# Arestakes Timourian v. Commissioner of Social Security

> District Court, C.D. California · February 12, 2020

URL: https://www.frixlaw.com/law-library/cases/10036979

## Case

- **Court:** District Court, C.D. California
- **Decided:** February 12, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA-WESTERN DIVISION
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ARESTAKES TIMOURIAN, ) Case No. CV 19-01915-AS
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Plaintiff, ) MEMORANDUM OPINION AND ORDER
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v. )
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ANDREW M. SAUL, Commissioner )
16 of Social Security, )
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17 Defendant. )
)
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PROCEEDINGS
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On March 15, 2019, Plaintiff filed a Complaint seeking review of
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the denial of his application for Supplemental Security Income. (Docket
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Entry No. 1). The parties have consented to proceed before the
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undersigned United States Magistrate Judge. (Docket Entry Nos. 13, 15).
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On August 27, 2019, Defendant filed an Answer along with the
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Administrative Record (“AR”). (Docket Entry Nos. 18-19). On November
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22, 2019, the parties filed a Joint Stipulation (“Joint Stip.”) setting
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forth their respective positions regarding Plaintiff’s claims. (Docket
1 Entry No. 20).
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BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION
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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).
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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).
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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).
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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).
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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).
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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).
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STANDARD OF REVIEW
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This Court reviews the Commissioner’s decision to determine if it
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is free of legal error and supported by substantial evidence. See
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Brewes v. Comm’r, 682 F.3d 1157, 1161 (9th Cir. 2012). “Substantial
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evidence” is “more than a mere scintilla, but less than a
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preponderance[.]” Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir.
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2014)(citation omitted). To determine whether substantial evidence
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supports a finding, “a court must consider the record as a whole,
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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).
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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
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[Commissioner’s] conclusion[.]” Id. at 1009-10 (citations and quotation
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marks omitted). As a result, “[w]here the evidence can support either
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affirming or reversing [the ALJ’s] decision, [a court] may not
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substitute [its] judgment for that of the [ALJ].” Id. at 1010 (citation
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omitted).5
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PLAINTIFF’S CONTENTIONS
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Plaintiff alleges that the ALJ erred in (1) rejecting the opinions
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of Plaintiff’s treating physician; (2) evaluating Plaintiff’s mental
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impairment; and (3) discrediting Plaintiff’s subjective symptom
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testimony. (See Joint Stip. at 3-7, 11-16, 19-23, 28-30).
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DISCUSSION
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After consideration of the record as a whole, the Court finds that
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the Commissioner’s findings are supported by substantial evidence and
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are free from legal error.
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A. The ALJ Properly Assessed the Opinions of Plaintiff’s Treating
Physician, Noobar Janoian, M.D.
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Plaintiff asserts that the ALJ failed to properly reject the
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opinion of Plaintiff’s treating physician, Dr. Janoian. (See Joint
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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
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evaluated Dr. Janoian’s opinions. (See Joint Stip. at 7-11).
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An ALJ must take into account all medical opinions of record. 20
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C.F.R. § 416.927(b). “Generally, a treating physician’s opinion carries
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more weight than an examining physician’s, and an examining physician’s
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opinion carries more weight than a reviewing physician’s.” Holohan v.
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Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); see also Lester v.
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Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). The medical opinion of a
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treating physician is given “controlling weight” so long as it “is well-
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supported by medically acceptable clinical and laboratory diagnostic
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techniques and is not inconsistent with the other substantial evidence
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in [the claimant’s] case record.” 20 C.F.R. § 416.927(c)(2). “When a
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treating doctor’s opinion is not controlling, it is weighted according
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to factors such as the length of the treatment relationship and the
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frequency of examination, the nature and extent of the treatment
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relationship, supportability, and consistency of the record.” Revels
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v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017); see also 20 C.F.R. §
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416.927(c)(2)-(6).
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If a treating or examining doctor’s opinion is not contradicted by
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another doctor, the ALJ can reject the opinion only for “clear and
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convincing reasons.” Carmickle v. Commissioner, 533 F.3d 1155, 1164
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(9th Cir. 2008); Lester v. Chater, 81 F.3d at 830 (9th Cir. 1995). If
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the treating or examining doctor’s opinion is contradicted by another
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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
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rejecting the opinion. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir.
