “ALJ’s decision does not even 24 reference or refer to Dr. Mirakhor” claiming that the alleged failure “to mention a 25 treating physician’s opinion before making findings contrary to it” results in 26 “harmful error.” (Jt. Stip. at 4-5.) Plaintiff’s argument about Dr. Mirakhor relies 27 upon a faulty premise. 28 7 1 One of the first medical records cited by the ALJ in her decision is a 2 consultation report by Dr. Mirakhor, dated July 6, 2011, in which Dr. Mirakhor 3 diagnoses Plaintiff with a bipolar disorder. (AR 24, citing AR 437.) The ALJ also 4 cites in her decision psychiatric consultation reports by Dr. Mirakhor dated 5 January 26, 2012, August 30, 2012, and February 4, 2013. (AR 24-26, citing AR 6 431-436.) The ALJ refers to Dr. Mirakhor as the “physician” who conducted the 7 “psychiatric consultation” in the decision, and the underlying reports all refer 8 expressly to Dr. Mirakhor. Further, at the hearing, based on the indication of “bi- 9 polar disorder,” the ALJ questioned Plaintiff about his bipolar disorder and about 10 11 his sessions with his psychiatrist. (AR 73, 74.) During her disability analysis, the ALJ included bipolar disorder among the 12 severe impairments experienced by Plaintiff (AR 24); however, the ALJ found that 13 the severity of Plaintiff’s mental impairment did not meet or medically equal a 14 listed impairment. (AR 28.) Referring to Listing 12.04, which addresses “Affective 15 Disorders,” including bipolar disorder, 20 C.F.R. Pt. 404, Subpt. P, App. I, 16 §12.04(A)(3), the ALJ found that the impairment did not meet the listing because 17 it failed to reach the standard of Paragraph B of 12.04, which requires at least two 18 of the following: (1) marked restriction of activities of daily living; (2) marked 19 difficulties in maintaining social functioning; (3) marked difficulties in maintaining 20 concentration, persistence, or page; or (4) repeated episodes of decompensation, 21 each of extended duration. A “marked” limitations is one that is “more than 22 moderate but less than extreme” and “may arise when several activities or 23 functions are impaired, or even when only one is impaired, as long as the degree of 24 limitation is such as to interfere seriously with [a claimant’s] ability to function 25 independently, appropriately, effectively, and on a sustained basis.” 20 C.F.R. Pt. 26 404, Subpt. P, App. 1, Rule 12.00(C). 27 The ALJ explained: 28 8 1 In activities of daily living, the [Plaintiff] has mild restriction. The 2 [Plaintiff] testified that he is able to care for his four children. In social 3 functioning, the [Plaintiff] has mild difficulties. There are no frequent 4 reports in the file of the [Plaintiff]’s treatment providers having 5 difficulty interacting with the [Plaintiff]. With regard to concentration, 6 persistence, or pace, the [Plaintiff] has mild difficulties. There is no 7 evidence in the file from the treatment notes showing that the 8 [Plaintiff] has significant difficulty with concentration, persistence, and 9 pace. As for episodes of decompensation, the [Plaintiff] has 10 experienced no episodes of decompensation, which have been of 11 extended duration. Because the [Plaintiff]’s medical impairments do 12 not cause at least two “marked” limitations or one “marked” 13 limitation and “repeated” episodes of decompensation, each of 14 extended duration, the “paragraph B” criteria are not satisfied. 15 (AR 28.) Taking into account the diagnosis of bipolar disorder, the ALJ provided 16 for a limitation to only unskilled work in her RFC assessment. (AR 31.) 17 As an initial matter, the Court finds that the ALJ did consider Dr. 18 Mirakhor’s opinion, having cited to and referenced his consultation reports, and 19 incorporating Dr. Mirakhor’s diagnosis of bipolar disorder into her findings. 20 Further, having reviewed the ALJ’s reasoning and the record as a whole, the 21 Court finds that the ALJ’s decision with respect to Dr. Mirakhor’s opinion is 22 supported by substantial evidence. The record supports the ALJ’s finding that 23 Plaintiff had only mild limitations in activities of daily living.2 As the ALJ noted, 24 Plaintiff reported that he was “the soccer mom” and was the primary caretaker of 25 his four children. (AR 70.) As to social functioning, the ALJ noted in her decision 26 27 28 The Court provides further discussion of Plaintiff’s activities of daily living infra in its discussion of the ALJ’s treatment of the subjective symptom testimony. 