Wells v. Commissioner of Social Security

Filing 18

ORDER on Plaintiff's Social Security Complaint 1 , signed by Magistrate Judge Sheila K. Oberto on 8/22/17: The Court DIRECTS the Clerk to enter judgment in favor of Defendant. (CASE CLOSED)(Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARK RICHARD WELLS,

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Plaintiff,

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v.

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Case No. 1:17-cv-00078-SKO
ORDER ON PLAINTIFF’S SOCIAL
SECURITY COMPLAINT
(Doc. 1)

COMMISSIONER OF SOCIAL SECURITY,

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Defendant.
_____________________________________/

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On December 11, 2015, Plaintiff Mark Richard Wells (“Plaintiff”) filed a complaint under

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42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of a final decision of the
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Commissioner of Social Security (the “Commissioner” or “Defendant”) denying his applications

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for disability insurance benefits and supplemental security income. (Doc. 1.) Plaintiff filed his
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Motion for Summary Judgment (“Plaintiff’s Motion”) on July 27, 2016, (Doc. 13), and Defendant
filed their Cross-Motion for Summary Judgment (“Defendant’s Motion”) on October 28, 2016,
(Doc. 16). The matter is currently before the Court on the parties’ briefs, which were submitted
without oral argument.1

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For the reasons provided herein, the Court DENIES Plaintiff’s Motion, (Doc. 13),
GRANTS Defendant’s Motion, (Doc. 16), and AFFIRMS the final decision of the Commissioner.

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The parties consented to the jurisdiction of a U.S. Magistrate Judge. (Docs. 8 & 9.)

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I.

BACKGROUND

The following includes the pertinent medical and procedural background for this matter.

3 Plaintiff was born on March 2, 1969, and is currently 48 years old. (Administrative Record
4 (“AR”) 215.)
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On November 26, 2013, Plaintiff filed initial claims for disability insurance benefits and

6 supplemental security income. (See AR 215–28.) In his claims, Plaintiff alleges that he became
7 disabled on October 28, 2013. (See AR 215 & 219.) Plaintiff stated that the following conditions
8 limit his ability to work: (1) chronic leg and feet swelling, pain, and numbness, (2) shortness of
9 breath, chest pain, and dizziness, (3) high blood pressure, (4) diabetes, (5) hypertension, (6) fluid
10 that weeps out of legs when the legs are swollen, (7) high cholesterol, and (8) obstructive sleep
11 apnea. (AR 241.)
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In a summary of past earnings, Plaintiff reported receiving between $10,900 and $33,700

13 in earnings per year between 1997 and 2004. (See AR 231.) However, Plaintiff reported that his
14 earnings dropped precipitously after 2004. (See AR 231 (providing that Plaintiff earned $0 in
15 2005, $1,224.00 in 2006, $0 in 2007, $0 in 2008, $3,652.04 in 2009, $5,849.21 in 2010, $3,079.15
16 in 2011, $276.00 in 2012, and $1,543 in 2013).)
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The Social Security Administration denied Plaintiff’s claims initially on May 9, 2014, (see

18 AR 126–35), and again on reconsideration on July 25, 2014, (see AR 141–52). Plaintiff then
19 requested a hearing before an administrative law judge (“ALJ”) on August 26, 2014. (AR 153–
20 55.) On April 8, 2014, the ALJ held a hearing regarding Plaintiff’s claims (the “Hearing”). (See
21 AR 28–71.)
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In a decision dated June 1, 2015, the ALJ found that Plaintiff was not disabled. (See AR

23 11–27.) In the decision, the ALJ conducted the five-step sequential evaluation analysis set forth in
24 20 C.F.R. § 416.920. (See AR 11–22.) At step one, the ALJ found that Plaintiff “has not engaged
25 in substantial gainful activity since . . . the alleged onset date.” (AR 13.) At step two, the ALJ
26 found that Plaintiff “has the following severe impairments: diabetes mellitus, essential
27 hypertension, obesity, edema in the lower extremity, chronic venous insufficiency, osteoarthritis in
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1 the knees bilaterally, and depressive disorder not otherwise specified with anxious features.” (AR
2 14.)
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At step three, the ALJ determined that Plaintiff “does not have an impairment or

4 combination of impairments that meets or medically equals the severity of one of the listed
5 impairments in 20 [C.F.R.] Part 404, Subpart P, Appendix 1.” (AR 14.) The ALJ noted the
6 following regarding Plaintiff’s activities of daily living during the ALJ’s step-three analysis:
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In activities of daily living, [Plaintiff] has mild restriction. [Plaintiff] reported
activities of daily [sic] such as needing no help with bathing, dressing, and
grooming, and having adequate motivation for them. He also reported that he could
travel alone, manage money, prepare food for himself, and take his children to and
from school. He spends the day mostly at home, sleeping, watching television, and
doing a little yard work . . . .

