Haugen, Jr. vs Astrue

Filing 21

MEMORANDUM DECISION AND ORDER re: 1 Petition for Review filed by Raymond Haugen, Jr. Plaintiffs Petition for Review (Dkt. 1) is DISMISSED. Signed by Judge Candy W Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by krb)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

RAYMOND HAUGEN, JR.,
Petitioner,

Case No. 2:10-CV-258-CWD

v.

MEMORANDUM DECISION AND
ORDER

MICHAEL J. ASTRUE,
Commissioner of Social Security
Administration,
Respondent.

INTRODUCTION
Currently pending before the Court for its consideration is the Petition for Review
(Dkt. 1) filed on May 19, 2010, by Petitioner Raymond Haugen Jr. (“Petitioner”) of the
Respondent’s denial of social security benefits. The Court has reviewed the Petition for
Review and the Answer, the parties’ memoranda, and the administrative record (“AR”),
and for the reasons that follow, will affirm the decision of the Commissioner.
PROCEDURAL AND FACTUAL HISTORY
Petitioner filed an application for Disability Insurance Benefits and Supplemental
Security Income on December 5, 2007, alleging disability due to left knee pain and low
MEMORANDUM DECISION AND ORDER - 1

back pain. The application was denied initially and on reconsideration, and a hearing was
held on August 18, 2009, before Administrative Law Judge (“ALJ”) Robert Chester. ALJ
Chester heard testimony from Petitioner and vocational expert Diane Kramer. ALJ
Chester issued a decision finding Petitioner not disabled on September 4, 2009, and
Petitioner timely requested review by the Appeals Council, which denied his request for
review on March 24, 2010. (AR 1–4.)
Petitioner appealed this final decision to the Court. The Court has jurisdiction to
review the ALJ’s decision pursuant to 42 U.S.C. § 405(g).
At the time of the hearing, Petitioner was fifty one years of age. Petitioner
completed high school, has one year of post-secondary education, and completed an
apprenticeship in the roofing trade. Petitioner’s prior work experience includes work as a
roofer and as a customer service representative in a sports card and memorabilia store.
SEQUENTIAL PROCESS
The Commissioner follows a five-step sequential evaluation for determining
whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920. At step one, it must
be determined whether the claimant is engaged in substantial gainful activity. The ALJ
found Petitioner had not engaged in substantial gainful activity since his alleged onset
date. At step two, it must be determined whether the claimant suffers from a severe
impairment. The ALJ found Petitioner’s low back pain and osteoarthritis of the left knee
were severe impairments within the meaning of the Regulations.
Step three asks whether a claimant’s impairments meet or equal a listed
MEMORANDUM DECISION AND ORDER - 2

impairment. The ALJ found that Petitioner’s impairments did not meet or equal the
criteria for the listed impairments, and specifically considered Listing 1.02 ,1.04, and
14.09. If a claimant’s impairments do not meet or equal a listing, the Commissioner must
assess the claimant’s residual functional capacity (“RFC”) and determine at step four
whether the claimant has demonstrated an inability to perform past relevant work.
The ALJ found Petitioner was not able to perform his past relevant work as a
roofer, but could perform his past relevant work as a store manager or cashier. Therefore,
the ALJ found Petitioner not disabled at step four of the sequential process.
Because the Commissioner found Petitioner could perform his past relevant work,
the Commissioner did not proceed to step five.1
STANDARD OF REVIEW
Petitioner bears the burden of showing that disability benefits are proper because
of the inability “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); see
also 42 U.S.C. § 1382c(a)(3)(A); Rhinehart v. Fitch, 438 F.2d 920, 921 (9th Cir. 1971).
An individual will be determined to be disabled only if his physical or mental

1

If a claimant demonstrates an inability to perform past relevant work, the burden
shifts to the Commissioner to demonstrate at step five that the claimant retains the
capacity to make an adjustment to other work that exists in significant levels in the
national economy, after considering the claimant’s residual functional capacity, age,
education and work experience.
MEMORANDUM DECISION AND ORDER - 3

impairments are of such severity that he not only cannot do his previous work but is
unable, considering his age, education, and work experience, to engage in any other kind
of substantial gainful work which exists in the national economy. 42 U.S.C. §
423(d)(2)(A).
On review, the Court is instructed to uphold the decision of the Commissioner if
the decision is supported by substantial evidence and is not the product of legal error. 42
U.S.C. § 405(g); Universal Camera Corp. v. Nat’l Labor Relations Bd., 340 U.S. 474
(1951); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999) (as amended); DeLorme v.
Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.
Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a scintilla but less than
a preponderance, Jamerson v Chater, 112 F.3d 1064, 1066 (9th Cir. 1997), and “does not
mean a large or considerable amount of evidence.” Pierce v. Underwood, 487 U.S. 552,
565 (1988).
The Court cannot disturb the Commissioner’s findings if they are supported by
substantial evidence, even though other evidence may exist that supports the petitioner’s
claims. 42 U.S.C. § 405(g); Flaten v. Sec’y of Health and Human Servs., 44 F.3d 1453,
1457 (9th Cir. 1995). Thus, findings of the Commissioner as to any fact, if supported by
substantial evidence, will be conclusive. Flaten, 44 F.3d at 1457. It is well-settled that, if
there is substantial evidence to support the decision of the Commissioner, the decision
must be upheld even when the evidence can reasonably support either affirming or
MEMORANDUM DECISION AND ORDER - 4

