Opinion

Arestakes Timourian v. Commissioner of Social Security

Court: District Court, C.D. California
Filed: Feb 12, 2020
Cited by: 0 cases
Authority: More cited than 17.9%

an ALJ may properly rely on the fact that 6 prescribed conservative treatment suggests a lower level of both pain 7 and functional limitation

How later courts described this case

an ALJ may properly rely on the fact that 6 prescribed conservative treatment suggests a lower level of both pain 7 and functional limitation
“While 8 subjective pain testimony cannot be rejected on the sole ground that it 9 is not fully corroborated by objective medical evidence, the medical 10 evidence is still a relevant factor in determining the severity of the 11 claimant’s pain and its disabling effects.”
“We review only the reasons provided by 26 the ALJ in the disability determination and may not affirm the ALJ on a ground upon which he did not rely.”
“An ALJ is 26 required to recontact a doctor only if the doctor’s report is ambiguous 27 28 9 See note 7. 16 1 or insufficient for the ALJ to make a disability 2 determination.”

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA-WESTERN DIVISION

ARESTAKES TIMOURIAN, ) Case No. CV 19-01915-AS

13 )

Plaintiff, ) MEMORANDUM OPINION AND ORDER

14 )

v. )

15 )

ANDREW M. SAUL, Commissioner )

16 of Social Security, )

)

17 Defendant. )

)

PROCEEDINGS

On March 15, 2019, Plaintiff filed a Complaint seeking review of

the denial of his application for Supplemental Security Income. (Docket

Entry No. 1). The parties have consented to proceed before the

undersigned United States Magistrate Judge. (Docket Entry Nos. 13, 15).

On August 27, 2019, Defendant filed an Answer along with the

Administrative Record (“AR”). (Docket Entry Nos. 18-19). On November

22, 2019, the parties filed a Joint Stipulation (“Joint Stip.”) setting

forth their respective positions regarding Plaintiff’s claims. (Docket

1 Entry No. 20).

BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

5 On November 30, 2014, Plaintiff, formerly employed as a warehouse

6 supervisor for a marble and granite company (see AR 183-84, 647-49),

7 filed an application for Supplemental Security Income, alleging a

8 disability since April 19, 2013. (See AR 24, 115-21). Plaintiff’s

9 application was denied initially on June 17, 2015, and on

10 reconsideration on September 18, 2015. (See AR 53-63A, 77-81).

12 On January 5, 2018, the Administrative Law Judge (“ALJ”), Ken Chau,

13 heard testimony from Plaintiff, who was assisted by an Armenian

14 interpreter and represented by counsel, and vocational expert Gregory

15 Jones. (See AR 644-59). On February 7, 2018, the ALJ issued a decision

16 denying Plaintiff’s application. (See AR 14-27). Applying the five-

17 step sequential process,1 the ALJ found at step one that Plaintiff had

18 not engaged in substantial gainful activity since November 30, 2014.

19 (AR 17). At step two, the ALJ determined that Plaintiff had the severe

20 impairment of degenerative disc disease of the lumbar spine. (AR 17-

21 18).2 At step three, the ALJ determined that Plaintiff did not have an

22 impairment or combination of impairments that met or equaled the

23 severity of one of the listed impairments. (AR 21-22).

25 1 The ALJ initially found that a material change of circumstance

(a change in Plaintiff’s severe medically determinable impairments)

26 overcame the presumption of non-disability arising from the previous

decision of an Administrative Law Judge. (See AR 14-15).

2 The ALJ found that Plaintiff’s other impairments –- benign

28 prostatic hyperplasia without lower urinary tract symptoms; malignant

neoplasm of prostate, status post prostate surgery; hypertension;

hyperlipedia; insomnia; obesity; and generalized anxiety disorder –-

were non-severe. (AR 18-21).

1 The ALJ then assessed Plaintiff’s residual functional capacity

2 (“RFC”)3 and concluded that Plaintiff could perform the full range of

3 medium work.4 (AR 22-26).

5 At step four, the ALJ determined that Plaintiff was able to perform

6 past relevant work as a warehouse supervisor as generally performed (AR

7 26), and therefore found that Plaintiff was not disabled within the

8 meaning of the Social Security Act. (AR 27).

10 The Appeals Council denied Plaintiff’s request for review on

11 January 9, 2019. (See AR 7-10). Plaintiff now seeks judicial review of

12 the ALJ’s decision, which stands as the final decision of the

13 Commissioner. See 42 U.S.C. §§ 405(g), 1383(c).

STANDARD OF REVIEW

This Court reviews the Commissioner’s decision to determine if it

is free of legal error and supported by substantial evidence. See

Brewes v. Comm’r, 682 F.3d 1157, 1161 (9th Cir. 2012). “Substantial

evidence” is “more than a mere scintilla, but less than a

preponderance[.]” Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir.

2014)(citation omitted). To determine whether substantial evidence

supports a finding, “a court must consider the record as a whole,

3 A Residual Functional Capacity is what a claimant can still do

26 despite existing exertional and nonexertional limitations. See 20

C.F.R. § 416.945(a)(1).

4 “Medium work involves lifting no more than 50 pounds at a time

28 with frequent lifting or carrying of objects weighing up to 25 pounds.”

20 C.F.R. § 416.967(c).

1 weighing both evidence that supports and evidence that detracts from the

[Commissioner’s] conclusion[.]” Id. at 1009-10 (citations and quotation

marks omitted). As a result, “[w]here the evidence can support either

affirming or reversing [the ALJ’s] decision, [a court] may not

substitute [its] judgment for that of the [ALJ].” Id. at 1010 (citation

omitted).5

PLAINTIFF’S CONTENTIONS

Plaintiff alleges that the ALJ erred in (1) rejecting the opinions

of Plaintiff’s treating physician; (2) evaluating Plaintiff’s mental

impairment; and (3) discrediting Plaintiff’s subjective symptom

testimony. (See Joint Stip. at 3-7, 11-16, 19-23, 28-30).

DISCUSSION

After consideration of the record as a whole, the Court finds that

the Commissioner’s findings are supported by substantial evidence and

are free from legal error.

A. The ALJ Properly Assessed the Opinions of Plaintiff’s Treating

Physician, Noobar Janoian, M.D.

Plaintiff asserts that the ALJ failed to properly reject the

opinion of Plaintiff’s treating physician, Dr. Janoian. (See Joint

5 The harmless error rule applies to the review of

27 administrative decisions regarding disability. See McLeod v. Astrue,

640 F.3d 881, 886-88 (9th Cir. 2011); Burch v. Barnhart, 400 F.3d 676,

28 679 (9th Cir. 2005)(An ALJ’s decision will not be reversed for errors

that are harmless).

1 Stip. at 2-7, 11-14).6 Defendant asserts that the ALJ properly

evaluated Dr. Janoian’s opinions. (See Joint Stip. at 7-11).

