Fentress Smith v. Michael J Astrue

Filing 17

MEMORANDUM OPINION AND ORDER by Magistrate Judge John E. McDermott, IT IS HEREBY ORDERED that the decision of the Commissioner of Social Security is AFFIRMED and this case dismissed with prejudice. (SEE OPINION FOR FURTHER DETAILS) (lmh)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 FENTRESS SMITH, Plaintiff, 13 v. 14 MICHAEL J. ASTRUE, 15 Commissioner of Social Security, 16 Defendant. 17 18 19 ) ) ) ) ) ) ) ) ) ) ) ) Case No. EDCV 11-01290-JEM MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF THE COMMISSIONER OF SOCIAL SECURITY PROCEEDINGS On August 23, 2011, Fentress Smith (“Plaintiff” or “Claimant”) filed a complaint seeking 20 review of the decision by the Commissioner of Social Security (“Commissioner”) denying 21 Plaintiff’s application for Supplemental Security Income (“SSI”) disability benefits. The 22 Commissioner filed an Answer on November 28, 2011. On April 9, 2012, the parties filed a 23 Joint Stipulation (“JS”). The matter is now ready for decision. 24 Pursuant to 28 U.S.C. § 636(c), both parties consented to proceed before this Magistrate 25 Judge. After reviewing the pleadings, transcripts, and administrative record (“AR”), the Court 26 concludes that the Commissioner’s decision should be affirmed and the case dismissed with 27 prejudice. 28 BACKGROUND 1 2 Plaintiff is a 47 year old male who applied for SSI benefits on March 30, 2007, alleging 3 disability beginning July 16, 2003. (AR 16.) Plaintiff has not engaged in substantial gainful 4 activity since March 30, 2007, the application date. (AR 18.) 5 Plaintiff’s claim was denied initially and on reconsideration on November 15, 2007. (AR 6 16.) Plaintiff filed a timely request for hearing on January 10, 2008. (AR 16.) Plaintiff appeared 7 and testified at hearings held before Administrative Law Judge (“ALJ”) Joseph D. Schloss on 8 May 18, 2009, and November 16, 2009, in San Bernardino, California. (AR 16.) Claimant was 9 represented by counsel at both hearings. (AR 16.) Medical expert Dr. Arthur Lorber and 10 vocational expert (“VE”) Corinne Porter also appeared and testified at the November 16, 2009, 11 hearing. (AR 16.) The ALJ issued an unfavorable decision on February 11, 2011. (AR 16-26.) 12 The Appeals Council denied review on July 5, 2011. (AR 1-5.) 13 DISPUTED ISSUES 14 As reflected in the Joint Stipulation, Plaintiff raises the following disputed issues as 15 grounds for reversal and remand: 16 1. Whether the ALJ properly considered the May 13, 2009, and June 5, 2009, 17 opinions of treating physician Muhammad Nasir, M.D., an internist and pain 18 management specialist. 19 2. qualified medical examiner for Mr. Smith’s worker’s compensation claim. 20 21 22 23 Whether the ALJ properly considered the June 2009 opinions of Dr. Styner, a 3. Whether the ALJ properly considered Mr. Smith’s excess pain testimony. STANDARD OF REVIEW Under 42 U.S.C. § 405(g), this Court reviews the ALJ’s decision to determine whether 24 the ALJ’s findings are supported by substantial evidence and free of legal error. Smolen v. 25 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); see also DeLorme v. Sullivan, 924 F.2d 841, 846 26 (9th Cir. 1991) (ALJ’s disability determination must be supported by substantial evidence and 27 based on the proper legal standards). 28 2 1 Substantial evidence means “‘more than a mere scintilla,’ but less than a 2 preponderance.” Saelee v. Chater, 94 F.3d 520, 521-22 (9th Cir. 1996) (quoting Richardson v. 3 Perales, 402 U.S. 389, 401 (1971)). Substantial evidence is “such relevant evidence as a 4 reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 5 401 (internal quotation marks and citation omitted). 6 This Court must review the record as a whole and consider adverse as well as 7 supporting evidence. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). Where 8 evidence is susceptible to more than one rational interpretation, the ALJ’s decision must be 9 upheld. Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). 