Esteban C. Hurtado v. Carolyn W. Colvin

Filing 22

MEMORANDUM OPINION by Magistrate Judge Alka Sagar. The decision of Commissioner is AFFIRMED. (See document for complete details) (afe)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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ESTEBAN C. HURTADO,

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Plaintiff,
v.

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

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) No. CV 16-876-AS
)
) MEMORANDUM OPINION
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PROCEEDINGS

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On April 30, 2016, Plaintiff Esteban C. Hurtado (“Plaintiff”)

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filed a Complaint, seeking review of the Commissioner’s denial of

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Plaintiff’s

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insurance

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(“SSI”).

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27

application
benefits

for

a

(“DIB”),

(Docket Entry No 1).

period
and

of

disability,

supplemental

disability

security

income

On September 27, 2016, Defendant

1

Nancy A. Berryhill is now the Acting Commissioner of Social
Security and is substituted for Acting Commissioner Carolyn W.
Colvin in this case. See 42 U.S.C. § 205(g).

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1

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filed an Answer to the Complaint, (Docket Entry No. 17), and the

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Certified Administrative Record (“AR”).

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parties have consented to proceed before a United States Magistrate

4

Judge.

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parties filed a Joint Stipulation (“Joint Stip.”), setting forth

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their respective positions on Plaintiff’s claims.

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21).

(Docket

Entry

Nos.

12-13).

(Docket Entry No. 18).

On

February

13,

2017,

The

the

(Docket Entry No.

8

For

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10

the

reasons

discussed

below,

the

decision

of

the

Administrative Law Judge is AFFIRMED.

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BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

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Plaintiff asserts disability beginning July 28, 2008, based on

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alleged physical and mental health impairments related to back pain

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and testicular cancer.

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Administrative Law Judge (“ALJ”), Marti Kirby, examined the record

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and heard testimony from Plaintiff and vocational expert (“VE”),

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Howard Goldfarb.

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Plaintiff benefits in a written decision.

(AR 228, 232).

(AR 39-56).

On August 18, 2014, the

On October 8, 2014, the ALJ denied
(AR 20-43).

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The ALJ applied the five-step sequential process in evaluating

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23

Plaintiff’s case.

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Plaintiff had not engaged in substantial gainful activity after the

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alleged onset date.

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Plaintiff has the severe impairments of lumbago, disc protrusion

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with

mild

(AR 26-35).

bilateral

(AR 28).

foraminal

At step one, the ALJ determined that

At step two, the ALJ found that

stenosis

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at L3-4, and lumbosacral

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neuritis or radiculitis.

2

that Plaintiff’s impairments did not meet or equal a listing found

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

4

proceeding

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residual functional capacity (“RFC”)2 to perform light work, but can

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lift 20 pounds occasionally and 10 pounds frequently; stand, walk,

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and sit for six hours in an eight-hour workday with regular breaks;

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must change positions approximately every hour for five minutes;

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climb ramps and stairs, balance, stoop, kneel, crouch, and crawl

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occasionally; cannot climb ladders, ropes, or scaffolds; cannot work

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around

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perform jobs requiring hypervigilance or intense concentration on a

13

particular task; cannot perform fast paced, production, or assembly

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line work; and would likely be off task up to 10 percent of the

15

workday

or

workweek

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medication.

(AR 29).

to

step

unprotected

(AR 28).

four,

the

heights,

due

ALJ

At step three, the ALJ found

found

machinery,

to

chronic

or

pain

that

(AR 29).
Plaintiff

other

or

Before
had

hazards;

side

the

cannot

effects

from

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18

In making this finding, the ALJ determined that Plaintiff’s

19

allegations

concerning

20

effects

his

21

following reasons:

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from 2009 to 2011, and in 2013, Plaintiff admitted to “no longer

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receiving any treatment” but still had medical insurance; (2) the

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objective medical evidence did not support Plaintiff’s allegations,

of

the

symptoms

intensity,

were

less

persistence,

than

fully

and

credible

limiting
for

the

(1) Plaintiff had significant gaps in treatment

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2

26
27

A Residual Functional Capacity is what a claimant can still
do despite existing exertional and non-exertional limitations. See
20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1).

