Melody Soyka v. Commissioner of Social Security Administration

Filing 22

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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MELODY SOYKA, 12 Case No. SACV 16-00864 SS Plaintiff, 13 v. 14 MEMORANDUM DECISION AND ORDER NANCY BERRYHILL,1 Acting Commissioner of the Social Security Administration, 15 16 Defendant. 17 18 19 20 I. 21 INTRODUCTION 22 23 24 25 Melody Soyka (“Plaintiff”) brings this action seeking to overturn the decision of the Commissioner of the Social Security Administration (the “Commissioner” or “Agency”) denying her 26 27 28 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). 1 1 application for Disability Insurance Benefits (“DIB”). 2 2016, Plaintiff filed a complaint (the “Complaint”) commencing the 3 instant action. 4 the Complaint (the “Answer”) along with the Administrative Record 5 (“AR”). 6 support of the Complaint (“Pl. MSO”). 7 Defendant filed a memorandum in support of the Answer (“Def. MSO”). 8 On January 31, 2017, Plaintiff filed a reply (the “Reply”). The 9 parties the On May 10, On October 4, 2016, Defendant filed an Answer to On November 8, 2016, Plaintiff filed a memorandum in consented, pursuant to 28 On January 17, 2017, U.S.C. § 636(c), to 10 jurisdiction of the undersigned United States Magistrate Judge. 11 (Dkt. Nos. 7, 12). 12 the Commissioner’s decision. For the reasons stated below, the Court AFFIRMS 13 14 II. 15 PROCEDURAL HISTORY 16 17 18 19 20 21 22 23 24 25 26 27 Plaintiff filed an application for DIB on September 5, 2013. (AR 118-121). 6, 2012. Plaintiff alleged a disability onset date of August (AR 118). December 30, 2013. The Agency denied Plaintiff’s application on (AR 60-62). On January 29, 2014, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). (AR 63-64). On September 12, 2014, ALJ Joan Ho conducted a hearing to review Plaintiff’s claim. (AR 24-48). by Troy Monge, testified before the ALJ. Plaintiff, represented (AR 30-43). At the hearing, Plaintiff requested to amend her alleged disability onset date to July 16, 2013. (AR 29). Vocational expert (“VE”) Susan Allison also testified at the hearing. 28 2 (AR 44-47). On November 1 12, 2014, ALJ Ho found that Plaintiff was not disabled under the 2 Social Security Act. 3 ALJ’s decision before the Appeals Council on January 7, 2015. (AR 4 7-8). On March 25, 2016, the Appeals Council denied review. (AR 5 1-3). As such, the ALJ’s decision became the final decision of 6 the Commissioner. 7 on May 10, 2016. (AR 9-20). (AR 1). Plaintiff sought review of the Plaintiff commenced the instant action (Dkt. No. 1). 8 9 III. 10 FACTUAL BACKGROUND 11 12 Plaintiff was born on March 10, 1958. (AR 118). She was 55 13 years old as of the alleged disability onset date of July 16, 2013. 14 She was 56 years old when she appeared before the ALJ. 15 Plaintiff completed the twelfth grade and received a high school 16 diploma. 17 disability onset date, Plaintiff worked as a nanny. 18 Prior to that, Plaintiff worked as a file clerk, preschool teacher, 19 and cashier. (AR 31, 202). (AR 30). For fifteen years prior to her alleged (AR 134, 139). (AR 202). 20 21 In the Disability Report, Plaintiff alleged that back 22 problems, peripheral neuropathy, 23 ulcerative colitis, learning 24 “knees, stomach, etc.” limit her ability to work. 25 According to medical records, Plaintiff has chronic low back pain 26 that worsened in September of 2012 when a vehicle that was backing 27 up struck her car. a (AR 215). 28 3 chondromalacia disability, patellae, osteoporosis, and (AR 132). 1 At the hearing, Plaintiff testified that she no longer has 2 problems 3 “scoliosis, arthritis … osteoporosis sponlykiosis [phonetic] … 4 [and] neuritis.” with ulcerative colitis (AR 36), but that she has (AR 35). 5 6 A. Plaintiff’s Testimony 7 8 Plaintiff testified that she stopped working on August 6, 2012 9 because she “fractured [the] 5th metatarsal in [her] left foot.” 10 (AR 32). 11 was subsequently let go for not coming back to work at a particular 12 time. 13 Worker’s Compensation for her medical bills. 14 testified that she was on unemployment from October 12, 2012 until 15 December 2013. (Id.). She was out on disability from August until October and (Id.). She testified that, after this injury, she received (Id.). She also 16 17 Plaintiff testified that her physician restricted her to 18 standing and walking twenty-five percent of the time and sitting 19 only a certain percentage of the time. (AR 33). 20 she looked for work adhering to these restrictions but was unable 21 to find anything. 