Nancy Ann Calvey v. Michael J Astrue, No. 2:2012cv00472 - Document 20 (C.D. Cal. 2013)
Court Description: MEMORANDUM OPINION AND ORDER AFFIRMING THE COMMISSIONER by Magistrate Judge Jean P Rosenbluth: (See document for details.) Consistent with the foregoing, and pursuant to sentence four of 42 U.S.C. 405(g), IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner and dismissing this action with prejudice. IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment on counsel for both parties. (rla)
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 NANCY ANN CALVEY, 10 Plaintiff, 11 12 13 vs. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 14 Defendant. 15 ) Case No. CV 12-0472-JPR ) ) ) MEMORANDUM OPINION AND ORDER ) AFFIRMING THE COMMISSIONER ) ) ) ) ) ) ) 16 17 I. PROCEEDINGS 18 Plaintiff seeks review of the Commissioner s final decision 19 denying her application for Social Security Supplemental Security 20 Income benefits ( SSI ). 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 October 29, 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 28 1 1 II. BACKGROUND 2 Plaintiff was born on September 26, 1957. 3 Record ( AR ) 26.) (Administrative She has a 12th-grade education. (AR 28.) In 4 1999, Plaintiff worked as a housekeeper for approximately one 5 year. (AR 28.) She stopped working in 1999 because she was 6 homeless; she has not worked since. (AR 28-29.) On March 4, 7 2009, Plaintiff filed an application for SSI, alleging a 8 disability onset date of July 1, 2008. (AR 112.) Plaintiff 9 claimed to be disabled because of paranoid schizophrenia. (AR 10 122.) Her SSI application was initially denied on April 24, 11 2009. (AR 55-59) Plaintiff then requested reconsideration (AR 12 60), and on November 10, 2009, her application was denied again 13 (AR 61-65). 14 After Plaintiff s application was denied a second time, she 15 requested a hearing before an Administrative Law Judge ( ALJ ). 16 (AR 66-68.) A hearing was held on December 10, 2009, at which 17 Plaintiff, who was represented by counsel, testified on her own 18 behalf. (AR 22-52.) 19 testified. Vocational Expert ( VE ) Roxane Minkus also (AR 45-50.) On February 18, 2011, the ALJ issued a 20 written decision determining that Plaintiff was not disabled. 21 (AR 8-21.) On March 21, 2011, Plaintiff requested review of the 22 ALJ s decision denying benefits; she also submitted additional 23 medical evidence for the Appeals Council to review. 24 313-422.) (AR 5, 7, On November 22, 2011, the Appeals Council considered 25 the additional evidence but denied Plaintiff s request for 26 review. (AR 1-5.) This action followed. 27 III. STANDARD OF REVIEW 28 Pursuant to 42 U.S.C. § 405(g), a district court may review 2 1 the Commissioner s decision to deny benefits. The ALJ s findings 2 and decision should be upheld if they are free of legal error and 3 are supported by substantial evidence based on the record as a 4 whole. § 405(g); Richardson v. Perales, 402 U.S. 389, 401, 91 S. 5 Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971); Parra v. Astrue, 481 6 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means such 7 evidence as a reasonable person might accept as adequate to 8 support a conclusion. Richardson, 402 U.S. at 401; Lingenfelter 9 v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 10 a scintilla but less than a preponderance. It is more than Lingenfelter, 504 11 F.3d at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 12 882 (9th Cir. 2006)). To determine whether substantial evidence 13 supports a finding, the reviewing court must review the 14 administrative record as a whole, weighing both the evidence that 15 supports and the evidence that detracts from the Commissioner s 16 conclusion. 17 1996). Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. If the evidence can reasonably support either affirming 18 or reversing, the reviewing court may not substitute its 19 judgment for that of the Commissioner. Id. at 720-21. 20 IV. THE EVALUATION OF DISABILITY 21 People are disabled for purposes of receiving Social 22 Security benefits if they are unable to engage in any substantial 23 gainful activity owing to a physical or mental impairment that is 24 expected to result in death or which has lasted, or is expected 25 to last, for a continuous period of at least 12 months. 42 26 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 27 (9th Cir. 1992). 