Opinion
Case No. EDCV 13-1421-JPR
09-17-2014
BRANDY GONZALES, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER AFFIRMING COMMISSIONER
I. PROCEEDINGS
Plaintiff seeks review of the Commissioner's final decision denying her applications for disability insurance benefits ("DIB") and supplemental security income ("SSI"). The parties consented to the jurisdiction of the undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c). This matter is before the Court on the parties' Joint Stipulation, filed May 14, 2014, which the Court has taken under submission without oral argument. For the reasons stated below, the Commissioner's decision is affirmed and judgment is entered in her favor.
II. BACKGROUND
Plaintiff was born on November 18, 1975. (AR 179.) She did not complete the 11th grade but obtained a high school diploma through a "program." (AR 34, 191.) She previously worked as a cashier at a gas station, customer-service representative, store laborer, fast-food worker, and salesclerk. (AR 48-51, 56, 191.)
Plaintiff filed an application for DIB on June 17, 2010, and one for SSI on July 1, 2010. (AR 175-82, 186.) She alleged that she had been unable to work since February 15, 2007, because of HIV, depression, carpal tunnel syndrome, chronic back pain, a partial tear in her lateral meniscus, obesity, migraines, removal of gallstones, and paranoia. (AR 31, 190.) After her applications were denied, she requested a hearing before an Administrative Law Judge. (AR 95.)
Plaintiff later amended her alleged onset date to September 26, 2009, which was the day after a prior application for benefits was denied. (AR 11, 32, 70-77.) Plaintiff did not challenge the denial of her prior application beyond the Appeals Council stage. (AR 32.)
A hearing was held on February 14, 2012. (AR 31-58.) Plaintiff, who was represented by counsel, testified, as did a medical expert and a vocational expert. (Id.) In a written decision issued April 27, 2012, the ALJ determined that Plaintiff was not disabled. (AR 11-24.) On June 13, 2013, the Appeals Council denied her request for review. (AR 1-4.) This action followed.
III. STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The ALJ's findings and decision should be upheld if they are free of legal error and supported by substantial evidence based on the record as a whole. Id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means such evidence as a reasonable person might accept as adequate to support a conclusion. Richardson, 402 U.S. at 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It is more than a scintilla but less than a preponderance. Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). To determine whether substantial evidence supports a finding, the reviewing court "must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). "If the evidence can reasonably support either affirming or reversing," the reviewing court "may not substitute its judgment" for that of the Commissioner. Id. at 720-21.
IV. THE EVALUATION OF DISABILITY
People are "disabled" for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or mental impairment that is expected to result in death or which has lasted, or is expected to last, for a continuous period of at least 12 months. 42 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).
A. The Five-Step Evaluation Process
The ALJ follows a five-step sequential evaluation process in assessing whether a claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995) (as amended Apr. 9, 1996). In the first step, the Commissioner must determine whether the claimant is currently engaged in substantial gainful activity; if so, the claimant is not disabled and the claim must be denied. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not engaged in substantial gainful activity, the second step requires the Commissioner to determine whether the claimant has a "severe" impairment or combination of impairments significantly limiting her ability to do basic work activities; if not, a finding of not disabled is made and the claim must be denied. §§ 404.152 0(a)(4)(ii), 416.92 0(a)(4)(ii). If the claimant has a "severe" impairment or combination of impairments, the third step requires the Commissioner to determine whether the impairment or combination of impairments meets or equals an impairment in the Listing of Impairments ("Listing") set forth at 20 C.F.R., Part 404, Subpart P, Appendix 1; if so, disability is conclusively presumed and benefits are awarded. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
If the claimant's impairment or combination of impairments does not meet or equal an impairment in the Listing, the fourth step requires the Commissioner to determine whether the claimant has sufficient residual functional capacity ("RFC") to perform her past work; if so, the claimant is not disabled and the claim must be denied. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). The claimant has the burden of proving she is unable to perform past relevant work. Drouin, 966 F.2d at 1257. If the claimant meets that burden, a prima facie case of disability is established. Id. If that happens or if the claimant has no past relevant work, the Commissioner then bears the burden of establishing that the claimant is not disabled because she can perform other substantial gainful work available in the national economy. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). That determination comprises the fifth and final step in the sequential analysis. §§ 404.1520, 416.920; Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257.
