Judi Ballinger v. Michael J Astrue, No. 2:2011cv06557 - Document 16 (C.D. Cal. 2012)

Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal; IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner and dismissing this action with prejudice. See order for details. (jy)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JUDI BALLINGER, 12 Plaintiff, 13 v. 14 MICHAEL J. ASTRUE, Commissioner of Social Security, 15 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) NO. CV 11-06557 SS MEMORANDUM DECISION AND ORDER 17 18 I. 19 INTRODUCTION 20 21 Judi Ballinger ( Plaintiff ) brings this action seeking to overturn 22 the decision of the Commissioner of the Social Security Administration 23 (hereinafter the Commissioner or the Agency ) denying her application 24 for Disability Insurance Benefits ( DIB ). 25 pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the undersigned 26 United States Magistrate Judge. 27 decision of the Agency is AFFIRMED. 28 The parties consented, For the reasons stated below, the 1 II. 2 PROCEDURAL HISTORY 3 4 On April 22, 2008, Plaintiff (a "younger person", i.e., under age 5 50)1 filed an application for DIB under Title II of the Social Security 6 Act. 7 disability onset date of January 1, 1996 on the bases of bipolarity, 8 manic depression, pain in both knees and sciatica. 9 Agency denied her application on November 20, 2008, and upheld the (Administrative Record ( AR ) 155-56). (AR 59, 69). Plaintiff alleged a (AR 212). The 10 denial on March 11, 2009. 11 hearing, which was held before an Administrative Law Judge ( ALJ ) on 12 January 7, 2010. 13 testified. (AR 22-38). Plaintiff s mother also testified. (AR 38-48). (AR 20-49). Plaintiff then requested a Plaintiff appeared with counsel and 14 15 On January 22, 2010, the ALJ issued a decision denying benefits. 16 (AR 10-15). Plaintiff requested review of this decision before the 17 Appeals Council, which was denied on July 7, 2011. 18 Plaintiff filed the instant action on August 16, 2011. (AR 1, 5). 19 20 III. 21 FACTUAL BACKGROUND 22 23 Plaintiff asserts that her disability, including both physical and 24 mental impairments, began in 1996. (AR 212; Complaint Memo. at 1). 25 Plaintiff was covered for DIB through June 30, 2005 (her date last 26 insured ). (AR 10, 161-70). 27 1 See 20 C.F.R. § 404.1563(c) (2011) (defining "younger person" 28 as an individual under 50). 2 1 Plaintiff testified that she suffers from pain and fluid in her 2 knees, although she takes only Tylenol for pain. 3 operations on both knees, (id.), and was prescribed Vicodin for chronic 4 back pain. 5 fine motor skills, but acknowledged that she is able to lift objects 6 such as a gallon of milk. (AR 32-33). (AR 32). She had Plaintiff complained about problems with her (AR 35-36). 7 8 9 According to Plaintiff s medical records, Dr. Ernesto Natividad began treating her for depression in September 2007. (AR 434). 10 Plaintiff testified that she sees Dr. Natividad every other month for 11 a refill of her anti-depressant medications and discusses her condition 12 with him for fifteen to twenty minutes. (AR 26). 13 receive any mental 14 therapy. 15 Plaintiff periodically stops taking her medications when she believes 16 her condition has improved, even though her mental health symptoms 17 worsen when she does not take them. 18 admitted that whenever she stops taking her medications, her doctor 19 tells her that she must continue taking them as prescribed. 20 During one period when she was not taking her medications, Plaintiff 21 assaulted an unidentified adult. other (Id.). regularly scheduled Plaintiff does not health The medications make her tired. treatment or (AR 28, 34). (AR 25, 27, 30-31, 37). She (AR 31). (AR 30). 22 23 Plaintiff also described her work activities. From 1996 to 2009, 24 Plaintiff worked three hours per day as a child care worker for the Long 25 Beach Unified School District. (AR 24 (testified that she stopped doing 26 child care on July 2, 2009), 30 (testified that she was terminated in 27 July 2009 after assault incident), 182 (indicating work for three hours 28 a day), 187 (listing child care position from 1996 to 2009)). She spent 3 1 the entire three hours standing or walking and would frequently lift 2 ten-pound objects. 3 Plaintiff from her child care position on July 2, 2009 for the assault 4 incident, even though it was not related to her job. 5 Additionally, Plaintiff also worked from 1987 to 1996 as a security 6 guard. (AR 187-88). In that job, she stood or walked between seven and 7 eight hours each day and sat between three and five hours each day. (AR 8 188). (AR 189). Long Beach Unified School District fired (AR 30). 