Brunetta v. Commissioner Social Security Administration

Filing 26

OPINION and ORDER - The Commissioner's decision is AFFIRMED and this case is DISMISSED. IT IS SO ORDERED. DATED this 31st day of January, 2017, by United States Magistrate Judge John V. Acosta. (peg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MEDFORD DIVISION

JANET ANN BRUNETTA,
Plaintiff,

Case No.: 1:15-CV-00873-AC
OPINION AND ORDER

v.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.
ACOSTA, Magistrate Judge:
Janet Ann Brunetta ("plaintiff') seeks judicial review of the final decision of the
Commissioner of the Social Security Administration ("Commissioner") denying her application for
Disability Insurance Benefits ("DIB"). Because the Commissioner's decision is supported by
substantial evidence, her decision is AFFIRMED.
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Page 1 - OPINION AND ORDER

Procedural Background

Plaintiff filed her application for DIB on July 22, 2011, alleging disability as of July 22,
2011. (Tr. 168-77.) The Commissioner denied her application initially and upon reconsideration,
and she requested a hearing before an Administrative Law Judge ("ALJ"). (Tr. 88-92, 99-102, 10304.) An administrative hearing was held on September 12, 2013. (Tr. 31-66.) After the hearing,
the ALJ issued an unfavorable decision on September 19, 2013, finding plaintiff not disabled. (Tr.
14-27.) The Appeals Council denied plaintiffs subsequent request for review, making the ALJ's
decision final. (Tr. 1-3.) This appeal followed. Plaintiff argues that the ALJ ened by: (1) failing
to find her depression severe at step two of his analysis; (2) improperly rejecting the medical opinion
of Dr. Brian J. Mateja; and (3) failing to provide a clear and convincing reason to reject her
subjective symptom testimony.
Factual Background

Born in Januaiy 1952, plaintiff was 61 years old at the time of the hearing. (Tr. 168.) She
speaks English and her highest level of education is one year of college. (Tr. 192, 194.) She stopped
working in September 2011 due to her conditions and other reasons, which she described as her
employer having financial difficulties. (Tr. 193.) Plaintiff alleges disability due to depression,
fibromyalgia, chronic fatigue, sleep apnea, low white blood count, vitamin D deficiency, and
hormone imbalance. (Id.)
Standard ofReview

The court must affirm the Commissioner's decision ifit is based on proper legal standards
and the findings are supported by substantial evidence in the record. Hammock v. Bowen, 879 F .2d
498, 501 (9th Cir. 1989). Substantial evidence is "more than amere scintilla. It means suchrelevai1t
Page 2 - OPINION AND ORDER

evidence as a reasonable mind might accept as adequate to suppo1i a conclusion." Richardson v.
Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NL.R.B., 305 U.S. 197, 229
(1938)).

The comi must weigh "both the evidence that supports and detracts from the

[Commissioner's] conclusions." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). "Where
the evidence as a whole can supp01i either a grant or a denial, [a court] may not substitute [its]
judgment for the ALJ's." Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (citation
omitted).
The initial burden of proofrests upon the claimant to establish disability. Howardv. Heckler,
782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must demonstrate an
"inability to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected ... to last for a continuous period of not less
than 12 months." 42 U.S.C. § 423(d)(l)(A).
The Commissioner has established a five-step sequential process for detennining whether
a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520(a). First,
the Connnissioner determines whether a claimant is engaged in "substantial gainful activity"; if so,
the claimant is not disabled. Yuckert, 482 U.S. at 140; 20 C.F.R. § 404.1520(b).
At step two, the Commissioner determines whether the claimant has a "medically severe impairment
or combination of impairments." Yuckert, 482 U.S. at 140-41; 20 C.F.R. § 404.1520(c). If not, the
claimant is not disabled. Yuckert, 482 U.S. at 141.
At step three, the Commissioner determines whether the impairment meets or equals "one
of a number of listed impairments that the Secretary acknowledges are so severe as to preclude
substantial gainful activity." Id; 20 C.F.R. § 404.1520(d). If so, the claimant is conclusively
Page 3 - OPINION AND ORDER

