Eduardo Vellanoweth v. Michael J. Astrue, No. 2:2010cv03105 - Document 15 (C.D. Cal. 2010)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Marc L. Goldman. The decision of the Commissioner is affirmed. (See Order for details) (db)
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Eduardo Vellanoweth v. Michael J. Astrue Doc. 15 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 10 11 12 EDUARDO VELLANOWETH, 13 Plaintiff, 14 15 16 v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 17 Defendant. 18 19 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 10-3105-MLG MEMORANDUM OPINION AND ORDER Plaintiff Eduardo Vellanoweth (“Plaintiff”) seeks judicial `review 20 of the Commissioner’s final decision denying his application for 21 disability insurance benefits (“DIB”) pursuant to Title II of the Social 22 Security Act. For the reasons stated below, the Commissioner’s decision 23 is affirmed. 24 25 I. Factual and Procedural Background 26 Plaintiff was born on September 24, 1951. (Administrative Record 27 (“AR”) at 16). He has a high school education and relevant work 28 experience as a security guard and musician. (AR at 16). Dockets.Justia.com 1 Plaintiff filed an application for DIB on October 25, 2006, 2 alleging that he has been disabled since July 16, 2006, due to mental 3 problems, nervousness, panic attacks, hepatitis C, memory loss, bipolar 4 disorder, aggression, and mood disorder. (AR at 136). The Social 5 Security Administration denied Plaintiff’s application initially and on 6 reconsideration. (AR at 9, 68-72, 76-80). 7 An administrative hearing was held before Administrative Law Judge 8 Ariel L. Sotolongo (“the ALJ”) on August 20, 2008. (AR at 24-65). 9 Plaintiff, who was represented by counsel, testified at the hearing. (AR 10 at 28-52). A vocational expert and Plaintiff’s brother also testified at 11 the hearing. (AR at 52-65). The ALJ issued a decision on November 4, 12 2008, denying Plaintiff’s application. (AR at 9-17). The ALJ found that 13 Plaintiff: (1) has not engaged in substantial gainful activity since his 14 alleged onset date of disability, (step 1); (2) suffers from the severe 15 impairments of mood disorder, nos, and substance abuse disorder (step 16 2); (3) does not have any impairments that meet or equal the criteria of 17 a listed impairment (step 3); (4) has the residual functional capacity 18 (“RFC”) to perform a full range of work at all exertional levels, but is 19 limited to simple repetitive work with no more than occasional exposure 20 to the general public and co-workers; (5) is unable to perform past 21 relevant work as a security guard or musician; but (6) is capable of 22 performing other work that exists in significant numbers in the economy. 23 (AR at 11-12, 14, 16-17). The Appeals Council denied review on February 24 26, 2010. (AR at 1-4). 25 Plaintiff commenced this action for judicial review on April 26, 26 2010. The parties filed a joint statement of disputed issues on November 27 4, 28 consideration to Plaintiff’s credibility, lay witnesses testimony, and 2010. Plaintiff contends that 2 the ALJ failed to give proper 1 the opinions of Plaintiff’s treating doctors. Plaintiff seeks remand for 2 payment 3 administrative proceedings. (Joint Stipulation at 22). The Commissioner 4 requests that the ALJ’s decision be affirmed. (Joint Stipulation at 22). 5 The Joint Stipulation has been taken under submission without oral 6 argument. of benefits or, in the alternative, remand for further 7 8 II. Standard of Review Under 9 42 U.S.C. § 405(g), a district court may review the 10 Commissioner’s decision to deny benefits. The Commissioner’s or ALJ’s 11 findings and decision should be upheld if they are free from legal error 12 and are supported by substantial evidence based on the record as a 13 whole. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 14 (1971); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial 15 evidence means such evidence as a reasonable person might accept as 16 adequate 17 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It is more 18 than a scintilla, but less than a preponderance. Lingenfelter, 504 F.3d 19 at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 20 2006)). To determine whether substantial evidence supports a finding, 21 the reviewing court “must review the administrative record as a whole, 22 weighing both the evidence that supports and the evidence that detracts 23 from the Commissioner’s conclusion.” Reddick v. Chater, 157 F.3d 715, 24 720 (9th Cir. 1996). “If the evidence can reasonably support either 25 affirming or reversing,” the reviewing court “may not substitute its 26 judgment” for that of the Commissioner. Id. at 720-721. 27 \\ 28 \\ to support a conclusion. 3 Richardson, 402 U.S. at 401; 1 III. DISCUSSION 2 A. Plaintiff’s Credibility 3 Plaintiff contends that the ALJ erred by discounting his subjective 4 symptom testimony. (Joint Stipulation at 4-7, 10-11). At the hearing, 5 Plaintiff testified he had to stop working because he was going “nuts.” 6 (AR at 31). He reported experiencing daily episodes of uncontrollable 7 rage, anxiety, nervousness, fatigue, depression, confusion, insomnia, 8 suicidal thoughts, panic attacks, auditory hallucinations, chest pain, 9 and shortness of breath. (AR at 32-35, 136, 147, 157). Plaintiff also 10 complained of an inability to concentrate, difficulty driving at night, 11 and side effects from medication, including unbearable headaches and 12 dizziness. (AR at 44, 51, 147, 157). 13 The determination of credibility and the resolution of conflicts in 14 the testimony are functions of the ALJ. Morgan v. Commissioner of Social 15 Security, 169 F.3d 595, 599 (9th Cir. 1999). In general, an ALJ’s 16 assessment of credibility should be given great weight. 17 Heckler, 779 F.2d 528, 531 (9th Cir. 1985). However, once a claimant has 18 presented medical evidence of an underlying impairment, the ALJ may not 19 discredit the claimant’s testimony regarding subjective pain and other 20 symptoms merely because the symptoms, as opposed to the impairments, are 21 unsupported by objective medical evidence. Lingenfelter, 504 F.3d at 22 1035-36; Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009); Light v. 23 Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). “‘[T]he ALJ can 24 reject the claimant’s testimony about the severity of her symptoms only 25 by offering specific, clear and convincing reasons for doing so.’” 26 Lingenfelter, 504 F.3d at 1036 (quoting Smolen v. Chater, 80 F.3d 1273, 27 1281 (9th Cir. 1996)). 28 \\ 4 Nyman v. 1 Here, the ALJ determined that Plaintiff’s medically determinable 2 impairments could have reasonably been expected to produce Plaintiff’s 3 reported symptoms, but that the intensity, persistence and limiting 4 effects of those symptoms were not credible to the extent alleged. (AR 5 at 15). The ALJ’s decision was supported by substantial evidence. 6 In making the adverse credibility determination, the ALJ properly 7 cited inconsistent statements in Plaintiff’s testimony. (AR at 15); see 8 Fair v. Bowen, 885 F.2d 597, 604 n.5 (9th Cir. 1989) (explaining that 9 the ALJ may employ ordinary techniques of credibility evaluation and may 10 take into account prior inconsistent statements or a lack of candor by 11 the witness). In particular, Plaintiff made contradictory statements 12 about his use of marijuana. (AR at 15). At his hearing in August 2008, 13 Plaintiff testified that he takes no more than “a few hits” of marijuana 14 once or twice a month and that he does not even like to smoke marijuana. 