9 10 Plaintiff s mother also testified at the hearing. (AR 38-48). She 11 stated that Plaintiff sleeps all day, even through loud noises, (AR 41, 12 44), and experiences regular mood swings, crying fits, and daily bouts 13 of anger. 14 where she need to go and prepares her meals, but Plaintiff is able to 15 do some chores like washing dishes. (AR 45-47). Plaintiff s mother generally drives Plaintiff (AR 43). 16 17 Drs. Jay Jazayeri and George El Khoury treated Plaintiff for her 18 physical impairments. Dr. Jazayeri successfully performed orthoscopic 19 surgery on Plaintiff s right knee on November 9, 2004, (AR 290, 293-94), 20 and on her left knee on December 28, 2004. (AR 289, 295-96). He 21 reported that Plaintiff could return to work on February 14, 2005. (AR 22 289). His records, which date from July 19, 2004 through March 2, 2005, 23 do not mention any mental health issues or psychiatric medications. (AR 24 289-320). According to Dr. Jazayeri s records, Dr. El Khoury was 25 26 27 28 4 1 treating Plaintiff for back pain as of July 19, 2004. (AR 292). There 2 are no medical records of Dr. El Khoury s treatment in the record.2 3 4 Medical records documenting Plaintiff s treatment for mental health 5 problems reflect 6 September 2007 and prescribed a number of medications.3 (AR 434). 7 Plaintiff also sought treatment at the Mental Health Urgent Care Center 8 at Long Beach ( MHUCC ) twice in late 2007. 9 Plaintiff was that Dr. admitted Natividad after began she treating Plaintiff in On October 5, 2007, assaulted her husband 10 ("physically/verbally struck out at husband"), (AR 326-30), and was 11 given a thirty day supply of her prescribed medications. 12 December 5, 2007, Plaintiff visited MHUCC a second time after she had 13 been off her medications for two days. (AR 321-25). An MHUCC physician 14 completed an assessment of Plaintiff on December 11, 2007. (AR 335-41). 15 The physician noted that Plaintiff was depressed, that she stopped 16 taking her medications, and that her history demonstrated increased 17 symptoms off of her medication. 18 Plaintiff had no history of hospitalization for mental health problems. 19 (Id.). 20 judgments and insight were moderate, and her ability to perform serial (AR 335). (AR 330). On The report reflected that According to the report, Plaintiff s mood was dysphoric, her 21 22 23 2 24 25 Dr. El Khoury responded to the request for Plaintiff s medical records with another patient s records. (AR 255-88). 3 This date is reported in the subjective patient history of the 26 medical record for Plaintiff s January 8, 2008 outpatient treatment for coughing at Children s Clinic - Pacific Hospital of Long Beach. (AR 27 433-34). Medical records produced by CO/M/LA Long Beach Mental Health include eight medication logs signed by Dr. Natividad, (AR 343-350), the 28 oldest of which appears to be dated January 10, 2008. (AR 350). 5 1 sevens4 was poor. 2 associations, and behavioral disturbances were normal. (AR 339). Plaintiff s thought content disturbance, (Id.). 3 4 Plaintiff also received treatment at Pacific Hospital of Long Beach 5 twice in early 2009.5 6 hospital clinic for lower back pain. 7 physician assessed her affect as normal. 8 2009, Plaintiff was involuntarily admitted to the hospital as a danger 9 to herself. (AR 438-46). [Plaintiff] stated that she was noncompliant 10 with her medications for sometime, because she felt that she is doing 11 well and since then she has been deteriorating. 12 her doctors that even when she tried to be compliant, she would forget 13 to take her medications on a daily basis. 14 Plaintiff took her medications as prescribed and became much calmer 15 without experiencing any side effects from the medications. 16 She said that she had contemplated suicide only because she had not 17 taken her medications. On January 8, 2009, Plaintiff visited the (AR 432-37). (AR 435). (Id.). The treating On February 4, (AR 442). She told While hospitalized, (AR 445). (Id.).6 18 19 4 Serial sevens is a diagnostic test that asks a patient to count down from one hundred in increments of seven. 20 5 The records for these visits indicate only Children s Clinic, but were sent by the same Medical Records representative who sent 22 records from Children s Clinic - Pacific Hospital of Long Beach. (AR 432, 438). 