RFC is what a claimant can do despite existing exertional and nonexertional limitations. §§ 404.1545, 416.945; Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989).
B. The ALJ's Application of the Five-Step Process
At step one, the ALJ found that Plaintiff had not engaged in any substantial gainful activity since September 26, 2009. (AR 14.) At step two, the ALJ concluded that Plaintiff had severe impairments of "HIV; degenerative joint disease left knee; obesity and depressive disorder." (Id.) At step three, the ALJ determined that Plaintiff's impairments did not meet or equal a Listing. (AR 14-15.) At step four, the ALJ determined that Plaintiff had the RFC to
lift and carry 10 pounds frequently and 20 pounds occasionally; [s]he could stand and walk up to 6 hours(AR 16.) Based on the VE's testimony, the ALJ found that Plaintiff was able to perform her past relevant work as a cashier or fast-food worker. (AR 24, 57.) Thus, the ALJ found that Plaintiff was not disabled. (Id.)
out of an 8-hour day and she could sit up to 6 hours out of an 8-hour day; occasional lift/carry 20 pounds, freq[.] 10; occasional stairs, balance, stoop, kneel, crouch, crawl; no ladders, scaffolds, ropes; no unprotected heights, dangerous or fast moving machinery; she is capable of routine tasks.
V. DISCUSSION
Plaintiff argues that the ALJ's RFC assessment and credibility determination are not supported by substantial evidence. (J. Stip. at 4.)
A. The ALJ's RFC Assessment Is Supported by Substantial Evidence
Plaintiff contends that the ALJ's RFC assessment is not supported by substantial evidence for two reasons. First, the ALJ relied on Dr. Steven Gerber's medical-expert opinion even though the doctor did not review all the medical evidence of record. (J. Stip. at 4-5, 13-14.) Second, the ALJ failed to set forth legally sufficient reasons for rejecting the opinion of Plaintiff's treating physician, Dr. Ann Dew, D.O. (Id. at 5-8, 14-15.)
Defendant suggests that Plaintiff's treating physician's last name is "Do," apparently confusing it with the abbreviation "D.O." following Dr. Dew's last name. (J. Stip. at 10-13; see, e.g., AR 248, 294.) A "D.O." is a doctor of osteopathic medicine, who, like a medical doctor, completes four years of medical school, can practice any specialty, and is a licensed physician. See Doctor of Osteopathic Medicine, MedlinePlus, http://www.nlm.nih.gov/medlineplus/ency/article/002020.htm (last updated Sept. 8, 2014). A doctor of osteopathic medicine is an acceptable medical source. See 20 C.F.R. §§ 404.1513(a), 416.913(a). Osteopathy adheres to the principle that a patient's history of illness and physical trauma are written into the body's structure. See Doctor of Osteopathic Medicine, MedlinePlus, http://www.nlm.nih.gov/ medlineplus/ency/article/002020.htm. Osteopathic physicians therefore complete additional training in the study of "hands-on manual medicine" and the body's musculoskeletal system to permit them to "feel (palpitate) the patient's 'living anatomy' (the flow of fluids, motion and texture of tissues, and structural makeup)." Id.
1. Applicable law
A district court must uphold an ALJ's RFC assessment when the ALJ has applied the proper legal standard and substantial evidence in the record as a whole supports the decision. Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). The ALJ must consider all the medical evidence in the record and "explain in [his] decision the weight given to . . . [the] opinions from treating sources, nontreating sources, and other nonexamining sources." 20 C.F.R. §§ 4 04.1527(e)(2)(ii), 416.927(e)(2)(ii); see also §§ 404.1545(a)(1), 416.945(a)(1) ("We will assess your residual functional capacity based on all the relevant evidence in your case record."); SSR 96-8p, 1996 WL 374184, at *2 (July 2, 1996) (RFC must be "based on all of the relevant evidence in the case record"). In making an RFC determination, the ALJ may consider those limitations for which there is support in the record and need not consider properly rejected evidence or subjective complaints. See Bayliss, 427 F.3d at 1217 (upholding ALJ's RFC determination because "the ALJ took into account those limitations for which there was record support that did not depend on [claimant's] subjective complaints"); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004) (ALJ not required to incorporate into RFC those findings from treating-physician opinions that were "permissibly discounted").