An ALJ must take into account all medical opinions of record. 20

C.F.R. § 416.927(b). “Generally, a treating physician’s opinion carries

more weight than an examining physician’s, and an examining physician’s

opinion carries more weight than a reviewing physician’s.” Holohan v.

Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); see also Lester v.

Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). The medical opinion of a

treating physician is given “controlling weight” so long as it “is well-

supported by medically acceptable clinical and laboratory diagnostic

techniques and is not inconsistent with the other substantial evidence

in [the claimant’s] case record.” 20 C.F.R. § 416.927(c)(2). “When a

treating doctor’s opinion is not controlling, it is weighted according

to factors such as the length of the treatment relationship and the

frequency of examination, the nature and extent of the treatment

relationship, supportability, and consistency of the record.” Revels

v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017); see also 20 C.F.R. §

416.927(c)(2)-(6).

If a treating or examining doctor’s opinion is not contradicted by

another doctor, the ALJ can reject the opinion only for “clear and

convincing reasons.” Carmickle v. Commissioner, 533 F.3d 1155, 1164

(9th Cir. 2008); Lester v. Chater, 81 F.3d at 830 (9th Cir. 1995). If

the treating or examining doctor’s opinion is contradicted by another

6 Plaintiff does not challenge the ALJ’s rejection of the

28 opinions of another treating physician, Karine Gaboian, M.D. (see AR 25,

316-19).

1 doctor, the ALJ must provide “specific and legitimate reasons” for

rejecting the opinion. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir.

2007); Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998); Lester,

supra. “The ALJ can meet this burden by setting out a detailed and

thorough summary of the facts and conflicting clinical evidence, stating

his interpretation thereof, and making findings.” Trevizo v. Berryhill,

871 F.3d 664, 675 (9th Cir. 2017)(citation omitted). Finally, when

weighing conflicting medical opinions, an ALJ may reject an opinion that

is conclusory, brief, and unsupported by clinical findings. Bayliss v.

Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2015); Tonapetyan v. Halter, 242

F.3d 1144, 1149 (9th Cir. 2001).

Physicians at All for Health, Health for All, including Noobar

Janoian, M.D., treated Plaintiff from July 10, 2013 to October 10, 2017.

While Leonardo Garduno, M.D., was Plaintiff’s primary care provider, Dr.

Janoian personally treated Plaintiff on four occasions (November 22,

2013, February 7, 2014, March 13, 2014, April 3, 2014). (See AR 320-58,

362-486, 508-92).

Dr. Janoian provided the following information in a Physical

Residual Functional Capacity Questionnaire dated October 25, 2017 (see

AR 594-97): Dr. Janoian diagnosed Plaintiff with low back pain,

sacroiliitis, generalized anxiety disorder, hypertension, insomnia and

disorder of the prostate, gave Plaintiff a “very guarded” prognosis, and

listed Plaintiff’s symptoms as pain, stiffness, fatigue and anxiety.

(AR 594). Dr. Janoian identified the clinical findings and objective

signs of his findings as tenderness to palpation over paravertebral

28 lumbar muscles and degenerative disc disease of the lumbar spine and

1 stated that Plaintiff reported that the side effects of medications were

drowsiness, malaise and fatigue. (Id.). Dr. Janoian found, inter alia,

the following: Plaintiff’s impairments lasted or could be expected to

last at least 12 months; in an 8-hour workday, Plaintiff can lift and/or

carry less than 10 pounds frequently, can lift and/or carry 20 pounds

occasionally (less than 1/3 of the workday), and can never lift 50

pounds; Plaintiff can stand and/or walk (without an assistive device)

about 6 hours in an 8-hour workday; Plaintiff can sit less than 6 hours

in an 8-hour workday; Plaintiff requires a job that permits shifting

positions at will from sitting, standing or walking; Plaintiff would

need to take unscheduled breaks every 30 minutes for 15 to 20 minutes;

Plaintiff’s abilities to push and/or pull are limited in the upper and

lower extremities; Plaintiff can occasionally bend, climb, crouch,

balance, kneel and crawl; Plaintiff needs to avoid temperature extremes,

humidity/wetness and heights; and Plaintiff’s impairments would cause

Plaintiff to be absent from work an average of more than 3 times a

month. (AR 594-96).

In a letter dated October 25, 2017 (see AR 508-11), Dr. Janoian

listed the following objective findings: anxiety, moderate tenderness

and spasm over bilateral paravertebral lumbar muscles; forward flexion

(35 degrees), a positive straight leg test bilaterally, degenerative

changes in the lumbar spine and straightening of the lordotic curvature,

decreased range of motion, and marked degree of cognitive

disorganization and memory changes indicated in standardized memory

testing (MMSE: 21/30). (AR 510). Dr. Janoian found, inter alia, the

following: Plaintiff’s impairments will prevent him from “any normal

28 work activity where prolonged sitting, standing, bending or lifting is

1 required”; Plaintiff’s anxiety, depression, memory and concentration

2 deficit will interfere with his ability to interact with others and will

3 adversely affect his clear state of mind and decision-making ability;

4 and Plaintiff’s impairments will produce frequent “good” and “bad” days,

5 rendering him unable to maintain a regular work schedule. (AR 511).

7 The ALJ addressed Dr. Janoian’s opinions as follows:

9 I give this opinion [October 25, 2017 letter] no weight for

10 several reasons. First, the conclusions that the claimant is

11 unable to perform the listed exertional and postural

12 activities and cannot maintain a regular work schedule are

13 unsupported by the objective evidence of record showing only

14 mild findings. While Dr. Janoian relies on his “objective

15 findings” of positive straight leg testing and standardized

16 memory testing, these findings and his opinion are

17 inconsistent with the mild radiography and routine

18 longitudinal treatment records, as well as the invalidated

19 psychometric testing results noted by consultative examiner

20 Dr. Sharokhi (Exhibit 8F). Secondly, as noted in Finding #2

21 above, the claimant’s mental impairment is found to be non-

22 severe with only mild limitations in interacting with others

23 and in understanding, remembering, and applying information,

24 which were supported by the evidence as a whole. Dr.

25 Janoian’s opinion is not supported by his own occasional

26 treatment records, in which he noted normal mental status

27 examination findings; for example, in a March 2014 office

1 visit, he noted the claimant was “negative for psychiatric

symptoms” (Exhibit 12F/14).

I also give no weight to Dr. Janoian’s medical source

statement, dated October 25, 2017, in which he opined the

claimant can lift and carry 20 pounds occasionally and up to

10 pounds frequently; stand and/or walk for six hours in an

eight-hour day and sit for less than six hours in an eight-

hour day; needs to be able to shift positions at will every

1-2 hours for 15-20 minutes; can be expected to be absent

from work more than three times a month; is limited from

pushing and pulling with both upper and lower extremities;

can occasionally perform postural activities; and must avoid

temperature extremes, humidity/wetness and heights (Exhibit

21F). I give no weight to this opinion, as it is unsupported

by the evidence of record, which supports greater functional

abilities than stated.

(AR 25).

