Juan Ceja Solorzano v. Nancy A. Berryhill

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA-WESTERN DIVISION

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JUAN CEJA SOLORZANO, ) Case No. CV 18-00288-AS

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Plaintiff, ) MEMORANDUM OPINION

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v. )

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ANDREW M. SAUL, Commissioner )

16 of the Social Security )

Administration,1 )

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Defendant. )

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PROCEEDINGS

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On January 12, 2018, Plaintiff filed a Complaint seeking review of

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the denial of his application for Disability Insurance Benefits.

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

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undersigned United States Magistrate Judge. (Docket Entry Nos. 27-28).

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On June 13, 2018, Defendant filed an Answer along with the

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Administrative Record (“AR”). (Docket Entry Nos. 15-16). On September

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28 1 Andrew M. Saul is now the Commissioner of the Social Security

Administration and is substituted in for Acting Commissioner Nancy A.

Berryhill in this case. See Fed.R.Civ.P. 25(d).

1 12, 2018, the parties filed a Joint Stipulation (“Joint Stip.”) setting

2 forth their respective positions regarding Plaintiff’s claim. (Docket

3 Entry No. 21).

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5 The Court has taken this matter under submission without oral

6 argument. See C.D. Cal. L.R. 7-15.

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BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

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10 On June 20, 2014, Plaintiff, formerly employed as an electrician

11 (see AR 69-70, 197-98), filed an application for Disability Insurance

12 Benefits, alleging an inability to work because of a disabling condition

13 since November 1, 2013. (See AR 171-75).

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15 On September 8, 2016, the Administrative Law Judge (“ALJ”), Sally

16 C. Reason, heard testimony from Plaintiff (represented by counsel),

17 medical expert Alan Levine, and vocational expert June Hagen. (See AR

18 54-77). On September 29, 2016, the ALJ issued a decision denying

19 Plaintiff’s application. (See AR 38-47). Applying the five-step

20 sequential process, the ALJ found at step one that Plaintiff had not

21 engaged in substantial gainful activity since November 1, 2013. (AR

22 40). At step two, the ALJ determined that Plaintiff had the following

23 severe impairments –- “lumbar degenerative disc disease; and left (non-

24 dominant) shoulder AC joint arthropathy with impingement syndrome.” (AR

25 40-41).2 At step three, the ALJ determined that Plaintiff did not have

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2 The ALJ determined that Plaintiff did not have any other

musculoskeletal impairments (left elbow, right foot, and hips). (AR 40-

41).

1 an impairment or combination of impairments that met or equaled the

2 severity of one of the listed impairments. (AR 41).

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4 The ALJ then determined that Plaintiff had the residual functional

5 capacity (“RFC”)3 to perform a reduced range of light work4 with the

6 following limitations: can lift/carry up to 20 pounds occasionally and

7 10 pounds frequently; can stand up to 40 minutes at a time for a total

8 of 2 out of 8 hours, and can walk up to 30 minutes at a time for a total

9 of 2 out of 8 hours (can stand/walk for a combined total of 4 out of 8

10 hours); can sit up to 60 minutes at a time for a total of 6 out of 8

11 hours; cannot climb ladders, ropes, or scaffolds, and can climb

12 ramps/stairs with a handrail occasionally; cannot crouch, and can kneel,

13 crouch and stoop occasionally; cannot do overhead reaching with the left

14 (non-dominant) upper extremity; and must avoid all exposure to heavy

15 vibratory machinery, unprotected heights, and extreme cold. (AR 41-46).

16 At step four, the ALJ determined that Plaintiff was unable to perform

17 any past relevant work. (AR 46). At step five, the ALJ determined,

18 based on Plaintiff’s age, education, work experience and RFC, that there

19 are jobs that exist in significant numbers in the national economy that

20 Plaintiff can perform (AR 46-47), and therefore that Plaintiff was not

21 disabled within the meaning of the Social Security Act. (AR 47).

22 //

23 //

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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. § 404.1545(a)(1).