28
3

1

although recognizing that diagnostic imaging revealed moderate to

2

severe

3

examinations

4

surgeries; and (3) Plaintiff admitted to performing activities that

5

were inconsistent with his alleged symptoms, such as lifting 20

6

pounds repetitively “without pain” and wanting to return to work

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because he was “pain free.”

degenerative

disc

showed

no

disease

of

the

neurological

lumbar

deficits

spine,

and

there

physical
were

no

(AR 31).

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9

The ALJ also considered Plaintiff’s medical record surmising

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that it reflected a history of back pain, which was the product of

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repetitive work injuries.

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treatment from 2009 to 2011, which suggested that his “symptoms were

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not particularly troublesome.”

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a

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examinations otherwise showed normal results.

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10, 2011, consultative examiner, Dr. Terrance Flanagan, M.D., noted

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that Plaintiff was able to sit and stand with normal posture, rise

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out

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paraspinal spasms.

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axial rotation of the trunk, could not walk on his tiptoes, and had

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somewhat irregular forward flexion and extension.

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April 20, 2012, an x-ray and MRI of Plaintiff’s lumbar spine showed

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moderate to severe degenerative disc disease at L5-S1, moderate disc

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space narrowing at L4-5, and a 4 millimeter disc and osteophyte

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protrusion with mild bilateral foraminal stenosis at L3-4.

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97).

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examined

limited

of

a

range

chair

of

(AR 31).

motion

without

Plaintiff did not seek any

(Id.).
in

the

difficulty,

(AR 280-82).

The ALJ found Plaintiff had
lumbar

had

a

spine

but

(AR 32).

normal

physical

On November

gait,

and

no

However, Plaintiff had pain with

(AR 281-82).

On

(AR 295-

On August 8, 2012, pain specialist, Dr. Jos Santz, M.D.,
Plaintiff.

(AR

299).

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Plaintiff

had

tenderness

to

1

palpation, a limited range of motion, positive Faber’s testing,3 and

2

normal neurological limits.

3

that he was not in pain, could lift 20 pounds repetitively, and

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wanted to return to work.

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therapy, but Plaintiff declined.

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consultative

7

Plaintiff.

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treatment for his condition and had a normal gait, slight decrease

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in range of motion, tenderness to palpation, and 5 out of 5 motor

examiner,

(AR 299-300).

Plaintiff told Dr. Santz

Dr. Santz recommended more physical

Dr.

(AR 300).

Vicente

R.

On February 13, 2013,

Bernabe,

D.O.,

examined

Dr. Bernarbe noted that Plaintiff was not receiving

10

strength.

(AR 306-08).

On July 12, 2013, Plaintiff’s treating

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physician, Dr. Pablo Sobero, M.D., examined Plaintiff finding normal

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results, except Plaintiff had a slight limp and used a cane.

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317).

(AR

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The

15

ALJ

then

considered

the

opinions

of

treating

and

16

nontreating physicians.

The ALJ gave some weight to the opinion of

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Plaintiff’s pain management specialist, Dr. Santz, in adopting his

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opinion that Plaintiff can lift and carry 20 pounds and perform

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overhead lifting, but he rejected Dr. Santz’s opinion that Plaintiff

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can bend, twist, and engage in prolonged standing and kneeling.

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32).

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treating physician, Dr. Sobero, orthopedic consultative examiners,

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Dr. Flanagan and Dr. Bernarbe, and state agency medical consultants.

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(AR 33).

(AR

The ALJ gave little weight to the opinions of Plaintiff’s

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3

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27

The (Patrick’s) FABER Test stands for Flexion, Abduction and
External Rotation. These three motions combined result in a clinical
pain provocation test to find pathologies at the hip, lumbar and
sacroiliac region. http://www.physio-pedia.com/FABER_Test.

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At step four, the ALJ adopted the VE’s testimony in finding

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that Plaintiff could perform his past relevant work as file clerk

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(Dictionary of Occupational Titles (“DOT”) 206.387-034) as actually

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and

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testified

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nonexertional

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reports in concluding that Plaintiff could perform the duties of

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file clerk.

