Tarr v. Commissioner of Social Security

Filing 16

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 5/15/2017 RECOMMENDING that Plaintiff's 11 motion for summary judgment be denied. The Commissioner's 12 cross-motion for summary judgment be granted. Judgment be entered for the Commissioner. Motions referred to Judge John A. Mendez. Objections to F&R due within 14 days. (Zignago, K.)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER TARR, 12 Plaintiff, 13 14 15 No. 2:16-cv-1588-JAM-CKD v. FINDINGS AND RECOMMENDATIONS NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. 16 17 Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security 18 19 (“Commissioner”) finding plaintiff was not disabled for purposes of receiving Disability 20 Insurance Benefits (“DIB”) under Title II of the Social Security Act (“Act”). For the reasons 21 discussed below, the court will recommend that plaintiff’s motion for summary judgment be 22 denied and the Commissioner’s cross-motion for summary judgment be granted. 23 I. BACKGROUND 24 Plaintiff, born March 30, 1965, applied on March 3, 2015 for DIB, alleging disability 25 beginning June 30, 2013. Administrative Transcript (“AT”) 159-62. Plaintiff alleged he was 26 unable to work due to attention deficit hyperactivity disorder (“ADHD”), anxiety, degenerative 27 disc disease, degenerative joint disease, lumbar spine impairment, and cervical spine impairment. 28 AT 180. In a decision dated February 24, 2016, the ALJ determined that plaintiff was not 1 1 disabled.1 AT 11-21. The ALJ made the following findings (citations to 20 C.F.R. omitted): 2 1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2018. 3 2. The claimant has not engaged in substantial gainful activity since June 30, 2013, the alleged onset date. 4 5 3. The claimant has the following severe impairments: attention deficit hyperactivity disorder (ADHD), right elbow epicondylitis, bilateral flat feet and cervical radiculopathy. 6 7 4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ///// 1 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, 140-142 (1987). The following summarizes the sequential evaluation: 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. 26 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995). 27 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. 2 28 1 5 5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform medium work as defined in 20 CFR 404.1567(c) except the claimant can sit, stand and/or walk for six hours in an eight-hour day, must alternate sitting and standing in one hour intervals, can frequently reach with the right upper extremity, cannot perform fast-paced work, cannot sustain intense concentration for more than thirty minutes without a five minute change of focus and may be absent or off task five percent of the time. 6 6. The claimant is unable to perform any past relevant work. 7 7. The claimant was born on March 30, 1965 and was 48 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date. 2 3 4 8 9 8. The claimant has at least a high school education and is able to communicate in English. 10 11 9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled,” whether or not the claimant has transferrable job skills. 12 13 10. Considering the claimant’s age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform. 14 15 16 11. The claimant has not been under a disability, as defined in the Social Security Act, from June 30, 2013, through the date of this decision. 17 18 19 AT 13-20. 20 II. ISSUES PRESENTED 21 Plaintiff argues that the ALJ committed the following errors in finding plaintiff not 22 disabled: (1) improperly considered and weighed the opinions of treating physicians Dr. Copeland 23 and Dr. Reza when determining plaintiff’s residual functional capacity (“RFC”); and (2) 24 improperly found plaintiff’s testimony regarding the disabling nature of the symptoms arising 25 from his functional limitations less than fully credible. 26 ///// 27 ///// 28 ///// 3 1 III. LEGAL STANDARDS The court reviews the Commissioner’s decision to determine whether (1) it is based on 2 3 proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record 4 as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial 5 evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340 6 F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means “such relevant evidence as a reasonable 7 mind might accept as adequate to support a conclusion.” Orn v. Astrue, 495 F.3d 625, 630 (9th 8 Cir. 2007) (quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)). “The ALJ is 9 responsible for determining credibility, resolving conflicts in medical testimony, and resolving 10 ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citations omitted). 