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Plaintiff v. Commissioner of Social Security

United States District Court, E.D. California

March 31, 2014

DEBRA LYNN ARNOLD Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

ORDER

KENDALL J. NEWMAN, Magistrate Judge.

Plaintiff, proceeding pro se, seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying plaintiff's application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI, respectively, of the Social Security Act ("Act").[1] In her motion for summary judgment, plaintiff principally contends that the Commissioner erred by finding that plaintiff was not disabled from February 7, 2008, the alleged disability onset date, through the date of the final administrative decision. (ECF No. 17.) The Commissioner filed an opposition to plaintiff's motion and a cross-motion for summary judgment. (ECF No. 19.) Thereafter, the Commissioner filed a request for leave to file a surreply. (ECF No. 20.) In this request, the Commissioner states that she was served with plaintiff's reply, accompanied by "new evidence" (i.e., medical records from Kaiser Permanente, San Joaquin County Behavioral Health Services, and San Joaquin General Hospital, along with miscellaneous other documents) on or about June 21, 2013. (Id.) However, plaintiff never filed the above-mentioned reply and alleged "new evidence" with the court. Accordingly, on July 23, 2013, the court "grant[ed] plaintiff 28 days to file with the court the reply purportedly served on the Commissioner, accompanied by any new evidence.'" (ECF No. 21 at 2.) On August 7, 2013, plaintiff filed a reply brief, which did not include any of the above-mentioned "new evidence" or any other medical records. (ECF No. 22.) On September 24, 2013, plaintiff filed a "surreply" in support of her motion for summary judgment, which included what appears to be the above-mentioned "new evidence."[2] (ECF No. 25.) On September 27, 2013, the Commissioner filed a request that the court consider and accept her filing at ECF No. 20-2 as her response to plaintiff's "surreply."[3] (ECF No. 26.) For the reasons that follow, the court denies plaintiff's motion for summary judgment, grants the Commissioner's cross-motion for summary judgment, and enters judgment for the Commissioner.

I. BACKGROUND

Plaintiff was born on June 5, 1965, completed the eleventh grade, holds a cosmetology license, formerly worked as a hair stylist, retail stocker, film developer, and bus driver, and co-owned a restaurant with her ex-husband where she performed a number of jobs related to the management and operation of the restaurant.[4] (Adminsitrative Transcript ("AT") 51-56, 157-58, 165, 178.) On July 25, 2008, plaintiff applied for DIB and SSI, alleging that she was unable to work as of February 7, 2008, primarily due to pain in her back, legs, feet, arms and hands, and depression and Post Traumatic Stress Disorder ("PTSD"). (AT 157-71, 182.) On October 1, 2008, the Commissioner determined that plaintiff was not disabled. (AT 99.) Upon plaintiff's request for reconsideration, the determination was affirmed on March 20, 2009. (AT 105-06.) Thereafter, plaintiff requested a hearing before an administrative law judge ("ALJ"), which took place on February 8, 2010, and at which plaintiff (represented by counsel) and a vocational expert ("VE") testified. (AT 21, 47-91, 121-23.)

In a decision dated June 25, 2010, the ALJ determined that plaintiff had not been under a disability, as defined in the Act, from February 7, 2008, plaintiff's alleged disability onset date, through the date of the ALJ's decision. (AT 21-29.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review on June 7, 2012. (AT 1.) Thereafter, plaintiff filed this action in federal district court on July 24, 2012, to obtain judicial review of the Commissioner's final decision. (ECF No. 1.)

II. ISSUES PRESENTED

Based on a liberal construction of plaintiff's motion for summary judgment, the undersigned finds that plaintiff asserts the following issues: (1) whether the ALJ erred at step three in determining that plaintiff's impairments did not meet or equal a disability listing under 20 C.F.R., Pt. 404, Subpt. P, App. 1; (2) whether the ALJ erred in assessing plaintiff's residual functional capacity ("RFC"); (3) whether the ALJ made an improper credibility determination with respect to plaintiff's testimony; and (4) whether plaintiff's submission of additional medical evidence warrants remand.

