Frierson v. Colvin

Filing 31

ORDER AFFIRMING THE DECISION OF THE ADMINISTRATIVE LAW JUDGE re 1 , 30 - Signed by MAGISTRATE JUDGE KEVIN S.C. CHANG on 9/8/2017. (emt, )CERTIFICATE OF SERVICEParticipants registered to receive elec tronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
MACRINA JEAN FRIERSON,

)
)
Plaintiff,
)
)
vs.
)
)
NANCY A. BERRYHILL, Acting
)
Commissioner of Social
)
Security,
)
)
)
Defendant.
_____________________________ )

CIVIL NO. 16-00397 KSC
ORDER AFFIRMING THE DECISION OF
THE ADMINISTRATIVE LAW JUDGE

ORDER AFFIRMING THE DECISION OF THE ADMINISTRATIVE LAW JUDGE
Plaintiff Macrina Jean Frierson (“Plaintiff”) appeals
the Administrative Law Judge’s (“ALJ”) determination that she is
not disabled.

She asks this Court to reverse the ALJ’s decision

and find her disabled as of March 25, 2012.
held on September 6, 2017.
behalf of Plaintiff.

Oral arguments were

Danielle Beaver, Esq., appeared on

Special Assistant U.S. Attorney Asim Modi

appeared by telephone and Assistant U.S. Attorney Edric Ching
appeared on behalf of Defendant Nancy Berryhill (“Commissioner”).
After careful consideration of the parties’
submissions, the record, the applicable law, and the arguments of
counsel, the Court HEREBY AFFIRMS the ALJ’s Decision for the
reasons set forth below.

ADMINISTRATIVE PROCEEDINGS
On March 14, 2012, Plaintiff filed an application for
Disability Insurance Benefits (“DIB”), alleging a disability
onset date of March 25, 2012.1

The Social Security

Administration (“SSA”) denied her application.
On August 11, 2014, the ALJ convened a hearing.
On October 31, 2014, the ALJ issued her Decision,
finding and concluding as follows:
•

Plaintiff meets the insured status requirements of the
Social Security Act through June 30, 2015. Administrative
Record (“AR”) at 17.

•

Plaintiff has not engaged in substantial gainful activity
since March 25, 2012. Id.

•

Plaintiff’s severe impairments include degenerative disc
disease of the lumbar spine and diabetes mellitus. Id. at
18.

•

Plaintiff does not have an impairment or combination of
impairments that meet or medically equal the severity of one
of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525 and
404.1526). Id. at 19.

•

Plaintiff has the residual functional capacity to perform
light work as defined in 20 C.F.R. § 404.1567(b)
except that she is able to lift and/or carry 20
pounds occasionally and 10 pounds frequently;
stand and/or walk 6 hours in an 8-hour day with
customary breaks; sit 6 hours in an 8-hour day
with customary breaks; she would need to alternate
positions between sitting and standing at 1-hour
intervals for 1-5 minutes at the workstation;

1

Plaintiff initially alleged a disability onset date of
August 30, 2011, but amended the date to March 25, 2012. AR at
15.
2

occasionally kneel, stoop, crawl, and crouch;
occasionally climb ramps and stairs; never climb
ladders, ropes, or scaffolds; she would have no
restrictions on the use of the upper extremities
for fine or gross manipulations or reaching in any
direction; she would need to avoid unprotected
height and dangerous moving machinery; she would
be able to sustain concentration and attention,
persistence and pace in two hour blocks of time to
complete a normal workday; she would be able to
interact and respond appropriately to coworkers,
supervisors, and the general public; and she would
be able to understand remember and carry out both
detailed and complex tasks.
Id.
•

Plaintiff is capable of performing past relevant work as an
administrative clerk, and such work does not require her to
perform work-related activities precluded by her residual
functional capacity. Id. at 23.

•

Plaintiff has not been under a disability.

Id. at 24.

On December 17, 2014, Plaintiff filed a Request for
Review of Hearing Decision/Order.

Id. at 7.

The ALJ’s Decision

became the Commissioner’s final decision when the Appeals Council
denied Plaintiff’s Request on May 17, 2016.

Id. at 1-6.

STANDARD OF REVIEW
The decision of the Commissioner must be affirmed if it
is supported by substantial evidence and the Commissioner applied
the correct legal standards.
1035 (9th Cir. 2003).

Benton v. Barnhart, 331 F.3d 1030,

“Substantial evidence means more than a

mere scintilla, but less than a preponderance.

It means such

relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.”

Trevizo v. Berryhill, 862 F.3d 987,

3

996 (9th Cir. 2017) (citation and quotation omitted); Burch v.
Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).

To determine

whether there is substantial evidence to support the ALJ’s
decision, a court “must consider the entire record as a whole,
weighing both the evidence that supports and the evidence that
detracts from the Commissioner’s conclusion, and may not affirm
simply by isolating a specific quantum of supporting evidence.”
Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (quoting
Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)).

If

the record, considered as a whole, can reasonably support either
affirming or reversing the ALJ’s decision, the decision must be
affirmed.