presumed disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.
At step four, the Commissioner determines whether the claimant can still perform "past relevant
work." Yuckert, 482 U.S. at 141; 20 C.F.R. § 404.1520(e). If the claimant can work, she is not
disabled; if she cannot perform past relevant work, the burden shifts to the Commissioner. Yuckert,
482 U.S. at 141. At step five, the Commissioner must establish that the claimant can perform other
work. Id at 142; 20 C.F.R. § 404.1520(e) & (f). If the Commissioner meets this burden and proves
that the claimant is able to perform other work which exists in the national economy, she is not
disabled. 20 C.F.R. § 404.1566.
The ALJ's Findings

The ALJ performed the sequential analysis. At step one, he found that plaintiff had not
engaged in substantial gainful activity since her alleged onset date. (Tr. 16.) At step two, the ALJ
concluded that plaintiff had the following severe impairments: fibromyalgia; sleep apnea; and
obesity. (Tr. 16-21.) At step three, the ALJ determined that plaintiff did not have an impairment
or combination of impairments that met or medically equaled a listed impairment. (Tr. 21.)
The ALJ next assessed plaintiffs residual functional capacity ("RFC") and found that plaintiff has
the RFC to "perform sedentary work ... with the following non-exertional limitations: the claimant
should avoid all exposure to pulmonary irritants and is limited to occasional postural activities with
the exception of no climbing of ladders, ropes or scaffolds." (Tr. 21-26.) At step four, the ALJ
found that plaintiff was capable of performing her past relevant work as a bookkeeper and business
manager. (Tr. 26-27.) The ALJ therefore concluded plaintiff was not disabled. (Tr. 27.) The ALJ
did not proceed to step five.

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Page 4 - OPINION AND ORDER

Discussion

L

Plaintiffs Depression at Step Two.
Plaintiff argues the ALJ erred at step two by failing to find her depression was a severe

impairment. (Pl.' s Opening Br. 9-13, Pl.' s Reply Br. 1-8.) Specifically, plaintiff aTgues the ALJ did
not recount the medical evidence accurately and confused "minimal cognitive findings with minimal
depression." (Pl.'s Opening Br. 11.)

A.

The ALJ's summary of the evidence.

At step two, the ALJ considers whether a claimant has a severe medically determinable
physical or mental impairment, or combination of impairments. 20 C.F .R. § 404.1520(a)(4)(ii). A
claimant's impairment or combination of impairments is not severe ifit does not significantly limit
his or her physical or mental ability to do basic work activities.

20 C.F.R. §§ 404.1520(c),

404.1521. Basic work activities are
the abilities and aptitudes necessary to do most jobs. Examples of these include ( 1) Physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching,
carrying, or handling;
(2) Capacities for seeing, hearing, and speaking;
(3) Understanding, canying out, and remembering simple instructions;
(4) Use of judgment;
(5) Responding appropriately to supervision, co-workers and usual work situations; and
(6) Dealing with changes in a routine work setting.
20 C.F.R. § 404.152l(b). An impairment is not severe ifit is merely "a slight abnormality (or

Page 5 - OPINION AND ORDER

combination of slight abnormalities) that has no more than a minimal effect on the ability to do basic
work activities." Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (citing SSR 96-3(p) (1996)).
Here, the ALJ noted plaintiffs histo1y of depression and mild memory difficulties but overall
found the medical evidence of record did not support finding either were severe impairments. (Tr.
19.) First, the ALJ cited treatment records from 2011, 2012, and 2013 which records showed
plaintiffs mental status examinations were within normal limits with normal mood and affect and
intact judgment and insight. (Tr. 19, 277, 282, 286, 290, 304.) 1
Next, the ALJ noted plaintiffs memory loss and confusion in October 2011, but cited an
examination from that time that showed n01mal mood and appropriate affect. (Tr. 19, 312.) The
ALJ also cited a December 2012 neuropsychological test performed by Dr. Michael R. Villaneuva
who found plaintiff showed only "ve1y mild findings" with respect to her episodic mem01y, and
overall opined that she had "no restrictions from a neurocognitive standpoint." (Tr. 19, 33 5.) Third,
the ALJ noted that plaintiff testified at the hearing that she had "not sought any consistent treatment
for her mental health issues since her alleged onset date." (Tr. 20.) Fourth, the ALJ found that
plaintiffs alleged "brain fog" had not been present for the requisite twelve months, and that no
treating physician had determined her condition would be debilitating for twelve months or possibly
result in her death. (Id.) Finally, the ALJ noted that a State Disability Determination Services
psychological medical consultant who reviewed plaintiffs medical records on July 31, 2012, found
her mental impairments were "nonsevere." (Tr. 20, 82.)
Plaintiff argues the ALJ confused "minimal cognitive findings with minimal depression,"
1