11 (AR 14.)
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The ALJ next found that Plaintiff has the residual functional capacity (“RFC”) “to perform

13 light work,” with certain restrictions. (AR 15.) During the course of the RFC analysis, the ALJ
14 noted the following regarding Plaintiff’s allegations of pain and limitations:
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[Plaintiff] alleged he was unable to work due to physical and mental conditions,
including chronic leg and feet swelling, pain, and numbness, as well as shortness of
breath, chest pain, dizziness, diabetes, hypertension, high cholesterol, obstructive
sleep apnea, depression, and fluid that weeps out of the legs when swollen . . . .
[Plaintiff] completed an [e]xertional [q]uestionnaire dated February 5, 2014 . . . ,
and reported that he has a hard time picking up his 6 year old child, his back
muscles will pull, and his legs and feet will swell up. He also stated that he was
able to drive 2-3 hours, tries to rake leaves and water plants for about 2-3 hours, and
sometimes uses a cane when his feet swell.
(AR 16.) The ALJ then found “that [Plaintiff’s] medically determinable impairments could
reasonably be expected to cause the alleged symptoms,” but Plaintiff’s “statements concerning the
intensity, persistence and limiting effects of these symptoms are not entirely credible.” (AR 16.)
The ALJ also engaged in an extensive discussion regarding the evidence of Plaintiff’s physical and
mental impairments. (See AR 16–19.) Additionally, the ALJ stated the following in the RFC
analysis regarding Plaintiff’s credibility:

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As for [Plaintiff’s] credibility, [the ALJ] find[s] the allegations not fully credible.
He described daily activities that are not limited to the extent one would expect,
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given the complaints of disabling symptoms and limitations. [Plaintiff] reported
activities of daily [sic] such as needing no help with bathing, dressing, and
grooming, and having adequate motivation for them. He also reported that he could
travel alone, manage money, prepare food for himself, and take his children to and
from school. He spends the day mostly at home, sleeping, watching television, and
doing a little yard work . . . .

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[Plaintiff’s] credibility is further undermined by the diagnostic and other objective
medical evidence, which failed to show a physiological basis for the extreme pain
and limitation alleged. There was no history of hospitalizations, surgeries,
complicated medication regimen, therapy, or any other extraordinary treatment
commiserate with the alleged intensity, duration, frequency and purportedly
limiting effects of his symptoms during the relevant period. Furthermore, there
were no psychiatric hospitalizations, no history of suicide attempts, no history of
outpatient treatment, no history of psychotherapy, and no history of psychosis or
manic episodes.
[The ALJ] also considered [Plaintiff’s] work history in assessing his credibility . . . .
The evidence of record raises a question as to whether [Plaintiff’s] unemployment
since the alleged onset of disability was actually due to his medical condition. A
review of [Plaintiff’s] work history shows that [Plaintiff] worked 7 years at
substantial gainful activity levels within the past relevant 15 years, but had no years
at substantial gainful activity levels in the last 8 years. Moreover, [Plaintiff]
reported that part of the reason he stopped working was because his business went
bankrupt.

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The medical evidence of record does not support the extent of [Plaintiff’s]
subjective complaints and his credibility is weakened because of inconsistent and
unsupported statements.

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At step four, the ALJ found that Plaintiff “is unable to perform any past relevant work.”

21 (AR 20.) Finally, at step five, the ALJ determined that “there are jobs that exist in significant
22 numbers in the national economy that [Plaintiff] can perform.” (AR 21.) Ultimately, the ALJ
23 found that Plaintiff “is not disabled under sections 216(i) and 223(d) of the Social Security Act.”
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Plaintiff sought review of the ALJ’s decision before the Appeals Council. (AR 7.) On

26 October 21, 2015, the Appeals Council denied Plaintiff’s request for review of the ALJ’s decision.
27 (AR 1–6.)
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Plaintiff then filed the Complaint in this Court on December 11, 2015. (Doc. 1.) Plaintiff

2 filed Plaintiff’s Motion on July 27, 2016, (Doc. 13), and Defendant filed Defendant’s Motion on
3 October 28, 2016, (Doc. 16). To date, Plaintiff has not filed a reply in support of Plaintiff’s
4 Motion. As such, the briefing in this case is complete and this matter is ready for disposition.
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II.

LEGAL STANDARD

6 A.

Applicable Law

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An individual is considered “disabled” for purposes of disability benefits if he or she is

8 unable “to engage in any substantial gainful activity by reason of any medically determinable
9 physical or mental impairment which can be expected to result in death or which has lasted or can
10 be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A).
11 However, “[a]n individual shall be determined to be under a disability only if his physical or
12 mental impairment or impairments are of such severity that he is not only unable to do his
13 previous work but cannot, considering his age, education, and work experience, engage in any
14 other kind of substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A).
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“In determining whether an individual's physical or mental impairment or impairments are

16 of a sufficient medical severity that such impairment or impairments could be the basis of
17 eligibility [for disability benefits], the Commissioner” is required to “consider the combined effect
18 of all of the individual's impairments without regard to whether any such impairment, if
19 considered separately, would be of such severity.” Id. § 423(d)(2)(B). For purposes of this
20 determination, “a ‘physical or mental impairment’ is an impairment that results from anatomical,
21 physiological, or psychological abnormalities which are demonstrable by medically acceptable
22 clinical and laboratory diagnostic techniques.” Id. § 423(d)(3).
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“The Social Security Regulations set out a five-step sequential process for determining

