Kevin Harold Cleaver v. Carolyn W Colvin

Filing 27

MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that Judgment be entered AFFIRMING the decision of the Commissioner. (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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KEVIN HAROLD CLEAVER,
Plaintiff,

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v.

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Case No. EDCV 14-0829 SS

MEMORANDUM DECISION AND ORDER

CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration,
Defendant.

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19

I.

20

INTRODUCTION

21
22

Kevin

Cleaver

(“Plaintiff”)

seeks

review

of

the

final

23

decision

24

Administration (the “Commissioner” or the “Agency”) denying his

25

application for Disability Insurance Benefits and Supplemental

26

Security Income.

27

636(c),

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\\

of

to

the

the

Commissioner

of

the

Social

Security

The parties consented, pursuant to 28 U.S.C. §
jurisdiction

of

the

undersigned

United

States

1

Magistrate Judge.

2

the Commissioner is AFFIRMED.

For the reasons stated below, the decision of

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4

II.

5

PROCEDURAL HISTORY

6
7

Plaintiff applied for Title II Disability Insurance Benefits

8

(“DIB”) and Title XVI Supplemental Security Income (“SSI”) on May

9

23, 2008.

(Administrative Record (“AR”) 250-258).

Plaintiff

10

alleged a disability onset date of March 20, 2008.

(AR 252).

11

The Agency denied Plaintiff’s application on September 18, 2008,

12

and upon reconsideration on November 12, 2008.

13

On November 20, 2008, Plaintiff requested a hearing before an

14

Administrative Law Judge (“ALJ”).

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(“ALJ Dietterle”) conducted the hearing on July 22, 2010.

16

105).

17

Plaintiff was disabled for the closed period of March 20, 2008,

18

through July 31, 2009.

19

concluded

20

residual functional capacity (RFC) to perform a full range of

21

sedentary work.

(AR 147).

(AR 136, 141).

ALJ Keith Dietterle
(AR

On December 22, 2010, the ALJ Dietterle determined that

that

after

(AR 105).
August

1,

However, the ALJ Dietterle

2009,

Plaintiff

retained

the

(AR 111).

22
23

Plaintiff

filed

a

timely

request

for

review

of

the

ALJ

24

Dietterle’s decision on February 24, 2011. 1

25

22, 2012, the Appeals Council (the “Council”) affirmed the ALJ

(AR 188).

On May

26
27
28

1

While this appeal was pending, Plaintiff filed new DIB and SSI
applications, this time alleging a disability onset date of May
16, 2011. (AR 271, 279).
2

1

Dietterle’s finding of disability within the closed period.

2

122-23).

3

pertained to Plaintiff’s alleged disability after August 1, 2009,

4

and remanded the matter for further proceedings.

(Id.).

5

Council

analysis

6

Plaintiff’s

7

Vocational grid rule 201.11.

8

Council directed the ALJ to obtain evidence from a Vocational

9

Expert

10

(AR

However, the Council vacated the ALJ’s decision as it

noted

that

the

transferable

(“VE”)

to

show

ALJ

did

skills,

not

provide

as

(AR 122).

whether

transferable to sedentary work.

an

required

by

The
of

Medical-

Therefore, the Appeals

Plaintiff

retained

skills

(Id.).

11
12

ALJ Lynn Ginsberg (the “ALJ”) conducted a hearing following

13

the Appeals Council remand on October 30, 2012 (the “ALJ Hearing”

14

or “ALJ Ginsberg”).

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issued a decision denying DIB and SSI. 2

16

23, 2014, the Council denied Plaintiff’s request for review.

17

4-6).

18

No. 3).

(AR 44-97).

On November 30, 2012, the ALJ
(AR 19-35).

On January

On May 8, 2014, Plaintiff filed the instant action.

(AR
(Dkt.

19
20

III.

21

FACTUAL BACKGROUND

22
Plaintiff was born on August 8, 1960.

23

(AR 252).

He was

24

forty-seven years old as of his initial disability onset date and

25

fifty-two years old at the time of the ALJ Hearing.

(AR 44,

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27
28

2

The ALJ specifically associated Plaintiff’s May 16, 2011,
claims with the claim on remand and rendered a decision on all of
the claims. (AR 22).
3

1

252).