This court notes the pages cited by the ALJ were all off by a single page. The page numbers
listed in this opinion are those pages that contain the information referenced by the ALJ, not the
page numbers listed by the ALJ in his September 19, 2013 decision.
Page 6 - OPINION AND ORDER

noting that Dr. Villaneuva wrote, "the primary finding from this examination is one of significant
depression," and two weeks later wrote that plaintiffs depression was not adequately controlled and
"significant depression can disrupt efficient cognitive functioning." (Pl. 's Opening Br. 11, Tr. 33334.) However, the court finds the ALJ reasonably considered plaintiffs medical records and
concluded her depression was not severe because it did not cause "more than minimal limitations
in the [plaintiff] 's ability to perform basic mental work activities." (Tr. 20.) Indeed, an independent
review of the record supports the ALJ's finding. On December 27, 2012, although Dr. Villaneuva
found plaintiffs depression "does not seem to be under good control," he overall wrote she had "no
restrictions/limitations from a neurocognitive standpoint." (Tr. 334.) Additionally, in reports from
December 27, 2012, and January 14, 2013, Dr. Villaneuva found plaintiff had only "mild
weaknesses" in episodic memo1y. (Id.) Finally, on March 6, 2013, Dr. Brian J. Mateja noted that
plaintiffs depression symptoms "have gotten some better." (Tr. 351.) While variable interpretations
of this evidence may exist, the ALJ' s analysis was reasonable such that it must be upheld. Batson

v. Comm 'r, 359 F.3d 1190, 1198 (9th Cir. 2004). Additionally, any alleged enoris harmless because
the ALJ found plaintiff had other severe impairments at step two and continued with the sequential
analysis. (Tr. 16-27, see Stoutv. Comm 'r Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006)(an
ALJ's mistake is harmless where it is nonprejudicial to the claimant.)
The ALJ' s decision is upheld as to this issue.

B.

The opinion ofDr. Mateja.

Next, plaintiff argues the ALJ failed to give a legally sufficient reason to reject the opinion
of treating physician Dr. Brian J. Mateja.

(Pl.'s Opening Br. 13-16, Pl.'s Reply Br. 8-11.)

Specifically, plaintiff argues the reasons the ALJ cited for discrediting Dr. Mateja's August 12, 2013
Page 7 - OPINION AND ORDER

medical source statement show the ALJ misunderstands the symptoms of fibromyalgia. (Pl.' s
Opening Br. 14-15, Pl.'s Reply Br. 10.)
An ALJ may reject the uncontradicted medical opinion of a treating or examining physician
only for "clear and convincing" reasons supported by substantial evidence in the record. Bayliss v.
Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (citing Lester v. Chafer, 81 F.3d 821, 830-31 (9th

