Gardner Smith v. Commissioner of Social Security

Filing 18

ORDER signed by Magistrate Judge Kendall J. Newman on 3/18/13 ORDERING that Plaintiff's 15 motion for summary judgment is DENIED; the Commissioner's 16 cross-motion for summary judgment is GRANTED; and Judgment is entered for defendant. CASE CLOSED (Kastilahn, A)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

CHRISTINE GARDNER SMITH,

11

Plaintiff,

12
13

No. 2:11-cv-03045-KJN

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

14
Defendant.
15

ORDER
/

16

Plaintiff seeks judicial review of a final decision of the Commissioner of Social

17

Security (“Commissioner”) denying plaintiff’s application for Disability Insurance Benefits

18

(“DIB”) under Title II of the Social Security Act (“Act”).1 In her motion for summary judgment,

19

plaintiff contends that the Commissioner erred by finding that plaintiff was not disabled from

20

July 2, 2007, through the date of the final administrative decision. (Mot. for Summ. J., Dkt. No.

21

15.) The Commissioner filed an opposition to plaintiff’s motion, as well as a cross-motion for

22

summary judgment. (Opp’n, Dkt. No. 16.) For the reasons that follow, the court denies

23

////

24
25
26

1

This case was referred to the undersigned pursuant to E.D. Cal. L.R. 302(c)(15) and 28
U.S.C. § 636(c), and both parties voluntarily consented to proceed before a United States
Magistrate Judge. (Dkt. Nos. 10, 11.)
1

1

plaintiff’s motion for summary judgment, grants the Commissioner’s cross-motion for summary

2

judgment, and enters judgment for the Commissioner.

3

I.

BACKGROUND

4

Plaintiff worked as a hearing specialist for ten years and as a supervisor for

5

hearing specialists for eight years.2 (Administrative Transcript (“AT”) 36, 37, 122.) Plaintiff

6

was born on March 29, 1951, and completed two years of college. (AT 36, 122.) On September

7

18, 2008, plaintiff applied for DIB, alleging that she was unable to work as of July 2, 2007,

8

primarily due to migraine headaches. (AT 60, 122.) On February 19, 2009, the Commissioner

9

determined that plaintiff was not disabled. (AT 60, 65.) Following plaintiff’s request for

10

reconsideration, the agency affirmed the determination on June 12, 2009. (AT 64, 76.) Plaintiff

11

requested a hearing before an administrative law judge (“ALJ”), and a hearing occurred on

12

March 16, 2010. (AT 32.)

13

In a decision dated May 27, 2010, the ALJ determined that plaintiff had not been

14

under a disability, as defined in the Act, from July 2, 2007, through the date of the decision. (AT

15

20.) The ALJ’s decision became the final decision of the Commissioner when the Appeals

16

Council denied plaintiff’s request for review on September 14, 2011. (AT 3.) On November 16,

17

2011, plaintiff filed this action for judicial review of the Commissioner’s final decision.

18

(Compl., Dkt. No. 2.)

19

II.

PLAINTIFF’S ARGUMENTS

20

Plaintiff argues that the ALJ improperly discredited plaintiff’s testimony regarding

21

her symptoms and functional limitations. (Mot. for Summ. J. at 7-14.) Specifically, plaintiff

22

contends that “the assertion of the ALJ that [plaintiff’s] testimony is not credible because it is

23

inconsistent with the objective medical evidence” is legally insufficient (id. at 8), that “the ALJ

24
2

25
26

Because the parties are familiar with the factual background of this case, including
plaintiff’s medical history, the court does not exhaustively relate those facts here. The facts
related to plaintiff’s impairments and medical history will be addressed insofar as they are
relevant to the issues presented by the parties’ respective motions.
2

1

failed to articulate any rationale sufficient to demonstrate [plaintiff] was anything other than

2

credible” (id. at 9), and that the ALJ failed to “consider [plaintiff’s] 30 year work history in

3

evaluating her credibility contrary to the Commissioner’s binding ruling and regulations” (id. at

4

10).