reversing the Commissioner’s decision, because the Court “may not substitute [its]
judgment for that of the Commissioner.” Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir.
1999).
When reviewing a case under the substantial evidence standard, the Court may
question an ALJ’s credibility assessment of a witness’s testimony; however, an ALJ’s
credibility assessment is entitled to great weight, and the ALJ may disregard self-serving
statements. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Where the ALJ
makes a careful consideration of subjective complaints but provides adequate reasons for
rejecting them, the ALJ’s well-settled role as the judge of credibility will be upheld as
based on substantial evidence. Matthews v. Shalala, 10 F.3d 678, 679-80 (9th Cir. 1993).
DISCUSSION
Petitioner argues the ALJ erred at steps three and four. First, Petitioner contends
that his impairments, specifically his osteoarthritis of his left knee, meets the listing
criteria of § 1.02(A). Second, Petitioner contends that the ALJ’s Residual Functional
Capacity (“RFC”) assessment is not supported by substantial evidence, specifically the
finding that Petitioner could perform light work with a sit/stand option. Third, Petitioner
contends that the ALJ failed to present clear and specific reasons for rejecting Petitioner’s
testimony and finding him less than fully credible. And finally, Petitioner disputes that his
past work as a store manager supports the ALJ’s finding that such work constitutes “past
relevant work.” Petitioner asserts that his treating physician’s assessment of his RFC
corresponds with Vocational Rule 201.14, and directs a finding of disabled because the
MEMORANDUM DECISION AND ORDER - 5

base of sedentary work is significantly eroded due to his limitations and he has no
transferrable skills.
Respondent refutes the above claims contending that, while Petitioner does
experience pain, his condition does not meet the requirements of a listed impairment.
Respondent contends that sufficient evidence in the record supports the ALJ’s findings
that Petitioner was less than fully credible, and that the RFC assessment is supported by
substantial evidence in the record. Respondent argues that it was appropriate for the
vocational expert to consider Petitioner’s work in a retail establishment and assume that
he could perform work as a cashier or store manager. And finally, Respondent asserts that
the letter submitted from his treating physician was submitted after the close of the
evidence, and Petitioner has not shown good cause for having failed to produce the
evidence earlier. Therefore, Respondent argues the letter should not be considered.
1. Whether Petitioner’s Impairments Meet or Equal a Listing
The ALJ found that Petitioner’s impairments did not meet or equal any listing,
specifically considering Listing 1.02, 1.04, and 14.09. Petitioner argues that the
impairments to his left knee meet or equal Listing 1.02A, and that the ALJ committed
error at step two. Petitioner asserts that he suffers from chronic knee pain and stiffness,
and that clinical findings show a gross anatomical deformity as well as joint space
narrowing. Petitioner contends that he cannot ambulate effectively because he is unable to
walk two blocks over uneven ground at a reasonable pace and his knee interferes with
activities of daily living.
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If the claimant satisfies the criteria under a listing and meets the twelve month
duration requirement, the Commissioner must find the claimant disabled without
considering age, education and work experience. 20 C.F.R. § 404.1520(a)(4)(iii), (d). A
claimant bears the burden of producing medical evidence that establishes all of the
requisite medical findings that his impairments meet or equal any particular listing.
Bowen v. Yuckert, 482 U.S 137, 146, n. 5 (1987). Further, if the claimant is alleging
equivalency to a listing, the claimant must proffer a theory, plausible or other, as to how
his combined impairments equal a listing. See Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir.
2001).
Listing 1.02 pertains to musculoskeletal impairments and major dysfunction of a
joint, due to any cause. Such dysfunction is characterized by:
gross anatomical deformity (e.g., subluxation, contracture,
bony or fibrous ankylosis, instability) and chronic joint pain
and stiffness with signs of limitation of motion or other
abnormal motion of the affected joint(s), and findings on
appropriate medically acceptable imaging of joint space
narrowing, bony destruction, or ankylosis of the affected
joint(s). With:
A. Involvement of one major peripheral weight-bearing joint
(i.e., hip, knee, or ankle), resulting in inability to ambulate
effectively, as defined in 1.00B2b; or
B. Involvement of one major peripheral joint in each upper
extremity (i.e., shoulder, elbow, or wrist-hand), resulting in
inability to perform fine and gross movements effectively, as
defined in 1.00B2c.
The “inability to ambulate effectively” is defined as:
an extreme limitation of the ability to walk; i.e., an
impairment(s) that interferes very seriously with the
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individual’s ability to independently initiate, sustain, or
complete activities. Ineffective ambulation is defined
generally as having insufficient lower extremity functioning
(see 1.00J) to permit independent ambulation without the use
of a hand-held assistive device(s) that limits the functioning
of both upper extremities. (Listing 1.05C is an exception to
this general definition because the individual has the use of
only one upper extremity due to amputation of a hand.)
(2) To ambulate effectively, individuals must be capable of
sustaining a reasonable walking pace over a sufficient
distance to be able to carry out activities of daily living. They
must have the ability to travel without companion assistance
to and from a place of employment or school. Therefore,
examples of ineffective ambulation include, but are not
limited to, the inability to walk without the use of a walker,
two crutches or two canes, the inability to walk a block at a
reasonable pace on rough or uneven surfaces, the inability to
use standard public transportation, the inability to carry out
routine ambulatory activities, such as shopping and banking,
and the inability to climb a few steps at a reasonable pace
with the use of a single hand rail. The ability to walk
independently about one's home without the use of assistive
devices does not, in and of itself, constitute effective
ambulation.
Appendix 1 to Subpart P of Part 404—Listing of Impairments.
The ALJ found that Petitioner did not suffer from gross anatomical deformity and
chronic joint pain and stiffness with signs of limitation of motion or other abnormal
motion of the affected joint with joint space narrowing. While the ALJ failed to elaborate,
the ALJ did make factual findings concerning the extent of Petitioner’s joint deformity
and range of motion, (AR 19), and the record as a whole supports the ALJ’s finding in
this regard. While Petitioner may have chronic pain documented in the record, most
recently, on May 27, 2008, Petitioner’s treating orthopaedist Dr. Brewster examined
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Petitioner, and found his knee to be “stable” with the ability to “fully extend[] his knee,”
with “satisfactory joint space present.” (AR 19, 472.) These findings are inconsistent with
the listing criteria.
Even if the ALJ improperly considered the medical evidence with respect to his
finding that Petitioner’s knee did not demonstrate gross anatomical deformity, joint pain
and stiffness, accompanied by incomplete range of motion, there is no error considering
the record supports a finding that Petitioner is able to ambulate effectively. The ALJ did
not consider at step two Petitioner’s inability to ambulate effectively. Instead, the ALJ
proceeded pursuant to Listing 1.02(B), finding that Petitioner did not have the inability to
perform fine and gross movements effectively. However, Petitioner did not have any
impairment in his upper extremities, and the Court finds it was error for the ALJ to base
his decision at step 2 under Listing 1.02(B).
But, in this instance the ALJ’s error was harmless. Burch v. Barnhart, 400 F.3d
676, 678 (9th Cir. 2005) (“A decision of the ALJ will not be reversed for errors that are
harmless.”). When it is clear from the record that an ALJ’s error was “inconsequential to
the ultimate nondisability determination, an error is considered harmless. Robbins v. Soc.
Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006).
Petitioner’s medical records as a whole support the conclusion that Petitioner was
able to ambulate effectively. The ALJ considered Petitioner’s ability to ambulate
elsewhere in his decision, finding that Petitioner could walk albeit with a slight limp, was
able to walk on his toes and heels, could walk without the use of a cane, and was able to
MEMORANDUM DECISION AND ORDER - 9