23 6 Plaintiff also sent record requests to Drs. Emanuel Devera, (AR 24 357-59), and George M. Jayatilaka. (AR 372-74). Dr. Devera s staff 25 indicated that Dr. Devera had last seen Plaintiff in 2004 but that his office no longer [had] the patient s chart. (AR 359). Dr. 26 Jayatilaka s staff indicated that Dr. Jayatilaka had last seen Plaintiff on December 8, 2004 but that the chart has been purge out [sic] no 27 longer in this office. (AR 373). Both requests asked for information relevant to Plaintiff s alleged impairments of bipolar, manic 28 depression, pain in both knees, [and] sciatica. (AR 358, 374). The 21 6 1 Four doctors completed evaluations for Plaintiff s disability 2 claim. Drs. R. E. Brooks and G. Johnson completed Psychiatric Reviews 3 on November 6, 2008 and March 3, 2009, respectively. 4 21). Both doctors determined that there was insufficient evidence prior 5 to the date last insured to make any determination. 6 421). 7 (AR 383, 419). (AR 375-85, 411- (AR 375, 385, 411, Neither doctor completed the section on functional limitations. 8 9 Dr. E. L. Gilpeer completed a Physical Residual Functional Capacity 10 Assessment on November 17, 2008. (AR 386-91). Dr. Gilpeer found 11 insufficient evidence to establish any specific physical 12 (AR 386, 388). 13 Functional 14 According to Dr. Phillips, Plaintiff was able to frequently lift twenty- 15 five pounds and to sit for six hours of an eight-hour work day, and had 16 no push/pull limitations. limitations. Dr. V. Phillips completed another Physical Residual Capacity Assessment on March 10, 2009. (AR 404-10). (AR 405). 17 18 IV. 19 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 20 21 To qualify for disability benefits, a claimant must demonstrate a 22 medically determinable physical or mental impairment that prevents her 23 from engaging in substantial gainful activity7 and that is expected to 24 25 record does 26 provided. 27 not indicate the type 7 of treatment these physicians Substantial gainful activity means work that involves doing significant and productive physical or mental duties and is done for pay 28 or profit. 20 C.F.R. § 404.1510. 7 1 result in death or to last for a continuous period of at least twelve 2 months. 3 42 U.S.C. § 423(d)(1)(A)). 4 incapable of performing the work she previously performed and incapable 5 of performing any other substantial gainful employment that exists in 6 the national economy. 7 1999) (citing 42 U.S.C. § 423(d)(2)(A)). Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing The impairment must render the claimant Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 8 9 10 To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. § 404.1520. The steps are: 11 12 (1) Is the claimant presently engaged in substantial gainful 13 activity? 14 If not, proceed to step two. 15 (2) Is the If so, the claimant is found not disabled. claimant s impairment 16 claimant is found not disabled. 17 severe? If not, the three. 18 (3) Does the claimant s If so, proceed to step impairment meet or equal the 19 requirements of any impairment listed at 20 C.F.R. Part 20 404, Subpart P, Appendix 1? 21 found disabled. 22 (4) If so, the claimant is If not, proceed to step four. Is the claimant capable of performing her past work? If 23 so, the claimant is found not disabled. If not, proceed 24 to step five. 25 (5) Is the claimant able to do any other work? 26 claimant is found disabled. 27 found not disabled. 28 8 If not, the If so, the claimant is 1 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 2 949, 953-54 (9th Cir. 2001); 20 C.F.R. § 404.1520(b)-(g)(1). 3 4 The claimant has the burden of proof at steps one through four, and 5 the Commissioner has the burden of proof at step five. Bustamante, 262 6 F.3d at 953-54. 7 establishing an inability to perform the past work, the Commissioner 8 must show that the claimant can perform some other work that exists in 9 significant numbers in the national economy, taking into account the 10 claimant s Residual Functional Capacity ( RFC ), age, education and work 11 experience. If, at step four, the claimant meets her burden of Tackett, 180 F.3d at 1100; 20 C.F.R. § 404.1520(g)(1). 12 V. 13 THE ALJ S DECISION 14 15 The ALJ employed the five-step sequential evaluation process and 16 concluded at step four that Plaintiff was not disabled within the 17 meaning of the Social Security Act. 18 found that Plaintiff had not engaged in substantial gainful activity 19 from the alleged onset date of January 1, 1996, through her date last 20 insured of June 30, 2005. 21 Plaintiff had severe impairments of degenerative disc disease of the 22 bilateral knees and depression (mild). 