5

III.

LEGAL STANDARD

6

The court reviews the Commissioner’s decision to determine whether: (1) it is

7

based on proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in

8

the record as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999).

9

Substantial evidence is more than a mere scintilla, but less than a preponderance. Connett v.

10

Barnhart, 340 F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means “such relevant evidence

11

as a reasonable mind might accept as adequate to support a conclusion.” Orn v. Astrue, 495 F.3d

12

625, 630 (9th Cir. 2007) (quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)). “The

13

ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and

14

resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citations

15

omitted). “The court will uphold the ALJ’s conclusion when the evidence is susceptible to more

16

than one rational interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).

17

IV.

18

DISCUSSION
A.

19
20

Summary of the ALJ’s Findings
The ALJ evaluated plaintiff’s entitlement to DIB pursuant to the Commissioner’s

standard five-step analytical framework.3 At the first step, the ALJ concluded that plaintiff had

21
22
23
24
25

3

Disability Insurance Benefits are paid to disabled persons who have contributed to the
Social Security program. 42 U.S.C. §§ 401 et seq. Supplemental Security Income is paid to
disabled persons with low income. 42 U.S.C. §§ 1382 et seq. Both provisions define disability,
in part, as an “inability to engage in any substantial gainful activity” due to “a medically
determinable physical or mental impairment . . . .” 42 U.S.C. §§ 423(d)(1)(a) & 1382c(a)(3)(A).
A parallel five-step sequential evaluation governs eligibility for benefits under both programs.
See 20 C.F.R. §§ 404.1520, 404.1571-76, 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S.
137, 140-42 (1987). The following summarizes the sequential evaluation:

26
3

1

not engaged in substantial gainful activity since July 2, 2007, the alleged onset date. (AT 22.) At

2

step two, the ALJ determined that plaintiff had the following severe impairments: migraine

3

headaches; obesity; gastroesophageal reflux disease (“GERD”); sleep apnea; osteoporosis;

4

glaucoma; and spastic colon. (AT 22.) At step three, the ALJ determined that plaintiff did not

5

have an impairment or combination of impairments that meet or medically equal an impairment

6

listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (AT 23.)

7
8

Before proceeding to step four, after considering the entire record, the ALJ
assessed plaintiff’s RFC as follows:

9

[T]he claimant has the residual functional capacity to perform
medium work as defined in 20 CFR 404.1567(c) except: she can
lift, carry, push, and/or pull 50 pounds occasionally and 25 pounds
frequently; she can stand and/or walk for about 6 hours in an 8hour workday; she can sit for about 6 hours in an 8-hour workday;
and she should avoid exposure to hazards including machinery and
heights.

10
11
12
13

(AT 24.)

14

////

15
16
17
18
19
20
21
22
23

Step one: Is the claimant engaging in substantial gainful
activity? If so, the claimant is found not disabled. If not, proceed
to step two.
Step two: Does the claimant have a “severe” impairment?
If so, proceed to step three. If not, then a finding of not disabled is
appropriate.
Step three: Does the claimant’s impairment or combination
of impairments meet or equal an impairment listed in 20 C.F.R., Pt.
404, Subpt. P, App.1? If so, the claimant is automatically
determined disabled. If not, proceed to step four.
Step four: Is the claimant capable of performing his past
work? If so, the claimant is not disabled. If not, proceed to step
five.
Step five: Does the claimant have the residual functional
capacity to perform any other work? If so, the claimant is not
disabled. If not, the claimant is disabled.

24

Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995).

25

The claimant bears the burden of proof in the first four steps of the sequential evaluation
process. Bowen, 482 U.S. at 146 n.5. The Commissioner bears the burden if the sequential
evaluation process proceeds to step five. Id.

