Sherry Lynne Faust v. Commissioner of Social Security Administration

Filing 16

MEMORANDUM AND OPINION by Magistrate Judge Alka Sagar. For all of the foregoing reasons, the decision of the Administrative Law Judge is affirmed. (See Order for complete details) (afe)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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16

) No. SA CV13-01803-AS
)
) MEMORANDUM AND OPINION
Plaintiff,
)
v.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of the
Social Security Administration, )
)
)
Defendant.
)
)
SHERRY LYNNE FAUST,

17

PROCEEDINGS

18
19
20

Plaintiff Sherry Lynne Faust (“Plaintiff”), a former insurance

21

agent and waitress, asserts disability since January 1, 2007, based

22

on alleged physical and mental impairments.

23

Administrative

24

testimony from Plaintiff and a vocational expert on July 26, 2012.

25

(A.R.

26

decision.

27

ALJ’s decision.

31—48).

Law

The

Judge

ALJ

(A.R. 14—30).

(“ALJ”)

denied

examined

Plaintiff

(A.R. 133—40).
the

records

benefits

in

and

a

The
heard

written

The Appeals Council denied review of the

(A.R. 1—3).

28
1

1

On November 20, 2013, Plaintiff filed a Complaint, pursuant to

2

42 U.S.C. §§ 405(g) and 1383(c), alleging that the Social Security

3

Administration

erred

4

Entry No. 3).

On March 24, 2014, Defendant filed an Answer to the

5

Complaint (Docket Entry No. 12), and the Certified Administrative

6

Record (“A.R.”) (Docket Entry No. 13).

7

proceed before a United States Magistrate Judge (Docket Entry Nos. 7,

8

10).

9

Stip.”) setting forth their respective positions on Plaintiff’s claim

10

in

denying

her

disability

benefits.

(Docket

The parties have consented to

On June 4, 2014, the parties filed a Joint Stipulation (“Joint

(Docket Entry No. 23).

11

THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS

12
13

“Social Security disability benefits claimants have the burden

14
15

of proving disability.”

16

F.3d 1380, 1380 (9th Cir. 1985).

17

the

18

reason

19

impairment...which

20

continuous

21

§

22

disabled, ALJs follow a five-step process set forth in 20 C.F.R.

23

§ 404.1520(a)(4).

24

one through four.”

25

2007).

“inability
of

to

any

period

423(d)(1)(A).

Bellamy v. Sec’y Health & Human Serv., 755

engage

in

A claimant is disabled if she has

any

substantial

medically

determinable

has

or

of
In

lasted
not

less

order

to

can
than

physical

be

expected

12

determine

gainful

to

months.”
whether

a

activity

by

or

mental

last

for

42

a

U.S.C.

claimant

is

“The claimant bears the burden of proving steps
Parra v. Astrue, 481 F.3d 742, 746 (9th Cir.

26
27

At step one, the ALJ must determine whether or not claimant is

28

actually engaged in any “substantial gainful activity,” as defined by
2

1

20 C.F.R. § 404.1572.

If claimant is not so engaged, the evaluation

2

continues to step two.

See 20 C.F.R. § 404.1520(a)(4)(i).

3
4

At step two, the ALJ determines whether the claimed physical or

5

mental impairments are severe.

6

determining severity, “the ALJ must consider the combined effect of

7

all of the claimant’s impairments on her ability to function, without

8

regard to whether each alone was sufficiently severe.”

Smolen v.

9

Chater,

42

80

F.3d

423(d)(2)(B)).

1273,

20 C.F.R. § 404.1520(a)(4)(ii).

1290

(9th

evidence “establishes a slight abnormality that has ‘no more than a

12

minimal effect on an individual’s ability to work.’”

13

(quoting Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988)).

14

the ALJ concludes that the claimant does have a medically severe

15

impairment, the ALJ proceeds to the next step in the sequence.”

16

v.

17

§ 404.1520(a)(4)(ii).

683,

686

(9th

Cir.

severe

U.S.C

11

F.3d

considered

(citing

§

433

are

1996)

10

Barnhart,

Impairments

Cir.

When

2005);

unless

the

Id. at 1290

See

20

“[I]f

Webb
C.F.R.

