UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
March 28, 2011
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.
The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT
Plaintiff Linda Halford ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying her application for supplemental security income benefits pursuant to Title XVI of the Social Security Act. The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Gary S. Austin, United States Magistrate Judge.*fn1
FACTS AND PRIOR PROCEEDINGS*fn2
Plaintiff initially filed an application for supplemental security
income benefits on December 1, 1998. AR 82. Her application was denied
initially and on reconsideration. AR 82. She requested and
administrative hearing and Administrative Law Judge ("ALJ") Rocklin
Lyons denied her application on September 26, 2000.*fn3
Plaintiff filed a second application for supplemental security benefits on May 24, 2004. AR 58. Her application was denied initially and on reconsideration. Plaintiff requested a hearing before an ALJ, but withdrew her request. The denial became final on May 4, 2004. AR 58.
Plaintiff filed a third application for supplemental security benefits on September 15, 2006. AR 61. Her application was denied initially and on reconsideration. AR 70. Thereafter, Plaintiff requested a hearing before an ALJ. AR 101. ALJ Christopher Larsen held a hearing on April 17, 2009, and issued an order denying benefits on June 30, 2009. AR 7-17. Thereafter, on September 11, 2009, the Appeals Council denied review. AR 1-3.
On April 17, 2009, ALJ Larsen held a hearing in Fresno, California. Plaintiff appeared and testified. She was represented by attorney Melissa Proudian. Vocational Expert ("VE") Thomas Dachelet also appeared and testified. AR 50-53.
Plaintiff is a forty-three year old, single, female. She has three grown children and currently lives alone. AR 25. Plaintiff did not complete high school and has not received a GED.*fn4 AR 27. In 2003, she obtained a certificate for vocational training in retail sales but never worked in the field. AR 28.
Plaintiff last worked in 1998 for eight months as a housekeeper.*fn5 AR 28-29. She quit this job because she experienced pain in her legs, arms, and lower spine. AR 31-32. Prior to that time, she worked full-time as an in home care aide for a period of approximately two years. AR 29-30. Both of these jobs required that Plaintiff lift between ten to twenty pounds. AR 29-30.
Plaintiff does not believe she is capable of working full-time because she experiences constant pain in her neck, back, arms, and legs. AR 31. She also has numbness in all her arms and legs. AR 32. The back pain started in 1991. AR 41. She had one epidural at that time, but it did not relieve the pain. AR 42. Plaintiff indicates her pain currently ranges between a seven and eight on a ten point scale. AR 34-35.
The pain prevents Plaintiff from bending over. She also suffers from higher levels of pain for three to four days if she lifts more than two or three pounds. AR 36. She is able to sit in a chair for forty-five minutes to an hour, but then needs to lay down for the rest of the day. AR 36-37. She is only able to stand for ten minutes and can only walk one-half of a city block. AR 38. She has had physical therapy in the past, but it was not effective. AR 41-42. Although she has been tested for "a lot of things" she believes that her immune system is "attacking itself." AR 31. Doctors have not given Plaintiff a diagnosis, but fibromyalgia and polymyalgia have been ruled out. AR 42.
Plaintiff was taking Prednisone to treat her immune system for about a year. AR 40. She has also been taking Soma to treat her back pain "on and off" for approximately two years. AR 38-39. The Soma decreases the lower back pain, but does not help with her neck pain. AR 39. The Prednisone relieves the muscle aches and the throbbing pain. AR 40. Plaintiff does not experience any side effects from either medication. AR 39. Plaintiff has never used a TENS unit and surgery has never been performed. AR 41-42.
In addition to the pain, Plaintiff also experiences fatigue at least four times per week. AR 32, 42-43. She lays down twelve hours a day if she does not have any appointments. AR 44-45. She began taking Prednisone most recently to help combat the fatigue. AR 44. Plaintiff believes that certain foods trigger both her fatigue and pain, but doctors are still in the process of determining whether there is a causal connection. AR 44-45.
Plaintiff also suffers from depression, however, she takes Paxil which relieves most of her symptoms. AR 47-50. She currently is not receiving any additional mental health therapy or treatment. AR 47. She is able to concentrate for two hours at a time when taking her medication. AR 50. In the past, Plaintiff has also struggled with substance abuse. AR 32-33. She last used crack cocaine in 2007, but she has never had a problem with alcohol. AR 33. She currently has one beer about once a month. AR 33.