walk with a normal gait between 1998 and 2003. (AR 19.) Although Petitioner testified
he was unable to walk two blocks over uneven ground at a reasonable pace, ineffective
ambulation requires a finding that the individual cannot ambulate without the use of
hand-held assistive devices. The evidence in the record indicates that, as late as April
2007, Petitioner was moving “without significant difficulty.” (AR 308.) On May 27,
2008, Dr. Brewster noted that, although Petitioner walked “with a slight limp,” there was
no indication that Petitioner used or required a cane, walker, or other assistive device.
According to Petitioner’s records, no physician prescribed any assistive device.
The ALJ found also that Petitioner was able to perform household chores, drive
and shop by himself, and care for himself, contrary to a finding of ineffective ambulation.
(AR 20.) Petitioner testified he was able to mow the lawn, and that he went shopping by
himself sometimes. (AR 47.) On his disability function report dated May 10, 2008,
Petitioner indicated he prepared coffee and breakfast, was able to care for his cat, and
performed household chores. (AR 170.) Petitioner indicated he was able to drive by
himself, and that he used his cane only when his knee caused him to limp. (AR 173, 176.)
The ALJ’s findings concerning Petitioner’s ability to ambulate effectively,
although considered elsewhere in his opinion, are supported by substantial evidence in the
record. The Court finds that the ALJ applied the correct legal standards at step two of his
analysis, and to the extent the ALJ based his conclusion on Listing 1.02(B), such error
was harmless because the error was inconsequential to the ultimate nondisability
determination. Substantial evidence in the record supports the ALJ’s determination that
MEMORANDUM DECISION AND ORDER - 10

