Deborah A. Etter v. Michael J. Astrue, No. 2:2010cv00582 - Document 23 (C.D. Cal. 2010)
Court Description: MEMORANDUM AND OPINION; ORDER by Magistrate Judge Oswald Parada: IT THEREFORE IS ORDERED that Judgment be entered affirming the decision of the Commissioner, and dismissing this action with prejudice. (am)
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Deborah A. Etter v. Michael J. Astrue Doc. 23 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 DEBORAH A. ETTER, ) Case No. CV 10-582-OP ) Plaintiff, ) v. ) MEMORANDUM OPINION; ORDER ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ) 17 The Court1 now rules as follows with respect to the disputed issues listed in 18 the Joint Stipulation (“JS”).2 19 / / / 20 / / / 21 / / / 22 23 1 24 25 Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the United States Magistrate Judge in the current action. (See Dkt. Nos. 8, 11.) 2 As the Court stated in its Case Management Order, the decision in this case is made on the basis of the pleadings, the Administrative Record, and the 27 Joint Stipulation filed by the parties. In accordance with Rule 12(c) of the Federal 28 Rules of Civil Procedure, the Court has determined which party is entitled to judgment under the standards set forth in 42 U.S.C. § 405(g). 26 1 Dockets.Justia.com 1 I. 2 DISPUTED ISSUES 3 As reflected in the Joint Stipulation, the disputed issues which Plaintiff 4 raises as the grounds for reversal and/or remand are as follows: 5 (1) 6 7 testimony of the vocational expert (“VE”); (2) 8 9 Whether the Administrative Law Judge (“ALJ”) could rely upon the Whether the ALJ properly considered the evidence of mental impairment; and (3) Whether the ALJ properly considered Plaintiff’s testimony. 10 (JS at 4.) 11 II. 12 STANDARD OF REVIEW 13 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision 14 to determine whether the Commissioner’s findings are supported by substantial 15 evidence and whether the proper legal standards were applied. DeLorme v. 16 Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means “more 17 than a mere scintilla” but less than a preponderance. Richardson v. Perales, 402 18 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971); Desrosiers v. Sec’y of 19 Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial 20 evidence is “such relevant evidence as a reasonable mind might accept as adequate 21 to support a conclusion.” Richardson, 402 U.S. at 401 (citation omitted). The 22 Court must review the record as a whole and consider adverse as well as 23 supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986). 24 Where evidence is susceptible of more than one rational interpretation, the 25 Commissioner’s decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 26 1452 (9th Cir. 1984). 27 / / / 28 / / / 2 1 III. 2 DISCUSSION 3 A. The ALJ’s Findings. 4 The ALJ found that Plaintiff has the severe impairments of history of kidney 5 cancer, treated, without recurrence; chronic kidney disease, stage 2, stable; history 6 of bariatric surgery without complications; depression; and fibromyalgia. 7 (Administrative Record (“AR”) at 21.) The ALJ further found that Plaintiff had 8 the residual functional capacity (“RFC”) to perform light work with the following 9 limitations: Plaintiff could lift and carry twenty pounds occasionally and ten 10 pounds frequently; stand and/or walk six hours in an eight-hour day; sit six hours 11 in an eight-hour day, with appropriate breaks; occasionally stoop and bend; and 12 climb stairs but cannot climb ladders, work at heights, or balance. (Id. at 24.) He 13 noted Plaintiff should work in an air-conditioned environment and is limited to 14 simple, repetitive tasks. (Id.) 15 Relying on the testimony of a vocational expert (“VE”), the ALJ concluded 16 that Plaintiff was unable to perform any of her past relevant work as a paralegal or 17 office manager. (Id. at 32.) However, considering Plaintiff’s age, education, work 18 experience, and RFC, the ALJ found that Plaintiff could perform the requirements 19 of such occupations as Cashier II (Dictionary of Occupational Titles (“DOT”) No. 20 211.462-010), Office Helper (DOT No. 239.567-010), and Mail Clerk (DOT No. 21 209.687-026. (AR at 33.) 22 B. The ALJ’s Reliance on the VE’s Opinion Was Not Error. 23 The ALJ synthesized the record for the benefit of the VE after hearing the 24 testimony of Plaintiff, Samuel Landau, M.D., and a friend of Plaintiff. (Id. at 69.) 25 The ALJ directed the VE to assume an individual with the same vocational profile 26 as Plaintiff, with the physical and environmental limitations eventually found. 