2 9 1 (AR 30) that treatment notes show that Plaintiff consistently had normal mood 2 and affect and was active and alert. (AR 441, 459, 464, 467, 470, 473, 476, 479, 3 482, 485, 551, 553, 559.) Neither the decision nor the Joint Stipulation point to 4 any medical evidence in the record to indicate that Plaintiff suffered any 5 decompensation for extended periods of time, and the Court in its review of the 6 record has found none. While the Plaintiff correctly notes (Jt. Stip. at 5) that Dr. 7 Mirakhor found that Plaintiff suffered difficulties with concentration and focus 8 (AR 433, 435, 437), the ALJ found that these difficulties were not significant. (AR 9 28.) Assuming, arguendo, that the ALJ had found that the Plaintiff’s issues with 10 concentration marked, standing alone this finding would be insufficient to meet 11 the requirements of paragraph B for a 12.04 listing. 12 The ALJ’s interpretation of the evidence was reasonable. See Tommasetti v. 13 Astrue, 533 F.3d 1035, 1041-42 (9th Cir. 2008). Moreover, even if the Court were 14 to find that the evidence was susceptible to more than one rational interpretation, 15 the ALJ’s findings, if rational, must be upheld. Andrews, 53 F.3d at 1039-40. The 16 ALJ did not commit legal error in evaluating Dr. Mirakhor’s opinion. 17 18 ii. Dr. Fouad Dr. Fouad served as Plaintiff’s treating physician since 2008. (AR 573.) In 19 March 2015, he opined that Plaintiff should be limited to sitting no more than ten 20 minutes at a time, standing no more than twenty minutes at a time, and could 21 neither sit nor stand for a period longer than two hours in an eight-hour day. (AR 22 574.) Dr. Fouad concluded that Plaintiff would need to take breaks every forty 23 minutes for at least ten minute periods, and, if Plaintiff worked full-time, Plaintiff 24 would be absent from work more than four days per month. (AR 574, 576.) 25 After crediting the opinion of state agency consultants who found Plaintiff 26 was not disabled and found his symptom testimony was not “substantiated by the 27 objective medical evidence alone,” the ALJ found Dr. Fouad’s March 2015 28 10 1 opinion regarding Plaintiff’s functional capacity carried “little weight” because: (1) 2 “Dr. Fouad’s treatment records do not show the types of serious abnormalities and 3 symptoms that would be expected if the [Plaintiff’s] limitations were as severe as 4 now opined by Dr. Fouad”; (2) Dr. Fouad “did not previously report [Plaintiff] to 5 be disabled or unable to work permanently in his treatment;” (3) another doctor, 6 Dr. Zeman, “stated that Plaintiff could return to work with no restrictions”; (4) 7 only “once did Dr. Fouad keep [Plaintiff] off work for two weeks while a foot 8 ulcer healed”; (5) “Dr. Fouad is not an orthopedic or mental health specialist”; 9 and (6) it appeared that Dr. Fouad had not seen Plaintiff “in the last year and a 10 11 half raising issues as to the reliability of Dr. Fouad’s assessment.” (AR 31.) In further support of these conclusions, the ALJ referred to the facts that, as 12 she had set forth in detail earlier in the decision, when Dr. Fouad examined 13 Plaintiff in April, June, and July 2012, his examination was unremarkable and he 14 noted that Plaintiff had normal gait and station. (AR 524, 527, 529.) While Dr. 15 Fouad did find in October 2012 that Plaintiff suffered from antalgic gait resulting 16 from an ulcer on his left foot (AR 513) and ordered that Plaintiff take two weeks 17 off from work (AR 515), Dr. Fouad subsequently found that Plaintiff had normal 18 stance and gait in July 2013 (AR 511), October 2013 (AR 509) and the physical 19 examinations were unremarkable as they had been previously. In her decision, the 20 ALJ noted the inconsistencies between Dr. Fouad’s assessment in 2015 with the 21 treatment notes Dr. Fouad had provided throughout 2012 and 2013. (AR 31.) 22 In addition to the lack of support of Dr. Fouad’s opinion in his own medical 23 records and prior course of treatment, the opinion of Dr. Zeman, an examining 24 physician referred to Plaintiff by Dr. Fouad, found in October 2011 and in June 25 2012 that Plaintiff was able to work with no restrictions, which further supports 26 the ALJ’s treatment of Dr. Fouad’s 2015 opinion. (AR 292, 298.) 