Catherine D. Van Holland v. Carolyn W. Colvin

Filing 19

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). (bpo) (Entered: 06/14/2017)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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CATHERINE D. VAN HOLLAND,

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Plaintiff,

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Case No. SACV 16-1169 (SS)

v.

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MEMORANDUM DECISION AND ORDER

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

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Defendant.

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I.

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INTRODUCTION

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Catherine D. Van Holland (“Plaintiff”) brings this action

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seeking to overturn the decision of the Commissioner of the Social

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

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her application for Disability Insurance Benefits (“DIB”).

The

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parties

the

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consented,

pursuant

to

28

U.S.C.

§

636(c),

to

Nancy A. Berryhill, Acting Commissioner of Social Security, is
substituted for her predecessor Carolyn W. Colvin, whom Plaintiff
named in the Complaint. See 42 U.S.C. § 405(g); Fed. R. Civ. P.
25(d).
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jurisdiction of the undersigned United States Magistrate Judge.

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(Dkt. Nos. 9, 10).

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the Commissioner’s decision.

For the reasons stated below, the Court AFFIRMS

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II.

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PROCEDURAL HISTORY

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On February 17, 2012, Plaintiff filed an application for

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Disability Insurance Benefits (“DIB”) pursuant to Title II of the

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Social Security Act alleging a disability onset date of December

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5,

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application initially and on reconsideration.

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Thereafter, Plaintiff requested a hearing before an Administrative

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Law Judge (“ALJ”), (AR 114), which took place on May 21, 2014.

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34-60).

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finding that Plaintiff was not disabled because she could perform

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her past relevant work.

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Council denied Plaintiff’s request for review.

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action followed on June 23, 2016.

2011.

(AR

173-79).

The

Commissioner

denied

Plaintiff’s

(AR 92-95, 101-06).

(AR

The ALJ issued an adverse decision on September 2, 2014,

(AR 16-28).

On May 6, 2016, the Appeals
(AR 1-4).

This

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III.

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FACTUAL BACKGROUND

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Plaintiff was born on July 26, 1958.

(AR 37, 173).

She was

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just over fifty-three years old on the alleged disability onset

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date of December 5, 2011, and almost fifty-six years old when she

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appeared before the ALJ on May 21, 2014.

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attended college for three years, but did not obtain a degree.
2

(AR 16).

Plaintiff
(AR

1

38).

2

was sixteen years old at the time of the hearing.

3

Plaintiff previously worked as a secretary and office manager.

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49-50).

She is married and has one son from a prior marriage, who
(AR 38).
(AR

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6

Plaintiff receives long-term disability payments of $2,024.00

7

per month through a Met Life Disability Insurance policy, though

8

she did not know when the payments would end.

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summarized

by

the

ALJ,

Plaintiff’s

DIB

(AR 39).

application

As

alleges

10

disability due to: degenerative disc disease of the cervical (neck)

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and lumbar (low back) spine; spinal stenosis;2 failed cervical

12

spine fusion; pseudoarthrosis;3 diverticulitis;4 ventral hernia

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repair surgery;5 carpal tunnel syndrome; left ulnar shortening

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16

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Spinal stenosis causes narrowing in the spine.
(See
https://medlineplus.gov/spinalstenosis.html). “The narrowing puts
pressure on the [patient’s] nerves and spinal cord and can cause
pain.” (Id.).

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3

17

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2

Pseudarthrosis (variation pseudoarthrosis) occurs “[w]hen a solid
fusion
is
not
obtained
after
fusion
surgery,”
(see
https://www.spine.org/KnowYourBack/Resources/Definitions.aspx),
and “a false joint grows at the site.” (See https://medlineplus.
gov/ency/article/007383.htm).
Diverticulitis is an “inflammation or infection of a diverticulum
[pouch or sac] of the colon that is marked by abdominal pain or
tenderness often accompanied by fever, chills, and cramping.” (See
http://c.merriam-webster.com/medlineplus/diverticulitis).
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Plaintiff states that the hernia repair surgery was due to
complications from a colectomy, which she underwent to treat her
diverticulitis. (AR 242). A colectomy is “surgery to remove all
or part” of the large bowel. (See; https://medlineplus.gov/ency/
article/002941.htm).
5

3

1

surgery;6 thrombocytopenia;7 diabetes; neuropathy of the feet;8

2

kidney

3

depression; chronic pain and gastrointestinal distress; fatigue;

damage;

hemolytic

anemia;9

calcified

granulomas;10

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10
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The ulna is “the bone on the little-finger side of the human
forearm that forms with the humerus the elbow joint and serves as
a pivot in rotation of the hand.”
(See http://c.merriamwebster.com/medlineplus/ulna). Osteoplasty is “plastic surgery on
bone; especially: replacement of lost bone tissue or reconstruction
of defective bony parts.”
(See http://c.merriam-webster.com/
medlineplus/osteoplasty).
Ulnar shortening osteoplasty is a
“shortening of [the] carpal bone” in the wrist.
(See
http://bioportal.bioontology.org/ontologies/CPT?p=classes&
conceptid=25394).
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Ulnar shortening is distinct from a “carpal tunnel release,” during
which “a surgeon makes an incision in the palm of [the patient’s]
hand over the carpal tunnel ligament and cuts through the ligament
to
relieve
pressure
on
the
median
nerve.”
(See
http://www.mayoclinic.org/diseases-conditions/carpal-tunnelsyndrome/multimedia/carpal-tunnel-release/img-20008129).
At the
May 21, 2014 ALJ hearing, the ALJ observed that Plaintiff still
had not had a “carpal tunnel release.” (AR 44).

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Thrombocytopenia is “any disorder in which there is an abnormally
low amount of platelets. Platelets are parts of the blood that
help blood to clot. This condition is sometimes associated with
abnormal bleeding.”
(See https://medlineplus.gov/ency/article/
000586.htm).
“Diabetic neuropathy is a peripheral nerve disorder caused by
diabetes or poor blood sugar control. The most common types of
diabetic neuropathy result in problems with sensation in the
feet. . . . The symptoms are numbness, pain, or tingling in the
feet or lower legs.”
(See https://www.ninds.nih.gov/Disorders/
All-Disorders/Diabetic-Neuropathy-Information-Page).
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Hemolytic anemia is a “condition in which red blood cells are
destroyed and removed from the bloodstream before their normal
lifespan is over.” (See https://www.nhlbi.nih.gov/health/healthtopics/topics/ha).
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“A granuloma is a clump of cells that forms when the immune
system tries to fight off a harmful substance but cannot remove it
from
the
body.”
(See
https://medlineplus.gov/ency/
article/001251.htm).
10

4

1

medication side effects; inability to sit or stand for prolonged

2

periods; and difficulty using hands.

(AR 23).

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4

A.

Plaintiff’s Testimony

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Plaintiff testified that the only reason that she cannot work
is because of her “debilitating pain.”

(AR 41).

She stated,

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[M]y pain stems from all my spinal conditions, my bone

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issues, anywhere from my neck to my thoracic spine to my

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lower spine, down to my legs.

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don’t sleep. . . . Even with sleep aids, . . . I never

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stay asleep because I’ll wake up in pain.

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get in a comfortable position.

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goes, it really is truly unrelenting.

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helps me, but nothing ever takes it away. It’s constant.

My arms are affected.

I

I can never

So as far as the pain
The medication

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(AR 53).

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only relief she finds is in laying down on an adjustable bed.

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54).

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additional “spinal fusion surgery and the carpal tunnel surgery

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and all the other surgeries [she is] going to have to face” in the

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future.

Plaintiff stated that even sitting is painful and the
(AR

She claimed not be healthy enough at present to undergo the

(AR 55).

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25

To treat her pain, Plaintiff takes Vicodin two to six times a

26

day, as well as Soma, another pain reliever.

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daily prescription medications include Atenolol (hypertension),

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5

(AR 41).

Plaintiff’s

1

Lisinopril

2

(diabetes).

(hypertension),

Metformin

(diabetes),

and

Onglyza

(Id.).

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4

Plaintiff stated that she suffers from diverticulitis and

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fatty liver.

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colectomy,”

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Plaintiff still wears a binder, and while the hernia is better,

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“it is still very painful.”

