Curry v. Commissioner of Social Security

Filing 23

ORDER Regarding Plaintiff's Social Security Complaint; Court DENIES Plaintiff's appeal from the administrative decision of the Commissioner of Social Security; Judgment In Favor of Defendant Commissioner of Social Security and Against Plaintiff Gregory Alan Curry, signed by Magistrate Judge Barbara A. McAuliffe on 7/25/16. CASE CLOSED (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GREGORY ALAN CURRY,

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Plaintiff,

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v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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) Case No.: 1:15-cv-00200-BAM
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) ORDER REGARDING PLAINTIFF’S
) SOCIAL SECURITY COMPLAINT
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INTRODUCTION

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Plaintiff Gregory Alan Curry (“Plaintiff”) seeks judicial review of a final decision of the

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Commissioner of Social Security (“Commissioner”) denying his application for disability insurance

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benefits (“DIB”) pursuant to Title II of the Social Security Act. The matter is currently before the

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Court on the parties’ briefs, which were submitted, without oral argument, to Magistrate Judge

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Barbara A. McAuliffe.

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The Court finds the decision of the Administrative Law Judge (“ALJ”) to be supported by

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substantial evidence in the record as a whole and based upon proper legal standards. Accordingly, this

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Court affirms the agency’s determination to deny benefits.

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FACTS AND PRIOR PROCEEDINGS

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On November 21, 2011, Plaintiff filed an application for disability insurance benefits. AR

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118-21.1 Plaintiff alleged that he became disabled on February 17, 2011, due to kidney stones, high

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blood pressure, a bulging disc in the lower back and migraine headaches. AR 142-56. Plaintiff’s

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application was denied initially and on reconsideration. AR 61-64, 67-71. Subsequently, Plaintiff

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requested a hearing before an Administrative Law Judge (“ALJ”). ALJ G. Ross Wheatley held a

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hearing on May 1, 2013, and issued an order denying benefits on June 13, 2013. AR 8-17, 22-54.

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Plaintiff sought review of the ALJ’s decision, which the Appeals Council denied, making the ALJ’s

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decision the Commissioner’s final decision. AR 1-4. This appeal followed.

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Hearing Testimony

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The ALJ held a hearing on May 1, 2013, in Stockton, California. AR 22-54. Plaintiff

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appeared and testified.

He was represented by counsel, Steve Gimlin.

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AR 24-25.

Impartial

Vocational Expert (“VE”) Steven Schmidt also appeared. AR 24.

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In response to questioning by the ALJ, Plaintiff testified that he was 56 years old, 6 feet tall

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and weighed 310 pounds. AR 27-28. Plaintiff graduated from high school, but did not attend college

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or receive occupational training. He can read and write, add and subtract and multiply and divide. AR

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28-29.

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Plaintiff testified that he stopped working in 2011 because of the frequency of his pain. He

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started making mistakes, getting very little sleep and taking a lot of pain pills. He is not currently

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working. AR 29-30. Plaintiff confirmed that he suffers from kidney stones, lower-back pain related

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to disc, migraines and hypertension or high blood pressure.

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medication for his hypertension, and if he is not under any stress or pain, his blood pressure is almost

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perfect. AR 30-31.
Plaintiff reported that he only gets one or two migraines a year since he started taking

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He also confirmed that he takes

medication called Inderal. He also takes Tylenol and codeine to help with his pain. AR 31.

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References to the Administrative Record will be designated as “AR,” followed by the appropriate page number.

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With respect to his weight, Plaintiff reported that his doctors have not ever recommended any

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type of weight-reduction program, but they have recommended exercise. Plaintiff said that he was

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able to do a little bit of exercise, and will “get out there and play ball with the kids.” AR 31. His

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doctors did not tell him to adjust his diet “because for the most part” he is “pretty healthy” other than

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the “kidney stones” and his back. His kidney stones cause his back to flare up. AR 32.

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With respect to his kidney stones, Plaintiff testified that every week he will pass either some

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kind of pepper flakes or sand, which is constant and very painful. Occasionally, he will pass larger

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stones. In the past year, he estimated passing 50 to 60 stones. AR 32-34. He takes allopurinol, which

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his doctor said did not seem to be doing any good. AR 33.