26

4

1

At step four, the ALJ found that plaintiff was capable of performing her past

2

relevant work as a hearings specialist, a job the ALJ found to be equivalent to “claims

3

adjudicator” work. (AT 27.) This determination was based on the testimony of a vocational

4

expert (“VE”) (AT 55-56), who testified that plaintiff’s work history was equivalent to the listing

5

of “claims adjudicator” under the Dictionary of Occupational Titles (“DOT”), and that an

6

individual with plaintiff’s RFC could perform this work. See Dictionary of Occupational Titles §

7

169.267-010 (4th ed. 1991) (claims adjudicator, SVP 7, sedentary exertion), available at 1991

8

WL 647446. The DOT can be used by an ALJ and/or VE in determining whether a claimant,

9

given his or her RFC, can perform his or her past relevant work. 20 C.F.R. § 404.15600(b)(2).

10

The ALJ concluded that plaintiff had not been under a disability, as defined in the Act, from July

11

2, 2007, through the date of the decision. (AT 28.)

12

B.

Plaintiff Has Not Shown That The ALJ Erred In Rendering An Adverse
Credibility Determination

13
14

Plaintiff argues that the ALJ improperly discredited plaintiff’s testimony by

15

relying on a lack of supporting objective medical evidence, by giving no other rationale sufficient

16

to support an adverse credibility finding, and by failing to consider plaintiff’s work history.

17

(Mot. for Summ. J. at 8-10.)

18

During the hearing, plaintiff testified that: she was unable to perform her past

19

work as a hearings specialist supervisor due to her migraine headaches (AT 38), her migraine

20

headaches intensified since 2007 (AT 38-39), she experiences migraine headaches one to three

21

times per week (AT 39), her anxiety and panic attacks inhibit her breathing, speech, and ability to

22

be around people or crowds (AT 50-51), her back pain and knee pain make it difficult to perform

23

daily chores because of the “upping and downing,” and make it difficult to stand or walk for

24

more than thirty minutes at a time (AT 52-53), her knee pain is a “four to eight” and prohibits her

25

from climbing stairs because she must pause every two steps (AT 47-48), due to IBS she has

26

explosive diarrhea and vomiting at least once a week (AT 49), and typing and writing cause her
5

1
2
3
4
5
6
7
8
9
10
11
12

hand to go numb and tingle on a daily basis (AT 48).
In Lingenfelter v. Astrue, 504 F.3d 1028 (9th Cir. 2007), the Ninth Circuit Court
of Appeals summarized the ALJ’s task with respect to assessing a claimant’s credibility:
To determine whether a claimant’s testimony regarding
subjective pain or symptoms is credible, an ALJ must engage in a
two-step analysis. First, the ALJ must determine whether the
claimant has presented objective medical evidence of an
underlying impairment which could reasonably be expected to
produce the pain or other symptoms alleged. The claimant,
however, need not show that her impairment could reasonably be
expected to cause the severity of the symptom she has
alleged; she need only show that it could reasonably have caused
some degree of the symptom. Thus, the ALJ may not reject
subjective symptom testimony . . . simply because there is no
showing that the impairment can reasonably produce the degree of
symptom alleged.
Second, if the claimant meets this first test, and there is no
evidence of malingering, the ALJ can reject the claimant’s
testimony about the severity of her symptoms only by offering
specific, clear and convincing reasons for doing so . . . .

13
14

Lingenfelter, 504 F.3d at 1035-36 (citations and quotation marks omitted). An ALJ must give

15

“specific, clear and convincing reasons” in rendering an adverse credibility determination.

16

Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (explaining that if the claimant satisfies

17

step one and “there is no evidence of malingering, then the ALJ must give specific, clear and

18

convincing reasons in order to reject the claimant’s testimony about the severity of symptoms.”)

19

(internal quotation marks omitted). “At the same time, the ALJ is not required to believe every

20

allegation of disabling pain, or else disability benefits would be available for the asking . . . .” Id.

21

“The ALJ must specifically identify what testimony is credible and what testimony undermines

22

the claimant’s complaints.” Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 693 (9th

23

Cir. 2009) (quoting Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999)).