Petitioner’s osteoarthritis of his knee did not meet the criteria for Listing 1.02.
2. Credibility
Petitioner contends that the ALJ failed to present clear and specific reasons for
rejecting his testimony concerning the severity, persistence, and limiting effects of his
pain. The ALJ found Petitioner’s testimony not entirely credible based upon the
inconsistencies between the Petitioner’s testimony, his treatment record, and his daily
activities. Petitioner testified that he is in constant pain due to his back and knee condition
and is limited to sitting in a chair no longer than thirty minutes. He stated that he could
stand so long as he was not climbing stairs, and walk provided it was not for a long time,
or on uneven surfaces. He stated also that walking for prolonged periods would cause him
to limp, and he would need to stop to rest, apply ice, and take pain medications. Petitioner
testified that his lifting ability is limited, restricted to 15 pounds, and his medications
make him groggy. (AR 17, 35, 37, 39, 41.) The ALJ concluded Petitioner’s allegations
regarding the intensity, persistence and limiting effects of his pain symptoms were
inconsistent with the following: (1) Petitioner’s treating physicians’ opinions; (2)
consultative treating physicians’ opinions; (3) Petitioner’s activities of daily living; (4)
the conservative treatment regimen prescribed for Petitioner; and (5) Petitioner’s failure
to follow his prescribed medication management and treatment regimen.
The ALJ is responsible for determining credibility, resolving conflicts in medical
testimony, and resolving ambiguities. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir.
1998). The ALJ’s findings must be supported by specific, cogent reasons. Reddick, 157
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F.3d at 722. If a claimant produces objective medical evidence of an underlying
impairment, an ALJ may not reject a claimant’s subjective complaints of pain based
solely on lack of medical evidence. Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005).
See also Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997) (holding that an
ALJ may not discredit a claimant’s subjective testimony on the basis that there is no
objective medical evidence that supports the testimony). Unless there is affirmative
evidence showing that the claimant is malingering, the ALJ must provide clear and
convincing reasons for rejecting pain testimony. Burch, 400 F.3d at 680. General findings
are insufficient; the ALJ must identify what testimony is not credible and what evidence
undermines the claimant’s complaints. Reddick, 157 F.3d at 722.
The reasons an ALJ gives for rejecting a claimant’s testimony must be supported
by substantial evidence in the record. Regennitter v. Comm’r of Soc. Sec. Admin., 166
F.3d 1294, 1296 (9th Cir. 1999). If there is substantial evidence in the record to support
the ALJ’s credibility finding, the Court will not engage in second-guessing. Thomas v.
Barnhart, 278 F.3d 957, 959 (9th Cir. 2002). When the evidence can support either
outcome, the court may not substitute its judgment for that of the ALJ. Tackett v. Apfel,
180 F.3d 1094, 1098 (9th Cir. 1999).
In evaluating credibility, the ALJ may engage in ordinary techniques of credibility
evaluation, including considering claimant’s reputation for truthfulness and
inconsistencies in claimant’s testimony, or between claimant’s testimony and conduct,
claimant’s daily activities, claimant’s work record, and testimony from physicians and
MEMORANDUM DECISION AND ORDER - 12

third parties concerning the nature, severity and effect of the symptoms of which claimant
complains. Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). Also, the ALJ may
consider the location, duration and frequency of symptoms; factors that precipitate and
aggravate those symptoms; the amount and side effects of medications; and treatment
measures taken by the claimant to alleviate those symptoms. See Soc. Sec. Ruling 96-7p.
A failure to follow prescribed treatment may be used as sufficient evidence to
support a conclusion that a claimant is not credible in describing symptoms about pain,
and form the basis for finding the complaint unjustified or exaggerated. Orn v. Astrue,
495 F.3d 625, 637-638 (9th Cir. 2007).
Here, Petitioner has shown that he suffers from a medically-established back and
knee impairment that could reasonably be expected to produce pain and reduced mobility.
Therefore, his subjective testimony about his pain can be rejected only for clear and
convincing reasons. Accordingly, the Court must determine whether the ALJ’s adverse
credibility finding is supported by substantial evidence under the clear and convincing
standard.
The ALJ rejected Petitioner’s testimony about the limiting effects of his pain based
upon contradictions in Petitioner’s medical records. While it is undisputed that Petitioner
underwent back surgery and suffered a severe injury from a fall on May 4, 1998, and
underwent eight knee surgeries on his left knee after the injury, Petitioner’s treating and
consultative physicians opined that Petitioner can work despite his physical limitations.
Contradiction with the medical record “is a sufficient basis for rejecting the claimant’s
MEMORANDUM DECISION AND ORDER - 13