28 3 1 A. 2 The ALJ follows a five-step sequential evaluation process in The Five-Step Evaluation Process 3 assessing whether a claimant is disabled. 20 C.F.R. 4 § 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 5 1995) (as amended Apr. 9, 1996). In the first step, the 6 Commissioner must determine whether the claimant is currently 7 engaged in substantial gainful activity; if so, the claimant is 8 not disabled and the claim must be denied. § 416.920(a)(4)(i). 9 If the claimant is not engaged in substantial gainful activity, 10 the second step requires the Commissioner to determine whether 11 the claimant has a severe impairment or combination of 12 impairments significantly limiting her ability to do basic work 13 activities; if not, the claimant is not disabled and the claim 14 must be denied. § 416.920(a)(4)(ii). If the claimant has a 15 severe impairment or combination of impairments, the third step 16 requires the Commissioner to determine whether the impairment or 17 combination of impairments meets or equals an impairment in the 18 Listing of Impairments ( Listing ) set forth at 20 C.F.R., Part 19 404, Subpart P, Appendix 1; if so, disability is conclusively 20 presumed and benefits are awarded. § 416.920(a)(4)(iii). If the 21 claimant s impairment or combination of impairments does not meet 22 or equal an impairment in the Listing, the fourth step requires 23 the Commissioner to determine whether the claimant has sufficient 24 residual functional capacity ( RFC )1 to perform her past work; 25 if so, the claimant is not disabled and the claim must be denied. 26 27 28 1 RFC is what a claimant can still do despite existing exertional and nonexertional limitations. 20 C.F.R. § 416.945; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 4 1 § 416.920(a)(4)(iv). The claimant has the burden of proving that 2 she is unable to perform past relevant work. 3 1257. Drouin, 966 F.2d at If the claimant meets that burden, a prima facie case of 4 disability is established. Id. If that happens or if the 5 claimant has no past relevant work, the Commissioner then bears 6 the burden of establishing that the claimant is not disabled 7 because she can perform other substantial gainful work available 8 in the national economy. § 416.920(a)(4)(v). That determination 9 comprises the fifth and final step in the sequential analysis. 10 § 416.920; Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257. 11 B. 12 At step one, the ALJ found that Plaintiff had not engaged in The ALJ s Application of the Five-Step Process 13 any substantial gainful activity since March 4, 2009, the date of 14 her SSI application. (AR 13.) At step two, the ALJ concluded 15 that Plaintiff had the severe impairments of schizophrenia, 16 alcohol abuse, and methamphetamine abuse in remission. (Id.) 17 At step three, the ALJ determined that Plaintiff s impairments 18 did not meet or equal any of the impairments in the Listing. 19 13-14.) (AR At step four, the ALJ found that Plaintiff was able to 20 perform a full range of work at all exertional levels with the 21 following nonexertional limitations: 22 simple routine repetitive tasks, no fast-paced production 23 or assembly line requirements such as use of a conveyor 24 belt, capable of making simple work-related decisions, 25 works better with objects rather than people, but is not 26 precluded from working with people, and off task 10 27 percent of the day due to auditory hallucinations. 28 (AR 14.) Based on the VE s testimony, the ALJ concluded that 5 1 Plaintiff could perform her past relevant work of housekeeper. 2 (AR 17.) The ALJ also concluded in the alternative that other 3 jobs existed in significant numbers in the national economy that 4 Plaintiff could perform, although she did not specify what they 5 were. (Id.) Accordingly, the ALJ determined that Plaintiff was 6 not disabled. (AR 18.) 7 V. DISCUSSION 8 Plaintiff alleges that the Appeals Council erred by failing 9 to provide any analysis or relevant comment to the new evidence 10 Plaintiff submitted after the ALJ rendered her decision. 11 Stip. at 3.) (J. She also alleges that the ALJ erred in failing to 12 present a detailed complete hypothetical to the VE and in 13 evaluating Plaintiff s subjective symptom testimony. 14 at 3-4.)2 15 A. (J. Stip. None of these contentions warrant reversal. The Appeals Council s Denial of Review Is Not 16 Reviewable by this Court, and the New Evidence 17 Plaintiff Submitted Does Not Mandate Reversal 18 Plaintiff argues that the Appeals Council erred by failing 19 to articulate any specific analysis regarding the new evidence 20 she submitted after the ALJ s decision. 