(AR 55).
including

She still has “a lot of issues from [her]
complications

from

a

hernia.

(AR

56).

(Id.).

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10

Plaintiff also claimed to suffer from numbness in her arms.

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She testified that her right arm is “completely numb” “all the

12

time.”

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as numb as her right, it is still “very painful.” (Id.). Plaintiff

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has discussed carpal tunnel surgery with her doctors.

(Id.).

While she admitted that her left arm is not quite

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B.

Plaintiff’s Statements

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Plaintiff filed a long term disability application with Met

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Life in September 2012.

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Plaintiff stated that “[b]oth hands and wrists are so painful that

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doing basic household chores and personal hygiene are difficult.”

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(AR 522).

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follows:

(AR 518-540).

In the application,

Plaintiff described her activities of daily living as

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I usually start my day between 6:30 and 7:00 a.m.

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take

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approximately 10 to 20 minutes of riding slowly on the

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recumbent stationary bike to loosen my muscles for my

my

morning

medication

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and

begin

with

I

doing

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physical therapy stretches.

2

minutes of Physical Therapy neck and back exercises

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. . . . I then use ice and electro stimulation therapy

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for another 15 to 20 minutes.

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usually quite sore and will watch some TV or read or

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sometimes lay down for a bit.

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chores like light dusting which involves no bending or

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lifting.

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just too tough on hands, wrist and back.

I then perform 20 to 30

After my P.T. workout I’m

I then try to do any small

I can’t do laundry or vacuuming because it’s
My husband

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helps me prepare dinner and my son helps with the

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cleaning

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dishwasher[,] which is very hard for me to do.

of

dishes,

like

unloading

and

loading

the

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14

(AR 526).

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the dishes, every day so long as she does not have to bend.

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531).

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accompany her “to push the cart & load & unload groceries.”

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Plaintiff claimed that because it is hard to sit in “church seats,”

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she watches “the services on line at home so I can stop & restart

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when I need to take a break.

Plaintiff states that she does housework, like doing
(AR

While Plaintiff shops for groceries, her husband or son must
(Id.).

(AR 529).

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C.

Treatment History

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1.

Diabetes

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26

Plaintiff was diagnosed with diabetes well before her December

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2011 disability onset date.

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disability application dated September 14, 2012 in which Plaintiff

(See, e.g., AR 522 (Met Life long term

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claimed to have been diabetic for twenty years).

2

2012,

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physician,

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diabetes remained controlled and that Plaintiff “does not have

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neuropathy.”

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Menaka De Silva of the Pavillion Neurology Medical Group, Inc.

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reported that Plaintiff had a “near global absence of sensory

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responses in the lower extremities,” which was “consistent with a

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diabetic axonal neuropathy.”11

and

again
Dr.

on

March

Nadia

9,

Elihu,

(AR 301, 329).

2012,
M.D.,

On January 16,

Plaintiff’s
reported

primary

that

care

Plaintiff’s

However, on July 3, 2012, Dr. N.

(AR 717).

In addition, on January

10

14, 2013, Dr. Elihu noted that Plaintiff’s diabetic control was

11

worse, and that Plaintiff had not only “gained 20 lbs since [she]

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started cymbalta, but [also] had gained 20 lbs prior to that, too.

13

[Plaintiff] admits to poor eating.”

(AR 557).

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15

Nonetheless,

by

December

14,

2013,

Plaintiff’s

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endocrinologist, Dr. John W. Geier, M.D., reported that Plaintiff

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had gained “good overall control” over her diabetes using oral

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medications and insulin therapy.

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Plaintiff’s “diabetic therapy was adjusted to Actos 30mg, Nesina

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25mg, and Glumetza 1000mg.”12

(AR 1087).

At that time,

Dr. Geier reported in both January

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Plaintiff stated in her September 2012 Met Life long term
disability application that she finds it “hard to control my blood
sugars due to all the cortisone injections & stress my body is
going through.
I’m cutting way back on everything, but still
having issues.” (AR 527).
12 These three drugs are oral diabetes medications.
Actos is the
trademark name of pioglitazone, “a thiazolidine derivative taken
orally . . . to treat type 2 diabetes by decreasing insulin
resistance.”
(See
http://c.merriam-webster.com/medlineplus/
pioglitazone). “Nesina (alogliptin) is an oral diabetes medicine
that helps control blood sugar levels . . . by regulating the
levels of insulin your body produces after eating.”
(See
11

8

1

and April 2014 that Plaintiff maintained “good control” over her

2

diabetes.

(AR 1085-86).

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4

2.

Thrombocytopenia

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6

On October 15, 2010, oncologist Dr. Timothy E. Byun, M.D.

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diagnosed Plaintiff with chronic moderate thrombocytopenia, noting

8

that Plaintiff reported easy bruising of the arms and legs.

9

491).

10

neck

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“[c]urrently the patient is feeling well.

12

with blood sugar control, edema, or facial swelling.”

13

On August 7, 2012, Dr. Byun cleared Plaintiff for carpal tunnel

14

surgery, noting “[w]ith her current platelet count, the patient

15

should be able to tolerate carpal tunnel release surgery without

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increased risk of bleeding complication.”

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denied “any bleeding or bruising problems” at that time.

(AR

On November 3, 2011, Dr. Byun cleared Plaintiff for her
surgery

scheduled

for

December

5,

2011,

noting

that

She denies any problem

(AR 485).

(AR 486).

Plaintiff
(Id.).

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19

Plaintiff continued her treatment for thrombocytopenia with

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Dr. Edward A. Wagner, M.D.

21

that Plaintiff “describe[d] to [him] clearly that she [has] never

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had any major bleeding or hemorrhage spontaneously and all her

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surgeries that she’s had documented have not resulted in any

24

bleeding or hemorrhage or transfusion of red cells or platelets.”

On December 5, 2013, Dr. Wagner noted

25
26
27
28

https://www.drugs.com/nesina.html).
Glumetza is the trademark
name of metformin, an oral drug that “works by helping to restore
your body’s proper response to the insulin you naturally produce.”
(See
http://www.webmd.com/drugs/2/drug-144868/glumetzaoral/details).
9

1

(AR 1048).

2

stating, “As long as her platelet count is over 50,000, the other

3

studies are unremarkable and [if] she discontinues the medications

4

[with a risk of causing bleeding, such as aspirin], her bleeding

5

risk during ventral hernia repair is minimal but not normal.”

6

1052).

7

upper and lower extremities on both sides were of “normal strength

8

and tone,” and that her mobility and gait were likewise normal.

9

(AR 1050-51).

Dr. Wagner cleared Plaintiff for hernia surgery,

(AR

Dr. Wagner specifically noted in his exam that Plaintiff’s

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11

On April 3, 2014, Dr. Wagner noted that there were “no major

12

complications” and “no bleeding episodes” from Plaintiff’s hernia

13

operation on January 27, 2014, (AR 1044), and observed once again

14

that

15

strength and tone, and that her gait was normal.

16

Dr. Wagner determined that there was “[n]o need for any treatment

17

at this time,” and that he would see Plaintiff again in nine months.

18

(AR 1047).

Plaintiff’s

upper

and

lower

extremities

were

normal

in

(AR 1046).

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20

3.

Neck Fusion Surgery

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22

On

May

19,

2009,

Plaintiff

consulted

with

orthopedist

23

Dr. Jeffrey E. Deckey, M.D.

24

showed severe degenerative disk disease at L4-5, Dr. Decky stated

25

that

26

intervention” at that time.

27

2010, Dr. Deckey declined to “recommend any surgical intervention,”

28

but recommended instead “a course of epidurals as well as core

he

“certainly

.

.

(AR 663).

.

would

While Plaintiff’s MRI scan

not

(AR 664).

10

recommend

any

surgical

Similarly, on June 29,

1

strengthening.”

2

reported to Dr. Deckey that she has “severe pain” on a daily basis

3

and that her two most recent epidural injections “did not help.”

4

(AR 670).

5

proceed toward surgery.”

(AR

665).

On

September

8,

2011,

Plaintiff

Plaintiff informed Dr. Deckey that she “wishe[d] to
(AR 671).