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4 “Light work involves lifting no more than 20 pounds at a time

28 with frequent lifting or carrying of objects weighing up to 10 pounds.”

20 C.F.R. § 404.1567(b).

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

2 November 22, 2017. (See AR 1-5). Plaintiff now seeks judicial review of

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

4 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 preponderance.

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Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). To determine

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whether substantial evidence supports a finding, “a court must consider

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the record as a whole, weighing both evidence that supports and evidence

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that detracts from the [Commissioner’s] conclusion.” Aukland v.

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Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001)(internal quotation

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omitted). As a result, “[i]f the evidence can support either affirming

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or reversing the ALJ’s conclusion, [a court] may not substitute [its]

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judgment for that of the ALJ.” Robbins v. Soc. Sec. Admin., 466 F.3d

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880, 882 (9th Cir. 2006).5

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//

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//

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//

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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 PLAINTIFF’S CONTENTION

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Plaintiff alleges that the ALJ erred in failing to properly assess

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Plaintiff’s subjective symptom testimony. (See Joint Stip. at 4-10, 15-

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18).

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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 Plaintiff’s Testimony

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Plaintiff asserts that the ALJ did not provide clear and convincing

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reasons for rejecting Plaintiff’s testimony about his symptoms and

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limitations. (See Joint Stip. at 4-10, 15-18). Defendant asserts that

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the ALJ properly discounted Plaintiff’s testimony. (See Joint Stip. at

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10-15).

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1. Legal Standard

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

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medically determinable physical or mental impairment that could

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

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evaluate “the intensity and persistence of those symptoms to determine

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

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1 perform work-related activities for an adult . . . .” Soc. Sec. Ruling

2 (“SSR”) 16-3p, 2017 WL 5180304, *3.6

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4 A claimant initially must produce objective medical evidence

5 establishing a medical impairment reasonably likely to be the cause of

6 the subjective symptoms. Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir.

7 1996); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991). Once a

8 claimant produces objective medical evidence of an underlying impairment

9 that could reasonably be expected to produce the pain or other symptoms

10 alleged, and there is no evidence of malingering, the ALJ may reject the

11 claimant’s testimony regarding the severity of his or her pain and

12 symptoms only by articulating specific, clear and convincing reasons for

13 doing so. Brown-Hunter v. Colvin, 798 F.3d 749, 755 (9th Cir.

14 2015)(citing Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir.

15 2007)); see also Smolen, supra; Robbins v. Social Sec. Admin, 466 F.3d

16 880, 883 (9th Cir. 2006); Reddick v. Chater, 157 F.3d 715, 722 (9th Cir.

17 1998); Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997).

18 Because the ALJ does not find that Plaintiff was malingering, the “clear

19 and convincing” standard stated above applies.

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21 Generalized, conclusory findings do not suffice. See Moisa v.

22 Barnhart, 367 F.3d 882, 885 (9th Cir. 2004)(the ALJ’s credibility

23 findings “must be sufficiently specific to allow a reviewing court to

24 conclude the [ALJ] rejected [the] claimant’s testimony on permissible

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6 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 November 22, 2017 denial

28 of Plaintiff’s request for review. 20 C.F.R. § 404.1529, the regulation

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

1 grounds and did not arbitrarily discredit the claimant’s testimony”)

2 (citation and internal quotation marks omitted); Holohan v. Massanari,

3 246 F.3d 1195, 1208 (9th Cir. 2001)(the ALJ must “specifically identify

4 the testimony [the ALJ] finds not to be credible and must explain what

5 evidence undermines the testimony”); Smolen, 80 F.3d at 1284 (“The ALJ

6 must state specifically which symptom testimony is not credible and what

7 facts in the record lead to that conclusion.”).

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9 2. The ALJ’s Assessment of Plaintiff’s Testimony

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11 Plaintiff gave the following testimony at the administrative

12 hearing (see AR 56-61, 69-72):

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He lives in a house with his wife. He graduated from

14 high school in Mexico. He became a naturalized United States

citizen in 2001. He has worked full-time as an industrial

15 electrician for 15 years. He worked for a union which

assigned him to different companies. In November 2013, he

16 stopped working because of work-related injuries. He filed

a Workers’ Compensation claim which settled about a year and

17 a half ago. He still receives medical treatment from Dr.