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2007); Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998); Lester,
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supra. “The ALJ can meet this burden by setting out a detailed and
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thorough summary of the facts and conflicting clinical evidence, stating
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his interpretation thereof, and making findings.” Trevizo v. Berryhill,
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871 F.3d 664, 675 (9th Cir. 2017)(citation omitted). Finally, when
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weighing conflicting medical opinions, an ALJ may reject an opinion that
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is conclusory, brief, and unsupported by clinical findings. Bayliss v.
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Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2015); Tonapetyan v. Halter, 242
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F.3d 1144, 1149 (9th Cir. 2001).
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Physicians at All for Health, Health for All, including Noobar
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Janoian, M.D., treated Plaintiff from July 10, 2013 to October 10, 2017.
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While Leonardo Garduno, M.D., was Plaintiff’s primary care provider, Dr.
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Janoian personally treated Plaintiff on four occasions (November 22,
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2013, February 7, 2014, March 13, 2014, April 3, 2014). (See AR 320-58,
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362-486, 508-92).
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Dr. Janoian provided the following information in a Physical
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Residual Functional Capacity Questionnaire dated October 25, 2017 (see
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AR 594-97): Dr. Janoian diagnosed Plaintiff with low back pain,
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sacroiliitis, generalized anxiety disorder, hypertension, insomnia and
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disorder of the prostate, gave Plaintiff a “very guarded” prognosis, and
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listed Plaintiff’s symptoms as pain, stiffness, fatigue and anxiety.
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(AR 594). Dr. Janoian identified the clinical findings and objective
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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
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drowsiness, malaise and fatigue. (Id.). Dr. Janoian found, inter alia,
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the following: Plaintiff’s impairments lasted or could be expected to
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last at least 12 months; in an 8-hour workday, Plaintiff can lift and/or
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carry less than 10 pounds frequently, can lift and/or carry 20 pounds
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occasionally (less than 1/3 of the workday), and can never lift 50
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pounds; Plaintiff can stand and/or walk (without an assistive device)
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about 6 hours in an 8-hour workday; Plaintiff can sit less than 6 hours
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in an 8-hour workday; Plaintiff requires a job that permits shifting
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positions at will from sitting, standing or walking; Plaintiff would
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need to take unscheduled breaks every 30 minutes for 15 to 20 minutes;
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Plaintiff’s abilities to push and/or pull are limited in the upper and
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lower extremities; Plaintiff can occasionally bend, climb, crouch,
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balance, kneel and crawl; Plaintiff needs to avoid temperature extremes,
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humidity/wetness and heights; and Plaintiff’s impairments would cause
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Plaintiff to be absent from work an average of more than 3 times a
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month. (AR 594-96).
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In a letter dated October 25, 2017 (see AR 508-11), Dr. Janoian
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listed the following objective findings: anxiety, moderate tenderness
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and spasm over bilateral paravertebral lumbar muscles; forward flexion
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(35 degrees), a positive straight leg test bilaterally, degenerative
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changes in the lumbar spine and straightening of the lordotic curvature,
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decreased range of motion, and marked degree of cognitive
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disorganization and memory changes indicated in standardized memory
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testing (MMSE: 21/30). (AR 510). Dr. Janoian found, inter alia, the
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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).
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7 The ALJ addressed Dr. Janoian’s opinions as follows:
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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
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1 visit, he noted the claimant was “negative for psychiatric
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symptoms” (Exhibit 12F/14).
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I also give no weight to Dr. Janoian’s medical source
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statement, dated October 25, 2017, in which he opined the
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claimant can lift and carry 20 pounds occasionally and up to
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10 pounds frequently; stand and/or walk for six hours in an
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eight-hour day and sit for less than six hours in an eight-
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hour day; needs to be able to shift positions at will every
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1-2 hours for 15-20 minutes; can be expected to be absent
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from work more than three times a month; is limited from
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pushing and pulling with both upper and lower extremities;
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can occasionally perform postural activities; and must avoid
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temperature extremes, humidity/wetness and heights (Exhibit
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21F). I give no weight to this opinion, as it is unsupported
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by the evidence of record, which supports greater functional
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abilities than stated.
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(AR 25).
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Since Dr. Janoian’s opinions were largely contradicted by the
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opinions of other physicians, the ALJ was required to provide “specific
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and legitimate” reasons for rejecting Dr. Janoian’s opinions. See
23 Trevizo, 871 F.3d at 675-76.7 The ALJ met this standard.
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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...)
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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.
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7 (...continued)
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has no postural or environmental limitations. (See AR 487-92).
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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).
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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).
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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.
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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,
22
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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).
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1 2013, October 24, 2013, and February 7, 2014: Plaintiff had no radicular
2 pain].
3
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)]).
14
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.”]).
