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Garcia v. Commissioner of Social Security

United States District Court, E.D. California

March 31, 2014

ADELITA P. GARCIA, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

MEMORANDUM OPINION AND ORDER

CRAIG M. KELLISON, Magistrate Judge.

Plaintiff, who is proceeding with retained counsel, brings this action for judicial review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). Pursuant to the written consent of all parties, this case is before the undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c). Pending before the court are plaintiff's motion for summary judgment (Doc. 16) and defendant's cross-motion for summary judgment (Doc. 20). For the reasons discussed below, the court will grant plaintiff's motion for summary judgment or remand and deny the Commissioner's cross-motion for summary judgment.

I. PROCEDURAL HISTORY[1]

Plaintiff applied for social security benefits on January 10, 2011 (Title XVI application) and January 20, 2011 (Title II application), alleging an amended onset of disability on January 10, 2011, due to disabilities including malignant neoplasm of colon, rectum or anus, urinary tract disorder, disorders of the back (Certified administrative record ("CAR") 32-34, 53, 85, 170-73, 206-10). Plaintiff's claim was denied initially and upon reconsideration. Plaintiff requested an administrative hearing, which was held on April 25, 2012, before Administrative Law Judge ("ALJ") Philip E. Callis. In a May 25, 2012, decision, the ALJ concluded that plaintiff is not disabled[2] based on the following findings:

1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2009.
2. The claimant has not engaged in substantial gainful activity since January 10, 2011, the alleged onset date (20 CFR 404.1571 et seq. and 416.971 et seq. ).
3. The claimant has the following severe impairments: rectal cancer, status post surgery, chemotherapy; degenerative disc disease; obesity; and depression (20 CFR 404.1520(c) and 416.920(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a). The claimant can perform all postural activities on an occasional basis. She should avoid all exposure to unprotected heights and moving machinery. She should avoid even moderate exposure to humidity and temperature extremes. She is limited to simple, repetitive tasks, with occasional public contact. 6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
7. The claimant was born on August 3, 1963 and was 46 years old, which is defined as a younger individual age 45-49, on the alleged disability onset date (20 CFR 404.1563 and 416.963).
8. The claimant has a limited education and is able to communicate in English (20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled, " whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from January 10, 2011, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).

(CAR 30-36). After the Appeals Council declined review on August 28, 2012, this appeal followed.

II. STANDARD OF REVIEW

The court reviews the Commissioner's final decision to determine whether it is: (1) based on proper legal standards; and (2) supported by substantial evidence in the record as a whole. See Tackett v. Apfel , 180 F.3d 1094, 1097 (9th Cir. 1999). "Substantial evidence" is more than a mere scintilla, but less than a preponderance. See Saelee v. Chater , 94 F.3d 520, 521 (9th Cir. 1996). It is "such evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales , 402 U.S. 389, 402 (1971). The record as a whole, including both the evidence that supports and detracts from the Commissioner's conclusion, must be considered and weighed. See Howard v. Heckler , 782 F.2d 1484, 1487 (9th Cir. 1986); Jones v. Heckler , 760 F.2d 993, 995 (9th Cir. 1985). The court may not affirm the Commissioner's decision simply by isolating a specific quantum of supporting evidence. See Hammock v. Bowen , 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative findings, or if there is conflicting evidence supporting a particular finding, the finding of the Commissioner is conclusive. See Sprague v. Bowen , 812 F.2d 1226, 1229-30 (9th Cir. 1987). Therefore, where the evidence is susceptible to more than one rational interpretation, one of which supports the Commissioner's decision, the decision must be affirmed, see Thomas v. Barnhart , 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal standard was applied in weighing the evidence, see Burkhart v. Bowen , 856 F.2d 1335, 1338 (9th Cir. 1988).

III. DISCUSSION

Plaintiff argues the ALJ erred in two ways: (1) the ALJ rejected plaintiff's treating physician and the consulting examiner's opinions without a legitimate basis; and (2) the ALJ rejected both plaintiff's testimony and her third party witness statements without a legitimate basis.