Campos at Northeast Valley Medical Group. (See AR 57, 69-

18 72).

19 He has back pain and pain and numbness in his legs. The

numbness started in his right leg, but now is throughout both

20 legs. (See AR 57-61, 72).

21 Although he tried to help his wife with the dishes, he

is not able to because of his back. He cannot do chores

22 (cooking, cleaning, laundry, making the bed, taking out the

trash) because of difficulty moving his back. While he is

23 able to pick up a piece of paper from the floor and put it

into the trash, he suffers when doing it. He is able to

24 dress himself; he is able to button a button and close a

zipper, but he sometimes needs his wife’s help. He is able

25 to brush his hair and teeth. He drives an automatic car when

he feels okay, but most of the time his wife and children

26 drive him. He goes with his wife to the grocery store; he

walks as little as possible, and feels back pain if he tries

27 to pick up a gallon of milk. He tries to go to the park for

exercise, but his back pain is aggravated by ground which is

28 too hard. He sometimes can sit for 15 to 20 minutes or for

an hour before needing to stand up. He sometimes can stand

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for 15 to 20 minutes or for an hour (but his back will

2 suffer). He is able to walk for half a mile, but slowly.

For the past year he has used a cane for assistance with

3 walking (he uses it at home when necessary, usually in the

mornings). His wife drove him to the hearing, which took 30

4 minutes. (See AR 56-60).

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After summarizing Plaintiff’s testimony (see AR 42), the ALJ wrote:

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“After careful consideration of the evidence, the undersigned finds that

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the claimant’s medically determinable impairments could reasonably be

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

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statements concerning the intensity, persistence and limiting effects

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of these symptoms are not entirely consistent with the medical evidence

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

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decision.” (AR 42).

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The ALJ addressed Plaintiff’s testimony as follows:

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16 The degree of limitation alleged by the claimant is neither

substantiated by nor consistent with the longitudinal medical

17 record in this case. The undersigned notes that the evidence

repeatedly indicates that, prior to his alleged work-related

18 injury in August 2013, the claimant had no significant

medical problems and “could perform all activities of daily

19 living without any difficulties” (Exhibit 2F/9, 55). The

record does show that the claimant reportedly felt the sudden

20 onset of back pain in August 2013 (while either washing his

car at home or moving items at work) (Exhibit 1F/29). Yet,

21 a clinical examination at that time revealed no deficits

except some limitation in back range of motion and muscle

22 spasm. The claimant was otherwise found to have normal

sensation, normal strength, normal reflexes, and a normal

23 straight leg raising test (Exhibit 1F/30). At a follow up

visit a week or two later, the claimant was similarly found

24 to have normal neurological function as well as a “normal”

gait (Exhibit 1F/39).

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At previously mentioned, a subsequent MRI of the claimant’s

26 lumbar spine in November 2013 did reveal degenerative disc

disease as well as a disc protrusions indenting the right L5

27 nerve root; however, there was no evidence of central or

foraminal stenosis at the L5 level (Exhibit 1F/95). Nor were

28 there any signs of radiculopathy upon clinical examination in

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November 2013. While again found to have some limitation in

2 back range of motion, the claimant was otherwise found to

have a normal stability assessment, negative Patrick’s test

3 with painless passive hip range of motion, full (5/5) motor

strength with normal muscle bulk and tone, intact sensation

4 throughout the lower extremities, and a normal gait with

intact ability to walk on heels and toes (Exhibit 1F/92).

5 Upon subsequent examination in December 2013, the claimant’s

gait and station remained “normal” and his neurological

6 function remained entirely intact (Exhibit 1F/123).