24 whether a claimant is disabled within the meaning of the Social Security Act.” Tackett v. Apfel,
25 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 20 C.F.R. § 404.1520). The Ninth Circuit provided
26 the following description of the sequential evaluation analysis:
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In step one, the ALJ determines whether a claimant is currently engaged in
substantial gainful activity. If so, the claimant is not disabled. If not, the ALJ
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proceeds to step two and evaluates whether the claimant has a medically severe
impairment or combination of impairments. If not, the claimant is not disabled. If
so, the ALJ proceeds to step three and considers whether the impairment or
combination of impairments meets or equals a listed impairment under 20 C.F.R. pt.
404, subpt. P, [a]pp. 1. If so, the claimant is automatically presumed disabled. If
not, the ALJ proceeds to step four and assesses whether the claimant is capable of
performing her past relevant work. If so, the claimant is not disabled. If not, the
ALJ proceeds to step five and examines whether the claimant has the [RFC] . . . to
perform any other substantial gainful activity in the national economy. If so, the
claimant is not disabled. If not, the claimant is disabled.

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Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005); see, e.g., 20 C.F.R. § 404.1520(a)(4)

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(providing the “five-step sequential evaluation process”); id. § 416.920(a)(4) (same).

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claimant is found to be ‘disabled’ or ‘not disabled’ at any step in the sequence, there is no need to

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consider subsequent steps.” Tackett, 180 F.3d at 1098 (citing 20 C.F.R. § 404.1520).

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“The claimant carries the initial burden of proving a disability in steps one through four of

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the analysis.” Burch, 400 F.3d at 679 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir.

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1989)). “However, if a claimant establishes an inability to continue her past work, the burden

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shifts to the Commissioner in step five to show that the claimant can perform other substantial
gainful work.” Id. (citing Swenson, 876 F.2d at 687).
B.

Scope of Review

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“This court may set aside the Commissioner’s denial of disability insurance benefits [only]

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when the ALJ’s findings are based on legal error or are not supported by substantial evidence in

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the record as a whole.” Tackett, 180 F.3d at 1097 (citation omitted). “Substantial evidence is

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defined as being more than a mere scintilla, but less than a preponderance.” Edlund v. Massanari,

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253 F.3d 1152, 1156 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1098). “Put another way,

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substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Id. (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)).

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“This is a highly deferential standard of review . . . .” Valentine v. Comm’r of Soc. Sec.

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Admin., 574 F.3d 685, 690 (9th Cir. 2009). “The ALJ’s findings will be upheld if supported by

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inferences reasonably drawn from the record.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th

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Cir. 2008) (citation omitted). Additionally, “[t]he court will uphold the ALJ’s conclusion when

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1 the evidence is susceptible to more than one rational interpretation.” Id.; see, e.g., Edlund, 253
2 F.3d at 1156 (“If the evidence is susceptible to more than one rational interpretation, the court may
3 not substitute its judgment for that of the Commissioner.” (citations omitted)).
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Nonetheless, “the Commissioner’s decision ‘cannot be affirmed simply by isolating a

5 specific quantum of supporting evidence.’” Tackett, 180 F.3d at 1098 (quoting Sousa v. Callahan,
6 143 F.3d 1240, 1243 (9th Cir. 1998)). “Rather, a court must ‘consider the record as a whole,
7 weighing both evidence that supports and evidence that detracts from the [Commissioner’s]
8 conclusion.’” Id. (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)).
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Finally, courts “may not reverse an ALJ’s decision on account of an error that is harmless.”

10 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citing Stout v. Comm’r, Soc. Sec. Admin.,
11 454 F.3d 1050, 1055–56 (9th Cir. 2006)). Harmless error “exists when it is clear from the record
12 that ‘the ALJ’s error was inconsequential to the ultimate nondisability determination.’”
13 Tommasetti, 533 F.3d at 1038 (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir.
14 2006)). “[T]he burden of showing that an error is harmful normally falls upon the party attacking
15 the agency’s determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (citations omitted).
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III.

DISCUSSION

Plaintiff argues that the ALJ erred by finding that Plaintiff’s allegations regarding his

18 limitations were not credible. (See Doc. 13 at 7–15.) As discussed below, the Court finds that
19 substantial evidence supports the ALJ’s credibility determination and affirms the ALJ’s decision.
20 A.

Overview of Analysis

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The ALJ determines a claimant’s RFC before step four of the sequential evaluation

22 analysis. See, e.g., 20 C.F.R. §§ 404.1520(e) & 416.920(e). A claimant’s RFC “is the most [the
23 claimant] can still do despite [their] limitations.” Id. §§ 404.1545(a)(1) & 416.945(a)(1). “In
24 determining a claimant’s RFC, an ALJ must consider all relevant evidence in the record . . . .”
25 Robbins, 466 F.3d at 883. “The ALJ is entitled to formulate an RFC and resolve any ambiguity or
26 inconsistency in the medical evidence . . . .” Jenkins v. Colvin, Case No. 1:15-cv-01135-SKO,
27 2016 WL 4126707, at *6 (E.D. Cal. Aug. 2, 2016) (citing Lewis v. Apfel, 236 F.3d 503, 509 (9th
28 Cir. 2001)). Additionally, “[t]he ALJ can . . . decide what weight to give to what evidence as long
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1 as the ALJ’s reasoning is free of legal error and is based on substantial evidence.” Tremayne v.
2 Astrue, No. CIV 08–2795 EFB, 2010 WL 1266850, at *12 (E.D. Cal. Mar. 29, 2010) (citing
3 Reddick v. Chater, 157 F.3d 715 (9th Cir. 1998)).
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“To determine whether a claimant’s testimony regarding subjective pain or symptoms is