subjective testimony.” Carmickle v. Comm’r, Social Sec. Admin., 533 F.3d 1155, 1161
(9th Cir. 2008). Reports of treating physicians submitted relative to Petitioner’s workrelated ability are persuasive evidence of a claimant’s disability due to pain and his
inability to engage in any form of gainful activity. Gallant v. Heckler, 753 F.3d 1450,
1454 (9th Cir. 1984). More weight is accorded to the opinion of a treating source than to
nontreating physicians. Winans v. Bowen, 853 F.2d 643, 647 (9th Cir.1987).
The medical records indicated that surgical repair occurred on May 4, 1998, to
repair the fracture to Petitioner’s left knee. Orthopedist Dr. Brewster provided postoperative treatment. On April 23, 2001, Dr. Brewster recommended vocational
rehabilitation to allow Petitioner to work at a sedentary job. (AR 275; See also AR 280,
287.) This sentiment was previously set forth by Dr. Pike, a second consultative
orthopedist, who examined Petitioner on June 8, 1999, and who also opined that
Petitioner would be able to perform a job where he was not on his feet continuously and
not doing much climbing, bending, or squatting. (AR 386.) Dr. Pike examined Petitioner
again on September 4, 2002, and continued to be of the opinion Petitioner could return to
work with modified activities. (AR 415.)
On April 30, 2003, Dr. Brewster examined Petitioner during a follow up exam,
indicated that nothing further surgically could be done to alleviate Petitioner’s pain, and
that pain medications would be required for pain management. (AR 259.) On May 13,
2003, Dr. Stevens performed an independent medical exam, found Petitioner “medically
stable,” and that he could return to work but not as a roofer. (AR 450–63.) In addition, Dr.
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Stevens noted that drug therapy was for maintenance purposes only, that Petitioner was
not currently on a significant amount of medication, and that Petitioner did not exhibit an
altered gait pattern. (AR 462.)
Dr. Magnuson, one of Petitioner’s consulting physicians for pain management,
treated him on October 22, 2003. Dr. Magnuson acknowledged that Petitioner reported
his pain was throbbing, sharp, and burning, with activity and walking exacerbating the
pain. (AR 249.) However, Dr. Magnuson noted Petitioner’s gait was “normal,” and he
recommended conservative treatment with analgesics, ice, heat, and wearing a knee brace.
(AR 249–50.)
Beginning in June of 2003 and continuing through 2004, Petitioner established
care with Dr. Borsheim for medication management. Dr. Borsheim noted that Dr.
Brewster could do nothing further surgically for Petitioner. (AR 293--297.) Dr. Borsheim
recorded in his progress notes that, overall, Petitioner “seems to be doing okay.” (AR
294.) As of June 28, 2004, Dr. Borsheim recorded that Petitioner walked with a “bit” of a
limp, but that there was no swelling, no new symptoms, and that the present pain regimen
was “tolerable.” (AR 297.)
On March 22, 2005, Dr. Brewster referred Petitioner for a second orthopaedic
opinion to see if further surgery, a distal femoral osteotomy, was appropriate. (AR 257).
On May 26, 2005, consulting orthopedists Dr. Sciba and Dr. Keeve examined Petitioner,
noted no knee instability, full extension, but limited flexion to 115/120 degrees. (AR
255). They did not recommend any further surgical intervention. (AR 255.)
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On March 17, 2006, Dr. Borsheim saw Petitioner for a follow up examination
noting that, overall, Petitioner was “doing fine, not having real significant difficulties,”
and that Petitioner reported he felt “as if things are stable.” (AR 304.) At the same visit,
however, Petitioner simultaneously reported his knee had “slowly gotten worse,” but his
“pain medications [were] adequate.” Although Dr. Borsheim noted on this visit that
Petitioner moved with difficulty, on September 18, 2006, Dr. Borsheim noted that
Petitioner moved “without significant difficulty” and that nothing was different. (AR
306.)
On Petitioner’s January 8, 2007, follow up visit to Dr. Borsheim, upon reporting
he had increased his activity, Petitioner reported being in more pain despite a change in
his medications. (AR 307.) However. Dr. Borsheim reported that, overall, despite walking
with difficulty Petitioner was “doing okay.” (AR 307.) On April 19, 2007, the changed
pain medication regimen reportedly “continues to work well for him,” keeps pain at a
tolerable level, he had discontinued using Percocet for breakthrough pain, and was able to
use over-the-counter medication in conjunction with Oxycontin to manage his pain. (AR
308.) On this visit, Dr. Borsheim noted specifically that Petitioner “actually moves
without significant difficulty.” (AR 308.) On July 19, 2007, Petitioner reported being
“more active,” with increased pain. (AR 309.)
In August of 2007, Petitioner established care with Dr. Hughes at Prairie Family
Medicine for medication management. (AR 337). Because he had not seen his orthopedist
for quite some time, Dr. Hughes referred him to follow up with Dr. Brewster. Dr.
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Brewster saw Petitioner on May 27, 2008, and indicated x-rays showed satisfactory joint
space in his left knee. (AR 471–72.) Upon examination, Petitioner exhibited a slight limp,
full extension, was able to walk on his toes and heels, and his knee was stable. (Id.)
Petitioner’s current treating physician, osteopath Dr. Smith, referred Petitioner to
Dr. Ispirescu on June 30, 2009, for pain management. (AR 476.) Dr. Ispirescu noted that
Petitioner complained of low back pain and knee pain, but had no recommendations other
than to continue management of Petitioner’s pain with medication, and he recorded that
he saw no further changes that had developed. (AR 476.) Dr. Smith indicated on
November 6, 2009, that although Petitioner suffers from significant debility related to his
knee and low back, she was of the opinion that “sedentary work with the ability to change
positions frequently” would accommodate Petitioner’s limitations, along with restrictions
of no lifting greater than 15 pounds, no repetitive pivoting, reaching or squatting, and no
working on unlevel surfaces or walking over uneven ground. (AR 213.)
As for Petitioner’s back, an x-ray of his lumbar spine on May 8, 2009, as
compared with films from May 27, 2008, indicated lumbar vertebral bodies “are normal
in height and alignment,” “disk space intervals are well-maintained,” and there is no
evidence of “spondylolysis or spondylolisthesis,” “no bony destructive lesions,” and that
“facet joints and sacroiliac joints are within normal limits.” (AR 492.)
The ALJ relied upon all of the above, especially Petitioner’s more recent care in
2008 and early 2009, and specifically noted that “the record does not contain any
opinions from treating or examining sources indicating that the claimant is disabled or
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even has limitations greater than those determined in this decision.” (AR 19–20.) The
ALJ gave weight to Petitioner’s medical provider treatment records, and the treatment
records provided opinions as to Petitioner’s work related abilities contrary to Petitioner’s
assertions that pain precluded him from all work. (See Brief at 11.) The treatment records
that the ALJ rejected all dealt with operative procedures, and did not include any
significant opinion regarding Petitioner’s prognosis or abilities. (See Brief at 11, AR 20.)
However, the records discussed above, and relied upon by the ALJ, showed significant
discrepancies when compared to Petitioner’s testimony as to Petitioner’s ability to work.
Thus, the Court concludes that the reasons relied upon by the ALJ for challenging
Petitioner’s credibility are supported by substantial evidence in the record.
Petitioner next contends that it was error to rely upon Petitioner’s activities of
daily living to discredit his testimony. The ALJ noted that Petitioner reported he could
care for his pets, cook simple meals, drive, go out alone, attend barbeques, visit his
parents, attend his doctor’s appointments, mow the lawn, and take care of some chores.
The ALJ’s assessment of Petitioner’s activities is supported by substantial evidence in the
record. (AR 171–74.)
Petitioner reported that he mowed his small lawn and that he accompanied his
girlfriend to the grocery store. (AR 47.) On his disability function report dated May 10,
2008, Petitioner reported that he makes coffee, starts the fire, makes breakfast, can do
household chores, cares for his pets, and can care for himself personally. (AR 170–71.)
On January 26, 2000, Dr. Brewster’s notes indicated Petitioner was outside shoveling.
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(AR 285.) On July 13, 2000, Dr. Oscamp, a reviewing orthopedist for the State Insurance
Fund, noted that he watched a “video demonstrating [Petitioner] being able to perform
normal activities,” which indicated that “he might be able to return to work as he appears
to be able to perform at least moderate work type activities.” (AR 411-12.) During the
summer of 2007, Petitioner reported being “more active.” (AR 309.) The Court concludes
that the ALJ’s findings are based upon substantial evidence in the record, and support the
ALJ’s conclusion that Petitioner’s daily activities are inconsistent with his allegations of
disability.
As for the ALJ’s reliance on Petitioner’s conservative course of treatment, such
treatment can undermine allegations of debilitating pain but is not a proper basis for
rejecting the claimant’s credibility where the Petitioner has a good reason for not seeking
more aggressive treatment. Carmickle, 533 F.3d at 1162. Petitioner was specifically
prescribed a conservative treatment regimen because he was not a candidate for a total
knee replacement due to his age. (AR 250, 265, 291.) Dr. Brewster on May 28, 2002,
noted that “there was no treatment” that would give him a normal knee, (AR 265), and on
April 30, 2003, was of the opinion that there was nothing further surgically to offer him.
(AR 259). Dr. Smith on November 6, 2009, agreed that no further orthopaedic treatment
would be beneficial. (AR 213.) Petitioner declined injections in his left knee because
prior injections were of limited success. (AR 257, 263, 268, 285.)
The conservative course of treatment prescribed for Petitioner is not a proper basis
for finding Petitioner not credible in this case. However, the ALJ’s reliance on this as a
MEMORANDUM DECISION AND ORDER - 19

