Opinion
For Ruby B. Johnson, Plaintiff: Vijay Jagdish Patel, LEAD ATTORNEY, Law Offices of Lawrence D Rohlfing, Santa Fe Springs, CA.
For Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant: Assistant U.S. Attorney LA-CV, LEAD ATTORNEY, AUSA - Office of U.S. Attorney, Los Angeles, CA; Assistant U.S. Attorney LA-SSA, LEAD ATTORNEY, Office of the General Counsel for Social Security Adm., San Francisco, CA; Sundeep R Patel, LEAD ATTORNEY, SAUSA - Office of the United States Attorney, San Francisco, CA.
MEMORANDUM AND ORDER
HON. KENLY KIYA KATO, United States Magistrate Judge.
Plaintiff Ruby B. Johnson seeks review of the final decision of the Commissioner of the Social Security Administration (" Commissioner" or " Agency") denying her applications for Title II Disability Insurance Benefits (" DIB") and Title XVI Supplemental Security Income (" SSI"). The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge, pursuant to 28 U.S.C. § 636(c). For the reasons stated below, the Commissioner's decision is AFFIRMED.
I .
PROCEDURAL HISTORY
On March 16, 2011, Plaintiff filed separate applications for DIB and SSI. Administrative Record (" AR") at 115-27. The applications were denied initially on May 18, 2011, and upon reconsideration on June 30, 2011. Id. at 54-73.
On July 26, 2011, Plaintiff requested a hearing before an Administrative Law Judge (" ALJ"). Id. at 83. On May 11, 2012, a hearing was held, before ALJ Cynthia A. Minter, at which Plaintiff was represented by counsel. Id. at 30. On October 24, 2012, the ALJ issued a decision denying Plaintiff's applications. Id. at 10.
On November 5, 2012, Plaintiff asked the Agency's Appeals Council to review the ALJ's decision. Id. at 7. On May 20, 2014, the Appeals Council denied Plaintiff's request for review. Id. at 1.
On July 9, 2014, Plaintiff filed the instant action. ECF No. 1. This matter is before the Court on the parties' Joint Stipulation (" JS"), filed May 4, 2015, which the Court has taken under submission without oral argument. ECF No. 17.
II .
STANDARD FOR EVALUATING DISABILITY
In order to qualify for DIB or SSI, a claimant must demonstrate a medically determinable physical or mental impairment that (1) prevents the claimant from engaging in substantial gainful activity, and (2) is expected to result in death or to last for a continuous period of at least twelve months. Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998). The impairment must render the claimant incapable of performing past relevant work and incapable of performing any other substantial gainful work that exist in the national economy. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).
To decide if a claimant is disabled, and therefore entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. § § 404.1520, 416.920. The steps are:
(1) Is the claimant presently engaged in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two.
(2) Is the claimant's impairment severe? If not, the claimant is found not disabled. If so, proceed to step three.
(3) Does the claimant's impairment meet or equal one of the specific impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, the claimant is found disabled. If not, proceed to step four.
" Between steps three and four, the ALJ must, as an intermediate step, assess the claimant's [residual functional capacity]." Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222-23 (9th Cir. 2009) (citing 20 C.F.R. § 416.920(e)). In determining a claimant's residual functional capacity, an ALJ must consider all relevant evidence in the record. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006).
(4) Is the claimant capable of performing past relevant work? If so, the claimant is found not disabled. If not, proceed to step five.
(5) Is the claimant able to do any other work? If not, the claimant is found disabled. If so, the claimant is found not disabled.
Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001); 20 C.F.R. § § 404.1520(b)-(g)(1), 416.920(b)-(g)(1).
The claimant has the burden of proof at steps one through four, and the Commissioner has the burden of proof at step five. Bustamante, 262 F.3d at 953-54. Additionally, the ALJ has an affirmative duty to assist the claimant in developing the record at every step of the inquiry. Id. at 954. If, at step four, the claimant meets the burden of establishing an inability to perform past work, the Commissioner must show that the claimant can perform some other work that exists in " significant numbers" in the national economy, taking into account the claimant's residual functional capacity (" RFC"), age, education, and work experience. Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 721; 20 C.F.R. § § 404.1520(g)(1), 416.920(g)(1).
III .
THE ALJ'S DECISION
At step one, the ALJ found Plaintiff " has not engaged in substantial gainful activity since January 11, 2011, the alleged onset date." AR at 15 (citations omitted). At step two, the ALJ found Plaintiff " has the following severe impairments: right knee arthritis; cervical degenerative disc disease; and lumbar strain." Id. (citations omitted). At step three, the ALJ found Plaintiff does not have an impairment or combination of impairments that meets or medically equals the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. at 16.