27 (Id.) The VE testified that such a person could perform Plaintiff’s past relevant 28 work. (Id.) The ALJ then directed the VE to assume an individual also limited to 3 1 simple, repetitive tasks. (Id.) The VE testified that the additional limitation would 2 eliminate the ability of Plaintiff to perform her past relevant work. (Id.) When 3 asked if there existed other work in the national economy which such an 4 individual could perform, the VE identified the occupations of Cashier II (DOT 5 No. 211.462-010), Office Helper (DOT No. 239.567-010), and Mail Clerk (DOT 6 No. 209.687-026). (AR at 70.) The VE expressly defined each of the three 7 occupations as light and unskilled, with a specific vocational preparation of two. 8 (Id.) In response to a hypothetical from Plaintiff’s counsel adding that the 9 hypothetical individual was also limited in her ability to respond appropriately to 10 changes in the work setting (id. at 73), as clarified by the ALJ to mean that the 11 individual requires a habituated setting in which to perform a simple, repetitive 12 occupation (id. at 73-74), the VE testified that such an individual, limited to 13 simple, repetitive tasks in a strictly habituated, object-oriented setting could still 14 perform the job of Small Products Assembler II (DOT No. 739.687-030) (AR at 15 74). The VE also testified that given the additional limitation, the positions of 16 Cashier, Office Helper, and Mail Clerk would be eliminated because those were 17 more “multi-tasking types of positions.” (Id.) 18 Plaintiff claims that of the three occupations the ALJ mentioned in his 19 decision, two (Cashier II and Office Helper) are simple but not repetitive, and the 20 other (Mail Clerk), is repetitive, but not simple. (JS at 5, 7-9.) In support, she 21 notes that The Revised Handbook for Analyzing Jobs, Ch. 10 (Dept. of Labor 22 1991) (“RHAJ”) defines and describes eleven temperaments required for work 23 activity, including the temperament for repetitive work activity. (Id. at 5.) She 24 contends that if the DOT description of the occupation does not include the 25 temperament attribute of “repetitive” work activity, then by definition the 26 occupation is not repetitive. (Id.) Neither Cashier II nor Office Helper contain 27 that temperament. (Id. Exs. 1, 2.) As a result, Plaintiff contends that the VE 28 improperly failed to explain her rationale for why the occupations identified would 4 1 be classified as simple or repetitive. (Id. at 5.) 2 The RHAJ defines repetitive work activity as: 3 Performing REPETITIVE or Short Cycle Work involves performing 4 a few routine and uninvolved tasks over and over again according to set 5 procedures, sequence or pace with little opportunity for diversion or 6 interruption. Interaction with people is included when it is routine, 7 continual, or prescribed. 8 (Id. Ex. 4 (second emphasis added).) 9 1. 10 11 The Occupations of Cashier II and Mail Clerk Are Incompatible With a Limitation to Simple, Repetitive Work. The DOT provides that the positions of Cashier II and Mail Clerk both 12 require a reasoning level of three. (Id. Exs. 1, 3.) A job’s reasoning level “gauges 13 the minimal ability a worker needs to complete the job’s tasks themselves.” 14 Meissl v. Barnhart, 403 F. Supp. 2d 981, 983 (C.D. Cal. 2005). Reasoning 15 development is one of three divisions comprising the General Educational 16 Development (“GED”) Scale.3 DOT App. C. The DOT indicates that there are six 17 levels of reasoning development. Id. Level three provides that the claimant will 18 be able to “[a]pply commonsense understanding to carry out instructions furnished 19 in written, oral, or diagrammatic form. Deal with problems involving several 20 concrete variables in or from standardized situations.” (JS Exs. 1, 3.) 21 As it previously did in Pak v. Astrue, No. EDCV 08-714-OP, 2009 WL 22 2151361, at *7 (C.D. Cal. July 14, 2009), this Court again finds that the DOT’s 23 reasoning level three requirement conflicts with the ALJ’s limitation herein that 24 3 The GED scale “embraces those aspects of education (formal and informal) which are required of the worker for satisfactory job performance. This 26 is education of a general nature which does not have a recognized, fairly specific 27 occupational objective. Ordinarily, such education is obtained in elementary 28 school, high school, or college. However, it may be obtained from experience and self-study.” DOT App. C. 25 5 1 Plaintiff could perform only simple, repetitive work. Meissl, 403 F. Supp. 2d at 2 984-85 (finding that reasoning level two does not conflict with the ALJ’s 3 prescribed limitation that plaintiff perform simple, routine tasks); see also Hackett 4 v. Barnhart, 395 F.3d 1168, 1176 (10th Cir. 2005) (remand is appropriate where 5 the ALJ failed to resolve a conflict between the VE’s assessment that Plaintiff 6 perform a job with a reasoning level of three and the ALJ’s finding that Plaintiff 7 was limited to “simple and routine work tasks.”); Carter v. Barnhart, No. 05-38-B8 W, 2005 WL 3263936 (D. Me. 2005)4 (finding remand warranted because the 9 ALJ’s limitation to simple, repetitive tasks and the DOT’s reasoning level of three 10 at least required the ALJ to question the VE about the discrepancy). 