Three types of physicians may offer opinions in Social Security cases: (1) those who directly treated the plaintiff, (2) those who examined but did not treat the plaintiff, and (3) those who did not treat or examine the plaintiff. Lester, 81 F.3d at 830. A treating physician's opinion is generally entitled to more weight than that of an examining physician, and an examining physician's opinion is generally entitled to more weight than that of a nonexamining physician. Id.
When a treating or examining doctor's opinion is not contradicted by other evidence in the record, it may be rejected only for "clear and convincing" reasons. See Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) (quoting Lester, 81 F.3d at 830-31). When a treating or examining physician's opinion is contradicted, the ALJ must provide only "specific and legitimate reasons" for discounting it. Id.
2. Analysis
a. The ALJ properly relied on Dr. Gerber's opinion
The ALJ relied in part on Dr. Gerber's medical-expert testimony in fashioning Plaintiff's RFC. (AR 23.) The ALJ summarized Dr. Gerber's testimony that Plaintiff had HIV, degenerative joint disease of the left knee, and obesity. (AR 23, 52.) The ALJ noted that Dr. Gerber had opined that Plaintiff
The ALJ erroneously stated that Dr. Gerber testified that Plaintiff's "right," as opposed to left, knee was a medically determinable impairment. (AR 23; see also AR 52.) The ALJ correctly identified the left knee in his finding of severe impairments. (AR 14.)
could lift and carry 10 pounds frequently and 20 pounds occasionally; she could stand and walk up to six hours out of an 8-hour day and she could sit up to 6 hours out of an 8-hour day; she was limited to occasional posturals but no ladders and scaffolds.(AR 23, 53.) The ALJ noted that Dr. Gerber was an impartial expert with a specialty in internal medicine and was therefore well qualified to assess Plaintiff's limitations. (AR 23.) The ALJ "concur[red]" with Dr. Gerber's assessment and incorporated it into the RFC. (Id.)
In doing so, the ALJ noted that Dr. Gerber was subject to cross-examination by Plaintiff's counsel. (Id.) The ALJ also stated that Dr. Gerber "had an opportunity to review the claimant's entire medical record." (Id.) Plaintiff contends this finding was in error because Dr. Gerber testified he reviewed records only through Exhibit B14F, while the record at the time of the hearing consisted of records through Exhibit B16F and the final record consisted of records through Exhibit B19F. (J. Stip. at 5 (citing AR 52).)
Plaintiff's contention fails for a number of reasons. First, as Defendant points out (J. Stip. at 9), even though Plaintiff's counsel confirmed with Dr. Gerber the extent of his review of the medical evidence of record, he posed no objection to his opinion based on an incomplete review of the evidence. (AR 54); see Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999) ("We now hold that, at least when claimants are represented by counsel, they must raise all issues and evidence at their administrative hearings in order to preserve them on appeal.").
Second, ultimately it was within the ALJ's authority to review all the medical evidence of record and fashion the RFC. §§ 404.1546(c), 416.946(c) ("[T]he administrative law judge . . . is responsible for assessing your residual functional capacity."); see also §§ 404.1545(a)(1), 416.945(a)(1) ("We will assess your residual functional capacity based on all the relevant evidence in your case record."). Here, it is clear the ALJ reviewed the entire record - through Exhibit B19F. (See AR 17-22, 28). Accordingly, Plaintiff's claim fails. See Heiman v. Astrue, No. EDCV 11-486(OP), 2011 WL 4829924, at *3-5 (C.D. Cal. Oct. 11, 2011) (claimant's argument that medical-expert and state-agency opinions did not constitute substantial evidence because doctors did not have access to later records lacked merit; "even if the ME and the State agency physicians did not have [the] records, the ALJ did," and she carefully considered evidence).