Cir. 1995)). An ALJ may reject the contradicted opinion of a treating or examining doctor by
providing "specific and legitimate reasons that are supported by substantial evidence." Id.
On August 12, 2013, Dr. Mateja completed a Fibromyalgia Medical Source Statement where
he opined that plaintiff suffered from fibromyalgia and had the following symptoms: "multiple
tender points, nonrestorative sleep, chronic fatigue, morning stiffness, muscle weakness,
breathlessness, anxiety, panic attacks and depression." (Tr. 340.) Overall he described plaintiffs
work limitations included only being able to sit for 30 minutes at one time, stand for one hour at one
time, that she could sit about two hours in an eight-hour workday, could stand/walk about four hours
in an eight-hour workday, and every few hours she would need unscheduled five-to-ten-minute
breaks. (Tr. 341-42.) Finally, Dr. Mateja opined plaintiff would be off-task at least 25 percent or
more of the workday and would be absent from work more than four days per month. (Tr. 343.)
Here, the ALJ gave"[ n] o significant weight" to Dr. Mateja' s August 12, 2013 report, finding
that "Dr. Mateja's own treatment records contain no clinical findings or studies to substantiate his
opinion that the [plaintiff] is disabled due to her fibromyalgia condition." (Tr. 25-26.) First, the ALJ
noted Dr. Mateja's treatment records from 2013 show plaintiff had a "normal gait, no tenderness to
palpitation and full range of motion in her extremities." (Tr. 26, 344-59.) Next, the ALJ found
conflicting evidence in Dr. Mateja's medical reports, noting although he reported in August 2013
Page 8 - OPINION AND ORDER

that plaintiff suffered from severe pain in her lumbosacral spine, cervical spine, thoracic spine and
chest, his June 2013 treatment notes showed "no tenderness in these areas." (Tr. 26, 359.) Third,
the ALJ found Dr. Mateja's bi-monthly treatment ofplaintiff seemed inconsistent with someone who
was "allegedly suffering from such severe physical impahments." (Tr. 26.)
Finally, the ALJ found Dr. Mateja's treatment notes "wholly inconsistent" with plaintiffs
"benign physical examination findings as noted in the treatment records at Exhibit 1OF and the
expert testimony of the medical expert at the hearing." (Tr. 26.) Exhibit 1OF are medical records
from plaintiffs treatment with Dr. David Dryland from August 12, 2013 and August 21, 2013. (Tr.
360-69.)

Dr. Dryland's treatment records from August 12, 2013 indicate that on physical

examination of plaintiff he found she had a normal gait, that all joints had good stability, range of
motion and strength except her cervical spine which had mild decreased range of motion and was
"not that tender on exam." (Tr. 362.) Additionally, Dr. Dryland noted that plaintiff had "18/18 1/2+
fibro tender points, real mild." (Id.)

Overall he diagnosed plaintiff with "[l]ikely evolving

fibromyalgia, but not definite." (Tr. 363.)
The ALJ was required to give a specific and legitimate reason for discrediting Dr. Mateja's
opinion because it was inconsistent with the opinion of Dr. Dryland who found plaintiffs symptoms
"overall don't make sense but fibro most likely." (Tr. 363.) See Bayliss v. Barnhart, 427 F.3d
1211, 1216 (9th Cir. 2005) (the contradicted opinion of a treating or examining physician can be
rejected with specific and legitimate reasons that are supported by substantial evidence.) As the ALJ
denoted, although plaintiff suffered from the severe impairment of fibromyalgia, Dr. Mateja's
treatment records showed inconsistencies both within his own notes and with the medical treatment
notes of Dr. Dryland. Indeed, although plaintiff complained of severe pain in her spine and chest,
Page 9 - OPINION AND ORDER

Dr. Mateja found "no tenderness in these areas" upon physical examination. (Tr. 359.) Additionally,
the ALJ noted that Dr. Dryland's examination of plaintiff showed a "benign physical examination"
with only "real mild" fibromyalgia tender points. (Tr. 362-63 .) See Tommasetti v. Astrue, 533 F.3d
!035, I 041 (9th Cir. 2008) (an ALJ may reject physician's opinion when the opinion conflicts with
physician's own treatment notes).
Plaintiff argues the ALJ misunderstands fibromyalgia, but this court finds plaintiffs
argument unpersuasive. Fibromyalgia is a rheumatic disease that causes inflammation of the fibrous
connective tissue components of muscles, tendons, ligaments and other tissue. Benecke v. Barnhart,
379 F.3d 587, 589 (9th Cir. 2004). The disease is diagnosed entirely on the basis of patients' reports
of pain and other symptoms; there are no laboratory tests to confinn the diagnosis. Benecke, 379
F.3d at 590. Here, the ALJ acknowledged plaintiffs fibromyalgia was a severe impairment, yet
discredited only the overall limitations Dr. Mateja opined plaintiff would have because of this
impairment. See 20 C.F.R. § 404.1527(e)(l) (the law reserves the disability determination to the
Commissioner.) Overall, this court finds the ALJ provided a specific and legitimate reason for
discrediting the opinion of Dr. Mateja with respect to plaintiffs fibromyalgia limitations. There is
no error.
C.

