FREDERICK F. MUMM, Magistrate Judge.
Plaintiff Richard C. Arellano ("Plaintiff") brings this action seeking to overturn the decision of the Commissioner of the Social Security Administration denying his application for Disability Insurance Benefits. Pursuant to 28 U.S.C. § 636(c), the parties consented to the jurisdiction of the undersigned United States Magistrate Judge. (Dkt. Nos. 11, 13). Pursuant to the February 10, 2015, Case Management Order, (Dkt. No. 8), on December 15, 2015, the parties filed a Joint Stipulation ("Joint Stip.") detailing each party's arguments and authorities, (Dkt. No. 24). The Court has reviewed the Joint Stipulation and the administrative record ("A.R.") filed by defendant on August 7, 2015, (Dkt. No. 17).
For the reasons stated below, the decision of the Commissioner is affirmed.
On June 6, 2012, Plaintiff applied for Disability Insurance Benefits based on alleged physical impairments and asserting disability since October 19, 2011. (A.R. 161-85). Plaintiff alleged the following disabling impairments: sciatica, diabetes, high blood pressure, two herniated discs, neuropathy, and arthritis. (A.R. 180). The Administrative Law Judge ("ALJ"), Marti Kirby, examined the records and heard testimony from Plaintiff and a vocational expert ("VE") on September 30, 2013. (A.R. at 37-64).
At the hearing, Plaintiff testified that he experiences pain in his upper right abdominal area, in his buttocks running down his legs to his feet, and in his lower back. (A.R. 55). In order to control the pain, Plaintiff takes Tramadol and Morphine. (A.R. 47). Nonetheless, Plaintiff claimed that his pain is never less than a "six" on a scale from "one to ten," with "ten" being the most intense pain. (A.R. 45). Because of his pain and limitations, Plaintiff stated that he uses a wheelchair whenever he leaves his house, which he does only "once every two months." (A.R. 57). Plaintiff further testified that his wife does all of the household chores and that he spends almost all of every day lying down. (A.R. 57-60). According to Plaintiff, he has had trouble seeing a specialist for his pain because his medical referrals and insurance approvals lapse before he can schedule an appointment. (A.R. 47-48). However, Plaintiff did acknowledge that he received three epidural shots in an attempt to relieve his pain, but further stated that only the first shot provided any pain relief and that the relief lasted only a single day. (A.R. 51-52). In addition to his other impairments, Plaintiff suffers from diabetes, but testified that he is able to control those symptoms with medication and dietary restrictions. (A.R. 45).
During the hearing, the ALJ asked the VE, Randi Langford-Hetrick, what work a person of Plaintiff's age, education, and past work experience could perform if that person were limited in the following ways:
(A.R. 60). The VE testified that a person with those limitations could perform work as an office helper, a storage facility clerk, or a cashier. (A.R. 61). The VE also stated that Plaintiff's restriction to standing or walking for fifteen to twenty minutes at a time reduced the number of cashier jobs available to him by seventy-five percent. (Id.) The VE further testified that her conclusion remained unchanged even if the same person "would likely be off task up to ten percent of the workday or workweek." (Id.) However, according to the VE, no work would exist if the amount of time off task each workday or workweek were increased from ten percent to twenty percent. (A.R. 62).
On October 21, 2013, the ALJ denied Plaintiff benefits in a written decision. (A.R. 19-32). The ALJ determined that Plaintiff suffered from the following severe impairments: sciatica, degenerative disc disease of the lumbar spine, lumbar radiculopathy, lumbar stenosis, type two diabetes mellitus, hypertension, and obesity. (A.R. 24). However, the ALJ found that none of Plaintiff's impairments met or equaled a listing found in 20 C.F.R. Pt. 404, subpt. P, app. 1. (A.R. 24-25). Furthermore, the ALJ found that Plaintiff's residual functional capacity ("RFC") mirrored the limitations set forth in the hypothetical to the VE. Thus, Plaintiff's RFC included his ability to stand and walk for six hours in fifteen to twenty minute intervals, as well as his need to spend up to ten percent of each workday or workweek off task. (A.R. 24). In determining Plaintiff's RFC, the ALJ found that Plaintiff's statements regarding the "intensity, persistence, and limiting effects of his impairments [were] less than fully credible." (A.R. 25-27). Based on Plaintiff's RFC and the testimony of the VE, the ALJ concluded that Plaintiff could perform work as an office helper, storage facility clerk, or cashier and, therefore, was not disabled. (A.R. 32).
On December 10, 2014, the Appeals Council denied review of the ALJ's decision. (A.R. 1-3). Plaintiff initiated the instant proceedings on January 30, 2015. (Dkt. No. 1).