15 (AR 16 significantly since September 2006, when he began receiving psychiatric 17 treatment and medication. (AR at 40). In December 2008, however, 18 Plaintiff admitted to a consultative psychologist that he was smoking 19 marijuana on a daily basis “to calm down.” (AR at 238, 407). Lab tests 20 confirmed ongoing marijuana use. (AR at 379, 386, 408). Plaintiff’s 21 inconsistent statements regarding the frequency of his marijuana use 22 provide a clear and convincing reason for discounting his testimony. See 23 Fair, 885 F.2d at 604 n.5; Tonapetyan v. Halter, 242 F.3d 1144, 1148 24 (9th Cir. 2001). 25 at 39-41). He stated that his marijuana use had decreased The ALJ also cited inconsistencies between Plaintiff’s subjective 26 complaints and his doctor’s clinical 27 Regennitter v. Commissioner of SSA, 166 F.3d 1294, 1297 (9th Cir. 1998) 28 (explaining that a determination that a claimant’s complaints are 5 observations. (AR at 15); 1 “inconsistent with clinical observations” can satisfy the clear and 2 convincing requirement). In his disability reports and at the hearing, 3 Plaintiff 4 thoughts of suicide, auditory hallucinations, and terrible headaches and 5 dizziness, as side effects from his medication. (AR at 32-34, 147, 157, 6 239). However, Plaintiff’s treating psychiatrist, Larisa Levin, M.D., 7 made contradictory findings. Over a three year period, Dr. Levin 8 consistently reported that Plaintiff had no panic attacks, suicidal 9 ideation, perceptual disturbances or thought process disturbances.1 (AR 10 at 289-90, 321-22, 369, 371-72, 376, 415-20, 422). Dr. Levin also noted 11 that Plaintiff denied experiencing any side effects from his medication 12 and he slept fairly well. (AR at 289-90, 321-22, 369, 371-72, 376, 415- 13 20, 422). While subjective symptom testimony cannot be rejected solely 14 on the ground that it is not fully corroborated by objective medical 15 evidence, the medical evidence is still a relevant factor in determining 16 Plaintiff’s credibility. Rolling v. Massanari, 261 F.3d 853, 957 (9th 17 Cir. 2001) (citing 20 CFR § 404.1529(c)(2)). Here, it is clear that the 18 ALJ’s adverse credibility finding was supported by substantial evidence, 19 given 20 doctor’s clinical findings, taken together with Plaintiff’s inconsistent 21 statements regarding his marijuana use. the claimed suffers inconsistencies 22 B. 23 Plaintiff’s 24 he from between insomnia, panic Plaintiff’s attacks, complaints daily and his Lay Witness Testimony brother Carlos testified at the hearing, and Plaintiff’s mother and two other brothers, Rene and Robert, submitted 25 26 1 27 28 The Court notes that Dr. Levin reported Plaintiff had complaints of “transient suicidal ideation” at his initial evaluation in September 2006. (AR at 288). Later, however, Dr. Levin expressly noted the absence of suicidal ideation. (AR at 321, 415). 6 1 written statements.2 (Joint Stipulation at 11-12). Plaintiff contends the 2 ALJ improperly rejected this lay witness testimony. 3 Lay witness testimony as to a claimant’s symptoms or how an 4 impairment affects the ability to work is competent evidence that the 5 Commissioner must take into account. Nguyen v. Chater, 100 F.3d 1462, 6 1467 (9th Cir. 1996); 20 C.F.R. §§ 404.1513(d), 404.1545(a)(3). An ALJ 7 may disregard such evidence only if he gives reasons “that are germane 8 to each witness.” Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993). 9 The ALJ, however, need not discuss all evidence presented. See Vincent 10 on Behalf of Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984). 