Lawrence Eric Henry v. Michael J Astrue, No. 2:2011cv08242 - Document 26 (C.D. Cal. 2012)

Court Description: MEMORANDUM OPINION AND ORDER AFFIRMING THE COMMISSIONER by Magistrate Judge Jean P Rosenbluth. For the reasons stated below, the Commissioners decision is affirmed and this action is dismissed. (twdb)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 LAWRENCE ERIC HENRY, 10 Plaintiff, 11 vs. 12 13 MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 14 Defendant. 15 ) Case No. CV 11-8242-JPR ) ) ) MEMORANDUM OPINION AND ORDER ) AFFIRMING THE COMMISSIONER ) ) ) ) ) ) ) 16 17 I. PROCEEDINGS 18 Plaintiff seeks review of the Commissioner s final decision 19 denying his application for Social Security Supplemental Security 20 Income ( SSI ) benefits. The parties consented to the 21 jurisdiction of the undersigned U.S. Magistrate Judge pursuant to 22 28 U.S.C. § 636(c). This matter is before the Court on the 23 parties Joint Stipulation, filed August 27, 2012, which the 24 Court has taken under submission without oral argument. For the 25 reasons stated below, the Commissioner s decision is affirmed and 26 this action is dismissed. 27 II. BACKGROUND 28 Plaintiff was born on January 1, 1989. 1 (Administrative 1 Record ( AR ) 99.) 2 experience. He has an 11th-grade education and no work (AR 49, 66, 541, 559, 587.) As a child, Plaintiff 3 received SSI benefits because of various learning disabilities 4 and behavioral disorders. (See AR 150.) After Plaintiff turned 5 18, his eligibility was reviewed under the rules for determining 6 disability in adults, and on January 9, 2008, he was found to be 7 no longer disabled under those standards. (AR 149.) Plaintiff 8 requested a review of the agency s determination; a State Agency 9 Disability Hearing Officer upheld the determination on August 13, 10 2008. 11 (AR 61-70.) Plaintiff then requested a hearing before an Administrative 12 Law Judge ( ALJ ). (AR 70.) A hearing was held on June 14, 13 2010, at which Plaintiff, who was represented by counsel, 14 appeared and testified on his own behalf. (AR 551-98.) Medical 15 Expert Dr. Betty Borden and Vocational Expert ( VE ) Gregory 16 Jones also testified, as did Plaintiff s mother, Charlene Givens. 17 (AR 573-98.) In a written decision issued on July 8, 2010, the 18 ALJ determined that Plaintiff was not disabled. (AR 16-24.) On 19 August 3, 2011, the Appeals Council denied Plaintiff s request 20 for review. (AR 5-7.) This action followed. 21 III. STANDARD OF REVIEW 22 Pursuant to 42 U.S.C. § 405(g), a district court may review 23 the Commissioner s decision to deny benefits. The ALJ s findings 24 and decision should be upheld if they are free from legal error 25 and are supported by substantial evidence based on the record as 26 a whole. § 405(g); Richardson v. Perales, 402 U.S. 389, 401, 91 27 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971); Parra v. Astrue, 481 28 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means such 2 1 evidence as a reasonable person might accept as adequate to 2 support a conclusion. Richardson, 402 U.S. at 401; Lingenfelter 3 v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 4 a scintilla but less than a preponderance. It is more than Lingenfelter, 504 5 F.3d at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 6 882 (9th Cir. 2006)). To determine whether substantial evidence 7 supports a finding, the reviewing court must review the 8 administrative record as a whole, weighing both the evidence that 9 supports and the evidence that detracts from the Commissioner s 10 conclusion. 11 1996). Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. If the evidence can reasonably support either affirming 12 or reversing, the reviewing court may not substitute its 13 judgment for that of the Commissioner. Id. at 720-21. 14 IV. THE EVALUATION OF DISABILITY 15 People are disabled for purposes of receiving Social 16 Security benefits if they are unable to engage in any substantial 17 gainful activity owing to a physical or mental impairment that is 18 expected to result in death or which has lasted, or is expected 19 to last, for a continuous period of at least 12 months. 42 20 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 21 (9th Cir. 1992). 22 A. 23 A claimant who receives SSI as a child and who remained The Five-Step Evaluation Process 24 eligible for SSI for the month before the month in which he 25 turned 18 must have his eligibility for benefits redetermined 26 after turning 18. 20 C.F.R. § 416.987(a). The ALJ may find that 27 the claimant is not disabled as an adult even though the claimant 28 was previously found to be disabled as a child. 3 Id. In 1 evaluating a claimant s continuing disability after age 18, the 2 ALJ follows a modified version of the five-step sequential 3 evaluation process used for adult claimants. 4 (h). Id.; § 416.920(c)- The ALJ does not apply the rule in § 416.920(b) to 5 determine whether the claimant is currently engaged in 6 substantial gainful activity. § 416.987(b). The ALJ does apply 7 the second through fifth steps of the sequential evaluation 8 process, however. Id. The second step requires the ALJ to 9 determine whether the claimant has a severe impairment or 10 combination of impairments significantly limiting his ability to 11 do basic work activities; if not, a finding of not disabled is 12 made and the claim must be denied. § 416.920(a)(4)(ii). If the 13 claimant has a severe impairment or combination of impairments, 14 the third step requires the ALJ to determine whether the 15 impairment or combination of impairments meets or equals an 16 impairment in the Listing of Impairments ( Listing ) set forth at 17 20 C.F.R., Part 404, Subpart P, Appendix 1; if so, disability is 18 conclusively presumed and benefits are awarded. 