6
7

Dr. Deckey performed cervical spinal (neck) fusion surgery on

8

Plaintiff on December 5, 2011, her claimed disability onset date.

9

(AR 396, 522).

Plaintiff was discharged the following day.

(AR

10

406).

11

“anterior incision [was well healed” and that “there are no signs

12

of infection.”

13

to her primary care physician that her arm numbness had “resolved”

14

and that she was taking a muscle relaxant for the post-surgery pain

15

in the back of her head.

On December 20, 2011, Dr. Deckey reported that Plaintiff’s

(AR 326).

On January 16, 2012, Plaintiff reported

(AR 301).

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17

The next day, on January 17, 2012, Dr. Deckey reported that

18

Plaintiff was “doing extremely well” and that the “fusion is

19

consolidating.”

20

that Plaintiff’s “neck [was] improving,” even though the fusion

21

was “not 100% healed.” (AR 321).

22

Dr. Deckey determined that Plaintiff’s neck appeared to be “doing

23

reasonably well.”

(AR 323).

On March 6, 2012, Dr. Deckey observed

Nonetheless, on June 5, 2012,

(AR 683).

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25

On July 17, 2012, Physician’s Assistant Jason R. Cook observed

26

that Plaintiff was “doing very well with regard to her cervical

27

spine,” but that she complained of lower back pain.

28

August 14, 2012, Dr. Deckey reported that Plaintiff has “good
11

(AR 508).

On

1

overall alignment” and that she “is actually doing fairly well with

2

regard to her neck.”

3

Plaintiff see Dr. Albert Lai for pain management.

(AR 505).

Dr. Deckey recommended that
(AR 506).

4
5

On February 14, 2013, Mr. Cook noted that although Plaintiff

6

stated that she had “some persistent neck pain, she denies any

7

radicular type symptoms.”

8

reviewing the results of the CT scan, Mr. Cook noted that Plaintiff

9

had pseudarthroses at the C5-C6 bone graft, (AR 586), but not at

(AR 583).

On February 19, 2013, upon

10

the C4-C5 and the C6-C7 disc levels.

11

Mr. Cook noted that Plaintiff “appear[ed] to have consolidation of

12

her fusion and bone healing at C5-6.”

(AR 598).

On June 25, 2013,

(AR 694).

13
14

4.

Diverticulitis

15
16

On January 27, 2012, Dr. Tackson Tam treated Plaintiff for an

17

episode of diverticulitis, noting that because this was Plaintiff’s

18

“3d attack, she should consider surgery in [the] near future.”

19

340).

20

medication (Cipro and Flagyl) “for better control.”

21

February 3, 2012, Plaintiff was “much improved” and was “advancing

22

her diet” to include more fiber.

23

Plaintiff reported to St. Joseph’s Hospital for a pre-op visit,

24

stating that her “pain was almost gone.”

25

2012, gastroenterologist Dr. Haig Najarian, M.D. gave a second

26

opinion

27

Plaintiff had had “multiple bouts of diverticulitis at [a] younger

28

age.”

(AR

Plaintiff was advised to go on a clear liquid diet and began

concurring

with

the

(AR 337).

decision

(AR 371).
12

(AR 340).

On

On February 22, 2012,

(AR 425).

to

operate

On March 1,

given

that

1

On March 13, 2012, Dr. Theodore Coutsoftides, M.D., performed

2

a laparascopic sigmoid resection with colorectal anastomosis.13 (AR

3

419-22; see also AR 383-84).

4

noted that the surgical incision was “healing well without any

5

infection or herniation” and that Plaintiff was “doing well and

6

has no complaints.”

7

midline incision was “well healed,” there was “no hernia,” and

8

Plaintiff was in “no acute distress.”

9

given a booklet on a high fiber diet.

On March 26, 2012, Dr. Coutsoftides

(AR 414).

On April 12, 2012, Plaintiff’s

(AR 413). Plaintiff was
(Id.).

On June 7, 2012,

10

Plaintiff was “stable and doing well,” with “minimal incisional

11

tenderness.”

(AR 410).

12
13

Two years later, on July 17, 2014, Plaintiff presented to

14

Dr. Shahram Javaheri, M.D., complaining of “severe abdominal pain”

15

that she thought might be a recurrence of diverticulitis.

16

1106).

17

pain,” (AR 1107), and concluded that he was “not sure if she has

18

diverticulitis.”

19

complete her course of antibiotics and ordered additional tests.

20

(Id.).

(AR

Dr. Javaheri noted that Plaintiff “seem[ed] to be in mild

(AR 1108).

Dr. Javaheri advised Plaintiff to

21
22
23
A laparascope is a “rigid endoscope that is inserted through an
incision in the abdominal wall and is used to examine visually the
interior of the peritoneal cavity.”
(See http://c.merriamwebster.com/medlineplus/laparoscope). The sigmoid colon is “the
contracted and crooked part of the colon immediately above the
rectum.” (See http://c.merriam-webster.com/medlineplus/sigmoid).
Anastomosis is “the surgical union of parts and especially hollow
tubular parts.”
(See http://c.merriam-webster.com/medlineplus/
anastomosis). Plaintiff refers to this in her testimony.
13

24
25
26
27
28

13

1

5.

Carpal Tunnel Syndrome

2
3

On August 14, 2012, Plaintiff consulted with Dr. Mark Halikis,

4

M.D. after an “EMG” test demonstrated “moderate carpal tunnel

5

syndrome.”14

6

Plaintiff’s right hand was “tender” at her MP joint of the thumb

7

and “nontender” at the CMC joint and the A1 pulley.

8

Plaintiff’s left wrist showed a good range of motion.

(Id.).

9

Dr. Halikis

tunnel

(AR 505).

diagnosed

On August 20, 2012, Dr. Halikis noted that

Plaintiff

with

“bilateral

(AR 630).

carpal

10

syndrome, moderate,” with arthrosis in her right thumb MP joint

11

and left wrist.

12

“none of these problems have to be treated urgently” and that she

13

is “not really looking towards surgery in the near future.”

14

630-31).

15

canals and prescribed a splint and a topical gel.

(Id.).

Dr. Halikis explained to Plaintiff that

(AR

Dr. Halikis gave her injections in her bilateral carpal
(AR 631).

16
17

On September 17, 2012, Dr. Halikis informed Plaintiff that

18

surgery on her right hand “would likely give her good relief” and

19

gave her an injection in her left hand “not for the carpal tunnel,

20

but for the arthrosis itself.”

21

Plaintiff reported that she was “doing well,” including “quite

22

well” in her right hand and “fairly well” in her left.

23

On December 5, 2012, Dr. Halikis stated that Plaintiff’s injections

(AR 632).

On October 15, 2012,

(AR 634).

24
25
26
27
28

An EMG test “studies nerve conductions (by delivering electrical
impulses to the nerves) and muscles (by inserting a needle probe
into different muscles)” and is considered a “useful and sensitive
test for carpal tunnel syndrome.” (See https://teleemg.com/carpaltunnel-ulnar-nerve-symptoms-forum/).
14

14

1

were “holding her up okay” on her right side, but that the results

2

on the left side were “transient.”

(AR 636).

3
4

On January 9, 2013, Plaintiff decided to undergo an “ulnar

5

shortening osteoplasty as well as excision of the ossicles in the

6

left wrist.”

7

February 26, 2013. (AR 643). On March 4, 2013, Plaintiff’s “wounds

8

look well healed,” and her x-rays showed “good placement of the

9

plate, good apposition of the osteotomy site, and debridement of

(AR 638).

Dr. Halikis performed the osteoplasty on

10

the

11

discomfort,” but Dr. Halikis referred her to her pain management

12

doctor.

13

healed” and Plaintiff had “minimal swelling.”

14

25, 2013, Plaintiff was out of her cast and was sent to therapy to

15

start on “splinting and rehabilitation.”

16

2013, Plaintiff was “making good gains in therapy” and her x-rays

17

showed “excellent progress in healing.”

18

2013, Plaintiff evidenced “some improvement,” but also complained

19

of “a generalized reaction of the surgical procedure which goes

20

beyond what [Dr. Halikis] did.”

21

that Plaintiff “continue therapy and introduce the element of

22

stress loading” into the therapy.

wrist.”