III. LEGAL STANDARD

The court reviews the Commissioner's decision to determine whether (1) it is based on proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record as a whole supports it. Tackett v. Apfel , 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart , 340 F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Orn v. Astrue , 495 F.3d 625, 630 (9th Cir. 2007) (quoting Burch v. Barnhart , 400 F.3d 676, 679 (9th Cir. 2005)). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities." Edlund v. Massanari , 253 F.3d 1152, 1156 (9th Cir. 2001) (citation omitted). "The court will uphold the ALJ's conclusion when the evidence is susceptible to more than one rational interpretation." Tommasetti v. Astrue , 533 F.3d 1035, 1038 (9th Cir. 2008).

IV. DISCUSSION

A. Summary of the ALJ's Findings

The ALJ evaluated plaintiff's entitlement to SSI pursuant to the Commissioner's standard five-step analytical framework.[5] At the first step, the ALJ concluded that plaintiff had not engaged in substantial gainful activity since February 7, 2008, the alleged onset date. (AT 23.) At step two, the ALJ determined that plaintiff had the following severe impairments: "degenerative disc disease of the cervical spine; degenerative disc disease of the lumbar spine; depressive disorder; and post-traumatic stress disorder." (Id.) However, at step three, the ALJ determined that plaintiff did not have an impairment or combination of impairments that meet or medically equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (AT 24.)

Before proceeding to step four, the ALJ assessed plaintiff's RFC as follows:

After careful consideration of the entire record, the undersigned finds that the claimant has the following residual functional capacity: the claimant can lift and carry up to 10 pounds occasionally and up to five pounds frequently; can stand and/or walk for two hours out of an eight-hour workday; and can sit for six hours out of an eight-hour workday. The claimant can push and/or pull up to 10 pounds frequently and up to five pounds occasionally. The claimant has no impairment of vision or speech. The claimant is moderately limited in her ability to reach.[6] The claimant can perform manipulate [sic] her hands without limitation. The claimant has no environmental limitation. The claimant is slightly limited in her ability to maintain attention and concentration. The claimant is slightly limited in her ability to understand and remember. The claimant is unlimited in her ability to tolerate contact with the public. The claimant can tolerate occasional supervision. The claimant's residual functional capacity is consistent with a narrowed range of sedentary exertion.

(Id.)

At step four, the ALJ found that plaintiff was unable to perform any past relevant work. (AT 27.) Finally, at step five, the ALJ determined, in reliance on the VE's testimony, that considering plaintiff's age, education, work experience, and RFC, there were jobs that existed in significant numbers in the national economy that plaintiff could perform. (AT 28.) Specifically, the ALJ found that plaintiff would be able to perform the following representative occupations: (1) information clerk, a sedentary work occupation with a specific vocational preparation ("SVP") of 2, and with 11, 000 jobs in California; (2) office clerk, sedentary work occupation with a SVP of 2, and with 19, 000 jobs in California; and (3) assembler, sedentary work occupation with a SVP of 2, and with 4, 000 jobs in California. (AT 28-29.)

Accordingly, the ALJ concluded that plaintiff had not been under a disability, as defined in the Act, from February 7, 2008, plaintiff's alleged disability onset date, through the date of the ALJ's June 25, 2010 decision. (AT 29.)

B. Plaintiff's Substantive Challenges to the Commissioner's Determinations

1. Whether the ALJ Erred at Step Three in Determining That Plaintiff's Impairments Did Not Meet or Equal a Disability Listing

At step three, the ALJ determines whether "a claimant's impairment meets or equals an impairment listed in [20 C.F.R. part 404, subpart P, appendix 1]." Tackett v. Apfel , 180 F.3d 1094, 1099 (9th Cir. 1999). The Listing of Impairments describes specific impairments of each of the major body systems "which are considered severe enough to prevent a person from doing any gainful activity." Id . (citing 20 C.F.R. § 404.1525). If a claimant meets or equals a listed impairment he or she will be found disabled at this step without further inquiry. Tackett , 180 F.3d at 1099 (citing 20 C.F.R. § 404.1520(d)).

A claimant bears the burden of proving that his or her impairments satisfy all the criteria of a particular listing. Tackett , 180 F.3d at 1099 ("[Claimant] had to establish that he [or she] met or equaled each of the following characteristics of a listing."). "For a claimant to show that his [or her] impairment matches a listing, it must meet all of the specified medical criteria. An impairment that manifests only some of those criteria, no matter how severely, does not qualify." Sullivan v. Zebley , 493 U.S. 521, 530 (1990) (emphasis in original).