Finally, Plaintiff has failed to show how she was prejudiced. Plaintiff has failed to identify, at any stage of the administrative proceedings (AR 223-24, 228-29) or here, any document within the exhibits not reviewed by Dr. Gerber that could change the ALJ's decision. (See AR 337-496.) Indeed, the exhibits primarily comprise laboratory results and progress notes, none of which discuss Plaintiff's ability to work. Some relate to Plaintiff's mental health, as to which she has not challenged the ALJ's findings, or to a breast abnormality unrelated to her claims of disability. The evidence contains no assessment of Plaintiff's functional limitations with the exception of a Riverside County Department of Mental Health "Consumer Care Plan," dated October 21, 2009. (AR 425.) This document states that Plaintiff had a history of substance abuse "which has impaired her ability to function [at] work, [and] maintain healthy communication [and] relationships." (Id.) But the document says nothing about the extent of her limitation and indicates that it is due to substance abuse, not one of the severe impairments found by the ALJ. (Id.) In any event, the document is duplicative of records found in exhibits Dr. Gerber indicated he reviewed. (Compare AR 254, 298 with AR 425.) As such, any error in the ALJ's statement that Dr. Gerber reviewed the entire record was harmless. See Stout v. Comm'r Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) (nonprejudicial or irrelevant mistakes harmless).
As a final contention related to Dr. Gerber, Plaintiff argues she was denied procedural due process because she requested a supplemental hearing to take additional testimony from Dr. Gerber but her request was never acted upon or acknowledged. (J. Stip. at 5, 14.) She claims that under the Agency's Hearings, Appeals, and Litigation Law Manual ("HALLEX"), the ALJ was required to grant the request unless he issued a fully favorable decision. (Id.) As an initial matter, the HALLEX is an internal policy manual that does not impose judicially enforceable duties on the ALJ. See Lockwood v. Comm'r Soc. Sec. Admin., 616 F.3d 1068, 1072 (9th Cir. 2010) ("HALLEX does not impose judicially enforceable duties on either the ALJ or this court."); see also Clark v. Astrue, 529 F.3d 1211, 1216 (9th Cir. 2008) ("HALLEX is strictly an internal Agency manual, with no binding legal effect on the Administration or this court.") Moreover, the two provisions of the HALLEX Plaintiff contends entitled her to a supplemental hearing do not by their very terms apply. (J. Stip. at 5, 14.) HALLEX I-2-5-44 applies when an ALJ receives a medical expert's responses to interrogatories, see HALLEX, I-2-5-44, http://ssa.gov/OP_Home/ hallex/I-02/I-2-5-44.html (last updated Aug. 29, 2014), which did not happen here. HALLEX I-2-7-30-H applies when the ALJ receives posthearing evidence and states that the ALJ must proffer such evidence unless it was submitted by the claimant or the claimant's representative. See HALLEX, I-2-7-30-H, http://ssa.gov/OP_Home/hallex/I-02/I-2-7-30.html (last updated Sept. 2, 2005). The only posthearing evidence submitted in this case came from the Plaintiff's attorney. (AR 31-32, 475.) Thus, Plaintiff has not shown she was denied procedural due process.
b. The ALJ properly rejected Dr. Dew's opinion
Plaintiff contends that the ALJ failed to provide legally sufficient reasons for discounting the opinion of Dr. Dew, her longtime treating physician. (J. Stip. at 5-8, 14-15.)
On July 29, 2010, Dr. Dew completed a two-page "Physician's Statement" regarding Plaintiff. (AR 293-94.) She checked boxes indicating that Plaintiff did not appear chronically ill but was visibly fatigued. (AR 293.) She indicated the cause of the fatigue as HIV, morbid obesity, and back pain. (Id.)
Also largely in check-off form, Dr. Dew opined that Plaintiff could lift and carry five pounds frequently and 20 pounds occasionally. (Id.) She indicated that Plaintiff could stand and walk for two to four hours and could sit for up to six hours in an eight-hour day. (Id.) She also indicated that Plaintiff should walk for five minutes every half hour. (Id.) Dr. Dew provided the following handwritten notes regarding Plaintiff's functional level:
[Patient] is bright and interacts well with clinic staff, patient's ability to work limited by chronic back pain, fatigue due to obesity and low level positions. Has been directed to apply to California Occ Rehab Program.(Id.)
On the second page of the statement, Dr. Dew filled in Plaintiff's viral load, latest T-Cell count, HIV results, and height and weight. (AR 294.) She indicated that the following objective findings supported her statement: (1) "on residual functional capacity eval 3/10 [¶] obese, gait [], ROM of back (trunk @ waist) limited by obesity, TTP T10 [and] L3-S over spinous process [and] paravertebral muscles"; (2) "LS spine X rays 10-19-09: splinting of lumbar spine to the left, marginal spurring; (3) MRI (L) knee 3/4/10: (L) knee patellar tendon pathology, degen[.] change lateral meniscus[.]" (Id.) Finally, Dr. Dew checked the box indicating no diagnosed mental impairment but noted that Plaintiff had been referred in 1999 to the Riverside Early Intervention Program. (Id.)