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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.”]).
16
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
28
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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.
6
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
28
14
1 the record as a whole, the more weight we will give to that medical
2 opinion.”).
3
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]).
10
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
28
15
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.”).
8
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.
20
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
27
28
9 See note 7.
16
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.”).
6
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.
10
11 B. The ALJ Properly Evaluated Plaintiff’s Mental Limitations
12
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.
21
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
28
17
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).
24
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
28
18
1 impairments of which we are aware, including your medically determinable
2 impairments that are not ‘severe’ . . . when we assess your residual
3
functional capacity.”); see also Hutton v. Astrue, 491 Fed.Appx. 850,
4
850-51 (9th Cir. 2012)(although ALJ found claimant’s impairment of PTSD
5
to be non-severe because it caused only “mild mental limitations in the
6
area of concentration, persistence or pace, and no episodes of
7
decompensation,” the ALJ was required to consider the mild limitations
8
in the RFC analysis); but see Ball v. Colvin, 2015 WL 2345652, at *2-3
9
(C.D. Cal. May 15, 2015)(ALJ did not err in not including mild mental
10
limitations in RFC where ALJ’s finding that mental limitations do not
11
cause more than minimal limitations in Plaintiff’s ability to basic
12
mental activities was supported by the record, and distinguishing Hutton
13
as based on the ALJ’s “explicit refusal” to consider the claimant’s mild
14
15 mental limitations caused by PTSD in the RFC).
16
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
27
28
19
1 functional limitations,” and thus the ALJ was not required to include
2 them in the RFC).
3
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.”).
22
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,
28
20
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.”).
6
7 C. The ALJ Provided Clear and Convincing Reasons for Rejecting
Plaintiff’s Subjective Symptom Testimony
8
9
Plaintiff asserts that the ALJ did not provide clear and convincing
10
reasons for rejecting Plaintiff’s testimony about his symptoms and
11
limitations. (See Joint Stip. at 19-23, 28-30). Defendant asserts that
12
the ALJ provided proper reasons for finding Plaintiff’s subjective
13
symptom testimony not fully credible. (See Joint Stip. at 23-28).
14
15
1. Legal Standard
16
17
When assessing a claimant’s credibility regarding subjective pain
18
or intensity of symptoms, the ALJ must engage in a two-step analysis.
19
Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). First, the ALJ
20
must determine if there is medical evidence of an impairment that could
21
reasonably produce the symptoms alleged. Id., (citing Garrison v.
22
Colvin, 759 F.3d 995, 1014-15 (9th Cir. 2014)). “In this analysis, the
23
claimant is not required to show that her impairment could reasonably
24
be expected to cause the severity of the symptom she has alleged; she
25
need only show that it could reasonably have caused some degree of the
26
symptom.” Id. (emphasis in original)(citation omitted). “Nor must a
27
claimant produce objective medical evidence of the pain or fatigue
28
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
3
reasons for rejecting the claimant’s testimony about the symptom
4
severity. Id. (citation omitted); see also Robbins v. Soc. Sec. Admin.,
5
466 F.3d 880, 883 (9th Cir. 2006)(“[U]nless an ALJ makes a finding of
6
malingering based on affirmative evidence thereof, he or she may only
7
find an applicant not credible by making specific findings as to
8
credibility and stating clear and convincing reasons for each.”); Smolen
9
v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996)(“[T]he ALJ may reject the
10
claimant’s testimony regarding the severity of her symptoms only if he
11
makes specific findings stating clear and convincing reasons for doing
12
so.”). “This is not an easy requirement to meet: The clear and
13
convincing standard is the most demanding required in Social Security
14
15 cases.” Garrison, 759 F.3d at 1015 (citation omitted).
16
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
24
25
26
1 SSR 16-3p, which superseded SSR 96-7p, is applicable to this
27
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
28
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.
7
Trevizo, 871 F.3d at 678 n.5 (quoting SSR 16–3p)(alterations omitted).
8
9
In discrediting the claimant’s subjective symptom testimony, the
10
ALJ may consider: “ordinary techniques of credibility evaluation, such
11
as . . . prior inconsistent statements concerning the symptoms, and
12
other testimony by the claimant that appears less than candid;
13
unexplained or inadequately explained failure to seek treatment or to
14
follow a prescribed course of treatment; and the claimant’s daily
15
activities.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014)
16
(citation omitted). Inconsistencies between a claimant’s testimony and
17
conduct, or internal contradictions in the claimant’s testimony, also
18
may be relevant. Burrell v. Colvin, 775 F.3d 1133, 1137 (9th Cir.
