JAMES P. DONOHUE, Magistrate Judge.
Plaintiff Scott Putnam appeals the final decision of the Commissioner of the Social Security Administration ("Commissioner") that denied his application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 401-33, after a hearing before an administrative law judge ("ALJ"). For the reasons set forth below, the Court AFFIRMS the Commissioner's decision.
At the time of the administrative hearing, Plaintiff was a 33-year-old man with an 11thgrader education. Administrative Record ("AR") at 43. His past work experience includes employment as a laborer and valet. AR at 344. Plaintiff was last gainfully employed in 2010. AR at 19, 45, 263.
In September 2013, Plaintiff protectively filed an application for DIB, alleging an onset date of December 25, 2007.
The Commissioner denied Plaintiff's claim initially and on reconsideration. AR at 148-54, 157-61. Plaintiff requested a hearing, which took place on July 10, 2015. AR at 38-69. On February 2, 2016, the ALJ issued a decision finding Plaintiff not disabled and denied benefits based on her finding that Plaintiff could perform a specific job existing in significant numbers in the national economy. AR at 16-29. Plaintiff's administrative appeal of the ALJ's decision was denied by the Appeals Council, AR at 1-7, making the ALJ's ruling the "final decision" of the Commissioner as that term is defined by 42 U.S.C. § 405(g). On August 25, 2017, Plaintiff timely filed the present action challenging the Commissioner's decision. Dkt. 1, 3.
Jurisdiction to review the Commissioner's decision exists pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of social security benefits when the ALJ's findings are based on legal error or not supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 (9th Cir. 2005). "Substantial evidence" is more than a scintilla, less than a preponderance, and 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); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving any other ambiguities that might exist. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). While the Court is required to examine the record as a whole, it may neither reweigh the evidence nor substitute its judgment for that of the Commissioner. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). When the evidence is susceptible to more than one rational interpretation, it is the Commissioner's conclusion that must be upheld. Id.
As the claimant, Mr. Putnam bears the burden of proving that he is disabled within the meaning of the Social Security Act (the "Act"). Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999) (internal citations omitted). The Act defines disability as the "inability to engage in any substantial gainful activity" due to a physical or mental impairment which has lasted, or is expected to last, for a continuous period of not less than twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant is disabled under the Act only if his impairments are of such severity that he is unable to do his previous work, and cannot, considering his age, education, and work experience, engage in any other substantial gainful activity existing in the national economy. 42 U.S.C. §§ 423(d)(2)(A); see also Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999).
The Commissioner has established a five step sequential evaluation process for determining whether a claimant is disabled within the meaning of the Act. See 20 C.F.R. §§ 404.1520, 416.920. The claimant bears the burden of proof during steps one through four. At step five, the burden shifts to the Commissioner. Id. If a claimant is found to be disabled at any step in the sequence, the inquiry ends without the need to consider subsequent steps. Step one asks whether the claimant is presently engaged in "substantial gainful activity." 20 C.F.R. §§ 404.1520(b), 416.920(b).
When the claimant's impairment neither meets nor equals one of the impairments listed in the regulations, the Commissioner must proceed to step four and evaluate the claimant's residual functional capacity ("RFC"). 20 C.F.R. §§ 404.1520(e), 416.920(e). Here, the Commissioner evaluates the physical and mental demands of the claimant's past relevant work to determine whether he can still perform that work. 20 C.F.R. §§ 404.1520(f), 416.920(f). If the claimant is able to perform his past relevant work, he is not disabled; if the opposite is true, then the burden shifts to the Commissioner at step five to show that the claimant can perform other work that exists in significant numbers in the national economy, taking into consideration the claimant's RFC, age, education, and work experience. 20 C.F.R. §§ 404.1520(g), 416.920(g); Tackett, 180 F.3d at 1099, 1100. If the Commissioner finds the claimant is unable to perform other work, then the claimant is found disabled and benefits may be awarded.
On February 2, 2016, the ALJ issued a decision finding the following:
AR at 18-29.
The principal issues on appeal are:
Dkt. 10 at 1.
Plaintiff argues that the ALJ's RFC assessment fails to adequately account for his manipulative limitations: the ALJ found him capable of performing manipulative limitations on a frequent basis, but he contends that he should have been found more limited.
