United States District Court, C.D. California
December 29, 2014
ARACELIA URIBE, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant
For Aracelia Uribe, Plaintiff: Matthew Mark Pope, LEAD ATTORNEY, Law Offices of Matthew M Pope, Whittier, CA.
For Carolyn W Colvin, Acting Commissioner or Social Security, Substituted for Michael J Astrue, Defendant: Esther H Kim, LEAD ATTORNEY, SAUSA - Assistant Regional Counsel - Scoial Security Admin, Office of the General Counsel Region IX, San Francisco, CA; Assistant U.S. Attorney LA-CV, Office of U.S. Attorney, Civil Division, Los Angeles, CA; Assistant U.S. Attorney LA-SSA, Office of the General Counsel for Social Security Adm., San Francisco, CA.
MEMORANDUM AND ORDER
HON. KENLY KIYA KATO, United States Magistrate Judge.
Plaintiff Aracelia Uribe seeks review of the final decision of the Commissioner of the Social Security Administration (" Commissioner" or " Agency") denying her application for Title II Disability Insurance Benefits (" DIB"). The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge, pursuant to 28 U.S.C. § 636(c). For the reasons stated below, the Commissioner's decision is AFFIRMED.
On October 6, 2010, Plaintiff submitted an application for DIB. Administrative Record (" AR") at 133. On July 26, 2011, the Agency denied the application. Id. at 58.
On August 23, 2011, Plaintiff requested a hearing before an Administrative Law Judge (" ALJ"). Id. at 72. On March 14, 2012, a hearing was held before ALJ Joel B. Martinez. Id. at 23. On June 12, 2012, a followup hearing was held. Id. at 53. On July 27, 2012, the ALJ issued a decision denying Plaintiff's application. Id. at 10.
On September 10, 2012, Plaintiff asked the Agency's Appeals Council to review the ALJ's decision. Id. at 5. On September 6, 2013, the Appeals Council denied Plaintiff's request for review. Id. at 1.
On November 5, 2013, Plaintiff filed the instant action. This matter is before the Court on the parties' Joint Stipulation (" JS"), filed November 20, 2014, which the Court has taken under submission without oral argument.
RELEVANT FACTUAL BACKGROUND
Plaintiff was born on November 30, 1969, and her alleged disability onset date (" AOD") is December 20, 2006. Id. at 133. Plaintiff alleges disability based upon fibromyalgia, " spondolidis, "  back pain, sciatica, stiffness and pain in her neck, and stiffness and pain in her pelvis area. Id. at 150. Plaintiff was 37 years old at the time of the AOD, and 42 years old at the time of the hearings before the ALJ. Plaintiff completed the eleventh grade, and last worked in December 2006 as a supervisor at a factoring company. See id. at 26, 28-30.
A. Treating Sources
1. Kaiser Permanente
Plaintiff was treated at Kaiser Permanente from January 2006 through December 2006. On October 16, 2006, Plaintiff rated the pain level in her neck as a four to five out of ten; the pain level in her mid-back as a five out of ten; and the pain in her lower back as a five out of ten. Id. at 276. On October 18, 2006, a doctor noted Plaintiff was " [d]eemed nonsurgical candidate for the lower back pain." Id. at 271. On December 1, 2006, Plaintiff reported that her pain level was three out of ten. Id. at 266.
On December 20, 2006, Plaintiff was treated by Kaiser employee Dr. Linda Atkinson. Id. at 255. Plaintiff was referred to Dr. Atkinson for " chronic neck and back pain." Id. According to Dr. Atkinson's report, Plaintiff " was told in the past that she may have" ankylosing spondylitis (" AS"). Id. Dr. Atkinson summarized Plaintiff's reporting of her problems as follows:
[Plaintiff] reports that she has had back pain since her teens. She reports having severe pain since 2000 that radiated down her leg. She had a laminectomy in 2000 which caused temporary relief for six months. She reports that since then she had gotten temporary relief with epidural injections.
Id. at 255.
Dr. Atkinson stated she did not " find evidence of AS when I viewed [Plaintiff's] lumbo sacral xrays." Id. at 260. However, Dr. Atkinson referred Plaintiff for a test to see if Plaintiff has the HLA-B27 antigen, which " is seen with a frequency of 90 percent in patients with" AS. Id. at 260-61. The test determined Plaintiff has the antigen. Id. at 261.
Dr. Atkinson stated that Plaintiff had " enough tender points to qualify for a diagnosis of fibromyalgia. Regular exercise including pool exercises was encouraged." Id. at 260.
