Crum v. Commissioner of Social Security

Filing 24

ORDER signed by Magistrate Judge Kendall J. Newman on 3/20/18 ORDERING that Plaintiffs motion for summary judgment (ECF No. 18 ) is DENIED;the Commissioners cross-motion for summary judgment (ECF No. 22 ) is GRANTED;the final decision of the Commissioner is AFFIRMED; the Clerk shall close this case. CASE CLOSED (Becknal, R)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

MICHAEL SHANE CRUM,

12

Plaintiff,

13
14
15

No. 16-cv-02795-KJN

v.

ORDER

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

16
17

Plaintiff Michael Shane Crum seeks judicial review of a final decision by the

18
19

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

20

Security Income (“SSI”) under Title XVI of the Social Security Act (“Act”).1 In his motion for

21

summary judgment, plaintiff principally argues that the decision of the administrative law judge

22

(“ALJ”) is based upon legal error and is not supported by substantial evidence in the record. (See

23

ECF No. 18.) The Commissioner opposed plaintiff’s motion and filed a cross-motion for

24

summary judgment. (ECF No. 22.)
After carefully considering the record and the parties’ briefing, the court DENIES

25
26

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

27
28

1

This action was referred to the undersigned pursuant to Local Rule 302(c)(15).
1

1

summary judgment, and AFFIRMS the Commissioner’s final decision.

2

I.

BACKGROUND

3

Plaintiff was born on July 26, 1967, and has completed high school but did not graduate or

4

obtain a GED.2 (Administrative Transcript (“AT”) 36–37, 242, 263.) On September 25, 2012,

5

plaintiff applied for SSI, alleging that his disability began on February 4, 2012. (AT 10, 242.)

6

Plaintiff claimed that he was disabled due to a broken left leg. (AT 262.) After plaintiff’s

7

application was denied initially and on reconsideration, an ALJ conducted a hearing on July 9,

8

2015. (AT 26–85.) The ALJ subsequently issued a decision dated July 27, 2015, determining

9

that plaintiff had not been under a disability as defined in the Act, from September 25, 2012, the

10

date the application was filed, through the date of the ALJ’s decision. (AT 10–19.) The ALJ’s

11

decision became the final decision of the Commissioner when the Appeals Council denied

12

plaintiff’s request for review on September 19, 2016. (AT 1–3.) Plaintiff then filed this action on

13

November 24, 2016, to obtain judicial review of the Commissioner’s final decision. (ECF No. 1.)

14

II.

15

ISSUES PRESENTED
On appeal, plaintiff raises the following issues: (1) whether the ALJ improperly

16

discredited the medical opinion of Lynne Fiore, Ph.D.; (2) whether the ALJ erred at step two; and

17

(3) whether the ALJ improperly discounted plaintiff’s credibility.3

18

III.

LEGAL STANDARD
The court reviews the Commissioner’s decision to determine whether (1) it is based on

19
20

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

21

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

22

evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340

23

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

24

mind might accept as adequate to support a conclusion.” Orn v. Astrue, 495 F.3d 625, 630 (9th

25

2

26
27
28

Because the parties are familiar with the factual background of this case, including plaintiff’s
medical and mental health history, the court does not exhaustively relate those facts in this order.
The facts related to plaintiff’s impairments and treatment will be addressed insofar as they are
relevant to the issues presented by the parties’ respective motions.
3

Plaintiff’s opening brief raises the issues in a somewhat different order.
2

1

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

2

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

3

ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citation omitted). “The

4

court will uphold the ALJ’s conclusion when the evidence is susceptible to more than one rational

5

interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).
“[A] reviewing court, in dealing with a determination or judgment which an

6
7

administrative agency alone is authorized to make, must judge the propriety of such action solely

8

by the grounds invoked by the agency.” Sec. & Exch. Comm’n v. Chenery Corp., 332 U.S. 194,

9

196 (1947). At the same time, in the context of Social Security appeals, “[a]s a reviewing court,

10

we are not deprived of our faculties for drawing specific and legitimate inferences from the ALJ’s

11

opinion. It is proper for us to read the . . . opinion, and draw inferences . . . if those inferences are

12

there to be drawn.” Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989).