27 28 11 1 Dr. Fouad’s March 2015 opinion is contradicted by treating physician Dr. 2 Zeman’s opinion from 2011 and 2012, the state agency reviewing consulting 3 physician’s opinions, the medical records, and Dr. Fouad’s own treatment notes 4 and course of treatment. The Court finds that ALJ’s decision to afford “little 5 weight” Dr. Fouad’s March 2015 opinion is supported specific and legitimate 6 reasons that are supported by substantial evidence. 7 8 iii. The Listings Plaintiff also asserts that the ALJ erred at step three in “fail[ing] to consider 9 any of the physical listings and fail[ing] to consider the impact of [Plaintiff ’s] 10 mental and physical impairments in conglomerate,” arguing that the ALJ was 11 “required to take into account the combined effect of a disability claimant’s 12 impairments when looking at potential listing level impairments, and arguing that 13 the ALJ must discuss evidence of equivalency when presented with such evidence 14 by a claimant. (Jt. Stip. at 5.) The Commissioner does not appear to have 15 responded to these arguments in the Joint Statement. 16 In her decision, the ALJ stated that “after reviewing all of the documentary 17 evidence and testimony of record,” she concluded that Plaintiff ’s “impairments do 18 not meet or equal any of the criteria set for in any of the listed impairments set 19 forth in Appendix 1, Subpart P, Regulations No. 4.” (AR 28 (emphasis added).) 20 The ALJ further stated in her listing analysis that she considered “an impairment 21 or combination of impairments” in her listing assessment. (Id.) Thus, the record 22 does reflect that the ALJ considered both physical and mental impairments and 23 listings, both singularly and in combination. 24 Plaintiff also argues that the ALJ failed to discuss Plaintiff ’s assertion that 25 one or more conditions were equivalent to the listings, arguing specifically that the 26 ALJ “did not incorporate findings on examination regarding [Plaintiff ’s] cellulitis 27 into step two,” further arguing that Listing 8.04, regarding “chronic infections of 28 12 1 the skin or mucous membranes . . .” should have been considered.3 (Jt. Stip. at 5- 2 6.) However, when discussing the Listings, the ALJ expressly referenced the 3 opinions of the state agency medical consultants who reached the same 4 conclusions as the ALJ regarding the Listings. “The signed written opinion of the 5 state agency physician was a sufficient basis for the ALJ's equivalence 6 determination, and the live testimony of a medical expert was not required.” 7 Crane v. Barnhart, 224 Fed. Appx. 574, 578 (9th Cir. 2007). Among other listings 8 expressly considered by the state agency consultants was Listing 8.04, Chronic 9 Infections of Skin or Mucous Membranes. (AR 90, 106, 121, 134.) In each 10 instance, after considering Listing 8.04, the state agency consultants determined 11 Plaintiff was not disabled. (AR 94, 110, 125, 138.) Thus, contrary to Plaintiff ’s 12 assertion that it “was error for the ALJ not to consider” Listing 8.04 (Jt. Stip. at 6), 13 in fact, the ALJ expressly referenced the state agency consultants’ opinions -- 14 opinions which considered and rejected equivalency with Listing 8.04, and which 15 are a proper basis for an ALJ’s equivalence determination. The ALJ did not err in her Listing analysis.4 16 17 2. Adverse Credibility Determination 18 Plaintiff argues that the ALJ’s credibility determination was not properly 19 supported. (Jt. Stip. at 12.) The Court finds that the ALJ’s evaluation of the 20 subjective symptom testimony was appropriate. 21 22 23 24 25 26 27 28 At the hearing, Plaintiff testified that he used to suffer from frequent foot wounds, until he learned how to conduct proper care and treatment at home. (AR 72.) 3 Plaintiff asserts that the ALJ erred in not including Plaintiff’s prior MRSA infection as part of his RFC, asserting that with such a “highly contagious” impairment, his ability to work “would be compromised.” (Jt. Stip. at 6-7.) However, Plaintiff’s medical records reveal that his MRSA infection had “been addressed” as of May 2014 and it did not prevent one of his treating physicians from suggesting that Plaintiff could “benefit from a gym membership.” (AR 570.) The ALJ did not err. 4 13 1 2 a. Applicable Law The ALJ must make two findings before the ALJ can find a claimant’s pain 3 or symptom testimony is not credible. See Treichler v. Comm’r of Soc. Sec. 4 Admin., 775 F.3d 1090, 1102 (9th Cir. 2014) (citing 42 U.S.C. § 423(d)(5)(A)). 