Since Dr. Janoian’s opinions were largely contradicted by the

opinions of other physicians, the ALJ was required to provide “specific

and legitimate” reasons for rejecting Dr. Janoian’s opinions. See

23 Trevizo, 871 F.3d at 675-76.7 The ALJ met this standard.

7 The September 16, 2015 opinion of State Agency physician, J.

25 Frankel, M.D. -- to which the ALJ gave “great weight” (AR 24) --

contradicted Dr. Janoian’s opinions, in that Dr. Frankel opined, inter

26 alia, that Plaintiff can lift and/or carry 25 pounds frequently and 50

pounds occasionally, can sit about 6 hours in an 8-hour workday, can

27 push and/or pull unlimited (other than shown for lift and/or carry), and

(continued...)

1 The ALJ properly determined that the objective medical evidence did

2 not support Dr. Janoian’s opinion that Plaintiff was unable to do work

3 involving prolonged sitting, standing, bending or lifting and was unable

4 to maintain a regular work schedule due to frequent “good” and “bad”

5 days. As the ALJ found, Dr. Janoian’s opinions were inconsistent with

6 the longitudinal treatment records concerning Plaintiff’s back issues

7 as well as Plaintiff’s mental health condition.

7 (...continued)

has no postural or environmental limitations. (See AR 487-92).

The June 10, 2015 opinion of State Agency physician, K. Quint

12 -- to which the ALJ gave “significant weight” (AR 24) –- contradicted

Dr. Janoian’s opinions, in that Dr. Quint opined that Plaintiff can lift

13 an/or carry 25 pounds frequently and 50 pounds occasionally, can sit

about 6 hours in an 8-hour workday, can push and/or pull unlimited

14 (other than shown for lift and/or carry), and has no postural and

environmental limitations. (See AR 53-55, 56-59).

The December 10, 2013 opinion of examining physician, Sophail

16 Afra, M.D. (internal medicine) -- to which the ALJ gave “partial

significant weight” (but less weight to the postural limitations) (AR

17 24) –- contradicted Dr. Janoian’s opinions, in that Dr. Afra opined that

Plaintiff can lift, carry, push and pull 25 pounds frequently and 50

18 pounds occasionally, can sit 6 hours out of an 8-hour day, can bend,

kneel, stoop, crawl and crouch occasionally, can climb ladders

19 occasionally, and has no environmental limitations. (See AR 308-14).

20 In his discussion of the “paragraph B” criteria for mental

functioning, the ALJ gave “significant weight” to the June 15, 2015

21 opinion of State Agency psychiatric consultant, Judith Levinson, Ph.D.

(AR 20-21) and “partial weight” to the September 17, 2015 opinion of

22 State Agency psychiatric consultant, Marina Vea, M.D. (AR 21), both of

whom contradicted Dr. Janoian’s opinion by opining that Plaintiff had

23 mild difficulties in maintaining social functioning. (See AR 55-56,

496-506).

Since Dr. Janoian’s opinion about Plaintiff’s need to shift

25 positions at will and need for unscheduled breaks, and that Plaintiff

would be absent from work were not contradicted by the opinions of other

26 physicians, the “clear and convincing” standard applies to these

findings. As set forth in this decision, the Court finds that the ALJ

27 met this standard in rejecting Dr. Janoian’s opinions in these areas.

1 Dr. Jonoian based his opinion on objective findings indicative of

2 back issues, such as “moderate tenderness and spasm over bilateral

3 paravertebral lumbar muscles”, forward flexion (35 degrees), and a

4 positive straight leg test bilaterally,8 “[d]egenerative changes of

5 lumbar spine and straightening of the lordotic curvature,” and decreased

6 range of motion. (AR 510). However, the majority of medical records

7 concerning treatment for Plaintiff’s back, including those Plaintiff

8 relies on (see Joint Stip. at 5), show only mild findings during

9 physical examinations. (See AR 355, 330 [July 10, 2013 and April 3,

10 2014: back stiffness and decreased range of motion], 327 [May 14, 2014:

11 “Lumbar spine - muscle spasm”], 397 [June 17, 2014: same], 373

12 [September 25, 2014: same]; 369 [October 23, 2014: same], 366 [November

13 20, 2014: same], 363 [December 23, 2014: same], 426 [January 22, 2015:

14 same], 466 [April 28, 2015: “Lumbar spine - muscle spasm, Range of

15 motion: mild pain w/ motion”], 471 [May 28, 2015: same] 477 [July 7,

16 2015: same], 480 [August 7, 2015: same], 580 [September 8, 2015: same

17 577 [January 13, 2016: same], 566 [May 19, 2016: same], 562 [June 30,

18 2016: “Lumbar spine - Range of motion: mildly reduced [Range of

19 Motion]”], 556 [August 9, 2016: “Lumbar spine - muscle spasm, Range of

20 motion: mild pain w/ motion”], 541 [November 15, 2016: same], and 515

21 [September 11, 2017: same); see also AR 349, 344 and 335 [September 19,

8 The “straight leg raise test” requires a medical practitioner

25 to raise a patient’s leg upward while the patient is lying down. The

test stretches the nerve root. The Merck Manual of Diagnosis and

26 Therapy, 1490 (17th Ed. 1999). “A positive Lasegue or straight leg

raising test (pain on straight leg raising) produces pain in the sciatic

27 nerve and is significant for compression of the L4-L5 or L5-S1 spinal

nerve roots.” Primero v. Astrue, 2013 WL 394883, *2 at n.6 (C.D. Cal.

28 Jan. 31, 2013)(citation omitted).

1 2013, October 24, 2013, and February 7, 2014: Plaintiff had no radicular

2 pain].

4 The December 10, 2013 report of consultative internal medicine

5 examiner, Sohail Afra, M.D., which the ALJ discussed (see AR 23), also

6 showed only mild findings. (See AR 311-12 [Cervical: “No muscular

7 tenderness noted paraspinal. Flexion (0º-45º), extension (0º-55º),

8 lateral bending (0º-40º), and rotation (0º-70º) are within normal

9 limits”; Dorsolumbar: “Moderate tenderness to palpation noted over the

10 paraspinal areas with mild paraspinal spasm noted on examination.

11 Flexion painful and decreased to about 40º (0º-90º), extension to 5º-10º

12 (0º-35º), and rotation 15º (Oº-30[º]); and Straight Leg Raising Test:

13 “Negative bilaterally (0º-90º)]).

15 Plaintiff contends that Dr. Jonoian’s opinions are supported by

16 old imaging records (see Joint Stip. at 5-6, 12), specifically citing

17 October 2008 CT scans of the lumbar spine (see AR 248, 250), and a July

18 2011 X-ray of the lumbar spine (see AR 251), but these records reflect

19 essentially mild findings that do not support Dr. Jonoian’s restrictive

20 opinions. In any event, the ALJ was entitled to rely on more recent

21 diagnostic imaging which reflect mild findings. (See AR 315 [April 2014

22 three views of lumbar spine, showing: “There is a straightening of the

23 lordotic curvature without evidence of subluxation. The vertebral body

24 height is within normal limits. There is moderate osteophyte formation

25 along the L3 and L4 vertebrae with minimal osteophyte formation along

26 the L5 and S1 vertebrae. There is mild narrowing of L3-L4 disc space

27 identified.”]).