A. MEDICAL OPINIONS

The weight given to medical opinions depends in part on whether they are proffered by treating, examining, or non-examining professionals. See Lester v. Chater , 81 F.3d 821, 830-31 (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, than the opinion of a non-treating professional. See id.; Smolen v. Chater , 80 F.3d 1273, 1285 (9th Cir. 1996); Winans v. Bowen , 853 F.2d 643, 647 (9th Cir. 1987). The least weight is given to the opinion of a non-examining professional. See Pitzer v. Sullivan , 908 F.2d 502, 506 & n.4 (9th Cir. 1990).

In addition to considering its source, to evaluate whether the Commissioner properly rejected a medical opinion the court considers whether: (1) contradictory opinions are in the record; and (2) clinical findings support the opinions. The Commissioner may reject an uncontradicted opinion of a treating or examining medical professional only for "clear and convincing" reasons supported by substantial evidence in the record. See Lester , 81 F.3d at 831. While a treating professional's opinion generally is accorded superior weight, if it is contradicted by an examining professional's opinion which is supported by different independent clinical findings, the Commissioner may resolve the conflict. See Andrews v. Shalala , 53 F.3d 1035, 1041 (9th Cir. 1995). A contradicted opinion of a treating or examining professional may be rejected only for "specific and legitimate" reasons supported by substantial evidence. See Lester , 81 F.3d at 830. This test is met if the Commissioner sets out a detailed and thorough summary of the facts and conflicting clinical evidence, states her interpretation of the evidence, and makes a finding. See Magallanes v. Bowen , 881 F.2d 747, 751-55 (9th Cir. 1989). Absent specific and legitimate reasons, the Commissioner must defer to the opinion of a treating or examining professional. See Lester , 81 F.3d at 830-31. The opinion of a non-examining professional, without other evidence, is insufficient to reject the opinion of a treating or examining professional. See id. at 831. In any event, the Commissioner need not give weight to any conclusory opinion supported by minimal clinical findings. See Meanel v. Apfel , 172 F.3d 1111, 1113 (9th Cir. 1999) (rejecting treating physician's conclusory, minimally supported opinion); see also Magallanes , 881 F.2d at 751.

As to the medical opinions in this case, the ALJ reviewed several opinions. There are two opinions plaintiff argues are at issue, plaintiff's treating physician, Dr. Oceguera, and the consultative examining psychologist, Dr. Medoff. The ALJ found "[t]he mental examining and treating opinion evidence is entirely inconsistent with the treatment record as a whole and is found to be significantly overly restrictive." (CAR 21).

1. Zack I. Medoff, Ph.D

Dr. Medoff performed a comprehensive psychiatric evaluation of plaintiff on July 21, 2011. Notably, this evaluation was performed during plaintiff's intravenous chemotherapy for her colon cancer. Plaintiff reported to the examiner that she was having difficulties with the treatment. Upon mental status examination, plaintiff's general appearance, including her grooming and hygiene, were good; she appeared her stated age, average height, and overweight; she walked slowly, used crutches, had stiff posture, and difficulty getting up and sitting down; she was polite and maintained appropriate eye contact. Plaintiff was calm, cooperative, and appropriately behaved. Plaintiff's thought and speech were coherent and proceeded in a liner and organized fashion. Her content of thought was appropriate. Her mood appeared depressed and anxious, her affect appeared restricted and somewhat tearful. She reported limited sleep, lack of appetite due to the chemotherapy, and no suicidal or homicidal ideations. She was oriented x3, able to immediately repeat 3/3 objects and 2/3 objects after five minutes. Her remote memory appeared to be intact as she was able to recall her past in detail. She had some difficulties with fund of knowledge/information, unable to say who the past President was or the Governor of California, nor how many weeks are in a year; she had moderate difficulty with simple calculations, and was unable to complete serial 7s or 3s. Her concentration appeared to be within normal limits; she was able to complete a simple three step command and focus on the conversation in hand. Plaintiff's abstract thinking was poor as she was unable to explain proverbs. Her ability to infer similarities and differences appeared somewhat poor, in relating an apple and an orange. Her judgment and insight appeared fair, with appropriate responses as to what to do with a sealed addressed envelope and if she saw smoke in a theater. Dr. Medoff diagnosed plaintiff with major depressive disorder, recurrent, severe without psychotic features, chronic posttraumatic stress disorder, chronic. As to plaintiff's prognosis, Dr. Medoff stated:

The claimant appeared to respond to questions in an open and honest fashion. She did not appear to be exaggerating any of her symptoms and there were no inconsistencies between her self-report and the available records. The claimant's symptom severity appears to be in the serious range. The likelihood of the claimant's mental condition improving in the next 12 months is guarded. The claimant reported symptoms and a history of Major Depressive Disorder and Posttraumatic Stress Disorder that appear to be limiting her ability to work and function in excess of a limitation due to her medical conditions.

(CAR 516).

Dr. Medoff's medical source statement as to plaintiff's functional assessment, based upon her psychiatric condition was:

There appears to be a moderate to severe impairment in the claimant's ability to manage her own funds, given her performance during the examination, as well as, her low academic achievement.
There appears to be no impairment in the claimant's ability to perform simple and repetitive tasks, given her performance during the examination, however, there appears to be a moderate impairment in the claimant's ability to perform detailed and complex tasks, given her distractibility, low frustration tolerance, difficulty concentrating and low motivation. There appears to be a moderate to severe impairment in the claimant's ability to accept instructions from supervisors, as well as, interact with co-workers and the public, given her decreased interest and motivation, low energy and fatigue, fear and distrust of others, irritability and anger, distractibility, difficulty concentrating.
There appears to be a mild impairment in the claimant's ability to perform work activities on a consistent basis without special or additional instruction, given her low academic achievement.
There appears to be a moderate to severe impairment in the claimant's ability to maintain regular attendance in the workplace, as well as, to complete a normal workday/workweek without interruptions from her psychiatric condition, given her decreased interest in motivation, low energy and fatigue, fear and distrust of others, irritability and anger, distractibility and difficulty concentrating.
There appears to be a severe impairment in the claimant's ability to deal with the usual stress encountered in the workplace, as she is coping with medical conditions that cause her pain and discomfort and given her decreased interest and motivation, low energy and fatigue, fear and distrust of others, irritability and anger, distractibility, difficulty concentrating, inadequate social support and lack of adequate coping strategies.

(CAE 517).

The ALJ found that:

Dr. Medoff's opinion is significant overly restrictive and explicitly relies at least in part on subjective symptom complaints, including some reports, which he did not note during his mental status examination, such as poor concentration. In fact, he found that she had normal concentration. He also appears to rely on the claimant's physical symptom complaints, in addition to subjective allegations. However, not only is Dr. Medoff not a physician, his opinion was rendered during a period when the claimant reported an increased amount of side effects due to chemotherapy, which reportedly contributed to her mental symptoms. However, within a few months of the claimant's examination and less than a year after initial treatment, the claimant's cancer treatment was completed. Furthermore, the claimant did not report additional mental symptoms during treatment after August 2011, which indicates that the claimant's mental symptoms were primarily controlled with conservative, pharmacological treatment alone and the cessation of the claimant's cancer treatment. Therefore, the claimant's treatment record does not support Dr. Medoff's restrictions for a period of 12 months. His opinion is given significantly reduced weight.

(CAR 20).

2. Jorge Oceguera, M.D.

Dr. Oceguera, plaintiff's primary care physician, submitted a letter and medical source statement in support of plaintiff's application. In his letter, Dr. Oceguera states that plaintiff has suffered from hypertension and depression for many years, and that since her diagnosis of rectal cancer, her depression has been more difficult to control (CAR 645). In his medical source statement, he found plaintiff mildly limited in her ability to remember locations and work-like procedures; understand and remember very short and simple repetitive instructions; to carry out short and simple instructions; ask simple questions or request assistance from supervisors; maintain socially appropriate behavior and adhere to basic standards of neatness and cleanliness; respond appropriately to changes in work setting; be aware of normal hazards and take appropriate precautions; and set realistic goals. He found her moderately limited in her ability to understand and remember detailed instructions; carry out detailed instructions; maintain attention and concentration for extended periods; sustain an ordinary routine without special supervision; work in coordination with or proximity to others without being unduly distracted by them; make simple work-related decisions; complete a normal workday and workweek without interruptions from psychologically based symptoms and perform at a consistent pace without an unreasonable number and length of rest periods; to interact appropriately with the general public or customers; to accept instructions and respond appropriately to criticism from supervisors; get along with co-workers or peers without unduly distracting them or exhibiting behavioral extremes; and travel in unfamiliar places and/or use public transportation. He further found plaintiff markedly limited in her ability to perform activities within a schedule, maintain regular attendance and be punctual within customary tolerances. (CAR 640-42).