5 First, the ALJ must determine whether the claimant has presented objective 6 medical evidence of an underlying impairment “which could reasonably be 7 expected to produce the pain or other symptoms alleged.” Treichler, at 1102. As 8 long as the plaintiff offers evidence of a medical impairment that could reasonably 9 be expected to produce pain, the ALJ may not require the degree of pain to be 10 corroborated by objective medical evidence. See Bunnell v. Sullivan, 947 F.2d 341, 11 346-47 (9th Cir. 1991). Second, if the claimant has produced such evidence, and 12 the ALJ has not determined that the claimant is malingering, the ALJ must 13 provide “‘specific, clear and convincing reasons for’ rejecting the claimant’s 14 testimony regarding the severity of the claimant’s symptoms.’” Treichler, 775 F.3d 15 at 1102 (quoting Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)). 16 An ALJ’s assessment of credibility should normally be given great weight, 17 and where an ALJ’s credibility finding is supported by substantial evidence, a 18 reviewing court may not engage in second-guessing. See Thomas v. Barnhart, 278 19 F.3d 947, 959 (9th Cir. 2002); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985). 20 Furthermore, “[a]n ALJ cannot be required to believe every allegation of disabling 21 pain, or else disability benefits would be available for the asking . . ..” Fair v. 22 Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (citing 42 U.S.C. § 423(d)(5)). 23 When analyzing a claimant’s subjective symptoms, the ALJ may consider 24 factors relevant to the symptoms such as, inter alia, the claimant’s daily activities; 25 precipitating and aggravating factors; the type, dosage, effectiveness and side 26 effects of medication; treatment, other than medication, that the claimant receives 27 28 14 1 or has received for relief of pain or other symptoms; or any other measures that 2 the claimant has used to relieve pain or symptoms. See 20 C.F.R. § 404.1529. 3 The ALJ may employ “ordinary techniques of credibility evaluation,” such 4 as prior inconsistent statements concerning symptoms, testimony that appears less 5 than candid, or an unexplained or inadequately explained failure to seek treatment 6 or follow a prescribed course of treatment, in assessing a claimant’s credibility. See 7 Tommasetti, 533 F.3d at 1039 (citations omitted); see also Thomas, 278 F.3d at 8 958-59 (in analyzing credibility of claimant’s pain complaints, ALJ may consider 9 reputation for truthfulness, inconsistencies between testimony and conduct, work 10 record); Fair, 885 F.2d at 603 (in analyzing claimant’s pain, ALJ may consider 11 evidence of daily activities, inadequately-explained failure to seek treatment or 12 follow prescribed treatment). In addition, the ALJ may consider testimony from 13 physicians and third parties concerning the nature, severity, and effect of the 14 symptoms about which the claimant complains. See Thomas, 278 F.3d at 958-59 15 (citing Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997)). 16 However, once a claimant presents medical evidence of an underlying 17 impairment, the ALJ may not discredit testimony regarding subjective pain and 18 other symptoms merely because the symptoms, as opposed to the impairments, are 19 unsupported by objective medical evidence. Lingenfelter, 504 F.3d at 1035-36; see 20 also Bunnell, 947 F.2d at 346-47. Nevertheless, “[w]hile subjective pain testimony 21 cannot be rejected on the sole ground that it is not fully corroborated by objective 22 medical evidence, the medical evidence is still a relevant factor in determining the 23 severity of the claimant's pain and its disabling effects.” Rollins v. Massanari, 261 24 F.3d 853, 857 (9th Cir. 2001) (citing 20 C.F.R. § 404.1529(c)(2)). 