11 Rather, the ALJ need only explain why “significant probative evidence 12 has been rejected.” Id. 13 In the decision, the ALJ summarized the lay witness testimony of 14 Plaintiff’s brother Carlos. (AR at 16, 52-58). Carlos testified that 15 Plaintiff suffered from flashes of anger and rage, poor social and 16 coping skills, and insomnia. (AR at 16, 52-58). According to Carlos, 17 Plaintiff had been experiencing many of these problems since he was a 18 child. (AR at 55-56). The ALJ credited Carlos’s testimony generally, but 19 concluded that it did not establish disability. (AR at 16). The ALJ 20 explained that despite Plaintiff’s reported limitations, he had been 21 able to maintain employment as a security guard and as a musician for 22 significant periods of time. (AR at 16). Thus, to the extent the ALJ 23 rejected Carlos’s testimony, he stated a germane reason for doing so. 24 The ALJ did not discuss the statements written by Plaintiff’s 25 mother or two other brothers, Rene and Robert. (AR at 431-33, 435). 26 Plaintiff’s mother reported that as a child, Plaintiff was nervous, 27 2 28 The lay witnesses are referred to by their first names as they all share the same last name. 7 1 sullen, and angry. (AR at 435). In 1997, Plaintiff moved back to his 2 mother’s home for about a year. (AR at 435). Plaintiff seemed depressed 3 and was very antisocial. (AR at 435). Plaintiff’s mother reported that 4 he would wake up at 4:00 in the morning and speak “in tongues.” (AR at 5 435). She concluded that Plaintiff suffered from a mental illness and 6 anxiety attacks. (AR at 435). Rene and Robert both discussed their 7 childhood memories of Plaintiff’s behavior, which included violent 8 outbursts and dysfunctional people skills. (AR at 431-33). They also 9 mentioned several recent family trips to Mexico with Plaintiff. Robert 10 emphasized Plaintiff’s need to isolate himself due to his inability to 11 interact positively with others. (AR at 433). Rene noted that Plaintiff 12 “hardly sleeps.” (AR at 431). Rene also stated that he thought Plaintiff 13 may be suffering from bipolar disorder. (AR at 432). 14 An ALJ’s failure to address a lay witness’s statement is harmless 15 if “a reviewing court ... can confidently conclude that no reasonable 16 ALJ, when fully crediting the testimony, could have reached a different 17 disability determination.” Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 18 1050, 1056 (9th Cir. 2006); see also Robbins v. Soc. Sec. Admin., 466 19 F.3d 880, 885 (9th Cir. 2006). 20 Here, the ALJ’s failure to address the testimony of Plaintiff’s 21 mother, Rene, and Robert was harmless. Stout, 454 F.3d at 1056; see also 22 Robbins, 466 F.3d at 885. First, the witnesses’s descriptions of 23 Plaintiff’s mental condition during childhood and adult life prior to 24 his alleged onset date are not probative of disability. Second, to the 25 extent the witnesses addressed Plaintiff’s current symptoms, their 26 statements were merely corroborative of other evidence in the record, 27 namely, Plaintiff suffers from violent outbursts, depression, social 28 difficulties, and problems with sleep and social interactions. (AR at 8 1 431-33, 435). Finally, the medical diagnoses made by Plaintiff’s mother 2 and Rene, 3 attacks, and bipolar disorder, were beyond the competence of lay 4 witnesses and do not constitute competent evidence. See 20 C.F.R. § 5 404.1513(a); 6 diagnoses are beyond the competence of lay witnesses and therefore do 7 not constitute competent evidence”). Under these circumstances, no 8 reasonable ALJ considering this case would have reached a different 9 conclusion had the statements from Plaintiff’s mother, Rene, and Robert 10 e.g., Plaintiff suffers from a mental illness, anxiety Nguyen, 100 F.3d at 1467 (explaining that “medical been addressed. Accordingly, reversal is not warranted on this claim. 11 C. 12 Plaintiff Plaintiff’s Mental Impairment contends that the ALJ erred in his evaluation of 13 Plaintiff’s mental impairment. In particular, Plaintiff faults the ALJ 14 for improperly rejecting the opinions of his treating psychiatrist, Dr. 15 Levin, treating psychologist, Tim Blanco, Ph.D., and a licensed clinical 16 social worker, Rose Brancone, LCSW. (AR at 260-322, 328-38, 386-88). 