United States District Court, D. Arizona
A. TEILBORG, SENIOR UNITED STATES DISTRICT JUDGE
before the Court is Plaintiff's appeal of Defendant's
denial of his request for social security disability
benefits. Plaintiff makes two primary claims of error on
appeal: 1) the ALJ erred in not giving greater weight to
Plaintiff's treating physician, Dr. Elk; and 2) the ALJ
did not give specific, clear, and convincing reasons
supported by substantial evidence to not credit
Plaintiff's subjective symptom testimony. (Doc. 13 at
1-3). The appeal is fully briefed. (Docs. 13, 14, and 15).
Review of Decision of ALJ
decision of Administrative Law Judge (“ALJ”) to
deny benefits will be overturned “only if it is not
supported by substantial evidence or is based on legal
error.” Magallanes v. Bowen, 881 F.2d 747, 750
(9th Cir. 1989) (quotation omitted). “Substantial
evidence” means more than a mere scintilla, but less
than a preponderance. Reddick v. Chater, 157 F.3d
715, 720 (9th Cir. 1998).
inquiry here is whether the record, read as a whole, yields
such evidence as would allow a reasonable mind to accept the
conclusions reached by the ALJ.” Gallant v.
Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (citation
omitted). In determining whether there is substantial
evidence to support a decision, the Court considers the
record as a whole, weighing both the evidence that supports
the ALJ's conclusions and the evidence that detracts from
the ALJ's conclusions. Reddick, 157 F.3d at 720.
“Where evidence is susceptible of more than one
rational interpretation, it is the ALJ's conclusion which
must be upheld; and in reaching his findings, the ALJ is
entitled to draw inferences logically flowing from the
evidence.” Gallant, 753 F.2d at 1453
(citations omitted); see Batson v. Comm'r of the Soc.
Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). This
is because “[t]he trier of fact and not the reviewing
court must resolve conflicts in the evidence, and if the
evidence can support either outcome, the court may not
substitute its judgment for that of the ALJ.”
Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir.
1992); see also Young v. Sullivan, 911 F.2d 180, 184
(9th Cir. 1990).
Plaintiff's Symptom Testimony
argues the ALJ erred in rejecting Plaintiff's symptom
testimony without providing specific, clear and convincing
reasons supported by substantial evidence in the record as a
whole. (Doc. 13 at 17).
is responsible for determining credibility, resolving
conflicts in medical testimony, and resolving ambiguities.
Reddick, 157 F.3d at 722.
When an ALJ “finds that a claimant's testimony
relating to the intensity of his pain and other limitations
is unreliable, the ALJ must make a credibility determination
citing the reasons why the testimony is unpersuasive.”
Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d
595, 599 (9th Cir.1999) (citing Bunnell v. Sullivan,
947 F.2d 341 (9th Cir.1991)). In making a credibility
determination, the ALJ “must specifically identify what
testimony is credible and what testimony undermines the
claimant's complaints[.] In this regard, questions of
credibility and resolutions of conflicts in the testimony are
functions solely of the Secretary.” Id.
Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir.
assessing the credibility of a claimant's testimony
regarding subjective pain or the intensity of his symptoms,
the ALJ must engage in a two-step analysis. Molina v.
Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012). First, as a
threshold matter, “the ALJ must determine whether the
claimant has presented objective medical evidence of an
underlying impairment ‘which could reasonably be
expected to produce the pain or other symptoms
alleged.'” Lingenfelter v. Astrue, 504
F.3d 1028, 1036 (9th Cir. 2007) (quoting Bunnell v.
Sullivan, 947 F.2d 341, 344 (9th Cir. 1991)). Second, if
the claimant meets the first test, then “the ALJ
‘may not discredit a claimant's testimony of pain
and deny disability benefits solely because the degree of
pain alleged by the claimant is not supported by objective
medical evidence.'” Orteza v. Shalala, 50
F.3d 748, 749-50 (9th Cir. 1995) (quoting Bunnell,
947 F.2d at 346-47). Rather, “unless an ALJ makes a
finding of malingering based on affirmative evidence thereof,
” the ALJ may only find the claimant not credible by
making specific findings supported by the record that provide
clear and convincing reasons to explain her credibility
evaluation. Robbins v. Soc. Sec. Admin., 466 F.3d
880, 883 (9th Cir. 2006) (citing Smolen v. Chater,
80 F.3d 1273, 1283-84 (9th Cir. 1996)).
rendering a credibility determination, the ALJ may consider
several factors, including: “(1) 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; (2) unexplained or inadequately explained
failure to seek treatment or to follow a prescribed course of
treatment; and (3) the claimant's daily
activities.” Tommasetti v. Astrue, 533 F.3d
1035, 1039 (9th Cir. 2008) (quoting Smolen, 80 F.3d
at 1284). If the ALJ relies on these factors and his reliance
is supported by substantial evidence, the Court “may
not engage in second-guessing.” Id. (quoting
Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir.
Supporting medical evidence
claims the ALJ erred because the ALJ stated that “After
careful consideration of the evidence, the undersigned finds
that the claimant's medically determinable impairments
could reasonably be expected to cause the alleged symptoms
but his statements concerning the intensity, persistence, and
limiting effects of these symptoms are not entirely
consistent with the medical evidence and other evidence in
the record for the reasons explained in this decision.”
(Doc. 13 at 19). Plaintiff claims that by this statement the
ALJ imposed a requirement that Plaintiff's symptom
testimony be entirely consistent with the medical evidence
and any such requirement is error. (Id.).
the Court does not read the language of the ALJ's opinion
as narrowly as Plaintiff. In other words, the Court reads
“not entirely consistent” to mean the ALJ found
that, as a matter of fact, Plaintiff's testimony and the
records are consistent in parts and inconsistent in parts.
The Court does not read it to mean the ALJ was holding that,
as a matter of law, if Plaintiff's testimony and the
records diverge at any point, Plaintiff's testimony is
not to be credited. Thus, the Court rejects Plaintiff's
interpretation of the opinion.
it is not error for the ALJ to discredit the severity of
Plaintiff's symptom testimony when such testimony is
inconsistent with the medical evidence. See, e.g.,
Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005)
(“Although lack of medical evidence cannot form the
sole basis for discounting pain testimony, it is a factor
that the [ALJ] can consider in his credibility
analysis.”); Carmickle v. Comm'r of Soc.
Sec., 533 F.3d 1155, 1161 (9th Cir. 2008)
(“Contradiction with the medical record is a sufficient
basis for rejecting the claimant's subjective
the ALJ did not limit his findings to the medical evidence of
record. She specifically included “other evidence in
the record.” (Doc. 10-3 at 29). For example, Plaintiff's
daily activities were other evidence in the record.
Specifically, the ALJ recounted that Plaintiff, “takes
care of his personal needs without difficulty, prepares
simple meals daily, does laundry twice a week, and shops in
stores two to three times a week for 30 to 40 minutes.
[citation omitted]. [Plaintiff] reported going outside almost
every day, going out alone, and driving when traveling from
his home. [Plaintiff] stated that he watches television every
day but cannot sit as long as he used to and he sometimes
goes to church.” (Doc. 10-3 at 29). These activities
are additional substantial evidence of record on which the
ALJ relied to discredit the severity of Plaintiff's
symptom testimony. See Morgan v. Comm'r of Soc. ...