Hull v. Commissioner of Social Security

Filing 20

ORDER Regarding Plaintiff's Social Security Complaint; ORDER DENIED Plaintiff's appeal from the administrative decision of the Commissioner of Social Security; Judgment In Favor of Defendant and Against Plaintiff, signed by Magistrate Judge Barbara A. McAuliffe on 1/11/18. CASE CLOSED (Martin-Gill, S)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 WARREN T. HULL, 12 Plaintiff, 13 14 15 v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. 16 ) Case No.: 1:16-cv-00815-BAM ) ) ORDER REGARDING PLAINTIFF’S ) SOCIAL SECURITY COMPLAINT ) ) ) ) ) ) 17 INTRODUCTION 18 19 Plaintiff Warren T. Hull (“Plaintiff”) seeks judicial review of a final decision of the 20 Commissioner of Social Security (“Commissioner”) denying his application for disability insurance 21 benefits (“DBI”) under Title II of the Social Security Act.1 The matter is currently before the Court on 22 the parties’ briefs, which were submitted, without oral argument, to Magistrate Judge Barbara A. 23 McAuliffe. 24 The Court finds the decision of the Administrative Law Judge (“ALJ”) to be supported by 25 substantial evidence in the record as a whole and based upon proper legal standards. Accordingly, this 26 Court affirms the agency’s determination to deny benefits. 27 1 28 Nancy A. Berryhill is the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill is substituted for Carolyn W. Colvin as the defendant in this suit. 1 FACTS AND PRIOR PROCEEDINGS 1 2 On November 18, 2014, Plaintiff filed an application for disability insurance benefits. AR 3 225-26, 227-28, 232-33.2 Plaintiff alleged that he became disabled due to right knee replacement, left 4 shoulder pain, depression, irritable bowel syndrome, headaches and lower back pain. AR 161, 269. 5 Plaintiff’s application was denied initially and on reconsideration. AR 161-65, 169-74. Subsequently, 6 Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). ALJ Vincent Misenti held 7 a hearing on January 28, 2016, and issued an order denying benefits on February 24, 2016. AR 11-26, 8 31-59. Plaintiff sought review of the ALJ’s decision, which the Appeals Council denied, making the 9 ALJ’s decision the Commissioner’s final decision. AR 1-4, 8-10. This appeal followed. 10 Hearing Testimony 11 The ALJ held a hearing on January 28, 2016, in Fresno, California. AR 31-59. Plaintiff 12 appeared with his attorney, Melissa Proudian. Impartial Vocational Expert (“VE”) Jose Chaparro also 13 appeared. AR 32. 14 In response to questioning by the ALJ, Plaintiff testified that he receives disability from the 15 VA for his knee, lower back, irritable bowel and shoulder. He is right handed, has a driver’s license 16 and drives approximately 3 times per month. He has had a right knee replacement and left shoulder 17 problems. AR 36-38. 18 When asked about his right knee, Plaintiff reported that he has daily swelling, pain below the 19 knee radiating down, and daily stiffness. He had a partial knee replacement in 2011, but did not 20 experience much improvement. About a year after the surgery, he started having constant swelling 21 and stiffness. His doctors discussed further surgery, but Plaintiff would rather not have the military do 22 the surgery for a full knee replacement. Plaintiff also reported that he uses a brace and cane, both of 23 which were prescribed for him. He also takes anti-inflammatories, but he tries not to take his pain 24 medication. He rated his knee pain as a constant 4 on a scale of 1 to 10. To alleviate the pain, he ices 25 and elevates his knee. In the last year, he saw a doctor for his knee approximately five times. AR 38- 26 41. 27 28 2 References to the Administrative Record will be designated as “AR,” followed by the appropriate page number. 2 1 When asked about his left shoulder, Plaintiff testified that he had a dislocation of his shoulder 2 with increasing pain. He recently had bursitis surgery, and was in physical therapy twice a week, but 3 physical therapy hurt more than it helped. He sometimes has pain when reaching for something in 4 front of him and recently had pain when combing his hair. He takes pain medication daily, but it does 5 not help. Plaintiff rated his left shoulder pain as a 7, and stated that he tries not to use his left shoulder 6 to perform regular activities of daily living because it is not dependable. AR 41-43. 