17 The Commissioner is directed to weigh medical opinions based in 18 part on their source, specifically, whether proffered by treating, 19 examining, or non-examining professionals. Lester v. Chater, 81 F.3d 20 821, 830-31 (9th Cir. 1995). Generally, more weight is given to the 21 opinion of a treating professional, who has a greater opportunity to 22 know and observe the patient as an individual, than the opinion of a 23 non-treating professional. See id.; Smolen, 80 F.3d at 1285. 24 The Commissioner must also consider whether a medical opinion is 25 supported by clinical findings and is contradicted by other medical 26 evidence of record. The Commissioner may reject the uncontradicted 27 opinion of a treating or examining medical professional only for “clear 28 and convincing” reasons supported by substantial evidence in the record. 9 1 See Lester, 81 F.3d at 831. A contradicted opinion of a treating or 2 examining 3 legitimate” reasons supported by substantial evidence. Lester, 81 F.3d 4 at 830. If a treating professional’s opinion is contradicted by an 5 examining 6 independent clinical findings, the Commissioner may resolve the conflict 7 by relying on the latter. See Andrews v. Shalala, 53 F.3d 1035, 1041 8 (9th Cir. 1995); see also Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 9 2007) professional may professional’s (ALJ may reject be rejected opinion, opinion which of only is for “specific supported treating physician by in and different favor of 10 examining 11 findings). An ALJ may reject the testimony of an “other source” simply 12 by providing reasons germane to that witness. See Lewis v. Apfel, 236 13 F.3d 503, 511 (9th Cir. 2001) (“Lay testimony as to a claimant’s 14 symptoms is competent evidence that an ALJ must take into account, 15 unless he or she expressly determines to disregard such testimony and 16 gives 17 omitted); see also Dodrill, 12 F.3d at 918-19. physician reasons 18 Plaintiff germane to opinion each rests witness of for independent doing so.”) clinical (citation Dr. Levin 19 whose began seeing Dr. Levin at the Los Angeles County 20 Department of Mental Health in September 2006. (AR at 288-89). Plaintiff 21 presented 22 transient suicidal ideation, reduced concentration, low energy and 23 frequent outbursts of anger. (AR at 288). He admitted marijuana use. (AR 24 at 288). Dr. Levin diagnosed Plaintiff with mood disorder, nos, cannabis 25 abuse, and polysubstance abuse in early remission. (AR at 288). 26 with anxiety, tension, crying spells, sleep problems, Dr. Levin continued to see Plaintiff on a regular basis through 27 November 2009. 28 dysphoric, Dr. While Plaintiff’s Levin’s reports mood was consistently 10 sometimes showed described that as Plaintiff 1 appeared oriented, slept and ate fairly well, was not anhedonic, and 2 denied 3 hallucinations, side effects from medication, and panic attacks. (AR at 4 289-90, 321-22, 369, 371-72, 376, 415-20, 422). 5 In suicidal November and 2006, homicidal Dr. ideation, Levin visual completed a state and auditory unemployment 6 disability form indicating that Plaintiff would not be able to return to 7 his regular or customary work until April 27, 2007. (AR at 282). And, 8 without explanation, Dr. Levin changed Plaintiff’s diagnosis to bipolar 9 affective disorder, nos, from mood disorder, nos, cannabis abuse, and 10 polysubstance abuse in early remission. (AR at 282). Dr. Levin did note, 11 however, 12 concentration, mood changes, racing thoughts, decreased memory, and 13 frequent outbursts of anger. (AR at 282). that Plaintiff suffered from irritability, lack of 14 In April 2007, Dr. Levin completed a supplemental certification 15 form. (AR at 340). She opined that Plaintiff would not be able to return 16 to his regular or customary work until September 27, 2007. (AR at 340). 