11 “The court will uphold the ALJ’s conclusion when the evidence is susceptible to more than one 12 rational interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). 13 The record as a whole must be considered, Howard v. Heckler, 782 F.2d 1484, 1487 (9th 14 Cir. 1986), and both the evidence that supports and the evidence that detracts from the ALJ’s 15 conclusion weighed. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not 16 affirm the ALJ’s decision simply by isolating a specific quantum of supporting evidence. Id.; see 17 also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the 18 administrative findings, or if there is conflicting evidence supporting a finding of either disability 19 or nondisability, the finding of the ALJ is conclusive, see Sprague v. Bowen, 812 F.2d 1226, 20 1229-30 (9th Cir. 1987), and may be set aside only if an improper legal standard was applied in 21 weighing the evidence. See Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). 22 IV. 23 ANALYSIS A. 24 The ALJ did not Erroneously Consider and Weigh the Opinions of Dr. Copeland and Dr. Reza 25 First, plaintiff argues that the ALJ erred in his consideration and weighing of the medical 26 opinions provided by Dr. Copeland, a treating psychiatrist, and Dr. Reza, a treating family 27 practitioner. 28 ///// 4 1 To evaluate whether an ALJ properly rejected a medical opinion, in addition to 2 considering its source, the court considers whether (1) contradictory opinions are in the record, 3 and (2) clinical findings support the opinions. An ALJ may reject an uncontradicted opinion of a 4 treating or examining medical professional only for “clear and convincing” reasons. Lester, 81 5 F.3d at 831. In contrast, a contradicted opinion of a treating or examining professional may be 6 rejected for “specific and legitimate” reasons that are supported by substantial evidence. Id. at 7 830. While a treating professional’s opinion generally is accorded superior weight, if it is 8 contradicted by a supported examining professional’s opinion (e.g., supported by different 9 independent clinical findings), the ALJ may resolve the conflict. Andrews v. Shalala, 53 F.3d 10 1035, 1041 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). In 11 any event, the ALJ need not give weight to conclusory opinions supported by minimal clinical 12 findings. Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999) (treating physician’s conclusory, 13 minimally supported opinion rejected); see also Magallanes, 881 F.2d at 751. The opinion of a 14 non-examining professional, without other evidence, is insufficient to reject the opinion of a 15 treating or examining professional. Lester, 81 F.3d at 831. 16 1. Dr. Copeland’s Opinions 17 On January 7, 2014, Dr. Copeland conducted an examination of plaintiff’s mental 18 condition and, on November 19, 2014, provided a medical source statement opining on the extent 19 of plaintiff’s mental impairments based on that examination. AT 553-57. In his medical source 20 statement, Dr. Copeland opined that plaintiff had a “good” ability to interact appropriately with 21 the public, meaning that plaintiff’s mental impairments did not significantly limit him from 22 performing that activity. AT 556. Dr. Copeland opined further that plaintiff had a “fair” ability 23 to perform the following workplace functions: understand, remember, and carry out simple and 24 complex instructions; maintain concentration, attention, and persistence; and interact 25 appropriately with supervisors and the public. Id. Dr. Copeland defined a “fair” ability to mean 26 that plaintiff’s capacity to perform a given workplace activity was impacted by his mental 27 impairments, “but that the degree/extent of the impairment needs to be further described.” Id. 28 Finally, Dr. Copeland opined that plaintiff had a “poor” ability to perform activities within a 5 1 schedule and maintain regular attendance, complete a normal workday and workweek without 2 interruptions from psychologically based symptoms, and respond appropriately to changes in a 3 work setting. Id. Copeland defined a “poor” ability to mean that the evidence supports the 4 conclusion that plaintiff “cannot usefully perform or sustain the activity.” Id. 5 On July 27, 2015, Dr. Copeland filled out a mental impairment questionnaire providing an 6 additional opinion regarding the extent of the functional limitations caused by plaintiff’s mental 7 impairments. AT 636-40. In this