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When asked about the frequency of his medical treatment, Plaintiff testified that he had not

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seen his doctor as much as he should have because of financial reasons. He has no medical coverage.

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However, Pfizer is providing him with medications for free, which has helped. AR 35-36. Plaintiff

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believed that his left kidney was full of stones, but he could not afford an x-ray. AR 38-39.

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Plaintiff reported that Dr. Eagan from Kaiser did not think there was anything else they could

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do for Plaintiff’s kidney stones. AR 37. However, Plaintiff testified that he has had surgery to get

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stones unblocked. He has had a torso lobotomy where they cut stones from his back. He also has had

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stones blasted with ultrasound and a laser. These processes have been successful. AR 37-38.

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When asked about his back, Plaintiff confirmed that when he has problems passing a stone his

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back gets tight. It causes the bulging disc to flare up. He has had an MRI, which showed that he has a

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bulging disc between L4 and 5. He went to physical therapy for six weeks, which helped at the time.

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He also does stretching exercises. Plaintiff explained that the pain is in the middle of the back and

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travels down the back of his left leg to his knee. He has never had surgery for his back. AR 40-42.

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When questioned about his daily activities, Plaintiff testified that on a good day he walks

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around inside of his house. On a bad day, he lies in bed, sits on the couch, rolls on the floor, soaks in

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the hot tub and does whatever he can to get comfortable. He usually goes to the toilet every 20-30

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minutes. AR 42-43.

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Plaintiff testified that he could walk less than a block and could stand for a short period of

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time. He could lift 10, 15, 20 pounds and does not have any issues with respect to the use of his arms
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or hands. AR 44. Plaintiff mostly watches TV while at home, and very rarely goes on the computer.

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He also reads. AR 44-45. Although he has a driver’s license, he had not driven in a couple of years.

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He lives with his wife, son, two daughters and a granddaughter. AR 46. He does not socialize with

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anyone outside of the house. He last attended church about 11 months before the hearing. Prior to

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that, he would go pretty much every Sunday. AR 46-47. Plaintiff is able to bathe and dress himself,

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but he does not cook, shop or help with housework. AR 47-48. Plaintiff stopped smoking cigarettes a

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year prior to the hearing and now uses an electronic cigarette. AR 48.

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Following Plaintiff’s testimony, the ALJ elicited testimony from the vocational expert (“VE”)

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Stephen Schmidt. The VE testified that Plaintiff’s past work was classified as guard. AR 51. In the

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first hypothetical, the ALJ asked the VE to assume a person of Plaintiff’s age, education and work

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experience capable of performing medium work with the following limitations: avoid all hazards, use

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of hazardous machinery and all exposure to unprotected heights. The VE testified that this person

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could perform Plaintiff’s past work. AR 52.

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For the second hypothetical, the ALJ asked the VE to assume a person of Plaintiff’s age,

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education and work experience capable of performing light work with the following limitations:

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frequent ladders, ropes, and scaffolds, ramps, stairs, balancing, stooping, crouching, kneeling, or

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crawling; should avoid all use of hazardous machinery and all exposure to unprotected heights. The

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VE testified that this person could perform Plaintiff’s past work. AR 52-53. If the ALJ added to

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either of the hypotheticals that due to a combination of medical conditions and associated pain, this

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person would have three or more unexcused or unscheduled absences per month, it would preclude all

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work. AR 53.

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For the third hypothetical, the ALJ asked the VE to assume a person of Plaintiff’s age,

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education and work experience capable of performing light work with the following limitations: a

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sit/stand option provided that the person is not off task more than 10% of the period; no ladders, ropes,

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or scaffolds; frequent stairs, balancing, stooping, crouching, kneeling and crawling; and must avoid all

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use of hazardous machinery and exposure to unprotected heights. The VE testified that this person

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could not perform Plaintiff’s past work. The VE indicated that off task 10% precludes competitive

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employment. AR 53.
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Following the ALJ’s questioning, Plaintiff’s counsel elicited testimony from the VE. Counsel

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asked the VE to assume the same restrictions posed in hypothetical three and that the individual should

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avoid extreme heat and cold. The VE testified that this would preclude Plaintiff’s past work. AR 54.