25 On March 28, 2016, after the ALJ’s assessment in this case, SSR 16-3p went 26 into effect. See SSR 16-3p, 2016 WL 1119029 (Mar. 16, 2016). SSR 16-3p indicates 27 that “we are eliminating the use of the term ‘credibility’ from our sub-regulatory 28 15 1 policy, as our regulations do not use this term.” Id. Moreover, “[i]n doing so, we 2 clarify that subjective symptom evaluation is not an examination of an individual’s 3 character” and requires that the ALJ consider all of the evidence in an individual’s 4 record when evaluating the intensity and persistence of symptoms. Id.; see also 5 Trevizo v. Berryhill, 862 F.3d 987, 1000 at n.5 (9th Cir. 2017). Thus, the 6 adjudicator “will not assess an individual’s overall character or truthfulness in the 7 manner typically used during an adversarial court litigation. The focus of the 8 evaluation of an individual’s symptoms should not be to determine whether he or 9 she is a truthful person.” SSR 16-3p, 2016 WL 1119029, at *10 (Mar. 16, 2016). 10 11 b. Analysis The ALJ noted that while Plaintiff ’s medically determinable impairments 12 could reasonably be expected to cause the alleged symptoms, Plaintiff ’s statements 13 concerning the intensity, persistence and limiting effects of these symptoms are not 14 entirely credible. (AR 30.) To support her conclusion, the ALJ offered the 15 following analysis: 16 Despite [the fact that Plaintiff] testified to extreme physical limitations, 17 the treatment notes reflect minimal findings on physical examination. 18 The claimant consistently had normal gait and required no assistive 19 device. [Plaintiff] had been prescribed pain medications for some 20 years; however, [Plaintiff] repeatedly reported that his medications 21 were helpful in reducing his pain levels. While [Plaintiff] testified to 22 extreme side effects to medications, no such reported to physicians are 23 present in the record. This inconsistency renders the [Plaintiff]’s 24 testimony less than fully credible. The record reflects daily activities of 25 the [Plaintiff] that are not limited to the extent one would expect, given 26 the complaints of disabling symptoms and limitations. [Plaintiff] 27 reported going to Disneyland for a full day and reported working at a 28 16 1 warehouse where he was on his feet all day. While that work activity 2 may not have constituted disqualifying substantial gainful activity, it 3 does suggest that the [Plaintiff] has significant abilities inconsistent 4 with total disability. [Plaintiff] also reported being a “stay-at-home” 5 dad. [Plaintiff] has four children and caring for children can be quite 6 demanding both physically and emotionally. As for [Plaintiff]’s mental 7 symptoms, the treatment notes consistently state that the [Plaintiff] 8 had normal mood and affect and was active and alert. [Plaintiff] had 9 been told that he needed to be on a mood stabilizer to control his 10 alleged bipolar symptoms, but he never consistently complied with this 11 advice, noting in October 2013 that [Plaintiff] was not taking any 12 medication for his bipolar disorder. 13 14 (AR 30) (citations omitted.) The Court finds that the ALJ properly engaged in the required two-step 15 analysis. First, she determined that Plaintiff had presented objective medical 16 evidence of an underlying impairment that could reasonably be expected to 17 produce her alleged symptoms. (Id.) She then found that Plaintiff ’s statements 18 concerning the intensity, persistence, and limiting effects of those symptoms were 19 “not entirely credible.” (Id.) The ALJ provided several specific, clear, and 20 convincing reasons drawn directly from the record to support her rationale. 21 First, the ALJ noted that the subjective symptom testimony was largely at 22 odds with the treatment notes, wherein, for physical symptoms, Plaintiff is 23 routinely, though not always, found to have normal gait without need for assistive 24 devices and for mental symptoms, the treatment notes “consistently state that 25 [Plaintiff] had normal mood and affect and was active and alert.” (AR 30 citing 26 AR 441, 459, 464, 467, 470, 473, 476, 479, 482, 485, 551, 553, 559.) Further, the 27 subjective symptom testimony also appears at odds with the opinion of examining 28 17 1 physician Dr. Zeman, who, as discussed above, found in October 2011 and in June 2 2012 that Plaintiff was able to work with no restrictions. (AR 292, 298.) Although a 3 lack of objective medical evidence cannot be the sole reason for rejecting a claimant’s 4 testimony, it can be one of several factors used in evaluating the credibility of 5 Plaintiff’s subjective complaints. Rollins, 261 F.3d at 856-57. 