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characterization of Plaintiff’s past work at the hearing.

generally

As

performed.

that

he

(AR

took

into

limitations

and

(AR 49-53).

a

result

33-34).
account

At

the

Plaintiff’s

reviewed

hearing,

the

exertional

Plaintiff’s

work

VE
and

history

Plaintiff made no objection to the VE’s

10

54).

of

these

11

Plaintiff was not disabled.

findings,

the

ALJ

(See AR

concluded

that

(AR 34).

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Plaintiff requested that the Appeals Council review the ALJ’s

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decision.

(AR 18-19).

The request was denied on March 14, 2016.

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(AR 1-5).

The ALJ’s decision then became the final decision of the

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Commissioner, allowing this Court to review the decision.

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U.S.C. §§ 405(g), 1383(c).

See 42

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STANDARD OF REVIEW

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This Court reviews the Administration’s decision to determine

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if it is free of legal error and supported by substantial evidence.

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See Brewes v. Commissioner of Social Sec. Admin., 682 F.3d 1157,

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1161 (9th Cir. 2012).

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scintilla, but less than a preponderance.

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F.3d 995, 1009 (9th Cir. 2014).

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

“Substantial evidence” is more than a mere

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Garrison v. Colvin, 759

To assess whether substantial

1

whole,

2

detracts

3

Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001).

4

the evidence can reasonably support either affirming or reversing

5

the ALJ’s conclusion, [a court] may not substitute [its] judgment

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for that of the ALJ.”

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882 (9th Cir. 2006).

weighing
from

both
the

evidence

that

[Commissioner’s]

supports

and

conclusion.”

evidence
Aukland

that
v.

As a result, “[i]f

Robbins v. Soc. Sec. Admin., 466 F.3d 880,

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PLAINTIFF’S CONTENTIONS

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10

Plaintiff

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contends

that

(1)

substantial

evidence

did

not

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support the ALJ’s finding that Plaintiff could perform his past

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relevant work as a file clerk; and (2) the ALJ failed to provide

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clear and convincing reasons to reject Plaintiff’s subjective pain

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testimony.

(Joint Stip. at 5-8, 11-15, 20-21).

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DISCUSSION

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A.

The ALJ Properly Found That Plaintiff Could Perform His Past
Relevant Work

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22

Plaintiff asserts that the ALJ improperly identified his past

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work as a file clerk because in that job Plaintiff also performed

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the duties of courier, making it a composite job with no counterpart

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in the DOT.

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demanding duty of Plaintiff’s past work and ignored his courier

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driving duties, which Plaintiff can no longer perform given his

(Joint Stip. at 5-8).

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7

The ALJ identified the least

1

mental health limitations.

2

job and the ALJ identified only his least demanding duties as file

3

clerk, the ALJ erred in finding that Plaintiff could perform his

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past relevant work as actually and generally performed.

Because Plaintiff performed a composite

5

Defendant

6

that

contends

that

Plaintiff

the

could

ALJ

properly

perform

his

adopted

file

clerk

the
job

VE’s

7

testimony

as

8

actually and generally performed.

9

job as a file clerk and did not, before the present appeal, assert

Plaintiff characterized his past

10

that Plaintiff performed a composite job.

11

VE

12

Plaintiff’s file clerk job, which took into account his driving

13

duties.

14

Plaintiff’s past work as a file clerk, the ALJ properly found that

15

Plaintiff could perform the file clerk job as generally performed.

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(Id.).

relied

on

(Id.

Plaintiff’s

at

10).

work

Because

(Joint Stip. at 9).

history

the

VE

reports

properly

to

The

identify

characterized

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18

1.

Legal Standard

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20

At step four, the claimant bears the burden of demonstrating

21

that he can no longer perform his past relevant work.

22

404.1512(a), 404.1520(f); Barnhart

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(2003).

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a determination that he can perform past relevant work as it was

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actually performed or as it is generally performed in the national

26

economy.

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1, 1982) (either perform duties of past job as claimant describes it

v.

Thomas, 540

20 C.F.R. §§
U.S.

20,

25

A claimant may be found not disabled at step four based on

Social Security Ruling (“SSR”) 82–61, 1982 WL 31387 (Jan.