questionnaire, Dr. Copeland noted that the last time he had 8 conducted an examination of plaintiff was in January of 2014. AT 636. With regard to the extent 9 of plaintiff’s mental limitations, Dr. Copeland opined that plaintiff would have “none-to-mild” 10 limitations in any functional area relating to social interactions, and with regard to the ability to 11 work in coordination with or near others without being distracted by them. AT 639. Dr. 12 Copeland opined further that plaintiff would have “moderate” limitations with regard to the 13 following abilities: understand, remember, and carry out simple and detailed instructions; 14 maintain attention and concentration for extended periods; perform activities within a schedule 15 and consistently be punctual; sustain ordinary routine without supervision; make simple work- 16 related decisions; complete a workday without interruptions from psychological symptoms; 17 perform at a consistent pace without rest periods of unreasonable length or frequency; respond to 18 workplace changes; be aware of hazards and take appropriate precautions; travel to unfamiliar 19 places or use public transportation; set realistic goals; and make plans independently. Id. Dr. 20 Copeland also opined that plaintiff had a “moderate-to-marked” limitation with regard to the 21 ability to remember locations and work-like procedures. Id. Finally, Dr. Copeland opined that 22 plaintiff also suffered from “severe distractibility,” and would likely be absent from work more 23 than 3 times per month as a result of his impairments. AT 640. 24 The ALJ assigned “little weight” to Dr. Copeland’s opinions because “they are 25 inconsistent with the medical records, which revealed generally benign results and they appear to 26 rely quite heavily on the claimant’s subjective complaints.” AT 16. Plaintiff contends that 27 neither of the ALJ’s reasons for discounting Dr. Copeland’s opinions was supported by 28 substantial evidence because the medical evidence in the record actually provides findings that 6 1 support Dr. Copeland’s opinions regarding the extent of plaintiff’s mental impairments, and that 2 correspond with plaintiff’s reported symptoms. The court finds plaintiff’s argument unavailing. 3 First, the ALJ determined that Dr. Copeland’s opinions were not supported by the other 4 medical evidence in the record. An ALJ may properly discount a treating physician’s opinion 5 when it is only minimally supported by the other medical evidence in the record. Meanel, 172 6 F.3d at 1113 (discounting treating physician’s conclusory, minimally supported opinion); see also 7 Magallanes, 881 F.2d at 751. Here, substantial evidence exists in the record indicating that the 8 symptoms stemming from plaintiff’s ADHD were not as impactful as Dr. Copeland opined. E.g., 9 AT 309, 363-64, 382, 479-80, 626, 646, 655. The ALJ properly relied on such benign findings in 10 the record to determine that Dr. Copeland’s opinions were entitled to only little weight. Plaintiff 11 argues that the medical findings in the record actually support the mental functional limitations 12 Dr. Copeland opined. However, even assuming that there are potentially multiple rational 13 interpretations of those medical findings, the ALJ’s reasonable conclusion that that evidence does 14 not support the degree of limitation Dr. Copeland opined must be upheld. See Tommasetti, 533 15 F.3d at 1038 (“The court will uphold the ALJ’s conclusion when the evidence is susceptible to 16 more than one rational interpretation.”). 17 Furthermore, the ALJ properly determined that the opinion of Dr. Sanders, plaintiff’s 18 treating psychologist, better reflected the findings and observations contained in plaintiff’s 19 medical records regarding his ADHD. Indeed, Dr. Sanders determined that plaintiff’s ADHD 20 caused only mild impairment in concentration and memory, and caused him to be limited in a 21 manner that left him with a “good” to “fair” ability to perform other mental workplace activities. 22 AT 290-92. The ALJ was permitted to interpret the medical evidence in the record in the manner 23 that he did and determine that it better supported Dr. Sanders’ opinion, thus entitling it to greater 24 weight than Dr. Copeland’s opinion. See Burkhart v. Bowen, 856 F.2d 1335, 1339 (9th Cir. 25 1988) (holding that the ALJ properly determined that the “arguably ‘conflicting clinical 26 evidence’” in the record supported the opinion of one of the claimant’s treating physicians over 27 that of another treating physician, thus entitling the former treating physician’s opinion to greater 28 weight than the opinion of the latter treating physician). 