2

and can communicate in English.

3

heavy duty truck mechanic from 1980 until March 20, 2008.

4

300).

5

as an automotive test driver.

6

treatment for back pain in 2003.

Plaintiff has a high school equivalency diploma (AR 122)
(AR 33).

Plaintiff worked as a
(AR

From April 22, 2010, until May 16, 2011, Plaintiff worked
(AR 357).

Plaintiff first sought

(AR 301).

7
8

A.

Medical History And Physicians’ Opinions

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10

1.

Na’Imah Powell, M.D.

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12

Na’Imah Powell, M.D., began treating Plaintiff in November

13

of

14

morbidly

15

Plaintiff’s medications included Vicodin, Soma, and Aleve. 4

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465).

17

femoral neck fracture.

18

weight, Dr. Powell’s conjecture could not be confirmed by an MRI.

19

(AR 469).

20

revealed no abnormalities of the left hip or pelvis.

2007.

(AR
obese 3

301-02).

Dr.

and

chronic

with

Powell
back

diagnosed
pain.

Plaintiff
(AR

as

464-65).
(AR

On March 24, 2008, an x-ray revealed a possible left
(AR 477).

However, due to Plaintiff’s

On April 27, 2008, a CT scan ordered by Dr. Powell
(AR 467).

21
On April 1, 2009, Plaintiff underwent laparoscopic gastric

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23

bypass surgery in order to lose weight.

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16, 2009, Plaintiff had lost more than 150 pounds.

25

3

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(AR 632).

By November
(AR 649).

On January 22, 2008, Plaintiff weighed “over 400” pounds. (AR
465).
4
Vicodin is a brand name for hydrocodone, an opiate. Soma is a
muscle relaxant.
Aleve is a non-prescription analgesic.
See,
MedlinePlus,http://www.nlm.nih.gov/medlineplus/druginformation
and enter medication name (last visited March 19, 2015).
4

1

Plaintiff still complained of lower back pain that “moderately

2

limit[ed]” his activities.

3

Dr. Powell was able to temporarily discontinue narcotics.

4

653).

On April 8, 2010, Dr. Powell noted Plaintiff was “[d]oing

5

well.

He is going back to work.”

(Id.).

However, by January 18, 2010,
(AR

(AR 656).

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7

On March 24, 2012, Plaintiff went to the emergency room of

8

Riverside County Regional Medical Center in order to get his pain

9

medications refilled and to be referred to a spine clinic.

10

680).

11

referral.

(AR

The physician on duty prescribed Vicodin and issued the
(AR 681).

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13

2.

Bryan H. To, M.D.

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15

Consultative

physician

Bryan

H.

To,

M.D.,

conducted

an

16

internal medicine examination of Plaintiff on August 17, 2012.

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(AR 747).

18

examination.

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Dr. To found Plaintiff able to raise his legs normally from a

20

supine

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decreased range of motion, but palpation along the spine did not

22

cause

23

Plaintiff

24

crawling and crouching.

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could push, pull, lift or carry twenty pounds occasionally and

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ten pounds frequently.

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\\

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\\

or

Plaintiff weighed 270 pounds at the time of this
(AR 748).

sitting

Plaintiff

position.

pain

capable

Although Plaintiff reported back pain,

of

or

(AR

spasm.

“frequent”

(AR

5

Dr.

750).

bending,

(AR 751).

(Id.).

751).

To

Dr.

kneeling,

noted

To

some

judged

stooping,

He opined that Plaintiff

1

B.

Vocational Expert Testimony

2
3

Vocational Expert Malcolm Brodzinksy testified regarding the

4

existence of jobs in the national economy that Plaintiff could

5

perform given his physical limitations.

6

first described Plaintiff’s past relevant work.

7

VE

8

mechanic

9

work. 5

opined

that
and

(AR 71-94).

Plaintiff’s

past

jobs

automotive

test

driver

an

as

a

The VE

(AR 73-74).
supervisory

qualified

The
truck

as

“heavy”

The ALJ then posed several hypotheticals to the VE.

The ALJ

(Id.).

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11
12

asked if a hypothetical individual with Plaintiff’s background

13

and residual functional capacity could perform Plaintiff’s past

14

work.