10 “However, a reviewing court must consider the entire record as a whole and may not affirm 11 simply by isolating a ‘specific quantum of supporting evidence.’” Robbins, 466 F.3d at 882 12 (quoting Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)); see also Orn v. Astrue, 495 13 F.3d 625, 630 (9th Cir. 2007). THE SEQUENTIAL EVALUATION 14 15 The Social Security Act defines disability as the “inability to engage in any substantial 16 gainful activity by reason of any medically determinable physical or mental impairment which 17 can be expected to result in death or . . . can be expected to last for a continuous period of not 18 less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Commissioner has 19 established a five-step sequential process to determine whether a claimant is disabled. 20 20 C.F.R. §§ 404.1520, 416.920. 21 The first step is to determine whether the claimant is presently engaging in substantial 22 gainful activity. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). If the claimant is engaging 23 in substantial gainful activity, disability benefits will be denied. Bowen v. Yuckert, 482 U.S. 137, 24 140 (1987). Second, the ALJ must determine whether the claimant has a severe impairment or 25 combination of impairments. Parra, 481 F.3d at 746. An impairment is not severe if it does not 26 significantly limit the claimant’s ability to work. Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 27 1996). Third, the ALJ must determine whether the impairment is listed, or equivalent to an 28 impairment listed, in 20 C.F.R. Pt. 404, Subpt. P, Appendix I of the regulations. Parra, 481 F.3d 3 1 at 746. If the impediment meets or equals one of the listed impairments, the claimant is 2 presumptively disabled. Bowen v. Yuckert, 482 U.S. at 141. Fourth, the ALJ must determine 3 whether the impairment prevents the claimant from doing past relevant work. Pinto v. 4 Massanari, 249 F.3d 840, 844-45 (9th Cir. 2001). Before making the step four determination, 1 5 the ALJ first must determine the claimant’s residual functional capacity (“RFC”). 20 C.F.R. § 6 416.920(e). The RFC must consider all of the claimant’s impairments, including those that are 7 not severe. 20 C.F.R. §§ 416.920(e), 416.945(a)(2); Social Security Ruling (“SSR”) 96-8p. If 8 the claimant cannot perform his or her past relevant work or has no past relevant work, the ALJ 9 proceeds to the fifth step and must determine whether the impairment prevents the claimant 10 from performing any other substantial gainful activity. Moore v. Apfel, 216 F.3d 864, 869 (9th 11 Cir. 2000). The claimant bears the burden of proving steps one through four, consistent with the 12 13 general rule that at all times the burden is on the claimant to establish his or her entitlement to 14 benefits. Parra, 481 F.3d at 746. Once this prima facie case is established by the claimant, the 15 burden shifts to the Commissioner to show that the claimant may perform other gainful activity. 16 Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). To support a finding that a 17 claimant is not disabled at step five, the Commissioner must provide evidence demonstrating 18 that other work exists in significant numbers in the national economy that the claimant can do, 19 given his or her RFC, age, education, and work experience. 20 C.F.R. § 416.912(g). If the 20 Commissioner cannot meet this burden, then the claimant is disabled and entitled to benefits. 21 Id. THE ALJ DECISION 22 In this case, the ALJ determined at step one of the sequential process that Plaintiff has 23 24 not engaged in substantial gainful activity since March 30, 2007, the date Plaintiff applied for 25 SSI disability benefits. (AR 18.) Based on a previous application filed on November 30, 2004, 26 27 28 1 Residual functional capacity (“RFC”) is what one “can still do despite [his or her] limitations” and represents an assessment “based on all the relevant evidence.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). 4 1 Plaintiff was found disabled with an onset date of November 1, 2004, due to a disorder of the 2 back. (AR 16.) Subsequently, he was incarcerated from November 2005 to March 28, 2007, 3 and his entitlement to SSI disability benefits ceased. (AR 16.) The alleged onset date for this 4 application is March 30, 2007. (AR 579, 590.) 5 At step two, the ALJ determined that Plaintiff has the following medically determinable 6 severe impairment: degenerative disc disease of the lumbar and cervical spine. (AR 18. ) 7 At step three, the ALJ determined that Plaintiff does not have an impairment or 8 combination of impairments that meets or medically equals one of the listed impairments. (AR 9 18-19.) 