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Case 5:12-cv-00998-JPR Document 16 Filed 06/04/13 Page 1 of 34 Page ID #:68

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. EDCV 12-0998-JPR

MEMORANDUM OPINION AND ORDER
AFFIRMING THE COMMISSIONER



MELINDA D. ROBINSON,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,1

Defendant.

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I.

PROCEEDINGS
Plaintiff seeks review of the Commissioner’s final decision
denying her applications for Social Security disability insurance
benefits (“DIB”) and Supplemental Security Income benefits
(“SSI”). The parties consented to the jurisdiction of the
undersigned U.S. Magistrate Judge pursuant to 28 U.S.C. § 636(c).
This matter is before the Court on the parties’ Joint
Stipulation, filed February 27, 2013, which the Court has taken

1

On February 14, 2013, Colvin became the Acting

Commissioner of Social Security. Pursuant to Federal Rule of
Civil Procedure 25(d), the Court therefore substitutes Colvin for
Michael J. Astrue as the proper Respondent.

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under submission without oral argument. For the reasons stated
below, the Commissioner’s decision is affirmed and this action is
dismissed.
II. BACKGROUND

Plaintiff was born on May 29, 1965. (AR 41, 505.) She
attended some high school and college without graduating from
either. (AR 505-06.) She previously worked as a preschool
teacher and a gas-station cashier. (AR 106-07, 113-15, 169, 514-
15.)

On November 8, 2006, Plaintiff filed applications for DIB

and SSI, alleging that she had been unable to work since June 7,
2005, because of major depressive disorder, post-traumatic stress
disorder, hypothyroidism, idiopathic chronic constipation,
degenerative joint disease, lumbar radiculopathy, bilateral
carpal tunnel syndrome, and asthma. (AR 29, 32-33.) After her
applications were denied, Plaintiff requested a hearing before an
Administrative Law Judge (“ALJ”). (AR 29.) A hearing was held
on September 22, 2008, at which Plaintiff, who was represented by
counsel, testified, as did a medical expert and a vocational
expert (“VE”). (AR 29.) In a written decision issued December
2, 2008, ALJ Jesse J. Pease determined that Plaintiff was not
disabled. (AR 29-40.) The Appeals Council later denied review.
(AR 16, 504.) Plaintiff did not appeal that decision to the U.S.
District Court (AR 16, 504), and it therefore became final and
binding, see 20 C.F.R. §§ 404.981, 416.1481; Taylor v. Heckler,
765 F.2d 872, 875 (9th Cir. 1985).

On April 2, 2009, Plaintiff filed new applications for DIB
and SSI. (AR 16, 41-42, 85-86, 488-96, 504.) Plaintiff alleged

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that she had been unable to work since November 28, 2008, because
of post-traumatic stress disorder, bipolar disorder, back pain,
carpal tunnel syndrome, and Graves’ disease, among other things.
(AR 16, 85-86. 105.) A hearing was held before ALJ Helen E.
Hesse on September 29, 2010.2 (AR 502-17.) Plaintiff, who was
represented by counsel, testified, as did a VE. (Id.) In a
written decision issued November 4, 2010, ALJ Hesse found that
Plaintiff was not disabled. (AR 16-25.) On April 24, 2012, the
Appeals Council denied Plaintiff’s request for review. (AR 3-7.)
This action followed.
III. STANDARD OF REVIEW

Pursuant to 42 U.S.C. § 405(g), a district court may review
the Commissioner’s decision to deny benefits. The ALJ’s findings
and decision should be upheld if they are free of legal error and
supported by substantial evidence based on the record as a whole.
§ 405(g); Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct.
1420, 1427, 28 L. Ed. 2d 842 (1971); Parra v. Astrue, 481 F.3d
742, 746 (9th Cir. 2007). Substantial evidence means such
evidence as a reasonable person might accept as adequate to
support a conclusion. Richardson, 402 U.S. at 401; Lingenfelter
v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It is more than
a scintilla but less than a preponderance. Lingenfelter, 504
F.3d at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880,

2

Before the September 2010 hearing, Plaintiff amended
her disability onset date to December 3, 2008 (AR 84), the day
after ALJ Pease issued his decision (AR 29-40), which ALJ Hesse
observed was “because the prior decision render[ed] everything
from that date back res judicata” (AR 504). In her decision, ALJ
Hesse nonetheless states that Plaintiff’s alleged onset date was
November 28, 2008. (AR 16.)

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882 (9th Cir. 2006)). To determine whether substantial evidence
supports a finding, the reviewing court “must review the
administrative record as a whole, weighing both the evidence that
supports and the evidence that detracts from the Commissioner’s
conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir.
1996). “If the evidence can reasonably support either affirming
or reversing,” the reviewing court “may not substitute its
judgment” for that of the Commissioner. Id. at 720-21. Further,
when a previous decision has found a claimant not disabled, in
any later claim the ALJ will “apply a presumption of continuing
nondisability and determine that the claimant is not disabled”
unless the claimant rebuts the presumption. Acquiescence Ruling
97-4(9), 1997 WL 742758, at *3; see also Chavez v. Bowen, 844
F.2d 691, 693 (9th Cir. 1988) (“The principles of res judicata
apply to administrative decisions, although the doctrine is
applied less rigidly to administrative proceedings than to
judicial proceedings.”).
IV. THE EVALUATION OF DISABILITY

People are “disabled” for purposes of receiving Social

Security benefits if they are unable to engage in any substantial
gainful activity owing to a physical or mental impairment that is
expected to result in death or which has lasted, or is expected
to last, for a continuous period of at least 12 months. 42
U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257
(9th Cir. 1992).

The Five-Step Evaluation Process

A.
The ALJ follows a five-step sequential evaluation process in

assessing whether a claimant is disabled. 20 C.F.R.

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§§ 404.1520(a)(4), 416.920(a)(4); Lester v. Chater, 81 F.3d 821,
828 n.5 (9th Cir. 1995) (as amended Apr. 9, 1996). In the first
step, the Commissioner must determine whether the claimant is
currently engaged in substantial gainful activity; if so, the
claimant is not disabled and the claim must be denied.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not
engaged in substantial gainful activity, the second step requires
the Commissioner to determine whether the claimant has a “severe”
impairment or combination of impairments significantly limiting
her ability to do basic work activities; if not, a finding of not
disabled is made and the claim must be denied.
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a
“severe” impairment or combination of impairments, the third step
requires the Commissioner to determine whether the impairment or
combination of impairments meets or equals an impairment in the
Listing of Impairments (“Listing”) set forth at 20 C.F.R., Part
404, Subpart P, Appendix 1; if so, disability is conclusively
presumed and benefits are awarded. §§ 404.1520(a)(4)(iii),
416.920(a)(4)(iii). If the claimant’s impairment or combination
of impairments does not meet or equal an impairment in the
Listing, the fourth step requires the Commissioner to determine
whether the claimant has sufficient residual functional capacity
(“RFC”)3 to perform her past work; if so, the claimant is not
disabled and the claim must be denied. §§ 404.1520(a)(4)(iv),

3

RFC is what a claimant can still do despite existing
exertional and nonexertional limitations. 20 C.F.R. §§ 404.1545,
416.945; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th
Cir. 1989).