1 Dr. Janoian listed standardized memory testing as indicative of a

2 more serious mental health issue. (AR 510 [“Standardized memory testing

3 reveals marked degree of cognitive disorganization and memory changes

4 (MMSE: 21/30).”]). However, the ALJ properly found that this finding

5 was undermined by the December 5, 2013 report of consultative

6 psychological examiner, Baniafshe Sharokhi, Ph.D., who determined that

7 the validity of Plaintiff’s scores on a memory test (WMS-IV) were

8 suspect because Plaintiff’s effort was “extremely inconsistent effort”

9 and Plaintiff’s scores were “extremely inconsistent with his memory

10 functioning on the mental status examination.” (AR 305 [“Test results

11 are extremely inconsistent. The claimant’s cognitive abilities appear

12 higher than shown on psychometric testing. The claimant’s extremely

13 inconsistent effort, impulsivity, low motivation, and aborting of

14 subtests prematurely affected testing results. Test results should be

15 interpreted with these caveats in mind.”]).

17 Plaintiff points out that several medical records contained

18 notations regarding signs/symptoms of mental health issues, such as

19 anxiety, depression, hopelessness, insomnia, “[l]ittle interest or

20 pleasure in doing things,” and lack of energy (see Joint Stip. at 6,

21 citing AR 372 [September 25, 2014], 369 [October 23, 2014], 366

22 [November 20, 2014], 453 [December 23, 2014], 426 [January 22, 2015],

23 430 [February 24, 2015], 439 [March 24, 2015], 466 [April 23, 2015], 471

24 [May 28, 2015], 476 [July 7, 2015], 480 [August 7, 2015], 580

25 [September 8, 2015], 569 [February 12, 2016], 562 [June 30, 2016], 555

26 [August 9, 2016], 552 [September 8, 2016], 546 [October 11, 2016], 538

27 [November 15, 2016], and 515 [September 11, 2017]. However, the medical

1 record as a whole, including Dr. Janoian’s own treatment notes, fails

2 to support Dr. Janoian’s opinion that Plaintiff’s mental health issues

3 would affect his ability to maintain a regular work schedule due to

4 frequent “good” and “bad” days and would interfere with his ability to

5 interact with others.

7 As the ALJ noted, Dr. Janoian’s own treatment notes did not reflect

8 that Plaintiff had serious mental health issues. (See AR 339 [November

9 22, 2013: Under review of neurological/psychiatric systems, Dr. Janoian

10 wrote, “Negative for psychiatric systems” and that Plaintiff was alert

11 and oriented], 336 [February 7, 2014: same], 332-33 [March 13, 2014:

12 same], 330 [April 3, 2014: same]). See Bayliss v. Barnhart, 427 F.3d

13 1211, 1216 (9th Cir. 2005)(upholding ALJ’s rejection of the treating

14 physician’s opinion because his own clinical notes contradicted his own

15 opinion); Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 2003)(“We

16 hold that the ALJ properly found that [the treating doctor’s] extensive

17 conclusions regarding [the claimant’s] limitations are not supported by

18 his own treatment notes.”); see also See Thomas v. Barnhart, 278 F.3d

19 947, 957 (9th Cir. 2002)(“The ALJ need not accept the opinion of any

20 physician including the treating physician, if that opinion is brief,

21 conclusory, and inadequately supported by clinical findings.”); see also

22 20 C.F.R. § 416.927(c)(3)(“The more a medical source presents relevant

23 evidence to support a medical opinion, particularly medical signs and

24 laboratory findings, the more weight we will give that medical opinion.

25 The better an explanation a source provides for a medical opinion, the

26 more weight we will give that medical opinion.”); 20 C.F.R. §

27 416.927(c)(4) (“Generally, the more consistent a medical opinion is with

1 the record as a whole, the more weight we will give to that medical

2 opinion.”).

4 In addition, other physicians found that Plaintiff was alert and

5 oriented during various office visits. (See AR 357 [July 10, 2013], 381

6 [July 25, 2013], 353 [August 25, 2013], 350 [September 19, 2013], 345

7 [October 24, 2013], 386 [November 22, 2013], 303 [December 5, 2013,

8 psychological evaluation], 310 [December 10, 2013, internal medicine

9 evaluation], 527 [May 9, 2017], and 602 [May 22, 2017]).

11 As the ALJ noted (see AR 19–21, 25), Dr. Jonoian’s opinion

12 concerning Plaintiff’s inability to interact with others was

13 contradicted by: (a) the December 5, 2013 findings of Dr. Sharokhi (a

14 consultative psychological examiner) that Plaintiff “was cooperative

15 during the evaluation and appropriate with staff in the waiting room,”

16 “was coherent, stable and appropriate,” and Dr. Sharokhi’s opinion that

17 Plaintiff “presents with the ability to accept instructions from

18 supervisors” and “was essentially socially appropriate with the examiner

19 and staff in today’s evaluation and presents with the ability to

20 interact appropriately with supervisors, coworkers and peers” (AR 303,

21 306-07); (b) the June 15, 2015 opinion of Dr. Levinson (a State Agency

22 psychiatric consultant) that Plaintiff had mild difficulties in

23 maintaining social functioning (AR 55); and (c) the September 17, 2015

24 opinion of Dr. Vea (a State Agency psychiatric consultant) that

25 Plaintiff had mild difficulties in maintaining social functioning (AR

26 504). See Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001)(an

27 examining physician’s opinion may constitute substantial evidence to

1 reject a treating physician’s opinion); Thomas v. Barnhart, 278 F.3d at

2 957 (“The opinions of non-treating or non-examining physicians may also

3 serve as substantial evidence when the opinions are consistent with

4 independent clinical findings or other evidence in the record.”); see

5 also Morgan v. Comm’r of Soc. Sec., 169 F.3d 595, 603 (9th Cir.

6 1999)(“The ALJ is responsible for resolving conflicts in medical

7 testimony, and resolving ambiguity.”).

9 The ALJ properly determined that Dr. Janoian’s opinion about

10 Plaintiff’s physical limitations, see AR 594-96, was not supported by

11 the objective medical evidence of Plaintiff’s back and mental health

12 conditions. As the ALJ noted (see AR 24), Dr. Janoian’s opinions were

13 contradicted by three medical opinions -- (a) the September 16, 2015

14 opinion of Dr. Frankel (AR 487-92); (b) the June 10, 2015 opinion of K.

15 Quint(AR 53-55, 56-59); and (c) the December 10, 2013 opinion of Dr.

16 Afra (AR 308-14).9 The ALJ properly found that these three opinions

17 (with the exception of the postural limitations found by Dr. Afra) were

18 consistent with the mild findings in the medical records discussed

19 above. See Tonapetyan, 242 F.3d at 149; Thomas, 278 F.3d at 957.