11 Several other courts in this circuit, in addition to this Court in Pak, have also 12 questioned whether a claimant limited to simple, repetitive tasks, is capable of 13 performing jobs requiring level three reasoning under the DOT. For instance, in 14 McGensy v. Astrue, No. EDCV 09-152 AGR, 2010 WL 1875810 (C.D. Cal. May 15 11, 2010), the Court noted that while case law has held that “a limitation to 16 ‘simple, repetitive tasks’ is consistent with level two reasoning,” this restriction is 17 “inconsistent” with the requirements for level three reasoning, in particular the job 18 of Mail Clerk. Id. at *3 (citing Pak, 2009 WL 2151361, at *7); Tudino v. 19 Barnhart, No. 06-CV-2487-BEN (JMA), 2008 WL 4161443, at *11 (S.D. Cal. 20 Sept. 5, 2008) (“[l]evel-two reasoning appears to be the breaking point for those 21 individuals limited to performing only simple repetitive tasks”; remand to ALJ to 22 “address the conflict between Plaintiff’s limitation to ‘simple, repetitive tasks’ and 23 the level-three reasoning”); Squier v. Astrue, No. EDCV 06-1324-RC, 2008 WL 24 2537129, at *5 (C.D. Cal. June 24, 2008) (reasoning level three is “inconsistent 25 with a limitation to simple repetitive work”). As in McGensy, in Bagshaw v. 26 Astrue, No. EDCV 09-1365-CT, 2010 WL 256544, at * 5 (C.D. Cal. Jan. 20, 27 28 4 An unpublished case may be cited for its persuasive value pursuant to Ninth Circuit Rule 36-3. 6 1 2010), the court expressly cited Hackett in concluding that the occupation of Mail 2 Clerk, which requires level-three reasoning under the DOT, was “inconsistent with 3 [the plaintiff’s] intellectual functional capacity limitation to simple, routine work.” 4 In light of the weight of authority in this circuit, this Court again concludes 5 that the given the ALJ’s limitation to simple, repetitive tasks, Plaintiff is not 6 capable of performing the work as a Cashier II or Mail Clerk, which requires 7 level-three reasoning. Although the ALJ may accept VE opinion testimony that is 8 in conflict with the DOT, the record must contain “persuasive evidence to support 9 the deviation” and he must “obtain [from the VE] a reasonable explanation for any 10 apparent conflict.” See Pinto v. Massanari, 249 F.3d 840, 846 (9th Cir. 2001); 11 Massachi v. Astrue, 486 F.3d 1149, 1152-53 (9th Cir. 2007). Here, although the 12 VE testified that her testimony was consistent with the DOT, there is no evidence 13 to support the deviation. Thus, the ALJ could not rely on the VE’s opinion 14 without seeking an explanation of the apparent inconsistency between her opinion 15 that Plaintiff could perform these jobs given the limitation to simple, repetitive 16 tasks, and the standards contained in the DOT. 17 18 19 2. The Occupation of Office Helper Is Compatible with a Limitation to Simple, Repetitive Work. The DOT provides that the position of Office Helper requires a reasoning 20 level of two. (JS Ex. 2.) Level two provides that the claimant will be able to 21 “[a]pply commonsense understanding to carry out detailed but uninvolved written 22 or oral instructions. Deal with problems involving a few concrete variables in or 23 from standardized situations.” (Id.) As noted above, this Court, and numerous 24 others in this circuit, have previously found that a reasoning level of two is 25 consistent with a limitation to simple, repetitive work. 26 Moreover, although the DOT does not specifically describe this occupation 27 as having a repetitive temperament, this Court notes that numerous decisions in 28 this circuit have specifically found the position of Office Helper to satisfy the 7 1 limitation of simple, repetitive work. See, e.g., Chavez v. Astrue, No. EDCV 082 1431-RC, 699 F. Supp. 2d 1125, 1136 (C.D. Cal. 2009) (house cleaner with 3 reasoning level one and office helper with reasoning level two, both consistent 4 with a limitation to simple, repetitive tasks) (citing Lara v. Astrue, 305 Fed. Appx. 5 324, 326 (9th Cir. 2008) (“Reasoning Level 1 jobs are elementary, exemplified by 6 such tasks as counting cows coming off a truck, and someone able to perform 7 simple, repetitive tasks is capable of doing work requiring more rigor and 8 sophistication-in other words, Reasoning Level 2 jobs.”); Torlucci v. Astrue, No. 9 EDCV 09-1126 SS, 2010 WL 1407297, at *8 (C.D. Cal. Apr. 7, 2010) (reasoning 10 required to perform simple, repetitive tasks contemplated by reasoning level two; 11 ALJ properly determined plaintiff could perform job of Office Helper); Racette v. 12 Astrue, No. 1:08-cv-01645 GSA, 2010 WL 1286786 (E.D. Cal. Mar. 29, 2010) 13 (Office Helper position, at reasoning level two, is not in conflict with ALJ’s 14 limitation to simple, repetitive tasks). This Court also finds the Office Helper 15 position compatible with a limitation to simple, repetitive tasks.5 16 Accordingly, even if both the Cashier II and Mail Clerk jobs are excluded 17 from the analysis, this has no consequence on the ultimate outcome of the case 18 because significant numbers of positions as Office Helper exist in the local and 19 national economies (see AR at 70),6 and any error, therefore, would be harmless. 20 21 5 This conclusion is reinforced by the DOT’s description of the position to 22 include such tasks as furnishing workers with clerical supplies; delivering oral or 23 written messages; collecting and distributing paperwork from one department to another; and marking, tabulating, and filing articles and records. As the VE noted, 24 the Office Helper may perform several different types of tasks; it is clear, however, 25 that the tasks described qualify as both simple and repetitive. 26 6 As noted in Meissl, the Social Security Act provides that an individual is 27 disabled where her impairment prevents her from engaging in “‘any other kind of 28 substantial gainful work which exists in the national economy,’” meaning jobs (continued...) 8 1 Curry v. Sullivan, 925 F.2d 1127, 1131 (9th Cir. 1990) (harmless error rule applies 2 to review of administrative decisions regarding disability). 3 Accordingly, the Court finds that the ALJ sustained his burden of proving 4 there is work in the economy that Plaintiff can perform. Because there is at least 5 one position testified to by the VE and relied on by the ALJ that satisfies the 6 limitations found, there was no error.7 7 C. The ALJ Properly Considered the Evidence of Mental Impairment. 8 Plaintiff claims that the ALJ failed to give proper weight to the reports of 9 Dr. Loomis, the non-examining state agency physician; Kathy Vandenburgh, 10 Ph.D., consultative examiner; and Linda Hardin, Licensed Clinical Social Worker 11 (“LCSW”), regarding Plaintiff’s mental impairment. 12 1. 13 In his opinion, Dr. Loomis stated that Plaintiff is “capable of understanding, Dr. Loomis. 14 15 16 17 18 19 20 21 22 6 (...continued) “‘which exist[] in significant numbers’ in the area where the claimant lives.” Meissl, 403 F. Supp. 2d at 982 n.1 (quoting 42 U.S.C. § 423(d)(2)(A)). The focus of the statute, therefore, is on the number of jobs available, not the number of occupations. Id. Here, the VE testified that there are 1,500 Office Helper positions regionally, and 25,000 positions nationally. (AR at 70.) This clearly constitutes a significant number. See Barker v. Sec’y of Health & Human Servs., 882 F. 2d 1474, 1479 (9th Cir. 1989) (availability of 1,266 jobs regionally held to be a significant number). 7 23 24 25 26 27 28 Respondent also notes that the VE identified the occupation of Small Products Assembler II in response to a hypothetical limiting Plaintiff to “simple repetitive tasks in a strictly habituated, object-oriented setting.” (JS at 11 (citing AR at 74).) The VE described the job as light and unskilled, and the DOT gives it a reasoning level of two. (Id. Ex. 6.) This position also specifically contains the temperament for repetitive work. (Id.) While the ALJ did not expressly cite this occupation as one of the example occupations in his decision, the testimony further supports the ALJ’s ultimate conclusion that Plaintiff can perform a significant number of light-level jobs in the national economy. 9 1 remembering and carrying out simple one to two step tasks.” (AR at 542.) 2 Plaintiff claims that because the ALJ gave great weight to Dr. Loomis’ opinions, 3 he erred when he “transmuted” Dr. Loomis’ stated limitation to “simple one to two 4 step tasks,” into a finding that Plaintiff could perform simple, repetitive tasks. (JS 5 at 14.) The Court disagrees. 