2. Dr. Randolph J. Betts
In a report dated July 8, 2008, Dr. Randolph J. Betts, a family medicine practitioner who treated Plaintiff, stated Plaintiff " has seen all specialists -- who all advise [no] surgery." Id. at 384. Dr. Betts diagnosed Plaintiff with " mild spondylosis only, " along with sciatica and chronic pain syndrome. Id. at 384, 387-88; see also id. at 479 (" [Plaintiff] was diagnosed with fibromyalgia and possible early ankylosing spondylitis.").
3. Dr. Kaleem Uddin
In a report dated February 25, 2008, Dr. Kaleem Uddin, a neurologist whom Dr. Betts asked for a second opinion, stated that a " recent MRI of [Plaintiff's] lumbosacral spine" was " completely normal, " with " no evidence of disk herniation" and " no evidence of arthritic changes." Id. at 425-26. Dr. Uddin stated Plaintiff's " examination and history is highly suggestive of fibromyalgia." Id. at 426. Dr. Uddin suggested Plaintiff " stop doing any surgical intervention or any epidural steroid injection, " and instead go to " a rheumatologist so that she can be treated for fibromyalgia." Id.
B. Consultative Sources
1. Dr. Nahel Al Bouz
On July 14, 2011, Plaintiff received a consultative examination by Dr. Nahel Al Bouz. Id. at 477. After physically examining Plaintiff, Dr. Bouz offered the following impression:
This is a 41-year-old female who presents with symptoms suggestive of fibromyalgia, history of sciatica with laminectomy, with temporary improvement and then worsening again. The claimant did not have any signs of muscle wasting on her physical examination. She had full range of motion of all her joints except for the C-spine, which had limited range of motion on flexion with pain in bilateral paraspinal areas, but there is no spine tenderness to palpation.
Id. at 481-82. Dr. Bouz stated Plaintiff " is able to walk without difficulties, " on both her toes and heels, and did not use an assistive device. Id. at 481.
Based on Plaintiff's history and the findings of the physical examination, Dr. Bouz found Plaintiff could push, pull, lift, and carry " 50 pounds occasionally and 25 pounds frequently"; could walk and stand " 6 hours out of an 8-hour work shift"; did not need an " assistive device"; had no sitting restrictions; " has postural limitations towards squatting, bending, and stooping to only frequent due to her low back pain and sciatica type pain"; " should avoid unprotected heights due to her low back pain"; had no sight or hearing restrictions; and had no restrictions on using " the hands for fine and gross manipulative movements." Id. at 482.
2. Dr. Elva Montoya
In a Physical Residual Functional Capacity Assessment dated July 22, 2011, Dr. Elva Montoya found, after reviewing " all evidence" in Plaintiff's file, that Plaintiff could " [o]ccasionally lift and/or carry" 50 pounds; could " [f]requently lift and/or carry" 25 pounds; could " [s]tand and/or walk (with normal breaks) for a total of about 6 hours in an 8-hour workday"; could " [s]it (with normal breaks) for a total of about 6 hours in an 8-hour workday"; had no " [p]ush and/or pull" limitations, " other than shown for lift and/or carry"; had frequent limitations with regard to climbing, stooping, kneeling, crouching, and crawling; had no limitations with regard to balancing; was occasionally limited with regard to overhead reach; had no limitations with regard to handling, fingering, and feeling; had no visual limitations; had no communicative limitations; and should avoid " unprotected heights due to low back pain." Id. at 484-86. Dr. Montoya stated that her findings were not " significantly different" from " treating/examining source conclusions about the claimant's limitations or restrictions." Id. at 487.
3. Dr. Sarah L. Maze
On April 20, 2012, Plaintiff received a neurological evaluation by Dr. Sarah L. Maze. Id. at 507. Dr. Maze found Plaintiff has a " fair" general fund of knowledge; (2) " recalls three out of three items at one and five minutes"; " stands promptly from a seated position and walks in a stable manner"; has intellectual functioning that " appears to be in the normal range"; does not have reduced concentration; " is able to occasionally lift 50 pounds and frequently lift 25 pounds"; " is able to stand and walk for 6 hours of an 8-hour workday with normal breaks"; can " sit for 6 hours of an 8-hour workday with normal breaks"; and has no restrictions in use of her hands or feet. Id. at 508-10.
C. Plaintiff's Pre-Hearing Allegations
In a Pain Questionnaire dated January 7, 2011, Plaintiff stated she began suffering from neck pain after a car accident in 1988 and falling on her tail bone in 1991. Id. at 180.
