Mills v. Commissioner of Social Security

Filing 17

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 11/8/2017 RECOMMENDING that Plaintiff's 12 motion for summary judgment be denied. The Commissioner's 13 cross-motion for summary judgment be granted. The final decision of the Commissioner be affirmed, and judgment be entered for the Commissioner. The Clerk of Court be ordered to close this case. 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 CAROL MILLS, 12 Plaintiff, 13 14 15 No. 2:17-cv-00367-JAM-KJN v. FINDINGS AND RECOMMENDATIONS COMMISSIONER OF SOCIAL SECURITY, Defendant. 16 17 Plaintiff Carol Mills seeks judicial review of a final decision by the Commissioner of 18 19 Social Security (“Commissioner”) denying her application for Disability Insurance Benefits 20 (“DIB”) under Title II of the Social Security Act (“Act”).1 In her motion for summary judgment, 21 plaintiff principally argues that the decision of the administrative law judge (“ALJ”) is based 22 upon legal error and is not supported by substantial evidence in the record. (See ECF No. 12.) 23 The Commissioner opposed plaintiff’s motion and filed a cross-motion for summary judgment. 24 (ECF No. 13.) Thereafter, plaintiff filed a reply brief. (ECF No. 14.) After carefully considering the record and the parties’ briefing, the court recommends that 25 26 plaintiff’s motion for summary judgment be DENIED, 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 be GRANTED, and the Commissioner’s final decision be AFFIRMED. 2 I. BACKGROUND Plaintiff was born on November 6, 1967 and has a high school education.2 3 4 (Administrative Transcript (“AT”) 35, 196.) On April 2, 2013, plaintiff applied for DIB, alleging 5 that her disability began on October 25, 2012. (AT 196–98, 207.) Plaintiff claimed that she was 6 disabled due to spondylosis with myelopathy, depressive disorder, hyperlipidemia, hypertensive 7 disorder, anemia, migraine, obesity, asthma, spinal stenosis, and spinal fusion. (AT 282.) After 8 plaintiff’s application was denied initially and on reconsideration, an ALJ conducted a hearing on 9 March 5, 2015. (AT 48–98.) The ALJ subsequently issued a decision dated May 4, 2015, 10 determining that plaintiff had not been under a disability as defined in the Act, from October 25, 11 2012, the alleged onset date, through the date of the ALJ’s decision. (AT 30–39.) The ALJ’s 12 decision became the final decision of the Commissioner when the Appeals Council denied 13 plaintiff’s request for review on December 20, 2016. (AT 1–5.) Plaintiff subsequently filed this 14 action on February 18, 2017, to obtain judicial review of the Commissioner’s final decision. 15 (ECF No. 1.) 16 II. 17 ISSUES PRESENTED On appeal, plaintiff raises the following issues: (1) whether the ALJ improperly weighed 18 opinion evidence in the record and (2) whether the ALJ improperly discounted plaintiff’s 19 credibility. 20 III. LEGAL STANDARD The court reviews the Commissioner’s decision to determine whether (1) it is based on 21 22 proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record 23 as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial 24 evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340 25 F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means “such relevant evidence as a reasonable 26 2 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. 2 1 mind might accept as adequate to support a conclusion.” Orn v. Astrue, 495 F.3d 625, 630 (9th 2 Cir. 2007), quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). “The ALJ is 3 responsible for determining credibility, resolving conflicts in medical testimony, and resolving 4 ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citation omitted). “The 5 court will uphold the ALJ’s conclusion when the evidence is susceptible to more than one rational 6 interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). “[A] reviewing court, in dealing with a determination or judgment which an 7 8 administrative agency alone is authorized to make, must judge the propriety of such action solely 9 by the grounds invoked by the agency.” Sec. & Exch. Comm’n v. Chenery Corp., 332 U.S. 194, 10 196 (1947). At the same time, in the context of Social Security appeals, “[a]s a reviewing court, 11 we are not deprived of our faculties for drawing specific and legitimate inferences from the ALJ’s 12 opinion. It is proper for us to read the paragraph . . . and opinion, and draw inferences . . . if those 13 inferences are there to be drawn.” Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989). 14 IV. DISCUSSION Summary of the ALJ’s Findings 15 A. 16 The ALJ evaluated plaintiff’s entitlement to DIB pursuant to the Commissioner’s standard 17 five-step analytical framework.3 Preliminarily, the ALJ determined that plaintiff meets the 18 3 19 20 21 22 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: 23 24 25 26 27 28 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. 3 1 insured status requirements of the Act through December 31, 2017. (AT 32.) At step one, the 2 ALJ concluded that plaintiff has not engaged in substantial gainful activity since October 25, 3 2012, the alleged onset date. (Id.) At step two, the ALJ found that plaintiff has the following 4 severe impairment: cervical fusion residuals. (Id.) However, at step three the ALJ concluded 5 that plaintiff does not have an impairment or combination of impairments that meets or medically 6 equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. 7 (AT 34.) 8 Before proceeding to step four, the ALJ assessed plaintiff’s residual functional capacity 9 (“RFC”), finding that plaintiff could perform a wide range of light work as defined in 20 C.F.R. 10 11 12 13 14 15 § 404.1567(b), except that plaintiff: is limited to lifting-carrying 20 pounds occasionally and 10 pounds frequently; is limited to sitting six hours and standing-walking six hours in an eight-hour workday; cannot climb ladders, ropes, and scaffolds; is limited to occasional handling and fingering with the left hand; is not able to reach overhead with the left arm; is limited to rotating her neck no more than 120 degrees occasionally; and has full range of motion of her trunk (75 degrees in both directions). 16 (AT 34.) At step four, the ALJ determined that plaintiff was unable to perform any past relevant 17 work. (AT 37.) However, at step five, the ALJ found that, in light of plaintiff’s age, education, 18 work experience, RFC, and the vocational expert’s testimony, there were jobs that existed in 19 significant numbers in the national economy that plaintiff could have performed. (AT 38.) Thus, 20 the ALJ concluded that plaintiff had not been under a disability, as defined in the Act, from 21 October 25, 2012 through May 4, 2015. (AT 38–39.) 22 23 24 25 Step four: Is the claimant capable of performing her past relevant 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. 4 28 1 B. 2 Plaintiff’s Substantive Challenges to the Commissioner’s Determinations 1. 3 Whether the ALJ improperly weighed opinion evidence in the record Plaintiff argues that the ALJ committed reversible error when evaluating the medical 4 opinions in the record because the ALJ “gave no reasons to discount the lifting restrictions or less 5 than occasional handling and fingering limitations” opined by Dr. Pauline Perez, and because the 6 ALJ failed to address the opinion of Dr. Ben Waldau. (ECF No. 12 at 10–11.) 7 The weight given to medical opinions depends in part on whether they are proffered by 8 treating, examining, or non-examining professionals. Holohan v. Massanari, 246 F.3d 1195, 9 1201-02 (9th Cir. 2001); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Generally speaking, 10 a treating physician’s opinion carries more weight than an examining physician’s opinion, and an 11 examining physician’s opinion carries more weight than a non-examining physician’s opinion. 12 Holohan, 246 F.3d at 1202. 13 To evaluate whether an ALJ properly rejected a medical opinion, in addition to 14 considering its source, the court considers whether (1) there are contradictory opinions in the 15 record; and (2) clinical findings support the opinions. An ALJ may reject an uncontradicted 16 opinion of a treating or examining medical professional only for “clear and convincing” reasons. 17 Lester, 81 F.3d at 830–31. In contrast, a contradicted opinion of a treating or examining 18 professional may be rejected for “specific and legitimate” reasons. Id. at 830. While a treating 19 professional’s opinion generally is accorded superior weight, if it is contradicted by a supported 20 examining professional’s opinion (supported by different independent clinical findings), the ALJ 21 may resolve the conflict. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (citing 22 Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). The regulations require the ALJ to 23 weigh the contradicted treating physician opinion, Edlund, 253 F.3d at 1157,4 except that the ALJ 24 in any event need not give it any weight if it is conclusory and supported by minimal clinical 25 findings. Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (treating physician’s conclusory, 26 27 28 4 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 minimally supported opinion rejected); see also Magallanes, 881 F.2d at 751. The opinion of a 2 non-examining professional, by itself, is insufficient to reject the opinion of a treating or 3 examining professional. Lester, 81 F.3d at 831. 4 5 Additionally, a conclusory statement by a treating physician that a claimant is disabled is not binding on the Commissioner. As the SSA’s regulations explain: 6 We are responsible for making the determination or decision about whether you meet the statutory definition of disability. In so doing, we review all of the medical findings and other evidence that support a medical source’s statement that you are disabled. A statement by a medical source that you are “disabled” or “unable to work” does not mean that we will determine that you are disabled. 7 8 9 10 20 C.F.R. § 404.1527(d)(1). “In addition, the regulations give more weight to opinions that are 11 explained than to those that are not.” Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001) 12 (citing 20 C.F.R. § 404.1527(d)(3)). 13 14 i. Opinions of Dr. Pauline Perez Dr. Perez provided three different medical source statements, regarding plaintiff’s 15 limitations. (See AT 603–05, 613–15, 687–89.) Each of these opinions was presented on a 16 conclusory check-box form, with only minimal explanation. (Id.) Because these opinions were 17 conclusory and supported by minimal clinical findings, the ALJ was not required to give them 18 any weight. See Meanel, 172 F.3d at 1114. However, while the ALJ did not adopt all of the 19 limitations opined by Dr. Perez, he did not entirely discount Dr. Perez’s opinions either. 20 [The ALJ gave] some weight to the general conclusions regarding limits on lifting and using her arms to reach and manipulate. [Concluding that] her extreme limitations, such as never being able to bend and zero percent of the left hand for handling and no reaching bilaterally are not at all supported by the treatment notes or other evidence in the record. These limitations are inconsistent with the fact that she cares for her grandchild. 21 22 23 24 25 (AT 37.) Plaintiff argues that “the ALJ gave no reason to discount the lifting restrictions or less 26 than occasional handling and fingering limitations.” (ECF No. 12 at 10.) However, as explained 27 the ALJ did not completely discount these limitations opined by Dr. Perez. The ALJ limited 28 plaintiff “to lifting-carrying 20 pounds occasionally and 10 pounds frequently. . . [and] to 6 1 occasional handling and fingering with the left hand.” (AT 34.) As such, the ALJ did not 2 discount Dr. Perez’s opined limitations, rather he concluded that the degree of limitations opined 3 was unwarranted. Importantly, an RFC “is the most [one] can still do despite [his or her] limitations” and it 4 5 is “based on all the relevant evidence in [one’s] case record,” rather than a single medical opinion 6 or piece of evidence. 20 C.F.R. § 404.1545(a)(1). “It is clear that it is the responsibility of the 7 ALJ, not the claimant’s physician, to determine residual functional capacity.” Vertigan v. Halter, 8 260 F.3d 1044, 1049 (9th Cir. 2001) (citing 20 C.F.R. § 404.1545). The ALJ’s RFC 9 determination need not precisely reflect any particular medical provider’s assessment. See Turner 10 v. Comm’r Soc. Sec. Admin., 613 F.3d 1217, 1222–23 (9th Cir. 2010) (the ALJ properly 11 incorporated physician’s observations in the RFC determination while, at the same time, rejecting 12 the implication that plaintiff was unable to “perform simple, repetitive tasks in an environment 13 without public contact or background activity”). Thus, the ALJ appropriately crafted an RFC, 14 based upon all of the medical evidence, rather than adopting the exact limitations opined by Dr. 15 Perez. 