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For the next hypothetical, counsel asked the VE to assume all the same restrictions as posed in

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hypothetical number three and that the person would need to take five unscheduled breaks lasting up

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to 30 minutes each with the option of lying down. The VE testified that this person would not be able

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to perform Plaintiff’s past work or be competitive in the work environment. AR 54-55.

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Medical Record

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The entire medical record was reviewed by the Court. AR 202-363. The relevant medical

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evidence, summarized here, will be referenced below as necessary to this Court’s decision.

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On March 5, 2011, Plaintiff sought treatment from Dr. David Hilburn. Plaintiff complained of

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a kidney stone with lower back pain and urine in his blood for three weeks. On examination,

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Plaintiff’s lumbosacral spine area revealed no local tenderness or mass and no painful or reduced

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lower spine range of motion. Straight leg raise was negative and his motor strength and sensation

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were normal. Plaintiff’s urinalysis showed blood. Dr. Hilburn planned to treat Plaintiff with pain

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medications and time off work. Dr. Hilburn hoped the pain would lessen and Plaintiff would be able

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to return to work within the week. AR 204-05.

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On May 7, 2011, Plaintiff sought follow-up treatment from Dr. Hilburn and an extension of his

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disability due to kidney stones. Plaintiff continued to have back pain due to stones, but had not passed

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one “in a while.” AR 202. Dr. Hilburn noted that Plaintiff had chronic kidney stone problems and

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continued to have back pain. Dr. Hilburn planned to give Plaintiff a disability extension. AR 202-03.

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On November 15, 2011, Plaintiff sought treatment at a urology clinic in Modesto, California.

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Plaintiff reported taking allopurinol and Tylenol, and passing multiple stones since his last urology

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consultation. Plaintiff also reported that he had lost his insurance. With regard to symptoms, Plaintiff

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indicated that he had mild soreness, flank pain and blood when urinating. On physical examination,

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Plaintiff had costovertebral angle tenderness bilaterally. He denied inguinal and groin pain. Plaintiff’s

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symptoms were mild, and he was stable and in no acute stress. Plaintiff was to continue with

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allopurinol for stone prevention and Tylenol for pain. AR 224-25.
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On February 28, 2012, Dr. Hilburn was notified that Plaintiff had been accepted into the Pfizer
program for his Norvasc medication. AR 266.

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On April 12, 2012, Dr. Frank Chen completed a consultative internal medicine examination.

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Dr. Chen noted that Plaintiff had a history of kidney stones, hypertension with blood pressure still not

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under good control and low back pain with possible bulging discs. Plaintiff reported his activities of

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daily living to include watching TV, using a computer, listening to music, reading and taking walks.

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Plaintiff also drove, attended church, did photography and fished. On physical examination, Plaintiff

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walked without difficulty and sat comfortably during the exam. His back was within normal limits as

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were his coordination, station and gait. He also had normal muscle bulk and tone, with motor strength

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of 5/5 in the upper and lower extremities bilaterally. Dr. Chen diagnosed Plaintiff with chronic

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recurrent kidney stones, hypertension, low back pain due to myalgia versus joint disease of the lumbar

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spine and obesity. Dr. Chen opined that Plaintiff could stand and walk for six hours in an eight-hour

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workday and could sit for six hours in an eight-hour workday. He also could lift and carry 50 pounds

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occasionally and 25 pounds frequently. There were no other functional limitations. AR 231-32.

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On July 26, 2012, Plaintiff sought follow-up treatment with Dr. Hilburn for his blood pressure.

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Plaintiff also reported continuing problems with kidney stones and that he was applying for permanent

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disability. On physical examination, Plaintiff was alert and in no acute distress.

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instructed to continue his current medications. Dr. Hilburn indicated that records would be obtained

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from the urologist “who stated there was nothing he could do about [Plaintiff’s] chronic stone

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formation.” AR 249-50.