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Case 5:12-cv-00998-JPR Document 16 Filed 06/04/13 Page 6 of 34 Page ID #:73

416.920(a)(4)(iv). The claimant has the burden of proving that
she is unable to perform past relevant work. Drouin, 966 F.2d at
1257. If the claimant meets that burden, a prima facie case of
disability is established. Id. If that happens or if the
claimant has no past relevant work, the Commissioner then bears
the burden of establishing that the claimant is not disabled
because she can perform other substantial gainful work available
in the national economy. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
That determination comprises the fifth and final step in the
sequential analysis. §§ 404.1520, 416.920; Lester, 81 F.3d at
828 n.5; Drouin, 966 F.2d at 1257.

B. The ALJ’s Application of the Five-Step Process
At step one, the ALJ found that Plaintiff had not engaged in

any substantial gainful activity since November 28, 2008. (AR
19.) At step two, the ALJ concluded that Plaintiff had the
severe impairments of hypothyroidism, idiopathic chronic
constipation, degenerative joint disease, lumbar radiculopathy,
bilateral carpal tunnel syndrome, asthma, obesity, and “mood
disorder with depressed mood and anxious features and a
questionable substance abuse disorder.” (Id.) At step three,
the ALJ determined that Plaintiff’s impairments did not meet or
equal any of the impairments in the Listing. (AR 19-20.) At
step four, the ALJ found that Plaintiff retained the RFC to
perform light work4 that was limited to

4

“Light work” is defined as involving “lifting no more

than 20 pounds at a time with frequent lifting or carrying of
objects weighing up to 10 pounds.” 20 C.F.R. §§ 404.1567(b),
416.967(b). The regulations further specify that “[e]ven though
the weight lifted may be very little, a job is in this category

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sitting for 8 hours out of an 8 hour day, and
standing/walking for 6 hours out of an 8 hour day with
normal breaks; occasional posturals in terms of climbing
stairs, bending, balancing, stooping, kneeling, crouching
and crawling except she is precluded from climbing
ladders/scaffolds and working at unprotected heights; no
concentrated exposure to dust, fumes, gases or chemicals;
no forceful gripping/grasping with both upper
extremities; and no holding any one object more than 15
minutes at a time.

(AR 20.) The ALJ further concluded that because of Plaintiff’s
mental impairments, she “require[d] a work environment with no
more than a moderate degree of stress from all sources,
especially interpersonal from supervisors and peers; and no jobs
requiring hypervigilance, being in charge of the safety
operations of others, intense interpersonal interactions, or
supervising others.” (Id.) Based on the VE’s testimony, the ALJ
concluded that Plaintiff was capable of performing her past work
as a cashier. (AR 25.) Accordingly, the ALJ determined that
Plaintiff was not disabled. (Id.)
V.

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

opinion of her treating psychiatrist, Marc Blumberg, and (2)

when it requires a good deal of walking or standing, or when it
involves sitting most of the time with some pushing and pulling
of arm or leg controls.” Id. A person capable of light work is
also capable of “sedentary work,” which involves lifting “no more
than 10 pounds at a time and occasionally lifting or carrying
[small articles]” and may involve occasional walking or standing.
§§ 404.1567(a)-(b), 416.967(a)-(b).

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finding Plaintiff’s subjective symptom testimony not credible.
(J. Stip. at 7.)

The ALJ Properly Evaluated the Medical Evidence

A.
Plaintiff contends that the ALJ failed to properly consider
the opinions of treating psychiatrist Blumberg. (J. Stip. at 7-
14.) Remand is not warranted on that basis, however, because the
ALJ provided legally sufficient reasons for according little
weight to that opinion.

1.

Applicable law

Three types of physicians may offer opinions in Social

Security cases: “(1) those who treat[ed] the claimant (treating
physicians); (2) those who examine[d] but d[id] not treat the
claimant (examining physicians); and (3) those who neither
examine[d] nor treat[ed] the claimant (non-examining
physicians).” Lester, 81 F.3d at 830. A treating physician’s
opinion is generally entitled to more weight than the opinion of
a doctor who examined but did not treat the claimant, and an
examining physician’s opinion is generally entitled to more
weight than that of a nonexamining physician. Id.

The opinions of treating physicians are generally afforded
more weight than the opinions of nontreating physicians because
treating physicians are employed to cure and have a greater
opportunity to know and observe the claimant. Smolen v. Chater,
80 F.3d 1273, 1285 (9th Cir. 1996). If a treating physician’s
opinion is well supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the
other substantial evidence in the record, it should be given
controlling weight. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).

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If a treating physician’s opinion is not given controlling
weight, its weight is determined by length of the treatment
relationship, frequency of examination, nature and extent of the
treatment relationship, amount of evidence supporting the
opinion, consistency with the record as a whole, the doctor’s
area of specialization, and other factors. 20 C.F.R.
§§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6).

When a treating doctor’s opinion is not contradicted by

another doctor, it may be rejected only for “clear and
convincing” reasons. Carmickle v. Comm’r, Soc. Sec. Admin., 533
F.3d 1155, 1164 (9th Cir. 2008) (quoting Lester, 81 F.3d at 830-
31). When a treating physician’s opinion conflicts with another
doctor’s, the ALJ must provide only “specific and legitimate
reasons” for discounting the treating doctor’s opinion. Id.
Indeed, the ALJ “need not accept the opinion of any physician,
including a treating physician, if that opinion is brief,
conclusory, and inadequately supported by clinical findings.”
Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); accord
Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th
Cir. 2004).
2.

Relevant facts

From April 2007 until March 2009, Plaintiff saw a therapist
at Nouvell and Nouvell Counseling Services about twice a month.
(AR 277-83, 287-96, 299-304.) From May 2007 until at least
August 2010, Plaintiff received psychiatric treatment at the
Hemet Mental Health Clinic. (See AR 192, 445.)

