Arturo Robles v. Michael J Astrue, No. 2:2008cv01376 - Document 38 (C.D. Cal. 2013)
Court Description: MEMORANDUM OPINION by Magistrate Judge Jacqueline Chooljian. The decision of the Commissioner of Social Security is affirmed. (hr)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ARTURO ROBLES, 12 Plaintiff, 13 14 15 v. Case No. CV 08-1376 JC MEMORANDUM OPINION CAROLYN W. COLVIN,1 Acting Commissioner of Social Security, 16 17 I. 18 Defendant. SUMMARY On March 4, 2008, plaintiff Arturo Robles ( plaintiff ) filed a Complaint 19 seeking review of the Commissioner of Social Security s termination of plaintiff s 20 benefits. The parties have consented to proceed before a United States Magistrate 21 Judge. 22 This matter is before the Court on the parties cross motions for summary 23 judgment, respectively ( Plaintiff s Motion ) and ( Defendant s Motion ). The 24 Court has taken both motions under submission without oral argument. See Fed. 25 R. Civ. P. 78; L.R. 7-15; Case Management Order March 5, 2008 ¶ 5. 26 27 1 Carolyn W. Colvin is substituted as Acting Commissioner of Social Security pursuant to 28 Fed. R. Civ. P. 25(d). 1 1 Based on the record as a whole and the applicable law, the decision of the 2 Commissioner is AFFIRMED. The findings of the Administrative Law Judge are 3 supported by substantial evidence and are free from material error.2 4 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE 5 DECISION 6 Based on plaintiff s applications for Supplemental Security Income ( SSI ) 7 and Disability Insurance Benefits ( DIB ) filed on May 15, 2000 and December 8 12, 2004, respectively, plaintiff was found to be disabled beginning on January 17, 9 2000 due to a medically determinable impairment of depression which met Listing 10 12.04 ( Affective Disorders ). (Administrative Record ( AR ) 76, 107, 492-505, 11 590, 593). The most recent favorable medical decision which found plaintiff to be 12 disabled (i.e., comparison point decision or CPD ) was dated March 1, 2003. 13 (AR 76, 593; see AR 492-505). On December 27, 2005 plaintiff was notified that 14 his benefits were being terminated based on a determination that plaintiff s 15 disability ceased on August 1, 2005. (AR 83; see AR 60, 73-82). On January 4, 16 2006, plaintiff requested a hearing before an Administrative Law Judge. (AR 86). 17 A prior Administrative Law Judge ( First ALJ ) examined the medical 18 record and heard testimony from plaintiff (who was not represented by counsel) as 19 well as vocational and medical experts on April 6 and August 10, 2006 ( First 20 Hearings ). (AR 621-72). On January 10, 2007, the First ALJ determined that 21 plaintiff s disability ceased on August 1, 2005 ( First Decision ). (AR 13-19). 22 The Appeals Council denied plaintiff s application for review of the First 23 Decision. (AR 4-6). 24 /// 25 26 27 28 2 The harmless error rule applies to the review of administrative decisions regarding disability. See Molina v. Astrue, 674 F.3d 1104, 1115-22 (9th Cir. 2012) (discussing contours of application of harmless error standard in social security cases) (citing, inter alia, Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1054-56 (9th Cir. 2006)). 2 1 On May 1, 2008, pursuant to the parties stipulation and for good cause 2 shown, this Court remanded the case pursuant to sentence six of 42 U.S.C. 3 § 405(g) for further administrative action; Significant portions of the recording of 4 the April 6, 2006 hearing were inaudible. (AR 673-75). The Appeals Council, in 5 turn, remanded the case to a second prior Administrative Law Judge ( Second 6 ALJ ) to hold a de novo hearing and to issue a new decision. (AR 682-83). 7 The Second ALJ examined the medical record and heard testimony from 8 plaintiff (who was represented by counsel) and a vocational expert on June 12, 9 2009 ( Second Hearing ). (AR 997-1035). On October 14, 2009, the Second ALJ 10 erroneously determined that plaintiff was not disabled from January 17, 2000 to 11 August 1, 2005 ( Second Decision ), rather than addressing the issue of cessation 12 of disability. (AR 13-19). On April 19, 2010, the Appeals Council granted 13 review, vacated the Second Decision, and remanded the matter for further 14 administrative proceedings with directions to, among other things, obtain 15 testimony from a medical expert. (AR 703-04). 