In the present case, the ALJ concluded at step three that plaintiff "does not have an impairment or combination of impairments that meets or equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1." (AT 24.) In coming to this conclusion, the ALJ stated that he had "considered all sections of the Listing of Impairments, including, in particular, those sections pertaining to musculoskeletal impairments and mental impairments." (Id.) Plaintiff argues that the ALJ erred in his conclusion that plaintiff's impairments do not meet a listing. When plaintiff's motion for summary judgment is construed liberally, it would appear that plaintiff argues in particular that the ALJ should have determined that her PTSD, Depression, and degenerative disc disease of the cervical and lumbar spine either individually or in combination met or equaled a listed impairment. For the reasons stated below, plaintiff's argument is without merit.

a. Mental Impairments: Depression and PTSD

In order to show that plaintiff's depression met listing-level severity, plaintiff must show that her impairment satisfied the criteria of Listing 12.04 (Affective Disorders).[7] Listing 12.04 requires a claimant to prove that his or her medical impairments, whether singly or in combination, meet the criteria of both Paragraphs A and B or, alternatively, meet the criteria of Paragraph C. See 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.04.

In order to show that plaintiff's PTSD met listing-level severity, plaintiff must show that her impairment satisfied the criteria of Listing 12.06 (Anxiety Related Disorders).[8] Listing 12.06 requires a claimant to prove that his or her medical impairments, whether singly or in combination, meet the criteria of both Paragraphs A and B or, alternatively, meet the criteria of both Paragraphs A and C. See 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.06.

Here, the ALJ made the following determination with respect to plaintiff's mental impairments:

The undersigned finds that, considering the claimant's feelings of depression and anxiety, the claimant has slight limitations in understanding, remember [sic], and maintaining attention and concentration. The claimant's depression and anxiety also limits her to only occasional contact with a supervisor, but her symptoms are not so severe as to limit her ability to tolerate public contact. As to the "B" criteria under section 12.00, the undersigned finds that claimant has mild restriction of activities of daily living; mild difficulties in maintaining social functioning; and mild-to-moderate difficulties in maintaining concentration, persistence, and pace. The claimant has never experienced repeated episodes of decompensation, each of extended duration.

(AT 27.) The medical evidence on record generally reflects the findings in the ALJ's above opinion and indicates that plaintiff's mental impairments were not sufficiently severe to require the ALJ to find that they met the listing criteria under either 12.04 or 12.06.

While plaintiff's medical records during the period at issue note that plaintiff was suffering from both depression and PTSD, they show that the severity of these conditions were not sufficient to meet a listing. Most notably, Kim Morris, a psychologist who conducted a consultative examination of plaintiff on March 14, 2009, noted plaintiff's depression and PTSD and reviewed these conditions' severity under the standards articulated by Listings 12.04 and 12.06. (AT 532-45.) During this examination, Morris found that plaintiff did not meet the listing criteria under subsection B for either section 12.04 or section 12.06. (AT 540.) In particular, Morris noted that plaintiff's depression and PTSD caused only the following restrictions and difficulties: mild restriction on activities of activities of daily living, mild difficulties in maintaining social function, and moderate difficulties in maintaining concentration, persistence, or pace. (Id.) These findings all fell short of the requirements under subsection B of both section 12.04 and section 12.06 that the restrictions and complications caused by plaintiff's mental impairments be at least "marked" in nature. See 20 C.F.R. pt. 404, subpt. P, app. 1, §§ 12.04, 12.06. Furthermore, Morris found that plaintiff had suffered no episodes of decompensation of extended duration. (AT 540.) In addition, Morris determined, based on plaintiff's examination and prior medical records, that the medical evidence did not establish the presence of any of the criteria under subsection C of section 12.04 or subsection C of section 12.06. (AT 541.)

Plaintiff's other medical records from the relevant period support the determinations of both Morris and the ALJ that plaintiff's mental impairments did not meet the criteria for either of these two listings. For instance, Dr. Wong, a psychiatrist who conducted a consultative examination of plaintiff on February 23, 2009, opined that while plaintiff had "major depression" and PTSD that were both worsening, these two impairments only caused mild-to-moderate limitations with regard to workplace activities. (AT 531 ("[H]er initiative in her drive and her mental organization is moderately diminished from time to time. Her ability to interact with coworkers in the public is mildly diminished by her depressed mood.... Globally her ability to maintain an adequate pace and level of endurance over an eight-hour workday is felt to be moderately diminished.... Her ability to relate to a supervisor is mild-to-moderately diminished...."). The other medical evidence from the relevant time period also reflects that, at most, plaintiff's mental impairments caused mild-to-moderate restrictions. (See AT 599-605.)