19 § 416.920(a)(4)(iii). If the claimant s impairment or 20 combination of impairments does not meet or equal an impairment 21 in the Listing, the fourth step requires the ALJ to determine 22 whether the claimant has sufficient RFC to perform his past work; 23 if so, the claimant is not disabled and the claim is denied. 24 § 416.920(a)(4)(iv). The claimant has the burden of proving that 25 he is unable to perform past relevant work. 26 1257. Drouin, 966 F.2d at If the claimant meets that burden, a prima facie case of 27 disability is established. Id. If that happens or if the 28 claimant has no past relevant work, the ALJ then bears the burden 4 1 of establishing that the claimant is not disabled because he can 2 perform other substantial gainful work in the national economy. 3 § 416.920(a)(4)(v). That determination comprises the fifth and 4 final step in the sequential analysis. § 416.987(b); § 416.920. 5 B. 6 At step one, the ALJ found that Plaintiff turned 18 on The ALJ s Application of the Five-Step Process 7 December 31, 2006, was eligible for SSI benefits as a child for 8 the month preceding December 2006, and was previously found no 9 longer disabled as of January 1, 2008, based on a redetermination 10 of his disability as an adult. (AR 18.) At step two, the ALJ 11 concluded that Plaintiff had the severe impairments of borderline 12 intellectual functioning, depression, generalized anxiety 13 disorder, a history of a learning disorder, attention deficit 14 hyperactivity disorder, and asthma. (Id.) At step three, the 15 ALJ determined that Plaintiff s impairments did not meet or equal 16 any of the impairments in the Listing. (AR 18-19.) At step 17 four, the ALJ found that Plaintiff retained the RFC to perform a 18 full range of work at all exertional levels but with the 19 following nonexertional limitations: no work requiring more than 20 simple repetitive tasks; more than brief and casual contact with 21 coworkers and supervisors; any exposure to heat, cold, hazardous 22 machinery or dangerous heights; and being responsible for the 23 safety of others. (AR 20.) 24 had no past relevant work. The ALJ determined that Plaintiff (AR 23.) At step five, the ALJ 25 concluded that jobs existed in significant numbers in the 26 national economy that Plaintiff could perform. (AR 23-24.) 27 Accordingly, the ALJ determined that Plaintiff was not disabled. 28 (AR 24.) 5 1 V. DISCUSSION 2 Plaintiff alleges that the ALJ erred in (1) rejecting the 3 opinion of Plaintiff s treating physician; (2) finding 4 Plaintiff s subjective symptom testimony not credible; and (3) 5 failing to consider the combined effects of Plaintiff s 6 impairments when determining his RFC. 7 8 9 A. (J. Stip. at 3.) The ALJ Did Not Err in His Consideration of the Opinion of Plaintiff s Treating Physician Plaintiff contends that the ALJ erred in rejecting his 10 treating physician Dr. Jeanne Hong s opinion that because of the 11 culmination of Plaintiff s impairments, it would prove to be 12 difficult for [Plaintiff] to find and maintain employment. 13 Stip. at 3-17; AR 519.) (J. Reversal is not warranted on this basis 14 because Dr. Hong did not opine that Plaintiff was unable to work, 15 and even if she did, the ALJ properly rejected that opinion based 16 on substantial evidence in the record. 17 18 1. Applicable law Three types of physicians may offer opinions in social 19 security cases: (1) those who treat[ed] the claimant (treating 20 physicians); (2) those who examine[d] but d[id] not treat the 21 claimant (examining physicians); and (3) those who neither 22 examine[d] nor treat[ed] the claimant (non-examining 23 physicians). Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) 24 (as amended Apr. 9, 1996). A treating physician s opinion is 25 generally entitled to more weight than the opinion of a doctor 26 who examined but did not treat the claimant, and an examining 27 physician s opinion is generally entitled to more weight than 28 that of a nonexamining physician. 6 Id. 1 The opinions of treating physicians are generally afforded 2 more weight than the opinions of nontreating physicians because 3 treating physicians are employed to cure and have a greater 4 opportunity to know and observe the claimant. 5 80 F.3d 1273, 1285 (9th Cir. 1996). Smolen v. Chater, The weight given a treating 6 physician s opinion depends on whether it was supported by 7 sufficient medical data and was consistent with other evidence in 8 the record. See 20 C.F.R. § 416.927(c)(2). If a treating 9 physician s opinion was well supported by medically acceptable 10 clinical and laboratory diagnostic techniques and is not 11 inconsistent with the other substantial evidence in the record, 12 it should be given controlling weight and rejected only for 13 clear and convincing reasons. 14 § 416.927(c)(2). See Lester, 81 F.3d at 830; When a treating physician s opinion conflicts 15 with other medical evidence or was not supported by clinical or 16 laboratory findings, the ALJ must provide only specific and 17 legitimate reasons for discounting that doctor s opinion. 18 v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). Orn Factors relevant 19 to the evaluation of a treating physician s opinion include the 20 [l]ength of the treatment relationship and the frequency of 21 examination as well as the [n]ature and extent of the treatment 22 relationship between the patient and the physician. 