The "final responsibility" for decision issues such as an individual's RFC "is reserved to the Commissioner." Social Security Ruling ("SSR") 96-5p, 1996 WL 374183, at *2 (Jul. 2, 1996). Accord 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2), 404.1546(c), 416.946(c). That responsibility includes "translating and incorporating clinical findings into a succinct RFC." Rounds v. Comm'r of Social Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015) (citing Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008)). An RFC finding need not directly correspond to a specific medical opinion. Chapo v. Astrue, 682 F.3d 1285, 1288 (10th Cir. 2012). The ALJ may incorporate the opinions of a physician by assessing RFC limitations entirely consistent with, but not identical to limitations assessed by the physician. See Turner v. Comm'r of Social Sec. Admin., 613 F.3d 1217, 1222-23 (9th Cir. 2010).
Plaintiff suffered injuries in a fireworks incident on July 4, 1998. See AR at 460, 1369. The ALJ found that Plaintiff's "congenital deformity of the hand" was a severe impairment at step two. AR at 19, 21. The ALJ found that Plaintiff could perform manipulative activities at the frequent level, in light of medical opinions indicating the same as well as Plaintiff's daily activities (specifically driving a car with manual transmission, painting motor engine parts, cooking, cleaning, vacuuming, laundering, shopping, and lifting 35 pounds) and his work history at the medium-to-heavy level. AR at 23-24.
Plaintiff points to other evidence in the record that he claims suggests that he could not perform manipulative activities at the frequent level, specifically dexterity testing performed by a physical therapist. Dkt. 10 at 3-4. He also argues that his ability to perform medium-toheavy work in the past has no bearing on his ability to perform manipulative activities because his past jobs did not involve any "fine manipulation and dexterity necessary to perform sedentary or light work." Dkt. 10 at 4. Plaintiff also argues that his ability to drive a car with a manual transmission does not implicate use of his left (injured) hand, that using a bottle of spray paint on one occasion does not implicate his left (non-dominant) hand, and that lifting 35 pounds does not constitute a manipulative activity. Dkt. 10 at 5.
Plaintiff has failed to show that the ALJ erred in assessing the extent of his manipulative limitations. The dexterity testing performed by a physical therapist cited by Plaintiff was acknowledged by the ALJ (AR at 24), and this physical therapist indicated repeatedly that Plaintiff could perform fine manipulation at the frequent level. AR at 517, 522, 523, 529-31, 544. This evidence is consistent with the ALJ's RFC assessment, and does not therefore support Plaintiff's argument that the ALJ erred in assessing his manipulative limitations.
Furthermore, as cited by the ALJ, examining physician Lisa Garrison, M.D., addressed Plaintiff's manipulative limitations, and opined that he could perform manipulative activities at the frequent level. See AR at 463-64. Although Plaintiff posits that it is "absurd on its face" to find that he could perform manipulative activities on a frequent basis despite his injuries, the medical opinion evidence indicates otherwise and constitutes substantial evidence supporting the ALJ's RFC assessment.
Even if Plaintiff is correct that some of the activities cited by the ALJ do not reasonably bear on his ability to perform manipulative activities, any error is harmless as to certain activities is harmless because, as discussed supra, the ALJ's RFC assessment is supported by substantial evidence. Notably, Plaintiff did not challenge all of the activities cited by the ALJ, such as cooking, cleaning, vacuuming, doing laundry, and shopping. See AR at 23.
The ALJ discounted Plaintiff's subjective testimony for three primary reasons: (1) his daily activities and medical record suggest he can perform light work and frequent manipulative activities; (2) he uses a cane without medical necessity or a prescription; and (3) Plaintiff takes only over-the-counter pain medications. AR at 23-27. Plaintiff argues that the ALJ's reasoning was legally insufficient.
As noted above, it is the province of the ALJ to determine what weight should be afforded to a claimant's testimony, and this determination will not be disturbed unless it is not supported by substantial evidence. A determination of whether to accept a claimant's subjective symptom testimony requires a two-step analysis. 20 C.F.R. §§ 404.1529, 416.929; Smolen, 80 F.3d at 1281. First, the ALJ must determine whether there is a medically determinable impairment that reasonably could be expected to cause the claimant's symptoms. 20 C.F.R. §§ 404.1529(b), 416.929(b); Smolen, 80 F.3d at 1281-82. Once a claimant produces medical evidence of an underlying impairment, the ALJ may not discredit the claimant's testimony as to the severity of symptoms solely because they are unsupported by objective medical evidence. Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir. 1991) (en banc); Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1988). Absent affirmative evidence showing that the claimant is malingering, the ALJ must provide "clear and convincing" reasons for rejecting the claimant's testimony.
When evaluating a claimant's subjective symptom testimony, the ALJ must specifically identify what testimony is not credible and what evidence undermines the claimant's complaints; general findings are insufficient. Smolen, 80 F.3d at 1284; Reddick, 157 F.3d at 722. The ALJ may consider "ordinary techniques of credibility evaluation," including a claimant's reputation for truthfulness, inconsistencies in testimony or between testimony and conduct, daily activities, work record, and testimony from physicians and third parties concerning the nature, severity, and effect of the alleged symptoms. Thomas, 278 F.3d at 958-59 (citing Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997)).