18
19

At step three, the ALJ considers whether the claimant’s severe

20

impairments are disabling.

21

claimant is considered disabled if her purported conditions meet or

22

are medically equivalent to a listing found in 20 C.F.R. Part 404,

23

Subpart P, Appendix 1.

24

Cir. 2005).

25

impairment in appendix 1 if it is at least equal in severity and

26

duration

27

404.1526.

28

not meet a listing, “[m]edical equivalence must be based on medical

to

20 C.F.R. § 404.1520(a)(4)(iii).

The

Burch v. Barnhart, 400 F.3d 676, 679 (9th

“[An] impairment is medically equivalent to a listed

the

criteria

of

any

listed

impairment.”

20

C.F.R.

While the objective medical evidence of equivalence may

3

1

findings.”

2

(citing 20 C.F.R. § 404.1526).

Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999)

3
4

If the ALJ concludes that claimant is not disabled at step

5

three, the ALJ moves to step four and considers whether the claimant

6

can return to her past relevant work.

7

C.F.R. § 404.1520(a)(4)(iv).

8

claimant’s

9

§ 404.1520(a)(4)(iv).

Residual

despite

Burch, 400 F.3d at 679; See 20

In order to do so, the ALJ determines

Functional

Capacity

(“RFC”).

20

C.F.R.

A claimant’s RFC is “what [claimant] can still

10

do

[claimant’s]

limitations,”

and

is

“based

on

11

relevant medical and other evidence in [the] case record.”

12

416.945(a)(1).

13

her past relevant work, she is not considered disabled.

14

all

the

F.3d at 679.

20 C.F.R.

If the claimant’s RFC dictates that she can return to
Burch, 400

15

If the claimant proves in step four that she cannot return to

16
17

her past relevant work, the ALJ proceeds to step five.

18

§ 404.1520(a)(4)(v).

19

Secretary to show that the claimant can do other kinds of work.”

20

Embrey v. Bowden, 849 F.2d 418, 422 (9th Cir. 1988).

21

ALJs “can call upon a vocational expert to testify as to: (1) what

22

jobs the claimant, given his or her [RFC], would be able to do; and

23

(2) the availability of such jobs in the national economy.”

24

180 F.3d at 1101.

If claimant does not have the RFC to work in any

25

available

she

26

§ 404.1520(a)(4)(v).

27

///

28

///

jobs,

20 C.F.R.

At step five “the burden of proof shifts to the

is

considered

4

disabled.

At this point,

20

Tackett,

C.F.R.

BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

1
2
3

In applying for disability insurance benefits, Plaintiff alleged

4

the

5

arthritis, depression, high blood pressure, and menopause.

6

164).

7

Plaintiff

8

work.

9

January 1, 2007.

following

disabling

severe

impairments:

chronic

back

pain,
(A.R.

Additionally, at the hearing before the ALJ on July 26, 2012,
testified

that

(A.R. 40—42).

depression

also

impaired

her

ability

to

The alleged onset date of these impairments was

(A.R. 19, 35, 133, 161).

At the July 26, 2012

10

hearing before the ALJ, Plaintiff testified that she had lower back

11

pain that would traverse her left leg and even stretch as far as her

12

left foot.

13

sit for more than an hour due to the purported discomfort.

14

39).

15

with people due to her depression.

(A.R. 38).

Plaintiff claimed that she could not stand or
(A.R. 38—

Plaintiff also testified that she had difficulties interacting
(A.R. 35)

16

The

17

ALJ

applied

the

five-step

to

the

record

in

18

Plaintiff’s case.

19

that

20

activity.”

21

medical evidence, heard Plaintiff’s testimony, and found that she has

22

the

23

depressive disorder, and a history of drug and alcohol abuse. 1

24

19).