6 Preliminarily, the ALJ took into account the substantial evidence of record 7 when he found that Plaintiff’s severe impairments, including her depression, 8 restricted her to simple, repetitive tasks. Moreover, Plaintiff misstates Dr. 9 Loomis’ assessment concerning Plaintiff’s abilities and limitations. Dr. Loomis 10 merely stated that Plaintiff is “capable of understanding, remembering and 11 carrying out simple one to two step tasks” (AR at 542), not that Plaintiff is 12 necessarily limited to tasks involving only one and two steps. Dr. Loomis also 13 specifically opined that Plaintiff is “capable of simple tasks,” and is able to 14 “maintain concentration, persistence and pace throughout a normal 15 workday/workweek as related to simple tasks.” (Id.) He also noted she is able to 16 interact adequately with coworkers and supervisors, and without difficulty dealing 17 with the demands of general public contact. (Id.) In short, Plaintiff misconstrues 18 Dr. Loomis’ notation as to her ability to follow one and two step instructions as an 19 imposition of a limitation. However, a review of his opinion does not support this 20 argument. Moreover, Dr. Loomis’ overall opinion is consistent with the ALJ’s 21 limitation to simple, repetitive tasks. 22 2. 23 The ALJ gave great weight to Dr. Vandenburgh’s August 2008 report. (Id. Dr. Vandenburgh. 24 at 30.) Dr. Vandenburgh opined that Plaintiff had no limitations on interacting 25 socially with others, understanding instructions, and completing simple and 26 detailed tasks, although she “may have difficulty sustaining the task for an 27 extended period of time due to fatigue.” (Id. at 548.) She also found that 28 Plaintiff’s ability to complete complex tasks was moderately limited due to fatigue 10 1 and depression. (Id.) She found slight limitations on Plaintiff’s ability to sustain 2 an ordinary routine without sustained supervision, and on her ability to 3 concentrate for at least two hour increments. (Id.) Her opinion alone constitutes 4 substantial evidence because it was based on independent clinical findings. 5 Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). 6 Plaintiff contends that Dr. Vandenburgh’s opinions and conclusions 7 regarding the level of work Plaintiff could perform should have been disregarded 8 by the ALJ because Dr. Vandenburgh failed to conduct the “preferred” test for 9 assessing concentration, persistence or pace – serial 3s and 7s. (JS at 14-15.) To 10 evaluate Plaintiff’s memory, attention and concentration, Dr. Vandenburgh 11 apparently asked Plaintiff to recall five digits forward and three digits backwards, 12 to spell the word “world” backwards, to immediately recall three objects, and to 13 recall three objects after three minutes. (AR at 546.) These tasks were 14 successfully completed, although Dr. Vandenburgh reported that Plaintiff could 15 recall only one of three objects after three minutes. (Id.) 16 Contrary to Plaintiff’s conclusory statement that the regulations provide that 17 serial 3s and 7s are the “preferred” method for assessing this attribute, in fact they 18 merely state that this attribute is “assessed by tasks such as having [the claimant] 19 subtract serial sevens or serial threes from 100.” 20 C.F.R. pt. 404, subpt. P, App. 20 1, § 12.00(C)(3) (emphasis added). The regulations further state that “[i]n 21 psychological tests of intelligence or memory, concentration is assessed through 22 tasks requiring short-term memory or through tasks that must be completed with23 in established time limits.” (Id.) Dr. Vandenburgh evaluated Plaintiff’s 24 concentration using psychological tests of intelligence and memory. (AR at 544 25 (indicating use of the Wechsler Adult Intelligence Scale-III and the Wechsler 26 Memory-III).) Because there is no requirement that an evaluator use serial 3s or 27 7s when assessing concentration, persistence or pace, it was not error for the ALJ 28 to give great weight to Dr. Vandenburgh’s opinion. 11 1 3. 2 With regard to the records of LCSW Hardin, Plaintiff argues that the ALJ LCSW Hardin. 3 erred (1) when he discounted those records for (a) not covering a twelve-month 4 period, and (b) for being “fill in the blank,” and (2) because he failed to enumerate 5 factors regarding why he disregarded the opinions of this non-accepted medical 6 source pursuant to Social Security Ruling (“SSR”) 06-03p.8 (JS at 15-16.) She 7 also claims that LCSW Hardin’s findings of depression are supported by 8 Plaintiff’s oncologist’s notes diagnosing depression, and Plaintiff’s 9 rheumatologist’s notes indicating “management of depression.” (Id. at 16-17 10 (citing AR at 322, 374, 525, 532).) 