Under 42 U.S.C. § 405(g), this Court reviews the Administration's decisions to determine if: (1) the Administration's findings are supported by substantial evidence; and (2) the Administration used proper legal standards. Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citations omitted). "Substantial evidence is more than a scintilla, but less than a preponderance." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998) (citation omitted). To determine whether substantial evidence supports a finding, "a court must consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [Commissioner's] conclusion." Auckland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (internal quotation marks omitted).
If the evidence can reasonably support either affirming or reversing the ALJ's conclusion, the Court may not substitute its judgment for that of the ALJ. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citing Flaten v. Sec'y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995)). However, even if substantial evidence exists in the record to support the Commissioner's decision, the decision must be reversed if the proper legal standard was not applied. Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1014-15 (9th Cir. 2003); see also Smolen, 80 F.3d at 1279.
Plaintiff raises the following issues:
(Joint Stip. at 4).
After considering the record as a whole, the Court finds that the Commissioner's findings are supported by substantial evidence and are free from material legal error.
Once a claimant produces medical evidence of an underlying impairment that is reasonably likely to cause the alleged symptoms, medical findings are not required to support their claimed severity. Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991). However, an ALJ may reject a claimant's allegations upon: (1) finding affirmative evidence of malingering; or (2) providing clear and convincing reasons for so doing. Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003). In providing clear and convincing reasons for rejecting a claimant's assertions, "the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints." Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995) (citing Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1983)). "If the ALJ's [credibility] finding is supported by substantial evidence, [a] court may not engage in second guessing." Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (internal quotation marks omitted).
In her decision, the ALJ found that Plaintiff's "allegations concerning the intensity, persistence, and limiting effects of his symptoms are less than fully credible." (A.R. 26). To support this adverse credibility determination, the ALJ noted that, despite his testimony to the contrary, Plaintiff had seen a number of specialists over the course of his treatment. (Id.) Additionally, the ALJ determined that Plaintiff's treatment was generally conservative, non-emergency, and non-surgical, rendering it "simply inconsistent" with Plaintiff's allegations of disabling pain. (Id.) Similarly, the ALJ considered Plaintiff's purported wheelchair use harmful to his credibility because no doctor had prescribed Plaintiff an assistive device or observed Plaintiff using one. (Id.) The ALJ further discredited Plaintiff's testimony that his pain is never less than "six" out of "ten," finding it inconsistent with his reports to his doctors. (Id.) Moreover, the ALJ opined that Plaintiff's ability to "manage his personal care" while his family is away at work and school undermined his credibility. (Id.) The ALJ also found that Plaintiff's ability to work for years, despite admitted chronic back pain and diabetes, cut against his claims of disabling pain. (A.R. 27). Finally, the ALJ discredited Plaintiff's statements of disabling impairments because the medical evidence did not support his subjective complaints. (A.R. 26).
Here, the ALJ found that Plaintiff's medically determinable impairments could reasonably cause the alleged symptoms. (A.R. 29). Accordingly, the ALJ was required to provide clear and convincing reasons for rejecting Plaintiff's testimony. See Benton, 331 F.3d at 1040.
When evaluating a claimant's credibility, an ALJ may rely on "ordinary techniques of credibility evaluation, such as the claimant's reputation for lying, prior inconsistent statements concerning the symptoms, and other testimony by the claimant that appears less than candid." Smolen, 80 F.3d at 1284. Here, the ALJ determined that Plaintiff's treatment by specialists on multiple occasions undermined his claims that insurance problems continuously thwarted his attempts to see specialists. The record supports this finding. Indeed, throughout his course of treatment, Plaintiff visited a neurologist, (A.R. 330-33), a radiologist, (A.R. 374), a surgeon, (A.R. 297-302), and an orthopedic surgeon, (A.R. 314-16). Conversely, Plaintiff's medical records show only a single instance when he was unable to secure an appointment with a specialist. (A.R. 375). Thus, the ALJ reasonably concluded that Plaintiff's asserted inability to obtain specialist treatment shows that he was "less than candid" about his treatment and impairments. See Smolen 80 F.3d at 1284.