Plaintiff's symptom testimony.

Finally, plaintiff argues the ALJ failed to provide a clear and convincing reason to reject her
symptom testimony. (Pl. 's Opening Br. 16-18, Pl.'s Reply Br. 11-12.) Again, plaintiff argues the
reasons the ALJ used to discredit plaintiffs symptom show the ALJ has a "misunderstanding of
fibromyalgia." (Pl.'s Opening Brief 16-18.)
If "there is no affirmative evidence of malingering, 'the ALJ can reject the claimant's

Page 10 - OPINION AND ORDER

testimony about the severity ofher symptoms only by offering specific, clear and convincing reasons
for doing so."' Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (quoting Smolen v.
Chafer, 80 F.3d 1273, 1281, 1283-84 (9th Cir. 1996)). A general assertion that the claimant is not

credible is insufficient; the ALJ must "state which ... testimony is not credible and what evidence
suggests the complaints are not credible." Dodrill v. Shala la, 12 F.3d 915, 918 (9th Cir. 1993). The
reasons proffered must be "sufficiently specific to permit the reviewing court to conclude that the
ALJ did not arbitrarily discredit the claimant's testimony." Orteza v. Shala/a, 50 F.3d 748, 750 (9th
Cir. 1995) (internal citation omitted).
Examples of clear and convincing reasons include conflicting medical evidence, effective
medical treatment, medical noncompliance, inconsistencies either in the claimant's testimony or
between her testimony and her conduct, daily activities inconsistent with the alleged symptoms, a
sparse work histmy, testimony that is vague or less than candid, and testimony from physicians and
third parties about the nature, severity and effect of the symptoms complained of. Tommasetti, 533
F.3d at 1040; Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007); Light v. Social Sec.
Admin., 119 F.3d 789, 792 (9th Cir. 1997).

The ALJ found plaintiffs statements concerning the "intensity, persistence and limiting
effects of [her] symptoms [were] not credible" for the following reasons: (I) there was a lack of
medical evidence to support her alleged limitations; (2) she left her previous employment for reasons
other than her disability; (3) her treatment was inconsistent with her alleged disabling pain and
fatigue; and (4) her activities of daily living were inconsistent with her underlying allegations of
disability. (Tr. 23-24.) This court addresses each reason in tum.

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Page 11 - OPINION AND ORDER

1.

Lack of medical evidence.

First, the ALJ discredited plaintiff because he found "the documentary evidence of record
and the [plaintiff]' s own statements and testimony simply do not support her basic claims" citing
medical records related to plaintiffs fibromyalgia, sleep apnea, and obesity. (Tr. 23.) With respect
to plaintiffs fibromyalgia, the ALJ noted although plaintiff complained of"chronic fatigue and pain"
her diagnostic test results were "generally umemarkable and contain little evidence to support her
alleged symptoms." (Tr. 23.) The ALJ specifically noted Dr. Dryland's treatment notes from August
2013 where on physical examination of plaintiff he found she had only "mild" fibromyalgia tender
points. (Tr. 23, 362.) Dr. Dryland also found that plaintiffs upper and lower extremities had "good
stability, range of motion and strength, with no effusions, warmth or tenderness" except for her
cervical spine, which he found had a decreased range of motion but was "not bad, not that tender on
exam." (Tr. 23, 362.) Finally, the ALJ found plaintiffs various pain locations were treated
conservatively and surgery had never been recommended. (Tr. 23.)
Next, with respect to plaintiffs sleep apnea the ALJ noted a September 24, 2011 sleep study
"revealed only 'mild' obstructive sleep apnea." (Tr. 23, 299-302.) The ALJ also wrote that in May
2012 plaintiff"reported her daytime sleepiness and fatigue was much better since she staiied using
her CPAP," that she was sleeping eight hours a night, not having trouble falling or staying asleep,
and felt energized during the day. (Tr. 23, 330.) Additionally, the ALJ found that, other than Dr.
Mateja, no other treating physician reported any disabling limitations due to plaintiffs fibromyalgia
or sleep apnea, or "ever identified any significant functional loss with respect to the [plaintiff]' s
physical impairments." (Tr. 23.) In making these findings the ALJ noted the reports of the State
agency physical medical consultant who reviewed plaintiffs records on August 1, 2012 and
Page 12 - OPINION AND ORDER