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8

1

or

2

economy”).

3

past

4

vocational report, SSR 82–61, and the claimant's own testimony, SSR

5

82–41.”

“as

ordinarily

required

by

employers

throughout

the

national

An ALJ may rely on two sources “to define a claimant's

relevant

work

as

actually

performed:

a

properly

completed

Pinto v. Massanari, 249 F.3d 840, 845 (9th Cir. 2001).

6

The DOT is the best source for determining how past relevant

7
8

work

is

generally

9

overcome the presumption that the [DOT's] entry for a given job
applies

performed.

to

him

by

Id. at

845–46.

demonstrating

that

A

claimant

the

duties

“may

10

title

in

his

11

particular line of work were not those envisaged by the drafter of

12

the category.”

13

(internal

14

actually

15

occupations,” it is considered a composite job with no counterpart

16

in the DOT.

17

“the ALJ considers only whether the claimant can perform his past

18

relevant work as actually performed.”

19

7704-JPR, 2015 WL 162953, at *7 (C.D. Cal. Jan. 13, 2015) (citing

20

Program Operations Manual System (POMS) DI 25005.020(B), available

21

at http://policy.ssa.gov/poms.nsf/lnx/0425005020Z).

22

use a job’s least demanding function when identifying a claimant’s

23

past relevant work.

24

(9th Cir. 1985).

25

varying duties and levels of exertion, SSR 82-61 also states the

26

following:

Villa v. Heckler, 797 F.2d 794, 798 (9th Cir. 1986)

citations
performed

omitted).
has

Where

“significant

SSR 82–61, 1982 WL 31387.

a

claimant’s

elements

of

past

work

two

or

as

more

When a job is composite,

Cook v. Colvin, No. CV 13-

The ALJ may not

See Valencia v. Heckler, 751 F.2d 1081, 1087

However, with respect to such work that requires

27
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9

1

A former job performed by the claimant may have involved

2

functional demands and job duties significantly in excess

3

of those generally required for the job by other employers

4

throughout the national economy.

5

claimant cannot perform the excessive functional demands

6

and/or job duties actually required in the former job but

7

can

8

generally required by employers throughout the economy,

9

the claimant should be found “not disabled.”

perform

the

functional

Under this test, if the

demands

and

job

duties

as

10
11

SSR 82-61, 1982 WL 31387, at *2.

12

2. The ALJ Properly Found That Plaintiff Could Perform The File

13

Clerk Job As Generally And Actually Performed

14
15

In his work history and disability reports, Plaintiff stated

16
17

that he had past relevant work as a file clerk.

18

Plaintiff described his duties as file clerk to include “plac[ing]

19

all folders in numerical order” and “tak[ing] [files] to clients and

20

pick[ing]

21

“different

22

Plaintiff’s job as actually performed included driving duties that

23

were not mentioned in the DOT description for file clerk, see DOT

24

206.387-034,4 but there is no evidence that these duties constituted

up

from

cities”

clients,”
in

which

Riverside

and

“often”
Orange

(AR 220, 244, 252).

required
County.

driving
(AR

to

220).

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4

26
27

According to the DOT, a file clerk “[f]iles records in
alphabetical or numerical order, or according to subject matter or
other system: Reads incoming material and sorts according to file
system. Places cards, forms, microfiche, or other material in

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10

1

a “significant portion” of his work rendering the DOT’s definition

2

inapplicable.

3

to

4

description and the DOT, but did not do so.

5

Plaintiff

6

composite job, he has not established that he cannot perform the

7

type of file clerk work that he performed in the past as it is

8

generally performed.

9

No. CV 14-08464 RAO, 2015 WL 5567748, at *3 (C.D. Cal. Sept. 22,

10

2015) (Plaintiff did not meet his burden of showing that he had done

11

work that was “separate and distinct” from his athletic director

12

position); Driskill v. Colvin, No. C13-1928-RAJ, 2014 WL 3734309, at

13

*8 (W.D. Wash. July 28, 2014) (“Plaintiff has not met her burden to

14

show that her waitress job included “significant elements of two or

15

more occupations” and was therefore a composite job.).