7 In response to questions about his abilities, Plaintiff testified that he could sit for fifteen to 8 twenty minutes at a time, could stand about fifteen minutes and could walk about five minutes without 9 pain. He could lift twenty pounds and reach over the head with his right arm, but not his left. When 10 asked about a typical day, Plaintiff indicated that his daughter helps him dress. He does not do any 11 household chores or tasks. He does not cook, clean, vacuum, mop, wash dishes, garden or mow the 12 lawn. He does laundry, but will not fold it, and he will shop for groceries. He sometimes watches TV, 13 and likes to read the newspaper and listen to the radio. He needs assistance with bathing, but can 14 brush his teeth, comb his hair and shave. He sometimes goes to the park with his 6-year-old and 15 attends church once a week. AR 43-48. 16 In response to questions from his attorney, Plaintiff testified that he uses his cane inside and 17 outside, and he can walk up a flight of stairs with some difficulty. He typically will lie down for thirty 18 minutes two to five times a day. He can concentrate on the TV for ten or fifteen minutes before he 19 needs a break for one or two minutes. When asked about his depression, Plaintiff testified that he feels 20 more excluded, needing to be alone and isolating from his family. He feels depressed daily and 21 sometimes his medication makes him drowsy. He takes Trazodone for sleep, but it is not out of his 22 system when he wakes up in the morning. When asked about his knee surgery, Plaintiff testified that 23 they recommended a full knee replacement on his right knee. AR 48-51. 24 Following Plaintiff’s testimony, the ALJ elicited testimony from VE Jose Chaparro. The VE 25 testified that Plaintiff’s past work was material handler. AR 51-52. The ALJ also asked the VE 26 hypothetical questions. For the first hypothetical, the ALJ asked the VE to assume an individual with 27 Plaintiff’s past work capable of performing a light range of work, but could only stand or walk for four 28 hours total, would have to use a hinged knee brace and take typical breaks, occasional left over the 3 1 head reaching, occasional ramps and stairs, occasional ladders and scaffolds, occasional balancing, 2 stooping, kneeling, crouching and crawling, and no damp environments or extreme cold. The VE 3 testified that this hypothetical person could not perform Plaintiff’s past jobs, but could perform other 4 jobs in the national economy, such as cashier II and ticket seller. AR 52-55. 5 For the second hypothetical, the ALJ asked the VE to assume a person with the same 6 limitations, but eroded to sedentary RFC. The VE testified that this hypothetical individual would be 7 able to perform all sedentary, unskilled work, such as bench work, microfilming document preparer 8 and addresser. AR 55-56. 9 For the third hypothetical, the ALJ asked the VE to assume the same individual, but further 10 eroded to sitting and standing for 15 minutes before needing a 10-minute break, walking 5 minutes 11 before needing a 10-minute break, and no over the head reaching on the right. The VE testified that 12 there was no work that this individual could perform. AR 56-57. 13 Following the ALJ’s questioning, Plaintiff’s counsel asked the VE to add to hypothetical one 14 that the individual would need an additional break, unscheduled, for one hour per day. The VE 15 testified that there would not be any work for this individual. Plaintiff’s counsel also asked the VE to 16 assume the same hypothetical person, but who needed two additional ten-minute breaks during the 17 day, along with the unscheduled break. The VE testified that this also would eliminate all work. AR 18 57-58. 19 Medical Record 20 The relevant medical record was reviewed by the Court, and will be referenced below as 21 necessary to this Court’s decision. 