Plaintiff was

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On March 4, 2013, Dr. Hilburn completed a Medical Opinion Re: Ability to Do Work-Related

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Activities (Physical) form. Dr. Hilburn opined that Plaintiff could lift and carry less than 10 pounds,

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could stand and walk less than 2 hours in an 8-hour day and could sit less than 2 hours in an 8-hour

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day. Dr. Hilburn further opined that Plaintiff needed the opportunity to shift at will from sitting or

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standing/walking and would need to lie down 5-6 times per shift. Plaintiff could sit 10 minutes before

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changing positions, stand 5 minutes before changing positions and must walk every 10 minutes for 5

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minutes each time. With regard to postural activities, Dr. Hilburn opined that Plaintiff occasionally

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could twist, crouch and climb stairs, but could never stoop (bend) or climb ladders. Plaintiff’s
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reaching and pushing/pulling were also affected by his impairment. With regard to environmental

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restrictions, Dr. Hilburn opined that Plaintiff must avoid even moderate exposure to extreme cold,

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extreme heat, high humidity, fumes, odors, dusts, gases, perfumes, soldering fluxes, solvents/cleaners

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and chemicals. Dr. Hilburn anticipated that Plaintiff’s impairments or treatment would cause him to

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be absent from work more than four days per month. AR 273-76.

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On March 28, 2013, Plaintiff sought treatment from Dr. Hilburn, along with completion of his

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social security forms. On examination, Plaintiff was not in any apparent distress. Dr. Hilburn noted

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that Plaintiff had recurrent kidney stone pain, 1-2 times per day 4-5 times per week. Plaintiff took

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pain medications regularly and medications for nausea. Plaintiff reportedly had seen several urologists

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and they stated that there was nothing they could do to prevent his stones. AR 356-57.

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On the same date, Dr. Hilburn completed a second Medical Opinion Re: Ability to do Work-

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Related Activities (Physical) form. Dr. Hilburn opined that Plaintiff could lift and carry 20 pounds

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occasionally, 10 pounds frequently, could stand and walk less than 2 hours in an 8-hour day and could

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sit less than 2 hours in an 8-hour day. Dr. Hilburn further opined that Plaintiff needed the opportunity

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to shift at will from sitting or standing/walking and would need to lie down 3 times per day. Plaintiff

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could sit 30 minutes before changing positions, could stand 30 minutes before changing positions and

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must walk around every 30 minutes for 20 minutes each time. Dr. Hibburn explained that when

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Plaintiff had kidney stones, which was frequent/constant, he could not function. With regard to

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postural activities, Dr. Hilburn opined that Plaintiff occasionally could twist and climb stairs, but

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could never stoop (bend), crouch or climb ladders. Dr. Hilburn explained that this was because of pain

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from stones and having to take medications. Dr. Hilburn also indicated that Plaintiff’s reaching,

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handling and pushing/pulling were affected because of pain.

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restrictions, Dr. Hilburn opined that Plaintiff must avoid even moderate exposure to extreme cold and

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avoid all exposure to extreme heat, high humidity, fumes, odors, dusts, gases, perfumes, soldering

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fluxes, solvents/cleaners and chemicals.

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walking/stability because of pain medications. Plaintiff also needed to keep his feet elevated because

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of swelling and he had no ability to kneel because of persistent knee pain. Dr. Hilburn anticipated that

With regard to environmental

Dr. Hilburn explained that Plaintiff needed a cane for

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Plaintiff’s impairments or treatment would cause him to be absent from work more than four days per

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month. AR 277-80.

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On March 28, 2013, Dr. Hilburn also completed a Lumbar Spine Medical Source Statement

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form. Plaintiff was diagnosed with persistent kidney stones and had a poor prognosis. Dr. Hilburn

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identified Plaintiff’s symptoms as abdominal and back pain, along with persistent fatigue/nausea from

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his medications. Dr. Hilburn indicated that Plaintiff had back pain which radiated to the front lower

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abdomen and occurred constantly.