23 § 416.927(c)(2)(i)-(ii). 24 The ALJ may discredit treating-doctor opinions that are 25 conclusory, brief, and unsupported by the record as a whole or by 26 objective medical findings. See Batson v. Comm r of Soc. Sec. 27 Admin., 359 F.3d 1190, 1195 (9th Cir. 2004); Thomas v. Barnhart, 28 278 F.3d 947, 957 (9th Cir. 2002) ( The ALJ need not accept the 7 1 opinion of any physician, including a treating physician, if that 2 opinion is brief, conclusory, and inadequately supported by 3 clinical findings. ). 4 5 2. Relevant facts Plaintiff had been seeing Dr. Jeanne Hong, a psychiatrist at 6 the Van Nuys Medical and Mental Health Services clinic, from 7 November 2008 to July 2009. (AR 519-43.) Plaintiff continued 8 going to the Van Nuys clinic through April 2010, where he was 9 treated by Dr. Willmer (first name unknown). 10 (AR 513-18.) During her initial assessment of Plaintiff, on November 22, 11 2008, Dr. Hong noted Plaintiff s history of depression, anxiety, 12 ADHD, and learning disorders. (AR 538.) She also noted that in 13 the past, his symptoms had improve[d] on meds ; at that time, 14 Plaintiff had not been taking any medication for six months. 15 (Id. (noting Plaintiff stopped antidepressant 6 [months] ago 16 after former psychiatrist retired ).) She further noted that he 17 reported that he had scoliosis and back pain, for which he took 18 prescription Motrin, and asthma, for which he used an inhaler. 19 (AR 539.) He had a dysphoric mood, a constricted affect, was 20 amotivational, and avoided eye contact, but otherwise his 21 mental status appeared unimpaired in particular, his motor 22 activity was calm, his interactional style was culturally 23 congruent, he had no apparent perceptual, thought, or behavioral 24 disturbances, and his memory and intellectual functioning were 25 unimpaired. 26 (AR 542.) From November 2008 through July 2009 Dr. Hong continued to 27 see Plaintiff approximately once a month. (AR 520-33.) During 28 those sessions she noted that Plaintiff continued to suffer from 8 1 anxiety and depression and reported feeling sad (AR 532), 2 isolative (AR 528), down on [him]self, down about life, and 3 down thinking about human nature (AR 523, 525-26), and he spent 4 a lot of time watching television instead of socializing (AR 521, 5 526). She also noted that as those sessions continued, Plaintiff 6 generally improved: feels meds have been helpful overall, mood 7 is less depressed (AR 529) (Jan. 17, 2009); Plaintiff 8 cont[inues] to feel better, less anxious (AR 528) (Feb. 7, 9 2009); Plaintiff states he has been feeling OK . . . better 10 recently and feels Lexapro is helpful (AR 526) (Mar. 8, 2009); 11 Plaintiff reports he is doing well, has 0 problems [with] 12 sleep/appetite/energy and 0 problems [with] meds (AR 525) 13 (Mar. 28, 2009); Plaintiff states that he has been doing fairly 14 well, 0 acute issues, continued to have 0 problems [with] 15 sleep/appetite/energy and 0 problems [with] meds (AR 523) 16 (Apr. 26, 2009); Plaintiff states that in general [he is] doing 17 well and feels meds have been helpful for mood/anxiety, 18 denies overt depression and sleep/appetite/energy [are] 19 intact, and he suffered no side effects from his medications (AR 20 522) (May 21, 2009); Plaintiff states he has been doing fairly 21 well and denies depressed mood, denies problems [with] 22 sleep/appetite/energy (AR 521) (June 21, 2009); and Plaintiff 23 started on Lexapro, has since shown improvement in mood and 24 anxiety (AR 520) (July 26, 2009). During all of those sessions, 25 Plaintiff s mood was noted as better, good, or OK and his 26 affect was always noted as euthymic. 27 (AR 520-29.) On July 26, 2009, Dr. Hong wrote the following letter to 28 whom it may concern : 9 1 This letter is to state that Lawrence Henry is currently 2 a 3 appointments at this clinic since 11/22/08 on a monthly 4 basis. 5 ADHD. 6 with 7 spelling. 8 from events in his childhood. 9 psychiatric patient at our clinic. He has been attending Lawrence has a history of Learning Disorder, He had IEPs in the past secondary to his problems dyslexia, reading skills, comprehension, and He has a history of brain injury resulting diagnoses He also has several other including Major Depressive 10 Disorder, moderate, and Generalized Anxiety Disorder. 11 His symptoms include depressed mood, poor self-esteem, 12 social anxiety, chronic, generalized worrying. 13 taking Lexapro 15 mg po Qdaily [sic] to treat these 14 symptoms. 15 chronic back pain and has difficulty with prolonged 16 periods of standing; he takes Motrin for his pain. 17 Because of the culmination of all of these factors, I 18 feel that it would prove to be difficult for Lawrence to 19 find and maintain employment. He is I also understand that he has a history of 20 (AR 519.) 21 From August 2009 until April 2010, Plaintiff continued to go 22 to the Van Nuys clinic, where he was seen by Dr. Willmer. 23 Similarly to Dr. Hong, Dr. Willmer noted that Plaintiff continued 24 to suffer from depression and anxiety, and his mood during their 25 first three sessions was guarded and dysthymic. (AR 513-18.) 26 But Dr. Willmer also noted that Plaintiff reported he was doing 27 good, life is fine (AR 517), and during their later sessions he 28 was casual, engaged, conversant, smiling/laughing, [and] 10 1 pleasant (AR 513). In November 2009 Plaintiff reported that he 2 felt the Lexapro was not working, and in February 2010 Plaintiff 3 reported that his anxiety had increased after he stopped taking 4 his medications for a few weeks. (AR 514-15.) In April 2010, 5 however, Dr. Willmer noted that Plaintiff would like to 6 [increase] Lexapro to help with his symptoms, and he described 7 Plaintiff s depression as mild and his anxiety disorder as 8 stable. 