22 The ALJ’s Decision 23 Using the Social Security Administration’s five-step sequential evaluation process, the ALJ 24 determined that Plaintiff was not disabled under the Social Security Act. AR 11-26. Specifically, the 25 ALJ found that Plaintiff had not engaged in any substantial gainful activity since December 1, 2011, 26 his alleged onset date. AR 16. Further, the ALJ identified status-post partial right knee replacement 27 and left shoulder pain as severe impairments. AR 16-18. Nonetheless, the ALJ determined that the 28 severity of Plaintiff’s impairments did not meet or equal any of the listed impairments. AR 18. Based 4 1 on his review of the entire record, the ALJ determined that Plaintiff retained the residual functional 2 capacity (“RFC”) to perform light work, including lifting and carrying 20 pounds occasionally and 10 3 pounds frequently, standing and walking for four hours, and sitting for six hours in an 8-hour 4 workday, with the following restrictions: use of a hinge knee brace, normal breaks, occasional 5 overhead reaching with his right arm, occasional balancing, crouching, crawling, kneeling, stooping 6 and climbing ramps and stairs, but could not work in extreme cold or damp environments. AR 18-24. 7 With this RFC, the ALJ found that Plaintiff could not perform any past relevant work, but there were 8 other jobs existing in significant numbers in the national economy that Plaintiff could perform. AR 9 24-25. The ALJ therefore concluded that Plaintiff was not disabled under the Social Security Act. AR 10 11 25-26. SCOPE OF REVIEW 12 Congress has provided a limited scope of judicial review of the Commissioner’s decision to 13 deny benefits under the Act. In reviewing findings of fact with respect to such determinations, this 14 Court must determine whether the decision of the Commissioner is supported by substantial evidence. 15 42 U.S.C. § 405(g). Substantial evidence means “more than a mere scintilla,” Richardson v. Perales, 16 402 U.S. 389, 402 (1971), but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 17 1119, n. 10 (9th Cir. 1975). It is “such relevant evidence as a reasonable mind might accept as 18 adequate to support a conclusion.” Richardson, 402 U.S. at 401. The record as a whole must be 19 considered, weighing both the evidence that supports and the evidence that detracts from the 20 Commissioner’s conclusion. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). In weighing the 21 evidence and making findings, the Commissioner must apply the proper legal standards. 22 Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must uphold the Commissioner’s 23 determination that the claimant is not disabled if the Commissioner applied the proper legal standards, 24 and if the Commissioner’s findings are supported by substantial evidence. See Sanchez v. Sec’y of 25 Health and Human Servs., 812 F.2d 509, 510 (9th Cir. 1987). 26 E.g., REVIEW 27 In order to qualify for benefits, a claimant must establish that he or she is unable to engage in 28 substantial gainful activity due to a medically determinable physical or mental impairment which has 5 1 lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 2 1382c(a)(3)(A). A claimant must show that he or she has a physical or mental impairment of such 3 severity that he or she is not only unable to do his or her previous work, but cannot, considering his or 4 her age, education, and work experience, engage in any other kind of substantial gainful work which 5 exists in the national economy. Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989). The 6 burden is on the claimant to establish disability. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 7 1990). DISCUSSION3 8 9 Plaintiff contends that remand is warranted in this matter because (1) the ALJ’s decision 10 contained errors of fact, (2) the ALJ failed to properly evaluate the opinion of the consultative 11 examiner, and (3) the ALJ erred in rejecting Plaintiff’s testimony regarding the severity of his 12 symptoms. 13 I. The ALJ Did Not Commit Reversible Factual Errors 14 Plaintiff contends that the facts relating to his shoulder impairment were not sufficiently 15 understood by the ALJ, rendering the ALJ’s analysis defective. Plaintiff first asserts that the ALJ’s 16 opinion contained contradictory findings that Plaintiff had the severe impairment of left shoulder pain, 17 but a non-severe impairment of left shoulder bursitis that resulted in a bursectomy. Plaintiff argues 18 that the medical record makes clear that Plaintiff only has a single injury to his shoulder, and the 19 ALJ’s findings are unclear as to whether Plaintiff’s shoulder impairment is considered severe. (Doc. 20 15 at p. 9.) Plaintiff next asserts that the ALJ exhibited apparent confusion as to whether Plaintiff’s 21 right or left shoulder was at issue. In particular, Plaintiff contends that the ALJ’s RFC limited Plaintiff 22 to occasional overhead reaching with his right arm, but the medical record makes clear that Plaintiff 23 has no issue with his right arm; it is his left arm that causes pain. (Id.) 24 Plaintiff’s arguments are unpersuasive. At step two of the sequential evaluation, Plaintiff has 25 the burden to provide evidence of a medically determinable physical or mental impairment that is 26 27 28 3 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. 