7 Second, the ALJ also discounted Dr. Copeland’s opinions because they appeared to rely 1 2 too heavily on plaintiff’s own subjective complaints. Given that the more limiting aspects of Dr. 3 Copeland’s opinion appear to track plaintiff’s own complaints regarding the extent of his 4 symptoms stemming from his ADHD, it was proper and reasonable for the ALJ to cite to the 5 apparent reliance on plaintiff’s subjective complaints as an additional reason for discounting Dr. 6 Copeland’s opinion. See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 7 2004) (upholding ALJ’s decision to discount treating physician’s opinion when it was “in the 8 form of a checklist, did not have supportive objective evidence, was contradicted by other 9 statements and assessments of [the claimant’s] medical condition, and was based on [the 10 claimant’s] subjective descriptions of pain”). 11 In sum, the ALJ provided multiple specific and legitimate reasons for assigning only 12 “little weight” to Dr. Copeland’s opinions that were supported by substantial evidence in the 13 record. Accordingly, the court finds that the ALJ did not err in considering and weighing Dr. 14 Copeland’s opinion. 15 2. Dr. Reza’s Opinions On September 12, 2014, Dr. Reza completed a form regarding the extent of plaintiff’s 16 17 physical functional limitations. AT 674. In this assessment, Dr. Reza noted that plaintiff’s 18 primary condition was “ADHD combined type,” and described that condition as chronic, 19 progressive, and permanent. Id. With regard to plaintiff’s physical impairments, Dr. Reza opined 20 that plaintiff could walk up to 2 miles, and stand for 6 hours or more in an 8-hour workday. Id. 21 Dr. Reza also opined that plaintiff had no limitations with regard to sitting, using stairs, stooping, 22 bending, twisting, and exposure to temperature extremes. Id. Dr. Reza opined further that 23 plaintiff could lift up to 100 pounds, and carry up to 60 pounds. Id. Dr. Reza also noted that 24 plaintiff had an “[i]nability to concentrate due to ADHD preventing him from getting 25 employment.” Id. Finally, Dr. Reza stated his belief that plaintiff could not return to competitive 26 employment if the work demands were at or below the functional limitations Dr. Reza opined. Id. 27 ///// 28 ///// 8 Dr. Reza also completed a medical source statement regarding the extent of plaintiff’s 1 2 physical limitations on November 20, 2014. AT 675-76. In this medical source statement, Dr. 3 Reza opined that plaintiff had no lifting or carrying restrictions, could stand and/or walk for about 4 6 hours in an 8-hour workday, and sit for less than 6 hours total in an 8-hour workday. AT 675. 5 Dr. Reza further expounded upon his opined sitting restriction by noting that plaintiff could sit for 6 a total of only 30 minutes at a time because plaintiff “is hyperactive and fidget[s].” Id. Dr. Reza 7 also opined that plaintiff would need to alternate between standing and sitting, but that normal 8 breaks and lunch periods would be sufficient to address that need. Id. Dr. Reza opined further 9 that plaintiff could frequently climb and kneel, but could only occasionally balance, stoop, 10 crouch, or crawl. AT 676. Dr. Reza determined that plaintiff could constantly reach and feel and 11 frequently handle and finger bilaterally using his upper extremities. Id. Finally, Dr. Reza opined 12 that plaintiff was restricted from exposure to heights and dust due to seasonal allergies. Id. Dr. 13 Reza described plaintiff’s prognosis as “fair.” Id. 14 On April 17, 2015, Dr. Reza completed a disability impairment questionnaire, in which he 15 provided a third opinion regarding plaintiff’s functional limitations. AT 600-04. Dr. Reza 16 diagnosed plaintiff with “ADHD combined type,” and noted that plaintiff’s primary symptoms 17 were an “[i]nability to focus and concentrate.” AT 600-01. With regard to functional limitations, 18 Dr. Reza opined that plaintiff could sit, stand and/or walk for a total of over 6 hours during an 8- 19 hour workday. AT 602. Dr. Reza opined further that plaintiff could frequently lift and/or carry 20 up to 50 pounds frequently and over 50 pounds occasionally. Id. Dr. Reza also opined that 21 plaintiff had no restrictions regarding reaching, handling, or fingering. AT 603. Finally, Dr. 22 Reza opined that plaintiff’s symptoms would likely increase if plaintiff were placed in a 23 competitive work environment because plaintiff’s “inability to concentrate may create anxiety.” 