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drowsiness, irritability and stomach upset. Dr. Hilburn opined that Plaintiff could not walk a city

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block without rest or severe pain. In an eight-hour day, he could sit less than two hours and stand less

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than two hours. Plaintiff needed a job that permitting shifting positions at will. Dr. Hilburn believed

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that Plaintiff would need to take 5 unscheduled breaks per day for 20-30 minutes each. He also

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needed to elevate his legs for 25% of the day. Plaintiff must use a cane or other assistive device

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because of instability with medications. Dr. Hilburn opined that Plaintiff could lift less than 10

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pounds occasionally, but could lift 10, 20 or 50 pounds frequently. He could never twist, stoop (bend),

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crouch/squat, climb ladders or climb stairs. Dr. Hilburn estimated that Plaintiff was likely to be off

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task 25% or more of a typical workday. Dr. Hilburn believed that Plaintiff was incapable of even low

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stress work because of his pain and pills, and he would be absent from work more than four days per

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month. AR 281-85.

Plaintiff also took daily medications that caused dizziness,

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The ALJ’s Decision

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Using the Social Security Administration’s five-step sequential evaluation process, the ALJ

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determined that Plaintiff did not meet the disability standard. AR 8-17. More particularly, the ALJ

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found that Plaintiff had not engaged in any substantial gainful activity since February 17, 2011, his

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alleged onset date. Further, the ALJ identified obesity, urinary tract disorder and kidney stones as

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severe impairments.

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impairments did not meet or exceed any of the listed impairments. AR 14. Based on his review of the

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entire record, the ALJ determined that Plaintiff retained the residual functional capacity (“RFC”) to

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perform less than a full range of light work. Plaintiff could lift and/or carry ten pounds frequently,

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twenty pounds occasionally, could sit, stand and/or walk for six hours out of an eight-hour workday,

AR 13.

Nonetheless, the ALJ determined that the severity of Plaintiff’s

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could frequently climb, balance, stoop, crouch, kneel and crawl, and must avoid all exposure to

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hazardous machinery and unprotected heights. AR 14-17. The ALJ found that Plaintiff could perform

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his past relevant work as a guard. The ALJ therefore concluded that Plaintiff was not disabled under

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the Social Security Act. AR 17.

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SCOPE OF REVIEW

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Congress has provided a limited scope of judicial review of the Commissioner’s decision to

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deny benefits under the Act. In reviewing findings of fact with respect to such determinations, this

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Court must determine whether the decision of the Commissioner is supported by substantial evidence.

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42 U.S.C. § 405(g). Substantial evidence means “more than a mere scintilla,” Richardson v. Perales,

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402 U.S. 389, 402 (1971), but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112,

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1119, n. 10 (9th Cir. 1975). It is “such relevant evidence as a reasonable mind might accept as

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adequate to support a conclusion.” Richardson, 402 U.S. at 401. The record as a whole must be

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considered, weighing both the evidence that supports and the evidence that detracts from the

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Commissioner’s conclusion. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). In weighing the

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evidence and making findings, the Commissioner must apply the proper legal standards.

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Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must uphold the Commissioner’s

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determination that the claimant is not disabled if the Commissioner applied the proper legal standards,

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and if the Commissioner’s findings are supported by substantial evidence. See Sanchez v. Sec’y of

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Health and Human Servs., 812 F.2d 509, 510 (9th Cir. 1987).

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E.g.,

REVIEW

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In order to qualify for benefits, a claimant must establish that he or she is unable to engage in

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substantial gainful activity due to a medically determinable physical or mental impairment which has

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lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. §

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1382c(a)(3)(A). A claimant must show that he or she has a physical or mental impairment of such

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severity that he or she is not only unable to do his or her previous work, but cannot, considering his or

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her age, education, and work experience, engage in any other kind of substantial gainful work which

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exists in the national economy. Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989). The

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burden is on the claimant to establish disability. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir.

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1990).
DISCUSSION2

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Plaintiff argues that the ALJ failed to provide clear and convincing reasons for rejecting his

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The Commissioner counters that substantial evidence supports the ALJ’s credibility

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credibility.

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determination.

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In deciding whether to admit a claimant’s subjective complaints of pain, the ALJ must engage

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in a two-step analysis. Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1196 (9th Cir. 2004).