15

perform any of Plaintiff’s past work, and had no transferable

16

skills.

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full range of unskilled light work,” totaling more than 1,500

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occupations.

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several ways.

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opined that Plaintiff would find significant numbers of positions

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available.

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5

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(AR 77-78).

(AR 78).

(Id.).

The VE opined that the individual could not

However, the individual could perform “the

The ALJ then adjusted the hypothetical in

(AR 79-84).

In all of these cases, the VE again

(Id.).

“Heavy work involves lifting no more than 100 pounds at a time
with frequent lifting or carrying of objects weighing up to 50
pounds. If someone can do heavy work, we determine that he or she
can also do medium, light, and sedentary work.”
20 C.F.R. §§
404.1567 and 416.967.
The VE noted that, although Plaintiff
performed his work as a test driver at the “heavy” level,
Plaintiff did not receive enough training to perform this job as
it is performed in the national economy. (AR 77).
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1

C.

Plaintiff’s Testimony

2
3

1.

Testimony Before The ALJ

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5

Plaintiff testified that, although he lived by himself, he

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frequently visited his girlfriend for about a week at a time.

7

(AR 55-56).

8

56).

9

and played with her four dogs, each of which weighed about fifty

10

Plaintiff drove forty minutes for these visits.

(AR

Plaintiff and his girlfriend watched television and movies

pounds.

(AR 59).

11
12

Plaintiff’s

nephew

(AR 57).

assisted

Plaintiff

with

household

13

cleaning.

14

own.

15

sheets, but had to rest while doing so.

16

for five to ten minutes and walk up to three or four blocks

17

before needing to sit.

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shopping, accompanied by his girlfriend or nephew.

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used a computer at home and at his girlfriend’s house.

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60).

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hobbies, including working on old cars.

22

testified that he could no longer do any mechanical work.

(AR 58).

Plaintiff could prepare frozen foods on his

Plaintiff was able to launder and change his own

(AR 58).

(AR 57).

He could stand

Plaintiff did his own grocery
(AR 63).

He

(AR 59-

However, he could no longer participate in his former
(Id.).

Plaintiff also
(Id.).

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24

In

January

2012,

Plaintiff

(AR 60).

flew

to

Utah

following

his

25

sister’s death.

Plaintiff brought a carry-on bag

26

weighing twenty to twenty-five pounds on the trip.

27

Plaintiff was not sure of a maximum weight he could lift, but was

28

sure that he could lift a twelve-pack of soda.
7

(Id.).

(AR 61).

1

Plaintiff described his work as an automotive test driver,

2

which began on April 22, 2010 and continued for more than a year.

3

(AR 50).

4

miles per hour on an oval test track, breaking to zero, and

5

accelerating again repeatedly.

6

cars in rough terrain.

7

to lift “water dummies” weighing forty or fifty pounds in and out

8

of cars.

9

three times due to back pain, and one absence lasted for two

This work involved accelerating automobiles to 100

(Id.).

10

months.

11

(Id.).

(AR 51).

Drivers also tested

Drivers worked all night and had

Plaintiff testified that he had to miss work

severe to continue.

(AR 50-52).

He finally quit after judging his pain too
(AR 51).

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13

Plaintiff testified that he weighed 272 pounds at the time

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of the ALJ Hearing.

15

spine clinic and expected to receive an epidural injection that

16

week.

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legs, hands and fingers.

18

cane, but it had not been prescribed.

19

explained that he had visited a chiropractor in the past, but

20

could no longer afford to do so.

21

several prescription pain medications daily.

22

avoided driving while taking these medications, which made him

23

feel “high.”

(Id.).

(AR 53).

He was receiving treatment at a

Plaintiff regularly experienced numbness in his
(AR 66).

Plaintiff sometimes used a
(AR 54-55).

(AR 65).

Plaintiff

Plaintiff took

(AR 54).

Plaintiff

(AR 69).

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25

2.

Statements From Plaintiff’s 2011 Function Report

26
27
28

On

September

17,

2011,

Plaintiff

completed

an

Agency

function report in which he described his daily activities.
8

(AR

1

373-380).

2

breakfast, rested, and took his medication.