21 Finally, contrary to Plaintiff’s assertion (see Joint Stip. at 6),

22 since Dr. Janoian’s findings in the Questionnaire and letter were not

23 inadequate, there was no reason for the ALJ to recontact Dr. Janoian to

24 clarify his opinions regarding Plaintiff’s functional limitations. See

25 Bayliss V. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005)(“An ALJ is

26 required to recontact a doctor only if the doctor’s report is ambiguous

9 See note 7.

1 or insufficient for the ALJ to make a disability

2 determination.”)(citations omitted); Thomas, 278 F.3d at 958 (“[T]he

3 requirement for additional information is triggered only when the

4 evidence from the treating medical source is inadequate to make a

5 determination as to the claimant’s disability.”).

7 The ALJ provided specific and legitimate and clear and convincing

8 reasons, supported by substantial evidence in the record, for giving the

9 opinions of Dr. Janoian no weight.

11 B. The ALJ Properly Evaluated Plaintiff’s Mental Limitations

13 Plaintiff asserts that the ALJ failed to include any of Plaintiff’s

14 mild mental limitations in the RFC assessment. (See Joint Stip. at 15-

15 16, 19). Defendant contends that because the ALJ properly found that

16 Plaintiff’s mental condition did not cause more than minimal limitations

17 on his ability to perform basic work activities and as a result, was not

18 a severe impairment, the ALJ was not required to include Plaintiff’ mild

19 mental limitations in the RFC assessment. (See Joint Stip. at 17-18).

20 The Court agrees.

22 At step two, the ALJ addressed the severity of Plaintiff’s mental

23 impairment, specifically, generalized anxiety disorder. After providing

24 accounts of Plaintiff’s hearing testimony and of the evidence regarding

25 Plaintiff’s mental health issues (see AR 19), the ALJ found, in the

26 “paragraph B” analysis, that Plaintiff had mild limitations in

27 understanding, remembering or applying information, interacting with

1 others, concentration, persistence or pace, and adaptation or managing

2 of himself. (See AR 19-20). The ALJ’s findings were supported by the

3 opinions of (1) Dr. Sharokhi, the consultative psychological examiner,

4 that Plaintiff had mild limitations in understanding, remembering and

5 carrying out instructions and in maintaining attention, concentration,

6 persistence and pace (AR 299-307); (2) Dr. Levinson, the State Agency

7 psychiatric consultant, that Plaintiff had a mild restriction in

8 activities of daily living and mild difficulties in social functioning

9 and in concentration, persistence and pace (AR 55); (3) Dr. Vea, the

10 State Agency psychiatric consultant, that Plaintiff had a mild

11 restriction in activities of daily living, mild difficulties in social

12 functioning, and moderate difficulties in concentration, persistence or

13 pace (AR 504); and (4) Anthony Francisco, the consultative psychological

14 examiner, who issued reports in 2011 and 2012 finding that Plaintiff had

15 moderate to severe overall task orientation and interpersonal

16 orientation impairments (AR 252-58), and mild to marked limitations in

17 understanding and memory, sustained concentration and persistence,

18 social interaction, and adaptation (AR 266-71). (See AR 19-21). Based

19 on a consideration of the overall record, the ALJ concluded that

20 Plaintiff’s “medically determinable mental impairment of generalized

21 anxiety disorder does not cause more than minimal limitation in the

22 [Plaintiff’s] ability to perform basic mental work activities and is

23 therefore non-severe.” (AR 19; see also AR 21).

25 An ALJ is required to consider all limitations, whether severe or

26 non-severe, when assessing a claimant’s RFC. See 20 C.F.R. §

27 416.945(a)(2)(“We will consider all of your medically determinable

1 impairments of which we are aware, including your medically determinable

2 impairments that are not ‘severe’ . . . when we assess your residual

functional capacity.”); see also Hutton v. Astrue, 491 Fed.Appx. 850,

850-51 (9th Cir. 2012)(although ALJ found claimant’s impairment of PTSD

to be non-severe because it caused only “mild mental limitations in the

area of concentration, persistence or pace, and no episodes of

decompensation,” the ALJ was required to consider the mild limitations

in the RFC analysis); but see Ball v. Colvin, 2015 WL 2345652, at *2-3

(C.D. Cal. May 15, 2015)(ALJ did not err in not including mild mental

limitations in RFC where ALJ’s finding that mental limitations do not

cause more than minimal limitations in Plaintiff’s ability to basic

mental activities was supported by the record, and distinguishing Hutton

as based on the ALJ’s “explicit refusal” to consider the claimant’s mild

15 mental limitations caused by PTSD in the RFC).

17 However, an ALJ need not include such non-severe limitations in

18 the RFC if they do not cause more than a minimal limitation on a

19 claimant’s ability to work. See Medlock v. Colvin, 2016 WL 6137399, at

20 *5 (C.D. Cal. Oct. 20, 2016)(“Consideration of “the limiting effects of

21 all impairments” does not necessarily require the inclusion of every

22 impairment into the final RFC if the record indicates the non-severe

23 impairment does not cause a significant limitation in the plaintiff’s

24 ability to work.”); Ball, supra (mild mental impairments “by definition

25 do not have more than a minimal limitation on Plaintiff’s ability to do

26 basic work activities . . . which translates in most cases into no

1 functional limitations,” and thus the ALJ was not required to include

2 them in the RFC).

4 Although the ALJ did not include Plaintiff’s mild mental

5 limitations in the RFC, the ALJ did consider Plaintiff’s mild mental

6 limitations in assessing the RFC. See AR 16-17 (“[I]n making th[e]

7 finding [about the RFC], I must consider all of the claimant’s

8 impairments, including impairments that are not severe”); 22 (“[I]n

9 making the finding [about the RFC], I have considered all symptoms and

10 the extent to which these symptoms can reasonably be accepted as

11 consistent with the objective medical evidence and other evidence”), 25

12 (“Secondly, as noted in [the finding in step number two] above, the

13 claimant’s mental impairment is found to be non-severe with only mild

14 limitations in interacting with others and in understanding, remembering

15 and applying information, which were supported by the evidence as a

16 whole.”). See Scotellaro v. Colvin, 2015 WL 4275970, at *9 (D. Nev.

17 June 22, 2015), report and recommendation adopted, 2015 WL 4275978 (D.

18 Nev. July 14, 2015)(“Although the ALJ did not extensively discuss

19 Plaintiff’s mental impairment at step four, he thoroughly discussed the

20 evidence supporting his findings at step two and incorporated them by

21 reference in his RFC analysis.”).