9 (AR 513.) On May 15, 2008, medical consultant Dr. Greta Johnson issued 10 a Mental Residual Functional Capacity Assessment. (AR 409.) In 11 it, she found Plaintiff moderately limited in the ability to 12 understand and remember detailed instructions, carry out 13 detailed instructions, maintain attention and concentration for 14 extended periods, perform activities within a schedule, 15 maintain regular attendance, and be punctual within customary 16 tolerances, complete a normal workday and workweek without 17 interruptions from psychologically based symptoms and to perform 18 at a consistent pace without an unreasonable number and length of 19 rest periods, accept instructions and respond appropriately to 20 criticism from supervisors, and respond appropriately to 21 changes in the work setting. (AR 409-10.) In all other 22 categories, Dr. Johnson found that Plaintiff was not 23 significantly limited. (Id.) She also found that Plaintiff 24 has adequate function to do [simple repetitive tasks]. (AR 25 411.) 26 During the June 14, 2010 hearing, the ALJ took testimony 27 from Dr. Borden, who had reviewed the record. She testified that 28 Plaintiff had the following impairments: borderline intellectual 11 1 functioning, a history of depression that recently has been 2 treated as a recurrent, moderate, major depressive disorder, 3 generalized anxiety disorder, and a history of learning 4 disorder and attention deficit, hyperactivity disorder, with no 5 recent treatment for the ADHD. (AR 573.) She further testified 6 that Plaintiff s impairments either individually or in 7 combination did not meet or equal an impairment in the Listing, 8 but they did create functional limitations. (Id.) Specifically, 9 Dr. Borden noted the following limitations: 10 The Claimant is unable to remember and carry out detailed 11 instructions. 12 impairment in social interaction. 13 able to have a brief, casual contact with supervisors and 14 co-workers, but not with [the] public. The Claimant would have a significant The Claimant would be 15 (AR 573-74.) 16 17 3. Analysis Plaintiff asserts that the ALJ erred in not properly 18 crediting Dr. Hong s July 26, 2009 opinion that it would prove 19 to be difficult for [Plaintiff] to find and maintain employment. 20 (J. Stip. at 3-17.) As an initial matter, it is not at all clear 21 that Dr. Hong s note indicated that Plaintiff was unable to work. 22 She stated only that Plaintiff would have a difficult time 23 finding and maintaining work; she did not state that it was 24 impossible for him to work or even that he should be precluded 25 from performing specific types of work. Thus, the ALJ could have 26 taken the letter into account and still found Plaintiff able to 27 work. Indeed, the ALJ agreed with Dr. Hong s diagnosis of 28 anxiety and depression as well as a history of learning disorder 12 1 and ADHD. 2 (AR 18, 519.) Moreover, consistent with Dr. Hong s and Dr. Willmer s 3 treatment notes, the ALJ correctly noted that despite Plaintiff s 4 conditions he admitted he was feeling well or fine and doing 5 better, he stated that he had shown improvement in mood and 6 anxiety due to therapy and medications, and he denied any 7 problems with sleep, appetite or energy. (AR 21.) The ALJ also 8 correctly noted that Dr. Hong s letter made no specific residual 9 functional capacity assessment, and the clear progress and 10 improvement [Plaintiff] has made with treatment is not taken into 11 account in her work determination.1 (Id.) To the extent Dr. 12 Hong s letter failed to recognize Plaintiff s improvement, it was 13 appropriate for the ALJ to discount it on that basis. See 14 Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2005) (ALJ may 15 reject treating physician s assessment of plaintiff s limitations 16 when physician s notes and other recorded observations contradict 17 assessment). He was also entitled to reject it because the 18 statement concerning work was brief and conclusory. See Batson, 19 359 F.3d at 1195; Thomas, 278 F.3d at 957. 20 The Court must consider the ALJ s decision in the context of 21 the entire record as a whole, and if the evidence is 22 susceptible to more than one rational interpretation, the ALJ s 23 decision should be upheld. Ryan v. Comm r of Soc. Sec., 528 24 F.3d 1194, 1198 (9th Cir. 2008) (internal quotation marks 25 26 27 28 1 The ALJ incorrectly stated that the letter was dated July 26, 2008. (AR 21.) It was dated July 26, 2009. The date the ALJ gave appears to be a typographical error and is harmless. See Stout v. Comm r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) (nonprejudicial or irrelevant mistakes harmless). 