3

explained that he did “little chores” in the afternoon, and then

4

rested before spending time sitting outside.

5

tried to perform as many chores as possible before his back

6

became

7

medications two to three times per day.

Plaintiff

too

wrote

painful.

that

Plaintiff

after

waking

up,

(AR 373).

stated

(Id.).

that

he

he

ate

Plaintiff

Plaintiff

took

his

(Id.).

8
9

Plaintiff noted that he cared for two small dogs, which he

10

fed and took outside unless he was sore, in which case his nephew

11

helped.

12

complicated

13

sandwiches.

14

his house, spending twenty-five to thirty minutes on each task.

15

(Id.).

16

yard work.

17

household supplies.

18

blocks before needing to rest for five to ten minutes.

(AR 374).

Plaintiff could not stand long enough to cook

meals

but

was

(AR 375).

able

to

make

frozen

dinners

and

He could dust, wipe counters and sweep

He could do laundry but could not do household repairs or
(AR 375-76).

Plaintiff could shop for groceries and

(AR 376).

Plaintiff could walk one to two
(AR 378).

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20

IV.

21

THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS

22
23

To

qualify

disability

claimant

impairment that prevents her from engaging in substantial gainful

26

activity and that is expected to result in death or to last for a

27

continuous period of at least twelve months.”

28

157

(9th

Cir.
9

1998)

physical

or

must

25

721

determinable

“a

demonstrate

715,

medically

benefits,

24

F.3d

a

for

mental

Reddick v. Chater,

(citing

42

U.S.C.

1

§ 423(d)(1)(A)).

2

“incapable of performing the work she previously performed and

3

incapable of performing any other substantial gainful employment

4

that exists in the national economy.”

5

1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)).

The

impairment

must

render

the

claimant

Tackett v. Apfel, 180 F.3d

6
7

To determine whether a claimant is entitled to benefits, an

8

ALJ

conducts

9

416.920.

a

five-step

inquiry.

20

C.F.R.

§§

404.1520,

The steps and their related inquiries are as follows:

10
11

(1) Is the claimant presently engaged in substantial

12

gainful activity?

13

not disabled.

If so, the claimant is found

If not, proceed to step two.

14

(2) Is the claimant’s impairment severe?

15

claimant is found not disabled.

16

to step three.

17

(3)

If not, the

If so, proceed

Does the claimant’s impairment meet or equal one

18

of

19

C.F.R. Part 404, Subpart P, Appendix 1?

20

the claimant is found disabled.

21

to step four.

22

(4)

the

specific

impairments

described

in

20

If so,

If not, proceed

Is the claimant capable of performing his past

23

work?

24

If not, proceed to step five.

25

(5)

If so, the claimant is found not disabled.

Is the claimant able to do any other work?

26

not, the claimant is found disabled.

27

claimant is found not disabled.

28
10

If

If so, the

1

Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari,

2

262 F.3d 949, 953-54 (9th Cir. 2001) (citations omitted); 20

3

C.F.R. §§ 404.1520(b)-(g)(1) & 416.920(b)-(g)(1).

4
5

The claimant has the burden of proof at steps one through

6

four and the Commissioner has the burden of proof at step five.

7

Bustamante, 262 F.3d at 953-54.

8

affirmative duty to assist the claimant in developing the record

9

at every step of the inquiry.

Additionally, the ALJ has an

Id. at 954.

If, at step four, the

10

claimant meets his burden of establishing an inability to perform

11

past

12

perform some other work that exists in “significant numbers” in

13

the national economy, taking into account the claimant’s residual

14

functional

15

Tackett, 180 F.3d at 1099, 1100; Reddick, 157 F.3d at 721; 20

16

C.F.R. §§ 404.1520(g)(1), 416.920(g)(1).

17

so by the testimony of a vocational expert or by reference to the

18

Medical-Vocational Guidelines appearing in 20 C.F.R. Part 404,

19

Subpart P, Appendix 2 (commonly known as “the Grids”).

20

v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001).

21

has

22

limitations, the Grids are inapplicable and the ALJ must take the

23

testimony of a vocational expert.

24

869 (9th Cir. 2000) (citing Burkhart v. Bowen, 856 F.2d 1335,

25

1340 (9th Cir. 1988)).