13

IV.

DISCUSSION
Summary of the ALJ’s Findings

14

A.

15

The ALJ evaluated plaintiff’s entitlement to SSI pursuant to the Commissioner’s standard

16

five-step analytical framework.4 At step one, the ALJ concluded that plaintiff has not engaged in

17

4

18
19
20
21
22
23
24
25
26
27
28

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, 14042 (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 her past relevant work? If so, the
3

1

substantial gainful activity since September 25, 2012, the date of his application. (AT 12.) At

2

step two, the ALJ found that plaintiff had the following severe impairments: gastritis, as well as

3

alcohol and marijuana abuse. (Id.) However, at step three the ALJ concluded that plaintiff “does

4

not have an impairment or combination of impairments that meets or medically equals the

5

severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.” (AT 14.)

6

Before proceeding to step four, the ALJ assessed plaintiff’s residual functional capacity

7

(“RFC”), finding that plaintiff could “perform medium work as defined in 20 CFR 416.967(c)

8

except claimant should avoid concentrated exposure to workplace hazards such as heights and

9

dangerous machinery.” (AT 14–15.) At step four, the ALJ determined that plaintiff is unable to

10

perform any past relevant work. (AT 17.) However, at step five, the ALJ found that, in light of

11

plaintiff’s age, education, work experience, RFC, and the vocational expert’s testimony, there

12

were jobs that existed in significant numbers in the national economy that plaintiff could have

13

performed. (Id.) Thus, the ALJ concluded that plaintiff had not been under a disability, as

14

defined in the Act, since September 25, 2012. (AT 18.)

15
16
17
18

B.

Plaintiff’s Substantive Challenges to the Commissioner’s Determinations
1.

Whether the ALJ improperly discredited the medical opinion of Lynne
Fiore, Ph.D.

The weight given to medical opinions depends in part on whether they are proffered by

19

treating, examining, or non-examining professionals. Holohan v. Massanari, 246 F.3d 1195,

20

1201-02 (9th Cir. 2001); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Generally speaking,

21

a treating physician’s opinion carries more weight than an examining physician’s opinion, and an

22
23

claimant is not disabled. If not, proceed to step five.

24

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.

25
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.
4

28

1

examining physician’s opinion carries more weight than a non-examining physician’s opinion.

2

Holohan, 246 F.3d at 1202.

3

To evaluate whether an ALJ properly rejected a medical opinion, in addition to

4

considering its source, the court considers whether (1) there are contradictory opinions in the

5

record; and (2) clinical findings support the opinions. An ALJ may reject an uncontradicted

6

opinion of a treating or examining medical professional only for “clear and convincing” reasons.

7

Lester, 81 F.3d at 830–31. In contrast, a contradicted opinion of a treating or examining

8

professional may be rejected for “specific and legitimate” reasons. Id. at 830. While a treating

9

professional’s opinion generally is accorded superior weight, if it is contradicted by a supported

10

examining professional’s opinion (supported by different independent clinical findings), the ALJ

11

may resolve the conflict. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (citing

12

Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). The regulations require the ALJ to

13

weigh the contradicted treating physician opinion, Edlund, 253 F.3d at 1157,5 except that the ALJ

14

in any event need not give it any weight if it is conclusory and supported by minimal clinical

15

findings. Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (treating physician’s conclusory,

16

minimally supported opinion rejected); see also Magallanes, 881 F.2d at 751. The opinion of a

17

non-examining professional, by itself, is insufficient to reject the opinion of a treating or

18

examining professional. Lester, 81 F.3d at 831.

19

Here, the ALJ considered the March 31, 2015 opinion of treating psychologist Lynne

20

Fiore, Ph.D., who opined “that claimant had limited ability to remember very short and simple

21

instructions or interact appropriately with the public and maintain social behavior . . . would most

22

likely miss four or more days a month due to his condition and would be unable to work on a

23

predictable basis . . . for at least 20 years in the future.” (AT 16, 613–18.)

24

The ALJ gave this opinion little weight, reasoning:
Dr. Fiore’s opinion is inconsistent with other medical opinions of
record that showed claimant’s mental condition to be non-severe.