On October 28, 2008, Dr. Blumberg of the Hemet Mental Health

Clinic noted that Plaintiff had appropriate appearance, affect,

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attention, concentration, and speech. (AR 362.) Plaintiff’s
mood was calm and mildly to moderately depressed. (Id.) Dr.
Blumberg noted that she was “[s]ymptomatic but [s]table.” (Id.)
On January 13, 2009, Dr. Blumberg noted that Plaintiff had
appropriate appearance, affect, attention, concentration, and
speech; she was mildly to moderately depressed and had some
suicidal ideation but no intent or plan. (AR 202.) On February
17, 2009, Dr. Blumberg noted that Plaintiff had appropriate and
neat appearance, mildly depressed mood but no suicidal ideation,
and appropriate affect, attention, concentration, and speech.
(AR 201.) Plaintiff had a partial response to medication and was
“symptomatic but stable.” (Id.)

On March 9, 2009, after Plaintiff reported having suicidal
thoughts, Plaintiff’s therapist recommended that she go to the
hospital. (AR 280.) That day, Plaintiff went to Riverside
County Regional Medical Center, reporting that she was depressed
and having suicidal thoughts and had “tried to crash [her] car.”5
(AR 320.) Plaintiff was noted to be calm, cooperative, and
crying, with slow psychomotor activity and restricted affect.
(AR 326.) She had relevant, coherent, and slow speech; a goal-
directed thought process; restricted affect; and a depressed and
sad mood. (Id.) She did not have delusions or hallucinations.
(AR 327.) Plaintiff was alert and oriented, with good attention,

5

During her hospitalization, Plaintiff told a social

worker that she had “t[aken] her car at 2:00 AM and wanted to run
into a telephone pole but instead crashed [her] car into [a] dirt
hill.” (AR 344.) In her April 2009 function report, Plaintiff
wrote that she “once woke up in the middle of the nigh[t] and
took the car and tr[i]ed to hit a telephone pole” but “ended up
missin[g] and rip[p]ed [the] bumper.” (AR 159.)

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concentration, and memory. (Id.) Plaintiff reported a history
of childhood sexual abuse. (AR 326, 344.) She was admitted for
psychiatric treatment, diagnosed with post-traumatic stress
disorder, and assigned a global assessment of functioning (“GAF”)
score of 25.6 (AR 320, 329-30.) Plaintiff was discharged on
March 13, 2009, with diagnoses of bipolar disorder and
polysubstance disorder. (AR 196.)

On March 20, 2009, Plaintiff reported to her primary-care

physician, Dr. Thomas E. Oliveira, that she no longer had
suicidal ideation and was feeling “a lot better” since her
inpatient hospitalization. (AR 242.) On March 31, 2009,
Plaintiff failed to report for an appointment with Dr. Blumberg.
(AR 198.) That day, Dr. Blumberg noted that Plaintiff suffered
from major depression and post-traumatic stress disorder. (AR
352.) On April 27, 2009, Dr. Blumberg noted that Plaintiff had
an appropriate and neat appearance, mildly to moderately
depressed mood, blunted affect, appropriate attention and
concentration, appropriate speech, and no suicidal ideations.
(AR 197.)

On May 13, 2009, a state-agency consulting psychiatrist, H.

Amado, reviewed Plaintiff’s medical records and completed a

6

A GAF score represents a rating of overall

psychological functioning on a scale of 0 to 100. See Am.
Psychiatric Ass’n, Diagnostic and Statistical Manual of
Disorders, Text Revision 34 (4th ed. 2000). A GAF score in the
range of 21 to 30 indicates “[b]ehavior is considerably
influenced by delusions or hallucinations OR serious impairment
in communication or judgment (e.g., sometimes incoherent, acts
grossly inappropriately, suicidal preoccupation) OR inability to
function in almost all areas (e.g. stays in bed all day; no job,
home, or friends).” Id.

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psychiatric-review-technique form.7 (AR 210-21.) Dr. Amado
found that Plaintiff had major depressive disorder, recurrent and
severe, and post-traumatic stress disorder “by history.” (AR
213-14.) Dr. Amado opined that Plaintiff’s mental conditions
resulted in mild restriction of activities of daily living;
moderate difficulties in maintaining social functioning; mild
difficulties in maintaining concentration, persistence, or pace;
and no repeated episodes of decompensation, each of extended
duration.8 (AR 218.)

Dr. Amado opined that Plaintiff had “mixed depression and

anxiety symptoms that are being addressed via weekly
psychotherapy sessions and also psych meds prescribed at local
psych clinic.” (AR 220.) He noted that her symptoms were of
“chronic duration,” “partially based on childhood victimization
and family issues, and partially on declining physical health.”
(Id.) Dr. Amado found that Plaintiff “remains cognitively intact
and able to participate in therapy, she is free of overt
psychosis and confusion, and she has not decompensated or
developed new psych conditions requiring reassessment.” (Id.)

7

Although Dr. Amado’s reports do not state his specialty
(see, e.g., AR 210-21, 228-30), the ALJ and Plaintiff both refer
to him as a psychiatrist (AR 23; J. Stip. at 13).

8

Social Security regulations define the term “episodes
of decompensation” as “exacerbations or temporary increases in
symptoms or signs accompanied by a loss of adaptive functioning,
as manifested by difficulties in performing activities of daily
living, maintaining social relationships, or maintaining
concentration, persistence, or pace.” 20 C.F.R. pt. 404, subpt.
P, app. 1, 12.00(C)(4). The regulations define the term
“repeated episodes of decompensation, each of extended duration”
as “three episodes within 1 year, or an average of once every 4
months, each lasting for at least 2 weeks.” Id.

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He noted that Plaintiff had been adhering to and benefiting from
treatment. (Id.) Dr. Amado believed that ALJ Pease’s previous
finding that Plaintiff was capable of “essentially semi-
skilled/nonpublic work activity” should be adopted because more
recent medical records “do not compel revision of ALJ findings,
as there has been no significant change in circumstances.” (Id.)

That same day, Dr. Amado completed a mental-residual-
functional-capacity assessment, finding that Plaintiff was
“moderately limited” in her ability to interact appropriately
with the general public, accept instruction and respond
appropriately to criticism from supervisors, get along with
coworkers or peers without distracting them or exhibiting
behavioral extremes, and respond appropriately to changes in the
work setting. (AR 228-29.) Dr. Amado found that Plaintiff was
not significantly limited in any other area. (Id.)