21 18.) 22 (J. Stip. at 11-14, 17- Reversal is not warranted on that basis. After the ALJ denied Plaintiff s application for benefits, 23 Plaintiff submitted to the Appeals Council on February 18, 2011, 24 86 pages of treatment records from Oasis Rehabilitation Center 25 and Oasis Crisis Services. (AR 339-422.) The records documented 26 27 28 2 The Court addresses the arguments raised in the Joint Stipulation in an order different from that used by the parties, for clarity and other reasons. 6 1 Plaintiff s treatment after being hospitalized pursuant to a 2 51503 admission in July 2009 (AR 340-68) and again in April 2011 3 (AR 369-422). The Appeals Council found no reason under our 4 rules to review the Administrative Law Judge s decision and 5 denied Plaintiff s request for review. (AR 1.) The Council 6 noted that it had received additional evidence which it is 7 making part of the record, but it did not otherwise discuss the 8 evidence. 9 (See AR 5.) The Court [does] not have jurisdiction to review a decision 10 of the Appeals Council denying a request for review of an ALJ s 11 decision, because the Appeals Council decision is a non-final 12 agency action. Brewes v. Comm r of Soc. Sec. Admin., 682 F.3d 13 1157, 1161 (9th Cir. 2012) (citing Taylor v. Comm r of Soc. Sec. 14 Admin., 659 F.3d 1228, 1231 (9th Cir. 2011)). Thus, to the 15 extent Plaintiff asks this Court to reverse the Appeals Council s 16 denial of review because the Council failed to provide its own 17 independent discussion of the new evidence, the Court lacks 18 jurisdiction to do so. 19 To the extent Plaintiff argues that the new evidence by 20 21 3 22 When any person, as a result of mental disorder, is a danger to others, or to himself or herself, or gravely disabled, a peace officer, member of the attending staff, as defined by regulation, of an evaluation facility designated by the county, designated members of a mobile crisis team provided by Section 5651.7, or other professional person designated by the county may, upon probable cause, take, or cause to be taken, the person into custody and place him or her in a facility designated by the county and approved by the State Department of Social Services as a facility for 72-hour treatment and evaluation. 23 24 25 26 27 28 California Welfare and Institutions Code § 5150 provides: 7 1 itself warrants remand of the ALJ s decision (see J. Stip. at 172 18), it does not. New and material evidence that is submitted 3 to and considered by the Appeals Council is not new but rather is 4 part of the administrative record properly before the district 5 court. Brewes, 682 F.3d at 1164; see also Tackett v. Apfel, 180 6 F.3d 1094, 1097 98 (9th Cir. 1999). The Court therefore must 7 consider that evidence when reviewing the Commissioner s final 8 decision for substantial evidence. Brewes, 682 F.3d at 1163 9 (citing Tackett, 180 F.3d at 1097-98). The additional evidence 10 from Oasis Rehabilitation Center and Oasis Crisis Services was 11 made part of the record by the Appeals Council, and therefore the 12 Court must consider it in determin[ing] whether, in light of the 13 record as a whole, the ALJ s decision was supported by 14 substantial evidence. 15 Brewes, 682 F.3d at 1163. The additional evidence from July 2009 documenting 16 Plaintiff s 5150 hospitalization and treatment related to the 17 period before the ALJ s February 18, 2011 decision, and therefore 18 it is material evidence. See id. at 1162 ( The Commissioner s 19 regulations permit claimants to submit new and material evidence 20 to the Appeals Council and require the Council to consider that 21 evidence in determining whether to review the ALJ s decision, so 22 long as the evidence relates to the period on or before the ALJ s 23 decision. (citation omitted)). Plaintiff argues that it 24 warrants reversal because it shows that her Global Assessment of 25 Functioning ( GAF ) score was 20 upon admission to the hospital 26 in July 2009 and 40 upon discharge, and her highest GAF score in 27 28 8 1 the past year was 45.4 (J. Stip. at 12.) But as discussed 2 more fully below, the July 2009 evidence was consistent with the 3 evidence before the ALJ, which showed that Plaintiff s symptoms 4 appeared to worsen only when she stopped taking her medications 5 and were well-controlled when she did take her medications. 