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Case 8:13-cv-00235-E Document 18 Filed 09/20/13 Page 1 of 12 Page ID #:1702

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Plaintiff,

v.

JUAN MARCOS ACEVEDO-RODRIGUEZ, )
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___________________________________)

CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,1

Defendant.

NO. SA CV 13-235-E

MEMORANDUM OPINION

PROCEEDINGS

Plaintiff filed a Complaint on February 13, 2013, seeking review

of the Commissioner’s denial of benefits. The parties filed a consent

to proceed before a United States Magistrate Judge on March 12, 2013.

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Carolyn W. Colvin, who became Acting Commissioner of

Social Security as of February 14, 2013, is hereby substituted as
Defendant in this matter. See Fed. R. Civ. P. 25(d)(1); 42
U.S.C. § 405(g).

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Case 8:13-cv-00235-E Document 18 Filed 09/20/13 Page 2 of 12 Page ID #:1703

Plaintiff filed a motion for summary judgment on August 14, 2013.

Defendant filed a motion for summary judgment on September 10, 2013.

The Court has taken both motions under submission without oral

argument. See L.R. 7-15; “Order,” filed February 19, 2013.

BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

Plaintiff asserted disability since May 14, 2007, based on a

variety of alleged physical and mental impairments (Administrative

Record (“A.R.”) 54-60, 146-63, 173, 960-66). The Administrative Law

Judge (“ALJ”) examined the voluminous record and heard testimony from

Plaintiff, a medical expert and a vocational expert (A.R. 18-254, 263-

1552).

The ALJ found Plaintiff has certain severe physical and mental

impairments, but retains the residual functional capacity to perform a

limited range of light work (A.R. 23, 25). Relying on the testimony

of the vocational expert, the ALJ found that Plaintiff could perform

particular jobs existing in significant numbers in the national

economy (A.R. 29-30, 61-62). The ALJ deemed not fully credible

Plaintiff’s testimony regarding the severity of his subjective

symptoms (A.R. 25-28). The ALJ rejected the opinions of Plaintiff’s

treating physician, Dr. Nina Trinh, who had opined Plaintiff could not

perform even sedentary work (A.R. 27). The Appeals Council considered

additional evidence, but denied review (A.R. 1-4, 255-62, 1553-1617).

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Case 8:13-cv-00235-E Document 18 Filed 09/20/13 Page 3 of 12 Page ID #:1704

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STANDARD OF REVIEW

Under 42 U.S.C. section 405(g), this Court reviews the

Administration’s decision to determine if: (1) the Administration’s

findings are supported by substantial evidence; and (2) the

Administration used proper legal standards. See Carmickle v.

Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue,

499 F.3d 1071, 1074 (9th Cir. 2007). Substantial evidence is “such

relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401

(1971) (citation and quotations omitted); Widmark v. Barnhart, 454

F.3d 1063, 1067 (9th Cir. 2006).

Where, as here, the Appeals Council considered additional

material but denied review, the additional material becomes part of

the Administrative Record for purposes of the Court’s analysis. See

Brewes v. Commissioner, 682 F.3d 1157, 1163 (9th Cir. 2012) (“[W]hen

the Appeals Council considers new evidence in deciding whether to

review a decision of the ALJ, that evidence becomes part of the

administrative record, which the district court must consider when

reviewing the Commissioner’s final decision for substantial

evidence.”; expressly adopting Ramirez v. Shalala, 8 F.3d 1449, 1452

(9th Cir. 1993)); Taylor v. Commissioner, 659 F.3d 1228, 1231 (2011)

(courts may consider evidence presented for the first time to the

Appeals Council “to determine whether, in light of the record as a

whole, the ALJ’s decision was supported by substantial evidence and

was free of legal error”); Penny v. Sullivan, 2 F.3d 953, 957 n.7 (9th

Cir. 1993) (“the Appeals Council considered this information and it

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Case 8:13-cv-00235-E Document 18 Filed 09/20/13 Page 4 of 12 Page ID #:1705

became part of the record we are required to review as a whole”); see

generally 20 C.F.R. §§ 404.970(b), 416.1470(b).

DISCUSSION

After consideration of the record as a whole, Defendant’s motion

is granted and Plaintiff’s motion is denied. The Administration’s

findings are supported by substantial evidence and are free from

material2 legal error. Plaintiff’s contrary arguments are

unavailing.3

I.

Substantial Evidence Supports the ALJ’s Residual Functional

Capacity Determination.

