Opinion
Case No. EDCV 13-0370-JPR
03-19-2014
KATHRYN A. PULIDO, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER
AFFIRMING COMMISSIONER
I. PROCEEDINGS
Plaintiff seeks review of the Commissioner's final decision denying her application for disability insurance benefits ("DIB"). 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 November 18, 2013, which the Court has taken 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 July 27, 1960. (Administrative Record ("AR") 44.) She completed ninth grade and previously worked in a sedentary position as a nursing staffer. (AR 45-46.)
On March 17, 2010, Plaintiff filed an application for DIB. (See AR 133-35.) She alleged that she had been unable to work since January 1, 2002, because of pain in her shoulders, neck, foot, and back. (AR 159.) After her application was denied initially and upon reconsideration, she requested a hearing before an ALJ. (See AR 81-82.) A hearing was held on October 12, 2011, at which Plaintiff, who was represented by counsel, appeared and testified, as did a vocational expert ("VE") and medical expert Dr. Joseph E. Jensen. (AR 40-62.) In a written decision issued November 1, 2011, the ALJ determined that Plaintiff was not disabled. (AR 21-31.) On January 23, 2013, the Appeals Council denied her request for review. (AR 1-6.) 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. Id.; 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 103 5 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 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.
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).
A. The Five-Step Evaluation Process
The ALJ follows a five-step sequential evaluation process in assessing whether a claimant is disabled. 20 C.F.R. § 404.1520(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). 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). 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).
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") to perform her past work; if so, the claimant is not disabled and the claim must be denied. § 404.1520(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). That determination comprises the fifth and final step in the sequential analysis. § 404.1520; Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257.
RFC is what a claimant can do despite existing exertional and nonexertional limitations. § 404.1545; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989).
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 from the alleged onset date, January 1, 2002, through the last insured date, March 31, 2007. (AR 26; see AR 155.) At step two, he concluded that Plaintiff had severe impairments of cervical and lumbar degenerative disc disease. (Id.) He determined that her mood disorder was not severe, a finding she does not challenge. (AR 26-27.) At step three, the ALJ determined that Plaintiff's impairments did not meet or equal a Listing. (AR 27.) At step four, he found that she retained the RFC to perform a range of "light work" with some additional limitations. (AR 31.) Based upon the VE's testimony, the ALJ determined that Plaintiff could still perform her past work as a nursing staffer and was therefore not disabled. (AR 31.)
V. RELEVANT FACTS
A. Medical Records
1. Dr. Goldman
Plaintiff was seen by orthopedic surgeon Dr. Scott Goldman from June 16, 2003, through February 12, 2010. A June 25, 2003 MRI of Plaintiff's lumbar spine showed " [m]ild" disc dessication and two small disc bulges but was otherwise normal. (AR 264-65.) On July 14, 2003, Dr. Goldman noted the MRI and recommended physical therapy, Vioxx, and a follow-up visit in four weeks, which he anticipated would be her last. (AR 391.)
Vioxx is the brand name for rofecoxib, an antiinflammatory that has since been withdrawn from the market. See Rofecoxib for osteoarthritis, PubMed Health, http://www. ncbi.nlm.nih.gov/pubmedhealth/PMH0013260/ (last updated Nov. 16, 2004).
On December 24, 2003, Dr. Goldman noted tenderness and spasm, reduced range of motion, and severe pain with motion in Plaintiff's lower lumbar region. (AR 3 90.) She was positive for bilateral straight-leg tests but was neurologically intact, and her x-rays were "unremarkable." (Id.) Dr. Goldman assessed lumbar strain but ordered an MRI to rule out a herniated disc. (Id.) He prescribed Medrol, Percocet, a Toradol injection, lumbar support, and physical therapy and recommended a return visit in four weeks. (Id.) A January 14, 2004 MRI of Plaintiff's lumbar spine showed mild progression of degenerative disc disease. (AR 262-63.) On January 21, 2004, Plaintiff still demonstrated tenderness and spasm in her lower lumbar region. (AR 389.) An MRI showed a four-millimeter disc protrusion. (Id.) Dr. Goldman recommended a cortisone injection, a Toradol injection, Percocet, Celebrex, and physical therapy and a repeat visit in four weeks. (Id.) On March 12, 2004, Plaintiff had recovered full range of motion and demonstrated only minimal tenderness. (AR 388.)
Medrol is the brand name for methylprednisolone, a corticosteroid taken orally to relieve inflamation and treat arthritis. See Methylprednisolone oral, MedlinePlus, http://www.nlm.nih.gov/medlineplus/druginfo/meds/a682795.html (last updated Sept. 1, 2010).
Percocet is a brand name for a prescription painkiller containing acetaminophen and oxycodone. See Oxycodone, MedlinePlus, http://www.nlm.nih.gov/medlineplus/druginfo/ meds/a682795.html (Sept. 15, 2013). Oxycodone is a narcotic or opioid used for short-term relief of severe back pain. See Taking narcotics for back pain, MedlinePlus, http://www.nlm. nih.gov/medlineplus/ency/patientinstructions/000413.htm (last updated Oct. 21, 2011).
Toradol is the brand name for ketorolac, a nonsteroidal antiinflammatory used to treat moderately severe pain. See Ketorolac, MedlinePlus, http://www.nlm.nih.gov/medlineplus/ druginfo/meds/a693001.html (last updated Oct. 1, 2010).
Corticosteroid injections provide pain relief by minimizing the body's reaction to inflammation. See Cortisone Injections, Am. Orthopaedic Soc'y for Sports Med. Sports Tips (2008), available at: http://www.sportsmed.org/uploadedFiles/ Content/Patient/Sports_Tips/ST%20Cortisone%20Injections%2008.pdf
Celebrex is the brand name for celecoxib, a nonsteroidal antiinflammatory used to relieve pain, tenderness, swelling, and stiffness caused by arthritis and spondylitis. See Celecoxib, http://www.nlm.nih.gov/medlineplus/druginfo/meds/ a699022.html (last updated Aug. 15, 2012).
On September 2, 2004, x-rays of Plaintiff's left knee and ankle were unremarkable. (AR 387.) Dr. Goldman ordered an MRI of her knee to detect a possible meniscal tear, prescribed an ankle brace, ice, Celebrex, and Vicodin, and recommended a follow-up visit in 10 days. (Id.)