Before reaching step four, the ALJ found Plaintiff has the RFC " to lift and carry 10 pounds frequently and 20 pounds occasionally; sit or stand/walk for 15 to 20 minutes at a time, with the need to alternate positions, for a total of 4 hours each per 8-hour workday; occasionally stoop, climb stairs, kneel, crouch, and walk on uneven terrain for short distances; no climbing ladders or crawling; frequent gross manipulations with the hands, but not constantly or repetitively." Id. at 16. At step four, the ALJ found Plaintiff is " unable to perform any past relevant work." Id. at 18 (citations omitted). At step five, the ALJ found Plaintiff is capable of performing jobs that exist in significant numbers in the national economy. Id.
IV .
DISCUSSION
The sole disputed issue is " [w]hether the ALJ provided clear and convincing reasons for finding Ruby Johnson not credible." JS at 4.
A. Background
In her application for benefits, Plaintiff alleged disability based upon neck spasms, back spasms, arthritis in her knees, a pinched nerve in her back, and bronchitis. AR at 158.
In assessing Plaintiff's RFC, the ALJ did not credit Plaintiff's allegation of total " disability as a result of her physical impairments." Id. at 16. In making this adverse credibility finding, the ALJ stated " the objective evidence does not support the imposition of work restrictions beyond those set forth in the residual functional capacity." Id. at 17. With respect to Plaintiff's alleged knee problems, the ALJ noted that, although X-ray examinations showed " soft tissue swelling and early spurring of the patella" in Plaintiff's right knee, they showed " no significant evidence of osteoarthritis" in the right knee and " no abnormalities" at all in the left knee. Id. (citing id. at 187-209, 224-32). With respect to Plaintiff's alleged neck and back problems, the ALJ noted that, although the record contained evidence of degenerative disc disease, Plaintiff's recent treatment notes " show a diagnosis for only lumbar strain" and show " no evidence of radiculopathy." Id. (citing, inter alia, id. at 348, 386).
The ALJ also found Plaintiff's " treatment with medications" was conservative. Id. Finally, the ALJ noted the absence of any " treating, examining, or reviewing physician opinion that advocates for greater functional restrictions than those delineated in the above residual functional capacity." Id.
B. Relevant Law
" In assessing the credibility of a claimant's testimony regarding subjective pain or the intensity of symptoms, the ALJ engages in a two-step analysis." Molina, 674 F.3d at 1112 (citation omitted). " First, the ALJ must determine whether there is objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged." Id. (citations and internal quotation marks omitted). " If the claimant has presented such evidence, and there is no evidence of malingering, then the ALJ must give specific, clear, and convincing reasons in order to reject the claimant's testimony about the severity of the symptoms." Id. (citations and internal quotation marks omitted). " At the same time, the ALJ is not required to believe every allegation of disabling pain, or else disability benefits would be available for the asking . . . ." Id. (citations and internal quotation marks omitted).
" In evaluating the claimant's testimony, the ALJ may use ordinary techniques of credibility evaluation." Id. (citations and internal quotation marks omitted). " For instance, the ALJ may consider inconsistencies either in the claimant's testimony or between the testimony and the claimant's conduct; unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and whether the claimant engages in daily activities consistent with the alleged symptoms . . . ." Id. (citations and internal quotation marks omitted).
" When evidence reasonably supports either confirming or reversing the ALJ's decision, we may not substitute our judgment for that of the ALJ." Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014) (citation and internal quotation marks omitted). Even if " the ALJ erred in relying on one of several reasons in support of an adverse credibility determination, " the error is considered harmless if " the ALJ's remaining reasoning and ultimate credibility determination were adequately supported by substantial evidence in the record." Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (citation and emphasis omitted). " So long as there remains substantial evidence supporting the ALJ's conclusions on credibility and the error does not negate the validity of the ALJ's ultimate credibility conclusion, such is deemed harmless and does not warrant reversal." Id. (citations, internal quotation marks, and alterations omitted); see also id. at 1163 (" Here, the ALJ's decision finding [the claimant] less than fully credible is valid, despite the [ALJ's] errors . . . .").
C. Application
The Court finds the ALJ's adverse credibility determination was supported by substantial evidence in the record. In making the determination, the ALJ permissibly noted Plaintiff's conservative treatment, the absence of objective evidence that Plaintiff has greater limitations than the RFC assessment, and the absence of any medical opinion that Plaintiff is disabled. See Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (" [E]vidence of 'conservative treatment' is sufficient to discount a claimant's testimony regarding severity of an impairment."); Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005) (noting that, although " an ALJ may not reject a claimant's subjective complaints based solely on a lack of objective medical evidence, " the lack of such evidence remains a relevant consideration) (emphasis added; citation omitted); Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999) (" None of the [claimant's] treating or examining physicians ever indicated that [he] was disabled."). Assuming arguendo " the ALJ erred in relying on one of several reasons" in making the adverse credibility finding, the " remaining reasoning and ultimate credibility determination were adequately supported by substantial evidence in the record." Carmickle, 533 F.3d at 1162.