On June 1, 2009, Dr. Blumberg completed a narrative-report

form, listing Plaintiff’s diagnoses as major depressive disorder,
recurrent and severe, with paranoia; history of post-traumatic
stress disorder; and possible bipolar disorder. (AR 192.) On
the preprinted form, Dr. Blumberg indicated that Plaintiff had an
“anxious” attitude, “clearly organized” thoughts, mildly impaired
memory, and mildly impaired judgement. (Id.) He indicated that
Plaintiff’s symptoms included insomnia, paranoid thoughts,
depression, anxiety, panic episodes, suicidal ideation, decreased
energy, isolation, apathy, avolition, social withdrawal at times,
poor grooming at times, and affective flattening. (Id.) He
opined that Plaintiff could not “maintain a sustained level of
concentration,” “sustain repetitive tasks for an extended

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period,” “adapt to new or stressful situations,” or interact
appropriately with coworkers or supervisors. (Id.) He believed
that Plaintiff could interact appropriately with her family
members. (Id.) Dr. Blumberg believed that Plaintiff could not
complete a 40-hour workweek without decompensating and that her
prognosis was “chronic.” (Id.)

On June 17, 2009, Dr. Blumberg noted that Plaintiff was

mildly to moderately depressed but had an appropriate and neat
appearance, appropriate affect, appropriate attention and
concentration, appropriate speech, and no suicidal ideation. (AR
175.) Dr. Blumberg found that Plaintiff had a partial response
to medication and was “symptomatic but stable.” (Id.) On
October 14, 2009, Dr. Blumberg noted that Plaintiff had an
appropriate and clean appearance, normal and goal-directed
thought process, oriented and alert cognition, normal judgment
and insight, and no suicidal ideations. (AR 182.) Plaintiff’s
mood was calm and mildly to moderately depressed and her affect
was blunted. (Id.) Dr. Blumberg found that Plaintiff was
“[s]ymptomatic, but stable.” (Id.)

On February 3, 2010, Dr. Blumberg found that Plaintiff had

an appropriate and clean appearance, normal and goal-directed
thought process, oriented and alert cognition, and adequate
judgement and insight. (AR 184.) She was depressed with blunted
affect and slow speech.9 (Id.) Plaintiff was calm and did not
have any suicidal ideations. (Id.) That same day, Dr. Blumberg
completed a care plan, noting Plaintiff’s diagnoses as severe

9

Dr. Blumberg noted that Plaintiff’s slow speech could

be secondary to her pain medication. (AR 184.)

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major depression, recurrent, with anxiety. (AR 189.)

On April 13, 2010, Dr. Blumberg noted that Plaintiff had

appropriate and clean appearance, full affect, normal and goal-
directed thought process, alert and oriented cognition, and
adequate judgment and insight. (AR 441.) Plaintiff was mildly
to moderately depressed but had no suicidal ideations and a
partial response to medication. (Id.) Dr. Blumberg noted that
Plaintiff was “[s]ymptomatic, but stable.” (Id.) On June 22,
2010, Dr. Blumberg noted that Plaintiff was mildly to moderately
depressed with intermittent anxiety and panic. (AR 442.) He
noted that Plaintiff’s concentration was mildly decreased,10 but
she had an appropriate and clean appearance, full affect, normal
and goal-directed thought process, oriented and alert cognition,
adequate judgement, and no suicidal ideations. (Id.)

On August 3, 2010, Dr. Blumberg completed a second narrative

report, stating that Plaintiff suffered from recurrent, severe
major depressive disorder with paranoia, post-traumatic stress
disorder, and possible bipolar disorder. (AR 445.) Dr. Blumberg
indicated that Plaintiff’s symptoms included paranoid thoughts,
confusion, insomnia, depression, anxiety, panic episodes,
suicidal ideation, decreased energy, isolation, apathy,
avolition, social withdrawal, poor grooming, and affective
flattening. (Id.) He found that Plaintiff’s thinking was
“[c]learly [o]rganized” but her memory and judgment were mildly
impaired. (Id.) Dr. Blumberg believed that Plaintiff was unable

10

Although difficult to read, it appears that Dr.

Blumberg wrote that Plaintiff had “mild 9 concentration.” (AR
442.)

15

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to maintain a sustained level of concentration, sustain
repetitive tasks for an extended duration, adapt to new or
stressful situations, or interact appropriately with coworkers
and supervisors; her ability to interact appropriately with
family members “varie[d].” (Id.) He believed Plaintiff was
unable to complete a 40-hour workweek without decompensating.
(Id.) Dr. Blumberg noted that Plaintiff’s prognosis was
“chronic” and “guarded for any change” and that her problems were
“compounded by her multiple medical/health problems as reported.”
(Id.)

On September 23, 2010, Craig C. Rath, Ph.D, reviewed

Plaintiff’s records and completed an interrogatory form at the
ALJ’s request. (AR 462-72.) Dr. Rath determined that
Plaintiff’s diagnosis was mood disorder, not otherwise specified,
with depressed and anxious features. (AR 468.) Dr. Rath opined
that Plaintiff’s ability to understand, remember, and carry out
instructions was not affected by her mental impairments. (AR
463.) He found that Plaintiff was mildly limited in her ability
to interact with the public, moderately limited in her ability to
interact with supervisors and coworkers, and mildly limited in
her ability to respond appropriately to usual work situations and
changes in a routine work setting. (AR 465.) He believed that
Plaintiff had mild restriction of activities of daily living;
moderate difficulties in maintaining social functioning; mild
difficulties in maintaining concentration, persistence, or pace;
and no repeated episodes of decompensation of an extended
duration. (AR 469.) Dr. Rath opined that Plaintiff was
“precluded from any activities involving greater than a moderate

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degree of stress from all sources, especially interpersonal from
supervisors and peers,” but “[o]therwise there are no
restrictions.” (AR 472.) He stated that Plaintiff’s impairments
did not meet or equal an impairment in a Listing. (AR 470.)

In support of his findings, Dr. Rath cited records from
Plaintiff’s pain-management doctor, Andrew Thio; some of Dr.
Blumberg’s treatment notes and his June 2009 narrative report;
Dr. Amado’s psychiatric-review-technique form and mental-
residual-functional-capacity assessment, treatment notes from
Plaintiff’s primary-care physician, Dr. Oliveira; records from
Plaintiff’s therapist; and notes from Plaintiff’s psychiatric
hospitalization. (AR 468-69.) Dr. Rath noted that Plaintiff had
a “sporadic treatment record with various mention of degrees of
anxiety and depression.” (AR 470.) He noted that “no
personality disorder [was] mentioned,” nothing indicated “bipolar
cycling,” and Plaintiff’s post-traumatic-stress-disorder
diagnosis “include[d] no supportive data such as nature or
frequency of intrusive recollections or avoidant behavior.”
(Id.) Dr. Rath noted that the record did contain “mention of
anxiety and depression numerous times.” (Id.)

3.