(AR

(Id.).

640).

Plaintiff

reported

“significant

On March 4, 2013, Plaintiff’s wounds were “well

(AR 787).

(AR 830).

(AR 641).

(AR 806).

On March

On April 22,

On May 20,

Dr. Halikis recommended

(Id.).

23
24

On June 17, 2013, Dr. Halikis told Plaintiff that “she needs

25

to get into therapy at least once a week,” and that even though

26

“that is a problem for her, . . . [if] she wants to move along,

27

she needs to get on it.”

28

noted

that

Plaintiff

(AR 776).
had

been
15

On July 15, 2013, Dr. Halikis
attending

therapy

and

her

1

functionality

2

September

3

“[l]ast visit we explained to her that we did not have much else

4

to offer,” once again told her “that there is not much more for

5

[him] to do.”

16,

had

“increased

2013,

Dr.

significantly.”

Halikis

reported

that

(AR
at

758).

On

Plaintiff’s

(AR 743).

6
7

6.

Pain Management

8
9

On September 20, 2012, Plaintiff consulted Dr. Albert Lai,

10

M.D. for pain management.

11

constant pain in her back, bones, and joints and rated the degree

12

of pain a “seven” on a scale of zero to ten.

13

prescribed a “medial branch block” and gave her a right heel lift.

14

(AR 1030).

15

to manage pain in her lower back and both hands.

16

October 23, 2012, Plaintiff reported that there was no change in

17

her pain level after the October 19 injection.

18

November 8, 2012, Plaintiff stated that the shoe lift seemed to

19

help her walk straighter, and that the medications were helping.

20

(AR 1014).

21

an assistive device and was not in “apparent distress.”

(AR 1027).

Plaintiff complained of

(AR 1028).

Dr. Lai

On October 19, 2012, Plaintiff received an injection
(AR 1020).

(AR 1019).

On

On

Dr. Lai observed that Plaintiff was ambulatory without
(AR 1016).

22
23

On

December

7,

2012,

Dr.

Lai

prescribed

Soma

for

pain

24

management and administered an injection.

25

December 13, 2012, Plaintiff reported that her pain level had

26

improved.

(AR 610, 1007).

Nonetheless, on January 3, 2013,

27

Plaintiff

complained

her

28

concentration and mood “sometimes,” and with her family function

that

16

pain

(AR 608, 1008-10).

interfered

with

On

her

1

and recreation “a lot.”

2

Plaintiff did not appear to be in any stress, (AR 613), and

3

Plaintiff admitted that the medications “are helping” and did not

4

cause any side effects.

5

on February 1, 2013, and reported that her condition had improved.

6

(AR 619).

7

Plaintiff stated that her pain level had not changed since her last

8

visit and that her “medications are less effective.”

9

989).

(AR 612).

(AR 614).

However, Dr. Lai noted that

Plaintiff received an injection

However, on both February 21 and March 21, 2013,

(AR 620,

10
11

On April 11 and May 16, 2013, Plaintiff reported that her pain

12

levels had decreased since the last visit.

13

21, 2013, a lumbar epidurogram showed “adequate flow into the

14

epidural space,” with no “filling defects,” and Plaintiff continued

15

to report that medications were helping.

16

2013, Plaintiff stated that her pain level had increased since her

17

prior visit on July 30, 2013 (AR 974), but once again admitted that

18

“medications are helping.”

19

Plaintiff received an injection to treat sacroiliac joint pain.

20

(AR 960, 962). On October 31, 2013, Plaintiff complained to Dr. Lai

21

that while her pain medications were “helpful,” they did not

22

alleviate the pain entirely.

(AR 969).

(AR 981, 985).

(AR 979).

On June

On August 22,

On September 27, 2013,

(AR 954).

23
24

7.

Arthritis

25
26

On October 8, 2012, Plaintiff consulted with Dr. Joo-Hyng Lee,

27

M.D. regarding joint pain.

(AR 724).

28

Plaintiff

feel

that

he

“did

not

17

that

Dr. Lee explained to
she

had

an

underlying

1

connective tissue disorder.”

2

November 5, 2012, Dr. Lee reported that Plaintiff’s upper and lower

3

extremities were “normal” and that Plaintiff has “no current signs

4

of rheumatoid arthritis,” even though she did have “a low positive

5

rheumatoid factor.”

6

reported that the MRI of Plaintiff’s hands revealed “no indication

7

of any inflammatory arthritis currently.”

(AR 726).

(AR 730).

In a follow-up visit on

On January 29, 2013, Dr. Lee

(AR 736).

8
9

8.

Ventral Hernia

10
11

On January 27, 2014, Plaintiff had a ventral hernia operation.

12

(AR 1038).

13

that

14

obstruction.”

15

Dr. Wagner that she had had “no major complications” and “no

16

bleeding episodes” from the hernia operation.

A physician’s assistant reported on February 3, 2014,

Plaintiff

was

“doing

(Id. 1033).

well

postoperatively”

with

“no

On April 3, 2014, Plaintiff informed

(AR 1044).

17
18

9.

Depression

19
20

Plaintiff saw psychotherapist Anne Laptin, M.S., LCSW, for a

21

total of seven sessions between October and December 2012.

22

1092).

23

Plaintiff

24

Ms. Laptin diagnosed Plaintiff with Depressive Disorder Due to a

25

Medical Condition, and noted that while Plaintiff “showed mild

26

improvement” over the course of their sessions, the “extensive

27

focus on her medical needs, appointments and pain management made

28

it difficult to reduce her symptoms in a significant way in the

(AR

Ms. Laptin wrote a letter on April 30, 2014 stating that
had

presented

with

signs

18

of

depression.

(Id.).

1

time we worked together.”

2

was

3

psychiatrist Susan Zachariah, M.D.

4

initial visit with Dr. Zachariah appears to have been on October

5

23, 2012.

6

and

7

Plaintiff’s insight and judgment were intact, as was her memory

8

for recent and remote events.

9

Plaintiff stated that she was “doing much better” and felt “less

seeing

Ms.

Laptin,

(AR 1081).

overwhelmed.

(Id.).
she

At the same time that Plaintiff
also

had

several

visits

(AR 1081-83).

with

Plaintiff’s

Plaintiff complained of feeling sad, anxious

(Id.).

However,

Dr.

(AR 1083).

Zachariah

noted

that

On November 27, 2012,

10

depressed and less anxious.”

11

Dr. Zachariah determined that Plaintiff was “anxious and mildly

12

depressed” and planned to take her off of Cymbalta.

(AR 1082).

On January 7, 2013,

(AR 1084).

13
14

In

15

Plaintiff’s

16

condition.

17

positive terms, even as they acknowledged that she presented with

18

some level of depression.

19

to person, place, time and general circumstances.

20

appropriate.”); AR 371 (4/19/12, “oriented to time, place, person,

21

and situation” demonstrating “appropriate affect and mood”); AR

22

1042 (12/4/13, “alert and oriented, no acute distress”); AR 1053

23

(3/26/14, “good energy level”); AR 1050 (4/9/14, mental status

24

alert, without anxiety or fear)).

addition

to

treating

Ms.

Laptin

physicians

and

Dr.

assessed

Zachariah,
Plaintiff’s

many

of

mental

They typically described her general mental status in

(See, e.g., AR 331 (3/9/12, “Oriented

25
26
27
28
19

Mood and affect

1

D.

Non-Examining Physicians

2
3

1.

Dr. M. Yee, M.D.

4
5

On

June

22,

2012,

Dr.

M.

Yee

provided

a

Disability

6

Determination

7

medical records.

8

Functional Capacity for the first twelve months after her alleged

9

disability onset date, i.e., between December 5, 2011 and December

Explanation
(AR 63).

based

on

his

review

of

Plaintiff’s

Dr. Yee assessed Plaintiff’s Residual

10

5, 2012.

(AR 69).

Dr. Yee determined that Plaintiff had four

11

severe impairments:

(1) “Disorders of Back -- Discogenic and

12

Degenerative,”

13

(3) diabetes, and (4) anemia.

14

although Plaintiff had exertional limitations, she would be able

15

to:

16

stand for two hours and sit for six hours in a normal eight-hour

17

workday; climb ramps or stairs, stoop (bend at the waist), crouch

18

(bend at the knees), kneel and crawl occasionally, but never climb

19

ladders, ropes or scaffolds.