25
26
27
28

5

The factors include: (1) length of the treatment relationship; (2) frequency of examination;
(3) nature and extent of the treatment relationship; (4) supportability of diagnosis;
(5) consistency; and (6) specialization. 20 C.F.R. § 404.1527.
5

1

Dr. Patricia Heldman, a medical consultant, reviewed the records
on January [18], 2013. She noted that Dr. Porter prescribed
Citalopram but five months later the claimant reported he had not
used it and his anxiety was under reasonably good control. Dr.
Heldman concluded that the claimant’s psychological condition was
non[-]severe [AT 89]. On September 5, 2013, Dr. Hillary Weiss, a
medical consultant, reviewed the record and noted that the claimant
was not in psychological treatment, had not been hospitalized for
psychological care and was not taking any psychotropic
medications. She pointed out that the claimant requested “benzos”
which were refused because of his alcohol use and refused any
other offered psychotropic medication. Dr. Weiss concluded that
the claimant’s psychological condition was non[-]severe [AT 99–
100]. Dr. Fiore’s opinion is not consistent with treatment notes that
reflect claimant’s mental condition as stable. Dr. Fiore had only
treated the claimant six times, since February 24, 2015, at the time
of her medical source statement. Michelle Mercurio, Psy.D., and
Dr. Fiore both signed this statement, suggesting each contributed to
the opinions. Dr. Mercurio’s records reflect brief notes of the
claimant’s subjective complaints. The treatment records of Dr.
Mecurio and Dr. Fiore do not support the lengthy list of signs and
symptoms in the medical source statement [AT 613–18] nor that the
claimant has no useful ability to function. This opinion is partially
based on claimant’s discredited subjective complaints. Thus, Dr.
Fiore’s opinion is given little weight.

2
3
4
5
6
7
8
9
10
11
12
13
14

(AT 16–17.)
Plaintiff asserts that the ALJ erred because she failed to discredit Dr. Fiore’s opinion by

15
16

clear and convincing reasons, which were allegedly required because “none of the nontreating

17

consultative opinions . . . controverted Dr. Fiore’s PTSD diagnosis and opinions based on such

18

diagnosis.” (ECF No. 18 at 17.) However, the opinions of the state agency medical consultants

19

clearly contradict the opinion of Dr. Fiore because each of the consultants found that plaintiff’s

20

psychological condition was non-severe, based upon evidence in the record. (AT 91, 101.)

21

While neither medical consultant specifically opined that plaintiff did not have PTSD, their

22

opinions nonetheless contradict Dr. Fiore’s opinion.

23

Moreover, Dr. Fiore’s opinion consists of plaintiff’s subjective complaints and Dr. Fiore’s

24

conclusions, but is only supported by minimal clinical findings. (AT 613–19.) As such, the ALJ

25

was not required to give this opinion any weight. See Meanel, 172 F.3d at 1114. Nonetheless,

26

the ALJ provided several specific and legitimate reasons, supported by substantial evidence, for

27

giving this opinion little weight.

28

////
6

1

First, the ALJ relied on the inconsistency between the opinions of the state agency

2

medical consultants and the opinion of Dr. Fiore. As explained, this conclusion is supported by

3

the record. Further, the medical consultant’s opinions are themselves supported by substantial

4

evidence in the record—namely evidence that plaintiff’s mental condition was stable and

5

reasonably well controlled. (See AT 326, 330–31.)
Second, the ALJ determined that Dr. Fiore’s opinion is inconsistent with plaintiff’s

6
7

treatment notes. This conclusion is also supported by substantial evidence in the record. For

8

example, on April 27, 2012, plaintiff was treated by Elaine Porter, M.D. for anxiety. (AT 330–

9

31.) Plaintiff sought, and was denied, benzodiazepines. (AT 331.) Instead, Dr. Porter prescribed

10

Citalopram. (Id.) Then, during a September 10, 2012 office visit, plaintiff reported that he was

11

not using the Citalopram and that his “[a]nxiety [was] under reasonable control.” (AT 326.)