Analysis

With regard to Plaintiff’s mental limitations, the ALJ found

that Plaintiff required a work environment with “no more than a
moderate degree of stress from all sources, especially
interpersonal from supervisors and peers,” and could not perform
jobs requiring hypervigilance, responsibility for the safety of
others, intense personal interactions, or supervising others.
(AR 20.) In doing so, the ALJ gave “great weight” to the

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opinions of the medical expert, Dr. Rath, and state-agency
reviewing consultant, Dr. Amado, and “less weight” to Dr.
Blumberg’s opinions as stated in his two narrative reports. (AR
23-24.)

As an initial matter, the ALJ’s RFC finding appears to

accommodate many of Dr. Blumberg’s findings. For example, in his
narrative reports, Dr. Blumberg noted that Plaintiff had only
“mild[ly]” impaired memory and judgment (AR 192, 445), which
presumably would be accommodated to some extent by her RFC
limitation to jobs that do not require hypervigilance or
responsibility for the safety of others (AR 20). Dr. Blumberg
also opined that Plaintiff was unable to interact appropriately
with coworkers or supervisors or adapt to a new or stressful
situation (AR 192), which would be accommodated, at least in
part, by the ALJ’s RFC limited to “no more than a moderate degree
of stress from all sources, especially interpersonal from
supervisors and peers,” no intense personal interactions, and no
supervising others (AR 20).

To the extent the ALJ rejected Dr. Blumberg’s opinion, she

provided specific and legitimate reasons, supported by
substantial evidence, for doing so. The ALJ noted that Dr.
Blumberg’s narrative reports were “basically check off forms” (AR
24), and indeed, the reports were rendered on identical one-page
preprinted forms that listed potential diagnostic criteria,
symptoms, and other information and left blanks for diagnoses,
prescribed medications, and comments (see AR 192, 445). Dr.
Blumberg simply listed Plaintiff’s diagnoses and medications and
circled items from the lists, without explaining the basis of his

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finding that Plaintiff’s mental condition resulted in significant
limitations, such as the inability to maintain a “sustained
level” of concentration, sustain repetitive tasks for an extended
period, adapt to new or stressful situations, or complete a 40-
hour workweek without decompensating. (See AR 192, 445.) The
ALJ was entitled to discount Dr. Blumberg’s opinion on that
basis.11 See Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996)
(ALJ permissibly rejected psychological evaluations “because they
were check-off reports that did not contain any explanation of
the bases of their conclusions”); De Guzman v. Astrue, 343 F.
App’x 201, 209 (9th Cir. 2009) (ALJ was “free to reject” doctor’s
check-off report that did not explain basis for conclusions); see
also Batson, 359 F.3d at 1195 (“an ALJ may discredit treating
physicians’ opinions that are conclusory, brief, and unsupported

11

Plaintiff contends that the ALJ’s finding that Dr.
Blumberg’s opinions were “check off forms for mental status
examinations” is “puzzling” because “mental status examinations
are a well-established, trusted method of clinical evaluation,”
which the regulations cite “as an example of the sort of clinical
findings medical reports should include.” (J. Stip. at 11.) In
support, Plaintiff cites 20 C.F.R. § 404.1523(b)(2), but Section
404.1523 does not discuss medical reports and subsection (b)(2)
does not exist. See 20 C.F.R. § 404.1523 (stating that agency
will consider combined effects of impairments in determining
severity). To the extent Plaintiff meant to cite 20 C.F.R.
§ 404.1513(b), moreover, it fails to establish that the ALJ
erroneously rejected Dr. Blumberg’s reports. Rather, it states
that a doctor should include in a medical report “[c]linical
findings (such as the results of physical or mental status
examinations)”; the claimant’s medical history, laboratory
findings, and diagnosis; the “[t]reatment prescribed with
response, and prognosis”; and a “statement about what [the
claimant] can still do” despite his or her impairments. As
discussed, Dr. Blumberg’s reports failed to include sufficient
clinical findings or other objective evidence to support his
conclusion that Plaintiff was significantly limited by her mental
impairment.

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by the record as a whole . . . or by objective medical findings”
(citation omitted)). Indeed, Dr. Blumberg’s opinion that
Plaintiff was unable to complete a 40-hour workweek was
essentially an opinion on Plaintiff’s ultimate disability status,
which the ALJ was not obligated to accept. See 20 C.F.R.
§§ 404.1527(d)(1) (“A statement by a medical source that you are
‘disabled’ or ‘unable to work’ does not mean that we will
determine that you are disabled.”), 416.927(d)(1) (same); SSR
96-5p, 1996 WL 374183, at *5 (treating-source opinions that a
person is disabled or unable to work “can never be entitled to
controlling weight or given special significance”); see also
McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011) (“A
disability is an administrative determination of how an
impairment, in relation to education, age, technological,
economic, and social factors, affects ability to engage in
gainful activity.”).

The ALJ was also permitted to discount Dr. Blumberg’s
narrative reports because they were inconsistent with his
treatment notes. (AR 24); see Rollins v. Massanari, 261 F.3d
853, 856 (9th Cir. 2001) (ALJ permissibly rejected treating
physician’s opinion when opinion was contradicted by or
inconsistent with treatment reports). As the ALJ noted (AR 24),
Dr. Blumberg’s treatment notes consistently stated that Plaintiff
had an “appropriate” or “clean” appearance; appropriate
attention, concentration, and speech; a normal and goal-directed
thought process; oriented and alert cognition; and normal or
adequate judgment and insight – he also frequently noted that
Plaintiff did not suffer from hallucinations, delusions, or

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suicidal ideations. (See, e.g., AR 175, 182, 184, 197, 201-02,
362, 441). Indeed, it appears that Dr. Blumberg noted
Plaintiff’s decreased concentration only once, in June 2010, and
even then he noted that it was “mild.” (See AR 442.) Such
consistently normal or mild findings fail to support Dr.
Blumberg’s opinion that Plaintiff was so significantly disabled
by her mental impairments that she was unable to, for example,
maintain concentration, perform repetitive tasks, interact with
coworkers, or complete a normal workweek without decompensating.
(See AR 192, 445.) The ALJ was therefore entitled to reject it.
Thomas, 278 F.3d at 957 (“The ALJ need not accept the opinion of
any physician, including a treating physician, if that opinion is
brief, conclusory, and inadequately supported by clinical
findings.”).