11 According to SSR 06-3p, an ALJ must also consider the opinions of medical 12 sources who are not, according to the regulations, an “acceptable medical source,” 13 such as social workers and therapists, by weighing a set of factors, including their 14 professional qualifications, how consistent their opinions are with the other 15 evidence, the amount of evidence provided in support of their opinions, whether 16 the other source opinion is well-explained, and whether the other source “has a 17 specialty or area of expertise related to the individual’s impairment.” SSR 06-03p. 18 Although an ALJ may give an acceptable medical source’s opinion more weight 19 than opinions from other sources (see, e.g., 20 C.F.R. §§ 404.1527, 416.927; 20 Gomez v. Chater, 74 F.3d 967, 970-71 (9th Cir. 1996)), the ALJ may not 21 completely disregard opinions from “other sources” such as social workers just 22 because they are not “acceptable medical sources.” See Sprague v. Bowen, 812 23 F.2d 1226, 1232 (9th Cir. 1987) (an ALJ is required to “consider observations by 24 25 8 Social Security Rulings are issued to clarify the Regulations and policy. They are not published in the federal register and do not have the force of law. 27 However, under the case law, deference is to be given to the Commissioner’s 28 interpretation of the Regulations. Ukolov v. Barnhart, 420 F.3d 1002, 1005 n.2 (9th Cir. 2005); Bunnell v. Sullivan, 947 F.2d 341, 346 n.3 (9th Cir. 1991). 26 12 1 non-[acceptable] medical sources as to how an impairment affects a claimant’s 2 ability to work”). Rather, to properly reject a social worker’s opinion, the ALJ 3 must provide “reasons germane to each [social worker] for doing so.” Turner v. 4 Comm’r of Soc. Sec., 613 F.3d 1217, 1224 (9th Cir. 2010) (quoting Lewis v. 5 Apfel, 236 F.3d 503, 511 (9th Cir. 2001)). 6 LCSW Hardin found Plaintiff to be “markedly limited” in a number of areas 7 and concluded that Plaintiff was found to be incapable of performing even low8 stress jobs because “she can’t predict how she would feel from one day to the 9 next.” (AR at 608-11.) The ALJ gave “little evidentiary weight” to LCSW 10 Hardin’s conclusions because her report primarily summarized Plaintiff’s 11 subjective complaints and diagnoses but did not present any objective clinical or 12 laboratory diagnostic findings to support her conclusions; the form used was a 13 “fill-in-the-blank” form with only marginal notes; and LCSW Hardin specifically 14 stated that she “could not make a determination or give a medical opinion on 15 whether [Plaintiff’s] condition would exceed 12 months in duration.” (Id. at 31-32 16 (citing id. at 743).) Plaintiff disagrees, noting that LCSW Hardin provided detail 17 in various notes. (JS at 17 (citing AR at 533-39).) She also contends the ALJ 18 failed to “use the factors enumerated by the binding ruling.” (Id. at 16.) However, 19 the ALJ’s reasons, and a review of the record in support of those reasons, directly 20 implicate at least three of the factors laid out in SSR 06-03p, i.e., whether the 21 source presented relevant evidence to support her opinion, how consistent the 22 other source opinion is with other evidence, and other factors that tend to support 23 or refute the opinion. As noted in the ruling itself: 24 Not every factor for weighing opinion evidence will apply in every case. 25 The evaluation of an opinion from a medical source who is not an 26 acceptable medical source depends on the particular facts in each case. 27 Each case must be adjudicated on its own merits based on a 28 consideration of the probative value of the opinions and a weighing of 13 1 all the evidence in that particular case. 2 SSR 06-03p. 3 Here, the ALJ’s analysis is consistent with SSR 06-03p, as he effectively 4 considered those factors which he found relevant to resolving the question of 5 LCSW Hardin’s testimony. See, e.g., Tonapetyan, 242 F.3d at 1149 (opinions 6 based on claimant’s unreliable self-report are properly rejected); Morgan v. 7 Comm’r of Soc. Sec. Admin., 169 F.3d 595, 601 (9th Cir. 1999) (an opinion of 8 disability may be rejected if it is premised to a large extent on the claimant’s own 9 account of his symptoms and limitations and may be disregarded where those 10 complaints have been properly discounted); Thomas v. Barnhart, 278 F.3d 947, 11 958-59 (9th Cir. 2002) (ALJ not obliged to accept opinions that are conclusory, 12 unexplained, and unsupported by clinical findings); Crane v. Shalala, 76 F.3d 251, 13 253 (9th Cir. 1996) (an ALJ may reject check-off forms that do not contain 14 explanation of the bases of their conclusions). Moreover, to the extent Plaintiff 15 contends the ALJ disregarded LCSW Hardin’s findings of depression, which were 16 supported by the notes of her oncologist, rheumatologist, and other medical 17 records (JS at 16-17), the Court disagrees, as the ALJ specifically found that 18 Plaintiff had the severe limitation of depression, among other impairments. 19 Based on the foregoing, Plaintiff’s argument that the ALJ improperly 20 rejected her mental impairment is without merit. 21 D. The ALJ Properly Considered Plaintiff’s Testimony. 