Plaintiff argues the ALJ's credibility finding is incorrect because: (1) " the record contains an abundant amount of objective evidence that substantiate Ms. Johnson's testimony"; (2) " Ms. Johnson does not treat her pain conservatively because she ingests narcotic medications, underwent invasive injections for pain management, and ingests 800 mg Ibuprofen"; and (3) " none of th[e] treatment modalities have helped Ms. Johnson." JS at 6-7 (citations omitted). These arguments are unavailing.
With respect to Plaintiff's first argument, Plaintiff cites various portions of the Administrative Record as representative of the " abundant amount of objective evidence that substantiate Ms. Johnson's testimony." Id. at 6 (citing AR at 189, 208, 216, 220, 257, 311, 366-67, 371, 377). In fact, none of the pages of the AR that Plaintiff cites provide objective evidence of disability. On the contrary, many of the pages merely consist of Plaintiff's subjective complaints of pain. Compare JS at 6 with AR at 189, 208, 216, 259. Other pages cited by Plaintiff merely show she was referred for pulmonary surgery, referred to an orthopedist, and referred to a surgery clinic for evaluation for a possible incision and drainage of soft tissue mass in Plaintiff's chest wall. JS at 6 (citing AR at 257, 260, 377). These referrals do not constitute " abundant" evidence of disability; the Court is not aware of any authority, and Plaintiff does not cite any, stating referral to a specialist or for possible surgery proves disability.
With respect to Plaintiff's second argument, Plaintiff cites various portions of the AR to support the claim that she has undergone " invasive injections for pain management." JS at 6 (citing AR at 144, 186, 190, 216, 225, 300, 366-67). However, none of the cited pages show Plaintiff received pain injections. At most, one of the cited pages merely states Plaintiff and her doctor discussed steroid injections in the knee. AR at 367. In fact, in the Joint Stipulation, the Agency notes the absence of actual evidence that Plaintiff received treatment injections; Plaintiff fails to respond to this argument. JS at 9. However, even assuming Plaintiff once received pain injections, she testified at the hearing before the ALJ that her treatment regimen consisted of " [s]tretching"; Naprosyn, an anti-inflammatory drug; and Robaxin, a pain reliever. AR at 36-37. Hence, substantial evidence supported the ALJ's finding that this treatment regimen was conservative. See Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (characterizing " physical therapy and the use of anti-inflammatory medication, a transcutaneous electrical nerve stimulation unit, and a lumbosacral corset" as " conservative treatment"); Jones v. Colvin, No. 13-1616-JCG, 2014 WL 2938518, at *4 (C.D. Cal. 2014) (describing as " conservative" a treatment regimen of " pain killers, anti-depressants, physical therapy, stretching, and weight loss"); Garcia v. Colvin, No. 2: 14-796-SH, 2014 WL 6750288, at *4 (C.D. Cal. 2014) (" [P]laintiff received routine and conservative treatment consisting of prescription medication, Tordal injections (a nonsteroidal anti-inflammatory drug), hormone replacement therapy, and a gluten free diet."); Cariker v. Astrue, No. 5:8- 239-CT, 2009 WL 2486197, at *18 (C.D. Cal. 2009) (characterizing " non-steroidal anti-inflammatory medications, stretching, physical therapy and trigger point injections" as " conservative measures").
Plaintiff's testimony at the ALJ hearing contradicts her claim in the Joint Stipulation that she " ingests 800 mg Ibuprofen." JS at 6.
Finally, with respect to Plaintiff's third argument -- that no treatment modality has helped her -- there is simply no evidence Plaintiff has sought more aggressive treatment for her allegedly debilitating pain. See Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (finding claimant's failure to request " any serious medical treatment for . . . supposedly excruciating pain" was adequate reason to reject pain testimony) (citation omitted); cf. Bustamante, 262 F.3d at 953-54 (stating the claimant has the burden of proof at steps one through four). Thus, Plaintiff's arguments for overturning the ALJ's adverse credibility determination are unavailing.
V .
CONCLUSION
IT IS THEREFORE ORDERED that judgment be entered affirming the decision of the Commissioner.
JUDGMENT
Pursuant to sentence four of 42 U.S.C. § 405(g), IT IS ADJUDGED that the decision of the Commissioner of the Social Security Administration is AFFIRMED.