Fields v. Commissioner of Social Security

Filing 23

MEMORANDUM, OPINION and ORDER signed by Magistrate Judge Dennis M. Cota on 7/10/19 DENYING 21 Motion for Summary Judgment and GRANTING 22 Cross-Motion for Summary Judgment. The Commissioner's final decision is affirmed and the Clerk of the Court is directed to enter judgment and close this file. (Kaminski, H)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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EDWARD FIELDS,

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No. 2:18-CV-0001-DMC

Plaintiff,
v.

MEMORANDUM OPINION AND ORDER

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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Plaintiff, who is proceeding with retained counsel, brings this action for judicial

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review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g).

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Pursuant to the written consent of all parties (ECF Nos. 8 and 9), this case is before the

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undersigned as the presiding judge for all purposes, including entry of final judgment. See 28

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U.S.C. § 636(c). Pending before the court are the parties’ cross motions for Summary Judgement.

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(ECF Nos. 21 and 22).

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The court reviews the Commissioner’s final decision to determine whether it is:

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(1) based on proper legal standards; and (2) supported by substantial evidence in the record as a

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whole. See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “Substantial evidence” is

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more than a mere scintilla, but less than a preponderance. See Saelee v. Chater, 94 F.3d 520, 521

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(9th Cir. 1996). It is “. . . such evidence as a reasonable mind might accept as adequate to support
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a conclusion.” Richardson v. Perales, 402 U.S. 389, 402 (1971). The record as a whole,

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including both the evidence that supports and detracts from the Commissioner’s conclusion, must

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be considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986); Jones

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v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not affirm the Commissioner’s

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decision simply by isolating a specific quantum of supporting evidence. See Hammock v.

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Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative

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findings, or if there is conflicting evidence supporting a particular finding, the finding of the

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Commissioner is conclusive. See Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987).

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Therefore, where the evidence is susceptible to more than one rational interpretation, one of

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which supports the Commissioner’s decision, the decision must be affirmed, see Thomas v.

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Barnhart, 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal

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standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th

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Cir. 1988).
For the reasons discussed below, the Commissioner’s final decision is affirmed.

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I. THE DISABILITY EVALUATION PROCESS

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To achieve uniformity of decisions, the Commissioner employs a five-step

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sequential evaluation process to determine whether a claimant is disabled. See 20 C.F.R.

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§§ 404.1520 (a)-(f) and 416.920(a)-(f). The sequential evaluation proceeds as follows:

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Step 1

Determination whether the claimant is engaged in
substantial gainful activity; if so, the claimant is presumed
not disabled and the claim is denied;

Step 2

If the claimant is not engaged in substantial gainful activity,
determination whether the claimant has a severe
impairment; if not, the claimant is presumed not disabled
and the claim is denied;

Step 3

If the claimant has one or more severe impairments,
determination whether any such severe impairment meets
or medically equals an impairment listed in the regulations;
if the claimant has such an impairment, the claimant is
presumed disabled and the claim is granted;

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Step 4

If the claimant’s impairment is not listed in the regulations,
determination whether the impairment prevents the
claimant from performing past work in light of the
claimant’s residual functional capacity; if not, the claimant
is presumed not disabled and the claim is denied;

Step 5

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If the impairment prevents the claimant from performing
past work, determination whether, in light of the claimant’s
residual functional capacity, the claimant can engage in
other types of substantial gainful work that exist in the
national economy; if so, the claimant is not disabled and
the claim is denied.

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See 20 C.F.R. §§ 404.1520 (a)-(f) and 416.920(a)-(f).

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To qualify for benefits, the claimant must establish the inability to engage in

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substantial gainful activity due to a medically determinable physical or mental impairment which

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has lasted, or can be expected to last, a continuous period of not less than 12 months. See 42

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U.S.C. § 1382c(a)(3)(A). The claimant must provide evidence of a physical or mental

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impairment of such severity the claimant is unable to engage in previous work and cannot,

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considering the claimant’s age, education, and work experience, engage in any other kind of

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substantial gainful work which exists in the national economy. See Quang Van Han v. Bower,

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882 F.2d 1453, 1456 (9th Cir. 1989). The claimant has the initial burden of proving the existence

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of a disability. See Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990).

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The claimant establishes a prima facie case by showing that a physical or mental

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impairment prevents the claimant from engaging in previous work. See Gallant v. Heckler, 753

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F.2d 1450, 1452 (9th Cir. 1984); 20 C.F.R. §§ 404.1520(f) and 416.920(f). If the claimant

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establishes a prima facie case, the burden then shifts to the Commissioner to show the claimant

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can perform other work existing in the national economy. See Burkhart v. Bowen, 856 F.2d

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1335, 1340 (9th Cir. 1988); Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); Hammock

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v. Bowen, 867 F.2d 1209, 1212-1213 (9th Cir. 1989).