22 she looked for office work and nanny jobs. 23 had she received an office job allowing her to work within the 24 guidelines of her restrictions, she would have been able to do it. 25 (AR 33). (AR 32). She testified that Specifically, Plaintiff testified that She testified that, 26 27 Plaintiff testified that she has been unable to work since 28 July 16, 2013 because her back has gotten increasingly worse and 4 1 she feels that “no employer will hire [her]” with her postural 2 restrictions. 3 bad” and that every day she has to “lie in bed because the pain is 4 so great.” 5 located in her lower back, below the belt line, and that doctors 6 gave her pain medications and back exercises to decrease her pain. 7 (Id.). 8 these back exercises in her bed for 30 minutes a day, seven days a 9 week. (AR 32). (AR 34). She stated that her back pain is “really Plaintiff further testified that the pain is Plaintiff testified that, in February of 2013, she did (AR 41-42). Plaintiff testified that doctors have not 10 recommended 11 therapy (AR 38) and that doctors told her that there is nothing 12 they can do for her condition. 13 one doctor recommended an epidural injection a long time ago, there 14 was no guarantee that it would help. any treatment aside from medication (AR 35). and physical She stated that while (AR 39). 15 16 Plaintiff testified that she also has neuritis, meaning that 17 she does not have enough padding in her feet and is “stepping on 18 [her] nerves all the time, and [her] feet are in pain 24/7.” 19 35). 20 rate her pain an 8. 21 consists of Evista for osteoporosis, Tylenol, Codeine, and another 22 medication that she could not recall the name of, Plaintiff would 23 rate her pain a 7. 24 of the hearing, she did not have problems with ulcerative colitis 25 (AR 36), though it was alleged in the Disability Report. 26 stated that her knees pop if she repetitively kneels, bends, and 27 stoops, but that she stays in the guidelines of what she is not 28 supposed to do and has been doing well. (AR Plaintiff testified that, on a scale from 1 to 10, she would (AR 38). (AR 38) When she takes her medication, which Plaintiff testified that, at the time 5 (AR 42-43). She also 1 Plaintiff testified that she does household chores, including 2 loading the dishes as she eats her meals and the laundry when 3 necessary. 4 without limits. (AR 31). 5 hurts her back (AR 43) and she cannot lift two gallons of milk. 6 (AR 35). (AR 43). She testified that she drives every day However, she does not vacuum because it 7 8 B. Treating Physicians 9 1. Diane A. Song, M.D. 10 11 On March 29, 2013, Plaintiff visited her treating physician, 12 13 14 15 16 17 18 Dr. Diane A. Song, M.D., to follow-up on back pain. (AR 463). Pursuant to this visit, Dr. Song completed a progress note, wherein she stated that Plaintiff “completed a course of physical therapy and was also evaluated by physical medicine restrictions.” (AR 463). Under “Assessment/Plan”, Dr. Song wrote “Low back pain: Ok to return to work as a nanny.” and given work (Id.). 19 20 21 22 23 24 25 26 27 On July 16, 2013, Dr. Song completed a “Work Status Report”, diagnosing Plaintiff with “strain of back”, stating that she “is placed on permanent modified work/activity restrictions” including that she could sit and stand “[o]ccasionally (up to 25% of shift)” and could lift/carry/push/pull no more than 10 pounds. (AR 214). On August 2, 2013, Dr. Song completed another “Work Status Report”, diagnosing Plaintiff with “osteoporosis, spondylosis cervical joint wo myelopathy, chronic neck pain, strain of lumbar region” 28 6 1 and opining the same restrictions to Plaintiff’s activities. 2 213). (AR 3 4 2. Alberto Ezroj, M.D. 5 6 On August 6, 2013, Plaintiff’s treating family physician, Dr. 7 Alberto Ezroj, M.D., examined Plaintiff and noted that she had 8 normal range of motion of back without spasm or exacerbation of 9 pain, normal strength in her extremities, and did not exhibit any 10 musculoskeletal 11 Plaintiff’s 12 (Id.). tenderness. primary encounter (AR 514). diagnosis Dr. as Ezroj “strain listed of back.” 13 14 On September 11, 2013, Dr. Ezroj completed a “Medical 15 Assessment of Ability to do Work-Related Activities” form. 16 198). 17 up to 10 pounds, can only stand or walk for 30 minutes without 18 interruption, and can only stand/walk for two hours total in an 19 eight-hour workday. Dr. Ezroj commented that x-rays “revealing 20 Grade 2 spondylolisthesis and osteophytes throughout lumbar spine” 21 support these assessments. (AR Therein, Dr. Ezroj opined that Plaintiff can only lift/carry (Id.). 22 23 3. Andrew Kahn, M.D. 24 25 On January 31, 2013, Plaintiff visited Dr. Andrew Kahn, M.D., 26 for a physical medicine and rehabilitation outpatient consultation. 27 Notes from this visit indicate that Plaintiff walked without an 28 assistive device and moved easily from sit to stand and with 7 1 transfers to the exam table. 