In a Function Report from the same date, Plaintiff stated she cooks three times a week, and that if the cooking takes longer than 45 minutes, she needs to take breaks. Id. at 170. Plaintiff stated she does not " do any outdoor chores, " but does perform light cleaning. Id. Plaintiff stated she no longer cleans as long as she used to. Id. Plaintiff stated she needs help lifting laundry baskets. Id. Plaintiff stated she drives " at times, " and that she shops for groceries twice a month for an hour at a time. Id. at 171. Plaintiff stated she also goes to stores to shop for clothes and necessities. Id.
Plaintiff stated she takes care of her family when she can, but " it seems they take more care of me." Id. at 172. Plaintiff stated her husband and children take care of the family pets. Id. Plaintiff stated that before her physical condition deteriorated, she was able to play volleyball and basketball; " run after" her nephews and nieces; cook big meals; and " watch activities like football." Id. Plaintiff stated her physical condition affects her sleep, causing her to wake up after a few hours " because of back pain, " which makes her feel " tired in the morning." Id. Plaintiff stated " the only time" she has problems showering, using the bathroom, or dressing is when her " sciatica acts up." Id. Plaintiff stated that, when her sciatica " gets severe, " she needs " help up from my bed" and a " walker to get to bathroom." Id.
Plaintiff stated she does not " really go anywhere unless it's to take my daughter to school, grocery shop, visit when I can." Id. at 173. Plaintiff stated she gets along well with authority figures, and has never been fired because of problems getting along with other people. Id. at 174. Plaintiff stated she still has " trouble accepting there are things I just can't do." Id. Plaintiff stated she uses a walker and brace that were prescribed by a doctor after her surgery in 2000. Id. Plaintiff stated she uses the brace " every day off/on through the day, " and the walker " only when sciatica is very bad." Id. Plaintiff stated she does not " have any social activities since [her] illness worsened." Id. at 175.
Plaintiff stated she cannot lift over ten pounds or she will hurt her back. Id. She stated she cannot stand for more than ten minutes; can only walk up to twenty minutes before needing to rest; has difficulty squatting, bending, and kneeling; and her concentration goes when she is overwhelmed with pain or depression. Id. Plaintiff stated she follows written and spoken instructions " pretty good." Id. In a section of the Function Report for additional remarks, Plaintiff wrote: " I just want to apologize for the delay. After receiving this form I was sick with the flu for a week, then my fibro and back pain was bad and I was I guess in a depressed mode. I didn't realize the time frame." Id. at 176.
D. Third-Party Statements
In a series of letters, Plaintiff's relatives, acquaintances, and former manager wrote about their observations of Plaintiff. Plaintiff's brother wrote: " There are times when I call [Plaintiff] to see how she is doing & I can tell from the tone of her voice that she is in pain. . . [I] know that the rest of my family feels the same way, especially her Husband Bernie & her kids that see her dealing with this every day." Id. at 240. A Divisional Manager at Plaintiff's former job wrote:
" Sally Uribe was terminated on December 12, 2006 after she was deemed incapable of coming into work to fulfill her position. She was unable to commit to any work schedule because of her constant pain. . . . She was gone from work off and on due to her severe pain issues. She would often come into the office and then would need to leave because she was in too much pain. This regularly occurred for about 1 year. Her doctors could not diagnose her problem other than chronic pain and she had no apparent physical condition that they could pin point the problem on. . . . Prior to this condition, Mrs. Uribe was a very good worker, always reliable and dependable.
Id. at 242.
Plaintiff's sister-in-law wrote:
The past several years I noticed a drastic change in Aracelia, her inability to be flexible and mobile was becoming very noticeable and the pain she described was heart breaking to us. I could tell she was in pain and not comfortable to the point where she was no longer coming to family functions. We were told she was in too much pain and it would be best if she stayed home.
Id. at 245.
Plaintiff's parents-in-law wrote that she " struggles to walk, sit or even stand." Id. at 246. Plaintiff's sister wrote: " Every time I see her or speak to her she is crying because she is in so much pain." Id. at 248. Plaintiff's older brother wrote he had seen Plaintiff " not be able to get up from her bed because of sciatica pain." Id. at 250. Plaintiff's neighbor wrote that Plaintiff complained frequently of being in pain, and that she " could see it was unbearable at times." Id. at 251.
In a letter dated March 1, 2012, Plaintiff's 23-year-old daughter wrote:
As far as I can remember, my mom has always had problems with her upper-back, lower-back, shoulders, neck, fibromyalgia, and sciatica. I remember when I was younger, I would always see her in pain, and spent a lot of time in bed. . . . There are times she can't get out of bed, or even walk. . . . My dad and I sometimes try massaging her, but it doesn't really help.