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II. THE COMMISSIONER’S FINDINGS

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Plaintiff applied for social security benefits on July 8, 2014. See AR 17.1 In the

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application, plaintiff claims disability began on April 1, 2014. See id. In his opening brief,

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plaintiff claims he is disabled due to limitations caused by type II diabetes with diabetic

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polyneuropathy, osteoarthritis involving both ankles and feet, moderate degenerative joint disease

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in his bilateral toes, and obesity. Plaintiff’s claim was initially denied. Following denial of

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reconsideration, plaintiff requested an administrative hearing, which was held on July 11, 2016,

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before Administrative Law Judge (ALJ) Curtis Renoe. In a September 7, 2016, decision, the ALJ

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concluded plaintiff is not disabled based on the following relevant findings:

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1.

The claimant has the following severe impairment(s): diabetes,
hypertension, degenerative joint disease, hand/feet neuropathy,
obesity, and ankle edema;

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The claimant does not have an impairment or combination of
impairments that meets or medically equals an impairment listed in
the regulations;

3.

The claimant has the following residual functional capacity:
medium work, except he can lift and carry 50 pounds occasionally
and 25 pounds frequently; he can sit 6 hours in an 8-hour workday
and alternate to standing for 5 minutes, every 30 minutes of sitting;
he can stand up to 6 hours in an 8-hour workday and alternate to
sitting for 5 minutes, after every 30 minutes of standing; he can
walk up to 6 hours in an 8-hour workday and alternate to sitting for
5 minutes, after every 30 minutes of walking; he can push and pull
as much as he can lift and carry; he can use foot controls with his
right foot and left foot occasionally. He can use hand controls with
his bilateral hands frequently; he can handle, finger, and feel with
his bilateral hands frequently; he can climb ramps and stairs
occasionally; he can climb ladders, ropes, or scaffolds
occasionally; he can crawl occasionally he can never work with
unprotected heights or moving mechanical parts; and he can never
work in extreme cold or extreme heat;

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Considering the claimant’s age, education, work experience,
residual functional capacity, and vocational expert testimony,
claimant can perform his past relevant work as a kitchen helper,
childcare provider, construction painter, counselor aid, or
maintenance worker.

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See id. at 19-26.

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Citations are the to the Administrative Record (AR) lodged on June 25, 2018 (ECF

No. 12).
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After the Appeals Council declined review on October 31, 2017, this appeal followed.

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III. DISCUSSION

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Plaintiff argues: (1) the ALJ failed to properly evaluate the medical opinions of

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Nurse Practitioner Shirikian; and (2) the ALJ failed to properly evaluate plaintiff’s statements and

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testimony.

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A.

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Medical Opinions
“The ALJ must consider all medical opinion evidence.” Tommasetti v. Astrue,

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533 F.3d 1035, 1041 (9th Cir. 2008) (citing 20 C.F.R. § 404.1527(b)). The ALJ errs by not

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explicitly rejecting a medical opinion. See Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir.

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2014). The ALJ also errs by failing to set forth sufficient reasons for crediting one medical

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opinion over another. See id.

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Under the regulations, only “licensed physicians and certain qualified specialists”

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are considered acceptable medical sources. 20 C.F.R. § 404.1513(a); see also Molina v. Astrue,

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674 F.3d 1104, 1111 (9th Cir. 2012). Where the acceptable medical source opinion is based on

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an examination, the “. . . physician’s opinion alone constitutes substantial evidence, because it

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rests on his own independent examination of the claimant.” Tonapetyan v. Halter, 242 F.3d 1144,

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1149 (9th Cir. 2001). The opinions of non-examining professionals may also constitute

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substantial evidence when the opinions are consistent with independent clinical findings or other

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evidence in the record. See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). Social

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workers are not considered an acceptable medical source. See Turner v. Comm’r of Soc. Sec.

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Admin., 613 F.3d 1217, 1223-24 (9th Cir. 2010). Nurse practitioners and physician assistants

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also are not acceptable medical sources. See Dale v. Colvin, 823 F.3d 941, 943 (9th Cir. 2016).

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Opinions from “other sources” such as nurse practitioners, physician assistants, and social

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workers may be discounted provided the ALJ provides reasons germane to each source for doing

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so. See Popa v. Berryhill, 872 F.3d 901, 906 (9th Cir. 2017), but see Revels v. Berryhill, 874

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F.3d 648, 655 (9th Cir. 2017) (quoting 20 C.F.R. § 404.1527(f)(1) and describing circumstance

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when opinions from “other sources” may be considered acceptable medical opinions).
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The weight given to medical opinions depends in part on whether they are

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proffered by treating, examining, or non-examining professionals. See Lester v. Chater, 81 F.3d

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821, 830-31 (9th Cir. 1995). Ordinarily, more weight is given to the opinion of a treating

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professional, who has a greater opportunity to know and observe the patient as an individual, than

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the opinion of a non-treating professional. See id.; Smolen v. Chater, 80 F.3d 1273, 1285 (9th

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Cir. 1996); Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987). The least weight is given to the

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opinion of a non-examining professional. See Pitzer v. Sullivan, 908 F.2d 502, 506 & n.4 (9th

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Cir. 1990).