Substantial medical evidence supports the ALJ’s determination

that Plaintiff can perform a limited range of light work. Dr. Ursula

Taylor, a consultative examining internist, opined Plaintiff retains a

physical capacity consistent with the ALJ’s conclusions (A.R. 1082-

87). Dr. Ernest Bagner, a consultative examining psychiatrist, opined

Plaintiff retains a mental capacity consistent with the ALJ’s

conclusions (A.R. 1096-99). These doctors’ opinions constitute

substantial evidence supporting the ALJ’s residual functional capacity

2

The harmless error rule applies to the review of

administrative decisions regarding disability. See McLeod v.
Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011); Burch v. Barnhart,
400 F.3d 676, 679 (9th Cir. 2005).

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The Court has considered all of Plaintiff’s arguments

and has found those arguments unpersuasive. The Court discusses
Plaintiff’s principal arguments herein.

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Case 8:13-cv-00235-E Document 18 Filed 09/20/13 Page 5 of 12 Page ID #:1706

determination. See Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th

Cir. 2001) (consultative examiner’s opinion is substantial evidence

that can support an ALJ’s finding of nondisability); see also Orn v.

Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (examining physician’s

independent clinical findings are substantial evidence).

The opinions of non-examining State agency physicians provide

further support for the ALJ’s determination. See Tonapetyan v.

Halter, 242 F.3d at 1149 (non-examining physician’s opinion may

constitute substantial evidence when opinion is consistent with

independent evidence of record); Lester v. Chater, 81 F.3d 821, 831

(9th Cir. 1995) (same). State agency physicians opined Plaintiff

retains a residual functional capacity at least as great as the

capacity the ALJ found to exist (A.R. 1089-93, 1100-17).

Additionally, the medical expert, Dr. Goldhamer, gave testimony

at the administrative hearing consistent with the residual functional

capacity the ALJ found to exist (A.R. 50-51). Where, as here, the

opinions of non-examining experts do not contradict “all other

evidence in the record,” the Administration properly may rely on such

opinions. See Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995);

Curry v. Sullivan, 925 F.2d 1127, 1130 n.2 (9th Cir. 1990).

The record contains conflicting medical evidence, but it was the

prerogative of the ALJ to resolve the conflicts. See Lewis v. Apfel,

236 F.3d 503, 509 (9th Cir. 2001). Where, as here, the evidence “is

susceptible to more than one rational interpretation,” the Court must

uphold the administrative decision. See Andrews v. Shalala, 53 F.3d

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Case 8:13-cv-00235-E Document 18 Filed 09/20/13 Page 6 of 12 Page ID #:1707

at 1039-40; accord Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir.

2002); Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997).

II. The ALJ Did Not Materially Err in Evaluating Plaintiff’s

Credibility.

Although Plaintiff testified to subjective symptoms of allegedly

disabling severity, the ALJ found this testimony less than fully

credible (A.R. 26-28, 55-60). Contrary to Plaintiff’s arguments, the

ALJ did not thereby materially err.

An ALJ’s assessment of a claimant’s credibility is entitled to

“great weight.” Anderson v. Sullivan, 914 F.2d 1121, 1124 (9th Cir.

1990); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985). The

discounting of a claimant’s testimony regarding subjective symptoms

must be supported by specific, cogent findings. See Lester v. Chater,

81 F.3d at 834; see also Berry v. Astrue, 622 F.3d 1228, 1234 (9th

Cir. 2010) (reaffirming same); but see Smolen v. Chater, 80 F.3d 1273,

1282-84 (9th Cir. 1996) (indicating that ALJ must offer “specific,

clear and convincing” reasons to reject a claimant’s testimony where

there is no evidence of malingering).4 As discussed below, the ALJ

4

In the absence of an ALJ’s reliance on evidence of

“malingering,” most recent Ninth Circuit cases have applied the
“clear and convincing” standard. See, e.g., Chaudhry v. Astrue,
688 F.3d 661, 670, 672 n.10 (9th Cir. 2012); Molina v. Astrue,
674 F.3d 1104, 1112 (9th Cir. 2012); Taylor v. Commissioner, 659
F.3d at 1234; see also Ballard v. Apfel, 2000 WL 1899797, at *2
n.1 (C.D. Cal. Dec. 19, 2000) (collecting earlier cases). In the
present case, the ALJ’s findings are sufficient under either
standard, so the distinction between the two standards (if any)

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(continued...)