17 The ALJ found that Dr. Levin’s opinion that Plaintiff was disabled 18 was inadequately supported by clinical findings. (AR at 15, 282, 289-90, 19 321-22, 340, 369, 371-72, 376, 415-20, 422); Thomas v. Barnhart, 278 20 F.3d 947, 957 (9th Cir. 2002) (“[t]he ALJ need not accept the opinion of 21 any physician, including a treating physician, if that opinion is brief, 22 conclusory, and inadequately supported by clinical findings”); see also 23 Batson v. Commissioner of Social Security Administration, 359 F.3d 1190, 24 1195 (9th Cir. 2004) (noting that “an ALJ may discredit treating 25 physicians’ opinions that are conclusory, brief, and unsupported by the 26 record as a whole, ... or by objective medical findings”); Tonapetyan, 27 242 F.3d at 1149 (“[w]hen confronted with conflicting medical opinions, 28 an ALJ need not accept a treating physician’s opinion that is conclusory 11 1 and brief and unsupported by clinical findings”); 20 CFR § 404.1527(d) 2 (treatment 3 supportability of report affect weight accorded physician’s report). 4 Thus, the ALJ gave a specific and legitimate reason for rejecting Dr. 5 Levin’s opinion. (AR at 15-16). history, consistency with the record as a whole, and 6 The ALJ also relied on the opinion of the consultative examiner, 7 clinical psychologist Ahmad Riahinejad, Ph.D. (AR at 12-13, 15-16, 237- 8 41). 9 evaluation of Plaintiff at the request of the Commissioner. (AR at 237- 10 41). Plaintiff complained that he has had suicidal thoughts since 1985, 11 hears the voice of a woman screaming, and has seen shadows. (AR at 238- 12 39). After administering a mental status examination, Dr. Riahinejad 13 found Plaintiff to be generally pleasant and cooperative and oriented to 14 time, 15 psychomotor slowness. (AR at 239). Dr. Riahinejad noted Plaintiff’s 16 attitude was sufficient, affect was euthymic, and mood was depressed. 17 (AR at 239). Plaintiff’s intellectual functioning and general fund of 18 knowledge were in the low average range, and his memory, concentration 19 and judgment were fair. (AR at 239). Dr. Riahinejad diagnosed Plaintiff 20 as 21 substance-induced mood disorder, antisocial personality disorder, and 22 hepatitis C. (AR at 240-41). Dr. Riahinejad concluded that Plaintiff 23 would have mild to moderate difficulty understanding, remembering and 24 carrying 25 understand, remember and carry out simple, repetitive-type instructions 26 without limitation and could relate with other people and accept 27 supervision. (AR at 241). Dr. Riahinejad’s evaluation was based on his 28 own clinical findings made after he examined Plaintiff and reviewed the In December place suffering out and from 2006, person. Dr. (AR Riahinejad at polysubstance complex and 239). conducted There dependence, detailed 12 was in instructions, a no psychological evidence partial but of remission, was able to 1 results of clinical tests. Thus, to the extent the medical evidence from 2 Plaintiff’s 3 Riahinejad’s opinion, the ALJ was free to resolve the conflict as he saw 4 fit. Andrews, 53 F.3d at 1041 (ALJ has “sole[ ] province” to resolve 5 conflicts between credible, yet conflicting, medical evidence); (AR at 6 35). treating 7 Dr. conflicted with, or undermined Dr. Dr. Blanco 8 source Blanco conducted an initial assessment of Plaintiff in 9 September 2006. (AR at 265-70). He reported that Plaintiff had a life- 10 long history of poor coping skills and difficulties addressing stressful 11 situations. (AR at 270). Plaintiff was recovering from his abuse of 12 drugs, but was still using marijuana. (AR at 270). Dr. Blanco diagnosed 13 Plaintiff with mood disorder, nos, and hepatitis C. (AR at 270). Dr. 14 Blanco also assessed Plaintiff with a Global Assessment of Functioning 15 (“GAF”) score of 45, indicating “serious symptoms or serious impairment 16 with social and occupational functioning.” (AR at 270). 