7 The foregoing findings simply do not suggest the claimant had

any impairment(s) more limiting than found herein on or

8 around the alleged onset date of disability. In January

2014, he evidently began seeing a worker’s compensation

9 doctor, Edward Haronian, M.D., whose clinical evaluation

reportedly found not only evidence of back impairment, but

10 also evidence of left shoulder AC joint tenderness and

positive impingement sign (Exhibit 2F/57). As previously

11 mentioned, an xray of the claimant’s left shoulder at that

time confirmed evidence of AC joint arthropathy (Exhibit

12 2F/60). However, a review of the subsequent treatment

records reveals little to no mention of any ongoing shoulder

13 problems, suggesting this has not been particularly serious

or limiting. Instead, the claimant’s treatment records

14 mainly reflect complaints of back pain and treatment for the

same.

15

Yet, as detailed below, the medical records generally fail to

16 show evidence of radiculopathy or other objective findings

which would support the degree of limitation the claimant has

17 alleged. Nor are the claimant’s alleged limitations enhanced

by his course of treatment, which has been essentially

18 routine following an epidural steroid injection in January

2014 (Exhibit 1F/123). The undersigned notes the claimant’s

19 pain reportedly “improved” following the injection (Exhibit

1F/142); and the record shows the claimant subsequently

20 indicated that he was not interested in receiving any other

invasive treatment (e.g., another injection or surgery)

21 (Exhibit 2F/87). Although he evidently has used narcotic

analgesics from time to time, treatment records from November

22 2015 indicate that the claimant admittedly has been

controlling his back pain with use of only naproxen 2-3 times

23 a day (Exhbiit 7F/7). Overall, the claimant’s course of

treatment is at odds with what one might reasonably expect,

24 given the degree of limitation he has alleged.

25 Turning back to the objective medical findings, the record

shows that in January 2014, Dr. Haronian found that the

26 claimant exhibited a normal gait and remained able to walk on

his heels and toes (Exhibit 1F/142). Thereafter, in July

27 2014, a physical medicine and rehabilitation physician, B.

Sam Tabibian, M.D., specifically evaluated the claimant for

28 signs of lumbar radiculopathy but found none. According to

Dr. Tabibian, the claimant still clinically demonstrated full

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(5/5) motor strength in all major muscle groups, normal

2 sensation, and normal and symmetric deep tendon reflexes

(Exhibit 2F/1). Moreover, a bilateral lower extremity

3 EMG/NCV was performed and it was negative, showing no

electrodiagnostic evidence of lumbar radiculopathy (or

4 neuropathy) (Exhibit 2F/4).

5 A month later (in August 2014), Dr. Haronian declared the

claimant “permanent and stationary” and further concluded

6 that he had reached the “maximum medical improvement” given

that he “did not wish to proceed with further [treatments]”

7 (Exhibit 2F/87). The claimant evidently returned to see Dr.

Haronian for refills of medication for back pain on two

8 subsequent occasions -- once in January 2015 and once in May

2015 (Exhibits 6F/2-3, 6-7).

9

The claimant then saw William McMaster, M.D., for a

10 comprehensive orthopedic evaluation in June 2015. At that

time, the claimant subjectively complained of constant sever

11 (7/10) pain in his back and legs (Exhibit 3F/1). He claimed

that even minimal lifting aggravated his pain and further

12 claimed to need a cane due to progressive weakness or other

deficits consistent with the limitations alleged by the

13 claimant. Dr. McMaster specifically observed that the

claimant walked slowly but he did not note any antalgia or

14 instability or other gait abnormality. He found the claimant

had full range or motion of all four extremities. He found

15 the claimant had normal/symmetric range of motion of the

hips, with no crepitation or joint contracture. He found the

16 claimant had limited back range of motion but no pelvic

obliquity, no spondylolisthesis, no Trendelburg sign, and no

17 muscle spasm. Finally, contrary to the above-referenced

subjective complaints, Dr. McMaster found the claimant’s

18 motor function in the lower extremities remained full, with

no evidence of muscle atrophy or other objective neurologic

19 deficits (Exhibit 3F/2).