6 Second, the ALJ noted Plaintiff often reported prescribed pain medication 7 was helpful, at least when he took it. (AR at 30.) “Impairments that can be 8 controlled effectively with medication are not disabling.” See Warre v. Comm’r of 9 the Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006). In his portion of the 10 Joint Statement, Plaintiff takes issue with the ALJ’s conclusion, citing to portions 11 of the record which Plaintiff asserts shows that pain medication was not working. 12 (Jt. Stip. at 13-14, citing AR 288, 294-295, 510, 549, 569.) However, all of the 13 citations by Plaintiff, when the full visit record is reviewed, involve situations 14 where Plaintiff either was not taking his medication, recounted that the 15 medication was helping, or showed that the professional felt the pain was not 16 sufficient to prevent Plaintiff from working or exercising. (See AR 288-292 17 (reflecting visit on March 29, 2012, indicating Plaintiff reported “medications … 18 helped some but not that much” concluding “May return to work as of [that date] 19 with no restrictions”) 294-98 (reflecting visit on Oct. 21, 2011 with the notation 20 “He has not been taking medications for the pain” and concluding “May return to 21 work as of [that date] with no restrictions” and “would like him back at work 22 before knowing [where] to go with this case”); 510 (noting Plaintiff “currently on 23 no medications”); 549 (recounting “Meds continue to benefit with no significant 24 side effects. Patient consistently reports meds provide reduction in pain levels. . 25 ..”); 569-70 (pain medications “stable,” but epidural steroid injection “denied,” 26 provider noting Plaintiff “may benefit from a gym membership”) (emphasis 27 added).) The Court finds that the ALJ fairly summarized the medical records 28 18 1 relating to pain medication in finding they were not consistent with Plaintiff ’s 2 subjective symptom testimony. 3 Third, ALJ noted that Plaintiff testified about “extreme side effects to 4 medications,” but the ALJ found that the record did not reveal such complaints to 5 physicians, which the ALJ found rendered Plaintiff’s testimony about side effects 6 “less than fully credible.” (AR 30.) In fact, as noted above, Plaintiff reported to a 7 medical provider that he received benefit from his medication “with no significant 8 side effects.” (AR 549.) In the Joint Stipulation, Plaintiff notes the ALJ’s finding in 9 this regard, but does not appear to dispute the factual underpinnings of the finding. 10 (Jt. Stip. at 14.) Defendant notes that, under 20 C.F.R. §§ 404.1529(c)(4) and 11 416.929(c)(4), the agency “will consider whether there are any inconsistencies in 12 the evidence and the extent to which there are conflicts between your statements 13 and the rest of the evidence.” (Jt. Stip. at 17.) 14 Fourth, the ALJ found that Plaintiff ’s daily activities are not consistent with 15 his subjective reports of disabling symptoms. (AR 30.) The record reflecting 16 Plaintiff ’s daily activities supports the ALJ’s finding. With respect to daily 17 activities, the ALJ initially noted the evidence that Plaintiff had spent a full day at 18 Disneyland and had worked at a warehouse where he was on his feet all day 19 during the time period he claimed to be disabled, which, while not per se 20 disqualifying, are inconsistent with claims of a total disability. (Id.) Plaintiff argues 21 that his time at Disneyland and working resulted in disabling pain, which 22 “underscores his credibility.” (Jt. Stip. at 17.) The Court finds that the ALJ 23 properly considered the evidence of the full-day at Disneyland and the full day of 24 working at a warehouse as evidence inconsistent with Plaintiff ’s claims of total 25 disability, but not determinative of the issue in and of themselves. 26 In addition to the Disneyland day trip and warehouse work, the ALJ also 27 referenced Plaintiff ’s testimony that he was a “stay at home” dad caring for his 28 19 1 four children, a task that “can be quite demanding both physically and 2 emotionally.” (AR 30.) At the hearing, the ALJ asked Plaintiff about his duties as 3 a caretaker of his four children (and a fifth child, a nephew), who ranged in age 4 from 7 to 15. Plaintiff testified that he took the five children to school, made them 5 lunches, went shopping with the children choosing the items and unloading the 6 van, and tried “to put a quick meal together.” (AR 70, 77.) Plaintiff testified that 7 his wife and mother live in the home but both work outside the home, describing 8 himself as “the soccer mom.” (AR 70.) 