5 credible, an ALJ must engage in a two-step analysis.” Lingenfelter v. Astrue, 504 F.3d 1028,
6 1035–36 (9th Cir. 2007). “First, the ALJ must determine whether the claimant has presented
7 objective medical evidence of an underlying impairment ‘which could reasonably be expected to
8 produce the pain or other symptoms alleged.’” Id. at 1036 (quoting Bunnell v. Sullivan, 947 F.2d
9 341, 344 (9th Cir. 1991)). “The claimant, however, ‘need not show that her impairment could
10 reasonably be expected to cause the severity of the symptom she has alleged; she need only show
11 that it could reasonably have caused some degree of the symptom.’” Id. (quoting Smolen v.
12 Chater, 80 F.3d 1273, 1282 (9th Cir. 1996)). “Thus, the ALJ may not reject subjective symptom
13 testimony . . . simply because there is no showing that the impairment can reasonably produce the
14 degree of symptom alleged.” Id. (alterations in original) (quoting Smolen, 80 F.3d at 1282); cf.
15 Reddick, 157 F.3d at 722 (“Once the claimant produces medical evidence of an underlying
16 impairment, the Commissioner may not discredit the claimant’s testimony as to the severity of
17 symptoms merely because they are unsupported by objective medical evidence.” (citing Bunnell,
18 947 F.2d at 343)).

Additionally, a claimant is not required to “produce ‘objective medical

19 evidence of the pain or fatigue itself, or the severity thereof.’” Garrison v. Colvin, 759 F.3d 995,
20 1014 (9th Cir. 2014) (quoting Smolen, 80 F.3d at 1282).
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In this case, the ALJ found “that [Plaintiff’s] medically determinable impairments could

22 reasonably be expected to cause the alleged symptoms.” (AR 16.) As such, the first step in this
23 credibility analysis is satisfied.
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As to the second step, the ALJ did not reference any evidence of malingering. (See AR

25 16–20.) Thus, “the ALJ can reject the claimant’s testimony about the severity of her symptoms
26 only by offering specific, clear and convincing reasons for doing so.” Lingenfelter, 504 F.3d at
27 1036 (quoting Smolen, 80 F.3d at 1281); see, e.g., Robbins, 466 F.3d at 883 (“[U]nless an ALJ
28 makes a finding of malingering based on affirmative evidence thereof, he or she may only find an
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1 applicant not credible by making specific findings as to credibility and stating clear and
2 convincing reasons for each.” (citation omitted)). “A finding that a claimant’s testimony is not
3 credible ‘must be sufficiently specific to allow a reviewing court to conclude the adjudicator
4 rejected the claimant’s testimony on permissible grounds and did not arbitrarily discredit a
5 claimant’s testimony regarding pain.’” Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir.
6 2015) (quoting Bunnell, 947 F.2d at 345–46).
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The clear and convincing standard is “not an easy requirement to meet” and it “is the most

8 demanding [standard] required in Social Security cases.” Garrison, 759 F.3d at 1015 (citation
9 omitted). “General findings are insufficient” to satisfy this standard. Burrell v. Colvin, 775 F.3d
10 1133, 1138 (9th Cir. 2014) (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)).
11 “[R]ather, the ALJ must identify what testimony is not credible and what evidence undermines the
12 claimant’s complaints.” Id. (quoting Lester, 81 F.3d at 834); see, e.g., Vasquez v. Astrue, 572 F.3d
13 586, 592 (9th Cir. 2008) (“To support a lack of credibility finding, the ALJ [is] required to ‘point
14 to specific facts in the record which demonstrate that [the claimant] is in less pain than she
15 claims.’” (quoting Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993))); cf. Burrell, 775 F.3d at
16 1138 (stating that the Ninth Circuit’s “decisions make clear that [courts] may not take a general
17 finding . . . and comb the administrative record to find specific” support for the finding).
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The ALJ in the present matter found that Plaintiff’s “allegations” were “not fully credible.”

19 (AR 19.) The ALJ provided the following four reasons for this finding: (1) Plaintiff “described
20 daily activities that are not limited to the extent one would expect, given the complaints of
21 disabling symptoms and limitations,” (2) Plaintiff’s work record, (3) Plaintiff’s conservative
22 treatment history, and (4) “the diagnostic and other objective medical evidence . . . failed to show
23 a physiological basis for the extreme pain and limitation alleged.” (AR 19–20.) The Court shall
24 address each reason, in turn.
25 B.

Daily Activities

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Plaintiff first argues that the ALJ’s rationale relating to Plaintiff’s activities of daily living

27 is not a valid clear and convincing reason for the ALJ’s adverse credibility finding. (See Doc. 13
28 at 9–11.) The Court agrees with Plaintiff’s position.
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“One does not need to be ‘utterly incapacitated’ in order to be disabled,” Vertigan v.