16 On October 28, 2010, the current Administrative Law Judge ( ALJ ) 17 examined the medical record and also heard testimony from plaintiff (who was 18 again represented by counsel), a medical expert and a vocational expert ( Third 19 Hearing ). (AR 1036-72). On January 14, 2011, the ALJ determined that 20 plaintiff s disability ended as of August 1, 2005 ( Third Decision ). (AR 61221 19). On July 1, 2011, the Appeals Council granted review, vacated the Third 22 Decision, and remanded the matter for further administrative proceedings with 23 directions to, among other things, obtain testimony from a medical expert with a 24 specialty in mental health.3 (AR 719-20). 25 26 27 28 3 In the Third Decision, the ALJ concluded that plaintiff ceased being disabled on August 1, 2005 primarily because the ALJ found that plaintiff s mental impairment had decreased in medical severity. (AR 590-91). At the Third Hearing, however, the medical expert the ALJ (continued...) 3 1 On February 2, 2012, the ALJ held a fourth hearing at which the ALJ heard 2 testimony from plaintiff (who was again represented by counsel), a 3 psychologist/medical expert, and a vocational expert ( Fourth Hearing ). (AR 4 1073-1103). On April 3, 2012 the ALJ determined that, at the time of the CPD 5 (i.e., March 1, 2003) plaintiff was disabled due to a listing level mental 6 impairment, but due to medical improvement plaintiff s disability ended as of 7 August 1, 2005 ( Fourth Decision ). (AR 590-97). The ALJ noted that [t]he 8 prior decision issued on January 14, 2011 [(i.e., the Third Decision)] is 9 incorporated by reference and is the decision on remand as supplemented herein. 10 (AR 593). The ALJ also found that beginning on August 1, 2005 (1) plaintiff 11 suffered from the following medically determinable impairments: a major 12 depressive disorder, chronic low back pain secondary to mild degenerative disc 13 disease, hypertension, diabetes mellitus, and obesity4 (AR 593); (2) plaintiff s 14 impairments, considered singly or in combination, did not meet or medically equal 15 a listed impairment (AR 593); (3) the impairments present at the time of the CPD 16 decreased in medical severity to the point where plaintiff retained the residual 17 functional capacity to perform light work (20 C.F.R. §§ 404.1567(b), 416.967(b)) 18 with additional limitations5 (AR 595); (4) plaintiff could not perform his past 19 20 21 22 23 24 25 3 (...continued) called was an internist, not a clinical psychologist (as with the First Hearings), who testified only as to plaintiff s physical conditions . . . not to any psychological [condition]. (AR 720, 1039). Accordingly, the Appeals Council remanded the case with an instruction to obtain testimony from a psychiatrist or psychologist. . . . (AR 720). 4 The ALJ also noted that, as of November 2011, plaintiff developed stage III kidney disease, which the ALJ considered in the residual functional capacity assessment. (AR 593). 5 The ALJ determined that plaintiff: (i) could lift, carry, push or pull no more than 20 26 pounds occasionally and 10 pounds frequently; (ii) could stand, walk or sit for about six hours 27 out of eight; (iii) could occasionally climb, stoop, kneel, crouch or crawl but never balance; (iv) could not climb ladders, ropes or scaffolds; (v) could only occasionally work above shoulder 28 level bilaterally; (vi) needed an environment that was air-conditioned for temperature control, (continued...) 4 1 relevant work (AR 596); (5) there are jobs that exist in significant numbers in the 2 national economy that plaintiff could perform, specifically assembler I, 3 inspector/hand packager, and addresser (AR 596-97 ); and (6) plaintiff s 4 allegations regarding his limitations were not fully credible (AR 617). 5 The Appeals Council declined to assume jurisdiction to review the Fourth 6 Decision. (AR 583-84). 