25
26
27
28

Plaintiff

is

not

(A.R. 19).

following

The

(A.R. 17—27).

process

ALJ

severe

also

At step one, the ALJ determined

engaged

in

any

“substantially

gainful

At step two, the ALJ examined the objective

impairments:

found

hypertension,

Plaintiff’s

1

obesity

osteoarthritis,

to

be

a

(A.R.
severe

Although the ALJ found hypertension to be a severe impairment, the
ALJ noted that “[i]f the evidence regarding the impairments alleged
by the claimant was strictly considered, hypertension would not be
found to be both medically determinable and severe.” (A.R. 23). The
ALJ based this statement on the findings by Plaintiff’s doctors that
her hypertension was benign and caused no functional limitations.
(A.R. 242, 246, 248—50, 283).
5

1

impairment.

2

diabetes to be severe because “the condition has been managed with

3

oral medications.”

(A.R. 23).

The ALJ did not find Plaintiff’s diagnosed

(A.R. 20, 42—43, 281).

4
5

At step three, the ALJ found that Plaintiff’s severe impairments

6

did not meet or equal a listing found in 20 C.F.R. Part 404, Subpart

7

P, Appendix 1.

8

the

9

impairments

ALJ

(A.R. 20).

determined
could

Based on the objective medical evidence,

that

reasonably

(A.R. 22).

Plaintiff’s
be

“medically

expected

10

symptoms.”

11

“statements

12

effects of these symptoms are not credible.”

concerning

to

determinable

cause

the

alleged

The ALJ also found, however, that Plaintiff’s
the

intensity,

persistence

and

limiting

(A.R. 22).

13
14
15
16
17
18

Before proceeding to step four, the ALJ found that Plaintiff had
the RFC to perform light work with the following limitations:
lift/carry
twenty
pounds
occasionally,
ten
pounds
frequently; stand/walk for a total of six hours of an eight
hour day; sit for a total of six hours of an eight hour
day; occasionally climb ladders, ropes, scaffolds; perform
simple tasks with simple work related decisions.

19
20

(A.R. 21).

21

opinion of Dr. John Godes, a consultative medical examiner.

22

24, 268—73).

The ALJ based the finding of Plaintiff’s RFC on the
(A.R.

23
24

At step four, the ALJ determined that Plaintiff was unable to

25

return

to

her

past

work

as

26

information clerk.

27

comparing Plaintiff’s RFC with the requirements of her past relevant

(A.R. 25).

an

insurance

agent

or

policy

holder

The ALJ made this determination after

28
6

1

work, and after hearing testimony from a vocational expert.

2

25, 44-47).

(A.R.

3
4

At step five, based on testimony from the vocational expert, who

5

had

6

Plaintiff had the RFC to work as a mail clerk or as a housekeeper.

7

(A.R. 26, 46—47).

8

in significant numbers in the national economy.

9

a result of these findings, the ALJ concluded that Plaintiff was not

10

considered

Plaintiff’s

limitations,

the

ALJ

concluded

that

Additionally, the ALJ found that these jobs exist
(A.R. 26, 46—47). As

disabled under 42 U.S.C. § 423(d)(1)(A).

11

STANDARD OF REVIEW

12
13
14

This court reviews the Administration’s decisions to determine

15

if: (1) the Administration’s findings are supported by substantial

16

evidence; and (2) The Administration used proper legal standards.

17

Smolen,

18

scintilla, but less than a preponderance.”

19

F.3d 1035, 1039 (9th Cir. 1995).

20

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

21

a

22

detracts from the [Commissioner’s] conclusion.”

23

157 F.3d 715, 720 (9th Cir. 1998).

24

reasonably

25

conclusion, [a] court may not substitute its judgment for that of the

26

ALJ.”

27

Cir. 2004).

80

whole,

F.3d

at

weighing

support

1279.

both

“Substantial

is

more

than

a

Andrews v. Shalala, 53

To determine whether substantial

evidence

either

evidence

that

supports

and

evidence

that

Reddick v. Chater,

As a result, “[i]f evidence can

affirming

or

reversing

the

ALJ’s

Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1196 (9th

28
7

PLAINTIFF’S CONTENTIONS

1
2
3

Plaintiff contends that (1) the Appeals Council erred in finding

4

that

5

remand;

6

credibility. (See Joint Stip. 2.)

the

new
and

evidence
(2)

the

submitted

ALJ

by

erred

in

Plaintiff
his

did

assessment

not
of

warrant

a

Plaintiff’s

7

DISCUSSION

8
9
10

After consideration of the record as a whole, the Court finds

11

that

12

evidence and are free from material 1 legal error.

the

Commissioner’s

findings

are

supported

by

substantial

13

A. The ALJ Did Not Err in Evaluating Plaintiff’s Credibility

14
15
16

Plaintiff

contends

that

the

ALJ

erred

in

evaluating

her

17

credibility, and that because of this error, the ALJ failed to find

18

her disabled. (Joint Stip. 14—17, 21—24).