Plaintiff’s counsel had an opportunity to ask the VE

address

the

has

purported

not

established

inconsistency

that

his

between

Plaintiff’s

(See AR 54).
file

clerk

job

Because
was

a

See Villa, 797 F.2d at 798; Jack v. Colvin,

16

Plaintiff contends that the ALJ erred in finding that he could

17
18

perform

19

described the job to require driving, which entails being on task

20

for longer periods than his RFC permits.

21

Yet,

22

precludes him from doing jobs requiring “hypervigilance or intense

23
24
25
26
27

the

there

file

is

no

clerk

such

job

as

actually

limitation.

performed,

because

he

(Joint Stip. at 7-8).

Instead,

Plaintiff’s

RFC

storage receptacle, such as file cabinet, drawer, or box. Locates
and removes files upon request. Keeps records of material removed,
stamps material received, traces missing files, and types indexing
information on folders. May verify accuracy of material to be filed.
May enter information on records. May examine microfilm and
microfiche for legibility, using microfilm and microfiche viewers.
May color-code material to be filed to reduce filing errors.”

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11

1

concentration on a particular task,” because “[h]e would likely be

2

off task up to 10 percent of the workday or workweek due to chronic

3

pain or side effects of medication.”

(AR 29).

4

At

5

the

hearing,

the

VE

considered

Plaintiff’s

disability

6

reports and work history reports — which specified the duty to drive

7

— in opining that Plaintiff performed the occupation of file clerk

8

at the light level as actually performed.

9

asked the VE two hypotheticals.

(AR 51).

The ALJ then

The ALJ first asked the VE whether,

10

considering Plaintiff’s physical limitations, he would be able to

11

perform any of his past relevant work.

12

that

13

described in the DOT and as performed by claimant.”

14

then gave a second hypothetical: “adding onto the first, that the

15

individual also would likely

16

work day or work week . . . Would that preclude the job of file

17

clerk?”

18

every employer or employee relationship.

But typically, the red

19

line

Anything

20

considered inappropriate.

21

be acceptable.”

Plaintiff

could

(AR 53).

appears

to

perform

the

(AR 52).

job

of

file

The VE testified
clerk

be off-task up to 10

“both

(Id.).

as

The ALJ

percent of

the

The VE testified, “Obviously we can’t discuss

be

that

10

percent.

over

that

is

So at 10 percent, that would – that would

(Id.).

22
23

Here, Plaintiff’s RFC did not expressly limit his ability to

24

drive,

(AR

25

limitations would not prevent him from performing the duties of file

26

clerk as actually performed.

27

relied

on

29),

the

and

the

expertise

VE

of

testified

(AR 54).
the

28
12

VE

to

that

Plaintiff’s

mental

Thus, the ALJ properly
provide

“the

necessary

1

foundation” to conclude Plaintiff could perform the job of file

2

clerk as actually performed.

3

1218 (9th Cir. 2005) (“An ALJ may take administrative notice of any

4

reliable

5

[vocational expert].”); see also Macri v. Chater, 93 F.3d 540, 544

6

(9th Cir. 1996) (an ALJ is entitled to draw inferences logically

7

flowing from the evidence to make his determination).

8

the ALJ’s determination that Plaintiff was able to perform his past

9

relevant work as file clerk as actually performed is supported by

10

job

information,

Bayliss v. Barnhart, 427 F.3d 1211,

including

information

provided

by

a

Accordingly,

substantial evidence in the record.

11
12

Therefore, the ALJ properly found that Plaintiff could perform

13

his past relevant work as a file clerk as actually and generally

14

performed.

15

to show that he is unable to perform his past relevant work.

The Court finds that Plaintiff did not meet his burden

16
17

B.

The

ALJ

Articulated

Clear

And

Convincing

Reasons

To

Find

Plaintiff Less Than Fully Credible

18
19

Plaintiff asserts that the ALJ erred in finding him not fully

20
21

credible.

22

(1) he could not afford regular medical treatment, which is why

23

there are treatment gaps in Plaintiff’s record; and (2), contrary to

24

the

25

Plaintiff’s

26

statements and the objective record “cannot provide a standalone

27

basis” for rejecting Plaintiff’s testimony.