10 The ALJ then found that the Plaintiff has the RFC to perform light work except for the 11 following limitations: 12 [C]laimant can only occasionally bend, stoop, kneel, crawl and climb stairs 13 and ramps. He cannot balance, work with vibration, work at unprotected 14 heights or climb ladders, ropes or scaffolds. 15 (AR 19.) In determining this RFC, the ALJ also made an adverse credibility determination. (AR 16 19.) 17 At step four, the ALJ found that Plaintiff is unable to perform any of his past relevant 18 work as a driver/loader/unloader and bus driver, which all required exertion beyond the 19 assessed RFC. (AR 24.) Based on the testimony of the VE, however, the ALJ did find there 20 were other jobs existing in significant numbers in the national economy that Plaintiff can 21 perform, including hand packager, mail clerk and cashier. (AR 25.) 22 Consequently, the ALJ concluded that Claimant was not disabled within the meaning of 23 the Social Security Act since March 30, 2007, the date Claimant’s application for Supplement 24 Security Income disability benefits was filed. (AR 26.) 25 26 DISCUSSION The ALJ decision must be affirmed. The ALJ properly rejected the opinions of Dr. Nasir 27 and Dr. Styne. The ALJ properly discounted Plaintiff’s subjective symptom testimony. 28 5 The ALJ’s RFC is supported by substantial evidence. The ALJ’s non-disability 1 2 determination is supported by substantial evidence and free of legal error. 3 I. THE ALJ’S RFC IS SUPPORTED BY SUBSTANTIAL EVIDENCE 4 Claimant alleges disability due to neck and back pain. (AR 19, 20, 21.) The ALJ 5 assessed the Claimant with an RFC for light work with some limitations. (AR 19.) All three 6 issues raised by Plaintiff concern the ALJ’s RFC. The ALJ’s RFC, however, is supported by 7 substantial evidence. 8 An RFC is not a medical determination but an administrative finding or legal decision 9 reserved to the Commissioner based on consideration of all the relevant evidence, including 10 medical evidence, lay witnesses and subjective symptoms. See SSR 96-5p; 20 C.F.R. 11 § 1527(e). In determining a claimant’s RFC, an ALJ must consider all relevant evidence in the 12 record, including medical records, lay evidence, and the effects of symptoms, including pain 13 reasonably attributable to the medical condition. Robbins, 466 F.3d at 883. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 A. The ALJ Properly Rejected The Opinions And RFC Assessments Of Dr. Nasir And Dr. Styne Plaintiff’s first two challenges to the ALJ’s RFC are that the ALJ improperly rejected the opinions of treating physician and pain management specialist Dr. Nasir and consulting examiner Dr. Styne. The Court disagrees. 1. Relevant Federal Law In evaluating medical opinions, the case law and regulations distinguish among the opinions of three types of physicians: (1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant (examining physicians); and (3) those who neither examine nor treat the claimant (non-examining, or consulting, physicians). See 20 C.F.R. §§ 404.1527, 416.927; see also Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). In general, an ALJ must accord special weight to a treating physician’s opinion because a treating physician “is employed to cure and has a greater opportunity to know and observe the patient as an individual.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (citation omitted). If a treating source’s opinion on the issues of the nature and severity of a claimant’s impairments 28 6 1 is well-supported by medically acceptable clinical and laboratory diagnostic techniques, and is 2 not inconsistent with other substantial evidence in the case record, the ALJ must give it 3 “controlling weight.” 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). 4 Where a treating doctor’s opinion is not contradicted by another doctor, it may be 5 rejected only for “clear and convincing” reasons. Lester, 81 F.3d at 830. However, if the 6 treating physician’s opinion is contradicted by another doctor, such as an examining physician, 7 the ALJ may reject the treating physician’s opinion by providing specific, legitimate reasons, 8 supported by substantial evidence in the record. Lester, 81 F.3d at 830-31; see also Orn, 495 9 F.3d at 632; Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). Where a treating 10 physician's opinion is contradicted by an examining professional’s opinion, the Commissioner 11 may resolve the conflict by relying on the examining physician’s opinion if the examining 12 physician’s opinion is supported by different, independent clinical findings. See Andrews v. 13 Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995); Orn, 495 F.3d at 632. Similarly, to reject an 14 uncontradicted opinion of an examining physician, an ALJ must provide clear and convincing 15 reasons. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). If an examining physician’s 16 opinion is contradicted by another physician’s opinion, an ALJ must provide specific and 17 legitimate reasons to reject it. Id. However, “[t]he opinion of a non-examining physician cannot 18 by itself constitute substantial evidence that justifies the rejection of the opinion of either an 19 examining physician or a treating physician”; such an opinion may serve as substantial 20 evidence only when it is consistent with and supported by other independent evidence in the 21 record. Lester, 81 F.3d at 830-31; Morgan, 169 F.3d at 600. 22 23 2. Analysis The medical evidence in this case is in conflict. The ALJ’s RFC for light work with 24 limitations was based on two complete orthopedic evaluations by orthopedic surgeon Dr. Bunsri 25 Sophon, the opinions of two reviewing State agency reviewers, the opinion of testifying medical 26 expert Dr. Arthur Lorber, and considerable MRI testing and other objective medical evidence. 27 The ALJ rejected the opinions of Dr. Nasir and Dr. Styne, both of whom wrote that Plaintiff was 28 disabled. The ALJ is responsible for resolving conflicts in the medical evidence, Andrews, 53 7 1 F.3d at 1039, and the ALJ’s interpretation of the evidence if reasonable should not be second2 guessed. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001.) Here, the ALJ’s 3 interpretation of the medical evidence is reasonable and supported by substantial evidence. 4 Dr. Sophon’s first report was April 24, 2007. (AR 348-52.) Despite Plaintiff’s claims of 5 low back and neck pain, Dr. Sophon found him in no acute distress. (AR 348-49.) There was 6 no evidence of tenderness or muscle spasm in the cervical spine, or thoracic and lumber spine. 7 (AR 350.) Range of motion was within normal limits, except for the lumbar spine. (AR 350, 8 351, 352.) Straight leg raising was negative. (AR 350.) He opined Plaintiff could lift 100 9 pounds and had no limitations in sitting, standing, walking, or bending. (AR 352.) Based on 10 this report, two State agency reviewing physicians Dr. J. Hartman and Dr. Keith Wahl 11 determined that Plaintiff could perform heavy work. (AR 24, 247-48, 347, 355-59.) 12 Dr. Sophon performed another complete orthopedic evaluation dated August 11, 2009. 13 (AR 520-25.) Again, he found Claimant in no acute distress (AR 521), and no evidence of 14 tenderness or muscle spasm in the cervical spine or thoracic and lumbar spine. (AR 522.) 15 Straight leg raising was negative. (AR 522.) There was non-painful restriction of motion of both 16 the cervical and lumbosacral spine. (AR 524.) Plaintiff would be able to lift 50 pounds, and is 17 restricted to sitting, standing, and walking six hours out of an eight hour workday. (AR 24.) 18 At the November 16, 2009, hearing, medical expert Dr. Arthur Lorber, who reviewed the 19 entire medical evidence of record, testified. (AR 579-83.) Dr. Lorber made specific reference to 20 an April 3, 2009, MRI that found minimal degenerative disease of the lumbar spine. (AR 583, 21 557.) He also discounted a June 14, 2004, MRI showing significant disc dessication as invalid 22 because of patient motion. (AR 24.) Relying on the opinions of Dr. Sophon and the two State 23 reviewing physicians and MRI radiological evidence, Dr. Lorber found that Plaintiff could 24 perform a limited range of light work activities. (AR 579-83.) Dr. Lorber indicated Claimant may 25 occasionally bend, stoop, crouch, and kneel, and should not crawl, balance, work at heights or 26 with vibration, or climb ladders. (AR 583.) The ALJ adopted Dr. Lorber’s RFC assessment. 27 (AR 19.) 28 8 1 In conflict with the above evidence, Plaintiff’s treating physician Dr. Nasir opined that 2 Plaintiff was unable to work because of migraine headaches, neck pain, shoulder pain, back 3 pain, leg pain, and anxiety. (AR 21.) A pain management specialist, Dr. Nasir prescribed 4 Motrin 800, Vicodin, Soma, and Xanax. (AR 395.) Treatment has included nerve blocks and 5 joint injections. (AR 391-92, 416.) 