20 The undersigned notes the most recent treatment records

reflect essentially normal physical examination findings in

21 connection with visits by the claimant to Northeast Valley

Health Corporation in November 2015 and February 2016

22 (Exhibits 7F/4, 9). Additionally, in contrast to the

allegations in this case, these records reflect complaints of

23 only localized back pain and specifically indicate that the

claimant has “no radiation of pain” to the lower extremities

24 (Exhibit 7F/2).

25 The foregoing inconsistencies raise questions about the

reliability of the limitations alleged by the claimant in

26 this case. Similarly, the claimant alleged in connection

with the instant application that he is unable to speak and

27 understand English (Exhibit 2E/1); yet, the evidence

indicates otherwise. At the hearing before the undersigned,

28 the claimant managed to answer some questions in English

without (prior to) any interpretation (Hearing Record).

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Further, a review of the medical records from Kaiser reveals

2 that in the treatment context the claimant has not required

an interpreter and has instead “preferred to use his own

3 English skills” (see, e.g., Exhibit 1F/5, 31). That the

claimant evidently provided inaccurate information on such a

4 basic matter as the ability to communicate in English is

another indication that the allegations in this case may not

5 be entirely reliable.

6 (AR 42-44).

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3. Analysis

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9 The Court’s review of the ALJ’s decision shows that the ALJ

10 properly discounted Plaintiff’s testimony for the following specific

11 reasons: (1) Plaintiff’s treatment has been conservative and routine

12 in nature, medications are effective and Plaintiff declined to receive

13 additional and more invasive treatment, including additional epidural

14 steroid injections and surgery; (2) diagnostic testing, and the record

15 when viewed as a whole, did not support Plaintiff’s complaints of

16 disabling symptoms and limitations; and (3) Plaintiff made inconsistent

17 statements regarding his ability to speak and understand English. As

18 set forth below, the record supports the ALJ’s finding that Plaintiff’s

19 testimony about the intensity, persistence and limiting effects of his

20 symptoms was not credible.

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22 a. Conservative and Routine Treatment

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24 The ALJ discounted Plaintiff’s testimony concerning the limiting

25 effects of his impairments based on Plaintiff’s positive response to

26 conservative treatment (see AR 43). See Tommasetti v. Astrue, 533 F.3d

27 1035, 1040 (9th Cir. 2008)(“The record reflects that Tommasetti

28 responded favorably to conservative treatment including . . . the use

1 of anti-inflammatory medication [and] a transcutaneous electrical nerve

2 stimulation unit . . . . Such a response to conservative treatment

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undermines Tommasetti’s reports regarding the disabling nature of his

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pain.”); Crane v. Shalala, 76 F.3d 251, 254 (9th Cir. 1996)(“the

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evidence suggesting that [the claimant] responded well to treatment”

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supports an adverse credibility finding); see also Warre v. Comm’r of

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the SSA, 439 F.3d 1001, 1006 (9th Cir. 2006)(“Impairments that can be

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controlled effectively with medication are not disabling for the purpose

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of determining eligibility for SSI benefits.”).

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A review of the record supports the ALJ’s findings. As the ALJ

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noted, following an epidural steroid injection on December 13, 2013

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(approximately one month after the alleged onset date of disability) (AR

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15 369-74) Plaintiff received only conservative treatment for his back

16 condition, including physical therapy, acupuncture, and pain

17 medications. (See AR 396-400 [Kaiser Permanente, Physical Therapy

18 Progress Notes dated January 21, 2014], 401 [Kaiser Permanente, Physical

19 Therapy Progress Notes, stating that Plaintiff did not follow up with

20 physical therapy after January 21, 2014], 480 [Edwin Haronian M.D.,

21 Follow-Up Report, Review of Diagnostic Studies, and Request for

22 Authorization of a Primary Treating Physician dated March 21, 2014,

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stating: “The option of lumbar epidural injections as well as surgical

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intervention was discussed with the patient, however, he declines the

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above. He wishes to avoid the above with conservative treatment.”],

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490, [Edwin Haronian, M.D., Follow-Up Report of a Primary Treating

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Physician dated July 27, 2014], 500 [Edwin Haronian, M.D., Permanent and

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Stationary Report of a Primary Treating Physician dated September 9,

1 2014, stating that following the epidural injections “[m]edications and

2 conservative treatment were provided”]).