20

that Plaintiff should “avoid concentrated exposure” to hazards such

21

as “machinery, heights, etc.,” but that she had no manipulative,

22

visual or communicative limitations.

23

limitations, Dr. Yee determined that Plaintiff could perform her

24

past relevant work as an Order Clerk, DOT Code 249.362-026, and

25

was therefore not disabled.

(2)

“Disorders

of

Gastrointestinal

(AR 68).

System,”

Dr. Yee concluded that

lift ten pounds occasionally; less than ten pounds frequently;

(AR 69-70).

(AR 72).

26
27
28
20

Dr. Yee further found

(AR 70-71).

With these

1

2.

Dr. R. Weeks

2
3

On

May

28,

2013,

Dr.

R.

Weeks

provided

a

Disability

4

Determination

5

medical records, which he divided into two periods.

6

first period overlapped with Dr. Yee’s assessment, and continued

7

for approximately three months longer, i.e., from December 5, 2011

8

to February 25, 2013.

9

26, 2013 through February 26, 2014.

Explanation

based

(AR 85).

on

his

review

of

Plaintiff’s

(AR 76).

The

The second period covered February
(AR 87).

10
11

For the period between December 5, 2011 and February 25, 2013,

12

Dr. Weeks determined that Plaintiff had the same four severe

13

impairments identified by Dr. Yee -- (1) “Disorders of Back --

14

Discogenic and Degenerative,” (2) “Disorders of Gastrointestinal

15

System,” (3) diabetes, and (4) anemia -- and added a fifth,

16

(5) peripheral neuropathy.

17

found

18

occasionally; less than ten pounds frequently; stand for two hours

19

and sit for six hours in a normal eight-hour workday; climb ramps

20

or stairs, stoop (bend at the waist), crouch (bend at the knees),

21

kneel and crawl occasionally, but never climb ladders, ropes or

22

scaffolds.

that

Plaintiff

(AR 84).

would

be

Also like Dr. Yee, Dr. Weeks

able

to:

lift

ten

pounds

(AR 85-86).

23
24

However, unlike Dr. Yee, Dr. Weeks determined that Plaintiff

25

had manipulative limitations in that she had a “limited” ability

26

to reach overhead with either arm and to handle or “finger” items

27

(gross and fine manipulation).

28

Plaintiff’s environmental limitations included not just the need

(AR 86).

21

Dr. Weeks also found that

1

to

2

heights, but also to extreme cold and vibration.

avoid

concentrated

exposure

to

hazards

like

machinery

and

(AR 87).

3
4

For the period between February 26, 2013 through February 26,

5

2014, Dr. Weeks assessed an RFC that was nearly identical to his

6

RFC assessment for the earlier period, with the following two

7

differences:

8

Plaintiff could “never” crawl, (AR 88), instead of “occasionally”

9

crawl; and that her gross manipulation ability was “unlimited,”

for the latter period, Dr. Weeks concluded that

10

(id.), instead of “limited”.

11

Dr. Weeks determined that Plaintiff could perform her past relevant

12

work as an Order Clerk, DOT Code 249.362-026, and was therefore

13

not disabled.

(Id.).

With these limitations,

14
15

3.

Dr. Malcolm Brahms

16
17

Impartial Medical Expert Dr. Malcolm Brahms testified at the

18

ALJ hearing on May 21, 2014.

19

the record reflects that Plaintiff is a “diabetic, slightly obese

20

individual who has a series of problems.”

21

include “a cervical spine problem, shoulder problems, carpal tunnel

22

syndrome,”

23

pseudoarthrosis, and cavovarus foot with related ankle problems.15

24

(Id.).

25

spine issues, she should “avoid any work above shoulder level” and

26
27
28

(AR 42-48).

thrombocytopenia,

Dr. Brahms stated that

(AR 43).

diabetes,

These problems

neuropathy,

pain,

Dr. Brahms stated that because of Plaintiff’s cervical

“Cavovarus foot refers to a foot that has both cavus (high arch)
and varus of the heel (a heel that is turned inward).”
(See
http://www.aofas.org/PRC/conditions/Pages/Conditions/CavovarusFoot.aspx).
15

22

1

“avoid repetitive lifting below waist level,” i.e., bending to

2

lift, although she could engage in below waist level lifting

3

“occasionally.”

4

issues, Dr. Brahms stated that Plaintiff could engage in “limited

5

walking” for short distances at a time.

(AR 46).

Because of Plaintiff’s feet and ankle

(AR 46).

6
7

IV.

8

THE FIVE STEP SEQUENTIAL EVALUATION PROCESS

9
10

To

qualify

for

disability

benefits,

a

claimant

must

11

demonstrate a medically determinable physical or mental impairment

12

that prevents the claimant from engaging in substantial gainful

13

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

14

continuous period of at least twelve months.

15

157 F.3d 715, 721 (9th Cir. 1998) (citing 42 U.S.C. § 423(d)(1)(A)).

16

The impairment must render the claimant incapable of performing

17

the work she previously performed and incapable of performing any

18

other substantial gainful employment that exists in the national

19

economy.

20

(citing 42 U.S.C. § 423(d)(2)(A)).

Reddick v. Chater,

Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)

21
22

To decide if a claimant is entitled to benefits, an ALJ

23

conducts a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920.

24

steps are:

The

25
26

(1)

Is the claimant presently engaged in substantial gainful

27

activity?

28

not, proceed to step two.

If so, the claimant is found not disabled.

23

If

1

(2)

Is

the

claimant’s

impairment

severe?

2

claimant is found not disabled.

3

If

not,

the

three.

4

(3)

If so, proceed to step

Does the claimant’s impairment meet or equal one of the

5

specific impairments described in 20 C.F.R. Part 404,

6

Subpart P, Appendix 1?

7

disabled.

8

(4)

9

If so, the claimant is found

If not, proceed to step four.

Is the claimant capable of performing his past work? If
so, the claimant is found not disabled.

10

If not, proceed

to step five.

11

(5)

Is the claimant able to do any other work?

12

claimant is found disabled.

13

If not, the

not disabled.

If so, the claimant is found

14
15

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

16

262 F.3d 949, 953-54 (9th Cir. 2001); 20 C.F.R. §§ 404.1520(b)-

17

(g)(1) & 416.920(b)-(g)(1).

18
19

The claimant has the burden of proof at steps one through four

20

and

21

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

22

affirmative duty to assist the claimant in developing the record

23

at every step of the inquiry.

24

claimant meets his or her burden of establishing an inability to

25

perform past work, the Commissioner must show that the claimant

26

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

27

in

28

residual functional capacity (“RFC”), age, education, and work

the

the

Commissioner

national

has

economy,

the

burden

of

24

at

step

five.

Additionally, the ALJ has an

Id. at 954.

taking

proof

into

If, at step four, the

account

the

claimant’s

1

experience.

2

721; 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1).

3

may do so by the testimony of a VE or by reference to the Medical-

4

Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart P,

5

Appendix 2 (commonly known as “the grids”).

6

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

7

exertional (strength-related) and non-exertional limitations, the

8

Grids are inapplicable and the ALJ must take the testimony of a

9

VE.

10

Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at
The Commissioner

Osenbrock v. Apfel,

When a claimant has both

Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000) (citing

Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988)).

11
12

V.

13

THE ALJ’S DECISION

14
15

The ALJ employed the five-step sequential evaluation process

16

and concluded that Plaintiff was not disabled within the meaning

17

of the Social Security Act.

18

that Plaintiff met the insured status requirements through March

19

31, 2017 and had not engaged in substantial gainful activity since

20

December 5, 2011, the alleged disability onset date.

21

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

22

determinable impairments of slight obesity; diabetes mellitus;

23

degenerative

disc

disease

24

laminectomy16

and

fusion

25

pseudoarthrosis at the C5-6 graft line; bilateral carpal tunnel

26
27
28

(AR 28).

of
in

the

At step one, the ALJ found

cervical

December

2011

spine,
with

(AR 18).

status

At

post

suggestion

of

A laminectomy is the “surgical removal of the posterior arch of
a vertebra (as to relieve compression of a spinal nerve root).”
(See http://c.merriam-webster.com/medlineplus/laminectomy).
16

25

1

syndrome; degenerative disc disease and stenosis of the lumbar

2

spine; status post left ulnar shortening osteoplasty in February

3

2013; anemia; peripheral neuropathy; and chronic thrombocytopenia.