2 that Plaintiff’s lumbar spine was nontender to palpation, with 3 tenderness only noted in the paraspinal muscles at L5 to S1. (Id.). 4 Plaintiff’s manual motor testing was normal, and her sensation was 5 intact to light touch throughout bilateral lower extremities. 6 (Id.). 7 with twisting of spine in extension. 8 range of motion of the hip, and a negative straight leg raising 9 test. (AR 217). Physician notes indicate Plaintiff had normal range of spinal motion and no pain (AR 218). (Id.). Plaintiff had normal Under “Plan,” Dr. Kahn’s notes state that 10 Plaintiff “was informed of the spectrum of treatment options, from 11 conservative monitoring, physical therapy/therapies, medications, 12 interventions/injections or surgical evaluation/treatment.” 13 218). (AR 14 15 C. Reviewing Physician, Dr. James Wellons, M.D. 16 17 On November 15, 2013, State Agency reviewing physician, Dr. 18 James Wellons, M.D., reviewed Plaintiff’s medical records and 19 provided a medical assessment. 20 Plaintiff’s “MDIs include: Spondylolisthesis of the LS” and stated 21 that these “MDI’s cannot reasonably be expected to produce the 22 alleged pain and symptoms.” 23 “[t]here 24 limiting Plaintiff to standing or walking two hours during the 25 workday and lifting or carrying no more than ten pounds. 26 He elaborated that the “tx Orthopedist notes [these limitations] 27 and notes he does not endorse” them. (Id.). Dr. Wellons also 28 found normal except is that no “XRs PE that of (AR 54-55). (AR 55). describes both knees 8 Dr. Wellons noted that He further noted that abnormalities are that support” (Id.). for mild 1 osteopenia.” 2 did 3 diagnosable knee 4 impairment. (Id.). not (Id.). have any Ultimately, Dr. Wellons found that Plaintiff severe condition physical impairment and had only a or medically non-severe spinal 5 6 D. Vocational Expert Testimony 7 8 9 Vocational Expert (“VE”) Susan Plaintiff’s hearing before the ALJ. Allison testified (AR 44-47). at The ALJ asked 10 the VE to consider a series of factors in creating two hypotheticals 11 for determining Plaintiff’s ability to work. 12 ALJ’s 13 postural limitations who could perform light work, as defined in 14 the Dictionary of Occupational Titles2. 15 that an individual with the described hypothetical limitations 16 could perform Plaintiff’s previous work as a nanny as she performed 17 it, but not as the DOT describes it. first hypothetical included an (AR 45-46). individual (AR 45). with The certain The VE testified (Id.). 18 19 20 21 22 23 24 25 26 27 28 “Light work. Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.” 20 C.F.R. § 404.1567 (b). 2 9 1 The ALJ’s second hypothetical included all the limitations 2 described in the first hypothetical, however the individual could 3 only perform work at a sedentary level3 and had additional postural 4 restrictions. 5 these hypothetical limitations could neither perform Plaintiff’s 6 previous work as a nanny as she performed it nor as it is generally 7 performed in the national economy. (Id.). The VE testified that an individual with (AR 45-46). 8 9 E. Third Party Adult Function Report 10 11 On October 27, 2013, Plaintiff’s father, Robert Soyka, 12 completed 13 behalf. 14 a mobile home with Plaintiff and that they talk, watch TV, and go 15 to dinner together. (AR 145). 16 light chores (AR 146), can only lift fifteen lbs. (AR 147), goes 17 on short walks, drives a car, and goes out alone. 18 also indicated that Plaintiff is able to pay bills, count change, 19 handle a savings account, and use a checkbook/money orders. 20 15). 21 and to concerts with friends and her mother. 22 prompted a Third Party (AR 145-154). Adult Function Report on Plaintiff’s Plaintiff’s father stated that he lives in He noted that Plaintiff helps with (AR 149). He (AR Plaintiff’s father stated that Plaintiff goes to the movies to describe any changes in social (AR 151). When activities since 23 “Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.” 20 C.F.R. § 404.1567 (a). 3 24 25 26 27 28 10 1 Plaintiff’s conditions began, Plaintiff’s father noted that she 2 “[n]ever did go out much.” 3 injury affects her ability to lift, climb stairs, bend, stand, 4 kneel, walk, and sit. 5 walk 50 yards before needing to stop and rest. (AR 152). (AR 151). (AR 151). He noted that Plaintiff’s He elaborated that Plaintiff can 6 7 F. Adult Function Report 8 9 On October 30, 2013, Plaintiff completed an Adult Function 10 Report (AR 157-164), wherein she stated that she is in pain “24/7” 11 with her back (AR 157). 12 her mother, who is very ill. (AR 158). 13 problems with personal care (Id.), prepares meals daily (AR 159), 14 and that she scrapbooks and plays guitar every once in a while (AR 15 161). 