Vicodin is a brand name for a prescription painkiller containing acetaminophen and hydrocodone. See Hydrocodone. MedlinePlus, http://www.nlm.nih.gov/medlineplus/
druginfo/meds/a601006.html (last updated May 15, 2013). Like oxycodone, hydrocodone is a narcotic or opioid used for shortterm relief of severe back pain. See Taking narcotics for back pain, MedlinePlus, http://www.nlm.nih.gov/medlineplus/ency/ patientinstructions/000413.htm (last updated Oct. 21, 2011).
On December 5, 2005, after more than a year without an appointment, Plaintiff demonstrated tenderness, spasm, and reduced range of motion in her lumbar spine. (AR 386.) Her lower extremities were neurologically intact. (Id.) Dr. Goldman recommended a Toradol injection, Percocet, Medrol, and physical therapy. (Id.) On January 4, 2006, Plaintiff still exhibited tenderness, spasm, and reduced motion in her lumbar region. (AR 385.) Dr. Goldman recommended Percocet, Celebrex, physical therapy, and a "recheck" in four weeks, which he anticipated would be Plaintiff's last visit for that complaint. (Id.) On February 1, 2006, Plaintiff had regained full range of motion, with "minimal tenderness" and some spasm. (AR 384.) Dr. Goldman recommended a home exercise program and a repeat visit "as needed." (Id.)
On March 30, 2007, more than a year since her last visit and one day before the date last insured, Plaintiff reported pain in her neck, upper back, and lower back. (AR 383.) Dr. Goldman noted her description of injuries sustained in a 1989 car accident. (Id.) He noted Plaintiff's full range of motion but also "significant pain in flexion and extension," tenderness, and spasm. (Id.) Plaintiff was neurologically intact except for diminished sensation bilaterally in her fourth and fifth toes. (Id.) Dr. Goldman ordered MRIs of her spine and electromyogram ("EMG") and nerve-conduction-velocity ("NCV") studies of her extremities, prescribed Medrol, Celebrex, Dilaudid, and physical therapy, and recommended a follow-up visit in four weeks. (Id.)
EMG and NCV studies are specialized nerve tests designed to diagnose any abnormality in the functioning of spinal nerves. See Specialized Nerve Tests: EMG. NCV and SSEP, N. Am. Spine Soc'y, http://www.knowyourback.org/Pages/Treatments/ AssessmentTools/SpecializedNerveTests.aspx (last updated June 16, 2011).
Dilaudid is a brand name for hydromorphone, an opioid painkiller. See Hydromorphone, http://www.nlm.nih.gov/ medlineplus/druginfo/meds/a682013.html (last updated Aug. 15, 2013).
On May 18, 2007, Plaintiff continued to exhibit pain with range of motion, spasm, and tenderness but no neurological deficit. (AR 382.) An April 2, 2007 MRI of Plaintiff's thoracic spine revealed a "mild" vertebral deformity, "mildly accentuated" kyphosis, "small" Schmorl's nodes, a "very mild" disc bulge, and normal spinal signal intensity and girth. (AR 253-54.) An MRI of her cervical spine the same day showed a "very mild" disc bulge with no evidence of neural impingement; it was otherwise normal. (AR 255-56.) An MRI of her lumbar spine showed two "mild" disc bulges. (AR 257-58.) Dr. Goldman recommended Celebrex, Dilaudid, physical therapy, pain management with Dr. James Rho, and a follow-up visit in four weeks. (AR 382.)
Kyphosis is a curving of the spine that leads to a hunchback or slouching posture. See Kyphosis, MedlinePlus, http://www.nlm.nih.gov/medlineplus/ency/article/001240.htm (last updated Sept. 4, 2012).
A Schmorl's node results from herniation of intervertebral disc tissue into the vertebral body. See G. Saluja et al., Schmorl's nodes (intravertebral herniations of inervertebral disc tissue) in two historic British populations, J. Anat. 87, 87 (Apr. 1986), available at: http://www.ncbi. nlm.nih.gov/pmc/articles/PMC1166495/pdf/janat00188-0089.pdf. Schmorl's nodes are generally asymptomatic. See Ji Su Jang et al., Rami Communicans Nerve Block for the Treatment of Symptomatic Schmorl's Nodes - A Case Report, Korean J. Pain 262, 262 (Dec. 2010), available at: http://www.ncbi.nlm.nih.gov/pmc/ articles/PMC3000624/pdf/kjpain-23-262.pdf.
On October 16, 2007, Plaintiff was seen by Dr. Goldman for left-hand pain. (AR 381.) An x-ray showed sclerosing of the scaphoid bone and a possible fracture. (Id.) Dr. Goldman requested an MRI, prescribed a splint and pain medication, and recommended a return visit after the MRI. (Id.) On November 6, 2007, Dr. Goldman reported that the MRI revealed no fracture. (AR 380; see AR 416-17.) Plaintiff reported continued pain but no numbness. (AR 380.) Dr. Goldman recommended continued use of the splint and prescribed Medrol and Percocet. (Id.) Plaintiff declined cortisone injections. (Id.)
Sclerosis, or induration, is a hardening of tissue, see Stedman's Medical Dictionary 893, 1604 (27th ed. 2000); in the case of bone tissue, it is also known as osteocondensation. The scaphoid bone is one of eight bones that comprise the wrist. See Scaphoid Fractures, Am. Soc'y for Surgery of the Hand, http://www.assh.org/Public/HandConditions/Pages/ScaphoidFractures .aspx (last visited Mar. 17, 2014).
On January 25, 2008, Plaintiff saw Dr. Goldman for complaints of low-back pain radiating into her right extremity. (AR 3 79.) He noted reduced range of motion, tenderness, and spasm in her lower lumbar spine. (Id.) X-rays revealed some disc-space narrowing in her lumbar spine but were normal as to Plaintiff's right hip. (Id.) Dr. Goldman recommended an MRI, EMG/NCV studies of her lower extremities, Percocet, Motrin, Medrol, and a follow-up visit in four weeks. (Id.) On February 27, 2008, Dr. Goldman noted that the MRI scans showed lumbar disc protrusions but a normal hip. (AR 378; see AR 412-14.) He recommended physical therapy with Intervertebral Differential Dynamics ("IDD") Therapy, Medrol, Motrin, Percocet, and a follow-up visit in four weeks. (AR 378.) On April 28, 2008, Plaintiff continued to complain of lower back pain radiating into her right extremity. (AR 377.) Dr. Goldman recommended adding cortisone injections to her treatment. (Id.) He anticipated that her follow-up in four weeks would be her last visit. (Id.)
Motrin is a brand name for the nonsteroidal antiinflammatory ibuprofen. See Ibuprofen, MedlinePlus, http://www.nlm.nih.gov/medlineplus/druginfo/meds/a682159.html (last updated Oct. 1, 2010).