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In addition to considering its source, to evaluate whether the Commissioner

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properly rejected a medical opinion the court considers whether: (1) contradictory opinions are in

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the record; and (2) clinical findings support the opinions. The Commissioner may reject an

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uncontradicted opinion of a treating or examining medical professional only for “clear and

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convincing” reasons supported by substantial evidence in the record. See Lester, 81 F.3d at 831.

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While a treating professional’s opinion generally is accorded superior weight, if it is contradicted

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by an examining professional’s opinion which is supported by different independent clinical

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findings, the Commissioner may resolve the conflict. See Andrews v. Shalala, 53 F.3d 1035,

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1041 (9th Cir. 1995).

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A contradicted opinion of a treating or examining professional may be rejected

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only for “specific and legitimate” reasons supported by substantial evidence. See Lester, 81 F.3d

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at 830. This test is met if the Commissioner sets out a detailed and thorough summary of the

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facts and conflicting clinical evidence, states her interpretation of the evidence, and makes a

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finding. See Magallanes v. Bowen, 881 F.2d 747, 751-55 (9th Cir. 1989). Absent specific and

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legitimate reasons, the Commissioner must defer to the opinion of a treating or examining

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professional. See Lester, 81 F.3d at 830-31. The opinion of a non-examining professional,

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without other evidence, is insufficient to reject the opinion of a treating or examining

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professional. See id. at 831. In any event, the Commissioner need not give weight to any

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conclusory opinion supported by minimal clinical findings. See Meanel v. Apfel, 172 F.3d 1111,

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1113 (9th Cir. 1999) (rejecting treating physician’s conclusory, minimally supported opinion); see
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also Magallanes, 881 F.2d at 751.
The ALJ’s Analysis

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1.

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At Step 4, the ALJ evaluated the medical opinions of record to determine

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plaintiff’s residual functional capacity. See AR 23-25. As to Nurse Practitioner Shirikian, the

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ALJ stated:

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In addition, the undersigned has read and considered the opinion of
treating nurse practitioner, Sossy R. Shirikian and assigned little weight
(Exhibits 17F, 18F). Nurse Shirikian stated that due to his bilateral
neuropathy of his lower extremities, he is not able to maintain daily
activities or safely maintain employment (Exhibit 17F). In addition, she
opined the following functional limitations, including: he can sit up to 15
minutes at a time and stand up to 5 minutes before needing to change
positions; he can sit, stand, and walk up to less than 2 hours in day total;
he can occasionally lift and carry up to 10 pounds and less than 10
pounds frequently; and he can rarely finger, grip, turn objects of use
(sic) his hands for fine manipulation (Exhibit 18F). Due to her treating
relationship with the claimant, Nurse Shirikian's opinion is given some
weight. The opinions of the treating physician are considered more
reliable because of the duration of the treating relationship (see 20 CFR
404.1S27(c)(2) and 416.927(c)(2)). However, because these opinions are
not from an acceptable medical source, the undersigned gives it less
weight than other qualifying medical source opinions (20 CFR
404.1S13(a)(e) and 416.913(a)(e)). Additionally, Nurse Shirikian's
opined limitations are more restrictive than the medical evidence supports
and contradicts repeated results of normal physical examinations in the
record. Moreover, the restrictions are not consistent with the claimant's
admitted daily activities, which includes taking walks and fixing and
''tinkering" with objects at home (Hearing Testimony, Exhibit 7F).
Finally, although her diagnosis of neuropathy is consistent with the
medical evidence, her statement that the claimant is not employable due
to his impairment has no probative value. Whether the claimant is
"disabled" is a determination reserved to the Commissioner (20 CFR
404.1527(d) and 416.927(d); and SSR 96-5p). As such, the undersigned
has assigned Nurse Shirikian's opinions little weight.

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CAR 24-25.

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2.

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Plaintiff argues:

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First, even though NP Shirikian was not a “doctor,” Social Security
rules specifically provide that opinions, such as hers, can be used to “show
the severity of the individual's impairment(s) and how it affects the
individual's ability to function.” See, SSR 06-3p. (footnote omitted). . . .
Second, NP Shirikian’s opinion was the most recent opinion of
record regarding Mr. Fields’s functional abilities and limitations. Her
opinion was dated July 8, 2016. In the 9th Circuit “a treating physician’s
most recent medical reports are highly probative” especially in cases, like
Mr. Fields’s which involved a worsening or degenerative condition. See,
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Plaintiff’s Contentions