26

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28

\\

work,

both

the

Commissioner

capacity,

exertional

age,

must

show

education,

that

and

claimant

work

can

experience.

The Commissioner may do

(strength-related)

11

the

and

Osenbrock

When a claimant
non-exertional

Moore v. Apfel, 216 F.3d 864,

1

V.

2

THE ALJ’S DECISION

3
4

The ALJ employed the five-step sequential evaluation process

5

and concluded that Plaintiff was not under a disability within

6

the meaning of the Social Security Act after August 1, 2009.

7

22).

8

in substantial gainful employment since August 1, 2009. 6

9

25).

(AR

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

At step two, the ALJ found that Plaintiff had the severe

10

impairments of obesity, post status gastric bypass in April 2009,

11

umbilical hernia, lumbar spine osteoarthritis, chronic back pain

12

and high blood pressure.

13

found that Plaintiff did not have an impairment or combination of

14

impairments

15

impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20

16

C.F.R. §§ 404.1525, 404.1526, 416.925, 416.926). 7 (Id). The ALJ

17

noted that “no treating or examining physician recorded findings

18

equivalent in severity to the criteria of any listed impairment.”

19

(Id.).

that

met

or

(Id.).

However, at step three, the ALJ

medically

equaled

one

of

the

listed

The ALJ then found that Plaintiff had the following RFC:

20
21

[Plaintiff] has had the residual functional capacity to

22

perform

23

404.1567(b) and 416.967(b) except he can do frequent

24

postural activities such as climbing ladders, ropes,

25
26
27
28

light

work

as

defined

6

in

20

C.F.R.

§§

The ALJ opined that Plaintiff’s work as a test driver during
the alleged disability period qualified as an unsuccessful work
attempt, and not as “substantial gainful activity.” (AR 25).
7
A physical or mental impairment is considered “severe” if it
“significantly limits [the claimant’s] physical or mental ability
to do basic work activities.” 20 C.F.R. § 404.1520
12

1

and

2

kneeling, crouching, and crawling; he can do frequent

3

agility tasks such as walking on uneven terrain and

4

working at heights; and he can have no to rare exposure

5

to heavy moving machinery.

scaffolds,

climbing

ramps,

balancing,

stooping,

6
7

(AR

26).

The

ALJ

noted

8

Plaintiff’s

9

reasonably be accepted as consistent with the objective medical

10

evidence and other evidence, pursuant to 20 C.F.R. § 404.1529 and

11

SSRs 96-4p and 96-7p.

12

evidence as required by 20 C.F.R. § 404.1527 and SSRs 96-2p, 96-

13

5p, 96-6p and 06-3p.

symptoms

and

that
the

(Id.).

she

had

extent

considered

to

which

all

they

of

could

The ALJ also considered opinion

(Id.).

14
15

The ALJ found that the claimant’s subjective allegations

16

were

“less

17

finding, the ALJ gave great weight to Plaintiff’s description of

18

his

19

[regarding his symptoms] are in excess of the medical and other

20

evidence of record.”

21

that he could drive forty minutes to his girlfriend’s house.

22

28).

23

carry-on bag.

24

do “heavy” work as a test driver for several months, though

25

ultimately unsuccessful, also called the severity of his symptoms

26

into

27

Plaintiff’s conservative treatment suggested that his symptoms

28

and limitations were not as severe as alleged.

daily

than

fully

activities,

credible.”

and

(Id.).

found

(AR

that

32).

In

Plaintiff’s

making

this

“assertions

The ALJ noted Plaintiff’s statement
(AR

Plaintiff was also able to fly to Utah with a twenty-pound
(Id.).

question.

The ALJ opined that Plaintiff’s ability to

(Id.).

Finally,

13

the

ALJ

reasoned

(AR 27).

that

This

1

treatment

2

blood pressure medication and chiropractic treatment, had been

3

“relatively successful” in relieving Plaintiff’s symptoms.

4

28).

plan,

including

pain

medications,

muscle

relaxants,

(AR

5
6

At step four, the ALJ determined that Plaintiff was unable

7

to perform any of his past relevant work as defined by 20 C.F.R.

8

§§ 404.1565, 416.965.