13 1 omitted). Plaintiff selectively points out places in the 2 treatment notes where Plaintiff complained of ongoing depression 3 and anxiety (see J. Stip. at 7-9), but read in the context of the 4 record as a whole, Plaintiff s symptoms clearly were controllable 5 with medication, he showed improvement over time, and the ALJ 6 reasonably found that his limitations did not completely prevent 7 him from being able to work. 8 Plaintiff further argues that the ALJ erred in rejecting Dr. 9 Johnson s opinion, which he alleges was consistent with the 10 opinions expressed by Dr. Hong. (J. Stip. at 11.) But the 11 ALJ s RFC limiting Plaintiff to no work requiring more than 12 simple repetitive tasks, no more than brief and casual contact 13 with coworkers and supervisors, and no being responsible for 14 the safety of others is in fact consistent with Dr. Johnson s 15 evaluation that Plaintiff was moderately limited in certain 16 functions, such as remembering detailed instructions and 17 interacting with the public. (AR 409-10.) Nowhere did Dr. 18 Johnson find that Plaintiff was incapable of working; to the 19 contrary, like the ALJ, she found that Plaintiff was capable of 20 performing simple, repetitive tasks. (See AR 411 (finding 21 Plaintiff has adequate function to do SRT ); AR 23 (finding 22 Plaintiff can perform no work requiring more than simple 23 repetitive tasks ).) 24 Plaintiff also argues that the ALJ erred in reject[ing] the 25 opinions and assessments of Dr. Hong in favor of the . . . 26 testimony of the medical advisor, Dr. Borden. (J. Stip. at 12.) 27 As noted above, however, the ALJ did not reject Dr. Hong s 28 opinions his assessment of Plaintiff s abilities was consistent 14 1 with them. Moreover, the ALJ did not err in giving Dr. Borden s 2 opinion significant weight because, as the ALJ correctly noted, 3 it was well supported by the evidence. (AR 23.) Like Dr. 4 Hong, Dr. Borden recognized that Plaintiff had borderline 5 intellectual functioning, major depression, generalized anxiety 6 disorder, and a history of learning disorders and ADHD. 7 AR 573 with AR 519.) (Compare Like Dr. Johnson, Dr. Borden also 8 recognized that because of his disorders, Plaintiff would have 9 difficulty following detailed instructions and interacting with 10 the public but could perform simple, repetitive tasks. 11 AR 573 with AR 409-11.) (Compare If anything, Dr. Borden s assessment of 12 Plaintiff s capacities may have been more restrictive than Dr. 13 Johnson s, because Dr. Borden found Plaintiff would have a 14 significant impairment in social interaction, whereas Dr. 15 Johnson found that Plaintiff was only moderately limited in 16 certain social abilities. (See AR 573, 409-10.) Dr. Borden s 17 opinion was also consistent with the other medical opinions of 18 record. (See, e.g., AR 468 (Dr. Yang, noting that Plaintiff s 19 ability to perform simple tasks was unimpaired ); AR 464 (Dr. 20 Colonna, noting that Plaintiff can understand, remember, and 21 carry out short and simplistic instructions without 22 difficulty ).) 23 Plaintiff contends that Dr. Borden s testimony was also not 24 reliable because she was unable to hear all of the testimony 25 presented during the hearing and was also not familiar with the 26 standard deviation scoring for the sub-scales for the WAIS III 27 IQ test. (J. Stip. at 13-17.) Plaintiff fails to demonstrate 28 how either of these contentions is true or relevant. 15 First, the 1 only information Dr. Borden said she had difficulty hearing was 2 Plaintiff s statement that he picked up his work at the West 3 Valley Occupational Center and completed it at home, rather than 4 attending classes in person. (AR 584.) The ALJ subsequently 5 clarified that information for Dr. Borden, and she stated that it 6 did not change her opinion. (AR 585.) Plaintiff does not 7 identify what additional information he alleges Dr. Borden failed 8 to hear or how it may have affected her opinion. Indeed, the 9 doctor answered most of the questions without asking for them to 10 be repeated, indicating that in general she could hear. 11 e.g., AR 573-80.) (See, Second, as to Plaintiff s contention regarding 12 the IQ scores, it is not clear from the transcript that Dr. 13 Borden testified incorrectly; Plaintiff s counsel s questions 14 were unclear (see, e.g., AR 576-79), and any misstatements Dr. 15 Borden may have made were likely in response to Plaintiff s 16 counsel s confusing line of questioning, which the ALJ 17 interrupted several times to clarify (AR 575, 578). Moreover, 18 because Plaintiff does not contest the ALJ s finding that his IQ 19 does not meet an impairment in the Listing (see AR 19; J. Stip. 20 at 13-17), it is unclear how the standard deviation of his IQ 21 scores is relevant. 22 Thus, the ALJ did not err in relying on Dr. Borden s 23 testimony. See Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th 24 Cir. 2001) (opinion of nonexamining medical expert may 25 constitute substantial evidence when it is consistent with other 26 independent evidence in the record ). 27 warranted on this basis. 28 16 Reversal is therefore not 1 2 3 B. The ALJ Did Not Improperly Discount Plaintiff s Subjective Symptom Testimony Plaintiff next argues that the ALJ erred in determining 4 Plaintiff s credibility because his opinion included only a 5 generic discussion of the factors which are utilized in a 6 credibility finding but no statement that the Claimant is or is 7 not credible. (J. Stip. at 25-30.) Reversal is not warranted 8 on this basis, however, because the ALJ made specific findings as 9 to Plaintiff s credibility that were consistent with the medical 10 evidence of record. 11 12 1. Applicable law An ALJ s assessment of pain severity and claimant 13 credibility is entitled to great weight. See Weetman v. 14 Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. Heckler, 779 15 F.2d 528, 531 (9th Cir. 1986). When the ALJ finds a claimant s 16 subjective complaints not credible, the ALJ must make specific 17 findings that support the conclusion. 