6 The ALJ rejected Dr. Nasir’s opinion for specific, legitimate reasons supported by 7 substantial evidence. First, the ALJ found that Dr. Nasir’s opinion was not well supported by 8 medically acceptable clinical and laboratory techniques. (AR 21, 22.) An ALJ may reject a 9 treating physician’s opinion if it is brief, conclusory and unsupported by objective medical 10 evidence. Batson v. Comm’r, 359 F.3d 1190, 1195 n.3 (9th Cir. 2004). The ALJ cited MRIs 11 and X-rays in 2009 indicating only mild/moderate radiological findings of degenerative changes 12 in the back and neck. (AR 20, 22, 388, 389.) An X-ray of the lumbar spine dated April 6, 2006, 13 found only mild spondylosis. (AR 20, 22, 511-12.) An electromyography showed only mild 14 radiculopathy. (AR 20, 22, 441.) Plaintiff points to no MRI or radiological findings to the 15 contrary. Indeed, Dr. Nasir only cites to unspecified MRI reports in past medical records, none 16 of which support disability. (AR 413, 423.) Plaintiff argues that the MRI findings do not erase 17 Dr. Nasir’s observations about pain but the ALJ’s point is that the orthopedic and radiological 18 evidence does not support either Plaintiff’s alleged pain symptoms or Dr. Nasir’s observations 19 about Plaintiff’s pain. Plaintiff has no answer to the ALJ’s finding that Dr. Nasir’s opinion is 20 unsupported by objective medical evidence. 21 Second, the ALJ found Dr. Nasir’s opinion “inconsistent with other substantial evidence 22 of record,” including Dr. Sophon, the State agency reviewers, Dr. Lorber and the MRI, and 23 radiological evidence. Plaintiff does not dispute this evidence other than by reference to 24 Dr. Nasir’s conflicting opinion, which is not supported by the MRI and radiological evidence. 25 Again, it is the ALJ that is responsible for resolving conflicts in the medical evidence, Andrews, 26 53 F.3d at 1039. The ALJ’s interpretation of the evidence is reasonable and should not be 27 second-guessed. Rollins, 261 F.3d at 857. 28 9 1 Third, Dr. Nasir prescribed a cane for Plaintiff, but he used it inconsistently (AR 19, 21), 2 and Dr. Lorber was of the opinion that there was no objective medical evidence to support the 3 use of a cane. (AR 23-24.) Numerous examinations indicated Plaintiff was “neurologically 4 intact with normal gait, no uncoordination noted, no motor weakness in the extremities and no 5 neurological impingement.” (AR 24.) 6 Fourth, Dr. Nasir prescribed numerous narcotic pain medications for Claimant’s 7 musculoskeletal complaints that cause drowsiness and problems with concentration, focus, and 8 mental acuity. (AR 20.) Dr. Lorber, however, opined that “the objective evidence does not 9 support a degree of pain to substantiate the narcotics, i.e., no motor weakness, normal gait and 10 the claimant is neurologically intact.” (AR 24.) 11 Fifth, with regard to headaches, the ALJ found there was no evidence of a history of 12 regular treatment for headaches. (AR 22.) Plaintiff does not say otherwise. 13 Sixth, Dr. Nasir stated that Plaintiff’s pain causes depression, but the ALJ found that 14 Plaintiff has received no mental health treatment and there is no longitudinal history of 15 psychiatric impairment. (AR 22.) Plaintiff does not contend otherwise. 16 Plaintiff argues that the lack of objective evidence does not address or negate Dr. Nasir’s 17 pain observations (JS 13, 16) and notes that Dr. Nasir at all times found Claimant symptomatic 18 with regard to pain. (JS 16.) Yet the ALJ discounted Plaintiff’s credibility on basically the same 19 evidence and for the same reasons that he rejected Dr. Nasir’s opinion. (AR 19-20, 21-22.) An 20 ALJ may discount a treating physician’s opinion if it is not supported by objective medical 21 evidence and is based on claimant’s subjective complaints. Batson v. Comm’r, 359 F.3d 1190, 22 1195 (9th Cir. 2004). 23 The ALJ also rejected the opinion of Dr. Styner, a consulting orthopedist who examined 24 Plaintiff on June 17, 2009. (AR 22.) Dr. Styner’s June 17, 2009, report and June 29, 2009, 25 Multiple Impairment Questionnaire state that Plaintiff cannot work. (AR 22, 486-506.) The ALJ 26 rejected Dr. Styner’s opinion because it was inconsistent with the opinions of Dr. Sophon, the 27 State agency reviewers, and Dr. Lorber and the radiological evidence previously discussed. 28 10 1 (AR 22-23.) Again, the ALJ’s interpretation of the evidence if reasonable should not be second2 guessed. Rollins, 261 F.3d at 857. 