The ALJ was also entitled to rely on the opinions of medical

expert Rath and nonexamining psychiatrist Amado to reject Dr.
Blumberg’s opinions. (AR 24); see Morgan v. Comm’r of Soc. Sec.
Admin., 169 F.3d 595, 602 (9th Cir. 1999) (“we have consistently
upheld the Commissioner’s rejection of the opinion of a treating
or examining physician, based in part on the testimony of a
nontreating, nonexamining medical advisor”); Andrews v. Shalala,
53 F.3d 1035, 1042-43 (9th Cir. 1995) (ALJ permissibly rejected
opinion of examining psychologist based in part on testimony of
nonexamining medical advisor); Magallanes v. Bowen, 881 F.2d 747,
752 (9th Cir. 1989) (ALJ permissibly rejected opinion of treating
physician based in part on testimony of nonexamining medical
expert). As the ALJ noted, Drs. Rath’s and Amado’s opinions were
consistent with the objective evidence as well as with each

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other. (AR 23-24); see Thomas, 278 F.3d at 957 (“The opinions of
non-treating or non-examining physicians may also serve as
substantial evidence when the opinions are consistent with
independent clinical findings or other evidence in the record.”);
see also 20 C.F.R. §§ 404.1527(c)(4) (ALJ will generally give
more weight to opinions that are “more consistent . . . with the
record as a whole”), 416.927(c)(4) (same). For example, Dr.
Rath’s findings that Plaintiff’s impairments did not affect her
ability to understand, remember, and carry out instructions and
resulted in only “mild” difficulties in maintaining
concentration, persistence, and pace (AR 469) were consistent
with Dr. Blumberg’s findings in the narrative reports that
Plaintiff had clearly organized thought and only mildly impaired
memory and judgment (see, e.g., AR 192, 445) and his treatment
notes consistently finding that Plaintiff had appropriate
attention and concentration (see, e.g., AR 175, 197, 201-02,
362), oriented and alert cognition, and a normal and goal-
directed thought process (AR 182, 184, 441-42). Dr. Rath also
correctly found that Plaintiff’s diagnosis of post-traumatic
stress disorder included “no supportive data such as nature or
frequency of intrusive recollections or avoidant behavior,” while
her diagnosis of bipolar disorder was unsupported by any finding
or data showing “[b]ipolar cycling.” (AR 470.) Dr. Amado
similarly found that Plaintiff had only mild difficulties in
maintaining concentration, persistence, and pace; mild
restriction of activities of daily living; moderate difficulties
in maintaining social functioning; and no episodes of
decompensation of an extended duration. (AR 218.) In support of

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his findings, Dr. Amado noted that Plaintiff was “cognitively
intact,” able to participate in therapy, and “free of overt
psychosis and confusion,” among other things. (AR 220.) And
Drs. Rath and Amado reviewed Plaintiff’s full medical records
before rendering their opinions, which also supports the ALJ’s
finding that their opinions were entitled to more weight. See 20
C.F.R. §§ 404.1527(c)(6) (extent to which doctor is “familiar
with the other information in [claimant’s] case record” is
relevant factor in determining weight given to opinion),
416.927(c)(6) (same).

Plaintiff contends that Dr. Rath “omit[ted] all discussion”

of Plaintiff’s psychiatric hospitalization “despite his having
been hired by the state agency for the sole purpose of reviewing
and analyzing the medical records.” (J. Stip. at 12.) But Dr.
Rath’s report reflects that he did consider those records: he
specifically noted that they reflected a diagnosis of post-
traumatic stress disorder, a GAF score of 25, and Plaintiff’s
reported history of sexual abuse. (AR 468-69.) In any event,
Plaintiff’s psychiatric hospitalization was isolated and brief,
lasting only four days (see AR 196), and thereafter Plaintiff
reported that she was no longer suicidal and felt “a lot better”
(AR 242), which was consistent with Dr. Blumberg’s subsequent
treatment notes stating that Plaintiff had no suicidal ideations
(see AR 175, 182, 184, 197, 441-42). The fact that Dr. Rath
failed to discuss Plaintiff’s hospitalization in more detail
therefore does not establish that the ALJ erroneously relied on
his opinion.

Plaintiff is not entitled to remand on this ground.

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B.
The ALJ Properly Assessed Plaintiff’s Credibility
Plaintiff argues that the ALJ “fail[ed] to articulate a

legally valid or factually accurate rationale for finding that
[Plaintiff’s] testimony lack[ed] credibility” and that the
“adverse credibility finding was made without the support of
substantial evidence and warrants remand.” (J. Stip. at 19.)

An ALJ’s assessment of pain severity and claimant

credibility is entitled to “great weight.” See Weetman v.
Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. Heckler, 779
F.2d 528, 531 (9th Cir. 1986). “[T]he ALJ is not required to
believe every allegation of disabling pain, or else disability
benefits would be available for the asking, a result plainly
contrary to 42 U.S.C. § 423(d)(5)(A).” Molina v. Astrue, 674
F.3d 1104, 1112 (9th Cir. 2012) (internal quotation marks and
citation omitted). In evaluating a claimant’s subjective symptom
testimony, the ALJ engages in a two-step analysis. See
Lingenfelter, 504 F.3d at 1035-36. “First, the ALJ must
determine whether the claimant has presented objective medical
evidence of an underlying impairment [that] could reasonably be
expected to produce the pain or other symptoms alleged.” Id. at
1036 (internal quotation marks omitted). If such objective
medical evidence exists, the ALJ may not reject a claimant’s
testimony “simply because there is no showing that the impairment
can reasonably produce the degree of symptom alleged.” Smolen,
80 F.3d at 1282 (emphasis in original). When the ALJ finds a
claimant’s subjective complaints not credible, the ALJ must make
specific findings that support the conclusion. See Berry v.
Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). Absent affirmative

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evidence of malingering, those findings must provide “clear and
convincing” reasons for rejecting the claimant’s testimony.
Lester, 81 F.3d at 834. If the ALJ’s credibility finding is
supported by substantial evidence in the record, the reviewing
court “may not engage in second-guessing.” Thomas, 278 F.3d at
959.

In a function report dated April 16, 2009, Plaintiff stated

that her daily activities consisted of making breakfast for
herself and her grandson, sitting in her recliner, putting ice or
a heating pad on her back, napping, walking “a little,” and
taking her medication. (AR 155.) She said that she takes care
of her grandson by “po[uring] cereal” for him about “once a
month.” (AR 156.) She could cook for only about 10 minutes at a
time and did not clean or do yard work. (AR 157.) Plaintiff
said she did not drive because she would “get scared when cars
come at [her]” and would “close [her] eyes.” (AR 158.) She said
she once “woke up in the middle of the nigh[t] and took the car
and tr[i]ed to hit a telephone pole” but “ended up missin[g] and
rip[p]ed [her] bumper.” (AR 159.) Plaintiff said she did not go
out alone because she had anxiety attacks, fell a lot, and did
not do well with “a lot of people.” (AR 158.) She shopped for
groceries and clothes about once a month for an hour at a time.
(Id.) Plaintiff asserted that she was unable to pay bills,
handle a checking account, or use checks or money orders, and she
would get confused when counting money. (AR 158-59.) Plaintiff
said she had trouble getting along with others and “just like[d]
to be alone.” (AR 160.)