With regard to daily activities, Plaintiff is able to dress and bathe herself. AR 47. She also cooks small meals and does the dishes "a little." AR 46. She cleans the house with the assistance of her sister, but she does not vacuum, mop, or sweep. AR 46. She also goes shopping with her sister about once a month AR 46. Plaintiff does not engage in any social activities, and has no friends that she sees on a regular basis. AR 47. For fun, she watches television three to four hours a day and reads approximately one to two hours a day. AR 47.
VE Dachelet testified at the hearing. The VE was asked to assume a hypothetical worker of Plaintiff's age, education, and work experience who can perform light, unskilled work that is limited to simple repetitive tasks with limited public contact. AR 51. The VE indicated that such a worker could perform Plaintiff's past work, as well as many other unskilled jobs ranging from sedentary to light work. AR 52.
In a second hypothetical, the VE was asked to consider the same worker except that this individual would only be able to stand and walk a total of two hours and sit a total of three hours in an eight hour day. AR 53. The VE indicated there would be no jobs available for a person with these limitations. AR 53.
Plaintiff has been examined and treated at Bautista Medical Group ("BMG"), Fresno County Mental Health Department, Sequoia Community Health Center, and University Medical Center. The entire medical record was reviewed by the Court (AR 203-354), however, only those medical records pertaining to Plaintiff's physical impairments and pain will be addressed as this is the sole issue presented on appeal.
Clinic Reports and Laboratory Results
Bautista Medical Group
Plaintiff's treatment at BMG began on June 17, 2004, when she was treated for back pain she had been experiencing "for months." AR 303-304. Plaintiff reported Soma, Vicodin and Tylenol 3 helped relieve the pain. AR 303. At the time of the examination, Plaintiff was taking 800 milligrams of Ibuprofen. AR 303. The nurse practitioner opined that Plaintiff had chronic back pain and prescribed Neurontin and Ultram. AR 304. He also recommended that Plaintiff's prescription for Vicodin, Tylenol 3 or Soma "NOT" be refilled. AR 304. Instead, Plaintiff was advised she should go to a pain specialist if her condition did not improve. AR 304.
On October 27, 2004, Plaintiff was seen for complaints of back pain, numbness in her hands, and losing her balance. During the visit, Plaintiff stated that her lower back pain began in 1998, while stocking a "heavy rack" and that she re-injured it in 2003 while stocking clothes. The physician prescribed Vicodin for pain. AR 301.
On November 22, 2004, Plaintiff returned to the clinic with continued complaints of back pain and was again prescribed Vicodin. AR 298-300. The physician opined that Plaintiff had chronic lower back pain. AR 298. He recommended an MRI and treatment at a pain control clinic, as well as the use of a hand cane. AR 300. On November 30, 2004, the MRI revealed normal alignment of the vertebrae, with no disc, ligament, or other abnormalities. AR 297.
On January 14, 2005, Plaintiff was seen in the clinic for a persistent cough and lower back pain. AR 292-294. The nurse practitioner recommended that the Vicodin be discontinued. AR 293. It was noted that Plaintiff got upset and requested another provider when she was told the Vicodin prescriptions would not be refilled. AR 294.
Sequoia Community Health Centers
Plaintiff was seen at Sequoia Community Health Centers from September 2006 through October 2008. AR 203-237; 315-340. Several of these visits in 2006 were for treatment of depression, routine physicals, and gynecological exams. AR 206 -208, 235, 238, 240-241.
Plaintiff began treatments for back pain on August 27, 2007, when she went to the clinic and was prescribed Vicodin. AR 234. On September 6, 2007, Plaintiff called the clinic several times requesting refills of Soma and Vicodin, but was told she would not get a refill until she was seen at her scheduled appointment on October 9, 2007. AR 237. Plaintiff was referred to go to the emergency room if severe pain continued. AR 237.
Plaintiff had scheduled appointments for chronic pain on October 2 and October 9, 2007, but she failed to appear. AR 232-233. She did however attend an appointment on October 31, 2007. AR 331. At that time, she also complained of fatigue and weakness, and reported that she is sometimes unable to do anything for two to three days. AR 331. She told her doctor that Vicodin, Ibuprofen, and other medications do not work. AR 331. She was prescribed Lyrica for two weeks. AR 331.