IDD therapy treats lower back pain through manipulation of the spine. See FAQ, IDD Therapy, http://iddtherapy.com/ ENGLISH/FAQ.html (last visited Mar. 7, 2014).
On May 19, 2008, Dr. Goldman treated Plaintiff for right-wrist pain. (AR 376.) Although x-rays were unremarkable, he ordered further views. (Id.) On July 2, 2008, he noted that further x-rays were unremarkable. (AR 375.) He ordered an MRI of Plaintiff's wrist and, because of tenderness and spasm in her lower back, another of her lumbar spine. (Id.) On July 14, 2008, Plaintiff still complained of pain in her right wrist, lumbar spine, and right hip. (AR 374.) Dr. Goldman noted that the MRI of her wrist was unremarkable and the MRI of her spine revealed a small disc bulge and annular tear. (Id.; see AR 404- 07.) He recommended physical therapy, Oxycontin, Celebrex, cortisone injections, and a follow-up visit in four weeks. (AR 374.)
Oxycontin is a brand name for oxycodone. See supra n.5.
On August 13, 2008, Plaintiff complained of head, neck, chest, and back pain. (AR 373.) Dr. Goldman noted tenderness and spasm in her cervical spine and upper back and pain radiating into the left side of her head. (Id.) He noted that "Plaintiff will present to the ER for evaluation of severe headache and back/chest pain." (Id.) Plaintiff returned to Dr. Goldman on August 27, 2008, with upper- and lower-back pain. (AR 372.) He noted spinal tenderness, ordered a CT scan of her abdomen and chest, recommended continued physical therapy, and prescribed Oxycontin and Celebrex. (Id.)
On September 26, 2008, Plaintiff visited Dr. Goldman with complaints of pain in her right hip and lower back. (AR 371.) Dr. Goldman assessed disc bulges, right-side sciatica, and hip bursitis. (AR 371.)
On January 22, 2009, Plaintiff was seen by Dr. Goldman for reevaluation. (AR 370.) She reported that "her pain medication and home exercise program have relieved her pain" but that she had occasional back pain that "leaves her bedridden." (Id.) Dr. Goldman noted full cervical range of motion with discomfort at the extremities and some spinal tenderness and spasm. (Id.) Plaintiff's lumbar range of motion has decreased, and she had tenderness and spasm around her lumbar spine. (Id.) Dr. Goldman recommended Oxycontin and Motrin and a return visit in three months. (Id.)
On April 23, 2009, Plaintiff reported that she was "doing well" with home exercise and pain medication. (AR 369.) She had full cervical range of motion with pain at the extremes, spasm, and tenderness. (Id.) She had reduced lumbar range of motion with pain, tenderness, and spasm. (Id.) Dr. Goldman again recommended continued medication with Oxycontin and Motrin and a return visit in three months. (Id.)
On August 12, 2009, an x-ray showed a plantar heel spur. (AR 368, 399.) Dr. Goldman diagnosed Plaintiff with plantar fascitis or a plantar tear and prescribed a CAM boot and crutches, Oxycontin, Motrin, and an MRI. (AR 368.) The MRI was unremarkable. (AR 367.) Plaintiff reported on September 2, 2009, that she was "feeling much better." (Id.)
A CAM Walker Boot is a removable, inflatable cast. See http://orthotape.com/cam_walkers.asp (last visited Mar. 7, 2014).
On November 3, 2009, Plaintiff was seen for reevaluation and complained of pain in both shoulders. (AR 366.) Dr. Goldman noted pain with range of motion and weakness of the rotator cuff in both shoulders. (Id.) X-rays were unremarkable. (Id.) Dr. Goldman ordered an arthrogram of the right shoulder and MRI of the left. (Id.) Plaintiff was given Norco and Oxycontin. (Id.) Both studies revealed degenerative changes. (AR 365.) Plaintiff's left shoulder also showed either a partial tendon tear or tendinitis. (Id.) Dr. Goldman recommended physical therapy. (Id.)
An arthrogram is an x-ray. See Joint x-ray, MedlinePlus, http://www.nlm.nih.gov/medlineplus/ency/article/ 003810.htm (last updated Apr. 14, 2013).
Norco is the brand name for a painkiller combining hydrocodone and acetamiophen. See Hydrocodone, MedlinePlus, http://www.nlm.nih.gov/medlineplus/druginfo/meds/a601006.html (last updated May 15, 2013).
A November 11, 2009 MRI of Plaintiff's left shoulder found degenerative change, bursitis, and either a tendon tear or tendinosis. (AR 393-94.) An MRI of her right shoulder the same day showed a partial tendon tear, tendinosis, and bursitis. (AR 395-96.)
On December 2, 2009, Plaintiff continued to complain of pain in her shoulders and demonstrate painful range of motion and rotator-cuff weakness. (AR 364.) Dr. Goldman recommended cortisone injections and continued physical therapy. (Id.) On December 29, 2009, Plaintiff's bilateral range of motion was nearly full but her rotator cuffs remained weak. (AR 363.) She was positive for Neer and Hawkins signs. (Id.) Dr. Goldman recommended home exercise because "patient does not believe physical therapy is helping" and continued pain medication. (Id.) He discussed surgical options. (Id.)
Neer's and Hawkins-Kennedy impingement tests are used to diagnose impingements and tears in the rotator cuff. See Physical Therapist's Guide to Rotator Cuff Tear, Am. Physical Therapy Ass'n, http://www.moveforwardpt.com/ symptomsconditionsdetail.aspx?cid=95bd746b-b25f-46f5-83 73-fb56c9f 6b46a#.Uxo2Pz9dVc0 (last visited Mar. 7, 2014).
2. Physical Therapy
The record reflects Dr. Goldman's prescription of thrice-weekly physical therapy at various times from 2003 to 2009 to relieve pain, increase range of motion, promote healing, and improve function in Plaintiff's back. (See, e.g., AR 269-71, 273-78.) On December 30, 2005, a therapist reported improvement in Plaintiff's function but no other change. (AR 272.) A May 14, 2007 report noted improvement in pain, range of motion, strength, and function. (AR 618.) An April 15, 2008 report noted improvement in pain, range of motion, strength, swelling, and function. (AR 616.)