6 1 severe and that has lasted or can be expected to last for a continuous period of at least twelve months. 2 Ukolov v. Barnhart, 420 F.3d 1002, 1004-06 (9th Cir. 2005). Courts have described step two as “a de 3 minimis screening device [used] to dispose of groundless claims.” Webb v. Barnhart, 433 F.3d 683, 4 687 (9th Cir. 2005); Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (same). 5 Here, Plaintiff alleged that he was disabled due to left shoulder pain. AR 161, 269. In 6 considering this allegation, the ALJ found that Plaintiff had the medically determinable severe 7 impairment of left shoulder pain. AR 16-17. Based on that finding, and irrespective of any non- 8 severe impairment (including left shoulder bursitis), Plaintiff met his burden at step two, and the ALJ 9 properly proceeded to the remaining steps of the sequential evaluation. 10 Additionally, any error in the RFC regarding Plaintiff’s shoulder appears to be typographical. 11 As the Commissioner points out, despite identifying a RFC limitation to the right shoulder, the ALJ 12 evaluated the evidence concerning Plaintiff’s left shoulder throughout his opinion, including treatment 13 for his left shoulder pain. AR 19, 21, 22-24. The ALJ also provided a left-shoulder limitation in his 14 first two hypotheticals to the VE. AR 52-55. In particular, for the first hypothetical, the ALJ asked 15 the VE to assume an individual capable of performing a light range of work with various limitations, 16 including only “occasional left over the-head reaching.” AR 54. Given the limitations in the first 17 hypothetical, the VE testified that this person could perform other jobs in the national economy, such 18 as cashier II and ticket seller. AR 55. For the second hypothetical, the ALJ asked the VE to assume a 19 person with the same limitations as the first hypothetical--which included only occasional left over- 20 the-head reaching--but was limited to sedentary work. AR 55. The VE testified that this hypothetical 21 person could perform all sedentary, unskilled work, such as bench work, microfilming document 22 preparer, and addresser. AR 55-56. 23 Based on the VE’s testimony that a person whose RFC included only occasional left over-the- 24 head reaching would be able to perform the requirements of representative occupations, such as 25 cashier II, ticket seller, bench work, microfilming document preparer and addresser, the ALJ 26 concluded that Plaintiff could perform other work existing in significant numbers in the national 27 economy. AR 25. Because the ALJ relied on the VE’s testimony, it is reasonable to infer that the ALJ 28 intended to identify “left shoulder,” not “right shoulder,” in the RFC of his written opinion. See 7 1 Batson v. Comm’r of Soc. Sec., 359 F.3d 1190, 1193 (9th Cir. 2004) (“the Commissioner’s findings 2 are upheld if supported by inferences reasonably drawn from the record); see also Magallanes v. 3 Bowen, 881 F.2d 747, 755 (9th Cir. 1989) (court may draw specific and legitimate inferences from 4 ALJ's decision). The Court therefore finds that the apparent typographical error in the written opinion 5 is harmless. Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (ALJ’s error harmless where it is 6 “inconsequential to the ultimate nondisability determination”) (citation omitted); Burch v. Barnhart, 7 400 F.3d 676, 679 (9th Cir. 2005) (“A decision of the ALJ will not be reversed for errors that are 8 harmless.”); Jackson v. Colvin, No. 1:14-CV-01573-EPG, 2016 WL 775929, at *9 (E.D. Cal. Feb. 29, 9 2016) (court declined to elevate the technical form of the ALJ’s decision above its substance and 10 deemed the ALJ’s inadvertent omission of a limitation in the express recitation of RFC harmless 11 where the decision included consideration of the omitted limitation). The ALJ Did Not Err in Evaluating the Consultative Examiner’s Opinion 12 II. 13 Plaintiff argues that the ALJ’s decision is “faulty because the ALJ ignored Dr. Van Kirk’s 14 opinion that Plaintiff could not reach overhead at all.” (Doc. 15 at p. 10) (emphasis in original). 