On November 14, 2007, Plaintiff was examined due to complaints of body aches. AR 330. At that time, Plaintiff's hands were also x-rayed because of complaints of bilateral hand pain. AR 348. No abnormalities or injuries were found. AR 348.
Plaintiff did not appear for a scheduled appointment on December 14, 2007. AR 329. She attended an appointment on January 8, 2008, to obtain the results of her x-rays, as well as to receive medication. AR 328.
On January 30, 2008, Plaintiff returned again complaining of back pain and chronic fatigue. The physician opined that she had myalgia and fatigue and noted that her sedimentation rates were elevated. Plaintiff was prescribed Vicodin. AR 327.
On February 21, 2008, Plaintiff presented at the clinic complaining of all over body pain at a severity level of ten. AR 326. The physician prescribed Prednisone and opined that fibromyalgia was doubtful because of her elevated sedimentation rates. AR 326. He ordered x-rays of her hands and spine and considered the possibility of rheumatoid diagnosis. AR 326. However, spine and lumbar x-rays taken on February 21, 2008, showed unremarkable alignment, with straightening of the normal cervical lordosis possibly secondary to muscle spasm. Only minimal degenerative changes of the cervical spine were noted. AR 337-340. No recommendations regarding physical limitations were made at that time. AR 340.
On March 6, 2008, Plaintiff went to the clinic to obtain the results of the x-rays and reported that the Prednisone decreased the pain. AR 325. The treating physician recommended that she continue taking Prednisone. AR 325.
On April 7, 2008, Plaintiff called the clinic and requested a note indicating that she could not do community service due to a medical condition. AR 324. The doctor indicated that Plaintiff would need to be examined at the clinic before a note would be issued. AR 324.
Plaintiff was examined on April 10, 2008, and again reported feeling much better when taking Prednisone. AR 323. The physician opined that despite its effectiveness, the Prednisone should be decreased due to plaintiff's young age. The Prednisone prescription was lowered and another appointment was scheduled for two weeks. AR 323.
Lab specimens collected and examined in mid-April of 2008 showed increased sedimentation rates. AR 335-336. On May 8, 2008, Plaintiff was seen for a follow-up examination and complained that the lower dosage of Prednisone was not working. AR 322. The physician diagnosed chronic and severe myalgia with increased sedimentation rates with an unclear cause. AR 322. He recommended that Plaintiff taper off of the Prednisone and prescribed Vicodin. AR 322.
On May 27, 2008, Plaintiff went to the clinic seeking refills for Vicodin and Soma for her back pain. AR 319. She was given a prescription for Soma. AR 319. On June 4, 2008, Plaintiff was seen again at the clinic. It was noted that Plaintiff was now off Prednisone, and that she received only partial relief from Vicodin. AR 316. The physician diagnosed Plaintiff with multiple myalgia (probably not fibromyalgia) and prescribed Vicodin. AR 316. On June 18, 2008, Plaintiff went to the clinic seeking pain medication and was given a refill of Vicodin. AR 315.
Laboratory results for rheumatoid factors taken on June 18, 2008 revealed levels within the normal range. AR 334. On July 8, 2008, Plaintiff went to a follow-up visit to receive her lab results and was prescribed Neurontin for pain. AR 314. Plaintiff did not appear for an appointment on July 31, 2008. AR 313. On August 14, 2008, Plaintiff was seen and prescribed Toradol for chronic myalgia with an unknown cause. AR 318.
On August 27, 2008, Plaintiff went to the clinic for a follow-up visit for her pain where she reported lower back pain, as well as left knee, right arm and right hip pain. AR 317. She was prescribed Soma and a hip examination was ordered. AR 317.
On October 14, 2008, Plaintiff advised the clinic she will be seeking care elsewhere. AR 312. She was prescribed Baclofen, Tramadol and Naproxen. AR 312. No other refills were prescribed. AR 312.
University Medical Center
On December 4, 2008, Plaintiff went to the clinic at Community Medical Center complaining of arthritis/chronic joint pain. AR 310. On examination, she had no inflamation, no fever, and no redness. AR 310. The physician prescribed Naproxen, Baclofen and Tramadol and another appointment was rescheduled in four weeks. AR 310.