Accordingly, the substantial evidence in the record supports the ALJ's determination that plaintiff's depression and PTSD were not sufficiently severe to meet the criteria of listing 12.04 or 12.06. Therefore, plaintiff's argument that the ALJ erred in this conclusion is without merit.

b. Physical Impairment: Degenerative Disc Disease

In order to show that plaintiff's degenerative disc disease of the cervical and lumbar spine met listing-level severity, plaintiff must show that her impairment satisfied the criteria of Listing 1.04 (Disorders of the Spine).[9] Here, plaintiff's medical records from the time period in question support the ALJ's determination that plaintiff's degenerative disc disease was not severe enough to meet Paragraphs A or B or C of this listing.

Dr. Baker conducted a physical examination of plaintiff on August 28, 2009. Dr. Baker's examination notes state that plaintiff's "neurologic examination discloses diminished sensation in the bilateral L5 distribution, but the motor examination does not clearly support the existence of radiculopathy." (AT 567.) Dr. Baker opined that while plaintiff would have chronic problems with her back, those problems could be managed with conservative treatment such as physical therapy and infrequent epidural steroid injections to restore functionality. (AT 577.)

An MRI of plaintiff's cervical spine, which was also taken on August 28, 2009, revealed a "[m]inimal posterior annular bulge from C3-4 through 6-7 which minimally effaces the thecal sac without encroaching on the cord, " and "[n]o additional remarkable spondylitic change, focal abnormality or evidence of acquired neuropathic encroachment." (AT 579.) Dr. Dietrich reviewed the MRI of plaintiff's spine on the same day and concluded that the annular bulge "[p]roduces mild to moderate narrowing of the right auxillary [sic] recess which may abut the right L5 nerve root, but without definitive neuropathic encroachment" and that the "left auxillary [sic] recess and central canal are mildly narrow without nerve root impingement." (AT 580.)

Neither of these examinations, or the rest of medical evidence in the record, reveal that plaintiff was suffering from a compromised nerve root, as is required under Listing 1.04. Similarly, neither of these opinions or the rest of the record indicate that plaintiff suffered from any of the conditions listed in any of the A, B, or C criteria set out in Listing 1.04. Accordingly, the ALJ also did not err in determining that plaintiff's physical impairments were not of a listing-level severity.

2. Whether the ALJ Erred in Assessing Plaintiff's RFC

In her motion for summary judgment, plaintiff argues that during her hearing with the ALJ, the ALJ stated that "he did not want to hear what [plaintiff] can't do but what [she] could do." (Pl.'s Mot. for Summ. J. at 2.) However, the ALJ did not err in making this statement regarding plaintiff's capabilities. In fact, the relevant regulations required the ALJ to address plaintiff's RFC under this standard. 20 C.F.R. § 404.1545 ("Your residual functional capacity is the most you can still do despite your limitations."). Furthermore, a review of the medical evidence in the record reveals that the ALJ properly assessed plaintiff's RFC.

In arriving at the RFC determination, the ALJ considered and assessed the weight of all the medical evidence in the record. In particular, the ALJ considered the functional assessments opined by the medical doctors and psychologists who either examined plaintiff or reviewed plaintiff's medical records. For the reasons discussed below, the ALJ properly assessed and weighed these medical opinions in arriving at his RCF assessment.

The weight given to medical opinions depends in part on whether they are proffered by treating, examining, or non-examining professionals. Holohan v. Massanari , 246 F.3d 1195, 1201-02 (9th Cir. 2001); Lester v. Chater , 81 F.3d 821, 830 (9th Cir. 1995). Ordinarily, more weight is given to the opinion of a treating professional, who has a greater opportunity to know and observe the patient as an individual. Id .; Smolen v. Chater , 80 F.3d 1273, 1285 (9th Cir. 1996).