12

Plaintiff’s providers later documented that he continued to exhibit drug-seeking behavior for

13

benzodiazepines and narcotics. (AT 883, 891, 944.) Additionally, as Dr. Weiss pointed out,

14

plaintiff has not been hospitalized for any psychological condition. Indeed, plaintiff went without

15

any psychological treatment for years, and only enrolled in treatment a few months before his

16

disability hearing, nearly three years after his application for SSI. (See AT 1032–39.)
Third, the ALJ pointed out that Dr. Fiore’s opinion was based upon only six clinical visits

17
18

that occurred over a six week period, leading up to the March 31, 2015 opinion. (See AT 613.)

19

The ALJ appropriately relied on the rather brief nature of this relationship, as one reason among

20

many to discount the opinion.

21

Importantly, it appears that Dr. Mercurio provided the treatment that served as the basis of

22

Dr. Fiore’s March 31, 2015 opinion. Dr. Mercurio cosigned this opinion (AT 618) and her

23

treatment notes demonstrate that she saw plaintiff six times between February 24, 2015, and

24

March 31, 2015 (AT 1032–34), which is consistent with the reported basis of the opinion. (AT

25

613.) At the same time, the record lacks any independent treatment notes from Dr. Fiore, aside

26

from the check-box mental status examination form that was included with his opinion.6 (AT

27
28

6

It appears likely that there were no additional treatment notes from Dr. Fiore. At a minimum,
the absence of such treatment notes is not an issue because plaintiff does not assert that the ALJ
7

1
2

619.)
Fourth, the ALJ determined that Dr. Mercurio’s treatment notes do not support the lengthy

3

list of signs and symptoms in the opinion, or the conclusion that plaintiff has no useful ability to

4

function. This determination is also supported by the record. Not only are Dr. Mercuiro’s notes

5

brief, but they lack any significant clinical findings. (See AT 1032–34.) Indeed, they appear to

6

largely recount plaintiff’s subjective complaints. (Id.)

7

Fifth, the ALJ also discredited Dr. Fiore’s opinion because it was based upon plaintiff’s

8

subjective complaints that the ALJ otherwise discounted. As explained below, the ALJ

9

appropriately discounted plaintiff’s credibility in the decision. Thus, this was an appropriate

10
11
12

reason, among several, to discredit Dr. Fiore’s opinion.
2.

Whether the ALJ erred at step two

Under the Commissioner’s regulations, an impairment or combination of impairments is

13

deemed to be severe at step two if it “significantly limits your physical or mental ability to do

14

basic work activities.” 20 C.F.R. §§ 404.1520(c), 404.1521(a). As the Ninth Circuit Court of

15

Appeals has explained, “the step-two inquiry is a de minimis screening device to dispose of

16

groundless claims. An impairment or combination of impairments can be found not severe only

17

if the evidence establishes a slight abnormality that has no more than a minimal effect on an

18

individual’s ability to work.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (internal

19

citations and quotation marks omitted).

20

In this case, the ALJ determined that plaintiff had the severe impairments of gastritis, as

21

well as alcohol and marijuana abuse. (AT 12.) However, the ALJ also determined that plaintiff

22

had impairments that were not severe: left leg/ankle fracture; back pain; and mental condition.

23

(AT 13.) Specifically, the ALJ reasoned:

24
25
26
27
28

The claimant sustained a severe fracture of the left distal tibia and
left ankle in February 2012. He underwent successful operative
placement of an intra-tibia rod as well as reduction of the ankle
fracture. He had a post-operative wound infection, which was
treated and resolved. In March 2013, treatment notes document
claimant’s leg was well healed and that he walked with a normal
failed to obtain them or even that any treatment notes are missing from the administrative record.
8

1

gait and no limp. He has possibly a small problem with screw head
in leg which could eventually require removal of hardware, but
claimant is doing well, fully recovered and he did not meet the
durational requirement [AT 322, 428].

2
3

There is diagnosis of back pain, in 2015 [AT 919, 922, 928, 931];
however per 20 CFR 416.909, this impairment does not satisfy the
12 month duration requirement and is thus nonsevere.