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Osenbrock v. Apfel, 240 F.3d 1157,1165(9th Cir. 2001). See also, Payan v.
Chater, 959F. Supp. 1197, 1203 (C.D. Cal 1996), citing Young v. Heckler,
803 F.2d 963, 968 (9th Cir. 1986).
Third, NP Shirikian’s assessed limitations were consistent with the
medical record and Mr. Fields’ s diagnosed impairments of type II
diabetes mellitus with diabetic polyneuropathy in his hands and feet;
osteoarthrosis involving both ankles and feet; moderate degenerative joint
disease in his bilateral toes; and obesity. . . .
Third [sic], the ALJ claimed that NP Shirikian’s assessed
restrictions were not consistent with Mr. Fields’s admitted daily activities,
which included “taking walks and fixing and ''tinkering" with object sat
home (Hearing Testimony, Exhibit 7F).” As set forth in the Summary of
Relevant Testimony and in Argument II, Mr. Fields’s “admitted daily
activities” were extremely limited. He reported in September of 2014, that
his “hobbies included fiddling with stuff and trying to put them together
and make them work.” AR 366. At that time, he was also able to prepare
simple meals and work on the computer for 30 minutes a day. AR 366.
However, he testified at his hearing before the ALJ in 2016, almost two
years later, that his condition had deteriorated over the years and that the
pain and numbness in his hands and feet had worsened. AR 45-46, 52-54.
Consequently, what he could do by the time of his hearing was much less
than he could do when he first stopped working. But at no time, was he
performing activities of daily living that reflected an ability to work on a
full-time basis. Nor were his activities of daily living inconsistent with NP
Shirikian’s assessed restrictions – restrictions that reflected her opinion of
what he could do in a full-time, competitive work environment. Not what
he could do in his own home, at his own pace, with the ability to sit or lay
down whenever necessary.
Fourth [sic], even with respect to issues “reserved to the
Commissioner,” SSR 96-5p specifically cautions that:

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adjudicators must always carefully consider medical
source opinions about any issue, including opinions
about issues that are reserved to the Commissioner. For
treating sources, the rules also require that we make
every reasonable effort to recontact such sources for
clarification when they provide opinions on issues
reserved to the Commissioner and the bases for such
opinions are not clear to us.

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See, SSR 96-5p.

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The ALJ could not simply reject NP Shirikian’s opinion that Mr. Fields’s
impairments resulted in an “inability to safely maintain employment.” AR
507.

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Finally, plaintiff contends the opinions provided by Nurse Practitioner Shirikian “should have

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outweighed” the opinions provided by Dr. Eskander upon which the ALJ relied.

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3.

Disposition – The ALJ Properly Evaluated and Discounted the Medical
Opinion of Nurse Practitioner Shirikian

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While the ALJ must consider all medical evidence, see Tommasetti v. Astrue, 533

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F.3d 1035, 1041 (9th Cir. 2008), nurse practitioners and physicians assistants are not considered

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acceptable medical sources, and are instead defined as “other sources” which are not afforded the

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same deference as acceptable medical sources. See Dale v. Colvin, 823 F. 3d 941, 943 (9th Cir

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2016); Britton v. Colvin, 787 F.3d 1011, 1012 (9th Cir 2015). Here, the ALJ has properly

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discounted the opinion of the “other source” nurse practitioner Shirikian, where the medical

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opinion at issue is inadequately supported by clinical findings and where the ALJ has provided

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reasons germane to the nurse practitioner for discounting her medical opinion.
In evaluating the medical opinion of the nurse practitioner, the ALJ cites to Exhibit

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18F, the four-page Functional Capacity Questionnaire signed by nurse practitioner Shirikan.

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While the ALJ noted that the nurse practitioner set forth there a variety of functional limitations,

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the “Clinical findings” section of the questionnaire is blank. Where, as here, the medical opinion

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at issue is inadequately supported by clinical findings, such opinion evidence may be disregarded.

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Britton, 787F.3d 1011, 1012; Burrell v. Colvin, 775 F.3d 1133, 1140 (9th Cir 2014).

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In further support of the ALJ’s election to give “little weight” to the deficient

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medical opinion of the nurse practitioner, the ALJ sets forth specific reasons germane to this

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witness. Popa v. Berryhill, 872 F. 3d 901, 906 (9th Cir 2017). First, the ALJ expressly assessed

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that Shirikian’s opined limitations are more restrictive than the medical evidence supports, noting

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that the medical evidence in fact contradicts “repeated results of normal physical examinations in

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the record.” AR 20. Having specified that he had “read and considered all the medical evidence

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in the record,” (Exhibits 1F through 18F), AR 22, the ALJ found that “numerous physical

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examinations in the record were unremarkable without any positive findings (Exhibit 4F, pp. 2, 4,

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6, 8, 10, 11, p. 4; 13F, pp3-4, 10-13, 15). AR 23. Evidence of contradictory “normal physical

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examinations” cited by the ALJ included:

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. . .In November 2104, the claimant presented to the emergency room for
lower extremity pain (Exhibit 6F). With the exception of an irregular ulcer
on his left foot, his physical examination was unremarkable with a normal
gait, no deformity and movement in all extremities. The claimant was
treated for a cellulitis and diabetic ulcer with antibiotics (Exhibits 6F,
18F). Records in 2015 and 2016 showed the claimant’s physical
examination[s] were again, consistently unremarkable. In a routine checkup, the claimant did not have any subjective complaints or symptoms and
the physical examination indicated no abnormal findings as to extremities
or back; he had no edema, instability, effusions or tenderness to
palpitation and he had normal range of motion in his back with intact
peripheral pulses in intact peripheral pulses in his extremities (Exhibit
14F, p 11). . . .

