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Martin Hernandez Jr v. Carolyn W. Colvin

April 4, 2013

MARTIN HERNANDEZ JR., PLAINTIFF,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY,*FN1 DEFENDANT.



The opinion of the court was delivered by: Robert N. Block United States Magistrate Judge

ORDER AFFIRMING DECISION OF COMMISSIONER

The Court now rules as follows with respect to the three disputed issues listed in the Joint Stipulation.*fn2

A. Reversal is not warranted based on the ALJ's alleged failure to make a proper adverse credibility determination (Disputed Issue No 3). Disputed Issue No. 3 is directed to the ALJ's adverse credibility determination.

(See Jt Stip at 16-19.) Specifically, plaintiff contends that the ALJ erred in relying on evidence of plaintiff's daily activities in support of the ALJ's adverse credibility determination. (See Jt Stip at 17-18.)

An ALJ's assessment of pain severity and claimant credibility is entitled to "great weight." Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1986). Under the "Cotton test," where the claimant has produced objective medical evidence of an impairment which could reasonably be expected to produce some degree of pain and/or other symptoms, and the record is devoid of any affirmative evidence of malingering, the ALJ may reject the claimant's testimony regarding the severity of the claimant's pain and/or other symptoms only if the ALJ makes specific findings stating clear and convincing reasons for doing so. See Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986); see also Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993); Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir. 1991) (en banc).

Here, plaintiff testified that he was unable to work because of pain from three hip surgeries, the latest of which was a hip replacement in 2007. (See AR 30-31, 35.) The ALJ determined that although plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms, plaintiff's symptoms concerning the intensity, persistence, and limiting effects of these symptoms were not credible to the extent they were inconsistent with the ALJ's assessment of plaintiff's RFC. (See AR 15.)

In support of this adverse credibility determination, the ALJ proffered multiple reasons. For example, the ALJ determined that plaintiff's daily activities -- caring for personal hygiene, doing laundry, cooking, cleaning, and going to church services lasting 2 hours -- undermined plaintiff's credibility because "[s]ome of the physical and mental abilities and social interactions required in order to perform these activities are the same as those necessary for obtaining and maintaining employment." (See AR 15.) Plaintiff contends that this reason was improper because his daily activities were not at a level suggesting that plaintiff could hold down a job. (See Jt Stip at 17-18.)

The Court disagrees. Under Ninth Circuit jurisprudence, the ALJ's determination that plaintiff's daily activities involved the performance of physical, mental, and social functions that were transferable to a work setting was not erroneous. See, e.g., Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (ALJ did not err in finding that the claimant's ability to perform chores such as cooking, laundry, washing dishes, and shopping undermined the credibility of her subjective complaints); Tidwell v. Apfel, 161 F.3d 599, 601, 602 (9th Cir. 1998) (claimant's testimony that she did the laundry, cleaned the house, vacuumed, mopped, dusted, and shopped for groceries was inconsistent with claim of severe back impairment); Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (per curiam) (holding that the ALJ did not err in concluding that the claimant's ability to cook, do dishes, go to the store, visit relatives, and drive indicated that he could perform light work).

In any event, even assuming arguendo that the ALJ did improperly rely on evidence of plaintiff's daily activities in support of the ALJ's adverse credibility determination, the ALJ cited other reasons that plaintiff does not challenge. Specifically, the ALJ noted that plaintiff's allegations were greater than expected in light of the objective evidence of the record: specifically, in 2008, following petitioner's hip replacement, plaintiff's treating physician released him to less strenuous work. (See AR 15, 17; see also AR 203.) The Court finds that this constituted a legally sufficient reason on which the ALJ could properly rely in support of his adverse credibility determination. See Osenbrock v. Apfel, 240 F.3d 1157, 1166 (9th Cir. 2001) (ALJ properly rejected pain testimony where treating physician released claimant for return to light duty work); Crane v. Shalala, 76 F.3d 251, 253-54 (9th Cir. 1996) (treating physician's opinion that claimant was fully employable may alone constitute substantial evidence).

The ALJ also noted that the record indicated only routine and conservative treatment since his hip replacement, consisting of routine check-up appointments with his primary care physician. (See AR 15; see also AR 300-02, 305-06, 342-43.) The Court finds that this constituted a legally sufficient reason on which the ALJ could properly rely in support of his adverse credibility determination. See Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (evidence of conservative treatment is sufficient to discount a claimant's testimony regarding severity of an impairment); Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995) (ALJ may properly rely on the fact that only conservative treatment had been prescribed).

The ALJ also noted that no medical source rendered a statement endorsing the extent of plaintiff's alleged functional limitations. (See AR 15.) The Court finds that this constituted a legally sufficient reason on which the ALJ could properly rely in support of his adverse credibility determination. See Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993) (ALJ properly rejected pain complaints where no physician who examined claimant expressed the opinion that he was totally disabled).

It follows that, to the extent that the ALJ may have erred in basing his adverse credibility determination on evidence of plaintiff's daily activities, the error was harmless. See Carmickle v. Comm'r, Social Sec. Admin., 533 F.3d 1155, 1162-63 (9th Cir. 2008) (holding that ALJ's reliance on two invalid reasons in support of adverse credibility determination was harmless where remaining reasons were adequately supported by substantial evidence); Batson v. Commissioner of Social Security Administration, 359 F.3d 1190, 1197 (9th Cir. 2004) (holding that any error by ALJ in relying on evidence of claimant's daily activities was harmless where adverse credibility determination was otherwise supported by substantial evidence).

The Court therefore finds and concludes that reversal is not warranted based on the ALJ's alleged failure to make a proper adverse credibility determination.

B. Reversal is not warranted based on the ALJ's alleged failure to properly consider the examining physician's opinion (Disputed Issue No. 2). Disputed Issue No. 2 is directed to the ALJ's failure to accord great weight to the opinion of the examining orthopedist, Dr. Bilezikjian. (See Jt Stip at 12-16.) Dr. Bilezikjian opined that plaintiff's hip condition imposed limitations that ...


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