9 In determining a plaintiff's credibility, an ALJ may consider whether a 10 plaintiff's daily activities are consistent with the asserted symptoms. See Thomas v. 11 Barnhart, 278 F.3d 947 958-59 (9th Cir. 2002) (citation omitted); see also SSR 96- 12 7p, 1996 SSR WL 374186, at *3 (stating that the “adjudicator must consider in 13 addition to the objective medical evidence when assessing the credibility of an 14 individual's statements: ... [t]he individual's daily activities”). While the fact that a 15 plaintiff can participate in various daily activities does not necessarily detract from 16 the plaintiff's credibility as to her specific limitations or overall disability, “a 17 negative inference is permissible where the activities contradict the other testimony 18 of the claimant, or where the activities are of a nature and extent to reflect 19 transferrable work skills.” Elizondo v. Astrue, 2010 WL 3432261, at *5 (E.D. Cal. 20 Aug. 31, 2010). “Daily activities support an adverse credibility finding if a 21 claimant is able to spend a substantial part of her day engaged in pursuits 22 involving the performance of physical functions or skills that are transferable to a 23 work setting.” Id. (citing Orn, 495 F.3d at 639; Morgan v. Comm'r of Soc. Sec. 24 Admin., 169 F.3d 595, 600 (9th Cir. 1999); and Thomas, 278 F.3d at 959). “A 25 claimant's performance of chores such as preparing meals, cleaning house, doing 26 laundry, shopping, occasional childcare, and interacting with others has been 27 considered sufficient to support an adverse finding when performed for a 28 20 1 substantial portion of the day.” Elizondo, 2010 WL 3432261, at *5 (citing Stubbs- 2 Danielson v. Astrue, 539 F.3d 1169, 1175 (9th Cir. 2008); Burch, 400 F.3d at 680- 3 81; Thomas, 278 F.3d at 959; Morgan, 169 F.3d at 600; and Curry v. Sullivan, 925 4 F.2d 1127, 1130 (9th Cir. 1990)); see also Rollins, 261 F.3d at 857 (the ability to 5 care for children may undermine complaints of severe limitations); Morgan, 169 6 F.3d at 600 (same, where claimant’s activities included occasional care for a 7 friend’s child). Because “‘many home activities are not easily transferable to what 8 may be the more grueling environment of the workplace, where it might be 9 impossible to periodically rest or take medication’ the record should show how 10 childcare responsibilities conflict with the reported limitations.” Trevizo, 862 F.3d 11 at 1004 (quoting Fair, 885 F.2d at 603). 12 The Court finds that the ALJ properly considered daily activities, including 13 the full-day Disneyland trip and Plaintiff ’s limited work at a warehouse, as well as 14 Plaintiff ’s description of his tasks as a “soccer mom,” the sole adult at home 15 during the day caring for five children ranging in ages from 7-15, as the testimony 16 bore on Plaintiff ’s subjective symptom testimony. This evidence, in combination, is 17 not consistent with Plaintiff ’s subjective symptom testimony and the activities are 18 transferrable to “light work” tasks. Further, Plaintiff ’s description of his daily 19 activities as a “soccer mom” – the sole adult caregiver during the day to his four 20 children and his nephew’s child -- is a telling and descriptive phrase consistent with 21 significant daily activity and supportive of the ALJ’s finding that such activities 22 can be “quite demanding, both physically and mentally.” (AR 30.) 23 In sum, the ALJ’s conclusion that Plaintiff ’s subjective symptom testimony 24 was not supported by the medical records, was contradicted by his statements 25 about the efficacy of medication, was not supported by records relating to alleged 26 side effects to medication, and was not supported by his daily activities, provides 27 specific, clear and convincing reasons to discount Plaintiff ’s testimony. 28 21 1 3. RFC Assessment 2 Plaintiff contends that the ALJ’s RFC was infected by the errors in the 3 evaluation of the medical opinion evidence and that the ALJ should have sought a 4 consultative examination. (Jt. Stip. at 18.) The Court finds that the ALJ’s RFC 5 assessment was supported by substantial evidence in the medical record. 