3

4

The ALJ also noted that Plaintiff’s back pain improved following

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the injection (see AR 390 [Kaiser Permanente, Progress Note dated

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January 10, 2014, noting: “Right sciatica low back pain has improved

7

after right L4-5 & L5-S1 epidural steroid injection 12/13/2013.”], 399

8

[Kaiser Permanente, Physical Therapy Progress Notes dated January 21,

9

2014, stating that Plaintiff’s resting pain level was 4 out of 10], 465

10

[Edwin Haronian, M.D., Initial Orthopedic Evaluation of a Primary

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Treating Physician Report dated February 14, 2014, noting that “[t]he

12

injections were administered on December 13, 2013, which have provided

13

him temporary pain relief”], 490 [Edwin Haronian, M.D., Follow-Up Report

14

15 of a Treating Physician dated July 27, 2014, noting that Plaintiff

16 “reports partial benefit from previous lumbar epidural injections as

17 well as acupuncture therapy”], 741 [Allison Campos, M.D., of Northeast

18 Valley Health Corporation, Office Visit Notes dated November 4, 2015,

19 noting that Plaintiff has been using Naproxen twice a day for pain],

20 even though Plaintiff continued to use prescribed narcotics from time

21 to time (see AR 505 [Synapse Medical Group, prescription for Tramadol

22 dated January 30, 2014], 467 [Edward Haronian, M.D., Initial Orthopedic

23

Evaluation of a Primary Treating Physician Report dated February 14,

24

2014, noting that Plaintiff “is currently taking[] Vicodin for pain”],

25

505-06, 509 [Synapse Medical Group, Prescriptions for Tramadol dated

26

March 13, 2014, April 10, 2014, July 17, 2014, August 28, 2014 and

27

October 9, 2014], 717 [Edwin Haronian, M.D., Follow-Up Report of Primary

28

Treating Physician dated January 6, 2015, stating that Plaintiff’s

1 “medications will be refilled as they are providing pain relief and

2 improving functional status”], 713 [Prescription for Tramadol dated May

3

27, 2015], 554 [William McMaster, M.D., of Adult and Pedriatric

4

Orthopaedic Specialist, Report dated June 23, 2015, noting that “[i]n

5

the past he was taking prescription opioid medications but has been

6

weaned off of them and uses Tramadol 100 mg 2-4 times a day and

7

gabapentin 600 mg three times a day for pain”], 739 [Allison Campos,

8

M.D., of Northeast Valley Health Corporation, Office Visit Notes dated

9

February 2, 2016, prescribing Tramadol], 239-40 [CVS, Patient

10

Prescription Records showing Naproxen prescription filled on September

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8, 2015, October 10, 2015 and April 22, 2016, and Tramadol prescription

12

filled on June 3, 2015, November 4, 2015, December 11, 2015, January 11,

13

2016, February 8, 2016, March 17, 2016, and April 15, 2016].

14

15

16 The ALJ was entitled to discount Plaintiff’s credibility based on

17 his positive response to conservative treatment. See Johnson v.

18 Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995) (ALJ may properly rely on

19 the fact that prescribed conservative treatment suggests a lower level

20 of both pain and functional limitation).