The ALJ found:

Dr. Oceguera's opinion is inconsistent with Dr. Mehdi's opinion. Dr. Mehdi is a specialist and his opinion is more reliable in regards to the claimant's cancer restrictions. Furthermore, Dr. Oceguera is not a mental health specialist and his opinion regarding the claimant's mental limitations is not consistent with the actual treatment record. In fact, the claimant only rarely reported any mental symptoms during treatment and these did not persist on a consistent basis. There were no mental symptom reports after August 2011, which indicates that her symptoms were actually primarily controlled with treatment. Therefore, his opinion is not well supported by the record and is given reduced weight.

(CAR 21).

3. Aminder Mehdi, M.D.

Dr. Mehdi[3] was plaintiff's treating physician for her cancer. In his medical source statement, Dr. Mehdi indicated that plaintiff was under his care from December 7, 2010, through October 5, 2011, for stage III rectal cancer. Dr. Mehdi treated plaintiff with chemotherapy, to which she had a good response. Dr. Mehdi stated her prognosis as guarded. (CAR 531). He assessed the following limitations for plaintiff: occasionally lift or carry up to 20 pounds, never more as she is weakened after surgery, radiation and chemotherapy; sit for an hour at a time, for eight hours total; stand for an hour at a time, for a total of three hours; walk for 1-2 hours at a time, for three hours total, due to her weakness from chemotherapy and surgery. (CAR 532). He also opined that plaintiff could occasionally climb, balance, stoop, crouch, kneel, or crawl, and should avoid exposure to heights, moving machinery, humidity, and extreme temperatures. He also noted that plaintiff is disabled until December 31, 2011.

The ALJ found this
opinion is not inconsistent with the residual functional capacity determined in this decision. Dr. Mehdi's opinion is consistent with the record, including the claimant's reported fatigue, her history of back problems, and her obesity, even without the claimant's continued cancer treatment. It is further consistent with his statement during treatment indicating that the claimant would not be precluded from all work. The undersigned does not accept a limit of one hour at a time for each exertional activity due to the lack of evidence of gait abnormalities and persistent, fatigue after even 12 months of treatment and gives this aspect of the opinion reduced weight. However, some of the jobs identified at Step 5 allow for a sit/stand option, thus, allowing for this limitation. The undersigned also considered the statement that indicated that Dr. Mehdi could not fill out permanent disability paperwork, as the claimant's rectal cancer should not limit her return to work when she finished treatment [Exhibit 16F/11]. This opinion is consistent with Dr. Mehdi's function-by-function opinion, which is consistent with the evidence that she stopped receiving cancer treatment in October 2011 and stopped reporting cancer related side effects in November 2011, less than a year after she initiated treatment. It is also given significant weight. The undersigned also considered Dr. Mehdi's opinion that the claimant would have disability until the end of December 2011, as she would need another two to three months to recuperate [Exhibit 16F/2]. This opinion is vague and based, at least in part on conjecture. It is not supported by the record, which indicates that the claimant last reported related symptoms in November 2011. While there is some evidence of subsequent fatigue, this appears to have been attributed to non-severe sleep apnea. This opinion is given reduced weight. Notably, even if it were fully accounted for, it provides for limitations spanning less than a year after the claimant's amended alleged onset date and would not be inconsistent with the ultimate finding in this decision.

(CAR 18).