15 According to the record, Dr. Dale H. Van Kirk completed a consultative orthopedic evaluation 16 of Plaintiff on April 25, 2015. AR 554-59. Plaintiff’s chief complaints included low back pain with 17 radiation down both legs, left shoulder pain and right knee pain, but he was not taking any medication. 18 AR 554-55. On physical examination, Plaintiff had “slight pain deep in the left shoulder joint” and his 19 range of motion was limited. AR 557. Motor strength was normal in his upper extremities bilaterally, 20 including grip strength. AR 557. Dr. Van Kirk diagnosed Plaintiff with, among other things, status 21 post left shoulder dislocation with residual pain and stiffness. AR 557-58. Dr. Van Kirk opined that 22 Plaintiff could lift and carry 10 pounds frequently, 20 pounds occasionally. 23 manipulative limitations with his right upper extremity. With regard to his left upper extremity, Dr. 24 Van Kirk opined that Plaintiff had no fine manipulative limitations. However, with regard to gross 25 manipulative activities, such as reaching and handling, Dr. Van Kirk opined as follows: 26 27 28 Plaintiff had no [I]f he is required to raise his arm only up to the shoulder level (an example would be lifting a box and placing it onto a table in front of him on a repetitive basis), there are no gross manipulative limitations with regard to the left upper extremity. If he is required to repetitively elevate the left arm just above the shoulder level up to approximately 110 8 1 2 3 4 degrees, he is limited to only occasional gross manipulative activities, limited because of chronic pain in the left shoulder, as well as stiffness. If he is required to repetitively lift the left arm over his head, such as if he needed to paint the ceiling of his room or lift a box and place it onto a high shelf in a closet repetitively, he is limited to no gross manipulative activities, limited because of chronic pain in the left shoulder, as well as restriction of range of motion. 5 AR 558. Dr. Van Kirk also indicated that because Plaintiff’s symptoms were enhanced with cold 6 weather, Plaintiff should not be required to work in an extremely cold or damp environment. AR 559. 7 Plaintiff now argues that the ALJ failed to give specific and legitimate reasons for rejecting the 8 opinion of Dr. Van Kirk that Plaintiff was precluded from all overhead reaching with the left arm. The 9 Court disagrees. 10 Cases in this circuit identify three types of physicians: (1) those who treat the claimant 11 (treating physicians); (2) those who examine but do not treat the claimant (examining physicians); and 12 (3) those who neither examine nor treat the claimant (nonexamining physicians). Lester v. Chater, 81 13 F.3d 821, 830 (9th Cir. 1995). As a general rule, more weight should be given to the opinion of a 14 treating source than to the opinions of doctors who do not treat the claimant. Id. Where a treating 15 physician’s opinion is not contradicted by another doctor, it may be rejected only for “clear and 16 convincing” reasons. Id. 17 Commissioner must provide “specific and legitimate” reasons supported by substantial evidence in the 18 record to reject this opinion. Id. If the treating physician’s opinion is contradicted by another doctor, the 19 As with a treating physician, the Commissioner also must provide “clear and convincing” 20 reasons for rejecting the uncontradicted opinion of an examining physician. Lester, 81 F.3d at 830. If 21 contradicted, the opinion of an examining physician can only be rejected for “specific and legitimate 22 reasons” that are supported by substantial evidence in the record. Id. at 830-31. The opinion of a 23 nonexamining physician alone is not substantial evidence that justifies the rejection of the opinion of 24 either a treating or examining physician. Id. at 831. 