2 Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir.
3 1989)), and “disability claimants should not be penalized for attempting to lead normal lives in the
4 face of their limitations,” Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). The Ninth Circuit
5 has “repeatedly warned that ALJs must be especially cautious in concluding that daily activities
6 are inconsistent with testimony about pain, because impairments that would unquestionably
7 preclude work and all the pressures of a workplace environment will often be consistent with
8 doing more than merely resting in bed all day.” Garrison v. Colvin, 759 F.3d 995, 1016 (9th Cir.
9 2014) (citations omitted). “Only if the level of activity were inconsistent with [the claimant’s]
10 claimed limitations would these activities have any bearing on [the claimant’s] credibility.”
11 Reddick, 157 F.3d at 722.
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Here, the ALJ stated that Plaintiff’s “described daily activities . . . are not limited to the

13 extent one would expect” because Plaintiff reported (1) “needing no help with bathing, dressing,
14 and grooming,” (2) “that he could travel alone, manage money, prepare food for himself, and take
15 his children to and from school,” and (3) that he “spends the day mostly at home, sleeping,
16 watching television, and doing a little yard work.” (AR 19.) This rationale is deficient for two
17 reasons.
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First, the Ninth Circuit has noted that similar minimal daily activities have no bearing on a

19 claimant’s credibility. See, e.g., Vertigan, 260 F.3d at 1050 (“[T]he mere fact that a plaintiff has
20 carried on certain daily activities, such as grocery shopping, driving a car, or limited walking for
21 exercise, does not in any way detract from her credibility as to her overall disability.”). Absent
22 any further pertinent discussion in the ALJ’s decision, the record reflects only that the ALJ
23 impermissibly penalized Plaintiff’s credibility due to Plaintiff’s minimal efforts to lead a normal
24 life.
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Second, the ALJ failed to describe how these tasks are transferrable to a work setting.

26 “[D]aily activities may be grounds for an adverse credibility finding ‘if a claimant is able to spend
27 a substantial part of his day engaged in pursuits involving the performance of physical functions
28 that are transferable to a work setting.’” Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (quoting
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1 Fair, 885 F.2d at 603); see, e.g., Fair, 885 F.2d at 603 (“[I]f, despite his claims of pain, a claimant
2 is able to perform household chores and other activities that involve many of the same physical
3 tasks as a particular type of job, it would not be farfetched for an ALJ to conclude that the
4 claimant’s pain does not prevent the claimant from working.”). See generally Smolen v. Chater,
5 80 F.3d 1273, 1284 n.7 (9th Cir. 1996) (“The Social Security Act does not require that claimants
6 be utterly incapacitated to be eligible for benefits, and many home activities may not be easily
7 transferable to a work environment where it might be impossible to rest periodically or take
8 medication.” (citation omitted)). “The ALJ must make ‘specific findings relating to [the daily]
9 activities’ and their transferability to conclude that a claimant’s daily activities warrant an adverse
10 credibility determination.”

Orn, 495 F.3d at 639 (alteration in original) (quoting Burch v.

11 Barnhart, 400 F.3d 676, 681 (9th Cir. 2005)).
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In this case, the ALJ failed to describe how Plaintiff’s minimal physical activities occupied

13 a substantial part of his day, or provide any discussion, whatsoever, as to how those activities are
14 transferable to a work setting. (See AR 15–20.) The ALJ’s failure to address the minimal extent
15 of these activities and whether they are transferable to a work setting demonstrates that the ALJ’s
16 credibility determination regarding Plaintiff’s daily activities is not supported by substantial
17 evidence. See, e.g., Orn, 495 F.3d at 639 (finding that substantial evidence did not support the
18 ALJ’s conclusion regarding the claimant’s credibility where “there [was] neither evidence to
19 support that [the claimant’s] activities were transferable to a work setting nor proof that [the
20 claimant] spent a substantial part of his day engaged in transferable skills”).
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Based on the foregoing, the Court finds that the ALJ’s stated rationale pertaining to

22 Plaintiff’s activities of daily living is not a valid clear and convincing reason for the adverse
23 credibility determination.
24 C.

Work History

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Plaintiff next argues that the ALJ’s rationale relating to Plaintiff’s work history is not a

26 valid clear and convincing reason for the adverse credibility finding. (See Doc. 13 at 13.) The
27 Court disagrees with Plaintiff’s position on this point.
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“An ALJ is required to consider work history when assessing credibility.” Matthews v.

2 Berryhill, Case No. 1:16-cv-00536-SKO, 2017 WL 3383118, at *12 (E.D. Cal. Aug. 7, 2017)
3 (citing 20 C.F.R. § 404.1529(c)(3) and Social Security Ruling (“SSR”) 95-7p). “Evidence of a
4 poor work history that suggests a claimant is not motivated to work is a proper reason to discredit
5 a claimant’s testimony that he is unable to work.” Franz v. Colvin, 91 F. Supp. 3d 1200, 1209 (D.
6 Or. 2015) (citing Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002)); see, e.g., Albidrez v.
7 Astrue, 504 F. Supp. 2d 814, 822 (C.D. Cal. 2007) (“An ALJ may properly consider a claimant’s
8 poor or nonexistent work history in making a negative credibility determination.” (collecting
9 cases)). However, a claimant’s work history does not support a negative credibility determination
10 if the claimant “experience[d] pain and limitations severe enough to preclude him from
11 maintaining substantial gainful employment.” Lingenfelter v. Astrue, 504 F.3d 1028, 1038 (9th
12 Cir. 2007).
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Here, Plaintiff reported earning typically well in excess of $10,000 per year between 1997