19

implicitly faults the ALJ’s findings regarding step three of his

20

analysis,

21

impairments disabling.

arguing

that

the

ALJ

should

As a result, Plaintiff

have

found

her

severe

22

If a claimant asserts that pain is the primary reason a severe

23
24

impairment

is

disabling,

the

claimant’s

testimony

regarding

her

25
1

26
27
28

The harmless error rule applies to the review of
administrative
decisions regarding disability. See McLeod v. Astrue, 640 F.3d 881,
886-88 (9th Cir. 2011); Burch v. Barnhart, 400 F.3d 676, 679 (9th
Cir. 2005) (stating that an ALJ’s decision will not be reversed for
errors that are harmless).
8

1

subjective symptoms may be crucial to the ALJ’s evaluation.

2

Johnson v. Shalala, 60 F.3d 1428, 1433 (9th Cir 1995).

3

make

4

credibility is a critical factor in the Secretary’s determination.”

5

Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990).

6

determine whether a claimant’s testimony is credible, the ALJ engages

7

in a two-step analysis.

8

Cir. 2014).

“an

explicit

credibility

finding

whenever

See

The ALJ must

the

claimant’s

In order to

Garrison v. Colvin, 759 F.3d 995, 1014 (9th

9

First, the claimant “must produce objective medical evidence of

10
11

an

underlying

12

produce the pain or other symptoms alleged.’”

13

947

14

423(d)(5)(A)(1988)).

15

impairment, “the claimant need not produce objective medical evidence

16

of the pain or fatigue itself, or the severity thereof.”

Smolen, 80

17

F.3d

that

18

impairment] could reasonably have caused some degree of the symptom.”

19

Id.

F.2d

at

impairment

341,

1282.

344

‘which

(9th
In

Instead,

could

Cir.

1991)

producing

the

reasonably

expected

to

Bunnell v. Sullivan,

(quoting

evidence

claimant

be

“need

of

only

42
the

show

U.S.C.

§

underlying

[the

20
21

Second, once the claimant has produced the requisite objective

22

medical

evidence,

23

regarding the severity of her symptoms.”

24

Absent affirmative evidence of malingering, however, the ALJ may only

25

reject

26

convincing reasons for doing so.”

27

alleged symptoms, an ALJ may consider: “(1) ordinary techniques of

28

credibility

a

the

plaintiff’s

“ALJ

may

testimony

evaluation,

such

as

reject

“by

the

testimony

Smolen, 80 F.3d at 1284.

offering
Id.

specific,

clear

and

In assessing a claimant’s

claimant’s
9

claimant’s

reputation

for

lying,

1

prior

2

testimony by the claimant that appears to be less than candid; (2)

3

unexplained or inadequately explained failure to seek treatment or to

4

follow a prescribed course of treatment; and (3) the claimant’s daily

5

activities.”

6

record

7

other third parties.”

inconsistent

and

statements

Id.

concerning

the

symptoms,

and

other

An ALJ may also consider “the claimant’s work

observations

of

treating

and

examining

physicians

and

Id.

8

Here,

9

the

ALJ

examined

the

Administrative

Record

and

heard

10

testimony from Plaintiff.

11

that

12

underlying impairment ‘which could reasonably be expected to produce

13

the pain or other symptoms alleged.’” (A.R. 22).

14

rejected plaintiff’s testimony regarding the disabling effects of her

15

symptoms and offered specific, clear and convincing reasons for doing

16

so.

17

record.

Plaintiff

had

(A.R. 22-25).

Based on the record, the ALJ determined

“produce[d]

objective

medical

evidence

of

an

However, the ALJ

The reasons given by the ALJ are supported by the

18

“[E]vidence

19

a

of

‘conservative

claimant’s

is

21

impairment.”