22 In her written submissions in support of her application, Plaintiff 23 complained about her poor memory and severe pain. (AR at 134.) She stated she 24 could hardly lift a cup, suffered from depression and was weepy, possessed no 25 energy, sometimes could not walk, could not stand very long, had to fidget while 26 sitting, could barely move her hands, and suffered with migraine headaches. (Id.) 27 She stated she hurts so badly that she can hardly move. (Id.) After struggling 28 through a long commute for three months, Plaintiff stopped working. (Id.) At the 14 1 hearing, Plaintiff testified she has a limited ability to write because of hand pain 2 (id. at 39); when shopping she uses the cart as a walker (id. at 50); she experiences 3 constant neck pain and hand numbness (id. at 51-52); her carpal tunnel causes her 4 to drop cups and plates (id. at 52); she cooks about three times per week (id. at 5 60); she relies on her brother for housework but does her own laundry and grocery 6 shopping (id. at 61); and during long church services, she has to frequently switch 7 positions (id. at 62). 8 With regard to Plaintiff’s credibility, the ALJ stated, in part, as follows: 9 [T]he record shows that the claimant’s treatment has been conservative 10 in nature since her kidney surgery in 2004 and not the type one would 11 expect from a disabling condition; the record does not contain evidence 12 that the claimant’s medications caused adverse side effects that would 13 preclude sustained work activity; and the record of multiple 14 examinations and diagnostic studies does not provide abnormal findings 15 to support her alleged disabling condition. Moreover, she describes an 16 active life style that includes an ability to care for her 80 year old father, 17 attend to her flowers and garden, handle most of her personal care and 18 hygiene needs, prepare daily meals, do laundry, dust, read, do crossword 19 puzzles, watch television, use a computer, go grocery shopping or to the 20 pharmacy, attend church every week, and handle her personal finances. 21 The evidence is inconsistent with limitations that would preclude 22 sustained work activity, and is consistent with an ability to do the full 23 range of light work capacity. 24 (Id. at 27-28 (citation omitted).) The ALJ also noted that the objective medical 25 evidence shows that Plaintiff’s medications have been effective in controlling her 26 symptoms, and that her analgesic medication history was inconsistent with her 27 claimed severity of pain, as she had “never been maintained on a regular 28 prescription of strong analgesics such as morphine, pethadone, Fentanyl or 15 1 Oxycontin.” (Id. at 28.) 2 An ALJ’s assessment of pain severity and claimant credibility is entitled to 3 “great weight.” Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. 4 Heckler, 779 F.2d 528, 531 (9th Cir. 1986). When, as here, an ALJ’s disbelief of a 5 claimant’s testimony is a critical factor in a decision to deny benefits, the ALJ 6 must make explicit credibility findings. Rashad v. Sullivan, 903 F.2d 1229, 1231 7 (9th Cir. 1990); Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981); see also 8 Albalos v. Sullivan, 907 F.2d 871, 874 (9th Cir. 1990) (an implicit finding that 9 claimant was not credible is insufficient). 10 Under the “Cotton test,” where the claimant has produced objective medical 11 evidence of an impairment which could reasonably be expected to produce some 12 degree of pain and/or other symptoms, and the record is devoid of any affirmative 13 evidence of malingering, the ALJ may reject the claimant’s testimony regarding 14 the severity of the claimant’s pain and/or other symptoms only if the ALJ makes 15 specific findings stating clear and convincing reasons for doing so. See Cotton v. 16 Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986); see also Smolen v. Chater, 80 F.3d 17 1273, 1281 (9th Cir. 1996); Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993); 18 Bunnel, 947 F.2d at 343. 19 To determine whether a claimant’s testimony regarding the severity of her 20 symptoms is credible, the ALJ may consider, inter alia, the following evidence: 21 (1) ordinary techniques of credibility evaluation, such as the claimant’s reputation 22 for lying, prior inconsistent statements concerning the symptoms, and other 23 testimony by the claimant that appears less than candid; (2) unexplained or 24 inadequately explained failure to seek treatment or to follow a prescribed course of 25 treatment; (3) the claimant’s daily activities; and (4) testimony from physicians 26 and third parties concerning the nature, severity, and effect of the claimant’s 27 symptoms. Thomas, 278 F.3d at 958-59; see also Smolen, 80 F.3d at 1284. 