United States District Court, C.D. California, Southern Division
MEMORANDUM OF DECISION
J. WISTRICH UNITED STATES MAGISTRATE JUDGE.
seeks reversal of the decision of defendant, the Commissioner
of the Social Security Administration (the
“Commissioner”), denying plaintiff's
applications for disability insurance benefits and
supplemental security income benefits. The parties have filed
a Joint Stipulation (“JS”) setting forth their
contentions with respect to each disputed issue.
procedural facts are summarized in the Joint Stipulation.
[See JS 2]. In a June 2, 2014 written hearing
decision that constitutes defendant's final decision, the
Administrative Law Judge (“ALJ”) found that
plaintiff retained the residual functional capacity
(“RFC”) to perform a restricted range of light
work. The ALJ determined that plaintiff could not perform his
past relevant work, but that he could perform alternative
jobs available in significant numbers in the local and
national economy. [Administrative Record (“AR”)
47-48]. Accordingly, the ALJ found that plaintiff was not
disabled at any time from March 1, 2011, his alleged onset
date, through the date of the ALJ's decision. [AR 49].
Commissioner's denial of benefits should be disturbed
only if it is not supported by substantial evidence or is
based on legal error. Brown-Hunter v. Colvin, 806
F.3d 487, 492 (9th Cir. 2015); Thomas v. Barnhart,
278 F.3d 947, 954 (9th Cir. 2002). “Substantial
evidence” means “more than a mere scintilla, but
less than a preponderance.” Bayliss v.
Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005)
(quoting Tidwell v. Apfel, 161 F.3d 599, 601 (9th
Cir. 1999)). “It is such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Burch v. Barnhart, 400 F.3d 676,
679 (9th Cir. 2005) (internal quotation marks omitted). The
court is required to review the record as a whole and to
consider evidence detracting from the decision as well as
evidence supporting the decision. Robbins v. Social Sec.
Admin, 466 F.3d 880, 882 (9th Cir. 2006); Verduzco
v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999).
“Where the evidence is susceptible to more than one
rational interpretation, one of which supports the ALJ's
decision, the ALJ's conclusion must be upheld.”
Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir.
2002) (citing Morgan v. Comm'r of Soc. Sec.
Admin., 169 F.3d 595, 599 (9th Cir. 1999)).
contends that the ALJ made an inadequately supported negative
credibility finding. [JS 3-7].
disability claimant produces evidence of an underlying
physical or mental impairment that is reasonably likely to be
the source of his or her subjective symptoms, the adjudicator
is required to consider all subjective testimony as to the
severity of the symptoms. Moisa v. Barnhart, 367
F.3d 882, 885 (9th Cir. 2004); Bunnell v. Sullivan,
947 F.2d 341, 345 (9th Cir. 1991) (en banc); see
also 20 C.F.R. §§ 404.1529(a), 416.929(a)
(explaining how pain and other symptoms are evaluated).
Absent affirmative evidence of malingering, the ALJ must then
provide specific, clear, and convincing reasons for rejecting
a claimant's subjective complaints. Treichler v.
Comm'r, Soc. Sec. Admin., 775 F.3d 1090, 1102
(9thCir. 2014); Vasquez v. Astrue, 547 F.3d 1101,
1105 (9th Cir. 2008); Carmickle v. Comm'r, Soc. Sec.
Admin., 533 F.3d 1155, 1160-1161 (9th Cir. 2008).
“In reaching a credibility determination, an ALJ may
weigh inconsistencies between the claimant's testimony
and his or her conduct, daily activities, and work record,
among other factors.” Bray v. Comm'r of Soc.
Sec. Admin., 554 F.3d 1219, 1221, 1227 (9th Cir. 2009)
(enumerating the factors that bear on the credibility of
subjective complaints); Fair v. Bowen, 885 F.2d 597,
604 n.5 (9th Cir. 1989) (same). The ALJ's credibility
findings “must be sufficiently specific to allow a
reviewing court to conclude the ALJ rejected the
claimant's testimony on permissible grounds and did not
arbitrarily discredit the claimant's testimony.”
Moisa, 367 F.3d at 885. If the ALJ's
interpretation of the claimant's testimony is
“reasonable” and “is supported by
substantial evidence, ” it it not the Court's role
“to second-guess it, ” even if the ALJ's
interpretation is not “the only reasonable one.”
Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir.
discussed plaintiff's subjective complaints, including
his hearing testimony and his self-prepared function reports,
and articulated specific, clear, and convincing reasons based
on substantial evidence for finding those complaints less
than fully credible. Plaintiff testified that he injured his
back in 2010. [AR 61]. He had surgery on his spine and his
right knee in 2011. [AR 45]. Plaintiff also reported that he
had shoulder surgery around 2008. [AR 65]. He said that he
cannot sit longer than 45 minutes and cannot stand longer
than an hour without experiencing low back pain. [AR 67-68].