23 ALJ found that [t]hrough the date last insured, [Plaintiff] did not 24 have an impairment or combination of impairments that met or medically 25 equaled one of the listed impairments . . . . (AR 10-15). (AR 12). At step one, the ALJ At step two, he found that (Id.). At step three, the (Id.). 26 27 At step four, the ALJ found that Plaintiff had the RFC to perform 28 medium work . . . with the occasional climbing of stairs and was 9 1 capable of performing her past relevant work as a security guard. 2 14). 3 impairment. 4 Plaintiff's mental health] prior to her date last insured, June 30, 5 2005. 6 activities of daily living, mild difficulties in maintaining social 7 functioning, mild difficulties in maintaining concentration, persistence 8 or pace with no episodes of decompensation, each of extended duration. 9 (AR 14). The ALJ also addressed Plaintiff s alleged mental (AR health He noted that there were no medical records [regarding (AR 13). The ALJ found that Plaintiff had mild restriction of Based upon the absence of medical evidence and Plaintiff s 10 mild limitations, the ALJ concluded that Plaintiff did not have a severe 11 mental impairment. (Id.). 12 13 The ALJ based his conclusions on the medical consultants 14 assessments because they were consistent with the objective findings 15 and they [were] not rebutted by any treating source. (AR 13). The ALJ 16 gave no weight to Plaintiff s subjective complaints insofar as they were 17 inconsistent with the objective evidence and the findings of the medical 18 consultants. 19 problems were caused by her periodic failure to take her medications, 20 and thus would not affect her RFC. (Id.). The ALJ also found that Plaintiff s mental (AR 14). 21 22 Because the ALJ found that Plaintiff could perform her past 23 relevant work, he concluded that Plaintiff was not disabled during the 24 covered period. (Id.). 25 26 27 28 10 1 VI. 2 STANDARD OF REVIEW 3 4 Under 42 U.S.C. § 405(g), a district court may review the 5 Commissioner s decision to deny benefits. The court may set aside the 6 Commissioner s decision when the ALJ s findings are based on legal error 7 or are not supported by substantial evidence in the record as a whole. 8 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Smolen v. 9 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). 10 11 Substantial evidence is more than a scintilla, but less than a 12 preponderance. 13 which a reasonable person might accept as adequate to support a 14 conclusion. 15 a finding, the court must consider the record as a whole, weighing 16 both 17 [Commissioner s] conclusion. Aukland, 257 F.3d at 1035 (quoting Penny 18 v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 19 reasonably support either affirming or reversing that conclusion, the 20 court may not substitute its judgment for that of the Commissioner. 21 Reddick, 157 F.3d at 720-21. Reddick, 157 F.3d at 720. Id. evidence It is relevant evidence To determine whether substantial evidence supports that supports and evidence that detracts from the If the evidence can 22 23 VII. 24 DISCUSSION 25 26 Plaintiff contends the ALJ (1) failed to properly consider at and (2) 27 Plaintiff s 28 erroneously found that Plaintiff s testimony was not entirely credible. mental impairment, (Complaint Memo. 11 2-4), 1 (Id. at 4-7). The Court recognizes that the ALJ s decision contained 2 contradictory statements 3 Ultimately, however, this error is immaterial because the medical 4 evidence shows that Plaintiff s mental impairment was not severe during 5 the relevant time period. 6 erred regarding Plaintiff s mental impairment, any such error was 7 harmless. 8 ALJ s credibility determination was error. regarding Plaintiff s mental impairment. The Court further finds that even if the ALJ Finally, the Court rejects Plaintiff s contention that the 9 10 A. No Remand Is Required Based Upon The ALJ s Findings Regarding Plaintiff s Alleged Mental Impairment 11 12 13 Plaintiff claims that the ALJ failed to properly consider her 14 mental impairment. 15 contends that the ALJ reached completely contradictory conclusions by 16 first 17 determining that Plaintiff does not have a severe mental impairment. 18 (Complaint Memo. at 3) (citing AR 12, 14). 19 that the ALJ s finding that Petitioner s mental impairment was not 20 severe lacked evidentiary support. 