16 eat with others or go to their home to watch TV or to visit and 17 talk. 18 time” and that she has no problems getting along with family, 19 friends, neighbors, or others. 20 drives and is able to pay bills, count change, handle a savings 21 account, and use a checkbook/money orders. 22 that she can walk for thirty minutes before needing to stop and 23 rest, except that she pushes herself to walk longer when she goes 24 grocery shopping. She stated that she helps take care of She noted that she has no She stated that once a month, if that, she may go out to (AR 161). She stated that she can pay attention for “a long (AR 162). (AR 162). 25 26 27 28 11 She stated that she (AR 160). She noted 1 IV. 2 THE FIVE STEP SEQUENTIAL EVALUATION PROCESS 3 4 To qualify for disability benefits, a claimant must 5 demonstrate a medically determinable physical or mental impairment 6 that prevents him from engaging in substantial gainful activity4 7 and that is expected to result in death or to last for a continuous 8 period of at least twelve months. 9 721 (9th Cir. 1998) (citing 42 Reddick v. Chater, 157 F.3d 715, U.S.C. § 423(d)(1)(A)). The 10 impairment must render the claimant incapable of performing the 11 work he previously performed and incapable of performing any other 12 substantial gainful employment that exists in the national economy. 13 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 14 U.S.C. § 423(d)(2)(A)). 15 16 To decide if a claimant is entitled to benefits, an ALJ 17 conducts a five-step inquiry. 18 steps are: 20 C.F.R. §§ 404.1520, 416.920. The 19 20 (1) Is the claimant presently engaged in substantial 21 gainful activity? 22 not disabled. If so, the claimant is found If not, proceed to step two. 23 24 25 26 27 28 Substantial gainful activity means work that involves doing significant and productive physical or mental duties and is done for pay or profit. 20 C.F.R. §§ 404.1520, 416.910. 4 12 1 (2) Is the claimant’s impairment severe? 2 claimant is found not disabled. 3 step three. If not, the If so, proceed to 4 5 (3) Does the claimant’s impairment meet or equal one 6 on the list of specific impairments described in 7 20 C.F.R. Part 404, Subpart P, Appendix 1? 8 the claimant is found disabled. 9 to step four. If so, If not, proceed 10 11 (4) Is the claimant capable of performing his past 12 work? 13 If not, proceed to step five. If so, the claimant is found not disabled. 14 15 (5) Is the claimant able to do any other work? 16 the 17 If not, claimant is found not disabled. claimant is found disabled. If so, the 18 19 20 21 22 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett); 20 C.F.R. §§ 404.1520(b)-404.1520(f)(1) & 416.920(b)-416.920(f)(1). 23 The claimant has the burden of proof at steps one through four 24 25 26 27 28 and the Commissioner has the burden Bustamante, 262 F.3d at 953-54. of proof at step five. If, at step four, the claimant meets his burden of establishing an inability to perform past work, the Commissioner must show that the claimant can perform some other 13 1 work that exists in “significant numbers” in the national economy, 2 taking into account the claimant’s residual functional capacity 3 (“RFC”), age, education, and work experience. 4 at 5 404.1520(f)(1), 416.920(f)(1). 6 testimony of a vocational expert or by reference to the Medical- 7 Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart P, 8 Appendix 2 (commonly known as “the grids”). 9 240 F.3d 1157, 1162 (9th Cir. 2001) (citing Tackett). When a 10 claimant has both exertional (strength-related) and nonexertional 11 limitations, the Grids are inapplicable and the ALJ must take the 12 testimony of a vocational expert. 13 869 (9th Cir. 2000). 1098, 1100; Reddick, 157 F.3d at Tackett, 180 F.3d 721; 20 C.F.R. §§ The Commissioner may do so by the Osenbrock v. Apfel, Moore v. Apfel, 216 F.3d 864, 14 15 V. 16 THE ALJ’S DECISION 17 18 19 20 21 22 23 24 25 26 27 On November 12, 2014, after employing the five-step sequential evaluation process, the ALJ issued a decision finding that Plaintiff is not disabled within the meaning of the Social Security Act. (AR 20). At step one, the ALJ observed that Plaintiff had not engaged in substantial gainful activity since July 16, 2013, the alleged disability onset date. (AR 14). At step two, the ALJ found that Plaintiff’s severe impairments were spondylolisthesis, lumbosacral spondylosis, and lumbar strain. the ALJ found that Plaintiff did not (Id.). have an At step three, impairment or combination of impairments that meets or medically equals the 28 14 1 severity of one of the listed impairments in 20 CFR Part 404, 2 Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525 and 3 404.1526). 