4

(Id.).

5
6

At step three, the ALJ found that the severe impairments at

7

step two did not meet or medically equal a listed impairment.

8

20).

9

capacity (“RFC”) to perform sedentary work as defined in 20 C.F.R.

(AR

The ALJ then found that Plaintiff had the residual functional

10

404.156(a),17 except:

11

stand or walk 2 hours out of an 8-hour days with normal workday

12

breaks; occasionally life and carry 10 pounds, frequently lift and

13

carry less than 10 pounds; both lower extremities no bending over

14

to

15

balancing, stopping, crouching, crawling, kneeling; no ladders,

16

ropes or scaffolding; frequent gross and fine manipulation with

17

both upper extremities; no work above shoulder level with both

18

upper extremities; and no unprotected heights, dangerous or fast

19

moving machinery.

20

Plaintiff was capable of performing her past relevant work as a

21

secretary and office manager, which do not require the performance

22

of work-related activities precluded by Plaintiff’s RFC.

(AR 27).

23

Accordingly,

under

lift

from

below

the

can sit for six hours out of an 8-hour day;

the

waist;

(AR 22).

ALJ

found

occasional

stairs,

bending,

At step four, the ALJ found that

that

Plaintiff

was

not

a

24
25
26
27
28

“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.” See 20 C.F.R. § 404.1567(a).
17

26

1

disability as defined by the Social Security Act from December 5,

2

2011, the alleged onset date of her disability, to the date of the

3

ALJ’s decision.

(AR 28).

4
5

VI.

6

STANDARD OF REVIEW

7
8
9

Under 42 U.S.C. § 405(g), a district court may review the
Commissioner’s decision to deny benefits.

“[The] court may set

10

aside the Commissioner’s denial of benefits when the ALJ’s findings

11

are based on legal error or are not supported by substantial

12

evidence in the record as a whole.”

13

1033, 1035 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1097); see

14

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

15

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

Aukland v. Massanari, 257 F.3d

16
17

“Substantial evidence is more than a scintilla, but less than

18

a preponderance.”

19

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

20

evidence which a reasonable person might accept as adequate to

21

support a conclusion.”

22

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

23

as a whole, weighing both evidence that supports and evidence that

24

detracts from the [Commissioner’s] conclusion.’” Aukland, 257 F.3d

25

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

26

1993)).

27

or reversing that conclusion, the court may not substitute its

28

judgment for that of the Commissioner.

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

(Id.).

It is “relevant

To determine whether substantial

If the evidence can reasonably support either affirming

27

Reddick, 157 F.3d at 720-

1

21 (citing Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453,

2

1457 (9th Cir. 1995)).

3
4

VII.

5

THE ALJ’S REASONS FOR REJECTING PLAINTIFF’S SUBJECTIVE TESTIMONY

6

WERE SPECIFIC, CLEAR AND CONVINCING

7
8
9

Plaintiff challenges the ALJ’s decision on the sole ground
that

the

ALJ

improperly

assessed

Plaintiff’s

credibility.

10

(Plaintiff’s Memorandum in Support of Complaint (“P Memo.”) at 3).

11

Plaintiff first contends that the ALJ improperly used boilerplate

12

language in finding her to be not entirely credible.

13

6).

14

purported

15

subjective claims of pain “is always legally insufficient” because

16

in Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991), the

17

Ninth Circuit rejected a standard that would require objective

18

evidence to prove the degree of such an impairment.

19

6-9).

20

the ALJ may only, but did not, “‘rely either on reasons unrelated

21

to the subjective testimony (e.g., reputation for dishonesty), on

22

conflicts between her testimony and her own conduct, or on internal

23

contradictions in that testimony.’”

24

Comm’r Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997) (“In

25

this case, the ALJ disbelieved Light because no objective medical

26

evidence supported Light’s testimony regarding the severity of

27

subjective symptoms from which he suffers, particularly pain.

(P Memo. at

Second, Plaintiff argues that the ALJ’s reliance on the
lack

of

objective

medical

evidence

to

support

her

(P Memo. at

According to Plaintiff, to find her testimony not credible,

28
28

(Id. at 8) (quoting Light v.

An

1

ALJ may not discredit a claimant’s subjective testimony on that

2

basis.”)).

3
4

The ALJ generally contended that “the evidence submitted does

5

not

6

provided

7

testimony regarding her symptoms and limitations was “not entirely

8

credible,”

9

treatment history; (2) her failure to follow up on recommendations

10

made by her doctors; (3) inconsistencies between her testimony and

11

objective medical evidence, (AR 26-27), and (4) discrepancies

12

between Plaintiff’s activities of daily living and her allegations

13

of depression.18

14

reasons for rejecting Plaintiff’s credibility were specific, clear,

15

and convincing.

16

of the second reason did not support the ALJ’s conclusion, the

17

error was harmless.

18

the ALJ’s decision is AFFIRMED.

support

the

four

(AR

severity

primary

23):

of

symptoms

reasons

(1)

for

finding

Plaintiff’s

(AR 19-20).

alleged,”

(AR

that

“generally

26),

and

Plaintiff’s

successful”

The ALJ’s first, third and fourth

To the extent that the evidence cited in support

Accordingly, for the reasons discussed below,

19
20

A.

Standard

21
22

When assessing a claimant’s credibility regarding subjective

23

pain or intensity of symptoms, the ALJ must engage in a two-step

24
25
26
27
28

The ALJ’s discussion of the discrepancy between Plaintiff’s
allegations of depression and her activities of daily living was
in the context of a lengthy discussion of whether Plaintiff’s
mental condition was a severe impairment. (See AR 19-20). The
ALJ concluded that despite Plaintiff’s claims, her mental
impairment was “nonsevere.” (AR 20).
18

29

1

analysis.

2

Initially, the ALJ must determine if there is medical evidence of

3

an impairment that could reasonably produce the symptoms alleged.

4

Id. (citation omitted).

5

evidence of malingering, the ALJ must provide specific, clear and

6

convincing reasons for rejecting the claimant’s testimony about

7

the symptom severity.

8

F.3d at 1284 (“[T]he ALJ may reject the claimant’s testimony

9

regarding the severity of her symptoms only if he makes specific

Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012).

If such evidence exists, and there is no

Id. (citation omitted); see also Smolen, 80

10

findings stating clear and convincing reasons for doing so.”).

11

so doing, the ALJ may consider the following:

In

12
13

(1) ordinary techniques of credibility evaluation, such

14

as

15

inconsistent statements concerning the symptoms, and

16

other testimony by the claimant that appears less than

17

candid;

18

failure to seek treatment or to follow a prescribed

19

course

20

activities.

the

claimant’s

(2)

of

reputation

unexplained

treatment;

and

or

(3)

for

lying,

inadequately

the

prior

explained

claimant’s

daily

21
22

Id.; see also Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir.

23

2008). Inconsistencies between a claimant’s testimony and conduct,

24

or internal contradictions in the claimant’s testimony, also may

25

be relevant.

26

Cir. 1997).

27

treating and examining physicians regarding, among other matters,

28

the functional restrictions caused by the claimant’s symptoms.

Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th
In addition, the ALJ may consider the observations of

30

1

Smolen, 80 F.3d at 1284.

2

subjective testimony based “solely” on its inconsistencies with

3

the objective medical evidence presented.

4

Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) (citing Bunnell,

5

947 F.2d at 345).

It is improper for an ALJ to reject

Bray v. Comm’r of Soc.

6
7

Further, the ALJ must make a credibility determination with

8

findings that are “sufficiently specific to permit the court to

9

conclude

that

the

ALJ

did

not

arbitrarily

discredit

[the

10

claimant’s] testimony.”

Tommasetti, 533 F.3d at 1039 (citation

11

omitted).

ALJ’s

12

testimony may not be the only reasonable one, if it is supported

13

by substantial evidence, “it is not [the court’s] role to second-

14

guess it.”