Hiler v. Astrue, 687 F.3d 1209, 1211 (9th Cir. 2012);

Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (“Where evidence
is susceptible to more than one rational interpretation, the
ALJ’s decision should be upheld.”); Matney v. Sullivan, 981 F.2d
1016, 1018 (9th Cir. 1992) (“If the evidence can support either
outcome, the court may not substitute its judgment for that of
the ALJ.”); see also Burch, 400 F.3d at 679.

The ALJ, as the

finder of fact, is responsible for weighing the evidence,
resolving conflicts and ambiguities, and determining credibility.
Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).

4

DISCUSSION
Plaintiff appeals the ALJ’s determination that she is
not disabled.2

She argues that she is unable to perform her past

relevant work and asks this Court to find her disabled with an
onset date of March 25, 2012.
To be eligible for disability insurance benefits, a
claimant must demonstrate that he is unable to “engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which . . . has lasted
or can be expected to last for a continuous period of not less
than 12 months.”

42 U.S.C. § 423(d)(1)(A).

In addition, it may

only be determined that a claimant is under a disability “if his
physical or mental impairment or impairments are of such severity
that he is not only unable to do his previous work but cannot,
considering his age, education, and work experience, engage in
any other kind of substantial gainful work which exists in the
national economy.”

42 U.S.C. § 423(d)(2)(A).

Only disabilities

existing before the date last insured establish entitlement to
disability insurance benefits.

Sam v. Astrue, 550 F.3d 808, 810

(9th Cir. 2008) (citing Vincent v. Heckler, 739 F.2d 1393, 1394
(9th Cir. 1984) (per curiam)).

2

Plaintiff does not challenge the ALJ’s determinations
with respect to steps one through three.
5

A five-step analysis is employed in evaluating
disability claims.
In step one, the ALJ determines whether a claimant
is currently engaged in substantial gainful
activity. If so, the claimant is not disabled.
If not, the ALJ proceeds to step two and evaluates
whether the claimant has a medically severe
impairment or combination of impairments. If not,
the claimant is not disabled. If so, the ALJ
proceeds to step three and considers whether the
impairment or combination of impairments meets or
equals a listed impairment under 20 C.F.R. pt.
404, subpt. P, App. 1. If so, the claimant is
automatically presumed disabled. If not, the ALJ
proceeds to step four and assesses whether the
claimant is capable of performing her past
relevant work. If so, the claimant is not
disabled. If not, the ALJ proceeds to step five
and examines whether the claimant has the residual
functional capacity (“RFC”) to perform any other
substantial gainful activity in the national
economy. If so, the claimant is not disabled. If
not, the claimant is disabled.
Burch, 400 F.3d at 679; 20 C.F.R. § 404.1520.

It is the

claimant’s burden to prove a disability in steps one through four
of the analysis.

Burch, 400 F.3d at 679 (citing Swenson v.

Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)).

“However, if a

claimant establishes an inability to continue [his] past work,
the burden shifts to the Commissioner in step five to show that
the claimant can perform other substantial gainful work.”

Id.

(citation omitted).
In conducting the relevant analysis, and as applicable
to the instant appeal, the ALJ found that Plaintiff is able to
perform past relevant work as an administrative clerk and that

6

she is not disabled.

AR at 23-24.

Plaintiff contends that it

was an abuse of discretion for the ALJ to express medical
opinions unsupported by the evidence and outside her area of
expertise in concluding that Plaintiff’s condition was not
disabling.

Plaintiff additionally submits that the facts relied

upon by the ALJ do not support her determination that Plaintiff
was not credible.
A.

Credibility Determination
Plaintiff challenges the ALJ’s conclusion that she was

not fully credible.
of the ALJ.”

“Credibility determinations are the province

Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989);

Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006) (citations
and quotations omitted) (“[Q]uestions of credibility and
resolutions of conflicts in the testimony are functions solely of
the Secretary.”); Parra v. Astrue, 481 F.3d 742, 750 (9th Cir.
2007).

When the ALJ makes specific findings justifying a

decision to disbelieve an allegation of excess pain, and those
findings are supported by substantial evidence in the record, it
is not the Court’s role to second-guess that decision.
F.2d at 604.

Fair, 885

The Ninth Circuit has established a two-step

analysis for determining the extent to which a claimant’s symptom
testimony must be credited:
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
7

alleged. In this analysis, the claimant is not
required to 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. Nor must a claimant produce
objective medical evidence of the pain or fatigue
itself, or the severity thereof.
If the claimant satisfies the first step of this
analysis, 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. This is not an easy requirement to meet: The
clear and convincing standard is the most
demanding required in Social Security cases.
Trevizo, 862 F.3d at 1000 (quoting Garrison, 759 F.3d at 101415); Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012)
(identifying two-step analysis in assessing the credibility of a
claimant’s testimony regarding the subjective pain or intensity
of symptoms); Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.
2009); Lingenfelter, 504 F.3d at 1036.