4 following RFC: (AR 15). The ALJ then found that Plaintiff had the 5 6 [C]laimant 7 perform light work as defined in 20 CFR 404.1567(b) 8 including 9 occasionally, has the lifting 10 residual and/or pounds functional capacity carrying frequently, 20 and to pounds sitting, 10 standing, and walking each for 6 hours in an[] 8-hour 11 workday. 12 occasionally bend, stoop, kneel, crouch, crawl, and climb 13 ramps, stairs, ladders, ropes, and/or scaffolds. As for exceptions, the claimant can only 14 15 (AR 15-16). 16 17 At step four, the ALJ determined that Plaintiff is “capable 18 of performing past relevant work as a nanny. 19 require the performance of work-related activities precluded by 20 the [plaintiff’s] residual functional capacity.” This work does not (AR 19). 21 22 VI. 23 STANDARD OF REVIEW 24 25 Under 42 U.S.C. § 405(g), a district court may review the 26 Commissioner’s decision to deny benefits. 27 the Commissioner’s decision when the ALJ’s findings are based on 28 legal error or are not supported by substantial evidence in the 15 “The court may set aside 1 record as a whole.” 2 (9th Cir. 2001) (citing Tackett, 180 F. 3d at 1097); Smolen v. 3 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing Fair v. Bowen, 4 885 F.2d 597, 601 (9th Cir. 1989)). Auckland v. Massanari, 257 F.3d 1033, 1035 5 6 “Substantial evidence is more than a scintilla, but less than 7 a preponderance.” 8 Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)). 9 evidence which a reasonable person might accept as adequate to Reddick, 157 F.3d at 720 (citing Jamerson v. It is “relevant 10 support a conclusion.” 11 Smolen, 80 F.3d at 1279). To determine whether substantial evidence 12 supports a finding, the court must “‘consider the record as a 13 whole, weighing both evidence that supports and evidence that 14 detracts from the [Commissioner’s] conclusion.’” 15 F.3d at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 16 1993)). 17 or reversing that conclusion, the court may not substitute its 18 judgment for that of the Commissioner. Reddick, 157 F.3d at 720-21 19 (citing Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 20 1457 (9th Cir. 1995)). Id. (citing Jamerson, 112 F.3d at 1066; Auckland, 257 If the evidence can reasonably support either affirming 21 22 VII. 23 DISCUSSION 24 25 Plaintiff challenges the ALJ’s decision on two grounds. 26 First, Plaintiff contends that the ALJ committed legal error in 27 not adequately assessing her testimony regarding her pain and 28 limitations. (Pl. MSO at 2). Second, Plaintiff contends that the 16 1 ALJ 2 treating physician, Dr. Alberto Ezroj. failed to properly consider the opinions of Plaintiff’s (Id. at 8). 3 4 The Court disagrees. The record demonstrates that the ALJ 5 conducted a thorough and proper analysis of Plaintiff’s testimony 6 and gave proper weight to Dr. Ezroj’s opinions. 7 the 8 decision must be AFFIRMED. reasons discussed below, the Court finds Accordingly, for that the ALJ’s 9 10 11 A. The ALJ Provided Specific, Clear, And Convincing Reasons To Reject Plaintiff’s Testimony 12 13 Plaintiff argues that the ALJ committed legal error in not 14 adequately assessing Plaintiff’s testimony regarding her pain and 15 limitations. 16 that the ALJ failed to provide clear and convincing reasons for 17 rejecting 18 disagrees and finds that the ALJ properly rejected Plaintiff’s 19 testimony. (Pl. MSO at 2). Plaintiff’s Specifically, Plaintiff contends allegations. (Id. at 3). The Court 20 21 When assessing a claimant’s credibility regarding subjective 22 pain or intensity of symptoms, the ALJ must engage in a two-step 23 analysis. 24 Initially, the ALJ must determine if there is medical evidence of 25 an impairment that could reasonably produce the symptoms alleged. 26 Id. (citation omitted). 27 evidence of malingering, the ALJ must provide specific, clear and 28 convincing reasons for rejecting the claimant’s testimony about Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012). If such evidence exists, and there is no 17 1 the symptom severity. 2 ALJ may consider the following: Id. (citation omitted). In so doing, the 3 4 [One,] 5 evaluation, such as the claimant’s reputation for lying, 6 prior inconsistent statements concerning the symptoms, 7 and other testimony by the claimant that appears less 8 than candid; [two,] [the] unexplained or inadequately 9 explained failure to seek treatment or to follow a [the] ordinary techniques 10 prescribed 11 of credibility claimant’s daily activities. course of treatment; and [three,] the 12 13 Smolen, 80 F.3d at 1284 (brackets added); Tommasetti v. Astrue, 14 533 F.3d 1035, 1039 (9th Cir. 2008). 15 16 Further, the ALJ must make a credibility determination with 17 findings that are “sufficiently specific to permit the court to 18 conclude that the ALJ did not arbitrarily discredit [plaintiff’s] 19 testimony.” 