18 F.3d 1228, 1234 (9th Cir. 2010). See Berry v. Astrue, 622 Absent affirmative evidence of 19 malingering, the ALJ must give clear and convincing reasons for 20 rejecting the claimant s testimony. Lester, 81 F.3d at 834. At 21 the same time, the ALJ is not required to believe every 22 allegation of disabling pain, or else disability benefits would 23 be available for the asking, a result plainly contrary to 42 24 U.S.C. § 423(d)(5)(A). Molina v. Astrue, 674 F.3d 1104, 1112 25 (9th Cir. 2012) (internal quotation marks and citation omitted). 26 If the ALJ s credibility finding was supported by substantial 27 evidence in the record, the reviewing court may not engage in 28 second-guessing. Thomas, 278 F.3d at 959. 17 1 2 2. Relevant facts At the hearing, Plaintiff testified that he attended high 3 school through the 11th grade and almost finished but did not 4 because [t]he work was very difficult, and I couldn t function 5 very well. (AR 559.) He stated that he was currently trying 6 to get my GED through different kind of programs but was not 7 presently enrolled because the classes at the program he wished 8 to attend were full. (AR 560, 569.) He testified that he lived 9 at home and during the day he just sit[s] down a lot and 10 [doesn t] really do anything. (AR 561.) He stated that he did 11 not have friends or socialize because he didn t have good social 12 skills, but he sometimes left the house on his own and took 13 the bus to go to fast food restaurants. (AR 561-62.) He also 14 ran regular errands with his mother and tried to help with 15 chores, but I get sort of frustrated when I try to do some of 16 the chores and I can t do it right. (AR 563.) He stated he 17 could do a little sweeping a little bit but standing up is 18 very difficult for me. (Id.) Plaintiff testified that he spent 19 his time sometimes listening to classical music, watching 20 television, and reading, although he was not able to read very 21 well. (AR 563-64.) He stated that in the past he tried to apply 22 for grocery jobs but the stores were not hiring and it was 23 difficult for him to fill out the applications by himself on a 24 computer. (AR 565.) 25 In his written opinion, the ALJ noted that Plaintiff 26 testified that he was in special education while in 27 school and only finished the 11th grade. 28 working on trying to obtain a GED. 18 He is still So far, he has not 1 been successful. 2 looked for work but it was difficult filling out the 3 applications. 4 received services from the Regional Center but only 5 through the 5th grade when they were told he did not need 6 additional services. 7 (AR 20.) He lives with his mother. He has The claimant s mother testified that he The ALJ then summarized the medical evidence of record, 8 noting that it showed Plaintiff had borderline intellectual 9 functioning and had been diagnosed with ADHD, oppositional10 defiant disorder, anxiety disorder, and various depressive 11 disorders. Consistent with the medical evidence, as (Id.) 12 outlined above, the ALJ further noted that Plaintiff s depression 13 and anxiety showed improvement over time with counseling and 14 medication, many of the treatment notes in the record showed that 15 Plaintiff often reported he was doing well and his mood appeared 16 normal, and several doctors had opined that Plaintiff was capable 17 of performing simple, repetitive tasks. 18 (AR 21.) Regarding Plaintiff s alleged physical limitations, the ALJ 19 wrote: 20 The remaining evidence shows that for the past few years 21 the 22 treatment for asthma, low back pain, and various minor 23 ailments [(AR 545-50)]. 24 doing well by his primary care physician on July 14, 2009 25 [(AR 547)]. 26 described 27 frequency. 28 December 13, 2007 by Jagvinder Singh, M.D. noted that claimant has received occasional conservative Notably, he was described as His asthma attacks and low back pain were as being A only occasional consultative 19 internal in nature examination and on 1 although the claimant gave a history of scoliosis there 2 were no physical signs or limitations discernible [(AR 3 458)]. 4 full range of medium work. 5 (AR 22.) 6 Dr. Singh felt that the claimant could perform a Plaintiff does not challenge these findings. After reciting the standards applicable to an ALJ s 7 credibility finding, the ALJ made the following determination: 8 The 9 claimant s level of mental and emotional functioning has 10 significantly improved since the most recent favorable 11 determination. 12 borderline 13 anxiety 14 medication and therapy. His symptoms have only increased 15 when he was non-compliant with treatment. In addition to 16 the level of functioning noted by Dr. Colonna cited 17 above, the claimant also told Dr. Yang that he was able 18 to do some household chores, errands, shopping, cooking, 19 go places alone, visit with family and friends, and 20 perform 21 467)]. 22 to 23 multifaceted questions. 24 that the record supports claimant s ability to perform 25 simple repetitive tasks involving no more than brief and 26 casual contact with coworkers and supervisors, and no 27 contact with the general public. 28 this opinion significant weight as it is well supported above all discussed evidence Although intellectual and all claimant functioning depression self-care the demonstrates have activities the still has symptoms of responded his clearly that to independently [(AR At the hearing, the claimant was able to respond questions put to him at the hearing, even The medical expert testified 20 The undersigned gives 1 by the evidence. 