Id. at 252.
E. ALJ Hearings
1. Hearing on March 4, 2012
On March 14, 2012, a hearing was held before the ALJ. Id. at 25. Plaintiff was represented by counsel. Id. Plaintiff stated she was " let go" in December 2006 from her job because " it was harder for me to come into work. I was missing a lot of work." Id. at 35. Plaintiff was asked whether her pain was " worse now than it was in '06." Id. at 44. Plaintiff answered: " The last couple of years that I haven't had any medical attention, yes, it's gotten a lot worse." Id. at 44-45.
The ALJ asked Plaintiff whether she needs a cane when she walks. Id. at 41. Plaintiff answered, " When I do have to [walk] I always take my cane." Id. Plaintiff showed the ALJ her single-point cane, which she said was originally her father's. Id. Plaintiff then reiterated she needs the cane to walk; otherwise, she " can't walk at all."
Plaintiff testified that her physical condition deteriorated as a result of a car accident and another accident in which she " fell through" her backyard deck. Id. at 45-46. The ALJ asked Plaintiff whether she received any medical care after either accident, and Plaintiff answered no. Id.
At the conclusion of the hearing, the ALJ noted there were " very little treatment records, " and decided to have Plaintiff receive a " neuro CE" to " see what we get from that." Id. at 51. The ALJ said, " And then we'll come back and address that, all right?" Id. Plaintiff's counsel consented. Id.
2. Hearing on June 12, 2012
After Dr. Maze evaluated Plaintiff, a followup hearing before the ALJ was held on June 12, 2012. Id. at 53. At that hearing, the ALJ asked a vocational expert whether " a hypothetical person of the claimant's age, education and work history, " with " [o]ccasional postural limitations, occasional overhead reach; no climbing of ladders, ropes, scaffolds; and, no heights or hazards" could do Plaintiff's previous work as an " accounts payable receivable" clerk or supervisor. Id. at 56. The vocational expert answered that such a person could do all of Plaintiff's previous work. Id. The ALJ then asked Plaintiff's counsel whether she wished to ask " [a]ny questions, " and Plaintiff's counsel answered no. Id. at 57.
STANDARD FOR EVALUATING DISABILITY
In order to qualify for DIB or SSI, a claimant must demonstrate a medically determinable physical or mental impairment that (1) prevents him from engaging in substantial gainful activity and (2) is expected to result in death or to last for a continuous period of at least twelve months. Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998). The impairment must render the claimant incapable of performing the work she previously performed and incapable of performing any other substantial gainful employment that exists in the national economy. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).
To decide if a claimant is disabled, and therefore entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. § § 404.1520, 416.920. The steps are:
(1) Is the claimant presently engaged in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two.
(2) Is the claimant's impairment severe? If not, the claimant is found not disabled. If so, proceed to step three.
(3) Does the claimant's impairment meet or equal one of the specific impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, the claimant is found disabled. If not, proceed to step four.
(4) Is the claimant capable of performing work she has done in the past? If so, the claimant is found not disabled. If not, proceed to step five.
(5) Is the claimant able to do any other work? If not, the claimant is found disabled. If so, the claimant is found not disabled.
Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001); 20 C.F.R. § § 404.1520(b)-(g)(1), 416.920(b)-(g)(1).
The claimant has the burden of proof at steps one through four, and the Commissioner has the burden of proof at step five.
Bustamante, 262 F.3d at 953-54. Additionally, the ALJ has an affirmative duty to assist the claimant in developing the record at every step of the inquiry. Id. at 954. If, at step four, the claimant meets her burden of establishing an inability to perform past work, the Commissioner must show that the claimant can perform some other work that exists in " significant numbers" in the national economy, taking into account the claimant's residual functional capacity (" RFC"), age, education, and work experience.
Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 721; 20 C.F.R. § § 404.1520(g)(1), 416.920(g)(1).
THE ALJ'S DECISION
A. Step One
At step one, the ALJ found Plaintiff " did not engage in substantial gainful activity during the period from her alleged onset date of December 20, 2006 through her date last insured of December 31, 2011." AR at 12 (citations omitted).
B. Step Two
At step two, the ALJ found: " Through the date last insured, the claimant had the following severe impairments: mild degenerative disc disease at L5-S1, cervical multilevel degenerative disc disease, and fibromyalgia." Id. (citations omitted). The ALJ found Plaintiff's alleged mental impairments non-severe. Id. at 12-13.