20 Although an ALJ’s interpretation of a claimant’s testimony may not 21 be the only reasonable one, if it is supported by substantial 22 evidence, “it is not [the court’s] role to second-guess it.” 23 Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (citing 24 Fair, 885 F.2d at 604). Tommasetti, 533 F.3d at 1039 (citation omitted). 25 26 The ALJ considered evidence in most of the categories 27 enumerated above when determining that Plaintiff’s symptoms are 28 not as severe as alleged. First, objective evidence contradicted 18 1 allegations in Plaintiff’s Disability Report and her testimony, 2 making 3 undermining her credibility. 4 knees were normal, suggesting that she has no significant knee 5 problems, despite Plaintiff listing “knees” in her Disability 6 Report. 7 of peripheral neuropathy in her feet (AR 17), despite Plaintiff’s 8 testimony that her feet are in pain 24/7. 9 contends that while the ALJ is correct in her assertions that there 10 is no evidence of peripheral neuropathy, significant knee problems, 11 ulcerative colitis or a learning disability, Plaintiff did not 12 testify that these conditions rendered her disabled and that, 13 “[s]ince they were not a basis of her testimony, the citations are 14 irrelevant.” 15 ALJ 16 Plaintiff’s 17 credible, whether or not she testified to total disability from 18 these symptoms. these to allegations (AR 17, 132). appear candid and thereby Moreover, there is no objective evidence objective alleged than For example, x-rays of Plaintiff’s (Pl. MSO at 3). consider less (AR 35). Plaintiff However, it is appropriate for the medical symptoms in evidence finding her that contradicts less than fully 19 20 The ALJ did note that an MRI taken on September 23, 2013 21 supports Plaintiff’s back allegations and acknowledged Plaintiff’s 22 diagnosis 23 lumbar strain. 24 physical 25 conservative treatment path for these conditions, indicating that 26 Plaintiff’s 27 Specifically, the ALJ noted, there have been no surgery referrals, 28 no recent recommendations for epidural injections, or any other of spondylolisthesis, (AR 17). therapy and condition spondylosis, and However, the ALJ noted that other than medication, is lumbosacral not as 19 doctors severe as have prescribed alleged. a (Id.). 1 significant medical interventions. 2 considered evidence that Plaintiff has normal range of motion in 3 her back, without spasms or exacerbation of pain, and normal 4 strength in her extremities. (Id.). Moreover, the ALJ (AR 17, 514). 5 6 Additionally, the ALJ noted that no specialists have treated 7 Plaintiff for her alleged conditions and, rather, only her family 8 primary care physicians have administered treatment. 9 Plaintiff argues that her physicians did not offer or recommend (AR 17). 10 additional 11 treatment was offered or suggested, [her] testimony should not be 12 discounted for failure to obtain additional treatment.” 13 at 4). 14 in his credibility determination.” 15 676, 681 (9th Cir. 2005). treatment options and that “[s]ince no additional (Pl. MSO However, an ALJ “is permitted to consider lack of treatment Burch v. Barnhart, 400 F.3d 16 17 Moreover, as the ALJ also observed, Plaintiff’s activities of 18 daily living suggest that her conditions are not as severe as 19 alleged. 20 of handling personal care, preparing meals, washing dishes, doing 21 laundry, dusting, driving, shopping, handling finances, and playing 22 guitar. 23 Plaintiff is able to complete light household chores, which are 24 “skills that are substantially similar to many working tasks.” 25 (Id.). 26 activities, 27 Plaintiff’s father completed. 28 specifically (AR 17). (Id.). The evidence reflects that Plaintiff is capable These activities, the ALJ noted, indicate that Plaintiff the ALJ noted argues that, mistakenly that when cites describing only (Pl. MSO at 6). Plaintiff’s 20 father, to a her form daily that However, the ALJ who lives with 1 Plaintiff (AR 145), “alleged substantially [] the same limitations 2 as the claimant … However, he provided more detail.” 3 Moreover, Plaintiff admitted in her own Adult Function Report to 4 performing several of these activities, including laundry, driving, 5 and washing dishes. 6 handles her own finances, as well as shops and plays guitar. (AR 7 157-164). (AR 43) (AR 16). Plaintiff also acknowledged that she 8 9 Plaintiff next argues that the “ALJ fails to show how these 10 sporadic activities are consistent with light work.” 11 7). 12 living in assessing credibility not only if the activities are 13 directly applicable to work, but also when they are inconsistent 14 with the claimant’s subjective allegations of disability. 15 Molina, 674 F.3d at 1112—13 (“While a claimant need not “vegetate 16 in a dark room” in order to be eligible for benefits, the ALJ may 17 discredit 18 participation in everyday activities indicating capacities that 19 are transferable to a work setting. 