24

In weighing a claimant’s credibility, an ALJ may consider, among other things,

25

the “‘[claimant’s] reputation for truthfulness, inconsistencies either in [the claimant’s] testimony

26

or between [her] testimony and [her] conduct, [the claimant’s] daily activities, [her] work record,
6

1

and testimony from physicians and third parties concerning the nature, severity, and effect of the

2

symptoms of which [the claimant] complains.’” Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th

3

Cir. 2002) (modification in original) (quoting Light v. Comm’r of Soc. Sec. Admin., 119 F.3d

4

789, 792 (9th Cir. 1997)). If the ALJ’s credibility finding is supported by substantial evidence in

5

the record, the court “may not engage in second-guessing.” Id. at 959.

6

1.

The ALJ Properly Determined That Plaintiff’s Inconsistent Statements
About Her Symptoms Undermined Her Credibility4

7
8
9

The ALJ discredited plaintiff’s testimony due in part to plaintiff’s own
contradictory statements regarding the severity and persistency of her migraine headaches. (AT

10

26.) A claimant’s “prior inconsistent statements concerning [her] symptoms” is a proper

11

consideration for the ALJ in evaluating credibility. Chaudhry v. Astrue, 688 F.3d 661, 672 (9th

12
4

13
14
15

The record contains additional evidence that plaintiff apparently submitted to the
Appeals Council after the ALJ issued the final decision on May 27, 2010. (AT 199.) This
evidence consists of about ninety pages of medical records dating from March 15, 2007, through
June 25, 2010, and employment records regarding plaintiff’s work history and Family Medical
Leave Act certification. (AT 355-411, 416-42.) The Appeals Council stated that it had
considered this evidence, but found that it did not provide a basis for changing the ALJ’s
decision. (AT 4.)

16
17
18
19
20
21
22
23
24
25
26

Plaintiff does not specifically argue that the undersigned should consider any evidence in
particular, let alone this additional evidence. (See generally Mot. for Summ. J.) However,
defendant specifically argues that the additional evidence should not be considered. (Opp’n at
11-12.) Defendant asserts that new evidence should not be considered unless plaintiff meets the
requirements enumerated in sentence six of 42 U.S.C. § 405(g), and argues that she has not done
so. (Id. at 12.)
Sentence six of 42 U.S.C. § 405(g) codifies plaintiff’s burden in a request for remand for
consideration of new evidence. See Mayes v. Massanari, 276 F.3d 453, 462 (9th Cir. 2001)
(affirming the district court’s refusal to remand when plaintiff established neither materiality of
new evidence nor good cause for failing to submit it earlier). However, “that standard applies
only to new evidence that is not part of the administrative record and is presented in the first
instance to the district court.” Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1163 (9th
Cir. 2012). Any evidence submitted to and considered by the Appeals Council becomes part of
the administrative record and must be considered by the district court in determining whether the
ALJ’s decision is supported by substantial evidence. Id. at 1163. Accordingly, given that such
evidence is already part of the record in this case, the undersigned has considered it in rendering
this decision. See Brewes, 682 F.3d at 1164; Ramirez v. Shalala, 8 F.3d 1449, 1452 (9th Cir.
1993); Harman v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir. 2000); Lingenfelter, 504 F.3d at 1030
n.2 (9th Cir. 2007).
7

1

Cir. 2012) (citing Tommasetti,553 F.3d at 1039). Plaintiff testified that her migraine headaches

2

began when she was twenty years old and intensified in 2007. (AT 25, 38, 39.) Plaintiff also

3

testified that her migraine headaches had stayed “about the same” since she retired in July of

4

2007, when they occurred one to three times per week, lasting one to three days per episode. (AT

5

38, 39, 53.) Earlier, in a Social Security Disability Report, plaintiff indicated that she

6

experienced migraine headaches six to eight times per month, with one to three days of recovery

7

required for each episode. (AT 26, 134.)