23 In any event, the ALJ was not required to include the mild mental

24 limitations in the RFC because, as the ALJ found, the record did not

25 show that Plaintiff’s mental impairment caused a significant limitation

26 in his ability to work. See McIntosh v. Berryhill, 2018 WL 3218105, at

27 *4 (C.D. Cal. June 29, 2018)(because ALJ concluded, based on the record,

1 that mental impairment was nonsevere and caused no more than minimal

2 restrictions, there was no requirement to include it in the RFC);

3 Medlock, 2016 WL 6137399, at *5 (“[B]ecause Plaintiff’s mental

4 impairments were not severe and did not cause any significant

5 impairment, the ALJ’s RFC determination was proper.”).

7 C. The ALJ Provided Clear and Convincing Reasons for Rejecting

Plaintiff’s Subjective Symptom Testimony

Plaintiff asserts that the ALJ did not provide clear and convincing

reasons for rejecting Plaintiff’s testimony about his symptoms and

limitations. (See Joint Stip. at 19-23, 28-30). Defendant asserts that

the ALJ provided proper reasons for finding Plaintiff’s subjective

symptom testimony not fully credible. (See Joint Stip. at 23-28).

1. Legal Standard

When assessing a claimant’s credibility regarding subjective pain

or intensity of symptoms, the ALJ must engage in a two-step analysis.

Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). First, the ALJ

must determine if there is medical evidence of an impairment that could

reasonably produce the symptoms alleged. Id., (citing Garrison v.

Colvin, 759 F.3d 995, 1014-15 (9th Cir. 2014)). “In this analysis, the

claimant is not required to 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.” Id. (emphasis in original)(citation omitted). “Nor must a

claimant produce objective medical evidence of the pain or fatigue

itself, or the severity thereof.” Id. (citation omitted).

1 If the claimant satisfies this first step, and there is no evidence

2 of malingering, the ALJ must provide specific, clear and convincing

reasons for rejecting the claimant’s testimony about the symptom

severity. Id. (citation omitted); see also Robbins v. Soc. Sec. Admin.,

466 F.3d 880, 883 (9th Cir. 2006)(“[U]nless an ALJ makes a finding of

malingering based on affirmative evidence thereof, he or she may only

find an applicant not credible by making specific findings as to

credibility and stating clear and convincing reasons for each.”); Smolen

v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996)(“[T]he ALJ may reject the

claimant’s testimony regarding the severity of her symptoms only if he

makes specific findings stating clear and convincing reasons for doing

so.”). “This is not an easy requirement to meet: The clear and

convincing standard is the most demanding required in Social Security

15 cases.” Garrison, 759 F.3d at 1015 (citation omitted).

17 Where, as here, the ALJ finds that a claimant suffers from a

18 medically determinable physical or mental impairment that could

19 reasonably be expected to produce his alleged symptoms, the ALJ must

20 evaluate “the intensity and persistence of those symptoms to determine

21 the extent to which the symptoms limit an individual’s ability to

22 perform work-related activities for an adult.” Soc. Sec. Ruling (“SSR”)

23 16-3p, 2017 WL 5180304, at *3.1 SSR 16–3p eliminated the term

1 SSR 16-3p, which superseded SSR 96-7p, is applicable to this

case, because SSR 16-3p, which became effective on March 28, 2016, was

in effect at the time of the Appeal Council’s January 9, 2019 denial of

Plaintiff's request for review. 20 C.F.R. § 416.929, the regulation on

evaluating a claimant’s symptoms, including pain, has not changed.

1 “credibility” from the Agency’s sub-regulatory policy. However, the

2 Ninth Circuit Court of Appeals has noted that SSR 16–3p:

3 makes clear what [the Ninth Circuit’s] precedent already

required: that assessments of an individual’s testimony by an

4 ALJ are designed to “evaluate the intensity and persistence of

symptoms after the ALJ finds that the individual has a

5 medically determinable impairment(s) that could reasonably be

expected to produce those symptoms,” and not to delve into

6 wide-ranging scrutiny of the claimant’s character and apparent

truthfulness.

Trevizo, 871 F.3d at 678 n.5 (quoting SSR 16–3p)(alterations omitted).

In discrediting the claimant’s subjective symptom testimony, the

ALJ may consider: “ordinary techniques of credibility evaluation, such

as . . . prior inconsistent statements concerning the symptoms, and

other testimony by the claimant that appears less than candid;

unexplained or inadequately explained failure to seek treatment or to

follow a prescribed course of treatment; and the claimant’s daily

activities.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014)

(citation omitted). Inconsistencies between a claimant’s testimony and

conduct, or internal contradictions in the claimant’s testimony, also

may be relevant. Burrell v. Colvin, 775 F.3d 1133, 1137 (9th Cir.

20 2014). In addition, the ALJ may consider the observations of treating

21 and examining physicians regarding, among other matters, the functional

22 restrictions caused by the claimant’s symptoms. Smolen, 80 F.3d at

23 1284; accord Burrell, supra. However, it is improper for an ALJ to

24 reject subjective testimony based “solely” on its inconsistencies with

25 the objective medical evidence presented. Bray v. Comm’r of Soc. Sec.

26 Admin., 554 F.3d 1219, 1227 (9th Cir. 2009)(citation omitted).

1 The ALJ must make a credibility determination with findings that

2 are “sufficiently specific to permit the court to conclude that the ALJ

did not arbitrarily discredit claimant’s testimony.” Tommasetti v.

Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008)(citation omitted); see

Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (“A finding

that a claimant’s testimony is not credible must be sufficiently

specific to allow a reviewing court to conclude the adjudicator rejected

the claimant’s testimony on permissible grounds and did not arbitrarily

discredit a claimant’s testimony regarding pain.”) (citation omitted).

Although an ALJ’s interpretation of a claimant’s testimony may not be

the only reasonable one, if it is supported by substantial evidence, “it

is not [the court’s] role to second-guess it.” Rollins v. Massanari,

261 F.3d 853, 857 (9th Cir. 2001).

16 2. Plaintiff’s Subjective Statements and Testimony

18 Plaintiff made the following statements in a Function Report -

19 Adult dated April 15, 2015 (see AR 195-204)2:

20 He lives in a house with family. His back pain, leg

pain, muscle pain, chest pain, heavy breathing, poor memory,

21 depression, and sleeping problems limit his ability to work.

He takes medicines for his conditions; the medicines do not

22 cause side effects. (AR 195, 203).3

23 2 The date –- “4-15-15” -- is stated on the bottom of the first

page of the Function Report, rather than in the box next to Plaintiff’s

24 name on the last page of the Function Report. (See AR 195, 204). The

List of Exhibits states that the Function Report is dated “04/15/2015”.

25 (AR 3).

26 3 In a Disability Report - Appeal dated August 6, 2015,

Plaintiff stated that his back pain, leg pain, chest pain, and shortness

27 of breath have gotten worse since August 1, 2015, and that he takes the

following prescribed medicines: Ambien (for sleep), Zocor (for

28 cholesterol), Motrin (for pain), Amlodipine and Diphenhydramine (for

(continued...)