16 Moreover, the ALJ clearly explained that the record did not support the extreme 17 limitations opined by Dr. Perez. (See AT 35–37.) Specifically, the ALJ pointed out that after 18 plaintiff had fusion surgery in October 2012, the plaintiff was satisfied with the procedure, she 19 experienced less issues with numbness, and a cervical spine x-ray in March 2013 showed no 20 change in the fusion and no change in the cervical alignment with flexion or extension. (AT 35.) 21 These conclusions are supported by medical evidence in the record. On December 17, 2012, 22 plaintiff reported to Dr. Waldau that she was very satisfied with the surgery and that the 23 numbness in her left leg was improved. (AT 425.) On May 4, 2013, Dr. Perez characterized 24 plaintiff’s prior surgery as a success, noting that “she no longer has tingling numbness or 25 weakness in her left arm.” (AT 700.) Finally, the ALJ’s characterization of the findings from the 26 March 11, 2013 x-ray are accurate. (See AT 574.) 27 28 In addition, the ALJ appropriately determined that the extreme limitations opined by Dr. Perez were not consistent with the plaintiff’s ability to care for her grandchild. This conclusion is 7 1 supported by the hearing testimony of plaintiff and her lay witness. (See AT 76–83.) While 2 plaintiff did testify that “most of the time” she has someone help her change her grandchild’s 3 diapers (AT 82), the ALJ still appropriately relied on the fact that plaintiff admitted to watching 4 her grandchild for four to six hours in a day (AT 83) as evidence that undermines the extreme 5 limitations opined by Dr. Perez. 6 Therefore, the ALJ did not err when weighing the opinions of Dr. Perez. Even though the 7 ALJ was not required to give any weight to Dr. Perez’s conclusory check-box opinions, see 8 Meanel, 172 F.3d at 1114, he gave those opinions some weight, while providing specific and 9 legitimate reasons, supported by substantial evidence, for not adopting the severity of the 10 restrictions that Dr. Perez opined. 11 ii. Opinion of Dr. Ben Waldau 12 After a neurological follow-up examination on March 11, 2013, Dr. Waldau noted 13 I think Ms. Mills should go back to no heavy lifting more than five pounds for at least six months and maybe for a lifetime. . . . 14 She asked about disability for her job, and I think her request is very reasonable given that as a cook she routinely has to lift 30 pounds, and given her cervical spine fusion, that creates a lot of stress on her neck and is probably going to result in further muscle injury in the future. . . . 15 16 17 She is not able to perform her job without doing heavy lifting, and therefore I think that she qualifies for disability. 18 19 (AT 292–93.) 20 Plaintiff argues that the ALJ committed reversible error because he did not address this 21 “opinion” of Dr. Waldau. (ECF No. 12 at 11.) However, when “interpreting the evidence and 22 developing the record, the ALJ does not need to ‘discuss every piece of evidence.’” Howard ex 23 rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (citations omitted). Importantly, “the 24 ALJ is not required to discuss evidence that is neither significant nor probative.” Id. 25 Here, while the ALJ did not expressly discuss these statements by Dr. Waldau, he did 26 expressly discuss the cervical x-ray that was ordered by Dr. Waldau during that March 11, 2013 27 visit, and which showed no change in plaintiff’s fusion construct or cervical alignment. (See AT 28 35, 293, 573–74.) Such an x-ray is objective medical evidence suitable for determining plaintiff’s 8 1 RFC, whereas Dr. Waldau’s statements are imprecise estimates of plaintiff’s future condition. 2 (See AT 293 (“maybe for a lifetime;” “probably going to result in further muscle injury;” “I think 3 that she qualifies for disability).) Additionally, the ALJ clearly considered Dr. Waldau’s treatment notes, as he cited to 4 5 when plaintiff reported to Dr. Waldau that she was satisfied with the fusion surgery and her 6 numbness had improved. (See AT 35, 296.) Therefore, while the ALJ may not have expressly 7 discussed Dr. Waldau’s treatment notes on March 11, 2013, he certainly considered them when 8 determining plaintiff’s RFC. 9 Moreover, as explained, the ALJ is responsible for determining plaintiff’s RFC and need 10 not give any weight to a medical provider’s conclusory statement that a plaintiff is disabled. See 11 20 C.F.R. §§ 404.1545, 404.1527(d)(1); Vertigan, 260 F.3d at 1049. When Dr. Waldau 12 concluded that plaintiff is disabled because “she is not able to perform her