15

(citing Fair, 885 F.2d at 604).

Although

an

interpretation

of

a

claimant’s

Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001)

16
17
18

B.

Factors

Supporting

The

ALJ’s

Adverse

Credibility

Determination

19
20

The ALJ provided two specific, clear and convincing reasons

21

to find Plaintiff’s complaints of constant, all-consuming pain not

22

fully credible.

23

support the Commissioner’s decision.

(AR 26-27).

These reasons are sufficient to

24
25

1.

Successful Treatment History

26
27

The ALJ found Plaintiff not entirely credible because even

28

though Plaintiff sought treatment for medical treatment for her
31

1

symptoms, the treatment was “generally successful in controlling

2

those

3

debilitating pain do not acknowledge.

4

ALJ explained that after Plaintiff underwent neck fusion surgery

5

on December 5, 2011 to treat cervical degenerative disc disease,

6

by “January 2012, her arm numbness had resolved and she was

7

reportedly doing extremely well.

8

motor and sensory exam was grossly within normal limits; subsequent

9

examinations

symptoms,”

which

revealed

Plaintiff’s

her

pain

complaints
(AR 26).

of

constant,

For example, the

Physical examination revealed

was

well

controlled

with

10

medication[.]”

11

observations.

12

reported on January 17, 2012 that Plaintiff was “doing extremely

13

well,” and on June 5, 2012, that she was doing “reasonably well.”

14

(AR 323, 683).

15

17, 2012 that Plaintiff was “doing very well with regard to her

16

cervical spine.”

(Id.).
For

The

example,

record

amply

Plaintiff’s

supports

surgeon,

the

Dr.

ALJ’s

Deckey,

Physician’s Assistant Mr. Cook observed on July

(AR 508).

17
18

Similarly, the ALJ noted that Plaintiff’s thrombocytopenia

19

significantly improved with treatment.

20

that on November 3, 2011, Dr. Byun cleared Plaintiff for her neck

21

surgery, noting that “[c]urrently the patient is feeling well,”

22

(AR 486), and on August 7, 2012, Dr. Byun cleared Plaintiff for

23

carpal tunnel surgery, noting that in light of her current platelet

24

counts, Plaintiff should be able to tolerate the surgery without

25

increased risk of bleeding complications.

26

2013, Dr. Wagner also cleared Plaintiff for hernia surgery.

27

1052).

28

responded well to her sigmoid colon resection in March 2012. (Id.).

(AR 26).

The record shows

(AR 485).

In December
(AR

Finally, the ALJ noted that Plaintiff’s diverticulitis

32

1

Indeed, in a follow up visit on March 26, 2012, Dr. Coutsoftides

2

reported that Plaintiff “was doing well and has no complaints.”

3

(AR 414; see also AR 413 (April 12, 2012, reporting that Plaintiff

4

“is experiencing no new medical problems or complaints”); AR 410

5

(June 7, 2012, reporting same)).

6
7

The ALJ properly could infer, on the basis of ample medical

8

evidence demonstrating that Plaintiff was doing well after her

9

successful procedures, that Plaintiff’s testimony regarding her

10

degree of pain was exaggerated and not credible.

11
12

2.

13

Inconsistencies

Between

Plaintiff’s

Testimony

And

Objective Medical Evidence

14
15

The ALJ found Plaintiff’s credibility diminished based on

16

inconsistencies

17

“debilitating” and “unrelenting,” (AR 41, 53), and the objective

18

medical evidence.

19

Plaintiff’s claims were inconsistent with her physical examination

20

with Dr. Wagner in December 2013.

21

examination “revealed normal strength and tone in both upper and

22

lower extremities, intact neurological findings, normal gait, no

23

memory impairment, and normal affect.”

24

52).

25

no need for any treatment (unless the platelet count dropped) in

26

an April 2014 follow-up visit and advised the claimant to return

27

in nine months for re-evaluation.”

28

47).

between

her

(AR 26).

testimony

describing

her

pain

as

Specifically, the ALJ observed that

According to the ALJ, that

(AR 26) (citing AR 1048-

The ALJ further noted that “Dr. Wagner concluded there was

(AR 26-27) (citing AR 1044-

The ALJ noted that, despite Plaintiff’s claims of depression
33

1

and

2

examinations have been described as normal on numerous occasions

3

by her treating physicians.”

4

ALJ’s observations.

sleep

disturbance,

her

“neurological

(AR 27).

and

mental

status

The record supports the

(See, e.g., AR 331, 371, 1042, 1050, 1053).

5
6

Furthermore, there is a contradiction between Plaintiff’s

7

claims of debilitating, constant pain and her own repeated reported

8

admissions to Dr. Lai that her pain levels improved under his care.

9

(See, e.g., AR 610 (12/13/12, pain level “improved” following

10

injection and prescription to Soma); AR 614 (1/3/13, medications

11

“are helping” and do not cause side effects);

12

condition “improved” after injection on February 1, 2013); AR 981

13

(4/11/13, pain levels decreased); AR 985 (5/16/13, pain levels

14

decreased); AR 969 (medications are “helping”); AR 954 (medications

15

are

16

(12/5/13, medications are “helping”).

17

admitted that she is able to do housework every day so long as it

18

does not involve bending, and that she begins each day by exercising

19

for twenty-five to forty minutes.

“helpful,”

but

do

not

entirely

alleviate

AR 619 (2/13/13,

pain);

AR

950

In addition, Plaintiff

(AR 526).

20
21

The inconsistencies between Plaintiff’s testimony and the

22

objective medical evidence constituted a clear and convincing

23

reason for the ALJ’s adverse credibility determination.

24

119 F.3d at 792; see also Berry v. Astrue, 622 F.3d 1228, 1234 (9th

25

Cir.

26

entirely

27

complaints in [plaintiff’s] activity questionnaire and hearing

28

testimony and some of his other self-reported activities).

2010)

(ALJ

credible

properly
because

“concluded
he

34

found

that

Cf. Light,

[claimant]

was

contradictions

not

between

1

3.

2

Discrepancies

Between

Allegations

Of

Depression

And

Activities Of Daily Living

3
4

An

ALJ

may

consider

the

claimant’s

daily

activities

in

5

weighing credibility.

6

80 F.3d at 1284). Here, the ALJ determined that despite Plaintiff’s

7

allegations of depression, her mental impairment was nonsevere.

8

(AR 19-20).

9

limitations in her “activities of daily living”:

Tommasetti, 533 F.3d at 1039 (citing Smolen,

The ALJ concluded that Plaintiff had only mild
“There is no

10

evidence that [Plaintiff] is unable to perform personal grooming,

11

manage funds, drive or go out alone, or shop for groceries.”

12

19).

13

limitations in her social functioning:

14

and lives with her husband and teenage son; there is no evidence

15

of any problems getting along with family members, friends, or

16

neighbors; she has not alleged any problems getting along with

17

supervisors or coworkers.”

18

also had only mild limitations in concentration, persistence or

19

pace, as the evidence showed that she is able to “focus attention

20

during evaluations,” presents with a normal affect, and had no

21

impairment in memory.

22

Plaintiff exercises, cleans, cooks, and interacts with her husband

23

and son on a daily basis.

24

Plaintiff’s alleged depression and her daily activities supports

25

the ALJ’s determination that Plaintiff is not entirely credible.

(AR

Similarly, the ALJ concluded that Plaintiff had only mild

(Id.).

(AR 20).

The ALJ noted that Plaintiff

Indeed, the record shows that

(AR 526-31).

26
27
28
35

“[Plaintiff] is married

The discrepancy between

1

C.

The Example Cited By The ALJ To Support Her Contention That

2

Plaintiff

3

Appears Erroneous, But Is Harmless

Did

Not

Follow

Her

Providers’

Recommendations

4
5

The ALJ also found Plaintiff not credible in part because she

6

had allegedly failed to “follow up on recommendations made by her

7

treating doctors,” which “suggests that the symptoms may not have

8

been

9

application. (AR 26). A claimant’s refusal to follow a recommended

10

course of treatment supports a finding that the claimant is not

11

fully credible.