21 ALJ s contradictory conclusions may be, the Court finds the statements 22 to 23 Plaintiff s mental impairment was severe during the covered period and 24 (2) the record demonstrates that her alleged mental impairment, even if 25 deemed severe, was not disabling when Plaintiff took her medication. be finding that harmless (Complaint Memo. at 2-4). Plaintiff s because (1) depression the 26 27 28 12 Specifically, Plaintiff was but later Further, Plaintiff contends (Id. at 4). record severe, does However confusing the not establish that 1 1. The ALJ s Severity Statements 2 3 The ALJ determined at step two that [t]hrough the date last 4 insured, [June 30, 2005,] the 5 impairments: . . . depression (mild) . . . . 6 the ALJ concluded at step four that Plaintiff does not have a severe 7 mental impairment. 8 statements are ultimately not material to the outcome and do not require 9 remand. (AR 14). claimant had the following (AR 12). severe Nonetheless, While potentially confusing, these 10 11 By its own terms, the evaluation at step two is a de minimis test 12 intended to weed out only the most minor of impairments. 13 Yuckert, 482 U.S. 137, 153-54, 107 S. Ct. 2287, 96 L. Ed. 2d 119 (1987); 14 Edland v. Massanari, 253 F.3d 1152, 1158 (9th Cir. 2001) (the step two 15 inquiry is a de minimis screening device to dispose of groundless 16 claims) (citing Smolen, 80 F.3d at 1290). 17 used at steps four and five of the evaluation process, on the other 18 hand, requires a more detailed analysis. 19 98-8p, 1996 WL 374184, at *4 ( The mental RFC assessment used at steps 20 4 and 5 of the sequential evaluation process requires a more detailed 21 assessment 22 categories found in . . . the adult mental disorders listings in 12.00 23 of the Listing of Impairments, and summarized on the [Psychiatric Review 24 Technique Form]. ).8 25 by itemizing various The mental RFC assessment See Social Security Ruling functions 8 See Bowen v. contained in the broad Where there is evidence of a mental impairment that allegedly 26 prevents the plaintiff from working, the Agency has supplemented the five-step sequential evaluation process with additional regulations 27 intended to assist the ALJ in determining the severity of mental impairments. Maier v. Comm r of the Soc. Sec. Admin., 154 F.3d 913, 28 914-15 (9th Cir. 1998) (per curiam) (citing 20 C.F.R. § 416.920a). If 13 1 While Plaintiff stated in her disability report that she began 2 seeking treatment at CO/M/LA Long Beach Mental Health for panic attacks 3 and mood swings as early as 2002, (AR 214), Plaintiff s medical records, 4 including those produced by CO/M/LA Long Beach Mental Health, provide 5 no evidence of any mental health problems during the relevant period. 6 (See AR 335-56). 7 October and December 2007, two years after her 2005 date last insured. 8 (AR 326, 340). 9 in September 2007. Plaintiff s first mental health records are from Plaintiff started seeing Dr. Natividad for depression (AR 434). The first medical record documenting 10 treatment for any mental health issue is from her October 2007 visit to 11 MHUCC, in which a treating physician noted that she had attempted 12 suicide approximately one year prior. 13 testimony did not reveal any debilitating mental health issues prior to 14 the July 2009 assault. 15 to the question [h]ave you been seen by a doctor/hospital/clinic or (AR 22-38). (AR 326). Further, Plaintiff s Finally, Plaintiff answered no 16 17 18 the claimant has a medically determinable impairment, the ALJ must rate the degree of functional limitation resulting from the impairment(s) 19 for the four broad functional areas: activities of daily living; social functioning; concentration, persistence or pace; and episodes of 20 decompensation. 20 C.F.R. § 404.1520a(b)(2), (c)(3). The decision 21 must show the significant history, including examination and laboratory findings, and the functional limitations that were considered in 22 reaching a conclusion about the severity of the mental impairment(s), including a specific finding as to the degree of limitation in each of 23 the functional areas . . . . Id. § 404.1520a(e)(4). However, an ALJ s failure to follow the required procedure mandates remand only if the 24 claimant has a colorable claim of a mental impairment. Keyser v. 25 Commissioner of Social Security, 648 F.3d 721, 726 (9th Cir. 2011); see also Hoopai v. Astrue, 499 F.3d 1071, 1077-8 (9th Cir. 2007) (affirming 26 denial of benefits despite ALJ s failure to document his considerations underlying the functional findings). Here, the ALJ made express 27 findings concerning the four functional areas, though arguably not in the degree of detail outlined in 20 C.F.R. §§ 416.920a and 404.1520a. 28 (See AR 14, ¶ 5). Thus, remand is not required. 14 1 anyone else for emotional or mental problems that limit your ability to 2 work? on her Disability Report. (AR 214). 