7 III. APPLICABLE LEGAL STANDARDS 8 A. 9 To qualify for disability benefits, a claimant must show that the claimant is Sequential Evaluation Process Termination of Benefits 10 unable to engage in any substantial gainful activity by reason of any medically 11 determinable physical or mental impairment which can be expected to result in 12 death or which has lasted or can be expected to last for a continuous period of not 13 less than 12 months. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) 14 (quoting 42 U.S.C. § 423(d)(1)(A)) (internal quotation marks omitted). 15 Once a claimant is found disabled under the Social Security Act, a 16 presumption of continuing disability arises. See Bellamy v. Secretary of Health & 17 Human Services, 755 F.2d 1380, 1381 (9th Cir. 1985) (citation omitted). Benefits 18 cannot be terminated unless substantial evidence demonstrates medical 19 improvement in the claimant s impairment such that the claimant becomes able to 20 engage in substantial gainful activity. See 42 U.S.C. § 423(f); 20 C.F.R. 21 §§ 404.1594, 416.994; Murray v. Heckler, 722 F.2d 499, 500 (9th Cir. 1983); 22 Mendoza v. Apfel, 88 F. Supp. 2d 1108, 1113 (C.D. Cal. 2000) (citations omitted). 23 /// 24 /// 25 26 27 28 5 (...continued) and needed to avoid working around dangerous unguarded moving machinery or at unprotected heights; and (vii) could only do simple and repetitive tasks, in a nonpublic environment, that did not require hypervigilance. (AR 595). 5 1 In assessing whether a claimant continues to be disabled, an ALJ is to 2 follow an eight-step sequential evaluation process for DIB claims and a seven-step 3 process for SSI claims:6 4 (1) (DIB cases only) Is the claimant presently engaged in substantial 5 gainful activity? If so, and any applicable trial work period has been 6 completed, the claimant s disability ends. If not, proceed to step two. 7 (2) Does the claimant have an impairment, or combination of 8 impairments, which meets or equals an impairment listed in 20 9 C.F.R. Part 404, Subpart P, Appendix 1? If so, the claimant s 10 11 disability continues. If not, proceed to step three. (3) Has there been medical improvement as shown by a decrease in 12 the medical severity of the impairment(s) present at the time of 13 the CPD?7 If so, proceed to step four. If not, proceed to step 14 five. 15 (4) Was any medical improvement related to the ability to work 16 (i.e., has there been an increase in the claimant s residual 17 functional capacity)? If so, proceed to step six. If not, proceed 18 to step five. 19 (5) 20 Is there an exception to medical improvement? If not, the claimant s disability continues. If an exception from the first 21 22 6 Since the sequential evaluation process for DIB and SSI claims are materially the same 23 except as to the first step (which governs DIB claims only and is not relevant in the current case), 24 the Court describes only the DIB process. 25 26 27 28 7 Medical improvement is defined as any decrease in the medical severity of [a claimant s] impairment(s) which was present at the time of the most recent favorable medical decision that [the claimant was] disabled or continued to be disabled (i.e., the CPD). 20 C.F.R. §§ 404.1594(b)(1), 416.994(b)(1)(i). A determination that there has been a decrease in medical severity must be based on changes (improvement) in the symptoms, signs and/or laboratory findings associated with [a claimant s] impairment(s). Id. 6 1 group of exceptions to medical improvement applies (i.e., 2 substantial evidence shows that the claimant has benefitted 3 from advances in medical or vocational therapy or 4 technology or undergone vocational therapy if either is 5 related to [the] ability to work ), see 20 C.F.R. §§ 404.1594(d) 6 & 416.994(b)(3), proceed to step six. If an exception from the 7 second group8 applies (i.e., disability determination was 8 fraudulently obtained, claimant was uncooperative, unable to 9 be found, or failed to follow prescribed treatment), see 20 10 C.F.R. §§ 404.1594(e) & 416.994(b)(4), the claimant s 11 disability ends. 12 (6) 13 14 Is the claimant s current combination of impairments severe? If so, proceed to step seven. If not, the claimant s disability ends. (7) Does the claimant possess the residual functional capacity to perform 15 claimant s past relevant work? If so, the claimant s disability ends. 16 If not, proceed to step eight. 