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AR 23

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Second, the ALJ noted that the restrictions posed by Nurse Shirikian were not

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consistent with “the claimant’s admitted daily activities.” The ALJ identified the claimant’s

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“admitted activities of daily living” to include:

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. . .[G]oing on light walks, taking care of personal grooming and hygiene,
performing household chores, gardening, preparing simple meals, going
on the computer, and fixing things at home (Hearing Testimony, Exhibit
7F). . . .
AR 21.
The activities specified above constitute “specific reasons germane to this witness”

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in support of the ALJ’s conclusion that Shirikian’s opinions should be afforded little weight.

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While plaintiff argues in opposition that claimant’s own assessment of his admitted daily

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activities became more restricted in 2016, when claimant testified at his hearing that his condition

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had deteriorated over the years and his pain and numbness in his hands and feet had worsened,

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such contentions are not consistent with claimant’s “unremarkable” physical examination results

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in 2015 and 2016, as also noted by the ALJ. AR 23. In this regard, the ALJ stated:

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In terms of the claimant’s alleged diabetes, hypertension, degenerative
joint disease, hand/feet neuropathy, and ankle edema, there is some
objective medical evidence to show the claimant’s impairment, however,
there is nothing in the record that supports more restrictive limitations than
those assessed herein.

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AR 22.

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The Court finds that the ALJ has documented sufficient factual grounds to afford

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the less weight to Nurse Shirikian’s opinion. Underscoring the ALJ’s election to give little weight

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to the opinion of Nurse Shirikian was the ALJ’s appropriate recognition that the determination of

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“disabled” is properly reserved to the Commissioner. See 20 CFR 404.1527(d) and 416.927(d);

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see also Social Security Ruling 96-5p. To the extent that conclusion was erroneously

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incorporated in the statements of Nurse Shirikian, it is appropriately discounted along with the

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balance of the Shirikian opinion.
Plaintiff also contends that instead of according Nurse Shirikian’s opinion the

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weight it deserved, the ALJ erroneously afforded the non-examining opinion of State Agency

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reviewer Dr. Eskander an undeserved “significant weight” valuation. Plaintiff’s contentions are

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misplaced. Where, as here, the opinion of the State Agency doctor was supported by the medical

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record, the ALJ’s reliance on that opinion is proper. Bray v. Astrue, 554 F.3d 1221 (9th Cir.

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2009). AR 102-106. The ALJ found that Dr. Eskander conducted the requisite review of the

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medical evidence, and the conclusions then reported were properly supported, notwithstanding

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the subsequent creation of Nurse Shirikian’s assessment. The weight afforded Dr. Eskander’s

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opinion was appropriate vis-a vis the opinion of Nurse Shirikian, and Plaintiff’s final argument

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with regard to the weight afforded the opinion of Nurse Shirikian does nothing to change the

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outcome here.

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B.

Plaintiff’s Statements and Testimony

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The Commissioner determines whether a disability applicant is credible, and the

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court defers to the Commissioner’s discretion if the Commissioner used the proper process and

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provided proper reasons. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996). An explicit

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credibility finding must be supported by specific, cogent reasons. See Rashad v. Sullivan, 903

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F.2d 1229, 1231 (9th Cir. 1990). General findings are insufficient. See Lester v. Chater, 81 F.3d

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821, 834 (9th Cir. 1995). Rather, the Commissioner must identify what testimony is not credible

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and what evidence undermines the testimony. See id. Moreover, unless there is affirmative

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evidence in the record of malingering, the Commissioner’s reasons for rejecting testimony as not

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credible must be “clear and convincing.” See id.; see also Carmickle v. Commissioner, 533 F.3d
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1155, 1160 (9th Cir. 2008) (citing Lingenfelter v Astrue, 504 F.3d 1028, 1936 (9th Cir. 2007),

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and Gregor v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006)).

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If there is objective medical evidence of an underlying impairment, the

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Commissioner may not discredit a claimant’s testimony as to the severity of symptoms merely

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because they are unsupported by objective medical evidence. See Bunnell v. Sullivan, 947 F.2d

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341, 347-48 (9th Cir. 1991) (en banc). As the Ninth Circuit explained in Smolen v. Chater:

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The claimant need not produce objective medical evidence of the
[symptom] itself, or the severity thereof. Nor must the claimant produce
objective medical evidence of the causal relationship between the
medically determinable impairment and the symptom. By requiring that
the medical impairment “could reasonably be expected to produce” pain or
another symptom, the Cotton test requires only that the causal relationship
be a reasonable inference, not a medically proven phenomenon.