That said, the ALJ need

not “‘believe every allegation of disabling pain, or else
disability benefits would be for the asking, a result plainly
contrary to 42 U.S.C. § 423(d)(5)(A).’” Molina, 674 F.3d at 1112
(quoting Fair, 885 F.2d at 603).
Credibility determinations must be made with
sufficiently specific findings to allow the court to conclude
that the ALJ did not arbitrarily discredit a claimant’s
testimony.

Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002)

(citing Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991)

8

(en banc)).

The following factors are relevant in reviewing an

ALJ’s credibility findings, and are also required by the SSA:
(1) whether the claimant engages in daily
activities inconsistent with the alleged symptoms;
(2) whether the claimant takes medication or
undergoes other treatment for the symptoms; (3)
whether the claimant fails to follow, without
adequate explanation, a prescribed course of
treatment; and (4) whether the alleged symptoms
are consistent with the medical evidence.
Lingenfelter, 504 F.3d at 1040; Orn, 495 F.3d at 636 (quoting
Fair, 885 F.2d at 603) (ALJs may consider the following factors
in weighing a claimant’s credibility:

“reputation for

truthfulness, inconsistencies in testimony or between testimony
and conduct, daily activities, and ‘unexplained, or inadequately
explained, failure to seek treatment or follow a prescribed
course of treatment’”).
Here, the ALJ opined that Plaintiff met the first step,
but rejected her testimony about the severity of her symptoms,
and made no finding of malingering:

“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 credible for the reasons
explained in this decision.”

AR at 21.

To reach this adverse

credibility determination, the ALJ was required to provide
specific, clear, and convincing reasons to discount the alleged
9

severity of Plaintiff’s subjective symptoms and pain.

Trevizo,

862 F.3d at 1001 (citing Lingenfelter, 504 F.3d at 1036).

The

Court finds that she has.
The ALJ offered multiple reasons for not fully
crediting Plaintiff’s testimony about the severity of her
symptoms.

First, she found Plaintiff’s allegations of disabling

symptoms and limitations to be “inconsistent with the objective
medical evidence which indicates an attempt by [Plaintiff] to
exaggerate the severity of her symptoms.”

AR at 20.

To wit,

Plaintiff did not receive medical treatment one would expect for
a totally disabled individual - more aggressive treatment,
surgical intervention, or a referral to a specialist.

Second,

the ALJ highlighted Plaintiff’s ability to engage in “a somewhat
normal level of daily activity and interaction” which involves
the same abilities and interactions necessary for obtaining and
maintaining employment.

Id. at 20-21.

Third, the ALJ cited

persistent non-participation in conservative treatment - failure
to do exercise as frequently as she should, and failing to take
medications regularly as instructed - as weighing strongly
against Plaintiff’s credibility.

Id. at 21.

Lastly, the ALJ

noted that Plaintiff worked after the alleged onset date.
Although the ALJ conceded that Plaintiff’s work activity after
the onset date did not constitute disqualifying substantial
gainful activity, she determined that it reflected daily

10

activities that “have, at least at times, been somewhat greater
than [Plaintiff] has generally reported.”

Id.

The Court addresses each in turn.
1.

Medical Evidence
a.

Course of Treatment

In determining that Plaintiff’s “allegations
concerning the intensity, persistence and limiting effects of her
symptoms [we]re less than fully credible,” the ALJ explained that
said allegations were “inconsistent with the objective medical
evidence which indicates an attempt by [Plaintiff] to exaggerate
the severity of her symptoms.”

Id. at 20.

Specifically, the ALJ

held:
The claimant has not generally received the type
of medical treatment one would expect for a
totally disabled individual. The lack of more
aggressive treatment, surgical intervention, or
even a referral to a specialist suggests the
claimant’s symptoms and limitations were not as
severe as she alleged. The credibility of the
claimant’s allegations regarding the severity of
her symptoms and limitations is diminished because
those allegations are greater than expected in
light of the objective evidence of record.
Id.

Plaintiff argues that the ALJ erred because her treating

physician, Dr. Coswin Saito, is a physiatrist.

A physiatrist is

a specialist in an area of medicine relevant to assessing
Plaintiff’s condition.
Cir. 1996).

Smolen v. Chater, 80 F.3d 1273, 1285 (9th

Therefore, it was improper for the ALJ to rely on

the lack of referral to a specialist as a basis for finding that

11

Plaintiff’s medical treatment was unexpected for a totally
disabled individual.

However, this error is harmless and does

not, by itself, undermine the ALJ’s finding, which was also based
on a lack of more aggressive treatment and surgical intervention.
Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)
(stating that error is harmless if it is inconsequential to the
ultimate determination).
An ALJ may rely on “unexplained, or inadequately
explained, failure to seek treatment or follow a prescribed
course of treatment” to find a pain allegation incredible.
885 F.2d at 603.

Fair,

“[E]vidence of ‘conservative treatment’ is

sufficient to discount a claimant’s testimony regarding severity
of an impairment.”

Parra, 481 F.3d at 751 (citing Johnson v.

Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995)); Tommasetti v.
Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (finding permissible
the ALJ’s inference that Tommasetti’s “pain was not as
all-disabling as he reported in light of the fact that he did not
seek an aggressive treatment program and did not seek an
alternative or more-tailored treatment program after he stopped
taking an effective medication due to mild side effects”); Meanel
v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (“Meanel’s claim
that she experienced pain approaching the highest level
imaginable was inconsistent with the ‘minimal, conservative
treatment’ that she received.”).

12

Plaintiff relies solely on Dr. Saito’s February 12,
2016 Medical Questionnaire, characterized by Plaintiff as a
“report”, to contend that her condition could not be handled
surgically and that more aggressive treatments were unavailable.3
Even considering Dr. Saito’s responses, the ALJ properly
discredited Plaintiff’s allegations of severe symptoms and
limitations based on her conservative course of treatment.4
Notably, this was one of multiple reasons cited as undercutting
Plaintiff’s credibility.
b.

X-ray and MRI Findings

According to Plaintiff, the ALJ’s determination that
the x-ray and MRI findings were not objective documentation of
Plaintiff’s subjective complaints, without medical expert
evidence, was improper.

It is Plaintiff’s position that if

radiographic findings were mild or normal, an ALJ could
reasonably assume that objective findings were not significant,
but if findings are not mild or normal, the ALJ lacks the medical
knowledge to interpret the findings.

This argument is unfounded

3

This questionnaire, presented to Dr. Saito by Plaintiff,
did not contain any written findings by Dr. Saito; it was
comprised of questions requiring “yes” or “no” responses. AR at
705-06.
4

As the Court will later discuss, Plaintiff did not even
follow the prescribed course of conservative treatment.
13

and without legal support.5
Inexplicably, in the “relevant facts” section of her
Amended Opening Brief, Plaintiff states that the ALJ did not
comment on the objective x-ray and MRI findings.6

Am. Opening

5

Plaintiff has not cited a single legal authority for this
proposition. Instead, she cites Day v. Weinberger, 522 F.2d
1154, 1156 (9th Cir. 1975), to argue that an ALJ is not entitled
to go outside the record to medical textbooks to aid in the
decision making process. Plaintiff speculates that because the
ALJ made conclusions without medical opinions, she must have gone
outside the medical record. This contention is meritless and the
inference illogical. The hearing examiner in Day expressly noted
that the claimant “did not exhibit the physical manifestations of
prolonged pain that are listed in a leading medical textbook”
during her appearance at the hearing. Id. No such findings were
made here, express or otherwise. The ALJ only discussed the
evidence in the record.
Plaintiff also cites Smith v. Colvin, No. CV 15-9799 JC,
2016 WL 4059627 (C.D. Cal. July 27, 2016), but her reliance is
misplaced. Smith is neither binding nor persuasive. The
plaintiff in Smith challenged the ALJ’s rejection of an examining
physician’s opinion. Id. at *3. This appeal does not challenge
the weight given to Dr. Saito’s opinions. Moreover, the Smith
court believed that the ALJ based findings on lay interpretation
of the plaintiff’s testimony and the raw data from individual
treatment records. Id. This Court has not and does not find
that the ALJ arrived at her decision by interpreting raw medical
data or offering improper lay opinions.
6

Plaintiff also erroneously stated that the opinions of
State Agency physicians were not referenced by the ALJ. These
misstatements cause the Court to question how carefully Plaintiff
has reviewed the Decision and administrative record. The ALJ
stated: “In determining the claimant’s residual functional
capacity, the undersigned has given some weight, but not full
weight to the opinions of the State agency physical medical
consultants on initial review and on reconsideration.” AR at 23.
She then discussed the respective opinions. Id. Because
Plaintiff does not challenge the Decision with respect to the
treatment of physician opinions, and she only mentioned the State
Agency physician opinions in her factual background section, the
Court need not address the matter.
14

Br. at 11.

This is plainly incorrect.

The ALJ discussed the x-

ray and MRI:
On July 9, 2012, x-rays of the lumbar spine
demonstrated degenerative changes at L4-5 (Ex. 2F,
p. 36, 50). . . . A magnetic resonance imaging
(MRI) of the lumbar spine dated October 29, 2012
showed mild degenerative changes at L3-4 and L4-5
(Ex. 2F, p. 40, 51). X-rays of the bilateral hips
on March 7, 2014 demonstrated questionable
possible very mild degenerative changes of the
left hip (Ex. 4F, p. 304).
AR at 22.

Her references to the x-rays and MRI were limited to

the objective findings as presented in the record.

She did not

interpret the findings or express medical opinions; she merely
recited the findings.

It is unclear how this could lead

Plaintiff to believe to that the ALJ interpreted medical data or
looked beyond the medical record.
Courts have upheld an ALJ’s rejection of a claimant’s
credibility when objective medical evidence, such as MRIs and xrays, show mild findings.