C. Step Three
At step three, the ALJ found: " Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1." Id. at 13 (citations omitted).
D. RFC Determination
The ALJ stated: " After careful consideration of the entire record, I find that, through the date last insured, the claimant had the residual functional capacity to perform medium work as defined in 20 C.F.R. 404.1567(c) except that the claimant could perform postural activities occasionally, could perform overhead reaching occasionally, could not climb ladders, ropes or scaffolds, and could not work around heights or hazards." Id. at 13.
In reaching this RFC determination, the ALJ found " not credible" Plaintiff's claim " that she could not work due to neck pain, shoulder pain, back pain, and sciatic pain." Id. at 14; see also id. (" [T]he claimant's statements concerning the intensity, persistence and limiting effects of [her] symptoms are not credible to the extent they are inconsistent with the above residual functional capacity assessment."). The ALJ summarized the reasons for his credibility finding as follows:
The claimant's credibility is at variance with the weight of the evidence. First, two consultative examiners examined the claimant and found only minimal clinical findings (Exhibit 5F, 10F). Based on objective testing and examination, they both opined that the claimant could perform a range of medium work. Second, the objective medical evidence does not substantiate the claimant's allegations of debilitating pain (Exhibit 1F/13-16, 3F/12, 3F/53-54, 3F/66). Third, the claimant's reported pain levels were not consistent with her allegations of disabling pain. In October 2006, the claimant's pain level in the neck was 4-5/10, in the mid back was 5/10, and in the low back was 5/10 (Exhibit 1F/16). Fourth, there is a significant gap in treatment of approximately more than two years from October 2009 to September 2011. The lack of any treatment does not suggest that the claimant was experiencing unrelenting pain. Moreover, the claimant's condition was characterized as mild spondylosis, which does not substantiate the claimant's various complaints of incapacitating pain (Exhibit 3F/12). Additionally, the claimant's testimony that she needed a cane is controverted by Dr. Maze's observations (Exhibit 10F) and Dr. Bouz's observations (Exhibit 5F). Her activities of daily living are also fairly normal (Exhibit 5E). There is no evidence that the claimant requires in-home support services because of her alleged conditions. Although she stated that she had no income, she did not try to seek free medical care. Based on the above factors, the claimant's subjective complaints are not fully plausible.
Id. at 16-17.
In addition, the ALJ gave " little weight" to the statements by Plaintiff's " relatives, co-workers, [and] acquaintances." Id. at 17. The ALJ explained:
First and foremost, these statements are given little weight because they are directly contradicted by the objective medical evidence (Exhibit 3F/12, 5F, 10F). These statements conflict with and fail to overcome the probative effect of the medical evidence in this case. Moreover, these third parties can only report their observations of the claimant, which might not be reflective of the claimant's maximal capacities. Furthermore, these third parties seem to accept and rely on the claimant's complaints. However, as stated above, the claimant is not fully credible.
Id. at 17.
After reviewing Plaintiff's medical history, the ALJ " generally adopt[ed]" the opinions of Dr. Montoya, Dr. Bouz, and Dr. Maze. Id. at 16. The ALJ stated: " All three doctors opined that the claimant could perform a range of medium work. There is no contrary opinion evidence in the record." Id.
E. Step Four
At step four, the ALJ stated: " Through the date last insured, the claimant was capable of performing past relevant work as an accounts payable/receivable clerk and an accounts payable/receivable supervisor." Id. at 17.
F. Step Five
The ALJ did not analyze step five.
Plaintiff asserts nine claims, reproduced verbatim as follows:
1. " Evidence does not support ALJ's attack of Plaintiff's credibility." JS at 3.
2. " Objective findings support subjective complaints for disorders of back. These findings do not support the ALJ's unfavorable decision: ankylosing spondylitis." Id. at 10.
3. " Objective findings support subjective complaints for disorders of back. Was treatment sought out for the musculoskeletal condition?"  Id. at 13.
4. " Objective findings support subjective complaints for disorders of back. These findings do not support the ALJ's unfavorable decision: fibromyalgia." Id. at 15.
5. " Objective findings support subjective complaints for disorders of back. Sciatica was diagnosed." Id. at 16.
6. " Objective findings support subjective complaints for disorders of back. These findings do not support the ALJ's unfavorable decision: objective findings are supporting components underlying medical diagnoses and subjective complaints." Id. at 17.
7. " There was no medical expert at the hearing." Id. at 19.
8. " Non-treating physicians were given disproportionate weight." Id. at 21.
9. " ALJ did not provide a full range of hypotheticals." Id. at 23.
STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. This Court " may set aside a denial of benefits if it is not supported by substantial evidence or it is based on legal error." Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001) (citation and internal quotation marks omitted).
" Substantial evidence" is evidence a reasonable person might accept as adequate to support a conclusion. Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It is more than a scintilla but less than a preponderance. Id. To determine whether substantial evidence supports a finding, the reviewing court " must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); see also Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (stating that a reviewing court " may not affirm simply by isolating a specific quantum of supporting evidence") (citations and internal quotation marks omitted). " If the evidence can reasonably support either affirming or reversing, " the reviewing court " may not substitute its judgment" for that of the Commissioner.
Reddick, 157 F.3d at 720-21; see also Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (" Even when the evidence is susceptible to more than one rational interpretation, we must uphold the ALJ's findings if they are supported by inferences reasonably drawn from the record.").
The Court may review only the reasons stated by the ALJ in his decision " and may not affirm the ALJ on a ground upon which he did not rely." Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). If the ALJ erred, the error may only be considered harmless if it is " clear from the record" that the error was " inconsequential to the ultimate nondisability determination."
Robbins, 466 F.3d at 885 (citation and internal quotation marks omitted).
A. The ALJ's Credibility Determination Was Not Erroneous.
Plaintiff challenges the ALJ's determination that Plaintiff " is not fully credible." AR at 17. Plaintiff argues this determination is contradicted by (1) Plaintiff's " work record from 1987 to 2006"; (2) Plaintiff's manager's statement that she was " a very good worker"; (3) the letters by various third parties who " have clearly witnessed [Plaintiff's] pain and deterioration"; and (4) a consultative examiner's finding that Plaintiff was " fairly credible." JS at 3-4 (citations omitted).
2. Legal Standard
" In assessing the credibility of a claimant's testimony regarding subjective pain or the intensity of symptoms, the ALJ engages in a two-step analysis." Molina, 674 F.3d at 1112 (citation omitted). " First, the ALJ must determine whether there is objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged." Id. (citations and internal quotation marks omitted). " If the claimant has presented such evidence, and there is no evidence of malingering, then the ALJ must give specific, clear, and convincing reasons in order to reject the claimant's testimony about the severity of the symptoms." Id. (citations and internal quotation marks omitted). " At the same time, the ALJ is not required to believe every allegation of disabling pain, or else disability benefits would be available for the asking . . . ." Id. (citations and internal quotation marks omitted).
" In evaluating the claimant's testimony, the ALJ may use ordinary techniques of credibility evaluation." Id. (citations and internal quotation marks omitted). " For instance, the ALJ may consider inconsistencies either in the claimant's testimony or between the testimony and the claimant's conduct; unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and whether the claimant engages in daily activities consistent with the alleged symptoms . . . ." Id. (citations and internal quotation marks omitted). " While a claimant need not vegetate in a dark room in order to be eligible for benefits, the ALJ may discredit a claimant's testimony when the claimant reports participation in everyday activities indicating capacities that are transferable to a work setting . . . ." Id. (citations and internal quotation marks omitted). " Even where those activities 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." Id. (citations and internal quotation marks omitted).
" When evidence reasonably supports either confirming or reversing the ALJ's decision, we may not substitute our judgment for that of the ALJ."
Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014) (citation and internal quotation marks omitted). Even if " the ALJ erred in relying on one of several reasons in support of an adverse credibility determination, " the error is considered harmless if " the ALJ's remaining reasoning and ultimate credibility determination were adequately supported by substantial evidence in the record." Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (citation and emphasis omitted). " So long as there remains substantial evidence supporting the ALJ's conclusions on credibility and the error does not negate the validity of the ALJ's ultimate credibility conclusion, such is deemed harmless and does not warrant reversal." Id. (citations, internal quotation marks, and alterations omitted);
see also id. at 1163 (" Here, the ALJ's decision finding [the claimant] less than fully credible is valid, despite the [ALJ's] errors . . . .").
The ALJ gave " specific, clear, and convincing reasons" for rejecting Plaintiff's claim that she cannot work.
Molina, 674 F.3d at 1112. After a thorough review of the record, the ALJ concluded Plaintiff's claim of total disability since December 2006 was not fully credible. See AR at 14-17. In support of this finding, the ALJ cited, inter alia, Dr. Bouz's and Dr. Maze's opinions that Plaintiff could perform a range of medium work; the lack of objective medical evidence to substantiate Plaintiff's allegations of debilitating pain; Plaintiff's relatively low reported pain levels in October 2006, approximately two months before she was let go from her last job; the gap in Plaintiff's treatment from October 2009 to September 2011; Dr. Betts's characterization of Plaintiff's spondylitis as " mild"; and Plaintiff's activities of daily living. See supra Section IV.D. The ALJ also noted that both Dr. Bouz and Dr. Maze " controverted" Plaintiff's testimony that she could not walk without a cane. Id.; compare AR at 41 (Plaintiff's testimony) with AR at 481, 509 (doctors' statements that Plaintiff did not have an assistive device and could " walk in a stable manner").