24 Id. However, Dr. Reza also noted that plaintiff’s symptoms would “rarely” be severe enough to 25 cause any interference with attention and concentration during an 8-hour workday, and would 26 cause plaintiff be absent from work “[l]ess than once a month.” AT 603-04. 27 ///// 28 ///// 9 1 The ALJ found Dr. Reza’s opinion regarding the extent of plaintiff’s physical impairments 2 “persuasive because it is based upon a significant treatment history and is consistent with 3 [plaintiff’s] admitted abilities.” AT 17. Accordingly, the ALJ assigned “significant weight” to 4 Dr. Reza’s opinion. Id. Plaintiff argues, however, that the ALJ improperly ignored certain 5 observations Dr. Reza made regarding plaintiff’s mental condition, and focused only on Dr. 6 Reza’s opinion addressing plaintiff’s physical limitations to support his RFC determination. 7 Specifically, plaintiff contends that Dr. Reza opined that plaintiff’s ADHD rendered him unable 8 to concentrate sufficiently for him to obtain employment, a finding the ALJ did not address in his 9 discussion of Dr. Reza’s opinion. Plaintiff asserts further that the ALJ also failed to address Dr. 10 Reza’s finding that plaintiff was hyperactive and fidgety, which Dr. Reza opined rendered 11 plaintiff able to sit for only 30 minutes at a time. Finally, plaintiff contends that the ALJ failed to 12 consider Dr. Reza’s finding that plaintiff’s inability to concentrate may create anxiety, and that 13 plaintiff’s symptoms could worsen if plaintiff were in a competitive work environment. These 14 arguments are without merit. 15 First, Dr. Reza noted in his August 24, 2014 opinion regarding plaintiff’s physical 16 functional limitations that plaintiff had an “[i]nability to concentrate due to ADHD preventing 17 him from getting employment.” AT 674 (emphasis added). Such a finding did not necessarily 18 mean that plaintiff’s ADHD precluded him from performing work-related functions, which is the 19 relevant inquiry for purposes of determining entitlement to DIB. See Lester, 81 F.3d at 828, n.5. 20 Rather, similar to what plaintiff reported during the administrative hearing, see AT 56-58, this 21 observation merely noted that the symptoms stemming from plaintiff’s ADHD prevented him 22 from getting any of the jobs to which he had applied. Moreover, while Dr. Reza also noted in that 23 same opinion that he did not believe that plaintiff could return to competitive employment if the 24 work demands were at or below the functional level he opined, the ALJ was not required to adopt 25 that conclusion—or the conclusion that plaintiff’s ADHD precluded plaintiff from employment, 26 to the extent such a conclusion could be drawn from Dr. Reza’s opinion—in determining 27 plaintiff’s RFC. See 20 C.F.R. § 404.1527(d)(1) (“A statement by a medical source that you are 28 ‘disabled’ or ‘unable to work’ does not mean that we will determine that you are disabled.”); 10 1 Allen v. Comm’r of Soc. Sec., 498 Fed. App’x 696, 696 (9th Cir. 2012) (unpublished) (citing 20 2 C.F.R. § 404.1527(d)(1)-(2)) (“A treating physician’s opinion on the availability of jobs and 3 whether a claimant is disabled are opinions on issues reserved to the Commissioner.”). “A 4 treating source’s opinion on issues reserved to the Commissioner can never be entitled to 5 controlling weight or given special significance.” Allen, 498 Fed. App’x at 696 (citing SSR 96- 6 5p, 1996 WL 374183 *5). Accordingly, the ALJ did not commit prejudicial error by not 7 addressing these aspects of Dr. Reza’s August 24, 2014 opinion. Second, the other two aspects of Dr. Reza’s opinions plaintiff contends the ALJ failed to 8 9 consider when addressing those opinions are not actual estimations regarding plaintiff’s 10 functional capacity, but rather symptoms Dr. Reza observed and took into consideration when 11 developing his opinions regarding plaintiff’s physical functional limitations. The ALJ considered 12 all of the physical functional limitations Dr. Reza opined, reasonably found those opined 13 limitations persuasive and consistent with the rest of the record, and properly incorporated those 14 limitations into his overall RFC determination. AT 17. Such an assessment was proper and 15 supported by substantial evidence in the record. See Tackett, 180 F.3d at 1097. Accordingly, the 16 court finds that plaintiff’s argument that the ALJ erred in assessing Dr. Reza’s opinions lacks 17 merit. 18 A. The ALJ did not err in Rendering his Adverse Credibility Determination with Regard to Plaintiff’s Testimony 19 Second, plaintiff argues that the ALJ erred in finding plaintiff’s testimony that his 20 21 impairments caused debilitating symptoms less than fully credible. 