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Case 8:13-cv-00235-E Document 18 Filed 09/20/13 Page 7 of 12 Page ID #:1708

stated sufficient reasons for deeming Plaintiff’s testimony less than

fully credible.

The ALJ properly reasoned that the objective medical evidence did

not support a level of physical or mental symptomatology that would

prevent Plaintiff from working (A.R. 26-28). Although a claimant’s

credibility “cannot be rejected on the sole ground that it is not

fully corroborated by objective medical evidence, the medical evidence

is still a relevant factor. . . .” Rollins v. Massanari, 261 F.3d

853, 857 (9th Cir. 2001). Here, the medical evidence suggests

Plaintiff’s mental and physical problems have not been, and are not

now, as profound as he has claimed (A.R. 266-434, 438-801, 803-05,

807-958, 969-1087, 1096-99, 1119-1195, 1199-1404, 1406-73, 1475, 1477-

78, 1480-1546, 1548-52, 1556-1603).

The ALJ also properly cited direct evidence of Plaintiff’s

exaggeration of his symptoms (A.R. 28). According to Dr. Taylor,

Plaintiff “ambulated with mild antalgia into the room” but thereafter

claimed he could not get out of the chair, could not cooperate with

the examination, and could not even walk back out of the room without

being “partially carried” (A.R. 1084-87). Dr. Taylor reasonably

concluded that “there appears to be great exaggeration of symptoms”

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4(...continued)

is academic. The Court observes, however, that the ALJ did cite
evidence of Plaintiff’s malingering (A.R. 28, 1084-87).

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Case 8:13-cv-00235-E Document 18 Filed 09/20/13 Page 8 of 12 Page ID #:1709

(A.R. 1086).5 A claimant’s demonstrated tendency to exaggerate can

furnish an adequate reason for rejecting the claimant’s credibility.

See, e.g., Tonapetyan v. Halter, 242 F.3d at 1148; Bickell v. Astrue,

343 Fed. App’x 275, 277-78 (9th Cir. 2009); see also Copeland v.

Bowen, 861 F.2d 536, 541 (9th Cir. 1988) (disparity between a

claimant’s representations and the observations of an examiner

properly may impeach a claimant’s credibility).

In evaluating Plaintiff’s credibility, the ALJ also stated:

The claimant testified that he dropped things and as a

result was unable to do household chores, but these

assertions are inconsistent with his statements noted above

as to being able to engage in household chores. The

claimant claims grogginess from his medications, although he

testified that he walks his dog, takes his daughter to

school and does exercises for his knees, hands and wrists.

It seems unlikely that an individual with a degree of pain,

grogginess and dysfunction as alleged by the claimant would

have the motivation, stamina, alertness etc., of doing these

types of activities.

(A.R. 28).

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5

Plaintiff asserts he “was having a bad day with his

knee” when he went to Dr. Taylor’s office (Plaintiff’s Motion at
12). This assertion, which the ALJ was not obligated to credit,
fails to explain why Plaintiff could walk into, but supposedly
could not walk out of, the same office on the same day.

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Case 8:13-cv-00235-E Document 18 Filed 09/20/13 Page 9 of 12 Page ID #:1710

Inconsistences between a claimant’s testimony and his or her

actions can support the rejection of the claimant’s credibility. See,

e.g., Molina v. Astrue, 674 F.3d at 1112; Thomas v. Barnhart, 278 F.3d

at 958-59; Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999).6

Thus, the ALJ stated sufficient reasons to allow this Court to

conclude that the ALJ discounted Plaintiff’s credibility on

permissible grounds. See Moisa v. Barnhart, 367 F.3d 882, 885 (9th

Cir. 2004). The Court therefore defers to the ALJ’s credibility

determination. See Lasich v. Astrue, 252 Fed. App’x 823, 825 (9th

Cir. 2007) (court will defer to ALJ’s credibility determination when

the proper process is used and proper reasons for the decision are

provided); accord Flaten v. Secretary of Health & Human Services, 44

F.3d 1453, 1464 (9th Cir. 1995).