4. Analysis

Plaintiff argues that the ALJ rejected both Dr. Oceguera and Medoff's opinions without legitimate reasons for doing so. However, as the defendant articulates, the ALJ throughly analyzed each of the doctors' opinions and provided several reasons for treating the opinions as she did. The medical opinions are not completely contradictory, and the ALJ did a reasonable job in discussing where the opinions contradicted each other. As they were not completely contradictory, the ALJ was required to give clear and convincing reasons for discrediting the opinions where she did. Plaintiff argues that the ALJ unreasonably accepted the non-examining physician opinions in rejecting the treating and examining physician opinions. While the ALJ is prohibited from relying on a non-examining physician opinion as the sole reason for rejecting a treating or examining medical opinion, that is not what the ALJ did here. Rather, the ALJ provided several reasons for her treatment of each opinion, none of which were relying on the non-examining physicians. While the ALJ did accept the non-examining physician's limitations, she did not use those opinions as a reason to reject the other medical opinions.

The ALJ determined that to the extent Dr. Oceguera's opinion is inconsistent with Dr. Mehdi's opinion, she accepted Dr. Mehdi's opinion as he is the specialist treating plaintiff's cancer. To the extent there is a conflict, this is an acceptable resolution by the ALJ, who is charged with resolving such conflicts. As to plaintiff's mental health issues, the ALJ pointed out that Dr. Oceguera is not a mental health specialist, that plaintiff rarely reported mental symptoms after August 2011 (once she completed her cancer treatment), and is therefore not well supported by the record. Plaintiff disagrees with this determination, but fails to cite any support for her disagreement in the record. A review of the medical records confirms the ALJ's finding that plaintiff rarely reported mental health symptoms after her cancer treatment was completed. The undersigned finds the ALJ throughly reviewed Dr. Oceguera's opinion, and provided reasons for discounting the opinion which were clear and convincing. While the evidence may be subject to alternate interpretations, the court may not simply substitute it's own opinion. The ALJ's interpretation of the evidence is not erroneous, is supported by the record, and therefore must be affirmed. See Thomas , 278 F.3d at 954.

Contrary to plaintiff's argument that the ALJ failed to articulate a legitimate reason for rejecting Dr. Medoff's opinion, as a treating medical source, the undersigned finds that the ALJ provided a thorough evaluation of Dr. Medoff's opinion, and provided clear and convincing reasons why it was given reduced weight. Most significantly, the ALJ found the examination of plaintiff occurred during plaintiff's cancer treatment when she was understandably having a difficult time. Given the lack of mental health complaints after the treatment was over, plus the finding that Dr. Medoff relied on plaintiff's discredited subjective symptom complaints and her physical complaints, the reasons provided by the ALJ are clear and convincing, and are supported by the record. The court finds no reversible error in the treatment of the medical opinions in the ALJ's decision.

B. CREDIBILITY

Plaintiff further contends that the ALJ's credibility determination was in error. The Commissioner determines whether a disability applicant is credible, and the court defers to the Commissioner's discretion if the Commissioner used the proper process and provided proper reasons. See Saelee v. Chater , 94 F.3d 520, 522 (9th Cir. 1996). An explicit credibility finding must be supported by specific, cogent reasons. See Rashad v. Sullivan , 903 F.2d 1229, 1231 (9th Cir. 1990). General findings are insufficient. See Lester v. Chater , 81 F.3d 821, 834 (9th Cir. 1995). Rather, the Commissioner must identify what testimony is not credible and what evidence undermines the testimony. See id. Moreover, unless there is affirmative evidence in the record of malingering, the Commissioner's reasons for rejecting testimony as not credible must be "clear and convincing." See id.; see also Carmickle v. Commissioner , 533 F.3d 1155, 1160 (9th Cir. 2008) (citing Lingenfelter v. Astrue , 504 F.3d 1028, 1936 (9th Cir. 2007), and Gregor v. Barnhart , 464 F.3d 968, 972 (9th Cir. 2006)).

If there is objective medical evidence of an underlying impairment, the Commissioner may not discredit a claimant's testimony as to the severity of symptoms merely because they are unsupported by objective medical evidence. See Bunnell v. Sullivan , 947 F.2d 341, 347-48 (9th Cir. 1991) (en banc). As the Ninth Circuit explained in Smolen v. Chater :

The claimant need not produce objective medical evidence of the [symptom] itself, or the severity thereof. Nor must the claimant produce objective medical evidence of the causal relationship between the medically determinable impairment and the symptom. By requiring that the medical impairment "could reasonably be expected to produce" pain or another symptom, the Cotton test requires only that the causal relationship be a reasonable inference, not a medically proven phenomenon.