3. Dr. Martinez
Between August 19 and October 2, 2009, Plaintiff was seen by Charles Martinez, D.O., for her back impairment. He noted evidence of disc bulges, annular tears, and fibromyalgia and Plaintiff's complaints of pain and depression. (See AR 282, 285, 288-89.) He recommended increased physical activity, physical and aquatic therapy, a decreased dose of Oxycontin, Lyrica, and continued psychiatric treatment. (AR 282, 285, 288-89, 295.)
A doctor of osteopathic medicine (D.O.), like a medical doctor, completes four years of medical school, can practice any specialty, and is a licensed physician. See Doctor of Osteopathic Medicine, MedlinePlus, http://www.nlm.nih.gov/ medlineplus/ency/article/002020.htm (last updated Feb. 26, 2014). Osteopathy adheres to the principle that a patient's history of illness and physical trauma are written into the body's structure. Id. Osteopathic physicians therefore complete additional training in the study of "hands-on manual medicine" and the body's musculoskeletal system to permit them to "feel the patient's 'living anatomy' (the flow of fluids, motion and texture of tissues, and structural makeup)." Id.
Lyrica is the brand name for pregabalin, used to relieve neuropathic pain and treat fibromyalgia. See Pregabalin, MedlinePlus, http://www.nlm.nih.gov/medlineplus/druginfo/meds/ a605045.html (last updated Sept. 1, 2009).
4. Dr. Hou
On July 27, September 18, and November 20, 2009, Plaintiff was seen by rheumatologist Dr. Anthony Hou, whose diagnoses include joint pain, inflammatory polyarthropathy, rheumatism, osteoarthritis, back pain, bursitis, and fibromyalgia. (AR 324, 327, 341.) August 28, 2009 x-rays of Plaintiff's wrists, hands, and knees showed mild to moderate joint-space narrowing in her medial right knee but were otherwise normal. (AR 345-56.) Dr. Hou recommended a fibromyalgia management program, prescribed Celebrex and Cymbalta, and suggested unspecified injections, stretching exercises, and stress management. (AR 325, 328, 339, 341-42.)
Arthopathy is joint disease. See Stedman's, supra, at 150.
Cymbalta is the brand name for duloxetine, which is used to treat depression and generalized anxiety disorder. See Duloxetine, MedlinePlus, http://www.nlm.nih.gov/medlineplus/ druginfo/meds/a604030.html (last updated Feb. 15, 2013).
5. Dr. Rho
From November 19, 2009, through April 21, 2011, Plaintiff was seen by pain-management specialist Dr. James Rho. His November 19, 2009 examination revealed reduced range of motion in Plaintiff's cervical and lumbar spine but no evidence of weakness or sensory deficit. (AR 357.) Plaintiff had no trigger points or tenderness in her soft tissue, was negative for straight-leg raises, was able to perform heel-and-toe walking and one-leg standing, had a normal gait, and had worn "high heels" to the exam. (Id.) Dr. Rho assessed severe neck pain with symptoms of spondylosis; severe low-back pain without radiculopathy but with symptoms of spondylosis; severe myofascial pain and spasm; and fibromyalgia. (AR 358.) He prescribed modified doses of Oxycontin, oxycodone, Celebrex, and Cymbalta, recommended that Plaintiff consider steroid-injection therapy, and suggested continued physical activity. (Id.)
Spondylosis refers generally to degeneration of the vertebrae. See Stedman's, supra, at 1678.
Radiculopathy is disease of the spinal cord. See Stedman's, supra, at 1503.
On December 15, 2 009, Plaintiff complained of left-foot pain and reported that physical therapy was not helping her shoulder problems. (AR 702.) Dr. Rho's assessment remained the same. (AR 703.) He modified the dosage of Plaintiff's prescriptions, which were reported to include Frova, and recommended regular home exercise or physical therapy. (AR 704.) On January 21, 2010, Plaintiff reported that her medications were helping with pain and "help her function and take care of the house." (AR 699.) She reported that resting helped with lower-back pain and that she was not interested in injection therapy because of "the short nature of the relief and that it's 'not a cure.'" (Id.) Dr. Rho noted that Plaintiff sat comfortably during the exam. (AR 700.) He adhered to his previous assessments and recommendations. (AR 700-01.)
Frova is the brand name for frovatriptan, which is used to treat migraine headaches. See Frovatriptan, MedlinePlus, http://www.nlm.nih.gov/medlineplus/druginfo/meds/a604013.html (last updated Sept. 1, 2010).
On February 18, 2010, Plaintiff complained of a nausea- inducing headache (AR 696) and had difficulty sitting because of her low-back pain (AR 697). Dr. Rho's assessment remained the same. (AR 697-98.) He substituted Relpax for Frova because of its cost (AR 696, 698) but otherwise continued Plaintiff's previously prescribed medications and continued to recommend home exercise or physical therapy. (AR 698.)
Relpax is a brand name for eletriptan, which is used to treat migraine headaches. See Eletriptan, MedlinePlus, http://www.nlm.nih.gov/medlineplus/druginfo/meds/a603029.html (last updated Sept. 1, 2010).
On March 18, 2010, Plaintiff reported a recent fall, after which she stayed in bed for two days because of the pain, though her medications helped. (AR 652.) Dr. Rho noted that she had "mostly" thoracic and left-hip pain but also pain in both shoulders. (AR 653.) He recommended continuation of her previously prescribed medications and home exercise or physical therapy. (AR 654.) On April 22, 2010, Plaintiff reported no significant changes since her previous visit. (AR 349.) Dr. Rho noted mostly thoracic-spine and left-hip pain and possible fibromyalgia, but "it's more spine related pain likely." (AR 650.) He recommended continuation of her previously prescribed medications in modified doses and home exercise or physical therapy. (AR 651.)
On June 10, 2010, Plaintiff reported a "small decrease in pain" and that she was doing well enough on medications that she did not want spinal injections. (AR 613.) Dr. Rho noted her continued pain, particularly in her thoracic spine and left hip. (AR 614.) He discontinued Relpax, prescribed Sumavel, continued modified doses of Plaintiff's previously prescribed medications, and recommended home exercise or physical therapy and injections, which Plaintiff refused. (AR 615.) On August 31, 2010, Dr. Rho noted "mostly" thoracic-spine pain and right-leg weakness and a mild sensory difference between her right and left extremities. (AR 643.) In addition to Plaintiff's previously prescribed medications, prescriptions included Lexapro. (AR 344.)
Sumavel is a brand name for sumatriptan, which is used to treat migraine headaches. See Sumatriptan injection, MedlinePlus, http://www.nlm.nih.gov/medlineplus/druginfo/ meds/a696023.html (last updated Sept. 1, 2010).