2 functioning, there is insufficient objective evidence to 3 support the claimant s allegation of scoliosis despite 4 his occasional complaints of low back pain. 5 even if claimant were limited to light or sedentary work 6 because of such condition, a substantial number of the 7 jobs identified by the vocational expert could still be 8 performed, per his testimony. 9 would only be subject to environmental restrictions 10 relating to his asthma condition as determined by the 11 State Agency consultant [(AR 401-08)]. Regarding the claimant s physical However, The claimant otherwise 12 (AR 23.) 13 14 3. Analysis Reversal is not warranted based on the ALJ s alleged failure 15 to make proper credibility findings or properly consider 16 Plaintiff s subjective symptoms. The ALJ made several specific 17 findings supporting his evaluation of Plaintiff s subjective 18 symptoms. As noted above, the record showed that Plaintiff s 19 mental impairments did not limit his ability to perform simple, 20 repetitive tasks; they improved over time with counseling and 21 medication; and they got worse only when Plaintiff stopped taking 22 his medication. As an initial matter, the ALJ did not 23 necessarily reject Plaintiff s testimony, because his decision is 24 largely consistent with it and he never expressly stated that he 25 did not find Plaintiff credible, either in whole or in part. 26 Plaintiff did not testify that he was incapable of working. 27 Rather, he testified that he was trying to get his GED 28 indicating that he was capable of learning and doing schoolwork 21 1 independently and he was able to leave the house on his own to 2 go to fast food restaurants, do simple chores around the house, 3 and run errands with his mother. (AR 559-63.) He also testified 4 that he tried to apply for jobs, indicating that he was capable 5 and willing to work, and the only reason he did not pursue those 6 jobs was that he had trouble filling out the applications on a 7 computer. (AR 565.) The ALJ s RFC finding that Plaintiff was 8 capable of performing simple, repetitive tasks appears consistent 9 with Plaintiff s testimony.2 10 Moreover, to the extent Plaintiff s testimony conflicted 11 with the medical evidence, the ALJ properly discounted it. See, 12 e.g., 20 C.F.R. § 416.929(c)(4)(iv) (ALJ may consider 13 effectiveness of medication in evaluating severity and limiting 14 effects of an impairment); SSR 96-7p, 1996 WL 374186, at *6 15 ( medical signs and laboratory findings that . . . demonstrate 16 worsening or improvement of the underlying medical condition . . 17 . may also help an adjudicator to draw appropriate inferences 18 about the credibility of an individual s statements ); 19 Tonapetyan, 242 F.3d at 1148 (credibility determination based on, 20 among other things, plaintiff s tendency to exaggerate proper 21 when supported by substantial evidence ); Johnson v. Shalala, 60 22 F.3d 1428, 1434 (9th Cir. 1995) (holding that contradictions 23 2 To the extent Plaintiff s second argument can be 24 interpreted as challenging the ALJ s rejection of Plaintiff s 25 mother s testimony (see J. Stip. at 28-29 (discussing Plaintiff s 26 27 28 mother s testimony); but see J. Stip. at 3, 25 (framing second issue as whether the ALJ erred in determining the credibility of the Plaintiff (emphasis added)), she testified only that Plaintiff no longer received services from Regional Center because they said he didn t need it anymore. (AR 572.) The ALJ s findings are not inconsistent with her testimony. 22 1 between claimant s testimony and the relevant medical evidence 2 provided clear and convincing reasons for ALJ to reject 3 plaintiff s subjective symptom testimony). 4 The ALJ noted that the record showed Plaintiff was able to 5 do some household chores, errands, shopping, cooking, go places 6 alone, visit with family and friends, and perform all self-care 7 activities independently. (AR 23.) This observation was 8 consistent with the evidence of record (see AR 460 (noting 9 Plaintiff states that he is depressed because his friends are 10 all gone ); 467-68 (noting Plaintiff is able to eat, dress and 11 bathe independently, is able to do some household chores, 12 errands, shopping and cooking, manages his own money, and 13 visits with family and friends, and gets along adequately with 14 others ), and the ALJ was entitled to rely on that evidence in 15 rejecting Plaintiff s testimony that he did not engage in those 16 activities to the extent that testimony implied Plaintiff was 17 unable to do so. See Valentine v. Comm r, Soc. Sec. Admin., 574 18 F.3d 685, 693 (9th Cir. 2009) (ALJ properly considered claimant s 19 daily activities in finding claimant s claims about the severity 20 of his limitations were exaggerated ). The ALJ was also entitled 21 to rely on his personal observations that [a]t the hearing, the 22 claimant was able to respond to all questions put to him . . . 23 even multifaceted questions. (AR 23); see Thomas, 278 F.3d at 24 960 (ALJ properly relied on claimant s demeanor at the hearing 25 in rejecting her credibility); SSR 96-7p, 1996 WL 374186, at *5 26 ( [T]he adjudicator may also consider his or her own recorded 27 observations of the individual as part of the overall evaluation 28 of the credibility of the individual s statements. ). 