14 and 2004, but then suffered a dramatic decrease in earnings after 2004―including no earnings, at
15 all, in 2005, 2007, and 2008. (See AR 231.) Additionally, Plaintiff does not assert―and the
16 record does not otherwise indicate―that Plaintiff’s dramatic decrease in gainful employment after
17 2004 was due to his disability or disability related pain. (See Doc. 13 at 13.) Plaintiff’s poor work
18 record is therefore a valid clear and convincing reason for an adverse credibility finding. See, e.g.,
19 Matthews, 2017 WL 3383118, at *12 (“Evidence of a poor work history is a clear and convincing
20 reason to discredit [a] plaintiff’s credibility.” (citations omitted)).
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Plaintiff nonetheless argues that his work history does not support an adverse credibility

22 finding because the construction industry “fell on rough times,” Plaintiff’s “earnings nose dive
23 [sic] right around the time that the housing bubble burst in the mid 2000s,” and Plaintiff’s business
24 “suffered bankruptcy.” (Doc. 13 at 13.) In other words, Plaintiff argues that economic factors
25 outside of his propensity or motivation to work precluded his opportunity to engage in gainful
26 employment. (See id.)
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The Court disagrees with this argument for two reasons. First, an ALJ is allowed to make

28 an adverse credibility finding based on a claimant’s work history where the claimant lost their
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1 previous employment due to reasons that were not related to their disability. See, e.g., Drouin v.
2 Sullivan, 966 F.2d 1255, 1258–59 (9th Cir. 1992) (finding that the ALJ did not err by discounting
3 the plaintiff’s credibility because, in part, the plaintiff “did not lose her past two jobs because of
4 pain”); Caldwell v. Comm’r of Soc. Sec., No. 2:15-cv-1002-KJN, 2016 WL 4041331, at *6 (E.D.
5 Cal. July 26, 2016) (finding that “the ALJ reasonably relied on [the] plaintiff’s work record in
6 discounting her credibility” where “there [was] evidence suggesting that [the] plaintiff had stopped
7 working for reasons not related to her impairments”); Clark v. Colvin, No. C13–0747–JCC, 2013
8 WL 6095842, at *3 (W.D. Wash. Nov. 20, 2013) (finding that the ALJ did not err in finding the
9 claimant’s “subjective complaints . . . less credible” based on the claimant’s work history where
10 the claimant’s “job ended for economic reasons instead of impairment-related reasons”). As
11 Plaintiff’s assertions regarding the reasons for his lack of gainful employment are not related to his
12 impairments, the ALJ reasonably relied on Plaintiff’s poor work history in making an adverse
13 credibility finding.
14

Second, it is well-established that the Court “may not ‘second-guess’ the ALJ’s credibility

15 finding simply because the evidence may have been susceptible of other interpretations more
16 favorable to Plaintiff.” Matthews, 2017 WL 3383118, at *12 (citing Tommasetti v. Astrue, 533
17 F.3d 1035, 1039 (9th Cir. 2008)). Here, the reason for Plaintiff’s poor work history could be
18 conditions in the national economy, as asserted by Plaintiff, (see Doc. 13 at 13), or a lack of
19 motivation from Plaintiff in finding employment, as found by the ALJ, (see AR 20). Ultimately,
20 “[w]hile it is true that factor(s) other than a lack of propensity to work could account for
21 Plaintiff’s” poor work history, the Court shall not second-guess the ALJ’s credibility
22 determination based on Plaintiff’s alternative explanation for his work record. Matthews, 2017
23 WL 3383118, at *12.
24

For these reasons, the Court finds that the ALJ provided a valid clear and convincing

25 reason for an adverse credibility finding based on Plaintiff’s poor work record.
26 D.

Conservative Treatment

27

Defendant argues that substantial evidence supports the ALJ’s credibility determination

28 due, in part, to the ALJ’s discussion regarding Plaintiff’s history of conservative treatment, (see
13

1 Doc. 16 at 7–8)―an issue that Plaintiff failed to address in his briefing, (see Doc. 13). The Court
2 agrees with Defendant’s position.
3

“The treatment [a claimant] received, especially when conservative, is a legitimate

4 consideration in a credibility finding.” McKnight v. Comm’r of Soc. Sec., Case No.: 1:12-cv5 00726-AWI-JLT, 2013 WL 12073218, at *2 (E.D. Cal. Sept. 30, 2013) (citing Meanel v. Apfel,
6 172 F.3d 1111, 1114 (9th Cir. 1999)). Thus, “[a]n ALJ may rely on the conservative nature of
7 treatment or a lack of treatment in rejecting a claimant’s subjective complaint of pain.”
8 Khounesavatdy v. Astrue, 549 F. Supp. 2d 1218, 1225 (E.D. Cal. 2008) (citing Johnson v. Shalala,
9 60 F.3d 1428, 1433–34 (9th Cir. 1995)); see, e.g., Parra v. Astrue, 481 F.3d 742, 751 (9th Cir.
10 2007) (“[E]vidence of conservative treatment is sufficient to discount a claimant’s testimony
11 regarding severity of an impairment.” (citation omitted)). In other words, “[t]he conservative
12 nature of [a] plaintiff’s treatment provides a clear and convincing reason for rejecting [a]
13 plaintiff’s statements concerning the severity of her impairments.” Bifarella v. Colvin, 51 F. Supp.
14 3d 926, 935 (E.D. Cal. 2014) (citing Parra, 481 F.3d at 751).
15

Here, the ALJ made an adverse credibility finding because, in part, Plaintiff’s treatment

16 history was inconsistent with Plaintiff’s statements regarding his limitations.