Each of the ALJ's considerations was valid. See, e.g., Molina, 674 F.3d at 1112 (" [T]he ALJ may consider inconsistencies either in the claimant's testimony or between the testimony and the claimant's conduct; unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and whether the claimant engages in daily activities consistent with the alleged symptoms."); Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999) (" None of the [claimant's] treating or examining physicians ever indicated that [he] was disabled"). Even assuming one of the considerations was invalid, the ALJ's ultimate credibility finding was supported by substantial evidence.
See Carmickle, 533 F.3d at 1162-63.
Plaintiff does not specifically challenge any of the ALJ's considerations. Rather, to contest the ALJ's ultimate credibility finding, Plaintiff cites various portions of the record that support her case, including the third-party statements submitted on Plaintiff's behalf, a consultative examiner's opinion that Plaintiff was " fairly credible, " and Plaintiff's work record. JS at 3-4. However, the ALJ correctly found that the third-party statements " conflict with and fail to overcome the probative effect of the medical evidence in this case." AR at 17. Moreover, the examiner's opinion that Plaintiff was " fairly credible" does not contradict the ALJ's finding that Plaintiff was not " fully credible." Id. As for Plaintiff's work record, at most that factor shows the evidence " reasonably supports either confirming or reversing the ALJ's decision, " in which case the decision must be affirmed.
Ghanim, 763 F.3d at 1164.
B. The ALJ Did Not Err With Regard to Plaintiff's Alleged Ankylosing Spondylitis.
Plaintiff argues the ALJ erred when he " stated that plaintiff 'did not have the classic appearance of ankylosing spondylitis.'" JS at 10 (quoting AR at 14). Plaintiff has conveniently (and misleadingly) quoted only part of the ALJ's statement. The ALJ stated: " In December 2006, diagnostic imaging . . . did not have the classic appearance of ankylosing spondylitis (Exhibit 1F/7-8)." AR at 14. The ALJ's statement was completely accurate: Plaintiff's December 2006 medical report states verbatim there was no " classic appearance of ankylosing spondylitis." Id. at 261. Thus, the ALJ did not err.
C. The ALJ Adequately Considered Plaintiff's Medical Treatment.
Plaintiff appears to argue that the ALJ failed to consider her back surgery in 2000, her treatment for depression, and her epidural injection treatment. See JS at 14. In fact, the ALJ was aware of and mentioned all of those factors. See AR at 13 (noting Plaintiff's mental health treatment); id. at 14 (noting Plaintiff's back surgery); id. at 15 (noting Plaintiff's epidural injection treatment). Thus, the ALJ did not err.
D. The ALJ Adequately Considered Plaintiff's Diagnosis of Fibromyalgia.
Plaintiff argues her fibromyalgia diagnosis provides " evidence that underlies the plaintiff's complaints of pain." JS at 15. This argument does not contradict the ALJ's analysis. At step two, the ALJ found Plaintiff's fibromyalgia to be a severe impairment. AR at 12. Then, in assessing Plaintiff's RFC, the ALJ found Plaintiff's impairments could " cause [Plaintiff's] alleged symptoms." Id. at 14. However, as already discussed, the ALJ found Plaintiff's alleged symptoms not fully credible. See supra Section VII.A. To the extent Plaintiff argues her fibromyalgia diagnosis invalidates the ALJ's credibility determination, that argument is without merit. See id.
E. The ALJ Did Not Err with Respect to Plaintiff's Sciatica.
Plaintiff's entire argument in her fifth claim is: " The sciatica, combined with the AS and fibromyalgia[, ] cannot be accommodated by limiting plaintiff to medium work." JS at 17. Plaintiff does not bother to explain how her sciatica conflicts with the ALJ's assessment that she can perform medium work. As the Agency notes, Plaintiff has " point[ed] out no discernible error." Id. at 16.
Out of an abundance of caution, the Court has reviewed the ALJ's opinion for any error with respect to Plaintiff's sciatica, and has failed to detect any. The ALJ twice noted Plaintiff's diagnosis with sciatica, and classified her degenerative disc diseases - which cause sciatica -- as severe impairments. AR at 12, 16; see also Cleveland Clinic, " What is Sciatica?, " http://my.clevelandclinic.org/health/diseases_conditions/hic_What_is_Sciatica. Thus, the ALJ did not err.