On January 5, 2009, Plaintiff arrived at the clinic with complaints of chronic lower back, neck pain, and bilateral hand pain. AR 309. The physician ordered x-rays for Plaintiff's neck and back, ordered wrist splints, and prescribed the pain reliever Nabumetone. AR 309.
Physician Opinion Evidence
Dr. Abbas Mehdi, M.D.
On September 21, 2007, Dr. Abbas Mehdi, M.D. performed an orthopedic consultation at the request of the Department of Social Services. AR 228-230. At the time of the evaluation, Plaintiff reported that her back pain began eight years ago. However, she recently experienced a "flare up" approximately two months ago while cleaning the house. AR 228. She reported that her pain was "10 out of 10" on the pain scale in her neck, shoulders and back. AR 228.
Plaintiff was uncooperative with the range of motion testing, as well as the cervical and lumbar spine examination due to her self-reported pain. AR 229. However, Dr. Mehdi noted that she had a stable gait and had no difficulty getting on or off the examination table. AR 229. In addition, Plaintiff's joints showed no significant signs of abnormality or deformity. AR 229. When asked to do the hand grip test, Plaintiff showed little to no effort with either hand. AR 229. Dr. Mehdi opined that he could not provide an impairment assessment until she was willing to assist in the process. AR 230.
Dr. Ernest Wong, M.D.
On October 27, 2007, non-examining state agency physician, Dr. Ernest Wong, M.D. noted Plaintiff had been going to different urgent care centers for pain medications and appeared pleasant but refused a neurological exam due to pain. AR 242-243. It was also noted that Plaintiff was requesting refills of Soma and Vicodin, but her requests were not refilled until she came in for an examination. Dr. Wong found no limitations due to insufficient evidence. AR 243.
Fresno County Department of Employment and Temporary Assistance On July 26, 2006, Plaintiff was given a medical release from work for recurrent depression with psychotic features, however, the psychologist indicated that she was able to care for her children and did not require in home care. AR 305-306.
On August 27, 2008, Plaintiff was evaluated by a physician who diagnosed Plaintiff with moderate to severe osteoarthritis in the back, hip and neck. AR 307-308. Plaintiff was temporarily released from work until September 2009, and was scheduled for follow-up appointment on September 20, 2009. AR 308.
The ALJ determined that Plaintiff had not engaged in substantial gainful activity since September 15, 2006, and that her myalgia was not a severe impairment. AR 12-13. The ALJ did find severe impairments of depressive disorder, not otherwise specified, and a polysubstance abuse. AR 12. Nonetheless, the ALJ determined that none of the severe impairments met or exceeded one of the listing impairments. AR 13.
Based on his review of the medical evidence, the ALJ determined that Plaintiff has the residual functional capacity ("RFC") to perform simple, repetitive tasks with limited public contact at all exertional levels. AR 14. The ALJ found that Plaintiff can perform her past relevant work. AR 16. He determined that Plaintiff is a younger individual, with limited education, whom is able to communicate in English. AR 16. Based on her age, vocational background and RFC, the ALJ found Plaintiff can perform jobs that exist in significant numbers in the national economy. Thus, the ALJ determined Plaintiff is not disabled. AR 16-17.
SCOPE OF REVIEW
Congress has provided a limited scope of judicial review of the Commissioner's decision to deny benefits under the Act. In reviewing findings of fact with respect to such determinations, the Court must determine whether the decision of the Commissioner is supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence means "more than a mere scintilla," Richardson v. Perales, 402 U.S. 389, 402 (1971), but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 1119, n. 10 (9th Cir. 1975). It is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401. The record as a whole must be considered, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). In weighing the evidence and making findings, the Commissioner must apply the proper legal standards. E.g., Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must uphold the Commissioner's determination that the claimant is not disabled if the Secretary applied the proper legal standards, and if the Commissioner's findings are supported by substantial evidence. See Sanchez v. Sec'y of Health and Human Serv., 812 F.2d 509, 510 (9th Cir. 1987).
In order to qualify for benefits, a claimant must establish that she is unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 1382c (a)(3)(A). A claimant must show that she has a physical or mental impairment of such severity that she is not only unable to do her previous work, but cannot, considering her age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989). The burden is on the claimant to establish disability. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990).