19
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).
27
28
1 The ALJ must make a credibility determination with findings that
2 are “sufficiently specific to permit the court to conclude that the ALJ
3
did not arbitrarily discredit claimant’s testimony.” Tommasetti v.
4
Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008)(citation omitted); see
5
Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (“A finding
6
that a claimant’s testimony is not credible must be sufficiently
7
specific to allow a reviewing court to conclude the adjudicator rejected
8
the claimant’s testimony on permissible grounds and did not arbitrarily
9
discredit a claimant’s testimony regarding pain.”) (citation omitted).
10
Although an ALJ’s interpretation of a claimant’s testimony may not be
11
the only reasonable one, if it is supported by substantial evidence, “it
12
is not [the court’s] role to second-guess it.” Rollins v. Massanari,
13
261 F.3d 853, 857 (9th Cir. 2001).
14
15
16 2. Plaintiff’s Subjective Statements and Testimony
17
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
3
and bathe (he can dress and bathe with medicine) and to care
for his hair and shave (he does not care). He needs somebody
4
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).
13
His conditions affect his abilities to lift, squat, bend,
14
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).
21
Plaintiff gave the following testimony at the administrative
22
hearing (see AR 646-56):
23
He lives with his wife and kids. He graduated from
24
physical university (four years) in Armenia. He attended Los
25 Angeles City College for one year. (AR 646-47, 655).
26
27
3 (...continued)
28
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
3
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
4
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
13
shortness of breath when he walks. (AR 650-52).
He has been seeing doctors, including Dr. Garduno
14
(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).
20
//
21
//
22
//
23
24
25
26
27
28
1 3. The ALJ’s Credibility Findings
2
After briefly discussing Plaintiff’s testimony (see AR 23),4 the ALJ
3
stated: “After careful consideration of the evidence, I find that the
4
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).
11
12 The ALJ then addressed Plaintiff’s testimony as follows:
13
14
As for the claimant’s statements about the intensity,
15
persistence, and limiting effects of his or her symptoms, they
16
are inconsistent because radiographic and examination findings
17
show generally mild finds, as discussed in detail below.
18
19
4 The ALJ stated:
20
I have considered all of the claimant’s subjective
21
complaints, including statements from the administrative
hearing. At the hearing, the claimant testified his back pain
22
is worsening, becoming “really bad” every two or three days,
and that he also experiences pain radiating down his legs,
23
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
24
he attempts to lift more, and has also difficulty bending. He
testified he needs to change positions frequently, such as
25
needing to sit after 15-25 minutes, although walking does not
necessarily increase his low back pain. In addition, he
26
testified he experiences shortness of breath on exertion. He
reported needing to walk after sitting for about 20-30
27
minutes. As for treatment, he indicated pain medications help
a little, but provide only temporary relief.
28
(AR 23).
1 Although treatment notes since ALJ Reason’s prior decision[5]
2 indicate the claimant reported back pain, they show he made
3
complaints of radiculopathy at some visits, while denying it
4
at other visits (e.g., Exhibit [AR 329, 335]). This medical
5
evidence since ALJ Reason’s prior decision continues to
6
support a full range of medium work, and I find the claimant’s
7
subjective complaints are not fully supported by the objective
8
findings and are inconsistent with the routine, conservative
9
treatment documented in the record.
10
The medical evidence of record regarding the claimant’s
11
impairments support the above residual functional capacity
12
assessment. For instance, testing supports the diagnoses. In
13
April of 2014, the claimant underwent lumbar spine imaging,
14
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
23
flexion, and decreased extension, lateral bending, and roation
24
([AR 311-12]. Dr. Afra also noted normal motor strength,
25
26
27
5 [Administrative Law Judge Sally Reason’s decision on
Plaintiff’s earlier applications for Disability Insurance Benefits and
28
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]).
3
Treatment notes from his primary care provider, All for
4
Health, contain largely routine office visits, and [claimant]
5
was primarily seen by Leonardo Garduno and occasionally by
6
Noobar Janoian, to whom the claimant reported complaints of
7
back pain with occasional radiculopathy [(AR 320-58, 362-486,
8
507-92]). Exam findings of his back were generally normal to
9
mild, noting occasional muscle spasm, stiffness, or decreased
10
range of motion (e.g., [AR 325, 327, 329-30, 335; AR 363, 366;
11
AR 375, 377; AR 562), but no gait or neurologoical
12
disturbances (e.g., [AR 329, 339, 349]).