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80 F.3d 1273, 1282 (9th Cir. 1996) (referring to the test established in
Cotton v. Bowen, 799 F.2d 1403 (9th Cir. 1986)).

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The Commissioner may, however, consider the nature of the symptoms alleged,

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including aggravating factors, medication, treatment, and functional restrictions. See Bunnell,

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947 F.2d at 345-47. In weighing credibility, the Commissioner may also consider: (1) the

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claimant’s reputation for truthfulness, prior inconsistent statements, or other inconsistent

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testimony; (2) unexplained or inadequately explained failure to seek treatment or to follow a

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prescribed course of treatment; (3) the claimant’s daily activities; (4) work records; and (5)

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physician and third-party testimony about the nature, severity, and effect of symptoms. See

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Smolen, 80 F.3d at 1284 (citations omitted). It is also appropriate to consider whether the

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claimant cooperated during physical examinations or provided conflicting statements concerning

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drug and/or alcohol use. See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). If the

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claimant testifies as to symptoms greater than would normally be produced by a given

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impairment, the ALJ may disbelieve that testimony provided specific findings are made. See

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Carmickle, 533 F.3d at 1161 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)).

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Regarding reliance on a claimant’s daily activities to find testimony of disabling

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pain not credible, the Social Security Act does not require that disability claimants be utterly

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incapacitated. See Fair v. Bowen, 885 F.2d 597, 602 (9th Cir. 1989). The Ninth Circuit has

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repeatedly held that the “. . . mere fact that a plaintiff has carried out certain daily activities . . .

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does not . . .[necessarily] detract from her credibility as to her overall disability.” See Orn v.

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Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (quoting Vertigan v. Heller, 260 F.3d 1044, 1050 (9th

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Cir. 2001)); see also Howard v. Heckler, 782 F.2d 1484, 1488 (9th Cir. 1986) (observing that a

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claim of pain-induced disability is not necessarily gainsaid by a capacity to engage in periodic

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restricted travel); Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (concluding that the

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claimant was entitled to benefits based on constant leg and back pain despite the claimant’s

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ability to cook meals and wash dishes); Fair, 885 F.2d at 603 (observing that “many home

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activities are not easily transferable to what may be the more grueling environment of the

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workplace, where it might be impossible to periodically rest or take medication”). Daily

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activities must be such that they show that the claimant is “. . .able to spend a substantial part of

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his day engaged in pursuits involving the performance of physical functions that are transferable

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to a work setting.” Fair, 885 F.2d at 603. The ALJ must make specific findings in this regard

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before relying on daily activities to find a claimant’s pain testimony not credible. See Burch v.

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Barnhart, 400 F.3d 676, 681 (9th Cir. 2005).
The ALJ’s Analysis

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1.

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At Step 4, the ALJ considered the credibility of plaintiff’s statements and

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testimony in determining his residual functional capacity. See CAR 21-23. The ALJ stated:
The claimant alleged that his physical impairments inhibit his ability to
work or perform daily activities. In his hearing testimony, the claimant
stated that he could no longer work because he was unable to stand on
his feet due to constant foot pain. The claimant further noted that he has
foot and hand pain from his diabetes mellitus; however since he began
eating better and exercising, he stated his diabetes mellitus is under better
control. The claimant indicated that he has problems performing some
household tasks due to his foot impairment, including vacuuming,
washing dishes, and going to the grocery store. The claimant stated that
he has numbness and pain in his feet that lasts all day and is getting
progressively worse even with medication. Moreover, the claimant stated
that he would not work consecutive days due to his feet and he would
elevate his feet 2 to 3 times a day. As for his hands, the claimant further
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noted that his hand pain has been constant and also getting worse; he has
weakened strength and drops things.

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The claimant's statements regarding the extent of his symptoms and their
limiting effects are compelling only to the extent that they are consistent
with the evidence. Despite his impairments, the claimant has engaged in
a somewhat normal level of daily activity and interaction. The claimant's
admitted activities of daily living include: going on light walks, taking
care of personal grooming and hygiene, performing some household
chores, gardening, preparing simple meals, going on the computer, and
fixing things at home (Hearing Testimony, Exhibit 7F). The claimant has
described activities of daily living, which are not limited to the extent
one would expect, and as such, the undersigned finds the claimant's
ability to participate in such activities affects the persuasiveness of the
claimant's allegations of functional limitations.
After careful consideration of the evidence, the undersigned finds that the
claimant's medically determinable impairments could reasonably be
expected to cause the alleged symptoms; however, the claimant's
statements concerning the intensity, persistence and limiting effects of
these symptoms are not entirely consistent with the medical evidence and
other evidence in the record for the reasons explained in this decision.

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The period at issue begins on the alleged onset date of April1, 2014. The
undersigned has read and considered all the medical evidence in the
record (Exhibits 1F through 18F).