To evaluate whether an ALJ properly rejected a medical opinion, in addition to considering its source, the court considers whether (1) contradictory opinions are in the record; and (2) clinical findings support the opinions. An ALJ may reject an uncontradicted opinion of a treating or examining medical professional only for "clear and convincing" reasons. Lester , 81 F.3d at 830-31. In contrast, a contradicted opinion of a treating or examining professional may be rejected for "specific and legitimate" reasons. Lester , 81 F.3d at 830. While a treating professional's opinion generally is accorded superior weight, if it is contradicted by a supported examining professional's opinion (supported by different independent clinical findings), the ALJ may resolve the conflict. Andrews v. Shalala , 53 F.3d 1035, 1041 (9th Cir. 1995) (citing Magallanes v. Bowen , 881 F.2d 747, 751 (9th Cir. 1989)). The regulations require the ALJ to weigh the contradicted treating physician opinion, Edlund v. Massanari , 253 F.3d 1152, 1157 (9th Cir. 2001), except that the ALJ in any event need not give it any weight if it is conclusory and supported by minimal clinical findings. Meanel v. Apfel , 172 F.3d 1111, 1114 (9th Cir. 1999) (treating physician's conclusory, minimally supported opinion rejected); see also Magallanes , 881 F.2d at 751. The opinion of a non-examining professional, without other evidence, is insufficient to reject the opinion of a treating or examining professional. Lester , 81 F.3d at 831.

In arriving at his RFC assessment, the ALJ addressed the medical opinions in the record concerning plaintiff's physical impairments. In particular, the ALJ considered the opinions of Dr. Baker, a treating physician who examined plaintiff on August 29, 2009, in connection with a prior worker's compensation claim, and Dr. Pham, a consulting physician who reviewed plaintiff's medical records on September 17, 2008, and made an assessment of plaintiff's physical RFC.

After considering the assessments of these two doctors, the ALJ made the following determination:

[Dr. Baker's and Dr. Pham's] assessments are consistent with a narrowed range of light exertion. The physical residual functional capacity assigned herein is generally more generous to the claimant than that of either Dr. Baker and Dr. Pham. However, the undersigned cannot adopt the postural limitations assigned by Dr. Baker and Dr. Pham, as neither set of limitations is supported by the evidence of record. However, the undersigned has given consideration to the claimant's radicular symptoms in assigning moderate limitations in her ability to reach.

(AT 26.) While the ALJ generally relied on these two opinions in forming his RFC assessment regarding plaintiff's physical capabilities, which was generally even more favorable to plaintiff than the two doctors' overall RFC findings that plaintiff had mild-to-moderate physical limitations, he still rejected the postural limitations opined by these two doctors because the evidence in the record did not support such findings. The ALJ's rejection of their opinions with respect to plaintiff's postural limitations on the basis that the evidence in the record supported neither set of limitations was legally sufficient. See Tonapetyan v. Astrue , 242 F.3d 1144, 1149 (9th Cir. 2001) (upholding ALJ's rejection of doctor's opinion that was unsupported by the objective medical evidence in the record). For example, Dr. Baker noted within his own examination notes regarding the motor and sensory diagnostics he conducted on plaintiff that plaintiff did not suffer from spinal radiculopathy and that her back problems could be managed with conservative treatment, but still opined that plaintiff's impairment limited her from engaging in repetitive bending, stooping, twisting, or forceful pushing or pulling. (AT 576, 578.) Similarly, Dr. Pham opined that plaintiff could only occasionally engage in climbing, stooping, kneeling, crouching, or crawling; however, Dr. Pham did not conduct an independent examination of plaintiff and even notes in the evaluation that plaintiff's MRI showed signs of only mild degenerative disc disease and that plaintiff's treatment for this condition was conservative. (AT 413, 415.) Accordingly, the ALJ gave legitimate and sufficiently supported reasons for assessing plaintiff's RFC with respect to her physical capabilities.

The ALJ also specifically addressed the medical opinions concerning plaintiff's mental impairments in arriving at his final RFC assessment. In particular, he addressed and assigned evidentiary weight to the opinions of Dr. Wong, a psychiatrist who performed a consultative examination of plaintiff in February 2009, Dr. Kalman, a psychiatrist who examined plaintiff in January 2010, and Dr. Morris, a psychological consultant who reviewed plaintiff's records and made an assessment of plaintiff's mental RFC on March 14, 2009. The ALJ assigned "little evidentiary weight" to each opinion.