Plaintiff reported that her illnesses affected her ability

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to lift, squat, bend, stand, reach, walk, sit, kneel, climb
stairs, see, remember, complete tasks, concentrate, understand,
follow instructions, use her hands, and get along with others.
(Id.) She could lift only five pounds, and the farthest she
could walk without resting for five or 10 minutes was “from [the]
bedroom to [the] garage.” (Id.) Plaintiff said she could pay
attention for five minutes when she was “lucky” and could not
handle stress. (AR 160-61.) She said she did not like for other
people to change her routine, but she liked to “change things”
herself. (AR 161.) She reported that she would “see people in
the shadows of [her] home” but would not be scared and would
“just go on with what [she was] doing.” (Id.)

At the September 29, 2010 hearing before the ALJ, Plaintiff
testified that she lived with her husband, 10-year-old son, 22-
year-old daughter, and four-year-old grandson; her husband was
“on Social Security” for “medical reasons” and her daughter,
grandson, and herself received other public assistance.12 (AR
506-07.) Plaintiff testified that she was not able to work
because mentally she couldn’t “keep up” and physically her back
was “ruined.” (AR 508.) She testified that her doctors had
given her cortisone shots and “burn[ed] the nerves” in her back,
which had helped her back pain “[a] little bit.” (AR 508-09.)
Plaintiff said she felt anxious around a lot of people, had been

12

Although Plaintiff indicated that her husband was
apparently disabled, in her disability report she stated,
somewhat inconsistently, that her husband took care of their
animals, cooked for the family, reminded her to take showers,
kept all her pain medications and gave them to her when needed,
cleaned the outside of the house once or twice a week, paid all
the bills, and wrote all the checks. (AR 156-58.)

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hospitalized in March 2009 for suicidal thoughts, and still
experienced suicidal thoughts “[s]ometimes . . . every day.” (AR
511-12.) Plaintiff testified that the medication she took for
her depression helped “[a] little bit,” and her asthma was doing
“[a] lot better.” (AR 508, 511.) Plaintiff testified that she
had “severe carpal tunnel” in both hands and, as a result, could
not “grasp something heavy,” had to use two hands to grasp an
empty pan, and got hand cramps after “two lines of writing
something.” (AR 508, 510.) Plaintiff testified that she could
sit for about 15 minutes before having to stand up and that the
heaviest item she could lift was her hairbrush; she could not
lift a carton of milk because she would drop it. (AR 513.)

The ALJ found that Plaintiff’s impairments “could reasonably

be expected to cause the alleged symptoms,” but her “statements
regarding the intensity, persistence and limiting effects of
these symptoms are not credible to the extent they are
inconsistent with” Plaintiff’s RFC for a limited range of light
work. (AR 21.) The ALJ gave legally sufficient reasons for
discounting Plaintiff’s credibility to the extent it was
inconsistent with her RFC.

First, the ALJ was entitled to discount Plaintiff’s

credibility based on her many “no-shows” for mental-health
appointments “at a time when [Plaintiff] was reporting
significant disabling symptoms.” (AR 24); see Tommasetti v.
Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (in assessing
credibility, ALJ may rely on “‘unexplained or inadequately
explained failure to seek treatment or to follow a prescribed
course of treatment’” (quoting Smolen, 80 F.3d at 1284)); Bunnell

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v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991) (en banc) (ALJ may
consider “unexplained, or inadequately explained, failure to seek
treatment or follow a prescribed course of treatment” (internal
quotation marks and citation omitted)); SSR 96-7p, 1996 WL
374186, at *7 (claimant’s statements “may be less credible if the
level or frequency of treatment is inconsistent with the level of
complaints, or if the medical reports or records show that the
individual is not following the treatment as prescribed and there
are no good reasons for this failure”). Indeed, the record shows
that Plaintiff failed to report to at least eight appointments
with Dr. Blumberg between September 2008 and March 2010 (AR 177,
181, 183, 198, 206-07, 366, 440), and nothing indicates that her
failure to report for treatment was a result of her mental
impairments, see Molina, 674 F.3d at 1113-14 (ALJ permissibly
discounted credibility based on failure to seek psychiatric care
for anxiety disorder when “no medical evidence” showed that
claimant’s resistence to treatment “was attributable to her
mental impairment rather than her own personal preference”).
Plaintiff contends that the ALJ erroneously discounted her

credibility based on her many missed psychiatric appointments
because the Ninth Circuit, in Regennitter v. Comm’r of Soc. Sec.
Admin., 166 F.3d 1294, 1299-1300 (9th Cir. 1999), “criticized the
use of a lack of treatment to reject mental complaints” and noted
that “it is a questionable practice to chastise one with a mental
impairment for the exercise of poor judgment in seeking
rehabilitation.” (J. Stip. at 19 (internal quotation marks
omitted).) In Regennitter and similar cases, however, the
plaintiff failed to seek any mental health treatment at all. See

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Regennitter, 166 F.3d at 1299-1300 (ALJ improperly discounted
examining physician’s opinion based on plaintiff’s “failure,
because of his poverty, to seek treatment by any mental
professional” (internal quotation marks omitted)); Nguyen v.
Chater, 100 F.3d 1462, 1465 (9th Cir. 1996) (“the fact that
claimant may be one of millions of people who did not seek
treatment for a mental disorder until late in the day is not a
substantial basis on which to conclude that [physician’s]
assessment of claimant’s condition is inaccurate”); Blankenship
v. Bowen, 874 F.2d 1116, 1124 (9th Cir. 1989) (“Appellant may
have failed to seek psychiatric treatment for his mental
condition, but it is a questionable practice to chastise one with
a mental impairment for the exercise of poor judgment in seeking
rehabilitation.”). Here, by contrast, Plaintiff sought and
received mental-health treatment but simply failed to comply with
her treatment regimen by skipping her scheduled appointments.
Nothing in the record indicates that she did so as a result of
her mood disorder.