Burch, 400 F.3d at 681 (lack of

medical evidence - MRI and x-rays showing only mild degenerative
disc disease and mild dextroscoliosis - is a factor the ALJ can
consider in his credibility analysis to discount pain testimony);
Grinnell v. Colvin, No. SA CV 15-0555 JCG, 2015 WL 8783759, at *2
(C.D. Cal. Dec. 15, 2015); Remick v. Astrue, No. EDCV 09–593 JC,
2010 WL 3853081, at *4, *6, *9-10 (C.D. Cal. Sept. 29, 2010)
(concluding that the ALJ properly rejected the claimant’s
credibility in part because objective medical evidence, including

15

mild MRI and x-ray findings, contradicted the claimant’s alleged
limitations).
The July 9, 2012 x-ray showed degenerative changes,
vertebral alignment within normal limits, and no evidence of a
fracture.

AR at 350.

The October 29, 2012 MRI yielded the

following results:
IMPRESSION: Mild degenerative changes of the
lumbar spine, most pronounced at L3-4 and L4-5.
. . . .
FINDING: The alignment of the lumbar spine is
normal. There are mild to moderate degenerative
spondylotic changes; degenerative end plate
changes are seen at L4/5. No fracture or
destructive lesion is visible in the vertebral
bodies. Diffuse discogenic disease is present,
most prominent at L4/5. The conus is located at
the T 12-L1 level, with no mass or compression in
the peri-conal area.
L1-2:

Normal findings.

L2-3:

Normal findings.

L3-4: There is mild bilateral facet hypertrophy
and mild focal right posterolateral disc
protrusion into the right neuroforamen, without
spinal stenosis; there is mild right
neuroforaminal narrowing.
L4-5: There is moderate loss of disc height and
broad-based posterior disc protrusion extending
into and mildly narrowing the neuroforamen
bilaterally, immediately adjacent to the exiting
L4 nerve root, without spinal stenosis.
L5-S1: There is mild bilateral facet hypertrophy
and mild diffuse disc bulge, without spinal
stenosis or neuroforaminal narrowing.
Id. at 354, 365.

A March 7, 2014 x-ray revealed no fracture to
16

the pelvic ring; no significant degenerative narrowing of the hip
joint space; questionable mild narrowing superior laterally of
the left hip; and no fracture to the proximal femur.

Id. at 696.

Plaintiff proffers that an ALJ could reasonably assume
that objective findings were not significant if they were mild or
minimal.

The bulk of findings from the x-rays and MRI were

normal or mild.

Thus, according to Plaintiffs argument, the ALJ

could reasonably conclude that the objective findings were
insignificant.

In her Reply brief, Plaintiff claims that her

July 9, 2012 x-ray is not characterized.

In actuality, it

reflected vertebral alignment within normal limits.7

Plaintiff’s

arguments are unavailing and the ALJ properly determined that
these normal to moderate objective medical findings diminished
the credibility of Plaintiff’s allegations concerning the
severity of her symptoms and limitations.
In any event, the ALJ did not rely exclusively on the
x-ray and MRI findings to discredit Plaintiff’s credibility; they
were among multiple factors cited to contradict Plaintiff’s
subjective complaints.
c.

Other Evidence Cited by the ALJ

The ALJ’s Decision included additional references to
objective medical evidence that factored into the adverse

7

At the hearing, Plaintiff’s counsel argued that this is
only one limit. Evidence is not to be disregarded or diminished
simply because it is disfavorable to Plaintiff.
17

credibility determination, such as:

1) physical examination

showing “negative straight leg raise, motor strength was 5/5,
sensory was intact, reflexes were symmetric in the upper and
lower extremities, [Plaintiff’s] gait was normal, and [she] only
subjectively reported having swelling in both legs especially at
the end of the day”, AR at 22; 2) absence of opinion from Jill
Williams, PA-C, after having Plaintiff under her care for nearly
six months, “that [Plaintiff] had any functional limitations as a
result of her condition” or specification regarding Plaintiff’s
condition, id.; and 3) State Agency physician opinions that
Plaintiff “is able to perform a range of work at the light
exertional level with some difference in the degree of specific
function-by-function limitations”.

Id. at 23.

The foregoing objective medical evidence constitutes
specific, clear and convincing reasons for not fully crediting
Plaintiff’s allegations.
2.

Daily Activities
The ALJ concluded that Plaintiff’s engagement in a

somewhat normal level of daily activity and interaction
diminished her credibility with respect to allegations of
functional limitations.

The ALJ reasoned that “[s]ome of the

physical and mental abilities and social interactions required in
order to perform these activities are the same as those necessary
for obtaining and maintaining employment.”

18

Id. at 21.

“[T]he mere fact that a plaintiff has carried on
certain daily activities . . . does not in any way detract from
her credibility as to her overall disability.”

Orn, 495 F.3d at

639 (quoting Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir.
2001)) (quotations omitted).

An adverse credibility

determination requires daily activities that contradict a
claimant’s other testimony or meet the threshold for
transferrable work skills.

Id.

A claimant’s testimony may be

discredited “when the claimant reports participation in everyday
activities indicating capacities that are transferable to a work
setting.”