8

However, as the ALJ noted, the record reveals that in January 2008, plaintiff

9

reported to Dr. Gardener that she experienced migraine headaches much less frequently, with

10

migraines occurring “twice a month, rather than twice per week.” (AT 26, 320 (emphasis in

11

ALJ’s decision).) Plaintiff’s self report to Dr. Gardener thus conflicts with her testimony and her

12

allegations of more frequent migraine headaches. Further, plaintiff’s testimony that her

13

migraines stayed “about the same” since 2007 is somewhat undercut by plaintiff’s 2008 report to

14

Dr. Tatikunta that her headaches were better when she cut down on coffee, and plaintiff’s 2009

15

report to Dr. Gardener that “Maxalt helps her migraines.” (AT 53 (testimony that migraines

16

“stayed about the same” since 2007), AT 325 (“headaches better as she is cutting down on

17

coffee”), AT 336 (“Maxalt helps her migraines” and marijuana also helps her migraines).) These

18

statements are supported by substantial evidence in the record, and because the ALJ may

19

properly rely on plaintiff’s own inconsistent statements in making a credibility determination, the

20

ALJ did not err. See Chaudhry, 688 F.3d at 672.

21

2.

The ALJ Properly Determined That Plaintiff Received Conservative
Treatment, Undermining Her Credibility Regarding Severity Of Symptoms

22
23

Aside from noting plaintiff’s inconsistent statements, the ALJ also discounted

24

plaintiff’s credibility based on her ordinary and routine treatment. (AT 26.) A claimant’s

25

relatively conservative treatment is a proper consideration in an ALJ’s credibility determination.

26

Tommasetti, 533 F.3d at 1039-40 (reasoning that a favorable response to conservative treatment
8

1

undermines complaints of disabling symptoms); Parra v. Astrue, 481 F.3d 742, 751 (9th Cir.

2

2007) (“We have previously indicated that evidence of conservative treatment is sufficient to

3

discount a claimant’s testimony regarding severity of an impairment.”); Fair v. Bowen, 885 F.2d

4

597, 604 (9th Cir. 1989) (ALJ properly discredited claimant’s allegations of “persistent and

5

increasingly severe pain and discomfort over a period of many years” when claimant “denied

6

having received more than rather minimal conservative treatment for his various complaints”)

7

(internal quotation marks omitted). Moreover, a condition that can be controlled or corrected by

8

medication is not disabling for purposes of determining eligibility for benefits under the Act. See

9

Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (“Impairments that

10

can be controlled effectively with medication are not disabling for the purpose of determining

11

eligibility . . . .”).

12

Here, the ALJ found that plaintiff’s migraines were treated “conservatively” (AT

13

22) and were “fairly well controlled with Maxalt and medical marijuana and a decreased coffee

14

intake” (AT 26). As noted above, the record confirms that plaintiff reported improvement while

15

using Maxalt, Atenolol, and marijuana for her migraine headaches in 2008.5 (AT 320.) One year

16

later, plaintiff informed Dr. Gardener that Maxalt helped her migraine headaches and that she

17

continued to note a benefit with marijuana. (AT 336.) Additionally, plaintiff’s treating physician

18

Dr. Tatikunta advised plaintiff to cut down on coffee, and plaintiff later informed Dr. Tatikunta

19

that her “[h]eadaches [were] better” after she followed his instruction to drink less coffee. (AT

20
5

21
22
23
24
25
26

An ALJ is required to consider, but permitted to discredit, a claimant’s allegations of a
medication’s side effects. Berry v. Astrue, 622 F.3d 1228, 1235 (9th Cir. 2010). Plaintiff’s
moving papers neither discuss the alleged side effects of plaintiff’s medications nor specifically
argue that the ALJ’s decision did not properly address those alleged side effects. (See generally
Mot. for Summ. J.) In any event, however, the ALJ considered plaintiff’s “allegations of
medication side effects, including lethargy,” but found they were “not as intense as alleged” due
to plaintiff’s frequently appearing “alert, well appearing, and in no distress” at physical
examinations (AT 26, 134, 293, 309, 323, 331), as well as due to her “substantially unchanging
prescriptions.” (AT 27.) Indeed, plaintiff’s medical records indicate that plaintiff used Maxalt
for her migraines and did so continuously for years. (AT 40, 290, 309, 320, 322, 335.) The
evidence in the record thus supports the ALJ’s decision to partially discount plaintiff’s
allegations regarding the intensity of the alleged side effects of plaintiff’s medication.
9

1

322-23, 325.)