22 The ALJ determines whether a disability applicant is credible, and the court defers to the 23 ALJ’s discretion if the ALJ used the proper process and provided proper reasons. See, e.g., 24 Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1995). If credibility is critical, the ALJ must make an 25 explicit credibility finding. Albalos v. Sullivan, 907 F.2d 871, 873-74 (9th Cir. 1990); Rashad v. 26 Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990) (requiring explicit credibility finding to be 27 supported by “a specific, cogent reason for the disbelief”). 28 ///// 11 1 In evaluating whether subjective complaints are credible, the ALJ should first consider 2 objective medical evidence and then consider other factors. Bunnell v. Sullivan, 947 F.2d 341, 3 344 (9th Cir. 1991) (en banc). If there is objective medical evidence of an impairment, the ALJ 4 then may consider the nature of the symptoms alleged, including aggravating factors, medication, 5 treatment and functional restrictions. See id. at 345-47. The ALJ also may consider: (1) the 6 applicant’s reputation for truthfulness, prior inconsistent statements or other inconsistent 7 testimony, (2) unexplained or inadequately explained failure to seek treatment or to follow a 8 prescribed course of treatment, and (3) the applicant’s daily activities. Smolen v. Chater, 80 F.3d 9 1273, 1284 (9th Cir. 1996); see generally SSR 96-7p; SSR 95-5p; SSR 88-13. Work records, 10 physician and third party testimony about nature, severity and effect of symptoms, and 11 inconsistencies between testimony and conduct also may be relevant. Light v. Social Security 12 Administration, 119 F.3d 789, 792 (9th Cir. 1997). A failure to seek treatment for an allegedly 13 debilitating medical problem may be a valid consideration by the ALJ in determining whether the 14 alleged associated pain is not a significant non-exertional impairment. See Flaten v. Secretary of 15 HHS, 44 F.3d 1453, 1464 (9th Cir. 1995). The ALJ may rely, in part, on his or her own 16 observations, see Quang Van Han v. Bowen, 882 F.2d 1453, 1458 (9th Cir. 1989), which cannot 17 substitute for medical diagnosis. Marcia v. Sullivan, 900 F.2d 172, 177 n.6 (9th Cir. 1990). 18 “Without affirmative evidence showing that the claimant is malingering, the Commissioner’s 19 reasons for rejecting the claimant’s testimony must be clear and convincing.” Morgan v. 20 Commissioner of Social Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). Here, the ALJ found plaintiff’s testimony regarding the intensity, persistence, and limiting 21 22 effects of the symptoms stemming from his impairments to be not entirely credible for the 23 following reasons: (1) plaintiff made inconsistent statements regarding matters relevant to the 24 issue of disability; (2) plaintiff failed to follow up on recommended treatment; (3) plaintiff’s 25 testimony conflicted with the objective medical evidence in the record; and (4) plaintiff’s reported 26 activities conflicted with plaintiff’s claims of disabling symptoms. AT 17-19. 27 ///// 28 ///// 12 1 First, the ALJ discounted plaintiff’s testimony because plaintiff provided inconsistent 2 statements regarding the onset date of the symptoms stemming from his ADHD. AT 18. Indeed, 3 as the ALJ noted in his decision, plaintiff described to his psychiatrist at the Veterans’ 4 Administration (“VA”) on March 15, 2013 that he had had “a full spectrum of ADHD . . . that 5 ha[d] been present since his childhood as early as he could remember.” AT 18, 659. Plaintiff 6 also told the VA psychiatrist that “he has always been hyperactive and this was noted at school,” 7 and that “he was identified by teachers for his hyperactive behaviors.” AT 659. However, 8 plaintiff later began telling his treating physicians that the symptoms arising from his ADHD 9 “started sometime around 2005,” and that they “started abruptly” at that time. AT 607, 680. 