The ALJ based his finding of little weight with respect to Dr. Wong's opinion on the reasoning that Dr. Wong's opinion that plaintiff's mental impairments caused her mild-to-moderate limitations was not supported by Dr. Wong's own clinical findings. Likewise, the ALJ found that Dr. Kalman's findings regarding plaintiff's limitations were not supported by the doctor's own examination. This was a legitimate reason for rejecting both opinions, see Tommasetti , 533 F.3d at 1041 (holding that the ALJ properly rejected a treating physician's opinion based on inconsistencies between the doctor's medical records and the doctor's opinion of the claimant's limitations), and a review of these doctors' respective records and opinions supports the ALJ's reasoning. For instance, Dr. Wong opined that plaintiff's mental organization was moderately diminished despite the fact that his own examination findings that her attention was "good, " her ability to concentrate was "fair, " and her "memory functioning [was] globally intact." (AT 530.) A review of Dr.Kalman's examination notes and opinion with respect to plaintiff's limitations reveals similar inconsistencies. (See AT 599-605 (finding mild-to-moderate mental functional restrictions despite examination notes showing no limitations).) The ALJ further reasoned that little weight should be assigned to these two opinions because both doctors based their opinions on a single psychiatric examination of plaintiff. This was also a valid reason for assigning little weight to these two opinions. See Turner v. Comm'r of Social Security , 613 F.3d 1217, 1223 (9th Cir. 2010) (finding the ALJ's decision to reject an examining doctor's opinion on the basis that the doctor had "not had any previous interaction with the claimant" prior to the one examination he based his opinion on was a legitimate basis for that rejection). Accordingly, the ALJ properly assigned little weight to both of these opinions.

Furthermore, the ALJ also did not err in giving little weight to Dr. Morris' opinion. The ALJ assigned little weight to Dr. Morris' opinion on the basis that none of the other evidence in the record supported the limitations found by Dr. Morris. This a proper reason for rejecting Dr. Morris' opinion, see Tonapetyan , 242 F.3d at 1149, and a review of the record affirms the ALJ's determination. As noted above, the examination notes of Dr. Wong and Dr. Kalman did not reveal that plaintiff suffered from any major limitations. Furthermore, the rest of plaintiff's records regarding her mental status, in particular plaintiff's record from the San Joaquin County Behavioral Health Services, support the ALJ's determination. (See e.g., AT 728-40 (chronicling the improvement of plaintiff's depression and anxiety over time with medication and therapy sessions).) Accordingly, the ALJ gave specific and legitimate reasons for weighing the medical evidence concerning plaintiff's mental impairments as he did.

For the foregoing reasons, the ALJ did not err in addressing the medical evidence as he did in assessing plaintiff's RFC.

3. Whether the ALJ Made an Improper Credibility Determination With Respect to Plaintiff's Testimony

Plaintiff also argues that during the hearing the ALJ took her testimony out of context and cut her off on a number of occasions and gives a number of examples where he did so. (Pl.'s Mot. for Summ. J. at 2.) Ultimately, the ALJ determined that plaintiff's subjective complaints lacked credibility. Construed liberally, plaintiff's contentions regarding the ALJ's conduct during the hearing appear to be in support of an argument that the ALJ improperly found plaintiff's testimony to be not credible. However, for the reasons stated below, this argument is without merit.

A claimant's subjective statements and statements made by laypersons should be considered by the ALJ, but they need not always be accepted as true. In Lingenfelter v. Astrue , 504 F.3d 1028 (9th Cir. 2007), the Ninth Circuit summarized the ALJ's task in assessing a claimant's credibility:

To determine whether a claimant's testimony regarding subjective pain or symptoms is credible, an ALJ must engage in a two-step analysis. First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged. [But t]he claimant... need not show that her impairment could reasonably be expected to cause the severity of the symptom she has alleged; she need only show that it could reasonably have caused some degree of the symptom.
Second, if the claimant meets this first test, and there is no evidence of malingering, the ALJ can reject the claimant's testimony about the severity of her symptoms only be offering specific, clear and convincing reasons for doing so....

Lingenfelter , 504 F.3d at 1035-36 (citations and quotation marks omitted).