17 (8) Does the claimant s residual functional capacity, when considered 18 with the claimant s age, education, and work experience, allow the 19 claimant to do other work? If so, the claimant s disability ends. If 20 not, the claimant s disability continues. 21 20 C.F.R. §§ 404.1594(f), 416.994(b)(5). 22 Although the claimant retains the burden to prove disability, the 23 presumption of continuing disability places on the Commissioner the burden to 24 produce evidence of medical improvement to meet or rebut that presumption. 25 Bellamy, 755 F.2d at 1381 (citation omitted); see Allen v. Heckler, 749 F.2d 577, 26 27 8 The second group of exceptions may be considered at any point in the sequential 28 evaluation process. 20 C.F.R. §§ 404.1594(b)(5), 416.994(b)(5)(iv). 7 1 578-79 (9th Cir. 1984) ( Once the claimant demonstrates that he is unable to 2 return to his prior work, however, the [Commissioner] must find that the claimant 3 is able to engage in other types of substantial gainful work which exists in the 4 national economy in order to terminate benefits. ). 5 B. 6 A court may set aside a decision to terminate benefits only if it is not Standard of Review 7 supported by substantial evidence or if it is based on legal error. See 42 U.S.C.A. 8 §§ 405(g), 423(f); Allen, 749 F.2d at 579 (citation omitted). Substantial evidence 9 is such relevant evidence as a reasonable mind might accept as adequate to 10 support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971) (citations 11 and quotations omitted). It is more than a mere scintilla but less than a 12 preponderance. Robbins v. Social Security Administration, 466 F.3d 880, 882 13 (9th Cir. 2006) (citing Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)). 14 To determine whether substantial evidence supports a finding, a court must 15 consider the record as a whole, weighing both evidence that supports and 16 evidence that detracts from the [Commissioner s] conclusion. Aukland v. 17 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 18 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming 19 or reversing the ALJ s conclusion, a court may not substitute its judgment for that 20 of the ALJ. Robbins, 466 F.3d at 882 (citing Flaten v. Secretary of Health & 21 Human Services, 44 F.3d 1453, 1457 (9th Cir. 1995)). 22 IV. DISCUSSION 23 A. 24 25 The ALJ Properly Evaluated the Medical Opinion Evidence 1. Pertinent Law In Social Security cases, courts employ a hierarchy of deference to medical 26 opinions depending on the nature of the services provided. Courts distinguish 27 among the opinions of three types of physicians: those who treat the claimant 28 ( treating physicians ) and two categories of nontreating physicians, namely 8 1 those who examine but do not treat the claimant ( examining physicians ) and 2 those who neither examine nor treat the claimant ( nonexamining physicians ). 3 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (footnote reference omitted). A 4 treating physician s opinion is entitled to more weight than an examining 5 physician s opinion, and an examining physician s opinion is entitled to more 6 weight than a nonexamining physician s opinion.9 See id. In general, the opinion 7 of a treating physician is entitled to greater weight than that of a non-treating 8 physician because the treating physician is employed to cure and has a greater 9 opportunity to know and observe the patient as an individual. Morgan v. 10 Commissioner of Social Security Administration, 169 F.3d 595, 600 (9th Cir. 11 1999) (citing Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987)). 12 The treating physician s opinion is not, however, necessarily conclusive as 13 to either a physical condition or the ultimate issue of disability. Magallanes v. 14 Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (citing Rodriguez v. Bowen, 876 F.2d 15 759, 761-62 & n.7 (9th Cir. 1989)). Where a treating physician s opinion is not 16 contradicted by another doctor, it may be rejected only for clear and convincing 17 reasons. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (citation and internal 18 quotations omitted). The ALJ can reject the opinion of a treating physician in 19 favor of another conflicting medical opinion, if the ALJ makes findings setting 20 forth specific, legitimate reasons for doing so that are based on substantial 21 evidence in the record. Id. (citation and internal quotations omitted); Thomas v. 22 Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (ALJ can meet burden by setting out 23 detailed and thorough summary of facts and conflicting clinical evidence, stating 24 his interpretation thereof, and making findings) (citations and quotations omitted); 25 26 27 28 9 Cf. Le v. Astrue, 529 F.3d 1200, 1201-02 (9th Cir. 2008) (not necessary or practical to draw bright line distinguishing treating physicians from non-treating physicians; relationship is better viewed as series of points on a continuum reflecting the duration of the treatment relationship and frequency and nature of the contact) (citation omitted). 9 1 Magallanes, 881 F.2d at 751, 755 (same; ALJ need not recite magic words to 2 reject a treating physician opinion court may draw specific and legitimate 3 inferences from ALJ s opinion). The ALJ must do more than offer his 4 conclusions. Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). He must 5 set forth his own interpretations and explain why they, rather than the 6 [physician s], are correct. Id. Broad and vague reasons for rejecting the 7 treating physician s opinion do not suffice. McAllister v. Sullivan, 888 F.2d 599, 8 602 (9th Cir. 1989). 9 10 2. Analysis On November 12, 2010, Dr. Rahima Afghan, plaintiff s treating psychiatrist, 11 completed an Evaluation Form for Mental Disorders and a Mental Assessment 12 form in which she, among other things, noted that plaintiff had a long history of 13 mood swings and depression, diagnosed plaintiff with bipolar disorder, and 14 essentially opined that plaintiff s mental condition would prevent plaintiff from 15 working on a full time basis ( Dr. Afghan s Opinions ). (AR 893-99). Plaintiff 16 contends that a remand or reversal is warranted because the ALJ failed properly to 17 consider Dr. Afghan s Opinions. (Plaintiff s Motion at 4-8). The Court disagrees. 18 First, to the extent plaintiff contends that the ALJ did not address Dr. 19 Afghan s Opinions at all, the record belies such an assertion. In the Third 20 Decision which the ALJ incorporated into the Fourth Decision by reference the 21 ALJ discussed Dr. Afghan s Opinions at length and, as noted below, properly 22 rejected such opinions for clear and convincing, specific and legitimate reasons 23 supported by substantial evidence. (AR 593, 615-17). 24 Second, as the ALJ noted, Dr. Afghan s opinions that plaintiff had marked 25 limitation in multiple categories of mental ability were expressed in a series of 26 checked boxes without any specific clinical or objective findings to support them. 27 (AR 616) (citing Exhibit 41F at 13-14 [AR 897-98]). The ALJ properly rejected 28 such opinions on this basis alone. See Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 10 1 1996) ( ALJ [] permissibly rejected [psychological evaluation forms] because they 2 were check-off reports that did not contain any explanation of the bases of their 3 conclusions. ); see also De Guzman v. Astrue, 343 Fed. Appx. 201, 209 (9th Cir. 4 2009) (ALJ is free to reject check-off reports that d[o] not contain any 5 explanation of the bases of their conclusions. ) (citing id.); Murray, 722 F.2d at 6 501 (expressing preference for individualized medical opinions over check-off 7 reports). 8 Third, as the ALJ and the testifying medical expert noted, Dr. Afghan s 9 Opinions were inconsistent with [plaintiff s] treatment records. (AR 615-16, 10 1092-93) (citing Exhibit 41F at 15 [AR 899]). For example, in the Evaluation 11 Form For Mental Disorders, Dr. Afghan noted that plaintiff had a long history of 12 mood swings and depression, and opined, among other things, that plaintiff was 13 unable to adapt to work or work-like situations, that plaintiff likely would be 14 absent from work more than four days per month due to his impairments or 15 treatment, and that even a minimal increase in mental demands or changes in the 16 environment would likely cause plaintiff