10 While plaintiff asserts that the ALJ relied only on this single inconsistency to support his 11 rationale, this does not mean that the ALJ erred by including that observation as one reason in 12 support of his adverse credibility determination. Indeed, it is proper for an ALJ to rely on the 13 claimant’s inconsistent statements in the record to support a determination that the claimant’s 14 testimony is not credible. See, e.g., Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) 15 (upholding ALJ’s adverse credibility determination based on the claimant’s inconsistent 16 statements regarding her alcohol and drug use); Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th 17 Cir. 2001) (ALJ may use ordinary techniques of credibility evaluation, such as inconsistent 18 statements); Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991) (ALJ may discredit claimant’s 19 allegations based on inconsistencies in the testimony or on relevant character evidence). “One 20 strong indication of the credibility of an individual’s statements is their consistency, both 21 internally and with other information in the case record.” Social Security Ruling 96-7p, 1996 WL 22 374186, at *5. Here, the ALJ properly cited to plaintiff’s inconsistent statements in the record 23 regarding the onset of his symptoms relating to his ADHD as one reason in support of his adverse 24 credibility determination. 25 Second, the ALJ claimed that the record shows that plaintiff failed to follow through on 26 all of the treatment his physicians recommended, which suggested to the ALJ that the symptoms 27 stemming from plaintiff’s impairments were not as debilitating as he alleged. AT 18. The 28 claimant’s failure to seek treatment or follow a prescribed course of treatment is a proper reason 13 1 for discounting the claimant’s pain and symptom testimony. See Burch v. Barnhart, 400 F.3d 2 676, 681 (9th Cir. 2005); Molina v. Astrue, 674 F.3d 1104, 1113-14 (9th Cir. 2012) (citation and 3 quotation marks omitted) (“We have long held that, in assessing a claimant’s credibility, the ALJ 4 may properly rely on unexplained or inadequately explained failure to seek treatment or to follow 5 a prescribed course of treatment . . . . Moreover, a claimant’s failure to assert a good reason for 6 not seeking treatment, or a finding by the ALJ that the proffered reason is not believable, can cast 7 doubt on the sincerity of the claimant’s pain testimony.”). Plaintiff argues, however, that the 8 ALJ’s determination that plaintiff failed to follow through with recommended treatment is not 9 supported by substantial evidence in the record because plaintiff’s treatment records actually 10 demonstrate that plaintiff had been diligent in taking his prescribed medications and following 11 through with recommended medical treatment, and had made appropriate attempts to seek 12 medical solutions to his symptoms. However, even assuming, without deciding, that substantial 13 evidence in the record did not support this reason to discount plaintiff’s testimony, the error is 14 harmless because the ALJ provided several other valid reasons for only partially crediting 15 plaintiff’s testimony discussed both above and below. See Molina, 674 F.3d at 1115 (harmless 16 error when ALJ provided one or more invalid reasons for disbelieving a claimant’s testimony, but 17 also provided valid reasons that were supported by the record). 18 The ALJ also noted that the medical evidence in the record did not support the degree of 19 limitation to which plaintiff testified. AT18-19. As the ALJ noted in his decision, the mental 20 status notes from plaintiff’s physicians reveal findings that reasonably indicate that the symptoms 21 arising from plaintiff’s ADHD were not to the degree plaintiff alleged. E.g., AT 309, 363-64, 22 382, 479-80, 626, 646, 655. With regard to plaintiff’s physical impairments, the ALJ found that 23 the examination notes in the record demonstrate largely normal results in areas such as strength, 24 gait, stance, deep tendon reflexes, range of motion, muscle tone, and grip strength, which 25 conflicted with plaintiff’s claims of debilitating physical impairment, AT 19, a finding that is 26 supported by the record, e.g., AT 578, 581-85, 593. The ALJ also highlighted the fact that the 27 consultative examiner regarding plaintiff’s physical impairments noted that plaintiff could walk 28 into the examination room without difficulty, sit comfortably, and transfer from a chair to 14 1 examination table without difficulty, findings which the ALJ reasonably found to conflict with 2 plaintiff’s allegations of severe musculoskeletal pain. AT 19, 582. Plaintiff asserts that the ALJ 3 essentially cited to only the most benign aspects of the medical examination records in the record 4 to support his conclusion, while completely ignoring other aspects of those same records that 5 support plaintiff’s allegations of debilitating symptoms. However, the mere fact that plaintiff 6 advances a different interpretation of the medical examination records does not mean that the ALJ 7 committed prejudicial error in relying on that evidence to support his adverse credibility 8 determination; the ALJ’s interpretation of that