1 With respect to his daily activities, he does not want to

do anything or go anywhere. He does not take care of anyone

2 else or pets. Before his conditions he was able to work and

do everything. His conditions affect his abilities to dress

and bathe (he can dress and bathe with medicine) and to care

for his hair and shave (he does not care). He needs somebody

to remind him to take care of his personal needs and grooming

5 and to take medicine. He does not prepare his own meals

because of his conditions. He cannot do any household chores

6 or yard work because of his conditions (back pain, leg pain,

muscle pain). He goes outside once or twice a week, either

7 driving or riding in a car; he cannot go out alone because of

dizziness and memory issues. He shops only with somebody’s

8 help. He is able to count change, but he is unable to pay

bills, handle a savings account, or use a checkbook/money

9 orders due to a lack of concentration. Before his conditions,

he was able to handle money. He does not have any hobbies or

10 interests because of his conditions. He does not spend time

with others. He goes to his doctor’s office on a regular

11 basis (once a month), and needs to be accompanied and reminded

to go. He has problems getting along with others because he

12 does not like noises; he did “mostly everything” before his

conditions began. (AR 196-200).

His conditions affect his abilities to lift, squat, bend,

stand, reach, walk, sit, kneel, stair-climb, concentrate,

15 understand, follow instructions and get along with others and

affect his memory. He can walk about 50 to 60 feet before

16 needing to rest. He can pay attention for about a couple of

minutes. He does not finish what he starts. He cannot

17 concentrate on written instructions. He cannot concentrate on

or memorize spoken instructions. He becomes very nervous and

18 upset around authority figures. He has never been fired or

laid off from a job because of problems getting along with

19 other people. He does not handle stress well because he

panics quickly. His unusual behavior or fears are getting

20 worse. (AR 200-01).

Plaintiff gave the following testimony at the administrative

hearing (see AR 646-56):

He lives with his wife and kids. He graduated from

physical university (four years) in Armenia. He attended Los

25 Angeles City College for one year. (AR 646-47, 655).

3 (...continued)

high blood pressure), Flexeril (for muscle spasms), and Heclizine (for

dizziness). (AR 213, 217).

1 He worked as a warehouse supervisor at Armand Art

(marble/granite tabletops for furniture) for approximately 25

2 years. He was involved in shipping and receiving. He

supervised 2 to 4 people. He had to lift 50 to 100 pounds of

merchandise and had to bend. He was on his feet all day

(“[w]e walk and we walk” and only sat for lunch). He last

worked there in approximately 2008 (when the business was

5 sold), and he has not worked for pay since then. He tried

looking for other work for a couple of years, but stopped

6 looking because of his pain. (AR 646-50).

7 Since the time of his prior hearing (see AR 662 [January

7, 2013], his back pain, which radiates down his right leg,

8 has gotten worse. He experiences back pain every 2 to 3 days.

His back pain makes him want to sit when he walks and to walk

9 when he sits. He can walk approximately 15 to 25 minutes (a

couple of blocks) until he gets tired; his back pain does not

10 increase during that time (“It’s not too much, but it’s still

pain.”). He can sit comfortably for approximately 20 to 30

11 minutes before he has to walk in order for his pain to become

bearable. Even when he lays down, he has to start walking

12 again. He can lift 15 to 10 pounds, but lifting more causes

excruciating pain. He has difficulty bending. He still has

shortness of breath when he walks. (AR 650-52).

He has been seeing doctors, including Dr. Garduno

(mostly) and Dr. Janoian, at All for Health in Glendale every

15 one to three months for a couple of years. The doctors have

prescribed him medicines for pain, depression and insomnia.

16 He has not been able to sleep well for a couple of years

because of pain. The pain medicine relieves the pain for a

17 couple of hours. He had surgery for prostrate cancer in May

2017. His depression and anxiety have gotten worse since the

18 last hearing; he has difficulties with concentration and focus

(he cannot watch television or read books). However, he has

19 not yet gotten a psychiatric referral. (AR 652-56).

1 3. The ALJ’s Credibility Findings

After briefly discussing Plaintiff’s testimony (see AR 23),4 the ALJ

stated: “After careful consideration of the evidence, I find that the

5 claimant’s medically determinable impairments could reasonably be

6 expected to cause the alleged symptoms; however, the claimant’s

7 statements concerning the intensity, persistence and limiting effects of

8 these symptoms are not entirely consistent with the medical evidence and

9 other evidence in the record for the reasons explained in this

10 decision.” (AR 23).

12 The ALJ then addressed Plaintiff’s testimony as follows:

As for the claimant’s statements about the intensity,

persistence, and limiting effects of his or her symptoms, they

are inconsistent because radiographic and examination findings

show generally mild finds, as discussed in detail below.

4 The ALJ stated:

I have considered all of the claimant’s subjective

complaints, including statements from the administrative

hearing. At the hearing, the claimant testified his back pain

is worsening, becoming “really bad” every two or three days,

and that he also experiences pain radiating down his legs,

more so in his right leg. He indicated that [he] is able to

lift up to 15 pounds, but will experience sharp back pain if

he attempts to lift more, and has also difficulty bending. He

testified he needs to change positions frequently, such as

needing to sit after 15-25 minutes, although walking does not

necessarily increase his low back pain. In addition, he

testified he experiences shortness of breath on exertion. He

reported needing to walk after sitting for about 20-30

minutes. As for treatment, he indicated pain medications help

a little, but provide only temporary relief.

(AR 23).

1 Although treatment notes since ALJ Reason’s prior decision[5]

2 indicate the claimant reported back pain, they show he made

complaints of radiculopathy at some visits, while denying it

at other visits (e.g., Exhibit [AR 329, 335]). This medical

evidence since ALJ Reason’s prior decision continues to

support a full range of medium work, and I find the claimant’s

subjective complaints are not fully supported by the objective

findings and are inconsistent with the routine, conservative

treatment documented in the record.

The medical evidence of record regarding the claimant’s

impairments support the above residual functional capacity

assessment. For instance, testing supports the diagnoses. In

April of 2014, the claimant underwent lumbar spine imaging,

15 which revealed straightening of the lordoctic curvature and

16 mild degenerative changes of the lumbar spine ([AR 315]).

17 Additionally, consistently mild clinical findings further

18 support the residual functional capacity assessment. In

19 December of 2013, the claimant underwent a consultative

20 internal medicine examination by Sohail K. Afra, M.D., who

21 noted moderate tenderness to palpitation with mild paraspinal

22 spasm in the dorsolumbar area, as well as decreased, painful

flexion, and decreased extension, lateral bending, and roation

([AR 311-12]. Dr. Afra also noted normal motor strength,

5 [Administrative Law Judge Sally Reason’s decision on

Plaintiff’s earlier applications for Disability Insurance Benefits and

Supplemental Security Income is dated April 18, 2013. (See AR 31-39).]

1 sensation, reflexes, and gait, although the claimant exhibited

2 mild difficulty walking on toes and on heels ([AR 312]).