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First, the claimant must produce objective medical evidence of his impairment that could reasonably

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be expected to produce some degree of the symptom or pain alleged. Id. If the claimant satisfies the

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first step and there is no evidence of malingering, the ALJ may reject the claimant’s testimony

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regarding the severity of his symptoms only if he makes specific findings and provides clear and

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convincing reasons for doing so. Id. The ALJ must “state which testimony is not credible and what

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evidence suggests the complaints are not credible.” Mersman v. Halter, 161 F.Supp.2d 1078, 1086

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(N.D. Cal. 2001) (“The lack of specific, clear, and convincing reasons why Plaintiff’s testimony is not

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credible renders it impossible for [the] Court to determine whether the ALJ’s conclusion is supported

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by substantial evidence.”). Factors an ALJ may consider include: (1) the claimant’s reputation for

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truthfulness, prior inconsistent statements or other inconsistent testimony; (2) unexplained or

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inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and (3)

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the claimant’s daily activities. Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996).

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In this instance, at the first step of the analysis, the ALJ found that Plaintiff’s “medically

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determinable impairments could reasonably be expected to cause the alleged symptoms.” AR 15. At

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the second step, however, the ALJ found that Plaintiff’s statements concerning the intensity,

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persistence and limiting effects of these symptoms were not entirely credible. AR 15.

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The parties are advised that this Court has carefully reviewed and considered all of the briefs, including
arguments, points and authorities, declarations, and/or exhibits. Any omission of a reference to any specific argument or
brief is not to be construed that the Court did not consider the argument or brief.

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The Court finds that the ALJ provided clear and convincing reasons for finding Plaintiff not

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fully credible. AR 15-16. First, the ALJ discounted Plaintiff’s credibility because he “engaged in a

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somewhat normal level of daily activity and interaction.” AR 15. An ALJ may properly consider a

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plaintiff’s daily activities when discounting a plaintiff’s subjective testimony. Valentine v. Comm'r

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Soc. Sec. Admin., 574 F.3d 685, 693 (9th Cir. 2009) (evidence that plaintiff “exercised and undertook

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several projects after he retired” suggested that his “later claims about the severity of his limitations

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were exaggerated”); Branham v. Colvin, No. ED CV 15-00050-DFM, 2015 WL 8664157, at *2 (C.D.

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Cal. Dec. 11, 2015) (ALJ properly considered plaintiff’s activities of daily living in assessing

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credibility; plaintiff was able to use a computer, attend church, shop, ride in a car, cook occasionally

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and take care of her own personal care). Here, the ALJ found that Plaintiff admitted activities of daily

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living that included playing basketball with the kids, watching television, going on the computer and

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doing email, reading and having a driver’s license. AR 15, 31, 44-45. Plaintiff also went to church

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until eleven months prior, he socialized with his family, could shower and dress, and climb stairs in his

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home. AR 15, 46-47, 163. The ALJ also considered Plaintiff’s report to Dr. Chen that he drove,

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listened to music, read, took walks, did some photography and fished. AR 15, 230.

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Plaintiff agrees that an ALJ may consider activities of daily living in evaluating a disability

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claim, but argues that he has both good days and bad days and that the ALJ mischaracterized and

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oversimplified his activities, noting that he only played basketball with his kids a little bit, he stopped

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attending church 11 months prior to the hearing and his socializing with family was limited to the

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people with which he resides. Doc. 14 at pp. 7-8. Despite Plaintiff’s arguments, an ALJ “may

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discredit a claimant's testimony when the claimant reports participation in everyday activities

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indicating capacities that are transferable to a work setting.” Molina v. Astrue, 674 F.3d 1104, 1113

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(9th Cir. 2012). In this case, the ALJ concluded that “the physical and mental capabilities” required to

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perform plaintiff’s daily activities and the social interactions “replicate[d] those necessary for

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obtaining and maintaining employment.”

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difficulty functioning, they may be grounds for discrediting the claimant’s testimony to the extent that

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they contradict claims of a totally debilitating impairment.” Id.; see also Ghanim v. Colvin, 763 F.3d

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1154, 1165 (9th Cir. 2014) (“Engaging in daily activities that are incompatible with the severity of the

AR 15.