3 4 Plaintiff failed to demonstrate that she had a medically 5 determinable mental impairment prior to her date last insured. See 6 Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996) (failure to provide 7 evidence of mental impairment prior to date last insured supports 8 finding of non-disability). The ALJ s purportedly confusing statements 9 regarding her mental disability are immaterial as there is no evidence 10 in the record of a severe mental impairment during the relevant time 11 period. The ALJ made express findings regarding Plaintiff s functional 12 limitations in his decision and therefore any failure to make more 13 detailed express findings under 20 C.F.R. § 404.1520a was harmless 14 error. 15 Cir. April 2, 2012) (errors were harmless where it is clear they did not 16 alter ALJ's decision); Carmickle v. Comm r of the Soc. Sec. Admin., 533 17 F.3d 1155, 1162 (9th Cir. 2008) (if the ALJ s error was inconsequential 18 to the ultimate nondisability determination, no remand required); Burch 19 v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) ( A decision of the ALJ 20 will not be reversed for errors that are harmless. ). See Molina v. Astrue, ___ F.3d ___, 2012 WL 1071637 at * 7 (9th 21 22 2. The ALJ s Residual Functional Capacity Determination 23 24 Even if Plaintiff s mental impairment were severe, she cannot 25 establish disability based upon her mental impairment because the record 26 discloses that whatever mental condition she had did not affect her 27 ability to work when she took her medications. 28 is not a disability when it can be controlled by medication. 15 A mental health problem Warre v. 1 Comm r of the Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) 2 ( Impairments that can be controlled effectively with medication are not 3 disabling. ). 4 5 Here, the ALJ found that Plaintiff s periods of emotional problems 6 have been related to her non-compliance with medication. 7 Plaintiff admitted in her testimony that her symptoms were worse when 8 she failed to take her medications. 9 that she was fired from her job as a child care worker because of an (AR 27, 30, 37). (AR 14). She also stated 10 incident that occurred when she stopped taking her medications. (AR 11 30). Plaintiff s medical records indicated that her symptoms were under 12 control when she took her medications, that she only became suicidal 13 because she stopped taking her medications, and that she sometimes 14 forgot to take her medications on a daily basis. (AR 442, 445). 15 16 Moreover, Plaintiff s contention that her alleged mental impairment 17 was disabling is undermined by her record of work throughout the covered 18 period. 19 (AR 23-24, 187, 189). 20 her to work fewer hours, change her job duties, or make any job-related 21 changes. 22 had did not impact her work activities. 23 impairment were severe, it would not have changed the ALJ s finding 24 regarding her RFC as her condition was well-controlled with medication. She worked for three hours each day as a child care worker. (AR 212). She denied that her conditions had ever caused It is clear that any mental impairment Plaintiff Even if Plaintiff s mental 25 26 Thus, to the extent that the ALJ erred, it was harmless error and 27 no remand is required. See Carmickle, 533 F.3d at 1162; Burch, 400 F.3d 28 at 679. 16 1 2 B. The ALJ Provided Clear And Convincing Reasons For Rejecting Plaintiff s Subjective Testimony 3 4 Plaintiff contends that the ALJ erred by rejecting her testimony. 5 (Complaint Memo. at 4-7). Specifically, Plaintiff asserts that the ALJ 6 failed to specifically explain which parts of [P]laintiff s statements, 7 if any, are credible and which parts were not credible. 8 The Court disagrees. (Id. at 5). 9 10 Whenever an ALJ s disbelief of a claimant s testimony is a critical 11 factor in a decision to deny benefits, the ALJ must make explicit 12 credibility findings. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 13 1990); see also Albalos v. Sullivan, 907 F.2d 871, 874 (9th Cir. 1990) 14 (implicit finding that claimant was not credible is insufficient). 15 Unless there is affirmative evidence showing that the claimant is 16 malingering, the ALJ s reasons for rejecting the claimant s testimony 17 must be clear and convincing. Lester v. Chater, 81 F.3d 821, 834 (9th 18 Cir. 1995) (as amended). 19 medical impairment that could reasonably be expected to produce pain, 20 the ALJ may not require the degree of pain to be corroborated by 21 objective medical evidence. 