23 1 Although Plaintiff does not appear to challenge the ALJ s 2 finding regarding the effects of his scoliosis and back pain, to 3 the extent he does, substantial evidence in the record supported 4 the ALJ s finding that Plaintiff s alleged scoliosis and back 5 problems were not disabling. (AR 22-23; see AR 458 (noting no 6 physical signs or limitations of scoliosis), 468 (noting that 7 Plaintiff tries to exercise and play basketball ).) Moreover, 8 the ALJ correctly noted that even if Plaintiff were limited to 9 light or sedentary work because of his scoliosis, there were 10 ample jobs in the regional or national economy that he could 11 perform. (AR 23; see AR 589-90.) Thus, even if the ALJ erred in 12 holding that Plaintiff s scoliosis did not prevent him from 13 performing all levels of work, the error was harmless. See Stout 14 v. Comm r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) 15 (nonprejudicial or irrelevant mistakes harmless). 16 Plaintiff appears to fault the ALJ for not specifically 17 writing the words the claimant is not credible because . . . 18 (see J. Stip. at 27 ( without a statement that the Claimant 19 either is or is not credible, this is not a proper credibility 20 analysis ), but as long as the ALJ s analysis of the evidence was 21 supported by the record, to the extent the ALJ rejected 22 Plaintiff s testimony he need not recite any magic words in 23 doing so. See Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 24 1989) (ALJ need not recite the magic words, I reject, for 25 reviewing court to draw inference from ALJ s decision that ALJ 26 rejected particular evidence). Because the ALJ s evaluation of 27 Plaintiff s subjective symptom testimony was supported by 28 substantial evidence in the record, reversal is not warranted on 24 1 this basis. 2 C. The ALJ Did Not Improperly Discount the Combined 3 Effects of Plaintiff s Impairments in Formulating the 4 RFC 5 Plaintiff s final contention is that the ALJ erred by not 6 properly addressing the combined effects of all of Plaintiff s 7 impairments. (J. Stip. at 36-38.) Specifically, Plaintiff 8 contends that the ALJ did not consider his anxiety in formulating 9 the RFC and did not take into account Dr. Johnson s opinion that 10 he was moderately limited in the ability to understand and 11 remember detailed instructions, carry out detailed 12 instructions, maintain attention and concentration for extended 13 periods, perform activities within a schedule, maintain regular 14 attendance, and be punctual within customary tolerances, 15 complete a normal workday and workweek without interruptions 16 from psychologically based symptoms and to perform at a 17 consistent pace without an unreasonable number and length of rest 18 periods, accept instructions and respond appropriately to 19 criticism from supervisors, and respond appropriately to 20 changes in the work setting. (Id.; AR 409-10.) Reversal is not 21 warranted on this basis because the ALJ s RFC took Plaintiff s 22 anxiety into account and was consistent with Dr. Johnson s 23 diagnosis. 24 In conducting an RFC assessment, the ALJ must consider the 25 combined effects of an applicant s medically determinable 26 impairments on the applicant s ability to perform sustainable 27 work. 42 U.S.C. § 423(d)(2)(B); Macri v. Chater, 93 F.3d 540, 28 545 (9th Cir. 1996). The ALJ must consider all of the relevant 25 1 medical opinions as well as the combined effects of all of the 2 plaintiff s impairments, even those that are not severe. 20 3 C.F.R. § 416.945(a); Celaya v. Halter, 332 F.3d 1177, 1182 (9th 4 Cir. 2003). [A]n RFC that fails to take into account a 5 claimant s limitations is defective. 6 690. Valentine, 574 F.3d at The ALJ must determine a claimant s limitations on the 7 basis of all relevant evidence in the record. Robbins, 466 8 F.3d at 883. 9 As noted above, the ALJ s RFC finding was consistent with 10 the medical evidence of record. The ALJ specifically recognized 11 that Plaintiff had been diagnosed with a generalized anxiety 12 disorder (AR 18), and he took that into account by limiting 13 Plaintiff to performing simple repetitive tasks, no more than 14 brief and casual contact with coworkers and supervisors, and no 15 being responsible for the safety of others (AR 20). The ALJ s 16 RFC finding was also consistent with Dr. Johnson s diagnosis 17 because, as outlined above, it accounted for Plaintiff s 18 moderate limitations in social functioning and the ability to 19 complete complex tasks by limiting Plaintiff to only brief and 20 casual contact with others and restricting him to performing 21 only simple, repetitive tasks. Moreover, as noted above, Dr. 22 Johnson did not find Plaintiff incapable of working to the 23 contrary, like the ALJ, she found Plaintiff was capable of 24 performing simple, repetitive tasks. (See AR 411.) To the 25 extent Plaintiff argues that the ALJ should have imposed further 26 restrictions in his RFC, the record does not support the 27 inclusion of any additional restrictions. See Rollins, 261 F.3d 28 at 857 ( Because the ALJ included all of the limitations that he 26 1 found to exist, and because his findings were supported by 2 substantial evidence, the ALJ did not err in omitting the other 3 limitations that [plaintiff] had claimed, but had failed to 4 prove. ). Reversal is therefore not warranted on this basis. 5 VI. CONCLUSION 6 Consistent with the foregoing, and pursuant to sentence four 7 of 42 U.S.C. § 405(g),3 IT IS ORDERED that judgment be entered 8 AFFIRMING the decision of the Commissioner and dismissing this 9 action with prejudice. IT IS FURTHER ORDERED that the Clerk 10 serve copies of this Order and the Judgment on counsel for both 11 parties. 12 13 DATED: _October 2, 2012__ 14 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 3 This sentence provides: The [district] court shall have 28 power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.

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