3 The ALJ properly rejected the opinions of Dr. Nasir and Dr. Styner for specific and 4 legitimate reasons supported by substantial evidence. 5 B. The ALJ Properly Discounted Plaintiff’s Credibility 6 Plaintiff’s final challenge to the ALJ’s RFC is that the ALJ improperly discounted 7 Plaintiff’s subjective pain testimony. The Court disagrees. 8 9 1. Relevant Law The test for deciding whether to accept a claimant’s subjective symptom testimony turns 10 on whether the claimant produces medical evidence of an impairment that reasonably could be 11 expected to produce the pain or other symptoms alleged. Bunnell v. Sullivan, 947 F.2d 341, 12 346 (9th Cir. 1991); see also Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998); Smolen, 80 13 F.3d at 1281-82 & n.2. The Commissioner may not discredit a claimant’s testimony on the 14 severity of symptoms merely because it is unsupported by objective medical evidence. 15 Reddick, 157 F.3d at 722; Bunnell, 947 F.2d at 343, 345. If the ALJ finds the claimant’s 16 symptom testimony not credible, the ALJ “must specifically make findings which support this 17 conclusion.” Bunnell, 947 F.2d at 345. These findings must be “sufficiently specific to permit 18 the court to conclude that the ALJ did not arbitrarily discredit [the] claimant’s testimony.” 19 Thomas v. Barnhart, 278 F.3d at 958; see also Rollins, 261 F.3d at 856-57; Bunnell, 947 F.2d 20 at 345-46. Unless there is evidence of malingering, the ALJ can reject the claimant’s testimony 21 about the severity of her symptoms only by offering “specific, clear and convincing reasons for 22 doing so.” Smolen, 80 F.3d at 1283-84; see also Reddick, 157 F.3d at 722. The ALJ must 23 identify what testimony is not credible and what evidence discredits the testimony. Reddick, 24 157 F.3d at 722; Smolen, 80 F.3d at 1284. 25 26 2. Analysis In determining Plaintiff’s RFC, the ALJ concluded that Plaintiff’s medically determinable 27 impairments reasonably could be expected to cause his alleged symptoms. (AR 19.) The ALJ, 28 however, found that Plaintiff’s statements regarding the intensity, persistence and limiting 11 1 effects of his symptoms were not credible to the extent they are inconsistent with the ALJ’s 2 RFC. (AR 19.) Because there was no finding of malingering, the ALJ was required to provide 3 clear and convincing reasons supported by substantial evidence to discount Plaintiff’s 4 credibility. Smolen, 80 F.3d at 1283-84. The ALJ did so. 5 First, the ALJ found that the objective medical evidence does not support disability. (AR 6 19-20.) An ALJ is entitled to consider whether there is a lack of medical evidence to 7 corroborate a claimant’s symptoms so long as it is not the only reason for discounting a 8 claimant’s credibility. Burch v. Barnhart, 400 F.3d 676, 680-81 (9th Cir. 2005). Here, the ALJ 9 cited normal musculosketal examinations of other physicians like Dr. Sophon, and the mild MRI 10 radiological findings. (AR 20.) Plaintiff does not dispute that there is objective medical 11 evidence not supporting disability. 12 Second, the ALJ noted Claimant’s inconsistent use of the cane prescribed by Dr. Nasir. 13 (AR 19.) An ALJ may consider the failure to follow a physician’s treatment regimen in 14 evaluating credibility. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008.) 15 Third, the ALJ discounted Claimant’s credibility because he “can perform activities of 16 daily living such as shopping, preparing simple meals and caring for his personal hygiene.” (AR 17 20.) The ALJ also noted that Claimant also drives his grandchildren to school and drove 18 himself to the consultative examination. (AR 20.) These activities are inconsistent with 19 allegations of disabling pain. Daily activities inconsistent with alleged limitations are a valid 20 basis for rejecting a claimant’s credibility. Burch, 400 F.3d at 681. 21 22 *** The ALJ’s RFC is supported by substantial evidence. The ALJ’s non-disability 23 determination is supported by substantial evidence and free of legal error. 24 /// 25 /// 26 /// 27 /// 28 /// 12 ORDER 1 2 IT IS HEREBY ORDERED that the decision of the Commissioner of Social Security is 3 AFFIRMED and this case dismissed with prejudice. 4 LET JUDGMENT BE ENTERED ACCORDINGLY. 5 6 DATED: June 7, 2012 7 /s/ John E. McDermott JOHN E. MCDERMOTT UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13

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