However, "the ALJ is not required to believe every allegation of disabling pain, or else disability benefits would be available for the asking...." Molina v. Astrue , 674 F.3d 1104, 1112 (9th Cir. 2012). The "ALJ must... identify what testimony is credible and what testimony undermines the claimant's complaints." Valentine v. Comm'r of Soc. Sec. Admin. , 574 F.3d 685, 693 (9th Cir. 2009) (quoting Morgan v. Comm'r of Soc. Sec. Admin. , 169 F.3d 595, 599 (9th Cir. 1999).) In weighing a claimant's credibility, an ALJ may consider the claimant's reputation for truthfulness, inconsistencies in his testimony or between his testimony and his conduct, his daily activities, his work record, and testimony from physicians and third parties concerning the nature, severity, and effect of the symptoms of which he complains. Thomas v. Barnhart , 278 F.3d 947, 958-59 (9th Cir. 2002) (citing Light v. Soc. Sec. Admin. , 119 F.3d 789, 792 (9th Cir. 1997).) If the ALJ's credibility finding is supported by substantial evidence in the record, the court may not engage in second-guessing. Id. at 959.

Here, in determining that plaintiff's subjective complaints lacked credibility, the ALJ stated the following:

The undersigned has considered the claimant's subjective complaints of pain and functional limitation. The claimant alleges a high level of chronic pain, and indicates that her activities of daily living are significantly limited due to her impairments. However, her allegations are inconsistent with the very conservative medical treatment the claimant has received, and with her own statements to Dr. Baker concerning her activities of daily living. Furthermore, the claimant's allegations of significant side effects of medication are not fully documented in the medical evidence of record. Surely if the claimant experienced significant side effects of medication, as she alleges, she would seek out medical advice. Considering the above factors, the undersigned finds the claimant's subjective complaints less than credible.

(AT 26 (internal citations omitted).)

The ALJ gave three specific, clear and convincing reasons for finding plaintiff's testimony not credible to the extent that plaintiff's statements concerned the intensity, persistence, and limiting effects of her symptoms. First, the ALJ reasoned that plaintiff's allegations were inconsistent with the conservative medical treatment he had received. An ALJ may use a claimant's favorable response to conservative treatment for impairments, and the pain associated with those impairments, as a reason for undermining the claimant's claims of disabling pain. See Tommasetti , 533 F.3d at 1040 (holding that the ALJ properly reasoned that plaintiff's favorable response to mild treatments, including physical therapy and anti-inflammatory medication, undermined his credibility with respect to his complaints about the disabling nature of his pain); Parra v. Astrue , 481 F.3d 742, 750-51 (9th Cir. 2007) ("Evidence of conservative treatment' is sufficient to discount a claimant's testimony regarding severity of an impairment."). The record reflects that plaintiff's physicians prescribed conservative treatment to plaintiff including physical therapy and the use of medication and that plaintiff responded favorably to that treatment. (See, e.g., AT 301, 322 (creating a physical therapy plan for plaintiff's back problems including therapeutic exercise and body mechanics training); 527 (noting plaintiff was only prescribed sleeping medication to address her depression and PTSD); 578 (noting that plaintiff's back problems could "be managed conservatively" and that her radicular pain could "be controlled with infrequent epidural steroid injections"); 601 (noting that plaintiff was using Motrin and Vicodin to treat her conditions). Such recommendations of conservative treatment and plaintiff's favorable response to that treatment undermine plaintiff's testimony as to the severity and limiting effects of her impairments.

The ALJ's second reason for discounting plaintiff's testimony, that it was inconsistent with her own statements to Dr. Baker concerning her activities of daily living, was also proper and supported by the record. During the August 29, 2009 examination, Plaintiff told Dr. Baker that she was able to clean house with help, cook with help, do the laundry, go grocery shopping with help, and walk one block albeit with pain. (AT 567.) She further stated that she could sit for thirty minutes at a time, even though Dr. Baker noted that she sat for a longer period during her interview with him, and shop for groceries for thirty minutes at a time. (Id.) Furthermore, she did not describe to Dr. Baker any significant side effects from the medication she took for her spinal issues. (Id.) While these statements suggest that plaintiff's impairments caused some difficulty in her ability to engage in certain daily activities, they do not indicate that plaintiff's impairments were as completely debilitating as plaintiff alleges. See Molina v. Astrue , 674 F.3d 1104, 1113 (9th Cir. 2012) ("Even where those activities [of daily living] suggest some difficulty functioning, they may be grounds for discrediting the claimant's testimony to the extent that they contradict claims of a totally debilitating impairment.").