In an effort to achieve uniformity of decisions, the Commissioner has promulgated regulations which contain, inter alia, a five-step sequential disability evaluation process. 20 C.F.R. §§ 404.1520 (a)-(f), 416.920 (a)-(f) (1994). Applying this process in this case, the ALJ found that Plaintiff: (1) had not engaged in substantial gainful activity since the date of her application; (2) has an impairment or a combination of impairments that is considered "severe" based on the requirements in the Regulations (20 CFR §§ 416.920(c)); (3) does not have an impairment or combination of impairments which meets or equals one of the impairments set forth in 20 C.F.R. Part 404, Appendix 1, Subpart P; (4) could perform her past relevant work; and was also able to perform jobs that exist in significant numbers in the national economy. AR 10-17. On appeal, Plaintiff argues that the ALJ erred at step two and failed to effectively evaluate the pain testimony.
Step Two Analysis
Plaintiff argues that the ALJ failed to find her myalgia to be a severe impairment at step two of the sequential evaluation process. Defendant counters that the ALJ's step two determination was supported by substantial evidence.
At step two of the sequential evaluation process, the ALJ must determine whether Plaintiff suffers from a "severe" impairment. The regulations define a non-severe impairment as one that does not significantly limit [the claimant's] physical or mental ability to do basic work activities. An impairment is not severe "if the evidence establishes a slight abnormality that has 'no more than a minimal effect on an individual's ability to work.'" Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996).
The step two inquiry is a de minimis screening device to dispose of groundless or frivolous claims. Bowen v. Yuckert, 482 U.S. 137, 153-154 (1987). To satisfy step two's requirement of a severe impairment, the claimant must prove the existence of a physical or mental impairment by providing medical evidence consisting of signs, symptoms, and laboratory findings: the claimant's own statement of symptoms alone will not suffice. 20 C.F.R. §§ 404.1508;416.908. When evaluating symptoms, including pain, the effects of all symptoms must be evaluated on the basis of a medically determinable impairment that could be reasonably expected to produce the symptoms. 20 C.F.R. §§ 404.1529, 416.929. Medical signs and laboratory findings, established by medically acceptable clinical or laboratory diagnostic techniques, must show the existence of a medical impairment which results from anatomical, physiological, or psychological abnormalities and which could reasonably be expected to produce the pain or other symptoms alleged. 20 C.F.R. § 404.1529(b).
The adjudicator's role at step two is further explained by SSR 85-28: A determination that an impairment(s) is not severe requires a careful evaluation of the medical findings which describe the impairment(s) and an informed judgment about its (their) limiting effects on the individual's physical and mental ability(ies) to perform basic work activities; thus, an assessment of function is inherent in the medical evaluation process itself. At the second step of sequential evaluation, then, medical evidence alone is evaluated in order to assess the effects of the impairment(s) on ability to do basic work activities.
Here, the ALJ found Plaintiff's depressive disorder and polysubstance abuse were severe impairments. AR 12. However, he determined that Plaintiff's chronic myalgia was only a slight impairment which causes only minimal, if any, effect on her ability to work. AR 12. To support this assertion, the ALJ notes that the etiology of the myalgia is unknown and medical testing shows no injury and only minimal degenerative changes. AR 12. The ALJ notes:
A November, 2004, MRI of the lumbosacral spine was unremarkable. February, 2008, x-rays of the lumbar spine showed no facet disease. November, 2007, x-rays of both hands were negative. A February, 2008, MRI of the cervical spine revealed only minimal degenerative changes.
These conclusions are supported in the record. AR 297, 337-340, 348. Plaintiff argues that the ALJ ignored her elevated sedimentation rates that are indicative of a rheumatoid type disorder and are sufficient to establish a severe impairment. (Doc. 15 at pg. 9). However, the Court is not persuaded by this assertion. Although Plaintiff's doctors noted elevated sedimentation rates during her visits, there is no diagnosis in relation to those findings. Similarly, there is no suggestion that these increased rates are related to her pain, nor is there an indication that Plaintiff's ability to perform basic work-related activities is limited as a result. AR 314, 316, 322-323. In fact, laboratory results for rheumatoid factors taken after the elevated sedimentation rates were discovered reveal these levels were within the normal range. AR 334. As the ALJ notes, even Plaintiff recognized that "she is being tested for a lot of things" and "no diagnosis has been made." AR 12-13. Moreover, Plaintiff reported that medication reduces the pain in her back significantly and the medical records support this conclusion. AR 39; 325. Thus, the ALJ properly concluded that "doctors have identified no medically-determinable impairment to support [Plaintiff's] complaints of pain." AR 12.