13
Contrary to the allegations of difficulty with walking,
14
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]).
22
23
(AR 23-24, footnoted bracket added).
24
25
After addressing the opinions of Plaintiff’s treating physicians
26
(Drs. Jonian and Gaboian), the consultative internal medicine examiner
27
(Dr. Afra) and the State Agency medical consultants (Drs. Frankel and
28
29
1 Quint), as well as the statement by Plaintiff’s son (see AR 24-25), the
2 ALJ concluded that:
3
4
“In sum, the above residual functional capacity assessment is
5
supported by the objective medical evidence contained in the
6
record. The persuasiveness of the claimant’s allegations is
7
weakened by a lack of consistency between his allegations and
8
the medical evidence. Although inconsistent information
9
provided by the claimant may not be the result of a conscious
10
intent to mislead, the inconsistencies nevertheless suggest
11
the information provided by the claimant generally may not be
12
entirely reliable. The claimant does experience some
13
limitations, but only to the extent described in the residual
14
15 functional capacity above.”
16 (AR 26).
17
18 4. Analysis
19
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
23
6 The Court will not consider reasons for discounting
24
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
25
about back pain, inconsistent efforts during psychological examination).
See Garrison, 759 F.3d at 1010 (“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.”); Connett, 340 F.3d at 874 (“We are
27
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
28
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
3
supported by the objective medical evidence (see AR 23). See Burch v.
4
Barnhart, 400 F.3d 676, 681 (9th Cir. 2005)(“Although lack of medical
5
evidence cannot form the sole basis for discounting pain testimony, it
6
is a factor that the ALJ can consider in his credibility analysis.”);
7
Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001)(“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.”); SSR 16-3p, *5 (“objective
12
medical evidence is a useful indicator to help make reasonable
13
conclusions about the intensity and persistence of symptoms, including
14
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).
21
22 Accordingly, the ALJ’s finding that Plaintiff’s subjective symptom
23
testimony was not supported by the objective medical evidence was a
24
clear and convincing reason for discounting Plaintiff’s credibility.
25
More importantly, as discussed below, this was not the sole legally
26
sufficient reason for discounting Plaintiff’s credibility.
27
28
1 The ALJ also properly determined that Plaintiff’s testimony about
2 the intensity, persistence and limiting effects of his symptoms was
3
inconsistent with Plaintiff’s testimony about his ability (or lack of
4
ability) to walk and his statements to medical providers about his
5
ability to walk (see AR 24, 26). See 20 C.F.R. § 416.929(c)(4) (“We
6
will consider whether there are any inconsistencies in the evidence and
7
the extent to which there are any conflicts between your statements and
8
the rest of the evidence . . . .”).
9
10
As the ALJ noted, Plaintiff’s testimony about his difficulty
11
walking (see AR 200 [He can walk about 50 to 60 feet before needing to
12
rest], 650 [He can walk for only approximately 15 to 25 minutes (a
13
couple of blocks]) was inconsistent with statements made to a treating
14
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.
20
21 The ALJ also properly determined that Plaintiff’s testimony about
22 the intensity, persistence and limiting effects of his symptoms was not
23
supported by the conservative nature of his treatment (see AR 24). As
24
the ALJ noted, Plaintiff generally was prescribed only mild pain
25
relievers (i.e., Motrin, Naproxen, and Robaxin) and over-the-counter
26
patches and creams as needed for his back issues (see AR 320-22, 324-
27
430, 438-41, 445-50, 452-84, 563-64]). See Parra v. Astrue, 481 F.3d
28
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’
3
is sufficient to discount a claimant’s testimony regarding severity of
4
an impairment.”; citation omitted); Johnson v. Shalala, 60 F.3d 1428,
5
1434 (9th Cir. 1995)(an ALJ may properly rely on the fact that
6
prescribed conservative treatment suggests a lower level of both pain
7
and functional limitation). Moreover, there is no indication in the
8
record that Plaintiff was prescribed physical therapy or was recommended
9
surgery for his back issues, and Plaintiff testified that walking does
10
not increase his level of pain (AR 650-51).
11
12
The ALJ’s reasons for discounting Plaintiff’s credibility -- lack
13
of support in the medical record, inconsistent statements, and
14
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.
18
19 ORDER
20
21 For the foregoing reasons, the decision of the Commissioner is
22 AFFIRMED.
23
LET JUDGMENT BE ENTERED ACCORDINGLY.
24
25
DATED: February 12, 2020
26
27
/s/
ALKA SAGAR
28
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10036979. Public record. Not legal advice.