6 (See AR 366.) Her low GAF score in July 2009, when she had not 7 taken her medications for almost two weeks (see AR 367), was 8 likely a reflection of that, as examinations performed at times 9 Plaintiff was compliant with her medications revealed fewer 10 symptoms (see AR 214-20, 367) and higher GAF scores (see AR 261). 11 Moreover, GAF scores [do] not have a direct correlation to the 12 severity requirements in the Social Security Administration s 13 mental disorders listings, and an ALJ may properly disregard a 14 low GAF score if other substantial evidence supports a finding 15 that the claimant was not disabled. See Doney v. Astrue, 485 F. 16 App x 163, 165 (9th Cir. 2012) (alterations and citations 17 omitted). Indeed, given the evidence in the record that 18 Plaintiff s functioning improved with treatment, the ALJ likely 19 would have disregarded the July 2009 GAF scores, as they were 20 assessed at a time Plaintiff was not taking her medications. The 21 July 2009 treatment records therefore do not warrant reversal of 22 the ALJ s decision. See Marin v. Astrue, No. CV 11 09331 AJW, 23 4 A GAF score of 20 self or 24 others, occasionally indicates [s]ome danger of hurtingpersonal fail[ing] to maintain minimal (J. Stip. 25 hygiene, or gross impairment in communication. 26 27 28 Attach. 1.) A GAF score of 40 indicates [s]ome impairment in reality testing or communication . . . OR major impairment in several areas, such as work or school, family relations, judgment, thinking or mood. (Id.) A GAF score of 45 indicates serious symptoms ([e.g.] suicidal ideation . . .) OR any serious impairment in social, occupational or school functioning. (Id.) 9 1 2012 WL 5381374, at *6 (C.D. Cal. Oct. 31, 2012) (declining to 2 reverse when new evidence submitted to Appeals Council does not 3 alter the conclusion that the ALJ s decision was supported by 4 substantial evidence in the record as a whole ); cf. Warner v. 5 Astrue, 859 F. Supp. 2d 1107, 1117 (C.D. Cal. 2012) (remanding 6 because there is a substantial likelihood the ALJ s 7 consideration of the additional evidence submitted to the Appeals 8 Council will materially alter the ALJ s disability analysis ). 9 The additional evidence from April 2011 also does not 10 warrant reversal because it postdated the ALJ s decision. 11 Although Plaintiff claims that it is relevant to the period on or 12 before the hearing date because the commitment occurred just 2 13 months after the decision (J. Stip. at 14), nothing in the 14 evidence contains a retrospective assessment of Plaintiff s 15 condition before the date of the ALJ s decision. 16 422.) (See AR 369- Indeed, Plaintiff does not point to any portions of the 17 April 2011 evidence that she contends retrospectively analyze her 18 condition. (See J. Stip. at 13-14, 17-18.) Thus, it is not 19 material evidence, and the Court must give it little weight in 20 reviewing the ALJ s decision. See 20 C.F.R. § 416.1470(b) ( [I]f 21 new and material evidence is submitted, the Appeals Council shall 22 consider the additional evidence only where it relates to the 23 period on or before the hearing date of the administrative law 24 judge hearing decision. ); cf. Smith v. Bowen, 849 F.2d 1222, 25 1225 (9th Cir. 1988) (holding that reports containing 26 observations made after the period for disability that 27 retrospectively analyze the claimant s pre-expiration condition 28 are relevant to assess the claimant s disability ). 10 1 B. 2 3 The ALJ Did Not Present an Improper Hypothetical to the VE Plaintiff contends that the ALJ erred in presenting a 4 hypothetical to the VE that assumed that Plaintiff would be off 5 task 10% of the day and in accepting the VE s testimony that 6 Plaintiff could nonetheless perform the job of housekeeper. 7 Stip. at 4-5.) (J. Plaintiff also argues that the ALJ erred because 8 she failed to obtain an explanation from the VE as to why any 9 employer would allow a schizophrenic suffering auditory 10 hallucinations to work in his or her home. 11 (J. Stip. at 5-6.) An ALJ must ask a hypothetical question to a VE that is 12 based on medical assumptions supported by substantial evidence in 13 the record and that reflects all the plaintiff s limitations. 14 Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 1995). If the 15 ALJ s hypothetical contained all of the limitations that the ALJ 16 found credible and supported by substantial evidence in the 17 record, the ALJ may properly rely on the testimony the VE gives 18 in response to the hypothetical in formulating an RFC assessment. 