20 suggest 21 discrediting the claimant’s testimony to the extent that they 22 contradict 23 Valentine v. Astrue, 574 F.3d 685, 693 (9th Cir. 2009) (affirming 24 ALJ’s finding that claimant’s “non-work activities . . . are 25 inconsistent with the degree of impairment he alleges.”). 26 appropriately 27 living indicate that her conditions are not as severe as alleged, 28 thereby undermining her credibility. (Pl. MSO at However, an ALJ may rely on a claimant’s activities of daily a claimant’s some testimony difficulty claims of when determined totally that they may debilitating Plaintiff’s 21 claimant reports Even where those activities functioning, a the See be grounds for impairment.”); activities The ALJ of daily 1 The ALJ also noted that one of Plaintiff’s primary care 2 physicians, Dr. Song, commented in March of 2013 that Plaintiff 3 could return to work as a nanny. 4 this is not relevant because Plaintiff is not alleging disability 5 until July 16, 2013. 6 stated that the “medical evidence does not reflect a significant 7 deterioration in the [plaintiff’s] lifting and carrying or sitting 8 and standing abilities between March 2013 and July 2013.” (AR 18). (Pl. MSO at 5). Plaintiff argues that However the ALJ specifically (AR 18). 9 10 In sum, there are legally sufficient reasons for the ALJ to 11 have declined to credit Plaintiff’s subjective statements in their 12 entirety. For these reasons, the ALJ’s ultimate determination that 13 Plaintiff’s testimony was not credible is valid. 14 15 16 B. The ALJ Provided Specific And Legitimate Reasons To Reject Dr. Ezroj’s Opinion 17 18 Plaintiff next contends that the ALJ failed to properly 19 consider the opinions of Plaintiff’s treating physician, Dr. Ezroj. 20 (Pl. MSO at 8). The Court disagrees and finds that the ALJ provided 21 specific and legitimate reasons for rejecting Dr. Ezroj’s opinions. 22 23 Social Security regulations require the ALJ to consider all 24 relevant medical evidence when determining whether a claimant is 25 disabled. 26 Where the Agency finds that the treating physician’s opinion about 27 the nature and severity of the claimant’s impairments is well- 28 supported by accepted medical techniques and is not inconsistent 20 C.F.R. §§ 404.1520(e), 404.1527(c), 416.927(c). 22 1 with the other substantive evidence in the record, that opinion is 2 ordinarily 3 Astrue, 495 F.3d 625, 631 (9th Cir. 2007). controlling. 20 C.F.R. § 404.1527(c)(2); Orn v. 4 5 Nevertheless, the ALJ is also “responsible for determining 6 credibility, resolving conflicts in medical testimony, and for 7 resolving ambiguities.” 8 (9th Cir. 1995); see also Tommasetti, 533 F.3d at 1041 (“[T]he ALJ 9 is the final arbiter with respect to resolving ambiguities in the Andrews v. Shalala, 53 F.3d 1035, 1039 10 medical evidence.”). 11 substantial evidence are conclusive. 12 Key v. Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985) (“Where the 13 evidence as a whole can support either a grant or a denial, [the 14 court] may not substitute [its] judgment for the ALJ’s.”); Ryan v. 15 Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (“‘Where 16 evidence is susceptible to more than one rational interpretation,’ 17 the ALJ’s decision should be upheld.”) (quoting Burch, 400 F.3d at 18 679). 19 record, but only evidence that is significant or probative. 20 Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 21 2006). Findings of fact that are supported by 42 U.S.C. § 405(g); see also An ALJ need not address every piece of evidence in the See 22 23 Furthermore, “[t]he treating physician’s opinion is not, 24 however, necessarily conclusive as to either a physical condition 25 or the ultimate issue of disability.” 26 F.2d 747, 751 (9th Cir. 1989). 27 physician’s 28 sufficient medical data and whether it is consistent with other opinion depends on 23 Magallanes v. Bowen, 881 The weight given a treating whether it is supported by 1 evidence in the record. 2 disregard the treating physician’s opinion whether or not that 3 opinion 4 Magallanes, 881 F.2d at 751). 5 of Plaintiff's physician, the ALJ must present clear and convincing 6 reasons for doing so. 7 the treating physician’s opinion is contradicted by other doctors, 8 the Commissioner may reject the opinion by providing “specific and 9 legitimate reasons” for doing so that are supported by substantial is See 20 C.F.R. § 404.1527. contradicted.” 10 evidence in the record. 11 Andrews, 53 F.3d at “The ALJ may 1041 (citing To reject the uncontroverted opinion Andrews, 53 F.3d at 1041. Where, as here, 157 F.3d at 725). Rollins, 261 F.3d at 856 (citing Reddick, 12 13 Here, the ALJ cited several specific and legitimate reasons 14 supported by the record for giving minimal weight to Dr. Ezroj’s 15 opinions. 