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)

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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 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

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