Lexapro is a brand name for escitalopram, which is used to treat depression and generalized anxiety disorder. See Escitalopram. MedlinePlus, http://www.nlm.nih.gov/ medlineplus/druginfo/meds/a603005.html (last updated Apr. 13, 2012).
On October 26, 2010, Plaintiff reported that her "new Oxycontin is not as effective and takes longer . . . to work" and that she was taking more oxycodone as a result. (AR 683.) She also complained of a strain in her right arm but had refused Dr. Goldman's recommendation of a cast and did not wear a sling. (Id.) Dr. Rho added prescriptions for Ambien and Zanaflex. (AR 685.)
Ambien is a brand name for Zolpidem, which is used to treat insomnia. See Zolpidem, http://www.nlm.nih.gov/ medlineplus/druginfo/meds/a693025.html (last updated Sept. 15, 2013).
Zanaflex is a brand name for tizanidine, a muscle relaxant. See Tizanidine, MedlinePlus, http://www.nlm.nih.gov/ medlineplus/druginfo/meds/a601121.html (last updated Feb. 11, 2012).
On January 31, 2011, Plaintiff reported that she continued with prescribed medications, which helped her pain, but her lower-back pain was worse. (AR 762.) Dr. Rho discontinued Lexapro, Ambien, and Zanaflex, adjusted the dosages of her remaining prescriptions, suggested methadone, and urged her to consider interventional therapy, such as injections, "as it is necessary and appropriate, but patient not interested." (AR 764.) He continued to recommend home exercise or physical therapy. (Id.) On March 10, 2011, Dr. Rho noted "no significant changes" since Plaintiff's previous visit (AR 757) and adhered to his prior recommendations (AR 758). On April 21, 2011, Plaintiff reported a fall on her right side, for which she did not seek medical attention, and numbness and tingling in her right arm and hand but no weakness. (AR 754.) She said her medications were "maintaining her pain at a tolerable level." (Id.) Dr. Rho added Lunesta and Zanaflex to her existing prescriptions. (AR 756.)
Methadone is used to relieve moderate to severe pain that has not been relieved by nonnarcotic pain relievers and to prevent withdrawal symptoms in patients who are addicted to opiates. See Methadone, MedlinePlus, http://www.nlm.nih.gov/ medlineplus/druginfo/meds/a682134.html (last updated Feb. 1, 2009).
Lunesta is the brand name for eszopiclone, which is used to treat insomnia. See Eszopiclone, MedlinePlus,
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a605009. html (last updated Oct. 1, 2008).
6. Bledsoe Foot & Ankle Clinic
From March 6, 2009, to August 8, 2010, Plaintiff was treated at Bledsoe Foot & Ankle Clinic for problems with heel pain and plantar fascitis. (See AR 629-33.) Treatments included an aircast (AR 630), ice (AR 632), and Motrin (id.).
7. Inland Psychiatric
From May 10, 2007, to September 13, 2011, Plaintiff was treated at Inland Psychiatric Group. The record reflects diagnoses of posttraumatic stress disorder (AR 513; see AR 511, 667 (noting parental deaths)) and major depressive disorder (AR 668); complaints of depression, anxiety, sleep issues, low energy, and poor concentration (AR 511; but see AR 678); moderate impairments in relationships and health but none with respect to work or school (AR 513); and prescriptions for Cymbalta (AR 498, 675), Effexor (AR 509, 669, 672), and Xanax (AR 509). Plaintiff does not challenge the ALJ's finding that the medical evidence did not establish the existence of a severe mental-health impairment during the relevant period.
Effexor is a brand name for venlafaxine, which is used to treat depression. See Venlafaxine, MedlinePlus, http://www.nlm.nih.gov/medlineplus/druginfo/meds/a694020.html (last updated Jan. 15, 2012).
8. Physician Assessments for DIB
In a February 12, 2010 letter, Dr. Goldman noted diagnoses of bilateral shoulder-impingement syndrome, left-foot plantar fascia tear, cervical-spine disc herniation, thoracic-spine disc herniation, and lumbar-spine disc herniation with radiculopathy. (AR 362.) He opined that Plaintiff's "multiple painful conditions will not allow her to return to any type of work." (Id.)
On September 13, 2011, Dr. Visit Chatsuthiphan, a treating physician, completed a Mental Impairment Questionnaire, in which he diagnosed Plaintiff as bipolar. (AR 787.) He opined that she had poor or no ability to do most activities required of unskilled or skilled workers but provided no clinical findings to support his assessment. (AR 790-91.) He opined that Plaintiff had marked restrictions of daily living, difficulties in social function, and episodes of decompensation and would often suffer deficiencies of concentration, persistence, or pace. (AR 791.) He dated her limitations to August 2010. (AR 792.)
Bipolar disorder is a mental illness characterized by wide mood swings. See Bipolar Disorder, MedlinePlus, http://www.nlm.nih.gov/medlineplus/bipolardisorder.html (last updated Oct. 24, 2013).
Plaintiff stipulates that the ALJ "fairly and accurately summarized the medical and non-medical evidence of record" other than as specifically challenged in the Joint Stipulation. (J. Stip. at 3.)
On January 25, 2012, pain-management specialist Dr. Gregory Suelzle completed a Physical Residual Function Capacity Questionnaire, noting diagnoses of cervical spondylosis "adequately controlled with medications," lumbar spondylosis, bilateral shoulder pain, and spine enthesopathy. (AR 820.) He deemed Plaintiff's prognosis "poor." (Id.) He opined that her pain and symptoms were constantly severe enough to interfere with concentration (AR 821) and that she was severely limited in her ability to cope with work stress (AR 822). He opined that she could not walk a city block without rest; could continuously sit or stand for only 15 minutes; would need to walk for three minutes every 15 minutes; and would need unscheduled 40-minute breaks every 15 minutes during an eight-hour workday. (Id.) He opined that Plaintiff's legs should be elevated 50 percent of the time when sitting and that she required a cane and walker for occasional standing and walking. (AR 823.) He stated that Plaintiff could occasionally lift less than 10 pounds, could not bend or twist at the waist, and could work with her hands and fingers only 25 percent of the time and with her arms only three percent of the time. (Id.) He expected that Plaintiff would be absent from work more than three times a month. (AR 824.) He dated her symptoms to July 1989. (Id.)
Dr. Suelzle appears to be Dr. Rho's colleague. (See AR 824.)
Although Plaintiff asserts that the ALJ "never offered . . . as a reason" that Plaintiff had shown improvement (J. Stip. at 19), the ALJ explicitly noted that "[t]he claimant's treatment was merely conservative and her condition improved." (See AR 30.)