(See AR 19.)

17 Specifically, the ALJ noted that there was (1) “no history of hospitalizations, surgeries,
18 complicated medication regimen, therapy, or any other extraordinary treatment,” and (2) “no
19 psychiatric hospitalizations, no history of suicide attempts, no history of outpatient treatment, no
20 history of psychotherapy, and no history of psychosis or manic episodes.” (AR 19.) Plaintiff has
21 not argued that he received anything other than conservative treatment, (see Doc. 13), and the
22 Court is not otherwise aware of any indication in the record that Plaintiff received more than
23 conservative treatment. As such, the Court finds that the ALJ reasonably relied on Plaintiff’s
24 conservative treatment in discounting Plaintiff’s credibility. See, e.g., Osenbrock v. Apfel, 240
25 F.3d 1157, 1165–66 (9th Cir. 2001) (finding that the ALJ did not err in making an adverse
26 credibility finding where the ALJ stated, in part, that “the claimant has not participated in any
27 significant pain regimen or therapy program”); Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989)
28 (finding that the ALJ did not err in making an adverse credibility finding because, in part, the
14

1 claimant “alleged persistent and increasingly severe pain and discomfort,” but “denied having
2 received more than rather minimal conservative treatment for his various complaints”); see also 20
3 C.F.R. § 416.929(c)(3)(iv)–(v) (noting that, in evaluating credibility, the Commissioner will
4 consider “[t]he type, dosage, effectiveness, and side effects of any medication [a claimant] take[s]
5 or ha[s] taken to alleviate [the claimant’s] pain or other symptoms” and “[t]reatment, other than
6 medication, [a claimant] receive[s] or ha[s] received for relief of [the claimant’s] pain or other
7 symptoms”). But see Kuharski v. Colvin, No. 2:12–cv–01055–AC, 2014 WL 3385183, at *4
8 (E.D. Cal. July 10, 2014) (“[T]he ALJ’s reliance on the lack of hospitalization is unreasonable and
9 does not constitute a clear and convincing reason for rejecting [a] plaintiff’s credibility regarding
10 his mental limitations.” (citations omitted)). The Court therefore also finds that Plaintiff’s history
11 of conservative treatment constitutes a valid clear and convincing reason for the ALJ’s adverse
12 credibility finding. See, e.g., Bifarella, 51 F. Supp. 3d at 935 (“The conservative nature of [a]
13 plaintiff’s treatment provides a clear and convincing reason for rejecting [a] plaintiff’s statements
14 concerning the severity of her impairments.” (citing Parra, 481 F.3d at 751)).
15 E.

Objective Evidence

16

Plaintiff’s final argument is that the ALJ’s stated rationale relating to the objective medical

17 evidence is not a valid clear and convincing reason for the adverse credibility finding. (See Doc.
18 13 at 11–13.) The Court again disagrees with Plaintiff’s position.
19

“[T]he Ninth Circuit has repeatedly emphasized that, ‘in evaluating the credibility of pain

20 testimony after a claimant produces objective medical evidence of an underlying impairment, an
21 ALJ may not reject a claimant’s subjective complaints based solely on a lack of medical evidence
22 to fully corroborate the alleged severity of pain.’” Ondracek v. Comm’r of Soc. Sec., Case No.
23 1:15-cv-01308-SKO, 2017 WL 714374, at *8 (E.D. Cal. Feb. 22, 2017) (alteration in original)
24 (quoting Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005)); see, e.g., Rollins v. Massanari,
25 261 F.3d 853, 857 (9th Cir. 2001) (“[S]ubjective pain testimony cannot be rejected on the sole
26 ground that it is not fully corroborated by objective medical evidence . . . .”); see also SSR 96-7p
27 (“An individual’s statements about the intensity and persistence of pain or other symptoms or
28 about the effect the symptoms have on his or her ability to work may not be disregarded solely
15

1 because they are not substantiated by objective medical evidence.”).