job without doing 13 heavy lifting” (AT 293), his conclusion was not based on the Social Security Administration’s 14 regulations, and failed to account for other jobs in the national economy that plaintiff might be 15 able to perform. When Dr. Waldau stated that plaintiff should not lift more than five pounds 16 “maybe for a lifetime” (AT 293), he did not provide a definitive opinion that could serve as a 17 legitimate basis for the ALJ’s decision. These “opinions” are too imprecise to assist the ALJ in 18 crafting plaintiff’s RFC. 19 Therefore, Dr. Waldau’s statements were neither significant nor probative enough to 20 constitute an opinion for the purpose of determining plaintiff’s RFC. As such, the ALJ did not err 21 when he did not explicitly discuss these statements in his decision. See Howard ex rel. Wolff, 22 341 F.3d at 1012. 23 2. Whether the ALJ improperly discounted plaintiff’s credibility Plaintiff argues that “[t]he ALJ’s adverse credibility determination [against plaintiff] is not 24 25 supported by substantial evidence.” (ECF No. 12 at 12.) In Lingenfelter v. Astrue, 504 F.3d 26 1028 (9th Cir. 2007), the Ninth Circuit Court of Appeals summarized the ALJ’s task with respect 27 to assessing a claimant’s credibility: 28 ///// 9 1 2 3 4 5 6 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. 7 9 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. . . . 10 Lingenfelter, 504 F.3d at 1035-36 (citations and quotation marks omitted). “At the same time, the 11 ALJ is not required to believe every allegation of disabling pain, or else disability benefits would 12 be available for the asking. . . .” Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012). 8 13 “The ALJ must specifically identify what testimony is credible and what testimony 14 undermines the claimant’s complaints.” Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 15 693 (9th Cir. 2009) (quoting Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 16 1999)). In weighing a claimant’s credibility, an ALJ may consider, among other things, the 17 “‘[claimant’s] reputation for truthfulness, inconsistencies either in [claimant’s] testimony or 18 between [her] testimony and [her] conduct, [claimant’s] daily activities, [her] work record, and 19 testimony from physicians and third parties concerning the nature, severity, and effect of the 20 symptoms of which [claimant] complains.’” Thomas v. Barnhart, 278 F.3d 947, 958–59 (9th Cir. 21 2002) (modification in original) (quoting Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 22 1997)). If the ALJ’s credibility finding is supported by substantial evidence in the record, the 23 court “may not engage in second-guessing.” Id. at 959. 24 As an initial matter, the court notes that the ALJ did not entirely discredit plaintiff’s 25 allegations of functional limitations due to her cervical fusion. Indeed, the ALJ limited plaintiff 26 to “lifting-carrying 20 pounds occasionally and 10 pounds frequently. . . [no climbing of] ladders, 27 ropes, and scaffolds. . . occasionally handling and fingering with the left hand. . . [no] reach[ing] 28 overhead with the left arm. . . [and] rotating her neck no more than 120 degrees occasionally.” 10 1 (AT 34.) Nevertheless, to the extent that the ALJ discounted plaintiff’s testimony regarding her 2 symptoms and functional limitations, the ALJ provided several specific, clear, and convincing 3 reasons for doing so. The ALJ determined that: 4 [Plaintiff’s] medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, [her] statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible [because] . . . 5 6 [She] has described daily activities, which are not limited to the extent one would expect, given the complaints of disabling symptoms and limitations. . . . 7 8 Despite the allegations of symptoms and limitations preventing all work, the record reflects that the [plaintiff] went on a vacation since the alleged onset date. . . . 9 10 [Additionally,] the objective findings in this case fail to provide strong support for the [plaintiff]’s allegations of disabling symptoms and limitations. 11 12 13 14 15 (AT 36.) i. Objective medical evidence “[A]fter a claimant produces objective medical evidence of an underlying impairment, an 16 ALJ may not reject a claimant’s subjective complaints based solely on a lack of medical evidence 17 to fully corroborate the alleged severity of pain.” Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 18 2005) (citing Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991)). Although lack of medical 19 evidence cannot form the sole basis for discounting plaintiff’s subjective symptom testimony, it is 20 nevertheless a relevant factor for the ALJ to consider. Burch, 400 F.3d at 681. 21 22 23 24 25 26 27 28 Here, the ALJ relied on the objective medical evidence in the record, as one reason for discounting the extent of plaintiff’s subjective complaints. The ALJ specifically reasoned: The [plaintiff] was born with a birth defect in her neck. It never caused any problems until 2012 when she was diagnosed with cervical spinal stenosis [AT 609, 700]. The [plaintiff] subsequently had fusion surgery in October 2012 [AT 609]. Prior to her surgery, the [plaintiff] had severe compression of her spinal cord at the C1 level [AT 349]. Following the surgery, the claimant stated that she was very satisfied with her operation and that the numbness was much better in her left leg [AT 425]. During the hearing the claimant testified that she cannot work because of numbness in her leg. This testimony conflicts with her initial statement following surgery. An x-ray of the cervical spine taken in March 2013 11 1 showed no change in the C4 posterior fusion construct [AT 573– 74]. There was also no change in cervical alignment with flexion and extension [AT 573–74]. This evidence supports a finding that the claimant is limited to a wide range of light work. 2 3 4 (AT 35.) The ALJ’s characterization of plaintiff’s medical condition is consistent with and 5 6 supported by objective medical evidence in the record. (See AT 349, 425, 573–74, 609, 700.) 7 While plaintiff strongly disagrees with the way the ALJ characterized her spinal condition (see 8 ECF No. 12 at 8), the ALJ’s conclusions are nonetheless appropriate. As explained, the ALJ’s 9 conclusions and characterization of the plaintiff’s condition are supported by substantial evidence 10 in the record. Therefore, the court may not reverse the ALJ’s decision based on plaintiff’s 11 disagreement with the ALJ’s interpretation of the record. See Tommasetti, 533 F.3d at 1038 (9th 12 Cir. 2008) (“when the evidence is susceptible to more than one rational interpretation” the court 13 will not reverse the ALJ’s decision). ii. 14 Daily activities The ALJ also determined that plaintiff’s daily activities did not support her allegations of 15 16 disabling symptoms and limitations. (AT 36.) “While a claimant need not vegetate in a dark 17 room in order to be eligible for benefits, the ALJ may discredit a claimant’s testimony when the 18 claimant reports participation in everyday activities indicating capacities that are transferable to a 19 work setting. . . . Even where those activities suggest some difficulty functioning, they may be 20 grounds for discrediting the claimant’s testimony to the extent that they contradict claims of a 21 totally debilitating impairment.” Molina, 674 F.3d at 1112–13 (citations and quotation marks 22 omitted); see also Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005) (ALJ properly considered 23 claimant’s ability to care for her own needs, cook, clean, shop, interact with her nephew and 24 boyfriend, and manage her finances and those of her nephew in the credibility analysis); Morgan 25 v. Comm’r of Soc. Sec., 169 F.3d 595, 600 (9th Cir. 1999) (ALJ’s determination regarding 26 claimant’s ability to “fix meals, do laundry, work in the yard, and occasionally care for his 27 friend’s child” was a specific finding sufficient to discredit the claimant’s credibility). 28 ///// 12 1 Here, the ALJ specifically relied on plaintiff’s own report that she has no problems with 2 personal care, and the that she cares for her grandchild, is able to drive, shop for groceries, and 3 pay bills. (AT 36.) These conclusions are supported by plaintiff’s June 11, 2013 Function 4 Report, as well as the hearing testimony of plaintiff and her lay witness. (See AT 76–83, 245– 5 49.) Therefore, substantial evidence supports the ALJ’s finding that plaintiff’s daily activities are 6 inconsistent with her allegations of disabling symptoms and limitations. 