He stated that he once was able to walk ten miles a day and
now can walk about one mile, or for an hour at a time, before
his knee hurts and he has to rest. [AR 70, 278]. He also
indicated that he has numbness in his left arm and hand. [AR
68]. He claimed that he cannot lift weight over ten pounds.
[AR 66]. Plaintiff has “terrible problems
sleeping” and cannot sleep through the night. [AR 69].
He also has numbness in his toes and feet. [AR 69].
found plaintiff's subjective testimony about his symptoms
and pain less than fully credible. She concluded that
plaintiff's allegations of totally disabling back and
knee pain and numbness in his extremities were not
substantiated by the objective medical evidence and by the
evidence documenting plaintiff's response to treatment.
[AR 45]. The ALJ reviewed the records from Orthopaedic
Specialty Group, where plaintiff received treatment from his
treating orthopedist, Jack Chen, M.D., and from Dr.
Chen's certified physician's assistant, Mykeisha Q.
Alzaatra, PA-C. [See AR 350-378]. Plaintiff
underwent a discectomy and fusion of the surgical spine in
July 2011. [AR 25, 377-378]. During follow-up visits later
that month, plaintiff denied pain or discomfort other than
tightness in his neck. He reported significant improvement
after surgery and exhibited good range of movement in his
neck. [AR 45, 360-361]. An October 2011 x-ray indicated that
plaintiff's cervical spine was “fusing well from C5
to C6.” [AR 359]. Plaintiff underwent a right total
knee replacement in October 2011. [AR 379-404]. There is no
evidence of any surgical complications or post-surgical
problems. During a February 2012 follow-up visit with PA
Alzaatra, plaintiff complained of slight tightness and
soreness on the left side of his neck and occasional numbness
and tingling in his four left fingertips, but he displayed
full strength in his upper extremities bilaterally and normal
range of motion. [AR 45, 357]. Plaintiff was prescribed
ibuprofen, a muscle relaxant, and a medicated patch for pain.
[AR 357]. In April 2012, plaintiff reported that his pain had
improved, but that he had left hand and wrist numbness that
occurred more frequently in the morning and lasted about an
hour. [AR 45, 356].
next treatment reports in the record are dated May 2013 and
July 2013. [AR 414-415]. Plaintiff presented to Lestonnac
Free Clinic in May 2013 with a five- to six-week history of
low back pain. [AR 415]. The clinic note states that
plaintiff had walked two miles to the clinic. Plaintiff was
diagnosed with low back strain and hypertension. Plaintiff
was prescribed a muscle relaxant, and naprosyn, a
nonsteroidal anti-inflammatory medication. He was advised to
lose weight, eat a low-sodium diet, and increase his intake
of fruits and vegetables. Plaintiff returned to the clinic in
July 2013 complaining of severe lower back pain. No physical
examination findings were recorded. His diagnoses were spinal
stenosis with severe degenerative disc disease. [AR 45,
414-415]. The ALJ permissibly relied on the absence of
objective evidence corroborating the alleged severity of
plaintiff's subjective complaints as one factor
supporting her credibility finding. See Bunnell, 947
F.2d at 343 (stating that the absence of medical findings
corroborating the alleged severity of a claimant's
subjective complaints is a permissible consideration but
“is just one factor to be considered in evaluating the
credibility of the testimony and complaints).
also was permitted to factor into her credibility assessment
the testimony of the medical expert, who reviewed
plaintiff's medical records and opined that although
plaintiff “has trouble with his spine and his right
knee, ” he could perform a restricted range of light
work. [AR 46, 63-64]. See Light v. Social
Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997) (stating
that in assessing the credibility of a claimant's
“excess pain” complaints, the ALJ may consider
testimony from physicians concerning the nature, severity,
and effect of the claimant's symptoms). In addition, the
ALJ pointed to the paucity of treatment records post-dating
plaintiff's last surgical follow-up visit in April 2012.
[AR 45]. There was a gap of more than a year between that
date and his next treatment visits in May 2013 and July 2013,
when plaintiff sought help for a relatively short history of
lower back pain. There was no evidence of treatment after
July 2013. Plaintiff testified that he did not have insurance
or money to pay for additional treatment, and that he had
been unable to afford the medication prescribed for his lower
back pain in May 2013. [AR 70-71]. However, he also testified
that “[n]obody told me to do any treatment”
beyond the treatment documented in the record, and that he
was not taking even over-the-counter medication. [AR 71-72].
Plaintiff explained that he did not take “[a] lot of
over-the-counter medication or even . . . prescription[s]
because I just don't like them. I don't like the way
they make me feel.” [AR 71, 73]. Viewing the record as
a whole, ...