80 F.3d 1273 , 1282 (9th Cir. 1996) (referring to the test established in Cotton v. Bowen , 799 F.2d 1403 (9th Cir. 1986)).

The Commissioner may, however, consider the nature of the symptoms alleged, including aggravating factors, medication, treatment, and functional restrictions. See Bunnell , 947 F.2d at 345-47. In weighing credibility, the Commissioner may also consider: (1) the claimant's reputation for truthfulness, prior inconsistent statements, or other inconsistent testimony; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; (3) the claimant's daily activities; (4) work records; and (5) physician and third-party testimony about the nature, severity, and effect of symptoms. See Smolen , 80 F.3d at 1284 (citations omitted). It is also appropriate to consider whether the claimant cooperated during physical examinations or provided conflicting statements concerning drug and/or alcohol use. See Thomas v. Barnhart , 278 F.3d 947, 958-59 (9th Cir. 2002). If the claimant testifies as to symptoms greater than would normally be produced by a given impairment, the ALJ may disbelieve that testimony provided specific findings are made. See Carmickle , 533 F.3d at 1161 (citing Swenson v. Sullivan , 876 F.2d 683, 687 (9th Cir. 1989)).

As to plaintiff's credibility, the ALJ found inconsistencies in the record, which did not support her statements. These inconsistencies included her daily activities and earnings record. Specifically, the ALJ found it inconsistent that plaintiff stated she could not maintain her hygiene because of her back[4], but she also reported some good activities of daily living, such as keeping her living area clean, picking up around the house but not heavy cleaning, washing dishes, driving, and reading. The inconsistent earnings record, where plaintiff reported she stopped working in 2004 because she was laid off, the ALJ found indicated there may be other reasons for her continued unemployment unrelated to her allegedly disabling impairments. (CAR 14-15). The ALJ also found plaintiff's "treatment record is not what one would expect for a totally disabled individual." (CAR 15). After reviewing plaintiff's treatment records and the medical opinions in the record, the ALJ concluded:

the claimant's allegations are not credible in light of some inconsistent reports of daily activities and work history. More importantly, they are not supported by the medical record, which indicates that most of her treatment did not persist for even 12 months. There is no back treatment or even allegations of pain during treatment after May 2011. There is little evidence of residual symptoms from cancer treatment after November 2011 and her subsequent fatigue appears to be attributed to sleep apnea after this date and even that was prior to 12 months after her amended alleged onset date. However, even with her fatigue, there is no evidence that she could not perform work within the residual functional capacity in this decision. The claimant only received rare and short-lived mental treatment. However, these rare symptom complaints are fully accounted for in this decision. The mental examining and treating opinions evidence is entirely inconsistent with the treatment record as a whole and is found to be significantly overly restricted. For all these reasons, when the evidence is considered as a whole, the undersigned finds that the claimant can perform a wide range of sedentary work. The claimant can perform all postural activities on an occasional basis. She should avoid all exposure to unprotected heights and moving machinery. She should avoid even moderate exposure to humidity and temperature extremes. She is limited to simple, repetitive task, with occasional public contact.

(CAR 21).

The undersigned finds these reasons clear and convincing. Contrary to plaintiff's argument, the ALJ did not simply discredit her testimony on the basis that it is unsupported by objective medical evidence. Rather, the ALJ found a lack of treatment that would be consistent with her alleged disabling conditions. Especially that the treatments were either effective or lasted for less than the 12 month period of time. The undersigned finds the credibility determination[5] is supported by the record as a whole.

IV. CONCLUSION

Based on the foregoing, the court concludes that the Commissioner's final decision is based on substantial evidence and proper legal analysis. Accordingly, IT IS HEREBY

ORDERED that:

1. Plaintiff's motion for summary judgment (Doc. 16) is denied;
2. Defendant's cross-motion for summary judgment (Doc. 20) is granted; and
3. The Clerk of the Court is directed to enter judgment and close this file.

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