ALJ’s

(Joint Stip. at 12-15, 20-21).

findings,
statements

the
and

objective
any

28
13

Plaintiff contends that

medical

disconnect

evidence
between

supports

Plaintiff’s

(Joint Stip. at 14-15).

1

Defendant contends that the ALJ provided the following three

2

clear and convincing reasons to find Plaintiff’s statements less

3

than fully credible: (1) the ALJ correctly found that there were

4

significant gaps in Plaintiff’s treatment from 2009 to 2011, and the

5

record does not support Plaintiff’s assertion that he could not

6

afford treatment; (2) the ALJ’s review of the record accurately

7

reflected normal examination findings and conservative treatment;

8

and

9

inconsistent statements regarding his physical condition.

10

(3)

the

ALJ

appropriately

considered

Plaintiff’s

own

(Joint

Stip. at 15-20).

11
12

A claimant initially must produce objective medical evidence

13

establishing a medical impairment reasonably likely to be the cause

14

of his subjective symptoms.

15

(9th Cir. 1996); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir.

16

1991).

17

underlying impairment that could reasonably be expected to produce

18

pain

19

malingering, the ALJ may reject the claimant’s testimony regarding

20

the severity of his pain and symptoms only by articulating specific,

21

clear and convincing reasons for doing so.

22

806 F.3d 487, 492-93 (9th Cir. 2015) (citing Lingenfelter v. Astrue,

23

504 F.3d 1028, 1036 (9th Cir. 2007)).

24

of malingering, the “clear and convincing reasons” standard applies.

or

Smolen v. Chater, 80 F.3d 1273, 1281

Once a claimant produces objective medical evidence of an

other

symptoms

alleged,

and

there

is

no

evidence

of

Brown-Hunter v. Colvin,

Because there is no evidence

25
26

At the hearing, Plaintiff testified that he could not lift,

27

carry, push, or pull for long periods of time, could stand, walk,

28
14

1

and sit without changing positions for an hour at a time, and could

2

no longer work because of his back condition.

3

forming Plaintiff’s RFC, the ALJ adopted Plaintiff’s testimony that

4

“[h]e

5

minutes.”

6

testimony that he could not lift or carry objects, instead finding

7

that Plaintiff could “lift and/or carry 20 pounds occasionally and

8

10 pounds frequently.”

must

change

positions

(AR 29).

approximately

(AR 46-48).

every

hour

for

In

five

However, the ALJ declined to adopt Plaintiff’s

9
10

First, the ALJ properly rejected Plaintiff’s testimony because

11

there were significant, unexplained gaps in Plaintiff’s treatment

12

from 2009 to 2011.

13

to

14

medical insurance.

15

unexplained, significant gaps in treatment in determining whether a

16

Plaintiff is credible.

17

2007); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en

18

banc).

19

because he could not afford it. (Joint Stip. at 14).

20

support in the record for Plaintiff’s assertion.

21

Plaintiff regarding his treatment history, and Plaintiff testified

22

that

23

through Medi-Cal, but only sees his doctor about once a year.

24

47).

25

ALJ could reasonably infer that Plaintiff’s statements regarding the

26

disabling nature of his symptoms were less than fully credible.

receiving

Also, at his hearing in 2013, Plaintiff admitted

treatment

about

(AR 30).

“once

a

year”

even

though

he

had

An ALJ may consider a Plaintiff’s

Orn v. Astrue, 495 F.3d 625, 636 (9th Cir.

Plaintiff asserts that he did not seek regular treatment

he

has

had

the

same

doctor

for

four

There is no

The ALJ questioned

years,

has

insurance
(AR

Based on Plaintiff’s testimony and the gaps in treatment, the

27
28
15

1

Second, there was substantial evidence in the record to support

2

the

3

Plaintiff’s

4

imaging revealed moderate to severe degenerative disc disease of the

5

lumbar

6

deficits or muscle atrophy and he was not referred for surgery.

7

30).

8

sole basis for discounting pain testimony, it is a factor that the

9

ALJ can consider in his credibility analysis.”