Molina, 674 F.3d 1104, 1113 (9th Cir. 2012) (citations

omitted); Burch, 400 F.3d at 681 (stating that a claimant’s
allegations may be discredited “if a claimant engages in numerous
daily activities involving skills that could be transferred to
the workplace”); Orn, 495 F.3d at 639.

Even in cases where daily

activities “suggest some difficulty functioning, they may be
grounds for discrediting the claimant’s testimony to the extent
that they contradict claims of a totally debilitating
impairment.”

Molina, 674 F.3d at 1113 (citations omitted).

Here, the ALJ cited Plaintiff’s ability to drive, go to
the store, prepare her own meals, spend time with her family,
take care of her own personal hygiene, do dishes and dusting, and
serve as caretaker to her ill sister.

AR at 20.

Plaintiff

argues that the ALJ disregarded her testimony that she lies

19

around and watches TV for most of the day and that she has three
to four bad days per week, during which she spends the majority
of her time in bed.

Id. at 38, 46-47.

The Court disagrees.

The ALJ found that notwithstanding her impairments,
Plaintiff was able to engage in a somewhat normal level of daily
activity and interaction based on the daily activities identified
above.

The ability to carry out these daily activities

contradicted other testimony, such as lying around and watching
TV and having three to four bad days per week.

That the ALJ did

not specifically address a couple of statements made by Plaintiff
during her testimony does not mean those statements were
disregarded.

In fact, the contradiction between those statements

and Plaintiff’s self-reported daily activities is a clear and
convincing basis to discredit her allegations of impairment.
Moreover, the ALJ concluded that Plaintiff’s abilities and
interactions required to perform the referenced daily activities
are the same as those required to obtain and maintain employment.
Based on the contradiction and capacities that are transferrable
to the workplace, the ALJ properly opined that Plaintiff’s
credibility as to her allegations of functional limitations was
diminished.
3.

Treatment History
The ALJ found that Plaintiff’s persistent non-

participation in conservative treatment weighed strongly against

20

her credibility in alleging disability, as Plaintiff’s failure to
do exercises as frequently as she should and take medications
regularly as instructed demonstrates an unwillingness to take
necessary steps to improve her condition and indicates symptoms
less severe than she purports.

Id. at 21.

Plaintiff asserts

that the ALJ erred in the following respects:

1) the relevant

medications were for diabetes, but the disability concerns her
back and 2) the ALJ failed to address both the fact that
Plaintiff cancelled her last exercise session due to illness and
that Plaintiff was well motivated.
As already noted, an ALJ may rely on “unexplained, or
inadequately explained, failure to seek treatment or follow a
prescribed course of treatment” to find a pain allegation
incredible.

Fair, 885 F.2d at 603.

There may be any number of

good reasons for failing to follow a course of treatment, but “a
claimant’s failure to assert one, or a finding by the ALJ that
the proffered reason is not believable, can cast doubt on the
sincerity of the claimant’s pain testimony.”
a.

Id.

Medication

Plaintiff contends that any failure to take
medications, even if it occurred with regularity, is irrelevant
because the medications were for diabetes, not back problems.
The ALJ was aware, in citing Plaintiff’s failure, that it related
to her diabetes.

The ALJ remarked that Plaintiff was diagnosed

21

with diabetes mellitus in 2012, and that progress notes from June
2013 indicated she did not take medications regularly as
instructed.

AR at 22.

Although Plaintiff attempts to diminish

the relevance of her diabetes and failure to take medications,
Dr. Saito “assessed functional limitations that would preclude
[her] from working at the level of substantial gainful activity
due to lumbar spondylosis, diabetes mellitus, history of
depression, and venous stasis.”

Id. (emphasis added).

Indeed,

the ALJ found, which Plaintiff does not dispute or challenge,
that Plaintiff has two severe impairments:

degenerative disc

disease of the lumbar spine and diabetes mellitus.

Id. at 18.

As such, Plaintiff’s failure to take prescribed medications, even
if for diabetes and not for her back problems, undercuts her
claim of disability and debilitating pain.

Sager v. Colvin, 622

Fed. Appx. 629, 629 (9th Cir. 2015) (Sager’s failure “to comply
with treatment recommendations to quit smoking, take prescribed
medications, have epidural injections, consistently perform a
home exercise program and consider spinal cord stimulation
treatment . . . undermines his claims of debilitating pain.”).
b.

Exercises

Plaintiff complains that while the ALJ stated that she
was not doing her exercises as frequently as she should, the ALJ
did not explain that she was well motivated and that she
cancelled a physical therapy session due to illness.

22

This is a

mischaracterization of the evidence.

The progress notes stated

that Plaintiff cancelled the previous session due to illness.
at 472.

AR

However, the notes then stated that Plaintiff was not

doing exercises as much as she should.

Id.

The comment about

her failure to do exercises does not appear to be limited to her
cancellation of a single therapy session, as the treatment
included a home exercise program.

Id.

Plaintiff was highly

encouraged to keep up with her exercises as recommended.
473.

Id. at

As for the purported commentary that Plaintiff was well

motivated, this is an exaggeration on her part.

A “yes” response

was provided to “Patient understands agrees & motivated”.
at 474.