III. The ALJ Did Not Err in Rejecting the Opinions of Dr. Trinh.

An ALJ must provide “specific, legitimate reasons” based on

substantial evidence in the record for rejecting a treating

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Plaintiff’s testimony concerning a purported inability

to perform housework because of dropping things from his hands is
not entirely clear, but does seem arguably inconsistent with
Plaintiff’s unqualified report to a consultative examiner that
Plaintiff performs housework (compare A.R. 56 with A.R. 1097).
Assuming arguendo, however, that the ALJ’s partial reliance on
this consideration was improper, the ALJ’s credibility
determination nevertheless would stand. Under Carmickle v.
Commissioner, 533 F.3d 1155, 1163 (9th Cir. 2008), the infirmity
of one or two supporting reasons for an ALJ’s credibility
determination does not require overturning the determination if
independently valid supporting reasons remain. Independently
valid supporting reasons remain in the present case.

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Case 8:13-cv-00235-E Document 18 Filed 09/20/13 Page 10 of 12 Page ID #:1711

physician’s contradicted opinion. See Valentine v. Commissioner, 574

F.3d 685, 692 (9th Cir. 2009); Orn v. Astrue, 495 F.3d at 631-33.

Contrary to Plaintiff’s arguments, the ALJ stated sufficient specific,

legitimate reasons for rejecting the contradicted opinions of Dr.

Trinh.

The ALJ stated:

Dr. Trinh went on to assess restrictions below an even

sedentary functional capacity . . . and elsewhere in the

record, requested that [Plaintiff] be placed on disability

partly on the basis of fibromyalgia,[7] and symptoms which

include cognitive deficits, fatigue, diffuse joint pain.

. . . The assessed restrictions from a physical standpoint

are not explained by the treatment notes which for the most

part are notable for primary subjective tenderness and

decreased sensation. Significant cognitive deficits were

not noted on the examination of Dr. Bagner . . . nor are any

noted within the records of Dr. Trinh except for claimant’s

subjective allegations.

(A.R. 27) (footnoted added).

Thus, the ALJ rejected Dr. Trinh’s opinions because, inter alia,

the opinions relied on Plaintiff’s subjective complaints. An ALJ is

free to disregard a treating physician’s opinions that are based on a

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The ALJ properly found Plaintiff does not have any

severe fibromyalgia (A.R. 23-24).

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claimant’s subjective complaints where the ALJ has properly discounted

those subjective complaints. See Tonapetyan v. Halter, 242 F.3d at

1149; Fair v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989) (disregarding

opinion premised on claimant’s properly-discounted subjective

complaints is a specific, legitimate reason for rejecting a treating

physician’s opinion); see also Mattox v. Commissioner of Social

Security, 371 Fed. App’x 740, 742 (9th Cir. 2010) (“a physician’s

opinion of disability premised to a large extent upon the claimant’s

own accounts of his symptoms and limitations may be disregarded where

those complaints have been properly discounted”) (internal quotations

and citations omitted). As discussed above, the ALJ properly

discounted Plaintiff’s subjective complaints.8

Additionally, the ALJ properly rejected Dr. Trinh’s opinions as

unsupported by Dr. Trinh’s treatment notes. See Bayliss v. Barnhart,

427 F.3d 1211, 1216 (9th Cir. 2005) (contradiction between treating

physician’s assessment and clinical notes justifies rejection of

assessment); Batson v. Commissioner, 359 F.3d 1190, 1195 (9th Cir.

2004) (“an ALJ may discredit treating physicians’ opinions that are

conclusory, brief, and unsupported by the record as a whole . . . or

by objective medical findings”); Connett v. Barnhart, 340 F.3d 871,

875 (9th Cir. 2003) (treating physician’s opinion properly rejected

where treating physician’s treatment notes “provide no basis for the

functional restrictions he opined should be imposed on [the

8

Significantly, Dr. Trinh relied in part on Plaintiff’s

self-reported alleged cognitive problems. As the ALJ pointed
out, mental status testing of Plaintiff by Dr. Bagner tended to
refute Plaintiff’s allegations of such problems (A.R. 27, 1097-
98).

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claimant].”).

CONCLUSION

For all of the reasons discussed herein, Plaintiff’s motion for

summary judgment is denied and Defendant’s motion for summary judgment

is granted.9

LET JUDGMENT BE ENTERED ACCORDINGLY.

DATED: September 20, 2013.

______________/S/_________________

CHARLES F. EICK

UNITED STATES MAGISTRATE JUDGE

9

The Court has considered and rejected each of

Plaintiff’s arguments. Neither Plaintiff’s arguments nor the
circumstances of this case show any “substantial likelihood of
prejudice” resulting from any error allegedly committed by the
Administration. See generally McLeod v. Astrue, 640 F.3d 881,
887-88 (9th Cir. 2011) (discussing the standards applicable to
evaluating prejudice).

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