In her reply, Plaintiff argues that pursuant to Bunnell v. Sullivan, 947 F. 2d 341, 344 (9th Cir. 1991), she is not required to present objective medical evidence of the causal relationship between the medically determinable impairment and the symptom. However, the law is clear that she must establish that a medically determinable impairment could be reasonably expected to produce the symptoms. Smolen v. Chater, 80 F.3d 1273 (9th Cir. 1996); 20 C.F.R. §§ 404.1529, 416.929. While Plaintiff's doctors prescribed pain medication and noted the increased sedimentation rates, her treating physicians never concluded these levels would reasonably be expected to produce Plaintiff's symptoms, or that Plaintiff could not work based on this finding.
Moreover, in the step two analysis, the ALJ also notes that Plaintiff engaged in drug seeking behaviors. Although Plaintiff argues there is no evidence to support his finding, the record reveals otherwise. For example, the ALJ stressed that Plaintiff sought pain medication from several different providers. AR 12. Medical professionals at various times specifically noted that her Vicodin prescriptions should not be refilled and Plaintiff became angry when informed of this decision. AR 12, 293-294, 304. She also called the clinic several times requesting that her prescriptions for Soma and Vicodin be refilled, but was told she would need to be evaluated before refills would be given. AR 12, 237. Furthermore, Plaintiff failed to appear at several appointments despite complaining of significant symptoms.*fn6 AR 232-233; 267-268; 329. Thus, after examining the entire record, the ALJ's finding that Plaintiff engaged in drug seeking behaviors is supported by substantial evidence which further undermines her credibility regarding her symptoms. AR 12.
Finally, the ALJ reliance on the physician's opinion evidence is also free of error. Although Plaintiff argues that the ALJ improperly relied upon Dr. Mehdi's opinion, the ALJ simply noted that Plaintiff refused to participate in Dr. Mehdi's neurological testing due to pain. AR 12. Accordingly, the ALJ's conclusion that "the state-agency medical consultants have found insufficient evidence to impose any limitations " is correct. AR 13. Dr. Mehdi recommended that Plaintiff return for evaluation when she is more cooperative. Dr. Wong, the other state agency physician, found no limitations due to insufficient evidence. AR 243. The ALJ also considered a form from the Fresno County Department of Employment and Temporary Assistance indicating Plaintiff could not work due to pain. AR 15-16, 308. However, the ALJ reasoned that the form appears to accommodate Plaintiff's ability to qualify for AFDC and General Relief, implying that the county's standard for these benefits are different than the disability requirements for Supplemental Social Security Income. AR 15-16. Since the ALJ is the final arbiter of disability, this finding was proper. See, Magallanes v. Bowen, 881 F. 2d 747, 750 (9th Cir. 1989).
In sum, Plaintiff attempts to find error in the ALJ's reasoning, however, it is the Plaintiff who bears the burden of proving that she is disabled. Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999); 20 C.F.R. § 404.1512. Other than making new arguments regarding her increased sedimentation rates,*fn7 Plaintiff has not submitted objective evidence of a medically determinable impairment that would reasonably be expected to produce her pain symptoms, or that would effect her ability to work. This deficiency, coupled with the ALJ's other findings, establishes Plaintiff has not met her burden. The ALJ's step two analysis therefore is supported by substantial evidence and is free of error.
Credibilityand the Evaluation of Subjective Complaints of Pain
Finally, Plaintiff argues that the ALJ failed to perform the appropriate credibility analysis because he did not offer clear and convincing reasons for rejecting her pain testimony. (Doc. 21 at pg. 11). Defendant counters that Plaintiff did not establish that her myalgia was a severe impairment and therefore, the ALJ was not required to complete the credibility analysis. (Doc. 18 at 10). Defendant further contends that even if the ALJ was required to do so, the credibility determination was proper.
The ALJ is required to make specific findings assessing the credibility of plaintiff's subjective complaints. Ceguerra v. Secretary of HHS, 933 F.2d 735 (9th Cir. 1991). "An ALJ is not 'required to believe every allegation of disabling pain' or other non-exertional impairment," Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 2007) (citation omitted). In rejecting the complainant's testimony, "the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints." Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996) quoting Varney v. Secretary of Health and Human Services, 846 F.2d 581, 584 (9th Cir. 1988)).