4
5

Although the claimant did not allege any mental impairments there
are diagnosis of anxiety and mood disorder in the record. However,
treatment notes showed claimant’s mental condition is controlled
with medication and his anxiety is under reasonably good control
[AT 326, 446].

6
7
8

The claimant’s medically determinable mental impairment of PTSD
and anxiety does not cause more than minimal limitation in the
claimant’s ability to perform basic mental work activities and is
therefore nonsevere.

9
10
11
12

(AT 13.)
The ALJ’s conclusions are supported by the record. First, the ALJ appropriately relied on

13

the statements of plaintiff’s orthopedist, Michael S. Mikulecky, M.D., when concluding that

14

plaintiff had fully recovered from his left leg/ankle fracture. On March 25, 2013, Dr. Mikulecky

15

physically examined plaintiff and observed:

16
17

His leg looks great. It is well healed. He walks with a normal
reciprocal heel-toe gait. There is no limp, but that screw head is a
bit proximal. It is a bit prominent and I do see where that would be
quite irritating if he does a lot of kneeling with his job.

18
19

(AT 428.) Plaintiff asserts that this statement indicates that Dr. Mikulecky opined that plaintiff

20

has a kneeling limitation, which the ALJ inappropriately ignored at step two. (See ECF No. 18 at

21

9.) However, such an interpretation does not necessarily follow from Dr. Mikulecky’s

22

observation. He never stated that plaintiff could not kneel, just that it would be “quite irritating.”

23

At best, this record is ambiguous. Thus, the ALJ appropriately resolved the ambiguity here and

24

determined that plaintiff had no severe impairments from his well healed fracture. See

25

Tommasetti, 533 F.3d at 1038 (“The court will uphold the ALJ’s conclusion when the evidence is

26

susceptible to more than one rational interpretation”).

27
28

However, even if the ALJ committed technical error by ignoring this alleged kneeling
limitation, any error was harmless. See Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012)
9

1

(“we may not reverse an ALJ’s decision on account of an error that is harmless”). The ALJ

2

determined that plaintiff was capable of medium work, except that he should avoid concentrated

3

exposure to workplace hazards such as heights and dangerous machinery. (AT 15.) This RFC

4

necessarily includes a finding that plaintiff is capable of most light and sedentary work.

5

Therefore, even if plaintiff’s RFC ought to also preclude kneeling, there still remain sufficient

6

jobs that he could have performed in the national economy.
As to plaintiff’s back pain, the ALJ accurately determined that the impairment did not

7
8

satisfy the durational requirement. The records demonstrate that his complaints of back pain

9

began in January of 2015, only seven months before the ALJ’s decision. (See AT 19, 919, 922,

10

928, 931.) Furthermore, there is no indication that this pain was even minimally disabling.

11

Indeed, plaintiff reported that his symptoms are “relieved by exercise.” (AT 919.)
Additionally, as explained above, the record supports the ALJ’s conclusion that plaintiff’s

12
13

mental condition was reasonably well controlled. Further, there are no significant clinical

14

findings to support that plaintiff’s mental condition caused anything more than a minimal effect

15

on his ability to work. Moreover, the ALJ appropriately discredited Dr. Fiore’s opinion, which

16

served as the only basis for finding plaintiff had a severe mental impairment.

17

Therefore, substantial evidence supports the ALJ’s determination at step two.

18

Even assuming, without deciding, that the ALJ technically erred by not finding plaintiff’s

19

left leg/ankle fracture, back pain, and mental condition severe for purposes of step two, such error

20

was harmless. See Molina, 674 F.3d at 1111. Because the ALJ found another impairment to be

21

severe at step two, the ALJ proceeded to the subsequent steps of the sequential disability

22

evaluation process. Before proceeding to step four, the ALJ discussed and considered plaintiff’s

23

complaints related to his left leg/ankle fracture, back pain, and mental condition when crafting the

24

RFC. (See AT 15–17.) These complaints were discounted because plaintiff’s credibility was

25

undermined and because they were not sufficiently supported by clinical findings. (Id.)

26

Accordingly, the court finds no prejudicial error at step two.

