Gonsalves v. Commissioner of Social Security Administration , 487 F. App'x 428 ( 2012 )

FILED
NOT FOR PUBLICATION NOV 20 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GARY GONSALVES, No. 11-15950
Plaintiff - Appellant, D.C. No. 1:09-cv-01526-SKO
v.
MEMORANDUM *
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Sheila K. Oberto, Magistrate Judge, Presiding
Submitted November 9, 2012 **
San Francisco, California
Before: FARRIS, NOONAN, and BYBEE, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Gary Gonsalves applied for Social Security disability benefits and
Supplemental Security Income pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3). An
administrative law judge denied his claims and the district court affirmed.
Gonsalves now appeals. We review the denial of benefits de novo. Vasquez v.
Astrue, 572 F.3d 586, 590-91 (9th Cir. 2009). We must uphold the ALJ’s decision
if it is supported by substantial evidence and is not based upon legal error. Tidwell
v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999). We affirm.
Gonsalves raises three issues on appeal. First, he contends that the ALJ
erred by finding his testimony about the severity of his pain not credible. Second,
he argues that the ALJ erred in evaluating the opinions of the examining and
treating physicians. Third, Gonsalves alleges that the ALJ erred in finding that he
had a single, non-severe impairment.
The ALJ was required to provide clear and convincing reasons for
discrediting Gonsalves’ pain testimony. See Tommasetti v. Astrue, 533 F.3d 1035,
1039 (9th Cir. 2008). The ALJ provided five reasons: (1) Gonsalves had a
conservative treatment plan, (2) Gonsalves’ subjective complaints were
inconsistent with other medical evidence, (3) Gonsalves failed to seek treatment for
an extended period of time, (4) Gonsalves’ testimony lacked candor, and (5)
Gonsalves’ daily activities were not indicative of the degree of pain he alleged.
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These reasons are sufficient support for the ALJ’s adverse credibility
determination. See Tommasetti, 533 F.3d at 1039; Lingengelter v. Astrue, 504 F.3d
1028, 1040 (9th Cir. 2007); Burch v. Barnhart, 400 F.3d 676 (9th Cir. 1997).
Because the opinions of the examining and treating physicians were
controverted, the ALJ was obliged to provide specific and legitimate reasons to
discount them. Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). The ALJ
gave two reasons for affording minimal weight to the examining physician’s
opinion: (1) the doctor relied on Gonsalves’ non-credible reports of pain and (2)
the physician’s opinion was contradicted by medical evidence in her report.
Similarly, the ALJ provided five reasons for rejecting the opinions of the treating
physician: (1) the opinions relied on Gonsalves’ incredible pain testimony, (2) the
physician incorrectly listed “hands” as one of Gonsalves’ primary impairments, (3)
the doctor incorrectly noted that Gonsalves was unable to work since 2002 when
he had in fact worked full time until 2004, (4) the range of motion findings were
inconsistent with other medical evidence, and (5) the opinions were solicited by
Gonsalves’ counsel. We have reviewed the record and conclude the reasons listed
by the ALJ are specific and legitimate. See Tommasetti, 533 F.3d at 1041; Thomas
v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002); Rollins v. Massanari, 261 F.3d
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853, 856 (9th Cir. 2001); Vasquez, 572 F.3d at 591; Burkhart v. Bowen, 856 F.2d
1335, 1339 (9th Cir. 1988).
As to the third ground of the appeal, we hold that substantial evidence
supports the ALJ’s determination that Gonsalves’ impairment in his left knee was
not severe.
AFFIRMED.
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