2

As to plaintiff’s symptoms of knee pain, GERD, and cardiac problems, the record

3

confirms that these ailments were also conservatively treated. The record reveals that plaintiff

4

was prescribed NSAID Nabumetone for her right knee pain, and plaintiff testified that taking

5

“[j]ust Tylenol” for her knee pain was helpful. (AT 41, 331-32.) In addition, treating physician

6

Dr. Tatikunta advised plaintiff to take Prilosec for her GERD, and less than a year later, indicated

7

in a medical report that plaintiff’s GERD was “stable.” (AT 26, 293, 324.) Finally, the ALJ also

8

noted that “the record contains little significant evidence of continuous treatment for a cardiac

9

impairment,” undercutting plaintiff’s allegations of more frequent cardiac symptoms. (AT 22,

10

27.)

11

The ALJ also discredited plaintiff’s testimony in part because plaintiff’s “visual

12

complaints” were inconsistent with the observations of her optometrist, Dr. Bonnie Belle Quiroz,

13

who noted in January 2009 that plaintiff did not have any “concerns” or take any medication for

14

her eyes. (AT 26-27, 333.) Following the ALJ hearing on March 16, 2010, however, plaintiff

15

submitted additional medical reports indicating more frequent visits with Dr. Quiroz and the

16

initiation of prescription eye drops in June 2009. (AT 377, 379.) This evidence is part of this

17

administrative record. See Brewes, 682 F.3d at 1164. The ALJ thus erred in discrediting

18

plaintiff’s testimony based upon a lack of eye treatment and a lack of eye-related medication, as

19

the record reveals that plaintiff did in fact receive such treatment and medication. However, the

20

ALJ’s error in this regard was harmless given that the ALJ provided several other valid reasons

21

for discrediting plaintiff’s testimony, and those reasons are supported by the evidence of record.

22

See Molina, 674 F.3d at 1115. In addition, the ALJ did not entirely discredit plaintiff’s testimony

23

regarding her eye condition, because the ALJ ultimately found that, given that the record

24

contained some evidence of an eye condition, plaintiff should “avoid work in hazardous

25

environments.” (AT 27.)

26

////
10

1

In sum, the record confirms that plaintiff underwent conservative treatment for

2

headaches, knee pain, GERD, and cardiac problems, and that she favorably responded to

3

prescription medications like Maxalt, Atenolol, and marijuana, as well as to decreased coffee

4

intake and over the counter medications. The ALJ thus correctly considered plaintiff’s relatively

5

conservative treatment in conjunction with the positive response to medication in evaluating

6

plaintiff’s allegations of disabling symptoms. See Tommasetti, 533 F.3d at 1039-40; Parra, 481

7

F.3d at 751; Fair, 885 F.2d at 604; Warre, 439 F.3d at 1006.

8

3.

9

The ALJ Properly Determined That Plaintiff’s Allegations of Disabling
Pain Were Inconsistent With Her Treating Physicians’ Observations And
The Objective Medical Evidence

10

The ALJ also discredited plaintiff’s testimony in part because of a lack of

11

objective medical evidence supporting her testimony regarding pain. “[A]fter a claimant

12

produces objective medical evidence of an underlying impairment, an ALJ may not reject a

13

claimant’s subjective complaints based solely on a lack of medical evidence to fully corroborate

14

the alleged severity of pain.” Burch, 400 F.3d at 680 (citing Bunnell v. Sullivan, 947 F.2d 341,