F. Plaintiff's Sixth Claim Raises No Discernible Error.
Plaintiff's sixth claim reads as follows: " Objective findings support subjective complaints for disorders of back. These findings do not support the ALJ's unfavorable decision: objective findings are supporting components underlying medical diagnoses and subjective complaints." Id. at 17. Plaintiff cites a number of tests and diagnoses she received, then states: " Any nexus among these tests, diagnostic and clinic treatment and the subjective suffering of plaintiff was not considered to the extent it warranted both by the ALJ and in appropriate hypotheticals presented to the vocational expert." Id. at 18.
Plaintiff's claim is unclear. Once again, the Agency states " Plaintiff points to no discernible error." Id. To the extent Plaintiff argues certain evidence invalidates the ALJ's credibility finding, that argument is without merit. See supra Section VII.A. To the extent Plaintiff argues the ALJ presented an incomplete hypothetical question to the vocational expert, Plaintiff fails to explain how the question was incomplete. Moreover, Plaintiff's hearing attorney did not object to the ALJ's hypothetical question, and did not take the opportunity she was given to ask the vocational expert any hypothetical questions. See Solorzano v. Astrue, No. 5: 11-cv-369-PJW, 2012 WL 84527, at *6 (C.D. Cal. 2012) (" Counsel are not supposed to be potted plants at administrative hearings. They have an obligation to take an active role and to raise issues that may impact the ALJ's decision while the hearing is proceeding so that they can be addressed."). Thus, whatever Plaintiff's argument may be, it is meritless.
G. The ALJ Did Not Err by Not Having a Medical Expert at the Hearing.
Plaintiff argues the ALJ erred because " he did not have a medical expert" at the hearing. JS at 19. An ALJ is only required to call a medical expert if the record is unclear regarding an issue with which the expert could provide assistance. See Armstrong v. Comm'r of Soc. Sec. Admin., 160 F.3d 587, 589 (9th Cir. 1998). Here, Plaintiff does not specify what, if anything, was unclear in the record. Rather, Plaintiff argues the ALJ could not possibly have understood Plaintiff's " esoteric lab work" or other " medical information." JS at 20-21. This argument is vague and unpersuasive. Thus, the ALJ did not err.
H. The ALJ Did Not Give Disproportionate Weight to Non-Treating Sources.
Plaintiff argues the ALJ gave disproportionate weight to the opinions of Dr. Bouz, Dr. Maze, and Dr. Montoya, all of whom concluded Plaintiff could perform a range of medium work. JS at 21. Plaintiff argues the ALJ should have " favor[ed]" the opinions of Plaintiff's treating physicians over the opinions of Drs. Bouz, Maze, and Montoya. Id. However, Plaintiff does not cite any contrary opinion from treating physicians that the ALJ should have " favor[ed]." Indeed, Plaintiff acknowledges her treating physicians provided no opinion on " whether [she] could work." Id. Thus, there was no treating physician opinion for the ALJ to " favor, " and he did not err by relying on the opinions of Drs. Bouz, Maze, and Montoya.
I. The ALJ Did Not Err in Presenting Hypothetical Questions to the Vocational Expert.
Plaintiff argues the ALJ erred in presenting hypothetical questions to the vocational expert. Id. at 23. Plaintiff argues the ALJ ignored " a substantial body of medical evidence that supports a broader range of hypotheticals." Id. at 24. Plaintiff states the ALJ should have presented " a hypothetical considering pain and its limiting of ability to work and the percentage of time the pain kept plaintiff from working." Id. at 23.
As already stated, Plaintiff's hearing attorney did not object to the ALJ's hypothetical question, or take the opportunity she was given to ask the vocational expert any hypothetical questions. See supra Section VII.F. In addition, Plaintiff does not cite any evidence in the record that demonstrates the specific percentage of time her pain would keep her from working. Thus, even if the ALJ or Plaintiff's hearing attorney had asked the proposed hypothetical, it is not clear what " percentage" they would have presented to the vocational expert. Plaintiff's argument is vague and unsubstantiated. The ALJ's hypothetical question to the vocational expert was not erroneous.
IT IS THEREFORE ORDERED that judgment be entered AFFIRMING the decision of the Commissioner.
Pursuant to sentence four of 42 U.S.C. § 405(g), IT IS ADJUDGED that the decision of the Commissioner of the Social Security Administration is AFFIRMED.