Enthesopathy refers to disease occurring at the insertion of muscle tendons and ligaments into bones or joint capsules. See Stedman's, supra, at 600.
Although some courts have held that injections do not constitute conservative treatment, those cases involved claimants whose pain was treated (generally ineffectively) with a series of regular injections and more invasive procedures - not just a few injections over the course of years. See, e.g., Christie v. Astrue, CV 10-3448-PJW, 2011 WL 4368189, at *4 (C.D. Cal. Sept. 16, 2011) (noting pain treatments included "steroid injections, trigger point injections, epidural shots, and cervical traction"); Samaniego v. Astrue, EDCV 11-865 JC, 2012 WL 254030, at *4 (C.D. Cal. Jan. 27, 2012) (noting treatment "on a continuing basis" with steroid and anesthetic "trigger point injections" and occasional epidural injections); Huerta v. Astrue, EDCV 07-1617-RC, 2009 WL 2241797, at *4 (C.D. Cal. July 22, 2009) (noting that neck pain was treated by surgery and "a series of epidural steroid injections into [claimant's] cervical spine"). Even if the ALJ erred in deeming steroid injections conservative, the remainder of his credibility findings were supported by substantial evidence in the record, so remand is not required. Carmickle v. Comm'r Soc. Sec. Admin., 533 F.3d 1155, 1162-63 (9th Cir. 2008).
B. Written Submission
On June 30, 2010, Plaintiff's husband completed a Function Report on her behalf, reporting that he did most domestic chores, reminded her to take medication, and helped her with her care, which took longer because of her pain. (AR 196-97.) Plaintiff was able to prepare "easy meals" daily and fold laundry, do light dusting, sweep, water plants, and wash dishes twice a week. (AR 197.) She was limited in house and yardwork by her inability to stand, reach, lift, and bend because of pain in her arms, back, legs, and neck. (AR 198.) Plaintiff went out in a car alone five times a week and shopped twice a month. (Id.) Her spouse managed their finances. (Id.)
Plaintiff read, watched TV, and refinished furniture daily and collected antiques once a month. (AR 199.) She socialized over the phone and in person daily, over lunch once a month, and on family visits every two months. (Id.) She also went monthly to medical appointments, two or three times monthly to the pharmacy, and weekly to the grocery store. (Id.)
Plaintiff reported that her impairments affected her ability to lift, stand, walk, sit, climb stairs, kneel, squat, reach, use her hands, see, bend, remember, concentrate, and complete tasks. (AR 200.) She stated that she was able to walk for seven to 10 minutes before resting for two to three, could pay attention for less than 10 minutes, and struggled to follow instructions. (Id.) She had used a cane, crutches, and a splint since 2009 and glasses daily since 2007. (AR 201.)
C. Assessments of State Medical Consultants
On July 15, 2010, Ronald Crow, D.O., completed a Physical Residual Capacity Assessment, in which he opined that Plaintiff could lift 20 pounds occasionally and 10 pounds frequently; stand or walk for six hours in an eight-hour day; sit for six hours in an eight-hour day; and do unlimited pushing and pulling. (AR 620.) He found no other limitations. (AR 621-23.)
On November 29, 2010, psychiatrist Dr. M. Salid completed a Psychiatric Review Technique, noting insufficient evidence of a medically determinable impairment. (AR 710.) His Case Analysis includes a note from Dr. Paulette Harar affirming a prior determination that Plaintiff retained the RFC to do light work. (AR 724.)
D. Hearing Testimony
At the time of the hearing, Plaintiff was 51 years old. (AR 45.) She testified that she last worked in 2002 as a staffer for a nursing facility, a sedentary position that she was able to perform despite a back injury sustained in a 1989 car accident. (AR 45-47.) She testified that in 2002 the pain throughout her back had become "too intense" and prevented her from working. (AR 46-48.) Plaintiff stated that the pain continued through her last insured date, was a "10" on a scale of one to 10, and was not relieved by prescription medication. (AR 48.) Plaintiff testified that in 2007 she could sit for only 10 to 15 minutes, walk about 500 feet, and carry about six pounds. (AR 49.) None of her doctors had recommended surgery. (AR 48.) She began physical therapy in 2003. (AR 55.)
She testified that she had suffered depression since childhood, it was treated by various doctors during the relevant period, and she suffered bouts of crying daily at that time. (AR 50-51.) Plaintiff stated that her depression had worsened since 2007, she still cried daily, and she continued to receive treatment, including prescription medication. (Id.)
Plaintiff testified to only "minimal" difficulty putting on shoes and shirts and some difficulty with bathing. (AR 51.) She stated that she was licensed and able to drive without difficulty. (AR 51-52.) She did dishes, light cooking, and dusting, but her husband and children managed other chores. (AR 52.) When she and her husband went out to eat, Plaintiff had difficulty sitting. (AR 53.) Plaintiff testified to difficulty gripping items with her right hand. (Id.) She testified that her prescription medications caused dizziness, lightheadedness, forgetfulness, difficulty concentrating, itching, sweating, and rashes. (AR 54.)
Dr. Jensen, an orthopedic surgeon, appeared as a medical expert and testified that Plaintiff's medical records contained evidence of both cervical and lumbar degenerative disc disease, including "mild chronic changes" in April 2007 and "some degenerative changes" in April 2002 and June 2003. (AR 55-56.) He found no evidence of radiculopathy. (AR 56.) Dr. Jensen noted that medical records postdating the date on which Plaintiff was last insured reflected epidural procedures to relieve pain, rheumatology evaluations indicating fibromyalgia, and some evidence of degenerative joint disease in her left wrist. (Id.)
Dr. Jensen testified that Plaintiff's impairments did not meet a Listing. (Id.) He opined that Plaintiff could lift and carry 20 pounds occasionally and 10 pounds frequently; could stand or walk for a combined six hours in an eight-hour day; could sit for six hours in an eight-hour day; could occasionally use stairs or ramps, stoop, crouch, kneel, or crawl; could not walk on uneven terrain; could not use ladders, ropes, or scaffolding; could frequently use her upper extremities for gross and fine manipulation but could not use her left wrist for forceful grasping or torquing; and could not reach above the shoulder with either arm. (AR 56-57.) Upon cross-examination, Dr. Jensen stated that he saw no evidence of noncompliance or malingering. (AR 58.)