ALJ’s

finding

that

statements.

spine,

the
The

examinations

medical
ALJ

of

evidence

noted

that

Plaintiff

did

not

although

showed

no

support

diagnostic

neurological
(AR

“Although lack of objective medical evidence cannot form the

Burch v. Barnhart,

10

400 F.3d 676, 680-81 (9th Cir. 2005); see also Rollins v. Massanari,

11

261

12

404.1529(c)(2)).

F.3d

853,

857

(9th

Cir.

2001)

(citing

20

C.F.R.

§

13
14

The record supports the ALJ’s credibility findings. Plaintiff

15

consistently showed a somewhat decreased range of motion in the

16

lumbar spine during appointments with Dr. Bernabe, Dr. Flanagan, and

17

Dr. Santz, (AR 281-82, 286, 299, 308), and he had lumbar stenosis

18

and moderate to severe degenerative disc disease.

19

ALJ

20

Plaintiff’s RFC.

21

Plaintiff had no signs of muscle atrophy or neurological deficits

22

that

23

Plaintiff was able to stand and sit without difficulty, appeared

24

with a normal gait,5 and had 5 out of 5 muscle strength.

25

299, 324).

fully

would

considered

these

medical

(See AR 29-32).

preclude

him

from

findings

(AR 296-97).
in

The

formulating

However, as the ALJ stated,

lifting

or

carrying

any

weight.

(AR 282,

26
27

5

On July 13, 2013, Plaintiff appeared at one doctor’s
appointment with a limp and a cane, but there is no evidence in the

28
16

1

Third,

the

ALJ

properly

found

that

Plaintiff’s

statements

were

inconsistent

2

regarding

3

allegations

4

Plaintiff’s functional limitations provide a clear and convincing

5

reason to find a plaintiff not fully credible.

6

F.3d 1273, 1284 (9th Cir. 1996); See Thomas v. Barnhart, 278 F.3d

7

947, 959 (9th Cir. 2002) (upholding an adverse credibility finding

8

in part due to a claimant's inconsistent statements to her doctors);

9

see also Brown v. Astrue, 405 F. App'x 230, 233 (9th Cir. 2010).

10

The ALJ cited to Plaintiff’s August 2012 statement made to Dr. Santz

11

that he could lift 20 pounds repetitively “without pain” and wanted

12

to return to work because he was “pain free.”

13

Santz

recommended

14

300).

The ALJ found this to indicate that Plaintiff’s condition was

15

“relatively stable.”

16

regarding

17

that

18

conclusion that Plaintiff is less than fully credible.

he

his

physical

of

his

limitations

disability.

physical

therapy,

(Id.).

functional

could

Inconsistent

lift

20

but

statements

with

his

regarding

a

Smolen v. Chater, 80

(AR 31, 300).

Plaintiff

Dr.

declined.

(AR

Plaintiff’s inconsistent statements

limitations,
pounds

specifically

repetitively,

his

supports

statement
the

ALJ’s

19

The

20

ALJ,

in

the

citing

medical

to

Plaintiff’s

22

articulated clear and convincing reasons to find Plaintiff less than

23

fully

24

Plaintiff’s

25

although

he

testimony
had

ALJ’s

that

he

insurance;

his

inconsistent

in

treatment,

The

and

gaps

21

credible.

record,

unexplained

assessment
did
had

not

was

regularly

relatively

statements,

consistent
see

normal

a

with

doctor,

examination

26
27

record that Plaintiff was prescribed a cane or that he regularly
used a cane because of his back problems. (AR 317).

28
17

1

findings; and Plaintiff’s own statements regarding his functional

2

limitations indicated greater physical abilities than he claimed.

3

Accordingly,

4

concerning the intensity, persistence, and limiting effects of his

5

symptoms less than fully credible.

the

ALJ

properly

found

Plaintiff’s

statements

6
7

CONCLUSION

8
9
10

For

the

foregoing

reasons,

the

decision

of

Commissioner

AFFIRMED.

11
12

LET JUDGMENT BE ENTERED ACCORDINGLY.

13
14

Dated: May 12, 2017

15
16
17
18

_____________/s/______________
ALKA SAGAR
UNITED STATES MAGISTRATE JUDGE

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20
21
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23
24
25
26
27
28
18

is