evidence as conflicting with the extreme 9 limitations plaintiff alleged was reasonable and based on substantial evidence. See Tommasetti, 10 533 F.3d at 1038 (“The court will uphold the ALJ’s conclusion when the evidence is susceptible 11 to more than one rational interpretation.”). Furthermore, although lack of medical evidence 12 cannot form the sole basis for discounting plaintiff’s subjective symptom testimony, it is 13 nevertheless a relevant factor for the ALJ to consider. Burch, 400 F.3d at 681. Accordingly, the 14 ALJ did not err in citing to the lack of objective medical evidence supporting plaintiff’s pain and 15 symptom testimony as one reason in support of his adverse credibility determination. 16 Finally, the ALJ also cited to the fact that some of plaintiff’s reported activities conflicted 17 with his claims of disabling symptoms. AT 19. “While a claimant need not vegetate in a dark 18 room in order to be eligible for benefits, the ALJ may discredit a claimant’s testimony when the 19 claimant reports participation in everyday activities indicating capacities that are transferable to a 20 work setting . . . Even where those activities suggest some difficulty functioning, they may be 21 grounds for discrediting the claimant’s testimony to the extent that they contradict claims of a 22 totally debilitating impairment.” Molina, 674 F.3d at 1112-13 (citations and quotation marks 23 omitted); see also Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005) (ALJ properly considered 24 claimant’s ability to care for her own needs, cook, clean, shop, interact with her nephew and 25 boyfriend, and manage her finances and those of her nephew in the credibility analysis); Morgan 26 v. Comm’r of Soc. Sec., 169 F.3d 595, 600 (9th Cir. 1999) (ALJ’s determination regarding 27 claimant’s ability to “fix meals, do laundry, work in the yard, and occasionally care for his 28 friend’s child” was a specific finding sufficient to discredit the claimant’s credibility). 15 1 Here, in particular, the ALJ cited to the fact that plaintiff “had recently refinished his 2 kitchen and had performed other projects around the house” was inconsistent with plaintiff’s 3 allegations of severe musculoskeletal impairment. AT 19. This finding is substantially supported 4 by plaintiff’s statements to a treating psychiatrist on April 30, 2015 that “he refinished his kitchen 5 cabinets and ha[d] been doing some other projects around the house.” AT 610. The ALJ also 6 noted more generally that plaintiff’s then-recent visit to Hawaii with his wife and another couple 7 tended to “suggest that [plaintiff’s] alleged symptoms and limitations may have been overstated.” 8 AT 19. This observation was also substantially supported by the evidence in the record. AT 680. 9 The activities the ALJ cited to in support of his adverse credibility determination reasonably 10 suggest that plaintiff’s impairments were not as debilitating as plaintiff alleged. Accordingly, it 11 was proper for the ALJ to mention those activities in support of his conclusion regarding 12 plaintiff’s credibility. See Molina, 674 F.3d at 1112-13. 13 In sum, because the ALJ provided multiple clear and convincing reasons to support his 14 adverse credibility determination, each of which was supported by substantial evidence from the 15 record, the court finds that that determination was not made in error. 16 V. CONCLUSION 17 For the reasons stated herein, IT IS HEREBY RECOMMENDED that: 18 1. Plaintiff’s motion for summary judgment (ECF No. 11) be denied; 19 2. The Commissioner’s cross-motion for summary judgment (ECF No. 12) be granted; 20 and 21 3. Judgment be entered for the Commissioner. 22 These findings and recommendations are submitted to the United States District Judge 23 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 24 days after being served with these findings and recommendations, any party may file written 25 objections with the court and serve a copy on all parties. Such a document should be captioned 26 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 27 shall be served on all parties and filed with the court within fourteen (14) days after service of the 28 objections. The parties are advised that failure to file objections within the specified time may 16 1 waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th 2 Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 3 Dated: May 15, 2017 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 4 5 6 11 tarr1588.ss 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17

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