reason for discrediting Petitioner’s credibility was harmless error. So long as there
remains “‘substantial evidence supporting the ALJ’s conclusions on . . . credibility’ and
the error ‘does not negate the validity of the ALJ’s ultimate [credibility] conclusion,”
such error is harmless and does not warrant reversal. Carmickle, 533 f.3d at 1162. The
ALJ’s remaining reasoning and ultimate credibility determination is adequately supported
by substantial evidence in the record based upon his assessment of the medical records
and Petitioner’s daily activities.
Finally, the ALJ relied on Petitioner’s failure to follow his treatment regimen and
his conservative treatment regimen. Petitioner contends that such reliance was error. The
ALJ noted that Petitioner was “consistently noncompliant with medical treatment,”
missed appointments, did not seek treatment for left knee pain until 2007, and had
declined treatment from medical providers. (AR 18.) In addition, the ALJ pointed out that
Petitioner appeared at the hearing without his prescribed knee brace. (AR 18.)
The ALJ’s findings that Petitioner was noncompliant with his treatment regimen
are supported by substantial evidence in the record. Petitioner had tripped on March 19,
2003, while not wearing his knee brace. (AR 260.) On September 14, 2007, Petitioner’s
primary care provider documented that Petitioner was not wearing his knee brace,
because Petitioner wanted his knee to wear out faster. (AR 335.) Petitioner was not
wearing his brace the day of the hearing because it was uncomfortable. (AR 39.)
Petitioner also tested positive for marijuana on December 12, 2007, and had not been
taking his prescribed pain medications. (AR 339–41.)
MEMORANDUM DECISION AND ORDER - 20