7 To be sure, the record also contains some contrary evidence—such as plaintiff’s testimony 8 that her daughter helps her wash her hair, and that plaintiff does not drive alone because she 9 needs someone else to look to her left for her—suggesting that plaintiff’s activities are more 10 limited. (AT 71–72, 84–85.) However, it is the function of the ALJ to resolve any ambiguities, 11 and the court finds the ALJ’s assessment to be reasonable and supported by substantial evidence. 12 See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (affirming ALJ’s credibility 13 determination even where the claimant’s testimony was somewhat equivocal about how regularly 14 she was able to keep up with all of the activities and noting that the ALJ’s interpretation “may not 15 be the only reasonable one”). As the Ninth Circuit explained: 16 17 18 19 20 21 22 23 24 25 26 27 28 It may well be that a different judge, evaluating the same evidence, would have found [the claimant’s] allegations of disabling pain credible. But, as we reiterate in nearly every case where we are called upon to review a denial of benefits, we are not triers of fact. Credibility determinations are the province of the ALJ. . . . Where, as here, the ALJ has made specific findings justifying a decision to disbelieve an allegation of excess pain, and those findings are supported by substantial evidence in the record, our role is not to second-guess that decision. Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989). iii. Improper reason with other proper reasons for discounting credibility The ALJ also relied on the fact that plaintiff took a cruise since the alleged onset date of her symptoms, as a reason to discount plaintiff’s credibility. Specifically, the ALJ observed: In March 2014, the claimant was preparing to take a trip that required flying in a plane and taking a boat [AT 696]. Although a vacation and a disability are not necessarily mutually exclusive, the claimant’s decisions to go on a vacation tends to suggest that the alleged symptoms and limitations may have been overstated. 13 1 (AT 36.) Plaintiff argues that the fact that plaintiff went on a cruise “does not detract from 2 credibility. A cruise is the opposite of work. Disabled people go on cruises all the time for the 3 very reason they are very accommodating.” (ECF No. 14 at 3.) The fact that plaintiff took a 4 cruise is ambiguous. The ALJ’s interpretation that taking a cruise is inconsistent with total 5 disability is a reasonable one. Therefore, the court may not reverse the ALJ’s decision because 6 plaintiff interprets this evidence differently. In any event, even if this were not a legitimate reason to discount plaintiff’s testimony, the 7 8 error is harmless because the ALJ provided other valid reasons for only partially crediting 9 plaintiff’s testimony. See Molina, 674 F.3d at 1115 (harmless error when ALJ provided one or 10 more invalid reasons for disbelieving a claimant’s testimony, but also provided valid reasons that 11 were supported by the record). 12 Therefore, the ALJ did not improperly discount plaintiff’s credibility because the ALJ’s 13 credibility finding is supported by substantial evidence in the record, and as such, the court will 14 not second-guess the ALJ’s conclusions. See Thomas, 278 F.3d at 959. 15 V. CONCLUSION 16 For the foregoing reasons, IT IS HEREBY RECOMMENDED that: 17 1. Plaintiff’s motion for summary judgment (ECF No. 12) be DENIED. 18 2. The Commissioner’s cross-motion for summary judgment (ECF No. 13) be 19 20 GRANTED 3. 21 The final decision of the Commissioner be AFFIRMED, and judgment be entered for the Commissioner. 22 4. The Clerk of Court be ordered to close this case. 23 These findings and recommendations are submitted to the United States District Judge 24 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 25 days after being served with these findings and recommendations, any party may file written 26 objections with the court and serve a copy on all parties. Such a document should be captioned 27 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 28 shall be served on all parties and filed with the court within fourteen (14) days after service of the 14 1 objections. The parties are advised that failure to file objections within the specified time may 2 waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th 3 Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 4 5 IT IS SO RECOMMENDED. Dated: November 8, 2017 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15

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