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As indicated above, the undersigned finds the claimant's obesity is a
severe impairment. The claimant's weight was documented in the
medical records from a low of 267 pounds to a high of 274 pounds
(Exhibit 7F, p. 5; Exhibit 14F, p. 9). At a height of6 feet 4 inches, the
claimant's body mass index (BMI) was in the range of 32.5 to 33.3.
(footnote omitted). The claimant's weight, including the impact on his
ability to ambulate, as well as his other body systems, has been
considered within the functional limitations determined herein.
In terms of the claimant's alleged diabetes, hypertension, degenerative
joint disease, hand/feet neuropathy, and ankle edema, there is some
objective medical evidence to show the claimant's impairment, however,
there is nothing in the record that supports more restrictive functional
limitations than those assessed herein. Before the alleged onset date, the
claimant was diagnosed with diabetes mellitus, hypertension, obesity, and
peripheral neuropathy (Exhibit 1F). Although the claimant has received
appropriate treatment for the allegedly disabling symptoms, which would
normally weigh somewhat in the claimant's favor, the record also
indicates the claimant was not entirely compliant with his treatment. One
treating doctor noted that the claimant did not take his medication. In
another instance, the treating doctor stated the claimant did not show up
to his appointment and consequently the claimant was discharged from
the diabetes clinic (Exhibits 1F, p. 1; 2F, p. 4). After the alleged onset
date, the treating doctor also noted the claimant's elevated blood pressure
and stated that it was likely due to non-compliance of his hypertension
medication (Exhibit 11F, p. 1). Furthermore, in a consultative
evaluation, the claimant also stated to the examiner that although he has

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had hypertension for nine years, he did not take any medication (Exhibit
7F, p. 4).

2
During the relevant period, there is some objective medical evidence to
show the claimant's impairment, however, there is nothing in the record
that supports more restrictive functional limitations than those assessed
herein. The claimant received treatment for bilateral foot pain (Exhibits
5F, 8F, 12F). During one examination, the treating doctor noted painful
range of motion and pain on palpation on his feet (Exhibit 5F, p. 7). An
x-ray of the claimant's bilateral foot indicated moderate degenerative
joint disease in his bilateral toes with small erosions (Exhibit 4F, p. 23;
5F, p. 4). In addition, a diagnostic imaging of the claimant's chest
revealed evidence of borderline cardiac enlargement with aortic tortuosity
suggestive of underlying hypertension (Exhibit 9F). However, despite
the claimant's subjective complaints and positive findings in the record,
the claimant's prescribed treatment was rather routine and conservative.
For the claimant's bilateral toes, the claimant's treating doctor
recommended foot elevation, bandaging, and cream (Exhibit 5F, p. 7).
For the claimant's diagnosed uncontrolled diabetes, the doctor
recommended medical management of daily glucose testing and
prescribed medication (Exhibit 11F). In addition, the record reveals that
the treatment has been generally successful in controlling those
symptoms; at times, the claimant reported with medication, his blood
sugar levels and neuropathy improved (Exhibit 13F, pp. 5, 12; 7F, p. 4).

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Furthermore, the record also included other objective evidence which
does not support the level of severity as alleged by the claimant.
Numerous physical examinations in the record were unremarkable
without any positive findings (Exhibit 4F, pp. 2, 4, 6, 8, 10; 11F, p. 4;
13F, pp. 3-4, 10-13, 15). In November 2014, the claimant presented to
the emergency room for lower extremity pain (Exhibit 6F). With the
exception of an irregular ulcer on his left foot, his physical examination
was unremarkable with a normal gait, no deformity and movement in all
extremities. The claimant was treated for a cellulitis and diabetic ulcer
with antibiotics (Exhibits 6F, 18F). Records in 2015 and 2016 showed
the claimant's physical examination were again, consistently
unremarkable. In a routine check-up, the claimant did not have any
subjective complaints or symptoms and the physical examination
indicated no abnormal findings as to his extremities or back; he had no
edema, instability, effusions or tenderness to palpation and he had normal
range of motion in his back with intact peripheral pulses in his extremities
(Exhibit 14F, p. 11). In subsequent appointments, the claimant
complained of neuropathy and uncontrolled diabetes, however the
treating doctor again noted no positive findings during his examinations
(Exhibit 14F, pp. 1-4; 5-7; 15F, pp. 2, 7, 13). The doctor maintained the
same treatment plan, prescribing the claimant neuropathy medication and
recommending improved diet and exercise (Exhibit 14F). As consistent
with previous notes, the claimant's treating doctor also advised the need
for claimant's compliance to prescribed treatment; this was in response to
the claimant's report that he had not been entirely compliant with his
medication (Exhibit 15F, p. 14).

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On September 23, 2014, Dolores M. Leon, M.D., Board eligible in
internal medicine, conducted a complete consultative internal medicine
evaluation of the claimant (Exhibit 7F). The claimant's chief complaints
were hypertension and diabetes with neuropathy. Positive findings from
the physical examination included: ankle edema with blackened bilateral
big toenails and absent sensitivity in his fifth finger. However, there
were no other positive findings, including negative straight leg raising
and full 5/5 strength in his upper and lower extremities, including his
bilateral grip. Dr. Leon diagnosed the claimant with hypertension and
diabetes mellitus with peripheral neuropathy, out of control, obesity, and
history of prostate cancer, status post treatment.