19 Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). 20 At the hearing, the ALJ posed the following hypotheticals to 21 the VE: 22 Q. . . . . Assume the existence of an individual who 23 is 51 years old as of the date of the Title XVI 24 application, has at least a high school education, 25 and a vocational background as a housekeeper in a 26 hotel. 27 no exertional limitations; however, due to a low 28 tolerance for stress, would be limited to simple, Further assume that such an individual has 11 1 routine, repetitive tasks, and a work environment 2 free 3 requirements, 4 However, such an individual would remain capable of 5 performing simple work making simple work-related 6 decisions. 7 work better with objects or things rather than 8 people, 9 precluded. 10 of fast-paced as production in use of or a assembly conveyor line belt. In addition, such an individual would but such interaction would not [be] Would such an individual be able to perform the claimant s past work? 11 A. Yes. 12 Q. Hypothetical two: assume an individual of the same 13 age, education, and vocational background as the 14 claimant with the limitations cited in hypothetical 15 one with the following addition[al] limitation. 16 Assume that such an individual would be off task 17 about 18 hallucinations. 19 to perform the claimant s past work? 10 percent of the day due to auditory Would such an individual be able 20 A. I think yes, with some erosion, yes. 21 Q. Okay, and what would that erosion be? 22 A. I would erode the job base approximately 20 23 percent. 24 occupations that accommodates some flexibility, as 25 long as the work is done at the end of the day. 26 I would simply erode about 20 percent. I do think that this is one of the So 27 (AR 45-47.) 28 The ALJ s hypothetical was supported by substantial evidence 12 1 in the record. To the extent Plaintiff claims that her RFC 2 should have been further restricted because of her schizophrenia 3 and auditory hallucinations, she does not cite to any evidence in 4 the record that would warrant imposing further restrictions. 5 (See J. Stip. at 6.) The record showed that, throughout 2009 and 6 2010, when Plaintiff took her medications her condition remained 7 stable and she exhibited appropriate mood, affect, speech, 8 appearance, and concentration. (See AR 214, 217, 314-19.) A 9 psychiatric evaluation performed in April 2009 by consulting 10 psychiatrist N. Haroun showed that Plaintiff had no restriction 11 of activities of daily living or difficulties maintaining social 12 functioning, and moderate difficulties in maintaining 13 concentration, persistence, or pace. (AR 302.) Dr. Haroun found 14 that Plaintiff was capable of understanding simple instructions, 15 performing simple tasks, and working with others. 16 07.) (See AR 304- Plaintiff and her boyfriend both reported that she was able 17 to follow instructions and respond to authority figures well. 18 (AR 139-40, 147-48.) The periods of time when Plaintiff s 19 symptoms worsened appear to be when she did not take her 20 medications (see AR 224-44 (detailing decline in mental health 21 status from September to December 2008 after Plaintiff stopped 22 meds ); AR 367 (July 2009 hospitalization notes, noting that 23 Plaintiff had run out of [medication] for approximately 10 to 14 24 days prior to admission, which was most likely responsible for 25 [her] increased agitation )); when Plaintiff took her 26 medications, her symptoms improved (see AR 214-20 (January to 27 March 2009, showing improved mental health status); AR 367 28 (noting that [a]t the time of discharge, after taking 13 1 medications, Plaintiff demonstrated adequate grooming [and] good 2 eye contact, was calm and less anxious and restless, had no 3 complaints of tremors or shakiness, and said auditory 4 hallucinations were significantly diminished and she felt 5 prepared to return home )). The ALJ was entitled to consider the 6 effectiveness of medication in controlling Plaintiff s symptoms 7 in formulating her RFC assessment. See 20 C.F.R. 8 § 416.929(c)(4)(iv) (ALJ may consider effectiveness of medication 9 in evaluating severity and limiting effects of an impairment); 10 Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (ALJ 11 may consider plaintiff s response to treatment in finding 12 plaintiff not disabled). The ALJ s hypothetical, which accounted 13 for her continuing schizophrenia symptoms by limiting her to 14 simple, routine, repetitive tasks and recognizing that she may be 15 distracted by auditory hallucinations a small percentage of the 16 time, was thus supported by substantial evidence. 