22

2007)(holding

23

medications to treat pain was inconsistent with Plaintiff’s claims

24

that pain was disabling).

Here, the ALJ found that “the infrequent

25

treatment

the

26

conservative

that

received
and

Astrue,

Plaintiff’s

since

the

481

742,

use

alleged

non-emergency.” 2

F.3d
of

751

of

(9th

over-the-counter

onset

(A.R.

severity

to

discount

v.

regarding

sufficient

20

Parra

testimony

treatment’

22).

date

was

These

an
Cir.
pain

routine,
facts

are

27
28

2

she

While Plaintiff’s clinical visits may be described as frequent,
did not present for back pain in each instance, but sought
10

1

supported by the administrative record.

2

found “moderate relief” from lower back pain through conservative

3

treatment such as taking Advil, and exercising.

4

Plaintiff’s

5

examinations were routine and yielded no abnormalities.

6

211—14, 216, 227—33, 261—63, 277—305, 311—17, 320—21).

7

the ALJ included in his decision the fact that Plaintiff claimed she

8

was diagnosed with rheumatoid arthritis in 2001, but never sought out

9

treatment.

clinical

visits

(A.R. 22, 211).

10

Plaintiff’s

11

testimony

based

for

both

The ALJ noted that Plaintiff

(A.R. 23, 239, 242).

physical

and

psychological
(A.R. 22,
Furthermore,

Accordingly, the ALJ properly discounted
on

the

evidence

of

her

conservative

treatment

12

The

13

ALJ

may

rely

on

“ordinary

techniques

of

credibility

14

evaluation” in considering Plaintiff’s credibility.

Smolen, 80 F.3d

15

at 1284.

16

allegations based on inconsistencies in the testimony or on relevant

17

character evidence.”

18

the

19

statements regarding matters relevant to the issue of disability.”

20

(A.R. 24).

21

“reported that she was fired from her position at Chevron...yet she

22

admitted on disability report that she quit the job in August 2006.”

As a result, “the adjudicator may discredit the claimant’s

record

revealed

Bunnell, 947 F.2d at 346.
that

Plaintiff

“ha[d]

The ALJ’s review of
made

inconsistent

Specifically, the ALJ correctly noted that Plaintiff

23
24
25
26
27
28

treatment for other medical issues.
(A.R. 227—37, 246—47, 248—50,
277—79, 281—83, 284—88, 311—13, 315—317).
Therefore, while the
actual number of clinical visits remained high, the occasions on
which she sought out treatment for her severe impairments remained
infrequent.
(A.R. 211—13, 239—41, 251—53, 292—294, 295—305).
Additionally,
despite
her
continued
medical
appointments,
her
treatment for all of her conditions remained “routine, conservative,
and non-emergency.” (A.R. 211—13, 227—37, 239—41, 246—47, 248—50,
251—53, 277—79, 281—83, 284—88, 292—294, 295—305, 311—13, 315—317).
11

1

(A.R. 24, 166).

2

admitted to the medical examiner that she was fired from her job at

3

the Chevron station for absenteeism resulting from her drug use.

4

(A.R.

5

concluded that, “the inconsistencies suggest that the information

6

provided by the claimant generally may not be entirely reliable.”

7

(A.R. 24).

23—24,

Additionally, the ALJ pointed out that Plaintiff

217).

Based

on

these

findings,

the

ALJ

properly

8

“Contradiction with the medical record is a sufficient basis for

9
10

rejecting the claimant’s subjective testimony.”

11

Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008); See also Burch

12

v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (“Although lack of

13

medical evidence cannot form the sole basis for discounting pain

14

testimony,

15

credibility analysis.”).

16

ALJ found Plaintiff’s credibility to be “highly suspect based on the

17

discrepancy

18

objective medical evidence.”

19

Plaintiff’s complaints of myriad disabling conditions, one medical

20

examination revealed “no abnormal findings except for two swollen and

21

tender fingers.”