In making this determination, the ALJ conducts a two-step analysis to assess subjective testimony. Under step one, the claimant "must produce objective medical evidence of an underlying impairment" or impairments that could reasonably be expected to produce some degree of symptom. Tommasetti v. Astrue, 533 F. 3d 1035, 1039 (9th Cir. 2008). If the first step is met and there is no affirmative evidence of malingering, "the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so." Id. Factors the ALJ may consider in weighing a claimant's credibility include "(1) ordinary techniques of credibility evaluation, such as the claimant's reputation for lying, prior inconsistent statements concerning the symptoms, and other testimony by the claimant that appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and (3) the claimant's daily activities." Id. citing Smolen v. Chater, 80 F.3d 1273');">80 F. 3d 1273 (9th Cir. 1996). If the ALJ's finding is supported by substantial evidence, the court "may not engage in second-guessing." Thomas v. Barnhart, 278 F.3d at 959.
Plaintiff argues that the ALJ improperly discredited her testimony because he did not make a credibility finding regarding her myalgia,*fn8 but she also concedes that the ALJ did not find a severe impairment at step two. These two findings are related. The first step of the credibility determination is to determine whether the impairments could be reasonably expected to produce some degree of symptom, and is the same standard set forth in assessing the severity of impairments at step two of the disability process. Thus, the if the ALJ finds the impairment was not severe at step two, then it is not necessary to complete the credibility analysis. See, Tommasetti v. Astrue, 533 F. 3d at 1039. Therefore, the ALJ did not err failing to make an explicit credibility finding regarding Plaintiff's myalgia symptoms.
Notwithstanding the above, the Court also disagrees with Plaintiff's representation that the ALJ did not address Plaintiff's subjective pain testimony at all. Indeed, although the ALJ's decision only makes an explicit credibility finding with regard to Plaintiff's psychological condition, the ALJ impliedly makes a credibility determination regarding Plaintiff's reports of subjective pain in the step two analysis. AR 12-13; 15-16. As noted above, when finding Plaintiff did not meet the step two criteria, the ALJ not only relies on a lack of objective medical evidence, but also notes that Plaintiff engaged in drug seeking behaviors*fn9 including going to several different health care providers to obtain prescriptions, requesting refills of medication without examination, becoming angry when these requests for refills would not be accommodated, and failing to appear for appointments despite complaints of pain. AR 12-13, 232-233, 267-268, 293-294, 304. The ALJ also correctly relied on the fact that Plaintiff's back pain significantly decreased when taking medication. AR 12. These are all clear and convincing reasons to reject Plaintiff's's credibility, whether they are applied at step two of the analysis, or later in the sequential analysis. See, Warre Comm'r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006); (impairments that are effectively controlled with medication are not disabling); Tidwell v. Apfel, 161 F.3d 599, 601-602 (9th Cir. 1998) (finding a mild or minor medical condition with all other tests reporting normal provides a basis for rejecting claimant's testimony of severity of symptoms); ; see also 20 C.F.R. § 416.929 (objective medical evidence can be used in determining credibility; inconsistencies in evidence will support a rejection of credibility); SSR 96-7p (objective medical evidence is a useful indicator to assist in making a reasonable conclusion about credibility and the ability to function).
Accordingly, the ALJ's failure to make an explicit credibility finding regarding Plaintiff's allegations of pain was not in error because she did not meet her burden at step two of the sequential process. AR 13. However, even if the ALJ's analysis at step two was erroneous, the ALJ adequately addressed concerns regarding Plaintiff's credibility in this section of the opinion. Although evidence supporting an ALJ's conclusions might also permit an interpretation more favorable to the claimant, if the ALJ's interpretation of evidence is rational, as it is here, the Court must uphold the ALJ's decision where the evidence is susceptible to more than one interpretation. Burch v. Barnhart, 400 F.3d 676, 680-81 (9th Cir. 2005).
Based on the foregoing, the Court finds that the ALJ's decision is supported by substantial evidence in the record as a whole and is based on proper legal standards. Accordingly, this Court DENIES Plaintiff's appeal from the administrative decision of the Commissioner of Social Security. The clerk of this Court is DIRECTED to enter judgment in favor of Defendant Michael J. Astrue, Commissioner of Social Security and against Plaintiff, Linda Halford.
IT IS SO ORDERED.