determined she was capable of performing "essentially light level work, with some postural and
environmental limitations" and Dr. Reuben Beezy, the physical medical expert, who opined plaintiff
could perform sedentary level work with some postural and environmental limitations" at the
September 12, 2013 ALJ hearing. (Tr. 23, 38-39, 78-87.)
Finally, with respect to her obesity, the ALJ noted treatment records from 2011 to 2013
which showed plaintiff had a "normal gait and station, with full strength and range of motion in her
upper and lower extremities." (Tr. 23-24, 280, 360.) Additionally, the ALJ found plaintiff denied
chest pain, shortness of breath, chest tightness, headache or dizziness, and "reported the ability to
do laundry, prepare meals, go shopping and care for her pets" which the ALJ determined
"demonstrat[ed] a good ability to stand, walk, sit, reach, lift and cany." (Tr. 24, 202-09, 289, 338.)
Finally the ALJ noted that no treating or examining physicians repmied any disabling limitations due
to her obesity. (Tr. 24.)
Plaintiff argues the ALJ misunderstands fibromyalgia, and thus the reasons cited by the ALJ
for rejecting her symptom testimony are not clear and convincing. (Pl.'s Opening Br. 16-17, Pl.'s
Reply Br. 11.) The court rejects plaintiffs argument. Here, the ALJ did not reject the existence of
plaintiffs fibromyalgia: he found it was a severe impairment at step two, but merely rejected the
severity ofplaintiffs fibromyalgia symptoms. Indeed, although plaintiff complained of fibromyalgia
pain and of problems with concentration, the record shows doctors overall found plaintiff had a good
range of motion, strength, and stability, had no restrictions or limitations from a neurocognitive
standpoint, and was capable oflow stress or sedentruy work. (See Tr. 335, 340, 360 which include
Dr. Villaneuva's December 27, 2012 medical repmi, Dr. Mateja's August 12, 2013 medical report,
and Dr. Dryland's August 12, 2013 medical report, respectively.) "Although lack of medical
Page 13 - OPINION AND ORDER

evidence cannot form the sole basis for discrediting pain testimony, it is a factor that the ALJ can
considerinhis credibility analysis." Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). Although
plaintiffs sleep apnea, although mild, and initially well controlled continued to be an issue for her
throughout 2013, this error is harmless because the ALJ provided other clear and convincing reason
for discrediting plaintiffs symptom testimony. See Stout v. Comm 'r Soc. Sec. Admin., 454 F.3d
1050, 1055 (9th Cir. 2006.) (An ALJ's error is harmless where it is "inconsequential to the ultimate
nondisability determination.") Therefore, the lack of medical evidence supporting plaintiffs
symptoms is a clear and convincing reason for discrediting her symptom testimony.
2.

Leaving her job for reasons urn·elated to disability.

Next, the ALJ found plaintifflostherjo b as a bookkeeperin September 2011 because oflack
of work, and not her disability, noting it was a "business-related layoff." (Tr. 24, 337.) Indeed,
although plaintiff testified that she lost her job because of a combination of lack of work and
reaching a mutual agreement with her manager that "it was time for [her] to step down," the record
reflects that she specifically told Dr. Villaneuva on December 17, 2012, that she was laid off work
"because oflack of business, not because of her symptoms." (Tr. 33 7.) Additionally, in a disability
report from October 11, 2011, she reported she stopped working because of both her disability and
for other reasons, which she described as her"[e]mployers were having financial issues." (Tr. 193.)
This is a second clear and convincing reason for rejecting plaintiffs symptom testimony.
3.