Treatment notes from his primary care provider, All for

Health, contain largely routine office visits, and [claimant]

was primarily seen by Leonardo Garduno and occasionally by

Noobar Janoian, to whom the claimant reported complaints of

back pain with occasional radiculopathy [(AR 320-58, 362-486,

507-92]). Exam findings of his back were generally normal to

mild, noting occasional muscle spasm, stiffness, or decreased

range of motion (e.g., [AR 325, 327, 329-30, 335; AR 363, 366;

AR 375, 377; AR 562), but no gait or neurologoical

disturbances (e.g., [AR 329, 339, 349]).

Contrary to the allegations of difficulty with walking,

15 the claimant also reported walking for exercise daily to his

16 primary care provider and to consultative psychological

17 examiner Dr. Sharokhi ([AR 302; AR 356; AR 376]). He also

18 received only conservative treatment, such as prescribed

19 Motrin, naproxen, and robaxin, and he advised (sic) to use

20 topical over-the-counter patches and creams as needed ([AR

21 320-58, 362-486; AR 563]).

(AR 23-24, footnoted bracket added).

After addressing the opinions of Plaintiff’s treating physicians

(Drs. Jonian and Gaboian), the consultative internal medicine examiner

(Dr. Afra) and the State Agency medical consultants (Drs. Frankel and

1 Quint), as well as the statement by Plaintiff’s son (see AR 24-25), the

2 ALJ concluded that:

“In sum, the above residual functional capacity assessment is

supported by the objective medical evidence contained in the

record. The persuasiveness of the claimant’s allegations is

weakened by a lack of consistency between his allegations and

the medical evidence. Although inconsistent information

provided by the claimant may not be the result of a conscious

intent to mislead, the inconsistencies nevertheless suggest

the information provided by the claimant generally may not be

entirely reliable. The claimant does experience some

limitations, but only to the extent described in the residual

15 functional capacity above.”

16 (AR 26).

18 4. Analysis

20 The ALJ’s finding that Plaintiff’s testimony about the intensity,

21 persistence and limiting effects of his pain and symptoms was not

22 credible is supported by substantial evidence.6

6 The Court will not consider reasons for discounting

Plaintiff’s subjective symptom testimony that were not given by the ALJ

in the decision (see Joint Stip. at 25-26, i.e., inconsistent statements

about back pain, inconsistent efforts during psychological examination).

See Garrison, 759 F.3d at 1010 (“We review only the reasons provided by

the ALJ in the disability determination and may not affirm the ALJ on a

ground upon which he did not rely.”); Connett, 340 F.3d at 874 (“We are

constrained to review the reasons the ALJ asserts.”; citing SEC v.

Chenery Corp., 332 U.S. 194, 196 (1947) and Pinto v. Massanari, 249 F.3d

840, 847-48 (9th Cir. 2001)).

1 The ALJ properly determined that Plaintiff's testimony about the

2 intensity, persistence and limiting effects of his symptoms were not

supported by the objective medical evidence (see AR 23). See Burch v.

Barnhart, 400 F.3d 676, 681 (9th Cir. 2005)(“Although lack of medical

evidence cannot form the sole basis for discounting pain testimony, it

is a factor that the ALJ can consider in his credibility analysis.”);

Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001)(“While

subjective pain testimony cannot be rejected on the sole ground that it

is not fully corroborated by objective medical evidence, the medical

evidence is still a relevant factor in determining the severity of the

claimant’s pain and its disabling effects.”); SSR 16-3p, *5 (“objective

medical evidence is a useful indicator to help make reasonable

conclusions about the intensity and persistence of symptoms, including

15 the effects those symptoms may have on the ability to perform work-

16 related activities”). As the ALJ pointed out, the medical records

17 concerning Plaintiff’s back issues reflected only mild clinical and

18 diagnostic findings. (See AR 311-12, 315, 324-25, 327, 330, 333, 335,

19 344, 349, 355, 363, 339, 366, 369, 373, 376, 397, 466, 471, 477, 480,

20 515, 541, 562, 556, 566, 577, 580).

22 Accordingly, the ALJ’s finding that Plaintiff’s subjective symptom

testimony was not supported by the objective medical evidence was a

clear and convincing reason for discounting Plaintiff’s credibility.

More importantly, as discussed below, this was not the sole legally

sufficient reason for discounting Plaintiff’s credibility.

1 The ALJ also properly determined that Plaintiff’s testimony about

2 the intensity, persistence and limiting effects of his symptoms was

inconsistent with Plaintiff’s testimony about his ability (or lack of

ability) to walk and his statements to medical providers about his

ability to walk (see AR 24, 26). See 20 C.F.R. § 416.929(c)(4) (“We

will consider whether there are any inconsistencies in the evidence and

the extent to which there are any conflicts between your statements and

the rest of the evidence . . . .”).

As the ALJ noted, Plaintiff’s testimony about his difficulty

walking (see AR 200 [He can walk about 50 to 60 feet before needing to

rest], 650 [He can walk for only approximately 15 to 25 minutes (a

couple of blocks]) was inconsistent with statements made to a treating

15 physician (AR 356 [“Exercise includes walking. Exercises daily.”]) and

16 to the consultative psychological examiner (AR 307 [“On a daily basis,

17 the claimant watches television and goes for walks.”). This was a clear

18 and convincing reason, supported by substantial evidence in the record,

19 for discounting Plaintiff’s credibility.

21 The ALJ also properly determined that Plaintiff’s testimony about

22 the intensity, persistence and limiting effects of his symptoms was not

supported by the conservative nature of his treatment (see AR 24). As

the ALJ noted, Plaintiff generally was prescribed only mild pain

relievers (i.e., Motrin, Naproxen, and Robaxin) and over-the-counter

patches and creams as needed for his back issues (see AR 320-22, 324-

430, 438-41, 445-50, 452-84, 563-64]). See Parra v. Astrue, 481 F.3d

742, 750-51 (9th Cir. 2007)(“The ALJ also noted that [the claimant’s]

1 physical ailments were treated with over-the-counter pain medication.

2 We have previously indicated that evidence of ‘conservative treatment’

is sufficient to discount a claimant’s testimony regarding severity of

an impairment.”; citation omitted); Johnson v. Shalala, 60 F.3d 1428,

1434 (9th Cir. 1995)(an ALJ may properly rely on the fact that

prescribed conservative treatment suggests a lower level of both pain

and functional limitation). Moreover, there is no indication in the

record that Plaintiff was prescribed physical therapy or was recommended

surgery for his back issues, and Plaintiff testified that walking does

not increase his level of pain (AR 650-51).

The ALJ’s reasons for discounting Plaintiff’s credibility -- lack

of support in the medical record, inconsistent statements, and

15 conservative treatment -- sufficiently allow the Court to conclude that

16 the ALJ’s credibility finding was based on permissible grounds and

17 supported by substantial evidence in the record.

19 ORDER

21 For the foregoing reasons, the decision of the Commissioner is

22 AFFIRMED.

LET JUDGMENT BE ENTERED ACCORDINGLY.

DATED: February 12, 2020

/s/

ALKA SAGAR

UNITED STATES MAGISTRATE JUDGE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.