When assessing a claimant's credibility, an ALJ is permitted to discount a claimant's testimony based on "prior inconsistent statements concerning [the claimant's] symptoms." Smolen, 80 F.3d at 1284. Accordingly, an ALJ may discredit a claimant's statements of disabling pain when those statements are inconsistent with reports of less pain to his doctors. See Terrazas v. Comm'r of Soc. Sec. Admin., 500 F. App'x 628, 630 (9th Cir. 2012) (affirming ALJ's credibility determination where claimant's testimony "of constant pain all the time was inconsistent with her statements to her doctors"). Here, the record supports the ALJ's finding that Plaintiff's testimony that his pain is always a "six" or worse conflicted with his statements to his doctors. Plaintiff's medical records indicate that he routinely reported that his pain was at level "three" or "four." (A.R. 269, 285, 315, 320, 323, 329, 332, 334, 368). Indeed, on at least one occasion, Plaintiff described his pain at "zero" out of "ten." (A.R. 286). Thus, substantial evidence supports the ALJ's finding that Plaintiff's prior inconsistent statements render his testimony about disabling pain not entirely credible.
Additionally, Plaintiff's argument that the ALJ failed to take into account that Plaintiff's ailment was progressing is unpersuasive. The ALJ did not discredit Plaintiff's allegations of intense pain that are found in the medical records. Rather, the ALJ merely discredited Plaintiff's testimony that his pain is never less than a level "six." As noted above, the record contains multiple instances when Plaintiff reported that his pain level was lower than a "six." As a result, Plaintiff's argument fails.
"While subjective pain testimony cannot be rejected on the sole ground that it is not fully corroborated by objective medical evidence, the medical evidence is still a relevant factor in determining the severity of the claimant's pain and its disabling effects." Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (citing 20 C.F.R. § 404.1529(c)(2)); see also Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007). Here, the ALJ discounted Plaintiff's stated need for a wheelchair because Plaintiff's medical records indicate that Plaintiff was neither prescribed an assistive device nor observed using one. This evidence suggests not only that Plaintiff may not have used a wheelchair but also that no doctor believed Plaintiff's impairments required one. Accordingly, the lack of support in the record for Plaintiff's purported wheelchair use was a clear and convincing reason to find Plaintiff's statements about his impairments less than fully credible. Cf. Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012) (affirming the ALJ's decision where the ALJ determined that the claimant's non-prescribed use of a cane and wheelchair adversely affected his credibility).
An ALJ may permissibly conclude that a claimant's "ability to work with similar impairments in the past undermines [the claimant's] claimed inability to work now." Hubble v. Astrue, 467 F. App'x. 675, 677 (9th Cir. 2012) (citing Gregory v. Bowen, 844 F.2d 666-67 (9th Cir. 1988)). Here, the ALJ found that Plaintiff's credibility was adversely affected because his impairments "did not prevent [him] from working prior to the alleged onset date."
"[H]armless error principles apply in the Social Security . . . context." Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (citing Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006)). An ALJ's error is harmless when it is "clear from the record that [the] ALJ's error was `inconsequential to the ultimate nondisability determination.'" Robbins, 466 F.3d at 885 (quoting Stout, 454 F.3d at 1055-56). Where an ALJ provides clear and convincing reasons for discrediting a claimant's statements, impermissible additional reasons are harmless unless they "negate the validity of the ALJ's ultimate conclusion." Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004) (finding that an error in the ALJ's credibility assessment was harmless because the ALJ's decision also stated multiple permissible reasons to discredit the claimant's testimony).
Here, the ALJ's credibility evaluation contained several errors. First, Plaintiff's minimal daily activities are not inconsistent with his claimed limitations and, therefore, do not adversely affect his credibility. See Reddick, 157 F.3d at 722 (daily activities harm a claimant's credibility "only if the level of activity [is] inconsistent with the [c]laimant's claimed limitations"). Additionally, Plaintiff's treatment was not conservative, as it consisted of narcotic medications and epidural shots. See Garrison v. Colvin, 759 F.3d 995, 1015 n. 20 (9th Cir. 2014). Nor was Plaintiff's treatment infrequent, as it involved visits to specialists every few months. Notwithstanding these errors, the ALJ provided multiple clear and convincing reasons, supported by the record, for discrediting Plaintiff's testimony. Accordingly, the ALJ's errors do not "negate the validity of the [her] ultimate conclusion" and are harmless. Batson, 359 F.3d at 1197.
Plaintiff argues that the ALJ impermissibly relied on testimony from the VE that deviated, without explanation, from the Dictionary of Occupational Titles ("DOT"). Specifically, Plaintiff asserts that the VE's testimony conflicted with the DOT because the DOT does not address Plaintiff's inability to stay on task throughout the entire workday. (Joint Stip. at 21-22). Additionally, Plaintiff claims that the VE impermissibly opined that Plaintiff could perform work as a cashier, storage facility clerk, or office helper, despite his incapacity to stand or walk for more that fifteen to twenty minutes at a time. (Joint Stip. at 20-21).