16 provide for any postural movement limitations despite Plaintiff’s 17 severe spinal impairment. 18 limitations would be to accommodate pressure and rapid movement on 19 the spine. 20 Plaintiff was severely limited with regards to standing and walking 21 but not to provide restrictions on activities such as bending and 22 stooping. First, the ALJ noted that Dr. Ezroj’s opinion does not (AR 18). (AR 18). The ALJ indicated that such Thus, it was inconsistent to find that 23 24 Second, 25 inconsistent 26 “[n]othing in the MRI … or other notes in the record support or 27 suggest why such extreme sitting and standing limitations are 28 necessary.” the with ALJ found objective (AR 18). that Dr. medical Ezroj’s evidence, opinion stating was that The ALJ was referring to a September 19, 24 1 2013 2 spondylolisthesis (AR 18, 207), rather than Grade 2, as reported 3 by Dr. Ezroj (AR 198). 4 opinions that lack support in the record. 5 Comm’r of Soc. Sec., 359 F.3d 1190, 1195 (9th Cir. 2004) (ALJ may 6 discredit treating physicians’ opinions that are conclusory, brief, 7 and unsupported by the record as a whole, or by objective medical 8 findings); Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996) (ALJ 9 properly rejected doctor’s opinion because opinion consisted of MRI of Plaintiff’s lumbar spine which showed Grade 1 An ALJ is free to disregard conclusory See, e.g., Batson v. 10 conclusory and unexplained check-off reports). 11 objective medical evidence supported Dr. Ezroj’s findings supports 12 the ALJ’s determination. The fact that no 13 14 The ALJ also noted that nothing in the treatment notes or 15 physical therapy notes supported such extreme limitations. 16 18). 17 treatment notes provides another valid basis upon which to reject 18 his opinions. 19 2003) 20 physician’s 21 statements because the treating physician’s “extensive conclusions 22 regarding [claimant’s] limitations [were] not supported by his own 23 treatment 24 (d)(2); see also Tommasetti, 533 F.3d at 1041 (finding that ALJ 25 properly discredited doctor’s opinion where doctor’s responses to 26 questionnaire were inconsistent with doctor’s own medical records). 27 Dr. 28 Plaintiff had a normal range of motion in her back without spasm (AR The fact that Dr. Ezroj’s conclusion conflicted with his own See Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. (holding that ALJ in favor testimony notes”); Ezroj’s the see treatment properly of generally notes from 25 20 an rejected examining C.F.R. August 6, § a treating physician’s 404.1527(c)(2), 2013 state that 1 or exacerbation of pain, normal strength in her extremities, and 2 did 3 Plaintiff’s primary diagnosis at that time was “strain of back.” 4 (Id.). not exhibit any musculoskeletal tenderness. (AR 514). 5 6 Plaintiff also argues that the ALJ’s rejection of State Agency 7 physician Dr. Wellons’ opinion demonstrates that “the ALJ failed 8 to properly reject the opinion of Dr. Ezroj because the ALJ is 9 relying on no medical opinion or evidence to the contrary, and she 10 is improperly interpreting the medical evidence as it concerns 11 [Plaintiff’s] spine impairment.” 12 that, while Dr. Wellons’ opinion that Plaintiff did not have a 13 medically diagnosable knee condition was accurate, his conclusions 14 that there was only a non-severe spinal impairment was inconsistent 15 with 16 demonstrating a severe impairment. 17 ALJ found that, although Dr. Wellons did not recommend any postural 18 or 19 required such limitations to reduce mobility requirements and 20 spinal 21 consistent with the totality of the evidence and any error in 22 affording minimal weight to Dr. Wellons’ opinion was harmless as 23 it benefited Plaintiff. the spinal exertional MRI, treatment limitations, pressure. (Id.). (Pl. MSO at 10). notes, and (AR 18). evidence However, physical therapy Additionally, the suggested the The ALJ found that ALJ’s Plaintiff decision was 24 25 The Court therefore disagrees with Plaintiff’s contention that 26 the ALJ improperly rejected Dr. Ezroj’s opinions and finds that 27 the ALJ provided specific and legitimate reasons for doing so. 28 26 1 VIII. 2 CONCLUSION 3 4 Consistent with the foregoing, IT IS ORDERED that Judgment be 5 entered AFFIRMING the decision of the Commissioner. 6 the Court shall serve copies of this Order and the Judgment on 7 counsel for both parties. The Clerk of 8 9 DATED: May 23, 2017 10 /S/ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 11 12 13 THIS DECISION IS NOT INTENDED FOR PUBLICATION IN WESTLAW, LEXIS OR ANY OTHER LEGAL DATABASE. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 27

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