The ALJ gave specific and legitimate reasons for giving "little weight" to Dr. Dew's opinion. (AR 22-23.)
The ALJ acknowledged that a treating physician's opinion is entitled to "special significance" and, when supported by objective evidence and consistent with otherwise substantial evidence of record, is entitled to controlling weight. (Id.) However, the ALJ discounted Dr. Dew's statement in part because it was made on a "fill-in-the-blank form, with only marginal notes attached to it." (Id.) Further, the ALJ indicated that the statement "failed to cite any medical testing or objective observations to support her conclusions" as to Plaintiff's RFC. (Id.)
Plaintiff contends that the ALJ erred because Dr. Dew in fact did cite objective findings to support her statement. (J. Stip. at 5.) While it is true that Dr. Dew included handwritten notations purporting to list the objective evidence supporting her opinion, that evidence was in fact not objective, not in the record, or considered and discounted by the ALJ. For example, Dr. Dew appears to have referenced her own prior RFC opinion as objective evidence supporting her statement. (AR 294.) But her own prior opinion as to Plaintiff's RFC, a matter reserved for the ALJ, does not constitute "objective" evidence. See Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001) ("It is clear that it is the responsibility of the ALJ, not the claimant's physician, to determine residual functional capacity."); Trujillo v. Astrue, No. ED CV 10-00153 RZ, 2010 WL 4916630, at *1 (C.D. Cal. Dec. 1, 2010) ("presumably an opinion is not 'objective' medical evidence"). Moreover, it does not appear that this prior RFC assessment is in the record.
The other two pieces of objective evidence referenced by Dr. Dew — x-rays of Plaintiff's back and an MRI of her left knee — had already been considered in the ALJ's assessment of her RFC. (AR 20-21.) The ALJ specifically discussed the findings of the March 4, 2010 MRI mentioned in Dr. Dew's opinion, including Plaintiff's patellar tendon pathology and "mild" degenerative changes of the lateral meniscus. (AR 20, 255, 258.) The ALJ found Plaintiff's degenerative joint disease in her knee to be a "severe" impairment but nonetheless concluded that the objective findings regarding her knee derangement were "minimal to moderate." (Id.) As to Plaintiff's back, the ALJ considered a December 2009 x-ray of it, which showed minimal lipping of the lumbar spine but probable spasm. (AR 17, 393.) Plaintiff does not contend that the October 2009 x-ray referenced by Dr. Dew is better evidence than the later x-ray, if it even exists. (J. Stip. at 6.) It too does not appear to be in the record. Presumably, when the ALJ stated that Dr. Dew failed to cite objective evidence supporting her opinion, the ALJ meant that she failed to cite actual objective evidence in the administrative record or evidence not already considered by the ALJ and found not to support a finding of disability. Beyond those notations, Dr. Dew offered merely her conclusory check-offs and notations as the basis of her opinion. The ALJ could properly discount her opinion for that reason. See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (ALJ "need not accept the opinion of any physician, including a treating physician, if that opinion is brief, conclusory, and inadequately supported by clinical findings"); accord Batson, 359 F.3d at 1195; see also De Guzman v. Astrue, 343 F. App'x 201, 209 (9th Cir. 2009) (ALJ was "free to reject" doctor's check-off report that did not explain basis for conclusion); Murray v. Heckler, 722 F.2d 499, 501 (9th Cir. 1983) (expressing preference for individualized medical opinions over check-off reports).
Next, the ALJ concluded that Dr. Dew's opinion conflicted with the substantial evidence of record documenting less severe limitations. (AR 22-23.) For example, the ALJ noted the findings of examining state-agency medical consultant Dr. F. Kalmar. (AR 23.) On August 13, 2010, Dr. Kalmar opined that Plaintiff was limited to a range of medium work: she could lift and carry 25 pounds frequently and 50 pounds occasionally; she could stand or walk and sit up to six hours each in an eight-hour day; she could occasionally climb ladders, ropes, or scaffolds; she could frequently climb ramps and stairs; she could frequently balance, stoop, kneel, crouch, and crawl; and she should avoid concentrated exposure to extreme heat and hazards, such as machinery and heights. (AR 301-03.) Dr. Kalmar also found no manipulative or visual limitations. (AR 303.)