At step five of the sequential evaluation,
The Ninth Circuit has not conclusively held that a VE's testimony conflicts with the DOT when the DOT is silent on a limitation considered by the VE.
Under these circumstances, the Court concludes that the VE did not deviate from the DOT when she testified about Plaintiff's need to spend up to ten percent of the workday or workweek off task. As an initial matter, it is unclear how this specific limitation is even latently inconsistent with the requirements for work as a cashier, office helper, or storage facility clerk. Additionally, the Court notes that if VEs were constrained to consider only characteristics within the DOT, conflicts would arise often, as the DOT does not address many probative mental limitations. See, e.g., Fleener v. Colvin, 2015 WL 5521992, at *6 (D. Or. Sept. 15, 2015) (citations omitted) (recognizing that the DOT "does not address a plaintiff's limitations related to concentration, persistence, or pace or other non-exertional limitations"). Such incessant conflict would be inconsistent with the role and purpose of the VE. See SSR 83-12, 1983 WL 31253, at *3 (Jan. 1, 1983) (VE assistance is "advisable" when claimant's limitations do not fall squarely with established criteria); see also Sample v. Schweiker, 694 F.2d 639, 643 (9th Cir. 1982) (VE's purpose is to "translate[] factual scenarios into realistic job market probabilities"); Bayliss, 427 F.3d at 1218. Moreover, while they have not squarely addressed this specific issue, some courts within this circuit have implicitly accepted a VE's consideration of a claimant's need to spend a percentage of the workday off task. See, e.g., Gordon v. Colvin, 2015 WL 685396, at *7 (C.D. Cal. Feb. 17, 2015); Basulto v. Colvin, 2014 WL 1266784, at *7 (C.D. Cal. Mar. 26, 2014); Lea v. Colvin, 2015 WL 997863, at *6 (D. Ariz. Mar. 5, 2015). As a result, the Court finds that the VE's testimony was not defective.
Plaintiff further argues that the VE's testimony was inconsistent with the DOT because no employer would allow an employee to be off task for ten percent of the workday in addition to regular breaks. However, Plaintiff ultimately fails to cite any source supporting this conclusion. Accordingly, the Court defers to the "recognized expertise" of the VE, who opined that Plaintiff's limitations do not preclude employment. Bayliss, 427 F.3d at 1218.
Plaintiff challenges the VE's consideration of his standing and walking limitations on two bases. First, Plaintiff argues that the VE's testimony was defective because the DOT does not address his need to sit after fifteen to twenty minutes of standing or walking. (Joint Stip. at 21). The Court dismisses this argument for the reasons discussed in the preceding section. Second, Plaintiff ostensibly contends that, because the DOT classifies the jobs identified by the VE as "light work," they require him to stand for six hours daily and, therefore, conflict with his standing and walking limitation.
The DOT classifies the occupations of office helper (DOT 239.567-010, 1991 WL 672232), storage facility clerk (DOT 295.367-026, 1991 WL 672594), and cashier (DOT 211.462-010, 1991 WL 671840), as "light work."
Here, the VE testified that Plaintiff can perform work as an office helper, storage facility clerk, and cashier.
In sum, Plaintiff has failed to show that the VE's consideration of Plaintiff's limitations caused her testimony to deviate from the criteria of the DOT. Rather, based on the foregoing analysis, the Court finds that the DOT's failure to address two of Plaintiff's limitations does not, by itself, create an apparent conflict between the DOT and the VE's testimony. Moreover, because the VE's testimony was consistent with the notion that a claimant may perform a limited range of work within an exertional category, her testimony did not conflict with the DOT. Therefore, the ALJ was permitted to rely on the testimony of the VE.
The legally valid reasons given by the ALJ for discounting Plaintiff's credibility cause the Court to conclude that the ALJ's credibility finding was based on permissible grounds. The Court therefore defers to the ALJ's credibility determination. See Lasich v. Astrue, 252 F. App'x 823, 825 (9th Cir. 2007) (courts will defer to ALJ's credibility determination when the proper process is used and proper reasons for the decision are provided); accord Flaten, 44 F.3d at 1464. Furthermore, the Court finds that the VE's testimony did not conflict with the DOT. Therefore, the ALJ did not err when she relied on the VE's findings about jobs Plaintiff is able to perform. Because the ALJ's decision is supported by substantial evidence in the record and relies on permissible legal standards, the Court must affirm the ALJ's decision.
For all of the foregoing reasons, the decision of the Administrative Law Judge is affirmed.
LET JUDGMENT BE ENTERED ACCORDINGLY.