Nonetheless, “lack of

2 medical evidence . . . is a factor that the ALJ can consider in his credibility analysis.” Burch, 400
3 F.3d at 681. Stated differently, “[a]lthough the inconsistency of objective findings with subjective
4 claims may not be the sole reason for rejecting subjective complaints of pain, it is one factor which
5 may be considered with others.” Salas v. Colvin, No. 1:13–cv–00429–BAM, 2014 WL 4186555,
6 at *6 (E.D. Cal. Aug. 21, 2014) (citations omitted).
Here, the ALJ discounted Plaintiff’s credibility because, in part, “the diagnostic and other

7

8 objective medical evidence . . . failed to show a physiological basis for the extreme pain and
9 limitation alleged.” (AR 19.) Contrary to Plaintiff’s assertion, (see Doc. 13 at 11–12), the ALJ
10 provided ample support for this conclusion, including an extensive discussion regarding the
11 relevant medical evidence during the course of the RFC analysis,2 (see AR 15–19). As the ALJ
12 fully explored the pertinent medical evidence relating to the credibility determination, the Court
13 finds that the ALJ’s stated rationale pertaining to the objective medical evidence is a valid clear
14 and convincing reason for the ALJ’s adverse credibility finding. 3 See, e.g., Bifarella v. Colvin, 51
15 F. Supp. 3d 926, 934–35 (E.D. Cal. 2014) (finding that the ALJ’s rationale relating to an
16 inconsistency between the plaintiff’s statements and the objective medical evidence was a valid
17 clear and convincing reason for an adverse credibility finding where the ALJ addressed the
18 pertinent evidence and reached an “interpretation of the objective evidence [that] was
19 reasonable”); see also Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (finding that the
20 “ALJ gave specific, clear and convincing reasons for discounting [the claimant’s] testimony”
21
22
23
24
25
26
27
28

2

The Court notes that Plaintiff does not argue that the ALJ failed to discuss any pertinent medical evidence in the
ALJ’s decision. (See Doc. 13 at 11–13.)
3
Plaintiff also argues that the ALJ employed the incorrect standard when determining whether Plaintiff’s subjective
statements were consistent with the objective medical evidence. In particular, Plaintiff argues that the ALJ improperly
“rel[ied] on objective evidence” regarding “the degree of limitation,” while Plaintiff only had to “show that it could
reasonably have caused some degree of symptom.” (Doc. 13 at 12 (citation omitted).)
The Court disagrees with Plaintiff’s position. The standard proffered by Plaintiff―only a showing of some
degree of symptom―is the appropriate standard at the first stage of the credibility analysis. See, e.g., Lingenfelter v.
Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). As noted above, the ALJ found that Plaintiff satisfied this stage. (See
AR 16.) Plaintiff’s objections to the ALJ’s decision pertain to the second stage of the credibility analysis, in which
“the ALJ can reject the claimant’s testimony about the severity of her symptoms by offering specific, clear and
convincing reasons for doing so.” Lingenfelter, 504 F.3d at 1036 (quoting Smolen v. Chater, 80 F.3d 1273, 1282 (9th
Cir. 1996)). The Court is therefore not persuaded by Plaintiff’s argument regarding the standard employed by the ALJ
when making the credibility determination.

16

1 where the ALJ found, in part, that “no objective medical evidence” supported the claimant’s
2 “descriptions of her pain and limitations”).
3

In summary, the Court finds that the ALJ gave three valid clear and convincing reasons for

4 the adverse credibility finding―Plaintiff’s poor work record, his history of conservative treatment,
5 and inconsistencies between Plaintiff’s subjective statements and the objective medical evidence.
6 These reasons readily constitute substantial evidence in support of the ALJ’s credibility
7 determination.

See, e.g., Matthews v. Berryhill, Case No. 1:16-cv-00536-SKO, 2017 WL

8 3383118, at *10 (E.D. Cal. Aug. 7, 2017) (finding that the ALJ’s three valid reasons for an
9 adverse credibility finding―the plaintiff’s “conservative treatment history,” “poor work history,”
10 and “evidence in the record that conflicted with [the plaintiff’s] allegation[s]”―constituted
11 substantial evidence in support of the ALJ’s credibility determination). While the ALJ erred in
12 providing one invalid reason for the credibility finding―Plaintiff’s activities of daily living―that
13 error was harmless, as substantial evidence still supports the ALJ’s credibility determination
14 notwithstanding the single errant rationale. See, e.g., Carmickle v. Comm’r, Soc. Sec. Admin., 533
15 F.3d 1155, 1162 (9th Cir. 2008) (“So long as there remains ‘substantial evidence supporting the
16 ALJ’s conclusions on . . . credibility’ and the error ‘does not negate the validity of the ALJ’s
17 ultimate [credibility] conclusion,’ such is deemed harmless and does not warrant reversal.”
18 (alterations in original) (quoting Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th
19 Cir. 2004))); Matthews, 2017 WL 3383118, at *10 (“[B]ecause the ALJ articulated permissible
20 reasons for discounting [the plaintiff’s] credibility, specifically [the plaintiff’s] conservative
21 treatment history, [the plaintiff’s] poor work history, and evidence in the record that conflicted
22 with [the plaintiff’s] allegation of total disability, . . . this error was harmless.” (citations omitted)).
23 The Court therefore finds that the ALJ’s decision is properly affirmed.
24 //
25 //
26 //
27 //
28 //
17

1

IV.

CONCLUSION

For the foregoing reasons, the Court DENIES Plaintiff’s Motion, (Doc. 13), GRANTS

2

3 Defendant’s Motion, (Doc. 16), and AFFIRMS the final decision of the Commissioner. The Court
4 DIRECTS the Clerk to enter judgment in favor of Defendant.
5
6

IT IS SO ORDERED.

7 Dated:
8

August 22, 2017

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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