The ALJ further noted the medical-expert testimony of Dr. Gerber, summarized above, which also conflicted with Dr. Dew's opinion. As mentioned, the ALJ concurred with Dr. Gerber and included the doctor's restrictions in the RFC. (AR 23.) Finally, the ALJ noted that state-agency medical consultants found Plaintiff's psychiatric impairments to be nonsevere and that they adopted the prior ALJ's mental-health findings. (Id.) The ALJ found that Plaintiff's mental condition had not materially changed since the 2009 decision and noted that at that time she was not in consistent psychiatric treatment and the decision was based primarily on a one-time consultative examination in 2008. (Id.) After the 2009 decision, the ALJ noted, Plaintiff had fairly consistent psychiatric care, showing depressed mood and mildly decreased concentration, and he therefore limited Plaintiff to simple tasks. (Id.) Plaintiff has not challenged here the ALJ's findings concerning her mental health.
Plaintiff does not address the conflict between her treating physician's opinion and Dr. Kalmar's and Dr. Gerber's opinions other than to assert that the latter were "stale." (J. Stip. at 6.) Plaintiff complains that no state-agency physician reviewed records after Dr. Kalmar did on August 13, 2010. (Id.) But by that reasoning Dr. Dew's opinion is even less relevant, having been completed before Dr. Kalmar's. (AR 294.) In fact, Dr. Kalmar considered Dr. Dew's opinion in making the state-agency assessment. (AR 307.) Similarly, Dr. Gerber's assessment is the least stale, as he reviewed documents more recent than those reviewed by Dr. Kalmar or Dr. Dew and was cross-examined by Plaintiff's counsel at the hearing on February 14, 2012. (AR 31, 52-53.)
Except for Dr. Gerber's testimony, Plaintiff does not specifically challenge any of the evidence relied on by the ALJ as supporting the RFC: (1) "a history of well controlled HIV [with] no documentation of severe or persistent fatigue, diarrhea, night sweats, or opportunistic infections"; (2) "a treatment history for depression with allegations of psychotic features, without evidence of the same on examinations"; and (3) "mild degeneration of the lumbar spine and left knee with conservative treatment, a normal gait, normal motor strength, full range of motion and no neurologic deficits." (AR 23.) That Dr. Dew's opinion that Plaintiff was more functionally restricted was not supported by objective evidence in the record and was contradicted by the findings of state-agency physicians were legitimate bases upon which to discount her opinion. See §§ 404.1527(c)(4), 416.927(c)(4) (explaining that more weight should be afforded to medical opinions that are consistent with the record as a whole); Batson, 359 F.3d at 1195 (holding that ALJ may discredit physicians' opinions that are "unsupported by the record as a whole . . . or by objective medical findings"); Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1227-28 (9th Cir. 2009) (upholding RFC determination when ALJ relied on state-agency physician's opinion over that of treating physician).
Remand is not warranted on this basis.
B. The ALJ Did Not Err in Assessing Plaintiff's Credibility
Plaintiff contends that the ALJ's credibility determination is not supported by substantial evidence. (J. Stip. at 15-19, 23-24.)
1. Applicable law
An ALJ's assessment of pain severity and claimant credibility is entitled to "great weight." See Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1986). "[T]he ALJ is not required to believe every allegation of disabling pain, or else disability benefits would be available for the asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A)." Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (internal quotation marks omitted).
In evaluating a claimant's subjective symptom testimony, the ALJ engages in a two-step analysis. See Lingenfelter, 504 F.3d at 1035-36. "First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment [that] could reasonably be expected to produce the pain or other symptoms alleged." Id. at 1036 (internal quotation marks omitted). If such objective medical evidence exists, the ALJ may not reject a claimant's testimony "simply because there is no showing that the impairment can reasonably produce the degree of symptom alleged." Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996) (emphasis in original). When the ALJ finds a claimant's subjective complaints not credible, the ALJ must make specific findings that support the conclusion. See Berry v. Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010).