Plaintiff suggests that the ALJ's reasoning is inadequate because she did not identify which testimony she found credible and which testimony was undermined by which evidence. Dkt. 10 at 9. Plaintiff is mistaken. The ALJ explained that she credited Plaintiff's testimony regarding some limitations in exertional and postural activities, as well as environmental conditions, but that his testimony regarding limitations that would preclude light work and/or frequent manipulative activities was inconsistent with the medical evidence and Plaintiff's activities. AR 23-24. The ALJ also noted that Plaintiff testified that he required the use of a cane, but that there was no medical evidence supporting this necessity and no prescription for a cane in the medical record. AR at 23. The ALJ also found that Plaintiff's use of over-thecounter pain medication undermines testimony regarding limitations caused by pain. AR at 22-23. These findings are sufficiently specific; the ALJ did not "simply reject plaintiff's testimony out of hand," as Plaintiff alleges. Dkt. 10 at 9.
The ALJ noted that Plaintiff worked after the alleged onset date, and cited that work activity as undermining testimony. AR at 23. Plaintiff argues that his minimal work activity after the alleged onset date could not reflect adversely on his testimony, focusing on the fact that he could not have been paid benefits before March 31, 2011,
The ALJ listed several activities that she found to be consistent with an ability to perform light work and frequent manipulative activities. See AR at 23-24. The ALJ did not identify how these activities either contradict Plaintiff's testimony or demonstrate the existence of transferable work skills, and therefore erred in relying on his activities to discount his testimony. See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (activities may undermine credibility where they (1) contradict the claimant's testimony or (2) "meet the threshold for transferable work skills"). This error is harmless, however, in light of the ALJ's other reasons to discount Plaintiff's testimony, which remain valid. See Carmickle v. Comm'r of Social Sec. Admin., 533 F.3d 1155, 1162-63 (9th Cir. 2008).
A claimant's use of a cane that is not medically necessary is a clear and convincing reason to discount a claimant's testimony. See Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999) (considering a claimant's use of an assistive device without clear medical indication as one valid credibility consideration). Plaintiff argues that he was not required to obtain a prescription to use a cane (Dkt. 10 at 13), but does not address whether the record shows that a cane was medically required. He has not established error in this line of the ALJ's reasoning.
Plaintiff objects to the ALJ's reference to his back surgeries as "relatively non-invasive laminectomies." AR at 23. Plaintiff argues that none of his procedures was "`non-invasive in any sense of the word[,]" and that the ALJ erred in relying on this characterization to discredit him. Dkt. 10 at 13. The ALJ did not rely on this characterization to discredit him, however, but pointed out how Plaintiff's providers consistently found him to be capable of performing at least light-level work after these surgeries. AR at 23. Plaintiff has not established prejudicial error in the ALJ's description of his back surgeries.
The ALJ noted that Plaintiff testified that he only took over-the-counter ibuprofen to manage his pain, and inferred from that fact that his pain would not preclude him from performing a light job. AR at 23 (referencing AR at 50). Plaintiff emphasizes that he testified that he is allergic to two pain medications and that another does not relieve his pain, and that he is afraid to take pain medication because he fears feeling better and then reinjuring himself. See AR at 50. Plaintiff also argues that the ALJ erred in failing to acknowledge that he has taken stronger medications in the past. Dkt. 10 at 14.
Plaintiff has not shown that the ALJ's inferences are unreasonable. See Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007) (stating that "evidence of `conservative treatment' is sufficient to discount a claimant's testimony regarding severity of an impairment"). Although Plaintiff offers an alternative interpretation of the evidence related to his pain medication use, he has not shown that the ALJ erred in finding that because he relied only on over-the-counter medication, his pain was not so severe as to preclude all work activity.
In sum, the ALJ provided many clear and convincing reasons to discount Plaintiff's subjective testimony, and any erroneous reasoning was harmless. Accordingly, the Court affirms the ALJ's assessment of Plaintiff's subjective statements.
The role of this Court is limited. As noted above, the ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving any other ambiguities that might exist. Andrews, 53 F.3d at 1039. When the evidence is susceptible to more than one rational interpretation, it is the Commissioner's conclusion that must be upheld. Thomas, 278 F.3d at 954. While it may be possible to evaluate the evidence as Plaintiff suggests, it is not possible to conclude that Plaintiff's interpretation is the only rational interpretation.
For the foregoing reasons, the Court AFFIRMS the Commissioner's decision.