A VE testified, based on a hypothetical "younger individual" with Plaintiff's education and work history and the RFC outlined by Dr. Jensen, that Plaintiff would be able to return to her prior work as a nursing staffer. (AR 60-61.) He testified that no jobs would be available to such a person if she were "off task" 20 percent of the time because of depression or pain. (AR 61.)
On March 31, 2007, when Plaintiff's eligibility for DIB expired, she would have been 46. A person under the age of 50 is deemed a "younger person," one whose age will not "seriously affect your ability to adjust to other work." § 404.1563(c).
Plaintiff misconstrues the statements of the ALJ and the Commissioner as asserting that her "testimony can only be deemed credible if she required hospitalizations and surgery." (J. Stip. at 19.) Rather, as the ALJ explicitly noted, Plaintiff's testimony was credited to the extent it was consistent with the evidence in the record. (AR 30.) Because the statute requires a showing of disabling impairments - impairments so severe as to prevent Plaintiff from engaging in any substantial gainful activity, 42 U.S.C. § 423(d)(1)(A) - evidence of surgery or hospitalization is properly considered in assessing an alleged impairment. See, e.g., 20 C.F.R. pt. 404, subpt. P, app. 1 § 1.03 (including in Listing of Impairments to musculoskeletal system "[r]econstructive surgery . . . of a major weight-bearing joint . . . and return to effective ambulation did not occur, or is not expected to occur, . . . within 12 months of onset").
E. ALJ's Decision
In his November 2, 2011 decision, the ALJ found that Plaintiff had severe impairments of cervical and lumbar degenerative disc disease. (AR 26.) He found that although Plaintiff alleged a severe affective mood disorder, she had failed to prove its severity during the period in which she was insured. (AR 26-27.)
The ALJ determined that Plaintiff retained the RFC to perform "a range of light work" with some additional limitations: "she is unable to climb ladders, scaffolds, or ropes; she cannot walk on uneven terrain; she can frequently perform gross and fine manipulation bilaterally; she cannot perform forceful handling or grasping with her left upper extremity; and she cannot reach overhead bilaterally." (AR 27.)
"Light work" involves "lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds." § 404.1567(b). "Even though the weight lifted may be very little, a job is in this category 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. "To be considered capable of performing a full or wide range of light work, [a claimant] must have the ability to do substantially all of these activities." Id.
To the extent Plaintiff contends that the ALJ did not rely on a lack of evidence of pre-2007 mental-health treatment in assessing Plaintiff's credibility (J. Stip. at 18), the ALJ in fact correctly found that Plaintiff had failed to establish the severity of her mental impairment before March 31, 2007 (AR 26-27). The first instance of mental-health treatment in the record occurred on May 10, 2007 (see AR 510-14), at which point Plaintiff's eligibility for benefits had terminated. As the ALJ noted, Plaintiff did not allege a mental impairment when she applied for disability benefits (see AR 159) and did not allege depression until May 2010 (AR 205).
Although the ALJ found that Plaintiff "reasonably had pain during the relevant period due to her cervical and lumbar condition," he found that the medical record reflected only "routine, conservative treatment" for "mild to moderate pain" and thus did not support Plaintiff's claim of disabling symptoms. (AR 29; see also AR 30.) The ALJ also found that the alleged side effects from Plaintiff's pain medications were mild and would not preclude work activities. (AR 30.) The ALJ noted that during the relevant period no treating physician had limited Plaintiff's functioning to a level that precluded performing work activities. (AR 29; see also AR 30.) He noted that Dr. Jensen and the state-agency physicians who reviewed Plaintiff's file agreed that she was not disabled and found that their opinions were consistent with the medical evidence. (AR 30.) The ALJ therefore found that although Plaintiff's impairments could reasonably be expected to cause the alleged symptoms, her statements concerning the intensity, persistence, and limiting effects of her symptoms were not credible to the extent they were inconsistent with the conservative treatment rendered. (Id.)
VI. DISCUSSION
Plaintiff alleges that the ALJ failed to properly consider her testimony regarding her pain and limitations.36 (J. Stip. at 4.)
A. Applicable Law
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 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 v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (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 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 v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002).
B. Analysis
Although Plaintiff contends that the ALJ "never states which testimony is not credible and what evidence undermines that specific testimony" (J. Stip. at 9 (citing Reddick, 157 F.3d at 722)), the ALJ explicitly outlined his "primary reasons for discounting the claimant's allegations of disability," summarizing the evidence in the record that conflicted with her testimony. (AR 29-30.)
Plaintiff, however, contends that the medical evidence supported her testimony, noting the results of her MRIs (J. Stip. at 7 (citing AR 254, 255-56, 258, 261, 264-65)), the findings of and treatments prescribed by Dr. Goldman, Plaintiff's treating physician during the relevant period (J. Stip. at 7-8 (citing AR 382-88)), and her physical-therapy records (J. Stip. at 8 (citing AR 267-70)). As the ALJ noted, although Plaintiff's MRIs indicated some evidence of degenerative disc disease, the reports consistently reflected "mild" impairments. (AR 29; see, e.g., AR 254 (noting "mild anterior wedge deformity," "small, subcentimeter Schmorl's nodes," "very mild, 1.5 mm posterior disc bulge," and "normal signal intensity and girth" in the thoracic spinal cord); AR 256 (finding "very mild 1.5 to 2.0 mm posterior disc bulge . . . without evidence of neural impingement" and noting cervical spine otherwise appeared normal); AR 258 (noting "mild 1.5 to 2.0 mm disc bulge . . . without evidence of neural impingement," "mild degenerative disc disease," and "annular tear formation"); AR 264-65 (finding "2.0 mm concentric disc bulge," "1.0-2.0 mm annular bulg[e]," and no evidence of stenosis).) Consistent with these findings, Dr. Goldman's records reflect conservative treatment with prescription medication, physical therapy, and follow-up visits as needed. Indeed, Dr. Goldman repeatedly anticipated that Plaintiff would need no further treatment for a given ailment, and the medical evidence demonstrates yearlong or greater gaps in treatment, suggesting that she had in fact improved. (See, e.g., AR 384, 387, 388.) Moreover, as the ALJ noted,37 the reports from Plaintiff's physical-therapy sessions - recommended by both Dr. Goldman and pain-management specialist Dr. Rho - reflect improvement in pain, range of motion, strength, and function. (See AR 272, 616, 618.) Thus, none of this evidence establishes a disabling condition.