Id.

Later in the notes, “Rehab Potential (Good, poor or

questionable)” was deemed to be “fair based on patient’s history,
motivation and goals.”

Id.

The Court finds disingenuous Plaintiff’s argument and
concludes that the ALJ properly determined that Plaintiff’s
failure to consistently perform a home exercise program
undermined her claims of disability.
4.

Work Activity After the Onset Date
As a final basis to support an adverse credibility

determination, the ALJ pointed to Plaintiff’s work activity after
the onset date.

Plaintiff explains that she only worked for a

few weeks because she was unable to continue full time employment
and her employer could not accommodate her request for part time

23

work.
“It does not follow from the fact that a claimant tried
to work for a short period of time and, because of his
impairments, failed, that he did not then experience pain and
limitations severe enough to preclude him from maintaining
substantial gainful employment.”

Lingenfelter, 504 F.3d at 1038.

The mere fact that a claimant works, without more, does not
necessarily provide a clear and convincing reason for an adverse
credibility determination.
In this case, the ALJ did not summarily conclude that
Plaintiff’s work activity after the onset date warranted an
adverse credibility determination.

Rather, the ALJ acknowledged

that the work did not constitute disqualifying substantial
gainful activity, but indicated that Plaintiff’s “daily
activities have, at least at times, been somewhat greater than
the claimant generally reported.”

AR at 21.

In other words,

Plaintiff’s work activity tended to demonstrate a level of
activity in conflict with her claims of severe impairment.
Plaintiff testified that although she could not work full time,
she thought she could work part time, or wanted to try.
45-46.

Id. at

Significantly, work activity did not alone serve as the

basis for rejecting Plaintiff’s allegations about the severity of
her symptoms.

The fact that Plaintiff was able to engage in work

and other daily activities after the onset date is a clear and

24

convincing basis to support an adverse credibility determination.
Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir.
2009) (the ALJ properly discounted the claimant’s testimony
because, among other reasons, “she leads an active lifestyle,
including cleaning, cooking, walking her dogs, and driving to
appointments . . . [and] she recently worked as a personal
caregiver for two years, and has sought out other employment
since then”).
For the reasons set forth above, the Court concludes
that the ALJ offered clear and convincing reasons for not fully
crediting Plaintiff’s testimony and statements.

See, e.g.,

Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175 (9th Cir. 2008)
(finding that the ALJ sufficiently explained his reasons for
discrediting the claimant’s testimony when he explained that the
claimant’s allegations regarding symptoms were disproportionate
and not supported by the objective medical findings or other
corroborating evidence because she engaged in normal activities
of daily living, which suggested that she may be capable of
performing the demands of unskilled work on a sustained basis,
and doctors’ reports concluded that she could perform a limited
range of work); Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d
685, 693 (9th Cir. 2009) (holding that the ALJ’s resolution
between conflicting evidence - credible evidence directly
contradicted how debilitating the claimant’s fatigue was -

25

provided a clear and convincing reason to reject the claimant’s
subjective testimony).
The ALJ is responsible for weighing the evidence and
determining credibility.

Andrews, 53 F.3d at 1039.

Based on the

ALJ’s reasoned assessment of the evidence, the Court will not
substitute its judgment for that of the ALJ.

An ALJ’s

credibility determinations will not be reversed based on
ambiguous or contradictory evidence.

Johnson, 60 F.3d at 1434

(citing Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984)).
Thus, even if the ALJ’s interpretation of Plaintiff’s testimony
and the evidence may not be the only reasonable one, it is
nevertheless a reasonable interpretation and is supported by
substantial evidence.
(9th Cir. 2001).

Rollins v. Massanari, 261 F.3d 853, 857

As such, the Court will not second-guess it.

Id.
B.

Dr. Saito’s February 12, 2016 Medical Questionnaire8
1.

The Appeals Council did not Err
Plaintiff lastly argues that the Appeals Council erred

by failing to consider Dr. Saito’s February 12, 2016 Medical
Questionnaire.

To the extent Plaintiff is challenging the

Appeals Council’s denial, no relief can be accorded.

When the

Appeals Council denies a request for review of an ALJ’s decision,
district courts lack jurisdiction to review the Appeals Council’s

8

Plaintiff refers to the document as a “report”.
26

decision because it is a non-final agency action.

Brewes v.

Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012)
(citing Taylor v. Comm’r of Soc. Sec. Admin., 659 F.3d 1228, 1231
(9th Cir. 2011)).
Plaintiff concedes that Dr. Saito’s questionnaire was
admitted into evidence, but postulates that the Appeals Council’s
failure to expressly state that it was considered necessarily
means that it did not do so.

The Court disagrees.

The Order of Appeals Council states:
The Appeals Council has received additional
evidence which it is making part of the record.
That evidence consists of the following exhibits:
Exhibit 18E

Representative Brief dated December
16, 2014 (3 pages)

Exhibit 8F

Medical Questionnaire and
supporting documents (Coswin Saito,
M.D[.]) dated July 10, 2012 to
February 12, 2016 (5 pages)

AR at 5 (emphasis added).