27

////

28

////
10

1
2
3
4
5
6
7
8
9
10

3.

Whether the ALJ improperly discounted plaintiff’s credibility

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.

12

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

Lingenfelter, 504 F.3d at 1035-36 (citations and quotation marks omitted). “At the same time, the

14

ALJ is not required to believe every allegation of disabling pain, or else disability benefits would

15

be available for the asking. . . .” Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012).

11

16

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

17

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

18

693 (9th Cir. 2009) (quoting Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir.

19

1999)). In weighing a claimant’s credibility, an ALJ may consider, among other things, the

20

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

21

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

22

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

23

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

24

2002) (modification in original) (quoting Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir.

25

1997)). If the ALJ’s credibility finding is supported by substantial evidence in the record, the

26

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

27
28

Here, the ALJ explained that plaintiff’s “medically determinable impairments could
reasonably be expected to cause the alleged symptoms; however [his] statements concerning the
11

1

intensity, persistence and limiting effects of these symptoms are not entirely credible” based upon

2

several specific, clear, and convincing reasons. (AT 15.)

3

i.

Objective medical evidence

4

“[A]fter a claimant produces objective medical evidence of an underlying impairment, an

5

ALJ may not reject a claimant’s subjective complaints based solely on a lack of medical evidence

6

to fully corroborate the alleged severity of pain.” Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir.

7

2005) (citing Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991)). Although lack of medical

8

evidence cannot form the sole basis for discounting plaintiff’s subjective symptom testimony, it is

9

nevertheless a relevant factor for the ALJ to consider. Burch, 400 F.3d at 681.

10

The ALJ observed that plaintiff’s

11

allegations are inconsistent with clinical indications that show that
the claimant’s condition is generally well controlled.
The
claimant’s allegations of pain are seriously disproportionate to the
normal, and no acute findings, revealed on radiographs of the
abdomen and pelvic areas [AT 346, 352, 473, 499–00, 889, 897].
Physical examination have demonstrated only mild epigastric pain,
vascular studies were normal, and labs have been unremarkable
[AT 445–46].

12
13
14
15

17

He testified that even after he stopped dinking there was no change
in his abdominal problems. However, treatment notes reflect that
his episodes of abdominal pain are usually related to alcohol or
when he is out of medication [AT 562, 620].

18

[. . .]

19

[Also], these allegations are inconsistent with medical opinions that
show that the claimant has considerable work-related abilities. For
example, State agency reviewing physicians . . . found claimant’s
mental condition non-severe [AT 91, 101]. There are also no
physical medical opinions in the record, which would support
claimant’s allegations on an inability to work.

16

20
21
22
23
24

(AT 15–16.)
The ALJ’s conclusions are supported by substantial evidence in the record. (See AT 91,

25

101, 346, 352, 445–46, 473, 499–00, 562, 620, 889, 897.) For example, during a July 24, 2014

26

visit with Dr. Porter, plaintiff complained of severe abdominal pain. (AT 445.) However, upon

27

physical examination, his abdomen was normal with no hepatic enlargement, but did show some

28

tenderness. (AT 446.) Dr. Porter observed, “Unsure etiology. Vascular studies were normal.
12

1

Labs have been recently unremarkable, but this persists in waves for a week or so at a time,

2

primarily in the morning. I suspect a strong stress component. . . . I cannot condone his use of

3

Percocet from a friend. He was made no narcotics due to using someone else’s methadone.” (AT

4

446–47.)

5

Therefore, the ALJ appropriately determined that plaintiff’s subjective complaints were

6

not fully corroborated by the objective medical evidence. Importantly, however, the ALJ did not

7

rely on this reason alone to discount plaintiff’s credibility.

8

ii.

Failure to seek seek treatment and failure to follow treatment

9

Failure to seek consistent treatment is a proper consideration when evaluating credibility.

10

See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). “We have long held that, in assessing

11

a claimant’s credibility, the ALJ may properly rely on unexplained or inadequately explained

12

failure to seek treatment or to follow a prescribed course of treatment. . . . Moreover, a claimant’s

13

failure to assert a good reason for not seeking treatment, or a finding by the ALJ that the proffered

14

reason is not believable, can cast doubt on the sincerity of the claimant’s pain testimony.”