Absent affirmative evidence of malingering, those findings must provide "clear and convincing" reasons for rejecting the claimant's testimony. Lester, 81 F.3d at 834. If the ALJ's credibility finding is supported by substantial evidence in the record, the reviewing court "may not engage in second-guessing." Thomas, 278 F.3d at 959.
2. Analysis
Contrary to Plaintiff's contention, the ALJ provided clear and convincing reasons for discounting her credibility. The ALJ found her allegations of disabling pain to be inconsistent with the objective medical evidence, her conservative treatment, and reports to her treating physician about her restrictions on daily activities.
With respect to the medical evidence, the ALJ conducted an exhaustive summary of Plaintiff's complaints and lack of corresponding objective evidence. Regarding Plaintiff's HIV, the ALJ noted Plaintiff's testimony that she had daily diarrhea, fatigue, and night sweats but observed that those symptoms were not reflected in the record, with the exception of one report of night sweats. (AR 20, 41, 246 (reporting on Dec. 1, 2009 no diarrhea), 364 (reporting "sweats" on July 21, 2010).) Regarding her knee pain, as previously mentioned, the ALJ found the objective findings "minimal to moderate." (AR 20.) Specifically, although records showed she had a documented knee derangement, later objective evidence showed a lack of severity. The ALJ noted that a July 21, 2010 progress note indicated Plaintiff had full range of motion and her strength was intact in all her extremities. (AR 20, 363.) Further, the ALJ noted that a physical examination in September 2010 revealed "normal" results for her extremities, including a finding of no edema. (AR 20, 309, 328.) Regarding her ankle pain, the ALJ noted that other than one instance in June 2010, there were no records showing joint swelling. (AR 20.) Regarding Plaintiff's hand pain and allegations of carpal tunnel syndrome, "there is no confirmed diagnosis in file." (Id.) Further, the ALJ noted that there is "no medical evidence that the claimant's obesity prevents her from performing routine movements and necessary physical activity in an ordinary work environment on a regular or continuing basis." (AR 21.) Finally, regarding Plaintiff's allegations of hallucinations and paranoia, the ALJ noted that there were "no observations of her responding to internal stimuli or displaying floridly psychotic behaviors." (Id.)
In an HIV questionnaire, Plaintiff self-reported these symptoms. (AR 198-99.) However, it is unclear whether this questionnaire reflected symptoms during the relevant period, as it is undated and only three of its purported six pages appear in the record. (AR 198-200.) On another occasion, Plaintiff reported "cold clammy sweats," but they occurred on October 22, 2008, before the relevant period. (AR 239.) Plaintiff admitted at the hearing that her HIV was "under control," and other evidence of record indicates the same. (AR 40, 345, 433, 437.)
Plaintiff does not point to any evidence in the record undermining any of the above findings or that is consistent with her asserted symptoms, instead contending only that "[t]he ALJ cannot reject the claimant's testimony based solely on the alleged lack of objective medical evidence corroborating it." (J. Stip. at 18.) It is true that an ALJ may not disregard a claimant's subjective symptom testimony "solely because it is not substantiated affirmatively by objective medical evidence." Robbins, 466 F.3d at 883; see also Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991) (en banc). The ALJ may, however, use the medical evidence in the record as one factor in the evaluation. See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) ("Although lack of medical evidence cannot form the sole basis for discounting pain testimony, it is a factor that the ALJ can consider in his credibility analysis."); accord Kennelly v. Astrue, 313 F. App'x 977, 979 (9th Cir. 2009). Here, as explained below, the ALJ's credibility determination was supported by at least one other clear and convincing reason; thus, there was no error.
With respect to Plaintiff's low-back pain, the ALJ noted that her treatment was "very conservative" and that no doctor had recommended surgical intervention. (AR 21, 37, 47.) Plaintiff's treatment was simply "heat to back." (AR 394.) Further, with respect to her allegations of debilitating pain, the ALJ noted that Plaintiff was not currently taking any prescription pain medications. (AR 22.) The ALJ also noted that Plaintiff was given over-the-counter Motrin for her knee pain and that she was not required to take stronger analgesics or narcotics to manage her joint pain. (AR 22, 226, 344-45, 433, 436-37, 479.) Plaintiff's reliance on and response to conservative treatment is a clear and convincing reason to discount her allegations of disabling impairments. See Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (holding that claimant's response to conservative treatment undermined his reports of disabling symptoms); Parra, 481 F.3d at 751 (noting that "evidence of 'conservative treatment' is sufficient to discount a claimant's testimony regarding severity of an impairment"); Pruitt v. Astrue, No. CV 11-8158-E, 2012 WL 2006150, at *2 (C.D. Cal. June 5, 2012) (Motrin is conservative treatment); compare Lapeirre-Gutt v. Astrue, 382 F. App'x 662, 664 (9th Cir. 2010) (treatment with narcotic pain medication, occipital nerve blocks, trigger-point injections, and cervical-fusion surgery not conservative).