Sporadic medical treatment.

Next, the ALJ found although plaintiff complained of disabling pain since June 22, 2011, she
has not sought any consistent medical treatment, overall noting that her treatment was "sporadic at
best" and that she only sought treatment once during the 2012 calendar year. (Tr. 24, 326-32.)
Page 14 - OPINION AND ORDER

Additionally, he noted that plaintiff testified to not seeking "any mental health treatment since her
alleged onset date." (Tr. 24, emphasis in original.) Plaintiff argues that the number of visits does
not indicate the severity of the disease and there was no notation in the record that plaintiff missed
appointments. (Pl.'s Opening Br. 16.) Although nothing in the record indicates plaintiff was noncompliant with her treatment, an ALJ can use the lack of consistent medical treatment to discount
a plaintiffs symptom testimony. See Burch, 400 F.3d at 681 (lack of consistent medical treatment
can be considered in discrediting claimant's symptom testimony). Indeed, plaintiffs medical records
show she had only three medical visits in 2012, one with Dr. Carlos Marchini to assess her sleep
apnea, and two with Dr. Villaneuva for an evaluation of her memmy difficulties. (Tr. 330, 334-39 .)
The ALJ's finding that her lack of medical treatment is inconsistent with her complaints is
reasonable such that the ALJ's finding regarding plaintiffs credibility is upheld.
4.

Activities of daily living.

Finally, the ALJ found plaintiffs activities of daily living were inconsistent with her
allegations of disability. (Tr. 24.) First, the ALJ noted that although plaintiff claimed she was
unable to sit for more than a few minutes due to severe pain she testified to taking a road trip with
her husband just three weeks before the hearing, suggesting "a good ability to sit for prolonged
periods." (Id.) Next, the ALJ found that plaintiff reported being able to perform daily tasks, do
laund1y, cook, and go shopping, thus "demonstrating a good ability to stand walk, reach, lift, and
carry." (Id.) Finally, the ALJ noted that her repmis of needing to take multiple naps during the day
was inconsistent with her own reports to her treating provider in May 2012 that she was "feeling
energized during the day and only took naps on a 'seldom' basis" and reported being able to sleep
eight hours a night and having no problems falling or staying asleep. (Tr. 24. 329).
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The record supports one of the ALJ' s findings, but not the others. First, with respect to the
ALJ's finding that plaintiffs ability to take a road trip showed she has a "good ability to sit for
prolonged periods," her testimony at the September hearing was that she would nap in the back of
the motor home while her husband drove and not that she was sitting for prolonged periods of time.
(Tr. 65.) Second, the record reflects plaintiff could still go groce1y shopping, did the laundry, and
would clean the house. (Tr. 50, 61-62, 205, 225.) Third, although plaintiffs obstructive sleep apnea
and fatigue were initially well controlled, the record reflects that her fatigue continued to be an issue
for her through 2013. (Tr. 53-55, 202-09, 314, 330-31, 345, 360-61.) Although two of the activities
of daily living the ALJ cited as inconsistent were not, the ALJ did find plaintiffs activities of daily
living inconsistent with plaintiffs overall complaints of severe pain. Additionally, despite the errors
in this pmi of the ALJ' s findings, these errors are harmless because the ALJ provided other clear and
convincing reasons to discredit plaintiffs symptom testimony. See Batson v. Comm 'r, 359 F.3d at
1197 (the ALJ's overall credibility decision may be upheld even if not all of the ALJ's reasons for
rejecting the claimant's testimony are upheld).
In sum, the ALJ provided a clear and convincing reason for discrediting plaintiffs symptom
testimony concerning the severity of her symptoms. The court finds no en-or.

Conclusion
The Commissioner's decision is AFFIRMED and this case is DISMISSED.
IT IS SO ORDERED£/-DATED this

c!)/

day of Ja uar ,

States Magistrate Judge
Page 16 - OPINION AND ORDER