15

Molina, 674 F.3d at 1113–14 (citation and quotation marks omitted).

16

The ALJ pointed out that plaintiff had a history of missing appointments with a

17

gastroenterologist, and that he did not seek any psychological treatment for years after his

18

application for SSI. (See AT 16.) This conclusion is supported by the evidence in the record. On

19

December 22, 2014 Dr. Porter observed that plaintiff “was referred to a gastroenterologist, which

20

he did not keep the appointment.” (AT 883.) Also, in July 2014, plaintiff was referred for

21

counseling, which he apparently did not begin until February 2015. (AT 447, 1032–39.)

22

Moreover, the ALJ observed that plaintiff “appeared to be medication seeking . . . tested

23

positive for opiates, methadone[,] benzodiazepines and marijuana [AT 883, 891]. . .” and even

24

though plaintiff “has a history of alcohol and drug abuse, he does not feel that he abuses it, but

25

has been advised that his gastritis might be self-induced as it recurs every time he drinks [AT

26

563]. This observation too is supported by evidence in the record. (See AT 563, 883, 891.) For

27

example, as mentioned above, plaintiff is documented as having used methadone and Percocet

28

that were not prescribed to him. (AT 447.)
13

1

Additionally, in July 2013, plaintiff was admitted to the hospital for his abdominal pain

2

and he told the provider to “load me up with dilaudid [a narcotic pain medication].” (AT 563)

3

The treating physician advised plaintiff “that ‘loading him up’ with pain medication is not an

4

appropriate resolution to his alcohol induced gastritis.” (Id.) Then, in December 2014, another

5

treating physician observed that plaintiff “seems to be a pain medication seeker and he is asking

6

for more and more pain medication in the ER.” (AT 891.)

7

Therefore, the ALJ appropriately relied on this evidence to undermine the credibility of

8

plaintiff’s subjective complaints, as it tends to demonstrate that plaintiff was more interested in

9

obtaining narcotic medication, as opposed to seeking consistent treatment and keeping

10

appointments.

11

iii.

Conservative treatment

Plaintiff’s relatively conservative treatment was also a proper consideration. See

12
13

Tommasetti v. Astrue, 533 F.3d 1035, 1039–40 (9th Cir. 2008) (reasoning that a favorable

14

response to conservative treatment undermines complaints of disabling symptoms); Parra v.

15

Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (“We have previously indicated that evidence of

16

conservative treatment is sufficient to discount a claimant’s testimony regarding severity of an

17

impairment”); Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989). The ALJ accurately and

18

appropriately pointed out that the “[d]ocumented treatment [here] has been conservatively limited

19

to pain medication and routine care.” (AT 16.)

20

iv.

21

Condition can be controlled with medication

Finally, a condition that can be controlled or corrected by medication is not disabling for

22

purposes of determining eligibility for benefits under the Act. See Warre v. Comm’r of Soc. Sec.

23

Admin., 439 F.3d 1001, 1006 (9th Cir. 2006); Montijo v. Sec’y of Health & Human Servs., 729

24

F.2d 599, 600 (9th Cir. 1984); Odle v. Heckler, 707 F.2d 439, 440 (9th Cir. 1983). The ALJ

25

observed that “treatment notes in June 2015, document claimant’s abdominal pain improved with

26

medication.” (AT 16.) This conclusion too is supported by the record. (See AT 944 (plaintiff

27

reported that a prescription of Carafate “helped his stomach pain quite a bit” after an ER visit).

28

////
14

1

V.

CONCLUSION

2

For the foregoing reasons, IT IS HEREBY ORDERED that:

3

1. Plaintiff’s motion for summary judgment (ECF No. 18) is DENIED.

4

2. The Commissioner’s cross-motion for summary judgment (ECF No. 22) is

5

GRANTED.

6

3. The final decision of the Commissioner is AFFIRMED.

7

4. The Clerk of Court shall close this case.

8

IT IS SO ORDERED.

9

Dated: March 20, 2018

10
11
12
14/ss.16-2795.crum.order.msj

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
15