The ALJ’s decision finding Petitioner less than fully credible is valid, despite the
error in relying upon Petitioner’s conservative course of treatment. Therefore, the ALJ’s
credibility determination is accepted.
3. Residual Functional Capacity
At the fourth step in the sequential process, the ALJ determines whether the
impairment prevents the claimant from performing work which the claimant performed in
the past, i.e., whether the claimant has sufficient residual functional capacity to tolerate
the demands of any past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv);
416.920(a)(4)(iv). A claimant’s residual functional capacity is the most he can do despite
his limitations. 20 C.F.R. § 404.1545(a). An ALJ considers all relevant evidence in the
record when making this determination. Id. Generally, an ALJ may rely on vocational
expert testimony. 20 C.F.R. § 404.1566(e); Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th
Cir. 2005). An ALJ must include all limitations supported by substantial evidence in his
hypothetical question to the vocational expert, but may exclude unsupported limitations.
Bayliss, 427 F.3d at 1217. The ALJ need not consider or include alleged impairments that
have no support in the record. See Osenbrock v. Apfel, 240 F.3d 1157, 1163–64 (9th Cir.
2000).
Petitioner contends that the ALJ’s RFC assessment finding Petitioner capable of
performing light work with a sit/stand option, and no exposure to hazzards, is not
supported by substantial evidence because the evidence indicates Petitioner is not capable
of a full range of sedentary work. Petitioner relies upon SSR 96-9p, which states that a
MEMORANDUM DECISION AND ORDER - 21

limitation of standing and walking for only a few minutes during each work day would
erode the unskilled sedentary occupational base significantly, and requires the ALJ to be
specific as to the frequency of an individual’s need to alternate sitting and standing.
The ALJ specifically found Petitioner capable of light work as defined by 20
C.F.R. 404.1567(b), with a sit/stand option. The ALJ noted that light work consists of the
ability to lift and/or carry and push and/or pull up to 10 pounds frequently and 20 pounds
occasionally; sit up to 6 hours in an 8 hour work day with normal breaks; stand and/or
walk at least 6 hours in an 8 hour day with normal breaks; and occasionally stop. The ALJ
further limited Petitioner to occasional use of ramps and stairs, limited balancing,
stooping, kneeling, crouching and crawling.
In this case, SSR 96-9p is not applicable. The Ruling sets forth policy regarding
the impact of an RFC assessment for less than a full range of sedentary work. However,
in this case, the ALJ found that Petitioner could perform light work, with additional
limitations, rendering SSR 96-9p inapplicable.
The ALJ relied upon the opinion of the state agency medical consultant, Dr.
Coolidge, who offered an opinion concerning Petitioner’s work-related functional
abilities. (AR 376–83.) Dr. Coolidge on May 22, 2008, assessed Petitioner’s work related
ability and found he could frequently lift 10 pounds, occasionally lift 20 pounds, sit
and/or walk with normal breaks for 6 hours in an 8 hour work day; sit for 6 hours; and
occasionally climb, balance, stoop or crouch.
The ALJ’s reliance upon Dr. Coolidge’s assessment is supported by substantial
MEMORANDUM DECISION AND ORDER - 22

evidence in the record. The medical records summarized above indicate that Petitioner
could work with limitations, such as not lifting more than 15 pounds, alternating sitting
and standing, and performing more sedentary type work. As of November 6, 2009, Dr.
Smith was of the opinion that Petitioner could work. (AR 497.)2 Petitioner also indicated
the same types of restrictions in his own physical capacity report. (AR 175.)
The Court finds the ALJ’s RFC assessment incorporated the opinions of
Petitioner’s medical care providers, is supported by substantial evidence, and was not the
product of legal error.
4. Past Relevant Work
Past work experience is considered “relevant if it was done within the last fifteen
years, lasted long enough for [Petitioner] to learn to do it, and was substantial gainful
activity. The burden is on the claimant to prove that [he] cannot perform past relevant
work.” Vertigan v. Halter, 260 F.3d 1044, 1051 (9th Cir. 2001) (internal citations
omitted). Petitioner has the burden also to demonstrate that he cannot perform prior
relevant work “either as actually performed or as generally performed in the national
economy.” Carmickle, 533 F.3d at 1166.
Petitioner identified that he was a store manager between 1993 and 1995 at a

2

Respondent objects to the consideration of Dr. Smith’s November 6, 2009 letter,
because it was submitted after the hearing and the ALJ did not have the benefit of considering it
prior to his determination. (Mem. at 11, Dkt. 18.) However, the Court finds that, even had the
ALJ considered the letter, it would not have altered the ALJ’s RFC assessment, because the
letter provides support for the ALJ’s credibility finding and his RFC assessment finding
Petitioner capable of light work with limitations.
MEMORANDUM DECISION AND ORDER - 23

sports card store. (AR 50.) It was a small shop, and he was the only employee who
managed the store besides the owner. (AR 46.) He stated that he managed the store, sold
cards and collectibles, performed customer service, and handled invoices and shipments
that arrived at the store. (AR 183.) He often lifted 25 pounds, and occasionally lifted 50
pounds. The vocational expert was of the opinion that such work was the equivalent of
work as a store manager or cashier under DOT Codes 185.167-046 and 211.462-010
respectively, and met the limitations of the ALJ’s RFC assessment. Based upon the
vocational expert’s opinion, the ALJ determined that Petitioner could perform his past
relevant work as generally performed and was therefore not disabled. (AR 20.) Petitioner
argues that the ALJ erred by assuming Petitioner’s work as a customer service
representative in a sports memorabilia store was the equivalent to work as either a cashier
or store manager.
The DOT is “the best source for how a job is generally performed.” Carmickle,
533 F.3d at 1166 (quoting Pinto v. Massanari, 249 F.3d 840, 845 (9th Cir.2001)). In
classifying prior work, the ALJ must keep in mind that every occupation involves various
tasks that may require differing levels of physical exertion. It is error for the ALJ to
classify an occupation “according to the least demanding function.” Id. (quoting Valencia
v. Heckler, 751 F.2d 1082, 1086 (9th Cir.1985)).
The Dictionary of Occupational Titles defines a retail store manager duties as an
individual “engaged in selling specific line of merchandise, or general line of
merchandise,” who either personally performs or supervises others performing the
MEMORANDUM DECISION AND ORDER - 24

