Donna L. Rubin v. CAROLYN W. COLVIN, Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONNA L. RUBIN,
Plaintiff - Appellant,
v.
CAROLYN W. COLVIN, Commissioner
of Social Security
Defendant - Appellee.
No. 14-15135
D.C. No. 5:13-cv-00297-EJD
MEMORANDUM*
Appeal from the United States District
Court for the Northern District of California
Edward J. Davila, District Judge, Presiding
Submitted February 12, 2016**
San Francisco, California
Before: NOONAN and MURGUIA, Circuit Judges, and MURPHY, District
Judge.***
FILED
APR 15 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).
*** The Honorable Stephen Joseph Murphy III, District Judge for the U.S.
District Court for the Eastern District of Michigan, sitting by designation.

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Donna Rubin appeals the district court’s decision affirming the Commissioner
of Social Security’s denial of disability benefits. We have jurisdiction under 28 U.S.C.
§ 1291 and affirm.
Rubin argues that the Administrative Law Judge’s adverse credibility
determination was not supported by specific, clear and convincing reasons. Molina v.
Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012). During her hearing with the ALJ, Rubin
testified that from roughly 1998 through the present day, she suffered from chronic
debilitating knee pain and swelling. The ALJ found that her testimony regarding the
severity of her condition was not credible. The ALJ’s reasoning is supported by the
record. In evaluating a claimant’s credibility, the ALJ may consider “unexplained or
inadequately explained failure to seek treatment or to follow a prescribed course of
treatment.” Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (quoting
Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996)). And an ALJ may infer that the
claimant’s “pain was not as all-disabling as [s]he reported in light of the fact that [s]he
did not seek an aggressive treatment program and did not seek an alternative or more-
tailored treatment program” after other treatments failed. Id.; see also Parra v. Astrue,
481 F.3d 742, 751 (9th Cir. 2007). Here, Rubin failed to seek any aggressive or
specifically tailored treatment from January 2000 through the end of the insured
period. As the ALJ pointed out, the only evidence of any treatment during that period
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was that she took over-the-counter pain medications. Rubin’s conservative treatment
supports the ALJ’s determination that her subjective pain allegations were less than
fully credible.
Rubin next argues that the ALJ improperly discounted Dr. Gable’s medical
opinion. To be eligible for benefits, Rubin had to prove that she was disabled as of
December 2003, the last date that she was insured. See Flaten v. Sec’y of Health &
Human Servs., 44 F.3d 1453, 1458 (9th Cir. 1995). Because Dr. Gable’s opinion does
not make any statement about her limitations during the applicable period, the ALJ
properly discounted the opinion. Furthermore, the regulations permit an ALJ to
consider the “length of the treatment relationship,” “frequency of examination,” and
“specialization” of the physician when evaluating medical opinion evidence. 20
C.F.R. § 404.1527(c).•Dr. Gable’s opinion was based on a single visit with Rubin.
And Dr. Gable is an internist, not an orthopedist.
Finally, Rubin argues that the ALJ’s determination that she could do sedentary
work was not supported by substantial evidence. Rubin had surgery on her knees in
1999. At her post-surgery checkup, the doctor noted that she was “healing nicely
without evidence of infection,” and that she should attend physical therapy and take
anti-inflammatory medications. Her post-operative test results were normal and
subsequent examinations did not indicate any functional limitations. A physician also
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noted that Rubin could treat any arthritic flare-ups with anti-inflammatory medication.
Other than her testimony, which the ALJ found not credible, Rubin provided no
evidence supporting her claim that her knee condition restricts her ability to sit for
long periods of time; this is consistent with the ALJ’s assessment of Rubin’s residual
functional capacity. See 20 C.F.R. § 404.1567 (defining “sedentary” work as
involving mostly sitting).
Rubin does not dispute that, if there was substantial evidence that Rubin could
perform the full range of sedentary work, she could perform her past relevant work.
Accordingly, the Court does not need to address whether the government proved that
alternative work exists in significant numbers in the national economy. See 20 C.F.R.
§ 404.1520(a)(4)(v).
The district court’s opinion is AFFIRMED.
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