21

22 The ALJ also relied on the fact that after the initial epidural

23

steroid injection Plaintiff stated that he did not want any additional

24

epidural steroid injections or any surgery. (See AR 480 [Edwin

25

Haronian, M.D., Follow-Up Report, Review of Diagnostic Studies, and

26

Request for Authorization of a Primary Treating Physician dated March

27

21, 2014, stating that Plaintiff declines lumbar epidural injections and

28

surgical intervention], 500 [Edwin Haronian, M.D., Permanent and

1 Stationary Report of a Primary Treating Physician dated September 9,

2 2014 noting that, Plaintiff “did not wish to proceed with further lumbar

3

epidural injections nor surgical intervention.”]), 554 [William

4

McMaster, M.D., of Adult and Pediatric Orthopaedic Specialists, Report

5

dated June 23, 2015, noting: “He states he has been informed that

6

surgery may be necessary but he states he is not interested on any

7

surgery at this time.”]). This was a permissible basis for rejecting

8

Plaintiff’s symptom testimony. An ALJ may consider many factors in

9

weighing a claimant’s credibility, including “unexplained or

10

inadequately explained failure to seek treatment or to follow a

11

prescribed course of treatment[.]” Tommasetti, 533 F.3d at 1039.

12

13

Accordingly, the ALJ provided clear and convincing reasons for

14

15 discrediting Plaintiff’s testimony based on conservative treatment.

16

17 b. Objective Medical Evidence

18

19 The ALJ determined that Plaintiff's testimony about the limiting

20 effects of his impairments was not supported by the objective medical

21 evidence (see AR 34). See Burch v. Barnhart, 400 F.3d 676, 681 (9th

22 Cir. 2005)(“Although lack of medical evidence cannot form the sole basis

23

for discounting pain testimony, it is a factor that the ALJ can consider

24

in his credibility analysis.”); Rollins v. Massanari, 261 F.3d 853, 857

25

(9th Cir. 2001)(“While subjective pain testimony cannot be rejected on

26

the sole ground that it is not fully corroborated by objective medical

27

evidence, the medical evidence is still a relevant factor in determining

28

the severity of the claimant’s pain and its disabling effects.”); SSR

1 16-3p, *5 (“objective medical evidence is a useful indicator to help

2 make reasonable conclusions about the intensity and persistence of

3

symptoms, including the effects those symptoms may have on the ability

4

to perform work-related activities”).

5

6

As the ALJ noted, medical records revealed that Plaintiff’s

7

physical examinations before and after the November 1, 2013 alleged

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injury onset date were mostly unremarkable. (See AR 278 [Kaiser

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Permanente Progress Notes dated August 5, 2013, physical examination

10

findings], 287 [Kaiser Permanente, Progress Notes dated August 8, 2013,

11

physical examination findings, 311 [Kaiser Permanente, Note dated

12

October 28, 2013, X-ray of lumbosacral spine, findings], and 319 [Kaiser

13

Permanente, Progress Notes dated October 30, 2013, findings], 333

14

15 [Kaiser Permanente, Progress Notes dated November 13, 2013, physical

16 examination findings], 342-43 [Kaiser Permanente, MRI of lumbar spine

17 dated November 14, 2013, conclusions], 340 [Kaiser Permanente, Progress

18 Notes dated November 14, 2013, physical examination findings], 372

19 [Kaiser Permanente, Progress Notes dated December 13, 2013, physical

20 examination findings], 390 [Kaiser Permanente, Progress Notes dated

21 January 10, 2014, physical examination findings], 471-72 [Edward

22 Haronian, M.D., Initial Orthopedic Evaluation of a Primary Treating

23

Physician Report dated February 14, 2014, lumbar examination findings],

24

485 [Edwin Haronian, M.D., Follow-Up Report of a Primary Treating

25

Physician dated May 20, 2014, notations], 488 [Edwin Haronian, M.D.,

26

Follow-Up Report of a Primary Treating Physician dated June 17, 2014,

27

notations], 414-17 [Physical Medicine Institute, B. Sam Tabibian, M.D.,

28

Electrodiagnostic Consultation Report dated July 14, 2014, physical

1 examination and electrodiagnostic findings], 490-91 [Edwin Haronian,

2 M.D., Follow-Up Report of a Primary Treating Physician dated July 27,

3

2019, notations], 428 [A Functional Capacity Evaluation Report prepared

4

by Sherry Leoni, DC, QME on August 4, 2014, spine - range of motion

5

findings], 497-98 [Edwin Haronian, M.D., Permanent and Stationary

6

Report of a Primary Treating Physician dated September 9, 2014, lumbar

7

examination findings], 555 [William McMaster, M.D. of Adult and

8

Pediatric Orthopaedic Specialists, Report dated June 23, 2015, physical

9

examination findings], and 736 [Allison Campos, M.D., of Northeast

10

Valley Health Corporation, Office Visit Notes dated February 2, 2016,

11

notations].