22

the

23

sensory abnormalities, no motor dysfunction, normal gait and stance,

24

no pain upon palpitation of spine and extremities, [and] no muscle

25

spasm.” 3

fact

it

is

a

between

that

factor

the

the

22,

ALJ

can

consider

in

his

In addition to other inconsistencies, the

claimant’s

subjective

(A.R. 22).

(A.R. 22, 211—13).

during

(A.R.

that

Carmickle v. Comm’r

medical

212—213).

complaints

and

the

The ALJ noted that despite

Furthermore, the ALJ pointed to

evaluation,

Plaintiff

Additionally,

displayed

despite

“no

claiming

a

26
27
28

3

While some later medical records show that Plaintiff did claim
“tenderness upon palpitation” of her lower spine, (A.R. 213, 242,
252, 293, 298), others make no mention of tenderness or pain. (A.R.
12

1

diagnosis of rheumatoid arthritis, Plaintiff tested negative for the

2

condition.

3

objective medical evidence supporting Plaintiff’s testimony in making

4

an adverse credibility determination.

(A.R. 22, 224).

The ALJ properly relied on the lack of

5
6
7

The Court finds that the ALJ stated legally sufficient reasons
for his adverse credibility finding.

8

B. The New Evidence Submitted by Plaintiff to the Appeals

9

Council Does Not Warrant A Remand

10
11
12

Plaintiff contends that the Appeals Council erred by failing to

13

remand Plaintiff’s case because new evidence submitted to the Appeals

14

Council purportedly undermines the sufficiency of the evidence to

15

support the ALJ’s decision. (Joint Stip. 2—5, 11—14)

16

“[T]he administrative record includes [new] evidence submitted

17
18

to and considered by the Appeals Council.”

19

Sec.

20

Council, after considering the new evidence, “denies review or, if it

21

accepts a case for review, issues its own findings on the merits.”

22

Id. “When the Appeals Council declines review, ‘the ALJ’s decision

23

becomes

24

Taylor v. Comm’r of Soc. Sec. Admin., 659 F.3d 1228, 1231 (9th Cir.

25

2011)).

26

to the Appeals Council in determining whether the denial of benefits

Admin.,

the

682

final

F.3d

1157,

decision

1162

of

the

(9th

Brewes v. Comm’r of Soc.
Cir.

2012).

commissioner.’”

The

Id.

Appeals

(quoting

The district court will then consider new evidence submitted

27
28

240, 250, 282, 288).
Plaintiff also only exhibited muscle spasm
during a single examination. (A.R. 252).
13

1

was supported by substantial evidence, as long as the Appeals Council

2

has not rejected the evidence.

3

806 (9th Cir. 2010).

See Lay v. Astrue, 373 Fed.Appx. 804,

4
5

To determine whether substantial evidence supports a decision,

6

“a court must consider . . . the record as a whole, weighing both

7

evidence

8

[Commissioner’s] conclusion.”

9

contends that because the new evidence she submitted to the Appeals

that

supports

and

evidence

that

detracts

Reddick, 157 F.3d at 720.

from

the

Plaintiff

10

Council

11

disabling under 20 C.F.R. Pt. 404, Subpart P, Appendix 1, 1.04.

shows

“nerve

root

compression,”

her

condition

is

per

se

12
13
14

Appendix 1, 1.04 provided that a claimant is disabled if they
exhibit:

15
16

“evidence of nerve root compression characterized by neuro-

17

anatomic distribution of pain, limitation of motion of the

18

spine, motor loss accompanied by sensory or reflex loss

19

and, if there is involvement of the lower back, positive

20

straight leg rais[e].”

21
22

20 C.F.R. Pt. 404, Subpart P, Appendix 1, 1.04 (emphasis added).

23

However,

24

limitations of spinal motion, no motor loss, and a negative straight

25

leg raise, she is not disabled under that provision.

26

252, 270—72, 293, 298).

27

under Appendix 1.

28

to the Appeals Council provide “objective medical evidence of an

because

Plaintiff

exhibited

normal

stance

and

gait,

no

(A.R. 212—13,

Therefore, Plaintiff does not meet a listing

Although the x-rays and MRIs that were submitted

14

1

underlying impairment,” Bunnell, 947 F.2d at 344, they do not provide

2

a basis to challenge the ALJ’s finding that Plaintiff’s “medically

3

determinable impairments could reasonably be expected to cause the

4

alleged symptoms.”