15

345 (9th Cir. 1991)). However, although lack of medical evidence cannot form the “sole” basis

16

for discounting plaintiff’s subjective symptom testimony, it is nevertheless a relevant factor for

17

the ALJ to consider. Burch, 400 F.3d at 680-81 (ALJ did not err in relying in part upon the

18

record’s “minimal objective evidence” in discrediting plaintiff’s testimony because ALJ also

19

“made additional specific findings” regarding plaintiff’s activities of daily living, lack of

20

consistent treatment, and failure to seek treatment, all of which supported the adverse credibility

21

determination).

22

Here, the record supports the ALJ’s finding that plaintiff’s allegations of

23

disabling pain were inconsistent with the observations of her physicians and were not supported

24

by the medical evidence of record. As the ALJ noted, contrary to her representations of disabling

25

pain, the record reveals that plaintiff routinely presented herself to treating physician Dr.

26

Tatikunta as “alert, well appearing, and in no distress.” (AT 26, 134, 293, 309, 323, 331.) As the
11

1

ALJ also noted, although plaintiff testified that she has explosive diarrhea and vomiting at least

2

once a week, the record does not reflect continuous complaints or treatment for this symptom or

3

condition, and plaintiff denied any “urinary incontinence, prolapsed symptoms or defecatory

4

dysfunction.” (AT 26, 312.) Similarly, the ALJ found that plaintiff’s allegations of severe

5

cardiac symptoms were undercut by an EKG Impression that revealed only “borderline

6

abnormalities,” and a lack of significant “continuous treatment.” (AT 27, 301.) As the ALJ

7

noted, the record contains plaintiff’s “normal” echocardiogram studies showing only “mild” or

8

“trace” abnormalities. (AT 22.)

9

The ALJ also noted that plaintiff’s allegations of pain and tenderness in her right

10

knee conflicted with a physical examination by her doctor that revealed “no joint tenderness,

11

deformity or swelling” and a good range of motion (AT 27, 331), as well as an imaging study of

12

plaintiff’s right knee which confirmed that plaintiff’s “bones, joints and soft tissues [were] within

13

normal limits” (AT 27, 299). In response to plaintiff’s allegation that obesity compounded her

14

right knee pain, the ALJ noted that the record “do[es] not provide any objective findings to show

15

that the claimant has any significant functional limitations that would preclude . . . medium

16

exertional work.” (AT 27.)

17

The ALJ also found “no significant medical evidence” in the record to

18

substantiate plaintiff’s allegation of hand numbness, either as an underlying impairment or

19

symptom of one. (AT 23, 48.) Likewise, the ALJ discredited plaintiff’s testimony (AT 27, 336)

20

and allegations of “speech limitations” because “[n]o treating source has indicated that the

21

claimant has speech limitations, other than merely reciting the claimant’s subjective complaints”

22

and the record itself showed a “lack of evidence showing treatment for such symptoms.” See

23

Burch, 400 F.3d at 681 (“The ALJ is permitted to consider lack of treatment in his credibility

24

determination.”); Tommasetti, 533 F.3d at 1041 (“[a]n ALJ may reject a treating physician’s

25

opinion if it is based ‘to a large extent’ on a claimant’s self-reports that have been properly

26

discounted as incredible.”). Plaintiff has not shown that the ALJ erred in relying in part upon a
12

1

lack of supporting objective medical evidence as one of the several reasons the ALJ offered for

2

discrediting plaintiff’s testimony.

3

4.

Plaintiff Has Not Shown That The ALJ Failed To Properly Consider
Plaintiff’s Work History

4
5

Plaintiff argues that the ALJ was required to consider plaintiff’s “30 year work

6

history” in making a credibility determination, and the ALJ should have found such work history

7

to weigh in favor of finding plaintiff to be credible. (Mot. for Summ. J. at 9-10 n.3 (“an

8

individual who has performed continuous gainful work activity since 1978 does not simply wake

9

up one day and decide not to show up for work anymore without a very good reason” and “[w]hat

10

is good for the goose must be for the gander as well. Allowing ALJ’s to take note of a lack of

11

work history as reason to find a claimant not credible, but then ignore a positive work history

12

allows for a misapplication of the Commissioner regulations.”).)