17 In August 2008, Plaintiff asked Dr. Blanco to complete a medical 18 report in support of his claim for disability benefits. (AR at 405). Dr. 19 Blanco administered a mental status exam at that time. (AR at 405). Dr. 20 Blanco found that Plaintiff was oriented to person, place and time, his 21 verbal responses were adequate, there was no evidence of psychomotor 22 slowness, his thoughts were organized, and his concentration, attention 23 span, focus, reasoning ability, and memory were good. (AR at 405). Dr. 24 Blanco was concerned about Plaintiff’s admitted marijuana use and 25 requested that Plaintiff submit to drug testing. (AR at 405). As noted 26 above, lab tests came back positive for marijuana. (AR at 379, 386, 27 408). 28 Plaintiff contends that the ALJ erred by failing to give proper 13 1 consideration to the GAF score assessed by Dr. Blanco in September 2006. 2 (AR at 270). However, the GAF scale was intended to be used to make 3 treatment decisions. See DSM-IV at 32. Neither the Social Security 4 regulations nor case law require an ALJ to determine the extent of an 5 individual’s disability based solely on a GAF score. Thus, the ALJ did 6 not err in his consideration of Dr. Blanco’s opinion. See Vincent, 739 7 F.2d at 1395 (the ALJ need only explain why “significant probative 8 evidence has been rejected”). Further, Dr. Riahinejad’s opinion provided 9 substantial evidence in support of the ALJ’s evaluation of Plaintiff’s 10 mental impairment. Andrews, 53 F.3d at 1041. 11 Rose Brancone, LCSW 12 In October 2008, licensed clinical social worker Rose Brancone 13 completed an annual assessment and a client care coordination plan on 14 Plaintiff’s behalf. (AR at 386-88). Ms. Brancone reported that Plaintiff 15 had an anger management problem, was very depressed and angry, had vague 16 ideas that came and went, and was suicidal at times. (AR at 386). Ms. 17 Brancone also noted that Plaintiff suffered from mood swings, anxiety, 18 sleep problems, agitation, and audio hallucinations. (AR at 388). Ms. 19 Brancone reported that Plaintiff could not work. (AR at 386). 20 A social worker without a doctorate does not meet the regulations’ 21 requirements for an 22 404.1513(a). An ALJ may properly discount a social worker’s opinion 23 without 24 physician. 25 (opinions from “other sources” can be afforded “less weight than 26 opinions from acceptable medical sources.”). satisfying Gomez v. “acceptable the legal Chater, medical standards 74 F.3d source.” applicable 967, 970-71 20 to (9th C.F.R. a § treating Cir. 1996) 27 Although the ALJ did not state express reasons for discounting Ms. 28 Brancone’s opinion of disability, any error was harmless. As discussed 14 1 above, 2 impairment rendered him unable to work because it was unsupported by the 3 medical evidence. See 20 C.F.R. § 404.1513(a) (“We need evidence from 4 acceptable medical sources to establish whether you have a medically 5 determinable impairment(s).”); 20 C.F.R. § 404.1508 (mental impairment 6 “must be established by medical evidence consisting of signs, symptoms, 7 and laboratory findings”); Gomez, 74 F.3d at 970-71. Further, Ms. 8 Brancone’s opinion conflicted with the findings of the consultative 9 psychologist. An ALJ may reject testimony when it conflicts with the 10 medical evidence. See Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 11 1993) (stating that inconsistency with medical evidence was a germane 12 reason for rejecting certain testimony). 13 14 the ALJ rejected the conclusion that Plaintiff’s mental Accordingly, the ALJ’s evaluation of Plaintiff’s mental impairment is supported by substantial evidence. 15 16 17 18 IV. Conclusion For the reasons stated above, the decision of the Commissioner is affirmed. 19 20 DATED: December 6, 2010 21 22 ______________________________ MARC L. GOLDMAN United States Magistrate Judge 23 24 25 26 27 28 15
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