28 Plaintiff contends the ALJ failed to provide clear and convincing reasons 16 1 for rejecting Plaintiff’s pain and limitation testimony. (JS at 23-24.) Specifically, 2 she contends that the ALJ’s finding that the evidence of record did not confirm an 3 inability to work “ignores the opinions of Linda Hardin.” (Id. at 25.) The Court 4 has already found that the ALJ properly discounted LCSW Hardin’s opinion and, 5 therefore, finds this argument without merit. 6 Plaintiff also contends that the fact that she never took strong analgesics 7 such as morphine, methadone, Fentanyl, or Oxycontin, is not a prerequisite to the 8 finding of disability. (Id. at 26.) With this proposition, the Court agrees; 9 moreover, as also noted by the ALJ, Plaintiff received appropriate treatment for 10 her conditions. (AR at 28.) Accordingly, this reason given by the ALJ was not 11 convincing. 12 Plaintiff also argues that the ALJ’s finding that Plaintiff lives an active 13 lifestyle is belied by the record. (JS at 25 (citing AR at 146, 147.) Plaintiff also 14 argues that her concessions about her minimal activities do not undermine the 15 proposition that she lacks the ability to sustain full-time work activity. (Id. at 26.) 16 For the reasons suggested by Plaintiff (id.), the Court finds that the ALJ did not 17 properly rely on Plaintiff’s daily activities to support his credibility finding, i.e., 18 the reasons given were not convincing. 19 However, the ALJ provided additional reasons for finding Plaintiff not fully 20 credible, which were clear and convincing, and his reasons are supported by 21 substantial evidence. For instance, he found that the records demonstrated that 22 Plaintiff’s condition was adequately alleviated and managed with treatment. (AR 23 at 28.) See, e.g., Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th 24 Cir. 2006) (impairments that can be controlled effectively with medication are not 25 disabling); Crane, 76 F.3d at 254 (ALJ properly considered claimant’s good 26 response to treatment). The ALJ noted that Plaintiff’s depression was stable on 27 her medication regimen, and that even LCSW Hardin reported improvement and a 28 partial remission of Plaintiff’s depression. (AR at 22, 28 (citing id. at 633, 742).) 17 1 Indeed, in January 2008 Plaintiff’s depression was reportedly “well managed 2 currently.” (Id. at 525). The ALJ also noted that as of January 16, 2008, 3 Plaintiff’s fibromyalgia pain was better and she had responded well to Neurontin, 4 her pain having been reduced by 50 percent. (Id. at 28.) On July 8, 2008, the 5 doctor reported that there was room for continued improvement, increased her 6 Neurontin dose, and advised her to return in six months. (Id. (citing id. at 525, 7 526, 527).) 8 The ALJ also relied on the testimony of Samuel Landau, M.D., who 9 reviewed the record, assessed Plaintiff’s condition, and determined that she was 10 able to perform light-level work. (Id. at 29, 32 (citing id. at 42-46, 47, 49).) He 11 relied on the report of consultative examining physician Sean To, M.D., who 12 evaluated Plaintiff in February 2008 and opined that she could perform medium13 level work. (Id. at 29-30 (citing id. at 441-45).) Also, as previously discussed, the 14 ALJ relied on Dr. Vandenburgh’s opinion that Plaintiff did not have limitations 15 that would preclude simple, repetitive work. (Id. at 30 (citing id. at 548).) These 16 opinions, together with the ALJ’s finding regarding Plaintiff’s effective pain 17 management, constitute clear and convincing evidence to discount Plaintiff’s 18 credibility. Light v. Comm’r of Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 19 1997) (testimony from physicians about the nature, severity and effect of 20 claimant’s symptoms may be used to find claimant lacks credibility); Bunnell, 947 21 F.2d at 341, 345 (lack of corroborating objective evidence may be one factor in 22 credibility, as long as it is not the only factor). Although Plaintiff complains that 23 the ALJ “made no attempt to consider” Plaintiff’s testimony “in conjunction with 24 the medical evidence confirming severe impairments or the concessions for the 25 presence of limitation by Dr. Landau limiting her to light exertion” (JS at 26), the 26 ALJ ultimately did limit Plaintiff to light work, with limitations. 27 Even if the ALJ improperly relied on Plaintiff’s daily activities to support 28 his credibility finding, because other clear and convincing reasons supported his 18 1 finding, any error was harmless. 2 IV. 3 ORDER 4 Based on the foregoing, IT THEREFORE IS ORDERED that Judgment be 5 entered affirming the decision of the Commissioner, and dismissing this action 6 with prejudice. 7 8 Dated: October 22, 2010 9 HONORABLE OSWALD PARADA United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19
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