In the Notice of Appeals Council

Action, under the heading “What We Considered”, the Appeals
Council stated:

“We considered whether the Administrative Law

Judge’s action, finding, or conclusion is contrary to the weight
of the evidence of record.

We found that this information does

not provide a basis for changing the Administrative Law Judge’s
decision.”

Id. at 2 (emphasis added).

While the Appeals Council

did not expressly reference Dr. Saito’s February 2016
questionnaire in the “What We Considered” section, the only

27

logical conclusion to be drawn is that the Appeals Council
considered it because it was part of the evidence of record.
Accepting Plaintiff’s position requires the Court to speculate
and make inferences that are inconsistent with the plain language
of the Appeals Council’s Order and Notice of Action.

The Court

therefore rejects Plaintiff’s argument that the Appeals Council
erred by failing to consider Dr. Saito’s questionnaire.9
2.

Dr. Saito’s Medical Questionnaire Does not Support
Reversal of the ALJ’s Decision
Because Dr. Saito’s questionnaire was part of the

evidentiary record before the Appeals Council, it is part of the
administrative record.

Brewes, 682 F.3d at 1163 (holding that

“when the Appeals Council considers new evidence in deciding
whether to review a decision of the ALJ, that evidence becomes
part of the administrative record, which the district court must
consider when reviewing the Commissioner’s final decision for
substantial evidence”).

Dr. Saito’s questionnaire does not

undermine the ALJ’s decision, however, nor does it change the
outcome of these proceedings.
When asked whether Plaintiff’s ability to work improved
since he last reported on July 15, 2014, Dr. Saito circled “no”.
AR at 705.

Dr. Saito also circled “no” when queried whether

9

Had the Appeals Council failed to consider Dr. Saito’s
questionnaire, remand to the ALJ would be “appropriate so that
the ALJ can reconsider its decision in light of the additional
evidence.” Taylor, 659 F.3d at 1233.
28

surgery was possible to handle Plaintiff’s condition and whether
more aggressive treatments would help.

Id.

In response to a

request to list objective findings that support Plaintiff’s
subjective complaints, Dr. Saito attached the July 9, 2012 x-ray
and the October 29, 2012 MRI results.

Id. at 706.

The last

question sought an opinion about whether Plaintiff was
straightforward and honest in relating her complaints.

Id.

Dr.

Saito responded in the affirmative, but did not provide an
explanation as requested.

Id.

Dr. Saito’s responses, which are consistent with his
earlier findings, do not change the Court’s reasoning as detailed
above.

Dr. Saito opined that Plaintiff’s ability to work did not

improve since last reported in 2014, but the ALJ offered specific
reasons why she gave little weight to his opinions from 2014 and
2012.10

Id. at 22.

With respect to the clarification that

surgery was inappropriate and more aggressive treatment
unavailable, the Court has already addressed this issue and
determined that the ALJ properly relied upon Plaintiff’s
conservative course of treatment as a basis for her adverse
credibility determination.

Even if this Court found that such

reliance was erroneous in view of the questionnaire, multiple
other bases support the adverse credibility determination.

10

And, as already pointed out, Plaintiff does not
challenge the evaluation of the Dr. Saito’s 2012 and 2014
opinions in this appeal.
29

The x-ray and MRI results that are attached to the
questionnaire were considered by the ALJ and found to contradict
Plaintiff’s subjective complaints.

That Dr. Saito has expressly

pointed to them as objective findings supporting Plaintiff’s
subjective complaints does not require this Court to concur.

The

Court found proper the ALJ’s determination that the objective
medical evidence, such as the x-ray and MRI findings,
contradicted Plaintiff’s allegations.

Finally, Dr. Saito’s

affirmation of Plaintiff’s credibility has no bearing here.
Credibility determinations are the province of the ALJ, not Dr.
Saito.

Fair, 885 F.2d at 604.

For these reasons, the

questionnaire does not change the fact that the ALJ’s Decision is
supported by substantial evidence.
In sum, the Court concludes that the ALJ’s Decision
should be affirmed because 1) the ALJ provided clear and
convincing reasons for not fully crediting Plaintiff’s
allegations about the intensity, persistence, and limiting
effects of her symptoms and 2) the ALJ’s finding of “not
disabled” is supported by substantial evidence.

Even if the

record, taken as a whole, could also support a reversal, the
Decision must nevertheless be affirmed because the Court may not
substitute its judgment for that of the ALJ.
1211; Matney, 981 F.2d at 1018.

30

Hiler, 687 F.3d at

CONCLUSION
In accordance with the foregoing, the Court HEREBY
AFFIRMS the ALJ’s Decision.
IT IS SO ORDERED.
DATED:

Honolulu, Hawaii, September 8, 2017.

_____________________________
Kevin S.C. Chang
United States Magistrate Judge

CIVIL NO. 16-00397 KSC; FRIERSON V. BERRYHILL; ORDER AFFIRMING THE DECISION OF
THE ADMINISTRATIVE LAW JUDGE

31