12

order to get benefits, you must follow treatment prescribed by your

13

physician if this treatment can restore your ability to work.”);

14

20 C.F.R. §§ 404.1530(b) and 416.930(b) (“If you do not follow the

15

prescribed treatment without a good reason, we will not find you

16

disabled.”); see also Molina, 674 F.3d at 1113 (a claimant’s

17

statements may be less than credible if the medical records “show

18

that the [claimant] is not following the treatment as prescribed

19

and there are no good reasons for this failure.”) (quoting SSR 96-

20

7p).

as

serious

as

[Plaintiff]

alleged”

in

her

disability

See 20 C.F.R. §§ 404.1530(a) and 416.930(a) (“In

21
22
23

The ALJ based her conclusion that Plaintiff was noncompliant
on a single, specific example:

24
25

The record reveals that the claimant failed to follow-

26

up on recommendations made by her treating doctors, and

27

has been noncompliant with her prescribed treatment and

28

medications . . . . For instance, the claimant has been
36

1

diagnosed with type II diabetes mellitus for which she

2

has been prescribed multiple medications.

3

claimant’s diabetes was reportedly uncontrolled in May

4

2014, she had been off insulin for a while (Exhibit

5

32F/s).

6

endocrinologist, consistently noted her diabetes had

7

been well controlled with medications (Exhibit 34F).

8

The claimant’s credibility is diminished because of

9

these inconsistencies.

Prior

to

that,

Dr.

Geier,

Although the

the

claimant’s

10
11

(AR 26) (some internal record citations omitted).

12
13

The specific records cited by the ALJ as do not support the

14

contention that Plaintiff’s diabetes was uncontrolled in May 2014,

15

and suggest that the reason she was no longer taking insulin was

16

because it was no longer prescribed.

17

if this particular example cited in the ALJ’s credibility finding

18

was factually unsupported, the error was harmless.

(See AR 26).

However, even

19
20

To support the proposition that Plaintiff’s diabetes was

21

uncontrolled in May 2014, the ALJ cited a May 2, 2014 medical

22

record drafted by Physician’s Assistant Kelly Fee.

23

record reflects that the purpose of the visit was to “discuss

24

medication.”

(AR 1076).

Ms. Lee wrote:

25
26
27
28
37

(Id.).

The

1

[Plaintiff] saw Dr. Geier last week and the A1c was in

2

the 6s.19

3

lbs.

4

the medications through us for now.

She has been off of insulin and has lost 30

Dr. Geier is retiring and she would like to get

5
6

(Id.) (footnote added).

7

a blood draw on April 2, 2014. (AR 1088). The lab report indicates

8

that her A1c was 6.5.

9

to ADA guidelines, hemoglobin A1c <7.0% [less than 7.0%] represents

Prior to seeing Dr. Geier, Plaintiff had

(Id.).

The lab report states:

“According

10

optimal

11

Furthermore, Dr. Geier’s handwritten record of the April 25, 2014

12

consult with Plaintiff, to which the ALJ cites, plainly states:

13

“Type II diabetes [with] good control.”20

14

the reference in the May 2, 2014 record to Plaintiff’s A1c being

15

in the 6’s appears to indicate that her diabetes was in good

16

control, not uncontrolled.21

17

\\

18

\\

control

in

non-pregnant

diabetic

patients.”

(AR 1085).

(Id.).

Accordingly,

19
20
21
22
23
24
25
26
27
28

An A1c test “shows how well [a diabetic patient’s] blood sugar
levels have been controlled over a three-month period.”
(See
http://c.merriam-webster.com/medlineplus/A1c).
19

The symbol Dr. Geier used in this record, a “c” with a line over
it,
stands
for
“with.”
(AR
1085;
see
also
http://www.newhealthadvisor.com/C-with-a-Line-over-It.html (“ ‘c’
with a line over it is synonymous to ‘with.’”)).
20

The Court acknowledges that the ICD-9 code used to describe
Plaintiff’s diabetes in the list of “active problems” in the May
2, 2014 medical record was 250.02, which is used for “diabetes type
II, uncontrolled.”
(AR 1076).
However, as explained in this
section, the record evidence shows that Plaintiff’s control of her
diabetes between December 2013 and May 2014 was “good.”
21

38

1

Additionally, the fact that Plaintiff was no longer taking

2

insulin did not necessarily mean that she was not following her

3

providers’ recommendations.

4

2013, indicated that Plaintiff’s diabetes was being treated with

5

oral medications and “insulin therapy,” with good control.

6

1087).

7

diabetes “therapy was adjusted to Actos 30mg, Nesina 25mg, and

8

Glumetza 1000mg.”

9

Plaintiff’s treatment was “adjusted” did not include insulin.

10

Furthermore, Dr. Geier’s notes for the April 25, 2014 consult state

11

“continue oral therapy.”

12

Plaintiff was not taking insulin any longer in May 2014 because it

13

was no longer part of her diabetic therapy.

14

the May 2, 2014 record cited by the ALJ indicates that the purpose

15

of the visit was to discuss Plaintiff’s medications, insulin is

16

not included in the list Plaintiff’s current medications and was

17

not prescribed.

However,

that

same

(Id.).

Dr. Geier’s record for December 14,

record

indicates

that

(AR

Plaintiff’s

The list of medications to which

(AR 1085).

It therefore appears that

Notably, even though

(AR 1077).

18
19

An invalid reason cited in support of an adverse credibility

20

finding does not require remand if the ALJ’s reliance on that

21

reason was harmless error.

22

Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (citing Batson v.

23

Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195–97 (9th Cir. 2004)

24

(applying harmless error standard where one of the ALJ’s several

25

reasons

26

invalid)).

27

\\

28

\\

supporting

an

See Carmickle v. Comm’r, Soc. Sec.

adverse

credibility

As the Ninth Circuit has explained,

39

finding

was

held

1

[R]eviewing the ALJ’s credibility determination where

2

the ALJ provides specific reasons supporting such is a

3

substantive

4

“substantial evidence supporting the ALJ’s conclusions

5

on . . . credibility” and the error “does not negate the

6

validity

7

conclusion,”

8

warrant reversal.

9

[Stout v. Comm’r of Soc. Sec. Admin., 454 F.3d 1050,

10

1055 (9th Cir. 2006)] (defining harmless error as such

11

error

12

nondisability determination”).

analysis.

of

that

the
such

is

So

ALJ's
is

long

as

ultimate

deemed

harmless

there

remains

[credibility]
and

does

not

[Batson, 359 F.3d at 1197]; see also

“inconsequential

to

the

ultimate

13
14

Carmickle, 533 F.3d at 1162.

15

context is not whether the ALJ would have made a different decision

16

absent any error, it is whether the ALJ’s decision remains legally

17

valid, despite such error.”

“[T]he relevant inquiry in this

Id. (internal citation omitted).

18
19

Here, the specific example chosen by the ALJ in support of

20

the contention that Plaintiff was noncompliant appears to have been

21

based on an erroneous reading of the record.

22

not Plaintiff was compliant with her providers’ recommendations is

23

not essential to the ALJ’s ultimate determination that Plaintiff’s

24

claims of debilitating pain were not entirely credible.

25

other reasons, amply supported by evidence in the record, support

26

the ALJ’s conclusion.

27

reading of the May 2, 2014 record was erroneous, the error was

28

harmless.

However, whether or

The ALJ’s

Accordingly, to the extent that the ALJ’s

40

1

In

sum,

the

ALJ

offered

clear

and

convincing

reasons,

2

supported by substantial evidence in the record, for her adverse

3

credibility findings.

4

supports the ALJ’s assessment of Plaintiff’s credibility, no remand

5

is required.

Accordingly, because substantial evidence

6
7

VIII.

8

CONCLUSION

9
10

Consistent with the foregoing, IT IS ORDERED that Judgment be

11

entered AFFIRMING the decision of the Commissioner.

12

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

13

counsel for both parties.

The Clerk of

14
15

DATED:

June 14, 2017

16

/S/
SUZANNE H. SEGAL
UNITED STATES MAGISTRATE JUDGE

17
18
19

THIS DECISION IS NOT INTENDED FOR PUBLICATION IN WESTLAW, LEXIS OR
ANY OTHER LEGAL DATABASE.

20
21
22
23
24
25
26
27
28
41