Motrin is a brand of ibuprofen, which is a nonsteroidal anti-inflamatory drug used to treat "mild to moderate" pain. See Ibuprofen, PubMed Health, www.ncbi.nlm.nih.gov/pubmedhealth/ PMHT0010648/ (last updated Aug. 1, 2014); Oregon ex rel. Kroger v. Johnson & Johnson, 832 F. Supp. 2d 1250, 1252 (D. Or. 2011).
The ALJ also noted Plaintiff's testimony about her limited daily activities, including that she could walk only a block, sit for a half hour, and lift and carry five pounds. (AR 22, 39-40.) The ALJ discussed the difficulty in assessing this testimony and discounted it in part because of the lack of objective evidence supporting it. (AR 22.) The ALJ also discounted the testimony because Plaintiff did not report any severely constrained daily activities or symptoms to her own physician. (Id.) Plaintiff's testimony about her inability to walk a block did not appear in Dr. Dew's opinion or other records. (AR 293-94.) Further, her testimony that she could lift and carry only five pounds conflicted with Dr. Dew's assessment that she could lift and carry five pounds frequently and 20 pounds occasionally. (AR 22, 293.) The ALJ could properly consider Plaintiff's omissions to her own treating physician and the conflict between Plaintiff's testimony and her doctor's assessment as legitimate reasons for discounting her credibility. See Lingenfelter, 504 F.3d at 1040 (in determining credibility, ALJ may consider "whether the alleged symptoms are consistent with the medical evidence"); see also Tommasetti, 533 F.3d at 1039 (holding that ALJ may consider many factors in weighing claimant's credibility, including "ordinary techniques of credibility evaluation, such as . . . inconsistent statements concerning the symptoms . . . and . . . the claimant's daily activities"); Morillas v. Astrue, 371 F. App'x 880, 883 (9th Cir. 2010) (ALJ reasonably discounted testimony about side effects of medications when "[n]othing in the medical records reflected any complaint to her health providers that her medications made her drowsy, and there was no evidence of any assessed functional limitation from her medications").
Plaintiff contends that under Soto-Olarte v. Holder, 555 F.3d 1089, 1092 (9th Cir. 2009), once a perceived inconsistency between the written record and the oral testimony arises, the ALJ must confront the claimant with the inconsistency and address any explanation, which the ALJ did not do here. (J. Stip. at 23.) Soto-Olarte held that an immigration judge cannot base an adverse credibility determination on a discrepancy without first asking an asylum applicant about it and providing an opportunity to explain. 555 F.3d at 1092. Plaintiff has not shown that this case applies in the Social Security context.
This Court is limited to determining whether the ALJ properly identified reasons for discrediting Plaintiff's credibility. Smolen, 80 F.3d at 1284. The inconsistencies between Plaintiff's allegations and the medical evidence and her conservative treatment were proper and sufficiently specific bases for discounting her claims of disabling symptoms, and the ALJ's reasoning was clear and convincing. See Tommasetti, 533 F.3d at 1039-40; Houghton v. Comm'r Soc. Sec. Admin., 493 F. App'x 843, 845 (9th Cir. 2012). Because the ALJ's findings were supported by substantial evidence, this Court may not engage in second-guessing. See Thomas, 278 F.3d at 959.
Remand is not warranted on this ground.
VI. CONCLUSION
Consistent with the foregoing, and pursuant to sentence four of 42 U.S.C. § 405(g), IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner and dismissing this action with prejudice. IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment on counsel for both parties. DATED: September 17, 2014
This sentence provides: "The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing."
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/s/_________
JEAN ROSENBLUTH
U.S. Magistrate Judge