to decompensate. (AR 893, 896). As the 17 ALJ observed, however, Dr. Afghan s assessment of plaintiff s mental functional 18 capacity was quite inconsistent with such dramatic mental limitations. (AR 19 615). Specifically, Dr. Afghan noted that plaintiff (1) did not require assistance to 20 keep his appointments; (2) presented with a normal posture, gait, mannerisms and 21 general appearance; (3) had no history of psychiatric hospitalization; (4) had no 22 history of alcohol or drug abuse; (5) had some difficulty concentrating and was 23 unable to do serial 7s, but otherwise was oriented in all spheres; (6) had intact 24 memory with no hallucinations or delusions; and (7) was stable on medication. 25 (AR 893-94). 26 Similarly, as the ALJ also noted, in what appears to be the last page of the 27 Mental Assessment form, Dr. Afghan opined that plaintiff was unable to maintain 28 a sustained level of concentration, unable to maintain sustained repetitive tasks for 11 1 an extended period, unable to adapt to new or stressful situations, and unable to 2 complete a 40 hour week without decompensating. (AR 899). In contrast, on the 3 same page Dr. Afghan indicated that plaintiff had clearly organized thoughts, 4 intact memory and judgment, no psychosis, no evidence of confusion, insomnia, 5 depression, anxiety, panic attacks, decreased energy, inappropriate affect, 6 suicidal/homicidal ideation or manic syndromes, and no negative symptoms of 7 social withdrawal, apathy, poor grooming or affective flattening. (AR 899). The 8 foregoing discrepancies were clear and convincing reasons based on substantial 9 evidence for rejecting Dr. Afghan s Opinions. See Bayliss v. Barnhart, 427 F.3d 10 1211, 1216 (9th Cir. 2005) (A discrepancy between a physician s notes and 11 recorded observations and opinions and the physician s assessment of limitations 12 is a clear and convincing reason for rejecting the opinion.). 13 Fourth, the ALJ properly rejected Dr. Afghan s Opinions to the extent they 14 were not supported by the treating psychiatrist s own notes or the record as a 15 whole. See Bayliss , 427 F.3d at 1217 ( The ALJ need not accept the opinion of 16 any physician, including a treating physician, if that opinion is brief, conclusory, 17 and inadequately supported by clinical findings. ) (citation and internal quotation 18 marks omitted); Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 2003) (treating 19 physician s opinion properly rejected where treating physician s treatment notes 20 provide no basis for the functional restrictions he opined should be imposed on 21 [the claimant] ). For example, as the medical expert testified (AR 1093), although 22 Dr. Afghan s treatment records reflect sporadic reports by plaintiff of subjective 23 complaints (AR 852 [ stressed ]; AR 853, 856, 901, 904-07, 909 [ depressed ]; 24 AR 848, 861, 913 [ angry/irritable ]), most records document primarily normal 25 mental status evaluations (AR 844-47, 849-51, 855, 857-60, 862-64, 903, 908, 26 910-12), many noted that plaintiff was stable on his medication (AR 846, 847, 27 855, 857-58, 864-65, 902, 908, 910), and several others reflect that plaintiff told 28 Dr. Afghan that his condition was even improving (AR 849, 862, 903 [ feeling 12 1 better ]; AR 855, 857, 860, 864-65, 908, 912 [ doing fine, no problem, doing 2 OK ]). 3 Fifth, the ALJ properly rejected Dr. Afghan s Opinions as inconsistent with 4 plaintiff s own statements regarding his functional capabilities. See Morgan, 169 5 F.3d at 601-02 (ALJ may reject medical opinion that is inconsistent with other 6 evidence of record including claimant s statements regarding daily activities). For 7 example, as the ALJ noted, plaintiff s ability to attend college and earn a degree in 8 business management after he was initially found disabled is inconsistent with the 9 severe limitations found by Dr. Afghan. (AR 617) (citing Exhibit 41F at 9-15 [AR 10 893-99]). 