6 7 a. Applicable Law A claimant’s RFC is “the most [he] can still do” despite the impairments 8 and related symptoms that “may cause physical and mental limitations that affect 9 what [he] can do in a work setting.” 20 C.F.R. § 404.1545(a)(1). A district court 10 must uphold an ALJ’s RFC assessment when the ALJ has applied the proper legal 11 standard and substantial evidence in the record as a whole supports the decision. 12 Bayliss, 427 F.3d at 1217. The ALJ must consider all the medical opinions 13 “together with the rest of the relevant evidence [on record].” 20 C.F.R § 14 202.1527(b); see also § 404.1545(a)(1) (“We will assess your residual functional 15 capacity based on all relevant evidence in your case record.”). 16 In assessing an RFC, the ALJ considers those limitations supported by the 17 record and need not take into account properly rejected evidence or subjective 18 complaints. See Bayliss, 427 F.3d at 1217 (upholding ALJ’s RFC because “the 19 ALJ took into account those limitations for which there was record support that 20 did not depend on [claimant]’s subjective complaints”); Batson v. Comm’r of Soc. 21 Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004) (ALJ not required to incorporate 22 into RFC findings from physician opinions that were “permissibly discounted”). 23 An ALJ may consider findings by state-agency medical consultants as opinion 24 evidence. 20 C.F.R. § 404.1527(e). 25 26 27 b. Analysis Plaintiff ’s arguments related to ALJ’s treatment of the physicians’ opinions are addressed in Section IV(1)(b) above and those findings are incorporated herein. 28 22 1 In addition, Plaintiff claims that the ALJ did not “fully account for 2 [Plaintiff ’s] foot ulcers” (Jt. Stip. at 19) as a part of the RFC assessment; however, 3 the ALJ explicitly noted Plaintiff ’s “chronic foot wounds” in her RFC discussion, 4 and further noted that Plaintiff testified at the hearing that “his chronic foot 5 wounds have abated now that he has learned techniques for better care.” (AR 29.) 6 Similarly, Plaintiff asserts that the ALJ “did not fully contemplate the extent of 7 [Plaintiff ’s] mental illness” in assessing his RFC (Jt. Stip. at 19), but in fact, the 8 ALJ spent eight paragraphs in her decision discussing Plaintiff ’s mental 9 limitations, concluding by finding that the RFC “assessment reflects the degree of 10 limitation the undersigned has found in the ‘paragraph B’ mental function 11 analysis.” (AR 28-29.) Thus, Plaintiff ’s specific objections to the RFC are 12 unsupported and contrary to the record. 13 Plaintiff also argues that the ALJ erred by failing to request a consultative 14 examination. (Jt. Stip. at 19.) One of the means available to the ALJ to 15 supplement an inadequate medical record is to order a consultative examination. 16 See 20 C.F.R. §§ 404.1519, 416.919. The “Commissioner has broad latitude in 17 ordering a consultative examination.” Reed v. Massanari, 270 F.3d 838, 842 (9th 18 Cir. 2001) (internal citations and quotations omitted). The SSA may purchase a 19 consultative examination when the evidence as a whole is not sufficient to support 20 a decision on a claim. 20 C.F.R. § 416.919a(b). Where “the record is devoid of 21 evidence to support a finding either for or against the claimant on a determinative 22 issue, further development of the record, via consultation with a medical expert, is 23 mandatory.” Ludwig v. Halter, 5 Fed. Appx. 689, 691 (9th Cir. 2001). 24 Here, the ALJ did not find the evidence was insufficient to support her 25 decision, and Plaintiff fails to specifically identify any determinative issue upon 26 which the record was devoid of evidence to support the ALJ’s finding. Thus, a 27 consultative examination was not required. 28 23 1 2 Substantial evidence supports the ALJ’s RFC assessment and a consultative examination was not required. 3 V. 4 CONCLUSION AND ORDER 5 Consistent with the foregoing, IT IS ORDERED that judgment be entered 6 AFFIRMING the decision of the Commissioner and dismissing this action with 7 prejudice. IT IS FURTHER ORDERED that the Clerk serve copies of this Order 8 and Judgment on the counsel for both parties. 9 10 DATED: September 14, 2017 _________________________________ JOHN D. EARLY United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 24

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