9

expert’s testimony, and considering Plaintiff’s age, education,

(AR 32).

However, based on the vocational

10

work

11

existed in significant numbers in the national economy.

12

34).

13

disabled since August 1, 2009.

experience

and

RFC,

Plaintiff

could

perform

jobs

that

(AR 33-

Therefore, the ALJ concluded that Plaintiff had not been
(AR 34).

14
15

VI.

16

STANDARD OF REVIEW

17
18

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

19

Commissioner’s decision to deny benefits.

“The court may set

20

aside the Commissioner’s decision when the ALJ’s findings are

21

based on legal error or are not supported by substantial evidence

22

in the record as a whole.”

23

1035 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1097); Smolen

24

v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing Fair v.

25

Bowen, 885 F.2d 597, 601 (9th Cir. 1989)).

Aukland v. Massanari, 257 F.3d 1033,

26
27
28

“Substantial evidence is more than a scintilla, but less
than a preponderance.”

Reddick, 157 F.3d at 720 (citing Jamerson
14

1

v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)).

2

evidence which a reasonable person might accept as adequate to

3

support a conclusion.”

4

evidence supports a finding, the court must “‘consider the record

5

as a whole, weighing both evidence that supports and evidence

6

that detracts from the [Commissioner’s] conclusion.’”

7

257 F.3d at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th

8

Cir.

9

affirming

1993)).

If

or

Id.

the

To determine whether substantial

evidence

reversing

It is “relevant

that

can

reasonably

conclusion,

the

Aukland,

support
court

either

may

10

substitute its judgment for that of the Commissioner.

11

157 F.3d at 720-21 (citing Flaten v. Sec’y, 44 F.3d 1453, 1457

12

not

(9th Cir. 1995)).

Reddick,

13
14

VII.

15

DISCUSSION

16
17

Plaintiff contends that the ALJ failed to properly evaluate

18

Plaintiff’s

subjective

19

(Memorandum in Support of Plaintiff’s Complaint (“MSPC”) at 4).

20

According

21

articulate

22

subjective testimony.

23

ALJ’s

24

convincing

25

testimony, supported by substantial evidence.

to

complaints

Plaintiff,
sufficient

decision

ALJ

reasons

an

for

assess

also
for

(MSPC at 6).

contains

reasons

the

and

extensive
rejecting

erred

his

credibility.

by

rejecting

failing

Plaintiff’s

The Court disagrees.
discussion

to

of

Plaintiff’s

clear

The
and

subjective

26
27
28

When assessing a claimant’s credibility, the ALJ must engage
in a two-step analysis.

Molina v. Astrue, 674 F.3d 1104, 1112
15

1

(9th Cir. 2012). Initially, the ALJ must determine if there is

2

medical evidence of an impairment that could reasonably produce

3

the symptoms alleged.

4

must make specific credibility findings in order to reject the

5

claimant’s

testimony.

6

techniques

of

7

Smolen,

8

inconsistencies in the claimant’s conduct and any inadequately

9

explained or unexplained failure to pursue or follow treatment.

80

(Id.).

(Id.).

credibility

F.3d

at

If such evidence exists, the ALJ

The

ALJ

evaluation”

1284.

The

ALJ

may

use

during
may

“ordinary

this

also

inquiry.

consider

any

10

Tommasetti

11

Additionally, the ALJ may use evidence of the claimant’s ability

12

to

13

workplace to discredit his testimony about an inability to work.

14

Morgan v. Commissioner of the Social Security Administration, 169

15

F.3d 595, 600 (9th Cir. 1999).

16

presents

17

Commissioner’s findings, the court considers “the record as a

18

whole.”

19

F.3d 953, 956 (9th Cir. 1993)).

v.

perform

Astrue,

daily

533

F.3d

activities

“substantial

1035,

that

1039

are

(9th

Cir.

transferrable

2008).

to

the

To determine whether the record

evidence”

to

support

or

reject

the

Aukland, 257 F.3d at 1035 (quoting Penny v. Sullivan, 2

20
21

Plaintiff
the

did
ALJ

present

medical

articulated

evidence

specific,

clear

of
and

impairment.

22

However,

convincing

23

reasons for discounting Plaintiff’s testimony about the severity

24

of his symptoms.