following duties: “Plans and prepares work schedules and assigns employees to specific
duties. Formulates pricing policies on merchandise according to requirements for
profitability of store operations. Coordinates sales promotion activities and prepares, or
directs workers preparing, merchandise displays and advertising copy. Supervises
employees engaged in sales work.” Dictionary of Occ. Titles 185.167-046, 1991 WL
671299. The Dictionary classifies a retail store manager as “light work,” level 4, with a
specific vocational preparation level of 7 requiring over two years of experience.
The Court finds the ALJ did not err in relying upon the vocational expert’s
testimony that Petitioner’s past work in the sports card store was equivalent to work as a
retail store manager. Petitioner objects, arguing that he did not supervise employees.
However, the Dictionary indicates that supervision of others is one possible component,
considering the Dictionary clearly indicates he can “personally” perform duties, or
supervise others. Second, Petitioner objects on the grounds he was an “assistant,” and did
not actually perform any duties as described in the dictionary. However, Petitioner stated
he “managed” the store, sold merchandise, and prepared invoices.
Third, Petitioner contends the ALJ misclassified the position according to its least
demanding function, considering Petitioner actually was on his feet extensively and lifted
up to 50 pounds. But every job may have different requirements. That Petitioner may
have lifted up to 50 pounds in his prior job is not equivalent to misclassifying a job
according to its least demanding function. The ALJ correctly determined that, as
generally performed, the job of retail sales manager was most equivalent to Petitioner’s
MEMORANDUM DECISION AND ORDER - 25

past work in the sports card store and constituted “light,” not sedentary, work. And
finally, Petitioner disputes that the record supports he performed this work for more than
two years. However, the record indicated, and Petitioner testified, that he worked at the
store between 1993 and 1995, more than two years.
Even if the ALJ improperly considered Petitioner’s work in the store equivalent to
a retail store manager, Petitioner makes no argument concerning the ALJ’s alternative
determination that Petitioner could perform work as a cashier, other than contending that
Petitioner did not testify he used a cash register. (Mem. at 12, Dkt. 14; Reply at 3, Dkt.
20.) However, use of a cash register is not required to meet the definition of a cashier.
A Cashier II must be able to perform the following duties: “Receives cash from
customers or employees in payment for goods or services and records amounts received:
Recomputes or computes bill, itemized lists, and tickets showing amount due, using
adding machine or cash register. Makes change, cashes checks, and issues receipts or
tickets to customers. Records amounts received and prepares reports of transactions.
Reads and records totals shown on cash register tape and verifies against cash on hand.
May be required to know value and features of items for which money is received. May
give cash refunds . . .” Dictionary of Occ. Titles 211.462-010, 1991 WL 671840
(emphasis added).
Petitioner testified that he handled invoices and sold merchandise, and he was the
sole employee other than the owner. The Dictionary considers only a short demonstration
up to and including one month of experience relevant. It was therefore reasonable for the
MEMORANDUM DECISION AND ORDER - 26

ALJ to consider and assume Petitioner may not have “managed” the store, but rather
worked more as a customer service individual handling transactions in the store.3 And
according to the Dictionary, Petitioner is not required to use a cash register. Therefore, it
was not error for the ALJ to consider Petitioner’s past relevant work met the requirements
of work as a cashier, and the ALJ’s determination that Petitioner could perform his past
relevant work was supported by substantial evidence in the record.
CONCLUSION
Based upon review of the entire record, the Court finds that the Commissioner’s
decision is supported by substantial evidence and is not the product of legal error.
Therefore, the Commissioner’s decision finding that the Petitioner is not disabled within
the meaning of the Social Security Act will be affirmed.

3

The Court considers the ALJ’s assumption reasonable considering Petitioner, in his
reply brief, indicated Petitioner performed “many additional duties not included in the job title of
store manager. For instance, he used the cash register, perform [sic] customer service, invoice,
shipping and receiving . . . only a portion of the time would actually be spent in the management
duties.” (Reply at 3, Dkt. 20.) Petitioner’s argument supports the ALJ’s determination that
Petitioner may not have actually performed duties equivalent to a store manager, but rather
performed the lesser included duties of a cashier.
MEMORANDUM DECISION AND ORDER - 27

ORDER
NOW THEREFORE IT IS HEREBY ORDERED:
1)

Plaintiff’s Petition for Review (Dkt. 1) is DISMISSED.

2)

The Commissioner’s decision finding that the Petitioner is not disabled
within the meaning of the Social Security Act is AFFIRMED.
DATED: July 12, 2011

Honorable Candy W. Dale
Chief United States Magistrate Judge

MEMORANDUM DECISION AND ORDER - 28