Recognizing the ALJ's finding that her treatment was conservative and routine (J. Stip. at 10 (citing AR 30)), Plaintiff asserts that there was no evidence anything more could have been done to alleviate her symptoms. Plaintiff misses the point. It was her burden to show not just significant but disabling impairments. See Drouin, 966 F.2d at 1257. She could not do so with symptom testimony alone but rather bore the burden of setting forth diagnostic and clinical findings of a disabling impairment. 20 C.F.R. § 404.1529(a); Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). Because Plaintiff's medical providers deemed her impairments mild enough to merit only conservative treatment, the ALJ properly relied on their determinations in discrediting Plaintiff's allegations of disabling pain. Hurter v. Astrue, 465 F. App'x 648, 650 (9th Cir. 2012) ("[E]vidence of 'conservative treatment' is sufficient to discount a claimant's testimony regarding severity of an impairment." (alteration in original) (citing Parra, 481 F.3d at 751)).
Moreover, the ALJ properly considered the effectiveness of Plaintiff's medication, physical therapy, and other treatments in evaluating the severity and limiting effects of her impairments. 20 C.F.R. § 404.1529(c)(3)(iv)-(v). During the relevant period, Plaintiff was treated primarily with physical therapy or home exercise and pain medication, which were reported to be effective. (See, e.g., AR 272, 384, 616, 618.) Although she appears to have received a few steroid injections from Dr. Goldman during the relevant period (see AR 386, 389, 390), she more recently rejected even these slightly invasive treatments (see AR 368, 380, 613, 615, 700, 764) and reported that she was able to manage her pain and other symptoms with medication and home exercise (AR 369, 370, 613, 699, 704, 754).38 "Impairments that can be controlled effectively with medication are not disabling for the purpose of determining eligibility for [Social Security] benefits." Warre v. Comm'r Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006).39
Plaintiff asserts that the ALJ incorrectly deemed the side effects of her medications to be "mild" (AR 30), noting her testimony that her medications caused dizziness, lightheadedness, itching, sweating, rashes, and concentration problems (J. Stip. at 10; see also AR 192 (husband noting Plaintiff's side effects from medications)). Plaintiff contends that the "ALJ cites no evidence that contradicts [her] statements" regarding side effects and therefore failed to provide a "clear and convincing reason" for rejecting her testimony. (J. Stip. at 11 (citing Smolen, 80 F.3d at 1283-84).) In fact, the ALJ did not reject Plaintiff's statements but rather relied on them in determining that her medications caused side effects that were merely mild. As the ALJ noted (AR 28), Plaintiff attributed her lack of employment and limited daily activities to pain and discomfort (AR 46-48, 198), not the side effects of her medications. Indeed, despite her allegations of dizziness and lightheadedness, Plaintiff stated that she was able to drive and do errands alone (AR 51-52, 198), and despite alleged concentration problems, Plaintiff stated that she was able to read and refinish furniture daily (AR 199). Moreover, although her medical records reflect medications discontinued because of side effects or lack of effect (see, e.g., AR 643, 684 (noting failed medications), 683 (noting Plaintiff stopped taking sleep medication that caused headaches)), they do not reflect Plaintiff's complaints of the side effects alleged in her testimony and written submission; indeed, Dr. Rho consistently noted Plaintiff's denial of dizziness (see, e.g., AR 684, 688, 700). The ALJ reasonably considered such inconsistencies in assessing Plaintiff's credibility. See Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2 008) (holding that ALJ may consider many factors in weighing claimant's credibility, including "ordinary techniques of credibility evaluation, such as . . . prior inconsistent statements concerning the symptoms . . . and the claimant's daily activities").
Although Plaintiff challenges the ALJ's finding that no treating or examining physician opined during the relevant period that Plaintiff was disabled or had greater limitations than those in the RFC (J. Stip. at 11), that finding is indisputably accurate. The ALJ's focus on medical opinions predating the May 2007 termination of Plaintiff's eligibility for DIB was not, as Plaintiff contends, "a red herring" but rather mandated by governing law, which provides that "an individual cannot receive disability benefits for a recurrence of a disability . . . unless the individual can establish that the current period of disability began on or prior to the expiration of insured status." Flaten v. Sec'y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995); see also 42 U.S.C. § 423. Dr. Chatsuthiphan dated Plaintiff's mental impairment to August 2010, well after her eligibility for DIB expired. (AR 792.)40 Although Dr. Suelzle dated his dire assessment of Plaintiff to 1989 (AR 824), the date of her car accident (AR 47, 383), it is undisputed that she worked full time from 1989 to 2002 (AR 47, 161), and Dr. Rho, Dr. Suelzle's colleague, did not see Plaintiff as a patient until November 2009 (AR 357). See Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995) (holding that ALJ properly discounted physician's opinion when it was conclusory and unsubstantiated by relevant medical documentation). Dr. Goldman's February 12, 2010 opinion that Plaintiff's condition "will not allow her to return to any kind of work" (AR 362) was inconsistent with his own treatment of Plaintiff and the other evidence of record, see id. at 1432-33; Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (solely province of ALJ to resolve conflicts in properly supported medical opinion evidence)); more importantly, it does not establish that Plaintiff was disabled before March 31, 2007, three years earlier.
Although Plaintiff is correct that the opinions of the state-agency medical consultants were "based solely on the view of the objective evidence and did not account for [Plaintiff's] subjective symptoms" (J. Stip. at 12 (citing AR 624)), the ALJ properly accorded these opinions only "some weight" given that they were consistent with the other evidence of record (AR 30); 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."); 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").
On appellate review, this Court is limited to determining whether the ALJ properly identified clear and convincing reasons for discrediting Plaintiff's credibility. Smolen, 80 F.3d at 1284. The record reflects that he did so, supported by evidence that Plaintiff's degenerative disc disease was mild, her symptoms were controlled by medication and other conservative treatment, and none of her physicians deemed her disabled during the relevant period. These are proper factors for evaluating credibility, the findings are sufficiently specific to show that the ALJ's credibility determination was not arbitrary, and the reasoning is clear and convincing. Tommasetti, 533 F.3d at 1039-40; Houghton v. Comm'r Soc. Sec. Admin., 493 F. App'x 843, 845 (9th Cir. 2012). Because the ALJ's findings are supported by substantial evidence, this Court may not engage in second-guessing. See Thomas, 278 F.3d at 959; Fair. 885 F.2d at 604. In sum, the ALJ reasonably and properly discredited Plaintiff's subjective testimony regarding the severity of her symptoms as not being wholly credible. Remand is not warranted.
VII. CONCLUSION
Consistent with the foregoing, and pursuant to sentence four of 42 U.S.C. § 405(g), 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.
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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__________________________
JEAN ROSENBLUTH
U.S. Magistrate Judge