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“Even where those activities suggest some

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symptoms alleged can support an adverse credibility determination.”).

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interpretation of the evidence is reasonable and supported by substantial evidence then it is not Court's

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role to second-guess it. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir.2001).

Further, if the ALJ's

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Second, the ALJ discounted Plaintiff’s allegations because he had “not generally received the

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type of medical treatment one would expect for a totally disabled individual.” AR 15. The ALJ

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indicated that Plaintiff’s treatment records revealed that he “received routine, infrequent, conservative

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and non-emergency treatment since the alleged onset date.” AR 15. “[E]vidence of ‘conservative

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treatment’ is sufficient to discount a claimant’s testimony regarding severity of an impairment.” Parra

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v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (citation omitted); Williams v. Colvin, 2014 WL 4437284,

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at *3-4 (C.D. Cal. Sept. 9, 2014) (ALJ properly considered plaintiff’s infrequent and conservative

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treatment as evidence to discredit plaintiff’s testimony). Here, the ALJ cited evidence of the limited

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nature of Plaintiff’s treatment. AR 15-16.

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Plaintiff argues that this finding by the ALJ is error because the ALJ failed to consider

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Plaintiff’s lack of medical insurance and limited finances. Doc. 14 at p. 9. As a general rule, the

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Commissioner cannot deny benefits to someone because he is too poor to obtain medical treatment

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that may help. Gamble v. Chater, 68 F.3d 319, 322 (9th Cir.1995) (citation omitted). In this instance,

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however, it is clear from the record that the ALJ relied primarily on the conservative nature of the

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treatment Plaintiff sought and received. Plaintiff argues that this, too, is error because his urologists

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had stated that there was nothing they could do to prevent his stones from recurring. Doc. 14 at p. 9.

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While Plaintiff correctly references the reported position of his urologists, the ALJ cited Plaintiff’s use

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of medications treat his pain, including Tylenol #4, in the absence of any other measures to alleviate

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his condition. AR 16, 204, 225, 250. There is substantial evidence in the record to support this

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finding. Moreover, at the hearing, Plaintiff testified that he had success with other procedures,

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including surgery, ultrasounds and lasers, but medical records following his alleged onset date did not

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include any of these treatment modalities. AR 37-38.

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Third, and finally, the ALJ found that Plaintiff’s “alleged loss of function was not supported by

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objective medical findings.” AR 15. An ALJ is entitled to consider whether there is a lack of medical

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evidence to corroborate a claimant’s alleged symptoms so long as it is not the only reason for
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discounting a claimant’s credibility. Burch v. Barnhart, 400 F.3d 676, 680–81 (9th Cir. 2005);

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Batson, 359 F.3d at 1196-97 (ALJ properly relied on objective medical evidence and medical opinions

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in determining credibility); see also Parra, 481 F.3d at 750 (ALJ reasonably found complaints of

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disabling knee pain not credible in light of lab tests showing knee function within normal limits).

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Here, the ALJ considered treatment records from March 2011 in which Plaintiff complained of back

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pain, but examination revealed no local tenderness or mass, no painful or reduced lower spine range of

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motion, negative straight leg raising, normal deep tendon reflexes, motor strength and sensation and

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only mild CVA tenderness. AR 15, 204-05. The ALJ also considered treatment records showing mild

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symptoms in November 2011, and a physical examination within normal limits in July 2012. AR 15,

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224-25, 250. Plaintiff has not challenged this reason for discounting his credibility.
CONCLUSION

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Based on the foregoing, the Court finds that the ALJ’s decision is supported by substantial

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evidence in the record as a whole and is based on proper legal standards. Accordingly, this Court

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DENIES Plaintiff’s appeal from the administrative decision of the Commissioner of Social Security.

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The Clerk of this Court is DIRECTED to enter judgment in favor of Defendant Carolyn W. Colvin,

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Acting Commissioner of Social Security, and against Plaintiff Gregory Alan Curry.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

July 25, 2016

A. McAuliffe

_

UNITED STATES MAGISTRATE JUDGE

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