11 Finally, the ALJ properly rejected Dr. Afghan s Opinions in favor of the 12 conflicting opinions of the consultative examining neurologist/psychiatrist, Dr. 13 John S. Woodward (who concluded that plaintiff could perform simple, repetitive 14 tasks ) (AR 526), and the medical expert, Dr. David Glassmire (a clinical 15 psychologist who testified that plaintiff could perform simple repetitive tasks 16 [with] no interaction with the public and no tasks requiring hypervigilance ) (AR 17 1076, 1094). The opinion of Dr. Woodward was supported by the psychiatrist s 18 independent examination of plaintiff (AR 524-27), and thus, without more, 19 constituted substantial evidence upon which the ALJ could properly rely to reject 20 the treating psychiatrist s opinions. See, e.g., Tonapetyan v. Halter, 242 F.3d 21 1144, 1149 (9th Cir. 2001) (consultative examiner s opinion on its own 22 constituted substantial evidence, because it rested on independent examination of 23 claimant); Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). Dr. 24 Glassmire s testimony also constituted substantial evidence supporting the ALJ s 25 decision since it was supported by the other medical evidence in the record as well 26 as Dr. Woodward s opinion and underlying independent examination. See 27 Morgan, 169 F.3d at 600 (testifying medical expert opinions may serve as 28 /// 13 1 substantial evidence when they are supported by other evidence in the record and 2 are consistent with it ). 3 Accordingly, a remand or reversal is not warranted on this basis. 4 B. 5 6 The ALJ Properly Evaluated Plaintiff s Credibility 1. Pertinent Law Questions of credibility and resolutions of conflicts in the testimony are 7 functions solely of the Commissioner. Greger v. Barnhart, 464 F.3d 968, 972 (9th 8 Cir. 2006). If the ALJ s interpretation of the claimant s testimony is reasonable 9 and is supported by substantial evidence, it is not the court s role to second10 guess it. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). 11 An ALJ is not required to believe every allegation of disabling pain or other 12 non-exertional impairment. Orn, 495 F.3d at 635 (citing Fair v. Bowen, 885 F.2d 13 597, 603 (9th Cir. 1989)). If the record establishes the existence of a medically 14 determinable impairment that could reasonably give rise to symptoms assertedly 15 suffered by a claimant, an ALJ must make a finding as to the credibility of the 16 claimant s statements about the symptoms and their functional effect. Robbins, 17 466 F.3d at 883 (citations omitted). Where the record includes objective medical 18 evidence that the claimant suffers from an impairment that could reasonably 19 produce the symptoms of which the claimant complains, an adverse credibility 20 finding must be based on clear and convincing reasons. Carmickle v. 21 Commissioner, Social Security Administration, 533 F.3d 1155, 1160 (9th Cir. 22 2008) (citations omitted). The only time this standard does not apply is when 23 there is affirmative evidence of malingering. Id. The ALJ s credibility findings 24 must be sufficiently specific to allow a reviewing court to conclude the ALJ 25 rejected the claimant s testimony on permissible grounds and did not arbitrarily 26 discredit the claimant s testimony. Moisa v. Barnhart, 367 F.3d 882, 885 (9th 27 Cir. 2004). 28 /// 14 1 To find the claimant not credible, an ALJ must rely either on reasons 2 unrelated to the subjective testimony (e.g., reputation for dishonesty), internal 3 contradictions in the testimony, or conflicts between the claimant s testimony and 4 the claimant s conduct (e.g., daily activities, work record, unexplained or 5 inadequately explained failure to seek treatment or to follow prescribed course of 6 treatment). Orn, 495 F.3d at 636; Robbins, 466 F.3d at 883; Burch v. Barnhart, 7 400 F.3d 676, 680-81 (9th Cir. 2005); Social Security Ruling 96-7p.10 Although 8 an ALJ may not disregard such claimant s testimony solely because it is not 9 substantiated affirmatively by objective medical evidence, the lack of medical 10 evidence is a factor that the ALJ may consider in his credibility assessment. 11 Burch, 400 F.3d at 681. 12 13 2. Analysis Plaintiff contends that the ALJ inadequately evaluated the credibility of his 14 subjective complaints. (Plaintiff s Motion at 9-10). The Court disagrees. 