Second, the ALJ’s finding that Plaintiff’s alleged symptoms

were not supported by objective evidence was a clear and
convincing reason for discounting Plaintiff’s credibility. (AR
24 (noting that Plaintiff’s complaints appeared “so extreme as to
appear implausible, especially in light of the lack of objective
physical and mental findings”); see also AR 21 (“There is no
evidence from an objective medical perspective to indicate that
[Plaintiff] is incapable of performing work at a light level of
exertion.”)); see Carmickle, 533 F.3d at 1161 (“Contradiction
with the medical record is a sufficient basis for rejecting the

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claimant’s subjective testimony.”); Lingenfelter, 504 F.3d at
1040 (in determining credibility, ALJ may consider “whether the
alleged symptoms are consistent with the medical evidence”);
Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (“Although
lack of medical evidence cannot form the sole basis for
discounting pain testimony, it is a factor that the ALJ can
consider in his credibility analysis.”); Kennelly v. Astrue, 313
F. App’x 977, 979 (9th Cir. 2009) (same). Indeed, Plaintiff
complained that her “severe” carpal tunnel syndrome prevented her
from grasping even an empty pan or lifting anything heavier than
her hairbrush (AR 508, 510, 513), but as the ALJ found (AR 22),
EMG studies showed only “mild” bilateral carpal tunnel syndrome
(AR 406-08), and Plaintiff’s pain-management doctor, Dr. Thio,
found that Plaintiff’s upper extremities had normal sensation and
“5/5” motor function, with no swelling or redness (AR 268). The
ALJ also noted that an April 2007 lumbar-spine MRI, which was
part of the record of Plaintiff’s previous adjudication, had
shown “a 3 mm disc protrusion at the L5-S1 level with a small
annular tear, and disc dessication,” and that “no additional
studies” demonstrated “a more significant back disorder.” (AR
21; see also AR 36 (ALJ Pease’s summary of lumbar-spine MRI).)
The ALJ noted Dr. Thio’s finding that Plaintiff had reduced range
of motion and tenderness of the back but normal sensation and
full motor function in her lower extremities (AR 22, 269), and
she accommodated those findings by limiting Plaintiff’s RFC to
only occasional posturals and no climbing or working at
unprotected heights. (AR 22.) Indeed, Plaintiff fails to
challenge the ALJ’s finding that Plaintiff’s subjective symptom

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testimony was not supported by the objective medical evidence.
(See J. Stip. at 17-19.)

Finally, the ALJ was entitled to discount Plaintiff’s

credibility based on her inconsistent statements regarding her
daily activities. See Smolen, 80 F.3d at 1284 (ALJ may use
“ordinary techniques of credibility evaluation,” such as “prior
inconsistent statements concerning the symptoms, and other
testimony by the claimant that appears less than candid”);
Thomas, 278 F.3d at 958-59 (in assessing credibility, ALJ may
consider inconsistencies either in claimant’s testimony or
between testimony and conduct); cf. Molina, 674 F.3d at 1113
(“Even where [claimant’s] activities suggest some difficulty
functioning, they may be grounds for discrediting the claimant’s
testimony to the extent that they contradict claims of a totally
debilitating impairment.”). The ALJ noted that in March 2007,
during the previous adjudication, Plaintiff had reported to an
examining physician that she “was able to attend to self care in
terms of dressing and bathing herself,” drive a car, and get
rides from friends, and that her daily activities included
“household chores, yard and gardening work, preparing meals,
going to the store, running errands and getting her son ready for
school.” (AR 19; see also AR 34-35 (ALJ Pease’s decision noting
Plaintiff’s report of daily activities).) Although the medical
evidence fails to establish any significant worsening of
Plaintiff’s medical conditions since the previous adjudication,
Plaintiff subsequently claimed, in her April 2009 function report
and at the September 2010 hearing, that she was unable to perform
any chores or yard work, cook for more than 10 minutes at a time,

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or drive a car; she also said she could walk only from her
bedroom to the garage and lift only the weight of her hairbrush.
(See AR 157-58, 160, 513); see Chavez, 844 F.2d at 693 (to
overcome “presumption of continuing nondisability arising from
the first [ALJ’s] findings of nondisability,” claimant “must
prove changed circumstances indicating a greater disability”
(citation and internal quotation marks omitted)). Thus, the ALJ
reasonably concluded that Plaintiff’s previous report of fairly
normal activities “indicates that [Plaintiff’s] daily activities
maybe [sic] somewhat greater than” those reported in Plaintiff’s
more recent disability report. (AR 19.) Plaintiff, moreover,
fails to challenge this finding. (See AR 17-19.)

One of the ALJ’s credibility findings, however, might not
have been clear and convincing. The ALJ found that Plaintiff
received only “conservative care” for her back disorder,
“includ[ing] a series of epidural injections and medication
management.” (AR 21-22; see also AR 24 (noting that Plaintiff’s
“treatment for her pain complaints has been conservative in
nature”).) Indeed, in addition to pain medications, Plaintiff
underwent three epidural injections (AR 255-56, 259-62), three
rounds of lumbar-facet and sacroiliac-joint injections (AR 415,
418, 425), and a radiofrequency bilateral lumbar facet
neurotomy13 (AR 432). Epidural and trigger-point injections,

13

Radiofrequency neurotomy is a procedure to reduce back
and neck pain by using heat generated by radio waves to damage
specific nerves and temporarily interfere with their ability to
transmit pain signals. Radiofrequency neurotomy, Mayo Clinic,
http://www.mayoclinic.com/health/radiofrequency-neurotomy/MY00947
(last updated Jan. 24, 2012).

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however, may not be consistent with a finding of conservative
treatment. See Tagle v. Astrue, No. CV–11–7093–SP, 2012 WL
4364242, at *4 (C.D. Cal. Sept. 21, 2012) (“While physical
therapy and pain medication are conservative, epidural and
trigger point injections are not.”); Christie v. Astrue, No. CV
10–3448–PJW, 2011 WL 4368189, at *4 (C.D. Cal. Sept. 16, 2011)
(refusing to characterize steroid, trigger-point, and epidural
injections as conservative). Despite that potential error,
however, remand is not required because the remainder of the
ALJ’s credibility findings were supported by substantial evidence
in the record. See Carmickle, 533 F.3d at 1162; Batson, 359 F.3d
at 1197. This Court may not “second-guess” the ALJ’s credibility
finding simply because the evidence may have been susceptible of
other interpretations more favorable to Plaintiff. See
Tommasetti, 533 F.3d at 1039. Reversal is therefore not
warranted on this basis.

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VII. CONCLUSION

Consistent with the foregoing, and pursuant to sentence four

of 42 U.S.C. § 405(g),14 IT IS ORDERED that judgment be entered
AFFIRMING the decision of the Commissioner and dismissing this
action with prejudice. IT IS FURTHER ORDERED that the Clerk
serve copies of this Order and the Judgment on counsel for both
parties.

DATED: June 4, 2013

______________________________
JEAN ROSENBLUTH
U.S. Magistrate Judge

14

This sentence provides: “The [district] court shall
have power to enter, upon the pleadings and transcript of the
record, a judgment affirming, modifying, or reversing the
decision of the Commissioner of Social Security, with or without
remanding the cause for a rehearing.”

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