22 (9th Cir. 1991) (en banc); Smolen, 80 F.3d at 1282. As long as a claimant offers evidence of a Bunnell v. Sullivan, 947 F.2d 341, 346-47 23 24 The ALJ can, however, reject a claimant s testimony regarding the 25 severity of her symptoms if he points to clear and convincing reasons 26 for doing so. 27 claimant s testimony regarding the severity of her symptoms is credible, 28 the ALJ may consider, among other things: (1) ordinary techniques of See Smolen, 80 F.3d at 1283-84. 17 To determine whether a 1 credibility evaluation, such as the claimant s reputation for lying, 2 prior 3 testimony by the claimant that appears less than candid; (2) unexplained 4 or inadequately explained failure to seek treatment or to follow a 5 prescribed course of treatment; and (3) the claimant s daily activities. 6 Id. 7 substantial evidence in the record, the court may not engage in 8 second-guessing. Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). inconsistent at 1284. If statements the ALJ s concerning credibility the symptoms, finding is and other supported by 9 10 Here, the ALJ specified his reasons for rejecting Plaintiff s 11 testimony. He rejected her allegations that she [could not] do her 12 past work because her allegations are not consistent with the objective 13 findings or the evidence of record. 14 her subjective complaints [we]re not sufficiently credible to require 15 [him] to accept her allegation of excess pain and limitation. (AR 13). Further, he found that (Id.). 16 17 The ALJ also provided clear and convincing reasons for his 18 findings. First, the ALJ found that there was very little evidence of 19 treatment prior to her date last insured (June 30, 2005). 20 The record indicates that Plaintiff had two successful knee surgeries 21 during the covered period and was cleared to return to work less than 22 two months after the second surgery. 23 to have had one follow-up examination on March 2, 2005, and there is no 24 evidence that Plaintiff sought any other treatment for her knees during 25 the covered period. (AR 289). Furthermore, the record does not contain 26 any mental health medical records prior to 2007. 27 VII.A.1. (AR 289-90). (AR 14). Plaintiff appears See supra Part Failure to seek treatment is a factor which an ALJ may 28 18 1 consider in a credibility determination. Smolen, 80 F.3d at 1284. The 2 ALJ s first reason for doubting Plaintiff s credibility was proper. 3 4 Second, the ALJ found that Plaintiff had bilateral knee surgeries 5 without any complications. (AR 14). This was supported by the 6 evidence from her treating physician. 7 that Plaintiff first complained of knee problems in July 2004. 8 292). 9 her to return to work on February 14, 2005. Dr. Jazayeri s records indicate (AR He operated on each of her knees at the end of 2004 and cleared (AR 289). Thus, the 10 records contradict Plaintiff s contention that she was unable to work 11 due to any pain in her knees. Substantial evidence supports this reason 12 for rejecting Plaintiff s testimony. 13 14 Third, Plaintiff until July admitted 2009 she worked she was fired as child care attendant 16 individual (per testimony). 17 worked three hours each day during the covered period, (AR 23-24, 187, 18 189), performing activities that required standing and walking for the 19 full three hours. 20 took her medications never caused her to work fewer hours, change her 21 job duties or make any job-related changes. 22 further testified that she was fired from the job because she committed 23 an assault as a result of being off her medications. 24 may consider a claimant s work record in assessing her credibility. 25 Thomas, 278 F.3d at 959. 26 claim that she could not work because of physical or mental impairments 27 was not credible. (AR 14). for a 15 (AR 189). when that assaulting an Plaintiff admitted that she Plaintiff s alleged impairments when she The ALJ properly 28 19 (AR 212). Plaintiff (AR 30). The ALJ concluded that Plaintiff s 1 Thus, the Court concludes that the ALJ provided clear 2 convincing reasons for his credibility findings. 3 and Because the ALJ did not err in rejecting Plaintiff s claim, remand is not required. 4 5 VIII. 6 CONCLUSION 7 8 Consistent with the foregoing, and pursuant to 42 U.S.C. § 405(g), 9 IT IS ORDERED that judgment be entered AFFIRMING the decision of the 10 Commissioner and dismissing this action with prejudice. IT IS FURTHER 11 ORDERED that the Clerk of the Court serve copies of this Order and the 12 Judgment on counsel for both parties. 13 14 DATED: April 3, 2012 15 _____/S/_____________________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 20

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