15 First, the record belies plaintiff s assertion that the ALJ simply did not 16 bother evaluating [his] testimony. (Plaintiff s Motion at 10). In the Third 17 Decision which, as noted above, the ALJ incorporated into the Fourth Decision 18 by reference the ALJ discussed plaintiff s subjective complaints in detail and, as 19 noted below, found plaintiff not . . . fully credible for clear and convincing 20 reasons. (AR 593, 616-17). 21 Second, the ALJ properly discounted the credibility of plaintiff s subjective 22 complaints as inconsistent with plaintiff s daily activities and other conduct. See 23 Thomas, 278 F.3d at 958-59 (inconsistency between claimant s testimony and 24 claimant s conduct supported rejection of the claimant s credibility); Verduzco v. 25 Apfel,188 F.3d 1087, 1090 (9th Cir. 1999) (inconsistencies between claimant s 26 27 10 Social Security rulings are binding on the Administration. See 20 C.F.R. § 28 402.35(b)(1); Terry v. Sullivan, 903 F.2d 1273, 1275 n.1 (9th Cir. 1990) (citations omitted). 15 1 testimony and actions cited as a clear and convincing reason for rejecting the 2 claimant s testimony). For example, as the ALJ noted, contrary to plaintiff s 3 allegations of disabling mental limitations, plaintiff testified that he was able to 4 attend college and obtain a BS degree in business management. (AR 617, 10835 86). As the ALJ also noted, plaintiff s allegations of disabling physical 6 impairments were inconsistent with plaintiff s assertions in a Function Report 7 dated May 5, 2005 (i.e., three months before plaintiff s benefits were terminated) 8 specifically, plaintiff stated that he had no problems with personal care, he could 9 prepare some meals, could do some household chores with the help of his 10 children, could drive a car, ride in a car, go out alone, shop in stores or by 11 computer (i.e., for household items, car parts, and groceries with his spouse), and 12 he would go to school every day and regularly attend church. (AR 617) (citing 13 Exhibit 23E [AR 240-47]). 14 Finally, the ALJ properly discounted plaintiff s credibility to the extent 15 plaintiff s subjective symptom allegations were not fully corroborated by the 16 objective medical evidence. See Rollins, 261 F.3d at 857 ( While subjective pain 17 testimony cannot be rejected on the sole ground that it is not fully corroborated by 18 objective medical evidence, the medical evidence is still a relevant factor in 19 determining the severity of the claimant s pain and its disabling effects. ) (citation 20 omitted). For example, as the ALJ noted, medical records reflect primarily normal 21 mental status evaluations for plaintiff and that plaintiff was mostly stable with 22 medication. (AR 617, 844-47, 849-51, 855, 857-60, 862-65, 902-03, 908, 91023 12); cf. Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (evidence that 24 claimant responded favorably to conservative treatment undermines plaintiff s 25 reports of disabling pain). In addition, Dr. Jeff Altman, a state-agency examining 26 physician, conducted a complete orthopedic consultation which included a 27 physical examination of plaintiff. (AR 573-77). Contrary to plaintiff s complaints 28 of chronic back pain, Dr. Altman found some myofascial pain and mild 16 1 degenerative changes in plaintiff s back, but otherwise plaintiff had no [] gross 2 functional deficits. (AR 616) (citing Exhibit 34F at 4 [AR 576]). More 3 specifically, plaintiff s range of motion in the thoracolumbar spine was within 4 normal limits, straight leg raising was negative in both the seated and supine 5 positions bilaterally, gait was normal, motor strength was 5/5 in both the upper 6 and lower extremities, sensation was intact, and reflexes were normal. (AR 5747 76). In fact, as the ALJ noted, Dr. Altman opined that plaintiff was capable of 8 performing heavy work. (AR 616) (citing Exhibit 34F at 4 [AR 576]). 9 Accordingly, a remand or reversal is not warranted on this basis. 10 V. CONCLUSION 11 For the foregoing reasons, the decision of the Commissioner of Social 12 Security is affirmed. 13 LET JUDGMENT BE ENTERED ACCORDINGLY. 14 DATED: September 30, 2013 15 16 17 ______________/s/___________________ Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 17
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