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CAR 21-23.

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2.

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Plaintiff argues:

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Plaintiff’s Contentions

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As set forth in Smolen, “once a claimant meets the Cotton test and
there is no affirmative evidence of malingering, the ALJ may reject the
claimant’s testimony regarding the severity of her symptoms only if he
makes specific findings stating clear and convincing reasons for doing so.”
Smolen v. Chater, 80 F.3d 1273 (9th Cir. 1996). In the instant case, there
was no evidence of malingering. Indeed, NP Shirikian specifically found
that he was not a malingerer. AR 508. As briefed above, the ALJ failed to
articulate a convincing reason for discrediting Mr. Fields’s testimony and
there was no evidence of malingering, consequently his testimony should
have been credited. Where, as here, “the ALJ improperly rejects the
claimant’s testimony regarding his limitations, and the claimant would be
disabled if his testimony were credited, ‘we will not remand solely to
allow the ALJ to make specific findings regarding that testimony.’” Lester
v. Chater, 81 F.3d 821, 834 (9th Cir. 1996),quoting Varney v. Secretary of
Health and Human Services, 859 F.2d 1396, 1401 (9th Cir. 1988).“Rather,
that testimony is also credited as a matter of law.” Id. See also, Moisa v.
Barnhart, 367 F.3d882 (9th Cir. 2004).

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3.

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Disposition – The ALJ Discounted Plaintiff’s Testimony Based on Valid
Reasons Supported by the Record

The ALJ accurately noted that the claimant’s statements as to the extent of his

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symptoms and the limiting effects are “compelling only to the extent that they are consistent with

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the evidence.” AR 21, 20 CFR 404.1529(a); Dodrill v Shalala, 12 F. 3d 915, 918 (9th Cir. 1993).

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The ALJ is not required to believe pain testimony and may disregard it if there are no objective

25

medical findings which could reasonably be expected to cause some pain. If he rejects it,

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however, he must justify his decision with specific findings.” Here, the ALJ has properly

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determined that Plaintiff’s testimony is inconsistent with the medical evidence and thus lacking

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credibility.
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Notwithstanding Plaintiff’s contentions to the contrary, the ALJ’s analysis

1
2

considered the credibility of Plaintiff’s statements and identified material inconsistencies with the

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medical evidence in the record. (Exhibits 1F through 18F). As detailed in the excerpts from AR

4

21-23 above, the ALJ cited with specificity that while the claimant alleged that his physical

5

impairments inhibit his ability to work or perform daily activities, he has nonetheless engaged in

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a somewhat normal level of daily activity, including going on walks, personal grooming and

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hygiene, household chores, gardening, meal preparation, using a computer, and fixing things.

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(Exhibit 7F). The ALJ appropriately found that “the ability to participate in such activities affects

9

the persuasiveness of the claimant’s allegations of functional limitations” AR 21.
The ALJ’s determination regarding Plaintiff’s credibility is underscored by the

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record evidence that the claimant’s treatment was rather “routine and conservative.” See AR 22,

12

despite Plaintiff’s contentions as to the alleged intensity of his several impairments. Further, even

13

that routine treatment was not respected by the claimant, and the ALJ noted that the record

14

indicated the claimant was “not entirely compliant with his treatment.” The ALJ noted that for

15

one treating doctor, claimant “did not take his medication,” and for another doctor “the claimant

16

did not show up for his appointment” and was subsequently discharged from the clinic. AR 22-

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23. The unexplained failure to follow a prescribed course of treatment is among the grounds for

18

discounting a claimant’s credibility, as the ALJ properly did here. Smolen v. Chater, 80 F.3d

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1273 (9th Cir. 1996), Tommasetti v. Asture, 533 F.3d 1035, 1039 (9th Cir. 2008).
The ALJ discounted Plaintiff’s contentions of disabling symptoms based on

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appropriately cited evidence from the record, and the Court finds no merit in Plaintiff’s charge

22

that “the ALJ failed to articulate a convincing reason for discrediting Mr. Field’s testimony.” As

23

with Plaintiff’s other challenge to the ALJ’s findings, this contention offers no grounds for relief.

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2

IV. CONCLUSION
Based on the foregoing, the court concludes that the Commissioner’s final decision

3

is based on substantial evidence and proper legal analysis. Accordingly, IT IS HEREBY

4

ORDERED that:

5

1.

Plaintiff’s motion for summary judgment (ECF No. 21) is denied;

6

2.

Defendant’s motion for summary judgment (ECF No. 22) is granted;

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3.

The Commissioner’s final decision is affirmed; and

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4.

The Clerk of the Court is directed to enter judgment and close this file.

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Dated: July 10, 2019
____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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