13

In support of this argument, plaintiff cites to Schaal v. Apfel, wherein the Second

14

Circuit Court of Appeals discussed the potential impact of a claimant’s poor work history upon

15

her credibility. 134 F.3d 496, 502 (2nd Cir. 1998). This out-of-circuit case is unpersuasive here,

16

however, because while it signifies that a “good work history may be deemed probative of

17

credibility” just as “a poor work history can reasonably be deemed to have the opposite

18

significance,” it does not require an ALJ to credit testimony from a plaintiff with a “good” work

19

history. Schaal, 134 F.3d at 502 (emphasis added). The Schaal decision uses permissive

20

language indicating only that a “good” work history “may” help prove credibility. See Schaal,

21

134 F.3d at 502. In other words, an ALJ must consider a claimant’s work record, but plaintiff

22

offers no cases suggesting an ALJ is bound to make a certain credibility determination based on a

23

lengthy or “good” work history. 20 C.F.R. § 404.1529(c)(3). Likewise, plaintiff has identified

24

no authorities specifically requiring an ALJ to deem a lengthy work history as itself indicative of

25

a claimant’s veracity. The other authorities plaintiff cites, such as 20 C.F.R. § 404.1529(c)(3),

26

require the ALJ to “consider” a claimant’s “work record” as part of a credibility determination,
13

1

but do not expressly require an ALJ to construe a lengthy work record as supporting a finding of

2

credibility.

3

Here, the ALJ did specifically consider plaintiff’s work record in rendering the

4

credibility determination; she discredited plaintiff’s testimony in part because plaintiff’s work

5

history revealed plaintiff had worked for years despite having migraines. (AT 26.) This finding

6

is supported by substantial evidence and confirms that the ALJ indeed considered plaintiff’s

7

work record, although she did not construe that record in the manner plaintiff would have liked.

8

Moreover, even if plaintiff’s having worked despite suffering some degree of migraines was not

9

a sufficient reason to discount plaintiff’s testimony, the ALJ provided several other valid reasons

10

for discrediting plaintiff’s testimony. See Molina, 674 F.3d at 1115 (harmless error when ALJ

11

provided one or more invalid reasons for disbelieving a claimant’s testimony, but also provided

12

valid reasons that were supported by the record). Plaintiff has not shown that the ALJ erred in

13

her consideration of plaintiff’s work history.

14

V.

15

CONCLUSION
In sum, plaintiff has not shown that the ALJ improperly discounted her credibility

16

by solely relying on a lack of objective medical evidence, failing to allege any other sufficient

17

rationale, and ignoring her “30-year work history.” In fact, in discounting plaintiff’s credibility,

18

the ALJ properly considered plaintiff’s own inconsistent statements and various examples of her

19

conservative treatment, in addition to a lack of objective medical evidence supporting plaintiff’s

20

testimony regarding the severity of her symptoms. The ALJ also properly considered plaintiff’s

21

work record, including the fact that it revealed plaintiff’s ability to work despite migraine

22

headaches, and plaintiff has not identified authorities that require an ALJ to deem a lengthy work

23

history as probative of a claimant’s veracity.

24

////

25

////

26

////
14

1

For the foregoing reasons, IT IS HEREBY ORDERED that:

2

1.

Plaintiff’s motion for summary judgment (Dkt. No. 15) is DENIED.

3

2.

The Commissioner’s cross-motion for summary judgment (Dkt. No. 16) is

5

3.

Judgment is entered for defendant.

6

4.

The Clerk of the Court is directed to close this case.

7

IT IS SO ORDERED.

4

8

GRANTED.

DATED: March 18, 2013

9
10
11

_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
15