25

reason that his testimony was unreliable.

26

Plaintiff was able to walk two to three blocks before requiring a

27

break, to watch television, use a computer, lift a twelve pack of

28

soda, bathe himself and go food shopping.

The ALJ cited Plaintiff’s daily activities as a

16

The ALJ noted that

(AR 27).

Plaintiff

1

was able to drive forty minutes to his girlfriend’s house.

2

28).

3

Utah with carry-on luggage indicated that Plaintiff’s symptoms

4

were not as severe as he alleged.

(AR

Finally, the ALJ opined that Plaintiff’s ability to fly to

(AR 28).

5
6

The Court finds that Plaintiff’s daily activities undermine

7

his

testimony

regarding

disabling

pain

and

fatigue.

On

his

8

function report, Plaintiff stated that he performs such chores as

9

going to the post office, grocery shopping, and visiting doctors’

10

offices, showing his independence.

11

stated that he performed some household chores, such as dusting,

12

wiping counters and sweeping.

13

driving a car and visiting with friends and family a “couple of

14

times a week.”

(AR 373).

(AR 375).

Plaintiff also

Plaintiff described

(AR 377).

15
16

The ALJ properly relied upon evidence of Plaintiff’s daily

17

activities in evaluating whether his subjective testimony was

18

credible.

19

claimant’s

20

severity of symptoms); Morgan, 169 F.3d at 600 (ALJ may discount

21

claimant’s testimony where his normal activities can transfer to

22

the work setting); Fair, 885 F.2d at 603 (daily activities may be

23

reason to discredit excess pain allegation where claimant spends

24

substantial

25

transfer to a work setting).

See, e.g., Smolen, 80 F.3d at 1284 (ALJ may consider
daily

part

activities

of

the

day

in

evaluating

performing

testimony

activities

as

that

to

may

26
27
28

Furthermore,
Plaintiff’s

the

records

medication

and

cited

by

treatment
17

the
have

ALJ

indicate

been

that

relatively

1

successful in managing his symptoms.

2

Dr. Powell indicated that Plaintiff’s pain was related to his

3

morbid obesity.

4

underwent gastric bypass surgery.

5

began to exercise and lose extensive weight.

6

November 2009, Plaintiff had lost 150 pounds, and Plaintiff’s

7

physicians told him to return to a regular diet.

8

Although Plaintiff continued to complain of back pain, the pain

9

only moderately limited his activities.

(AR 649).

10

18,

taking

11

medications.

12

noted that he was doing well and going back to work.

2010,

(AR 600).

Plaintiff

was

(AR 653).

(AR 29).

In February 2009,

However, on April 1, 2009, Plaintiff

no

After his surgery, Plaintiff

longer

(AR 615-635).

By

(AR 649-650).

On January

narcotic

pain

On April 8, 2010, Plaintiff’s physician
(AR 656).

13
14

Although Plaintiff gained back thirty pounds by March 2011,

15

his total weight loss was still about one hundred pounds.

16

660).

17

complaining

18

naproxen, and Vicodin for his pain.

19

Plaintiff

20

continued seeing his general practitioner.

21

the ALJ’s conclusion that Plaintiff’s treatment was conservative

22

in

23

After reviewing the ALJ’s decision and based on the foregoing,

24

the Court finds that the ALJ provided sufficiently clear and

25

convincing

26

discounting Plaintiff’s subjective statements.

(AR

On May 5, 2011, Plaintiff went to the emergency room

nature

of

never

and

increasing

saw

a

pain

specialist

relatively

reasons,

back

effective

supported

by

27
28
18

and

in

given

Flexeril,

(AR 688-694).

for

was

However,

his

pain

and

instead

The record supports

treating

substantial

his

symptoms.

evidence,

for

1

VIII.

2

CONCLUSION

3
4

Consistent with the foregoing, IT IS ORDERED that Judgment

5

be entered AFFIRMING the decision of the Commissioner. The Clerk

6

of the Court shall serve copies of this Order and the Judgment on

7

counsel for both parties.

8
9

DATED:

March 23, 2015

10
11

/S/
SUZANNE H. SEGAL
UNITED STATES MAGISTRATE JUDGE

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28
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