5

ALJ’s credibility finding is supported by substantial evidence in the

6

record.”

7

stated above, the ALJ found reason to doubt Plaintiff’s credibility

8

using “ordinary techniques of credibility evaluation,” Smolen, 80

9

F.3d at 1284, and after finding “evidence of conservative treatment,”

10

Parra, 481 F.3d at 751, inconsistencies in plaintiff’s statements,

11

and discrepancies between her subjective complaints and the objective

12

medical evidence.

13

evidence does not change the facts relied on by the ALJ in making his

14

adverse

15

supported by substantial evidence. 4

(A.R. 22).

The analysis returns to whether “the

Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002).

credibility

Carmickle, 533 F.3d at 1166.

determination,

that

finding

As

Because the new

remains

properly

16
17

Furthermore, “new evidence is part of the administrative record,

18

which the district court must consider in determining whether the

19

Commissioner’s

20

Brewes, 682 F.3d at 1159—60.

21

new x-rays and MRIs that were submitted after the ALJ’s decision,

22

tends

23

“[I]f a claimant complains about disabling pain but fails to seek

24

4

25
26
27
28

to

decision

undermine

is

rather

supported

by

substantial

evidence.”

A review of the record, including the

than

bolster

Plaintiff’s

credibility.

Plaintiff also argues that remand is required because the ALJ was
unable to consider her obesity in conjunction with the evidence of
nerve root compression. (Joint Stip. 15). However, this argument is
premised
on
Plaintiff’s
claim
that
evidence
of
“nerve
root
compression” meets or equals a listing.
(Joint Stip. 12).
As set
forth above, Plaintiff’s reliance on Appendix 1, 1.04, is misplaced.
Therefore, a remand to consider Plaintiff’s obesity in conjunction
with this evidence is not required.
15

1

treatment, or fails to follow prescribed treatment, for the pain, an

2

ALJ

3

unjustified or exaggerated.”

4

Cir. 2007).

5

x-ray and MRI appointment by Dr. Sarah Hwang, but failed to show, or

6

provide any explanation for her failure to do so.

7

was only after the ALJ found Plaintiff not disabled, and over a year

8

after Dr. Hwang scheduled the appointment, that Plaintiff reported

9

for the tests.

may

use

such

failure

as

a

basis

for

finding

the

complaint

Orn v. Astrue, 495 F.3d 625, 638 (9th

The record reveals that Plaintiff was scheduled for an

(A.R. 295).

It

These facts support the ALJ’s finding that Plaintiff

10

treated her condition conservatively, and demonstrate that Plaintiff

11

was “in less pain than she claim[ed].”

12

915, 918 (9th Cir. 1993).

Dodrill v. Shalala, 12 F.3d

13

CONCLUSION

14
15
16

The

legally

valid

reasons

given

by

the

ALJ

for

discounting

17

Plaintiff’s credibility sufficiently allow the Court to conclude that

18

the ALJ’s credibility finding was based on permissible grounds.

The

19

Court therefore defers to the ALJ’s credibility determination.

See

20

Lasich v. Astrue, 252 Fed. App’x 823, 825 (9th Cir. 2007) (court will

21

defer to ALJ’s credibility determination when the proper process is

22

used and proper reasons for the decision are provided); accord Flaten

23

v. Sec’y of Health and Human Serv., 44 F.3d 1453, 1464 (9th Cir.

24

1995).

Where

25

decision

to

26

findings are supported by substantial evidence in the record, “we may

27

not engage in second guessing.”

the

ALJ

disbelieve

has

made

Plaintiff’s

specific
symptom

findings

justifying

allegations

Thomas, 278 F.3d at 958-59.

28
16

and

a

those

ORDER

1
2
3
4

For

all

of

the

foregoing

reasons,

the

decision

Administrative Law Judge is affirmed.

5
6

LET JUDGMENT BE ENTERED ACCORDINGLY.

7
8
9
10

Dated:

October 29, 2014.
/s/___________________________
ALKA SAGAR
UNITED STATES MAGISTRATE JUDGE

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
17

of

the