The ALJ's last reason for finding plaintiff not credible, that plaintiff's allegations of significant side effects from her medications was not documented by the medical evidence in the record were undermined by the fact that she did not seek medical advice, was also legitimate and supported by the record. See Tommasetti , 533 F.3d at 1039 ("The ALJ may consider many factors in weighing a claimant's credibility, including... unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment...."). A review of the medical evidence in the record generally fails to reflect that plaintiff suffered side effects from her medications or made complaints that her medications caused any major complications. Accordingly, the ALJ properly discounted plaintiff's subjective complaints on this basis as well.

For the foregoing reasons, the ALJ did not err in finding plaintiff's testimony concerning the intensity, persistence, and limiting effects of her symptoms not credible.

4. Whether Plaintiff's Submission of Additional Medical Evidence Warrants Remand

Plaintiff stated in her motion for summary judgment that she would submit to the court additional medical records that had not been presented to the ALJ. However, plaintiff did not file these additional records with the court until she filed her "surreply" on September 24, 2013. (See ECF No. 25.) As stated above, the court will disregard plaintiff's "surreply" as procedurally improper and untimely. Nevertheless, for the reasons stated below, even if the court were to consider these additional medical records remand to the ALJ is not warranted.

Under 42 U.S.C. § 405(g), "in determining whether to remand a case in light of new evidence, the court examines both whether the new evidence is material to a disability determination and whether a claimant has shown good cause for having failed to present the new evidence to the ALJ earlier." Mayes v. Massanari , 276 F.3d 453, 461-62 (9th Cir. 2001). To be material, "the new evidence must bear directly and substantially on the matter in dispute.'" Id. at 462 (citation omitted). To demonstrate good cause, "the claimant must demonstrate that the new evidence was unavailable earlier." Id . "If new information surfaces after the Secretary's final decision and the claimant could not have obtained that evidence at the time of the administrative proceeding, the good cause requirement is satisfied." Key v. Heckler , 754 F.2d 1545, 1551 (9th Cir. 1985) (citation omitted). In addition, the claimant must prove to the reviewing court's satisfaction that there exists a "reasonable possibility that the new evidence would have changed the outcome of the Secretary's determination had it been before him." Booz v. Secretary of Health and Human Services , 734 F.2d 1378, 1380 (9th Cir. 1984).

Plaintiffs new evidence consists of a number of informational articles on plaintiff's impairments and treatment records from: San Joaquin General Hospital dated May 23, 2007, through October 11, 2010; San Joaquin County Behavioral Health Services dated December 17, 2009, through November 15, 2012; and Kaiser Permanente dated May 21, 2013.[10] (ECF No. 25 at 11-137.) Plaintiff, however, does not give any reasons why the records dated prior to the ALJ's June 25, 2010 decision were not presented to the ALJ during his review of plaintiff's case, let alone a reason that constitutes "good cause" for purposes of 42 U.S.C. § 405(g). See Mayes , 276 F.3d at 461-62. Furthermore, plaintiff's new treating records documenting plaintiff's condition after the ALJ's decision are, at most, material to a new application for disability, but cannot be used as a basis to remand this case to the ALJ. See Sanchez v. Sec'y of Health & Human Servs. , 812 F.2d 509, 512 (9th Cir. 1987) ("The new evidence indicates, at most, mental deterioration after the hearing, which would be material to a new application, but not probative of his condition at the hearing."). Accordingly, even if the court were to consider plaintiff's newly submitted medical records, plaintiff has made an insufficient showing that such records warrant remand to the ALJ under 42 U.S.C. § 405(g).

V. CONCLUSION

For the foregoing reasons, IT IS HEREBY ORDERED that:

1. Plaintiff's motion for summary judgment (ECF No. 17) is DENIED.

2. The Commissioner's cross-motion for summary judgment (ECF No. 19) is GRANTED.

3. Judgment is entered for the Commissioner.

4. The Clerk of Court is directed to close this case and vacate all dates.

IT IS SO ORDERED.


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