12

13

As set forth above, substantial evidence supports the ALJ’s

14

15 determination that Plaintiff’s statements about the limiting effects of

16 his impairments was not supported by the objective medical evidence and

17 this was a clear and convincing reason for discounting Plaintiff’s

18 credibility. More importantly, this was not the sole legally sufficient

19 reason for discounting Plaintiff’s credibility.

20

21 c. Inconsistent Statements

22

23

Finally, the ALJ also properly discredited Plaintiff’s testimony

24

about the limiting effects of his impairments based on inconsistencies

25

concerning Plaintiff’s ability to communicate in English.7 See Light

26

7 Defendant asserts that the ALJ did not rely on Plaintiff’s

27 statements about his ability to communicate in English as a basis for

discrediting Plaintiff’s testimony, but rather as a basis for assessing

28 the vocational factors. (See Joint Stip. at 15 n. 6). The Court

(continued...)

1

v. Social Security Admin., 119 F.3d 789, 792 (9th Cir. 1997)(“In

2

weighing a claimant’s credibility, the ALJ may consider his reputation

3

for truthfulness, inconsistencies either in his testimony or between his

4

testimony and his conduct, his daily activities, his work history, and

5

testimony from physicians and third parties concerning the nature,

6

severity, and effect on the symptoms of which he complains.”); 20 C.F.R.

7

§ 1529(c)(4) (“We will consider whether there are any inconsistencies

8

in the evidence and the extent to which there are any conflicts between

9

your statements and the rest of the evidence . . . .”).

10

11

12 As the ALJ noted, Plaintiff’s statement in his application for

13 Disability Insurance Benefits that he was unable to speak and understand

14 English (see AR 189) is inconsistent with notations in Kaiser Permanente

15 records that Plaintiff did not need an interpreter (see AR 253, 265,

16 279, 288, 297) and preferred to use his own English skills (see AR 279),

17 and with the ALJ’s observation that, at the hearing, Plaintiff answered

18 some questions in English prior to or without those questions being

19

translated by the interpreter, see Morgan v. Comm’r of Soc. Sec. Admin.,

20

169 F.3d 595, 600 (9th Cir. 1999)(“The inclusion of the ALJ’s personal

21

observations does not render the decision improper.”) (citation

22

omitted). This was a clear and convincing reason, supported by

23

substantial evidence in the record, for discounting Plaintiff’s

24

credibility.

25

26

27 7 (...continued)

disagrees. The ALJ clearly discredited Plaintiff’s testimony based on

28

Plaintiff’s inconsistent statements concerning his ability to

communicate in English. (See AR 44).

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

2 conservative and routine treatment, lack of support in the medical

3

record and inconsistent statements - sufficiently allow the Court to

4

conclude that the ALJ’s credibility finding was based on permissible

5

grounds and supported by substantial evidence in the record. The Court

6

therefore defers to the ALJ’s credibility determination. See Lasich v.

7

Astrue, 252 Fed. Appx. 823, 825 (9th Cir. 2007) (court will defer to

8

ALJ’s credibility determination when the proper process is used and

9

proper reasons for the decision are provided); accord Flaten v. Sec’y

10

of Health and Human Serv., 44 F.3d 1453, 1464 (9th Cir. 1995). Where

11

the ALJ has made specific findings justifying a decision to disbelieve

12

Plaintiff’s symptom allegations and those findings are supported by

13

substantial evidence in the record, “we may not engage in second

14

15 guessing.” Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002).

16

17 ORDER

18

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

20 AFFIRMED.

21

22 LET JUDGMENT BE ENTERED ACCORDINGLY.

23

24 DATED: August 22, 2019

25

26

27 /s/

ALKA SAGAR

28 UNITED STATES MAGISTRATE JUDGE