25 In this instance, the ALJ assigned “some weight” to Dr. Van Kirk’s opinion, accepting certain 26 limitations, but rejecting other identified limitations regarding Plaintiff’s ability to stand or walk. AR 27 22-23. An ALJ need not accept everything a physician sets forth, and may accept all, some or none of 28 9 1 the physician’s opinion. Magallanes v. Bowen, 881 F.2d 747, 753-55 (9th Cir. 1989). Although 2 Plaintiff argues that the ALJ rejected Dr. Van Kirk’s opinion that Plaintiff could not perform any 3 overhead reaching with the left arm, this is not correct. A careful reading of Dr. Van Kirk’s opinion 4 indicates that he precluded Plaintiff from repetitive overhead reaching with his left upper extremity, 5 not occasional overhead reaching on the left. AR 588 (“If he is required to repetitively lift the left arm 6 over his head, such as if he needed to paint the ceiling of his room or lift a box and place it onto a high 7 shelf in a closet repetitively, he is limited to no gross manipulative activities, limited because of 8 chronic pain in the left shoulder, as well as restriction of range of motion.”) (emphasis added). As Dr. 9 Van Kirk did not preclude Plaintiff from all overhead reaching with the left arm, the ALJ was not 10 required to provide any reason for rejecting such a limitation, much less a specific and legitimate 11 reason. 12 In his reply, Plaintiff contends that the ALJ himself characterized Dr. Van Kirk’s opinion as 13 limited to no overhead reaching with the left arm. Plaintiff therefore argues that there is an “existing 14 disparity in the medical evidence – Dr. Van Kirk’s opinion that Plaintiff ‘never perform overhead 15 reaching with his left arm’ and the State Agency consultants’ opinion that Plaintiff could perform 16 ‘occasional overhead activities with his left arm,’” and it “was incumbent upon the ALJ to resolve the 17 conflict.” (Doc. 19 at p. 4.) Contrary to Plaintiff’s argument, there is no disparity in the medical 18 evidence. The ALJ’s apparent misstatement regarding Dr. Van Kirk’s opinion does not alter the 19 underlying substance of Dr. Van Kirk’s opinion nor does it create any disparity in the medical 20 evidence itself. As discussed above, Dr. Van Kirk did not opine that Plaintiff could never perform 21 overhead activities with his left arm. 22 Further, the determination that Plaintiff was limited to occasional overhead reaching with his 23 left arm is supported by substantial evidence in the record, including not only Dr. Van Kirk’s opinion, 24 but also the opinions of the state agency examiners. For instance, in evaluating Plaintiff’s reaching 25 limitation, the ALJ assigned “substantial weight” to the opinions of the state agency medical 26 consultants, Dr. I. Ocrant and Dr. K. Mohan, both of whom determined that Plaintiff was limited to 27 only occasional overhead activities with his left arm. AR 23, 142-43, 155-56. 28 /// 10 Plaintiff’s Subjective Testimony 1 III. 2 Plaintiff argues that the ALJ failed to provide specific, clear and convincing reasons for 3 discounting Plaintiff’s subjective testimony that he could not reach overhead with his left arm at all 4 and could only lift his arm to shoulder level with pain. (ECF No. 15 at pp. 12.) 5 In deciding whether to admit a claimant’s subjective complaints of pain, the ALJ must engage 6 in a two-step analysis. Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014); Batson, 359 F.3d at 7 1196. First, the claimant must produce objective medical evidence of his impairment that could 8 reasonably be expected to produce some degree of the symptom or pain alleged. Garrison, 759 F.3d at 9 1014. If the claimant satisfies the first step and there is no evidence of malingering, the ALJ may 10 reject the claimant’s testimony regarding the severity of his symptoms only by offering specific, clear 11 and convincing reasons for doing so. Id. at 1015.4 12 Here, the ALJ found that Plaintiff satisfied the first step of the analysis and made no finding of 13 malingering. At the second step of the analysis, however, the ALJ determined that “the claimant’s 14 statements concerning the intensity, persistence and limiting effects of [his] symptoms were not 15 entirely credible . . . .” AR 20. Therefore, the ALJ’s reasons for discounting the alleged severity of 16 Plaintiff’s symptoms must be specific, clear and convincing. Brown-Hunter v. Colvin, 806 F.3d 487, 17 492-93 (9th Cir. 2015). 18 The Court finds that the ALJ provided specific, clear and convincing reasons for discounting 19 Plaintiff’s testimony regarding his left arm limitations. Recognizing that Plaintiff’s allegations of 20 disability due to pain were primarily based on subjective symptoms, the ALJ found Plaintiff’s 21 credibility to be a material factor. To that end, the ALJ determined that Plaintiff’s course of medical 22 treatment did not bolster his credibility, nor did his medication use. AR 22. With respect to his left 23 arm limitations, the ALJ noted that Plaintiff told Dr. Van Kirk that he was not taking any medications 24 despite allegations of disabling pain. AR 21, 555. In evaluating a claimant’s testimony, an ALJ may 25 26 27 28 4 At the time of the ALJ’s decision, Social Security Ruling (“SSR”) 96-7p, 1996 WL 374186, was in effect and explained the factors to be considered in assessing credibility. SSR 96-7p was superseded on March 28, 2016, by SSR 163p, 2017 WL 4790249. However, an adjudicator will apply SSR 16-3p only when making decisions on or after March 28, 2016, and federal courts will review that decision using the rules that were in effect at the time the decision issued. Id. at 49468, n. 27. The decision in this case was rendered prior to March 28, 2016, before SSR 16-3p became effective. 11 1 properly consider “unexplained or inadequately explained failure . . . to follow a prescribed course of 2 treatment.” See Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012), citing Tommasetti v. Astrue, 3 533 F.3d 1035, 1039 (9th Cir. 2008). The ALJ also considered that Plaintiff’s left shoulder pain had 4 been controlled when taking medications. AR 21, 610. An ALJ may consider the effectiveness of 5 Plaintiff’s medications in assessing Plaintiff's credibility. See Celaya v. Halter, 332 F.3d 1177, 1181 6 (9th Cir. 2003). 7 The ALJ next found that “the claimant’s allegations that he was unable to sustain the physical 8 demands of competitive employment were less than fully credible because the objective clinical 9 findings did not support the limitations alleged” and there were “few objective findings in support of 10 the claimant’s allegations.” AR 20. Although lack of medical evidence cannot form the sole basis for 11 discounting a claimant’s testimony, it is a factor that the ALJ can consider. Burch, 400 F.3d at 681. 12 With respect to Plaintiff’s allegations concerning his left arm limitations, the ALJ considered record 13 evidence from Dr. Van Kirk’s evaluation that he had slight pain deep in the left shoulder joint and 14 limited range of motion, but normal motor and grip strength. AR 21, 557. Additionally, the ALJ 15 noted that Plaintiff’s left shoulder x-ray revealed no bony abnormalities. AR 21, 609. Also, the ALJ 16 correctly pointed out that Dr. Serio Ilic, Plaintiff’s surgeon, agreed there was a lack of objective 17 findings regarding Plaintiff’s left shoulder pain, noting Plaintiff “had a chronic left shoulder pain for a 18 long time with not many objective findings, the MRI was fairly negative.” AR 21, 714. The ALJ 19 further acknowledged that Plaintiff had undergone shoulder surgery, with no evidence of any tears. 20 AR 21, 715. 21 Additionally, the ALJ considered record evidence that Plaintiff went on a vacation after his 22 alleged onset date. While the ALJ recognized that a vacation and a disability “are not necessarily 23 mutually exclusive,” the ALJ also found that Plaintiff’s decision to go on vacation “suggest[ed] that 24 the alleged symptoms and limitations may have been overstated.” AR 22. An ALJ may permissibly 25 consider a claimant’s ability to travel in making an adverse credibility determination. Tommasetti, 533 26 F.3d 1035, 1040 (9th Cir. 2008). Further, an ALJ may consider inconsistencies between Plaintiff's 27 statements regarding his subjective symptoms and his conduct in evaluating credibility. Molina, 674 28 F.3d at 1112 (ALJ may use ordinary techniques of credibility evaluation and consider inconsistencies 12 1 between testimony and the claimant’s conduct); Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2 2002) (ALJ may consider inconsistencies either in claimant’s testimony or between his testimony and 3 his conduct). Thus, the ALJ properly considered Plaintiff’s decision to take a vacation when assessing 4 credibility. 5 6 Accordingly, the Court finds that the ALJ did not err in his assessment of Plaintiff’s subjective complaints. CONCLUSION 7 8 Based on the foregoing, the Court finds that the ALJ’s decision is supported by substantial 9 evidence in the record as a whole and is based on proper legal standards. Accordingly, this Court 10 DENIES Plaintiff’s appeal from the administrative decision of the Commissioner of Social Security. 11 The Clerk of this Court is DIRECTED to enter judgment in favor of Defendant Nancy A. Berryhill, 12 Acting Commissioner of Social Security, and against Plaintiff Warren Hull. 13 14 15 16 IT IS SO ORDERED. Dated: /s/ Barbara January 11, 2018 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 13

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