17 The VE s response to the hypothetical was also proper. 18 Plaintiff argues that the VE s testimony that she could perform 19 the job of housekeeper despite being off task 10% of the day 20 conflicts with the Dictionary of Occupational Titles ( DOT ) 21 description of the housekeeper job, but she does not cite any 22 specific provisions of the DOT to support her argument. 23 Stip. at 5-6.) (See J. The DOT does not state that a housekeeper must be 24 on task 100% of the day. See DOT 323.687-014 (Cleaner, 25 Housekeeping), 1991 WL 672783. To the extent such a requirement 26 is implicit in the DOT, as Plaintiff seems to argue (J. Stip. 27 at 9-10), the VE s testimony was sufficient to resolve any 28 conflict. 14 1 When a VE provides evidence about the requirements of a job, 2 the ALJ has a responsibility to ask about any possible conflict 3 between that evidence and the DOT. See SSR 00-4p, 2000 WL 4 1898704, at *4; Massachi v. Astrue, 486 F.3d 1149, 1152-54 (9th 5 Cir. 2007) (holding that application of SSR 00-4p is mandatory). 6 An ALJ s failure to do so is procedural error, but the error is 7 harmless if no actual conflict existed or the VE provided 8 sufficient evidence to support the conclusion. 9 F.3d at 1154 n.19. Massachi, 486 The VE testified that the housekeeper 10 position accommodate[d] some flexibility, as long as the work is 11 done at the end of the day. 5 (AR 46-47.) Thus, to the extent a 12 conflict existed between the VE s testimony and the DOT with 13 respect to whether Plaintiff could perform the housekeeper job if 14 she was off task 10% of the day, the VE sufficiently resolved it. 15 The ALJ was entitled to rely on the VE s explanation. See 16 Bayliss, 427 F.3d at 1218 (holding that [a] VE s recognized 17 expertise provides the necessary foundation for his or her 18 testimony, and no additional foundation is required ). 19 Plaintiff s contention that no employer would hire a 20 housekeeper suffering from schizophrenia and auditory 21 22 5 Plaintiff appears to misapprehend the VE s use of the phrase 23 at the end of the day. She appears to interpret it as meaning 24 that Plaintiff would somehow have magically completed all her work at the conclusion of her eight-hour workday, even though she was 25 off task 10% of the time. 26 27 28 (See J. Stip. at 4.) Read in context, however, it is clear that the VE meant that Plaintiff could be off task for 10% of the day as long as the work is done at the end of the day, meaning as long as the work ultimately was completed before Plaintiff went home for the day. (See AR 46-47.) As noted, she further testified that housekeeping jobs allowed for such flexibility. (AR 46.) 15 1 hallucinations (J. Stip. at 6) is also not supported by the 2 record. Plaintiff does not cite any evidence or case law in 3 support of this argument. (See id.) Her own lay understanding 4 of what an employer might look for in hiring a housekeeper is 5 insufficient to support reversal of the ALJ s opinion. Moreover, 6 the VE considered the existence of auditory hallucinations and 7 found that it would erode the job base by 20% (AR 46-47), and 8 Plaintiff does not claim that an insufficient number of positions 9 remained (see J. Stip. at 5-6, 9-10). 10 In sum, because the ALJ s hypothetical to the VE was 11 supported by substantial evidence, reversal is not warranted on 12 this basis. 13 C. 14 Plaintiff asserts that the ALJ did not provide clear and The ALJ Did Not Err in Evaluating Plaintiff s Testimony 15 convincing reasons for rejecting her testimony as to the degree 16 of limitations of her impairment. (J. Stip. at 18-22, 24-25.) 17 Because the ALJ did provide clear and convincing reasons 18 supporting her evaluation of Plaintiff s testimony and they were 19 supported by substantial evidence in the record, reversal is not 20 warranted on this basis. 21 An ALJ s assessment of pain severity and claimant 22 credibility is entitled to great weight. See Weetman v. 23 Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. Heckler, 779 24 F.2d 528, 531 (9th Cir. 1986). [T]he ALJ is not required to 25 believe every allegation of disabling pain, or else disability 26 benefits would be available for the asking, a result plainly 27 contrary to 42 U.S.C. § 423(d)(5)(A). Molina v. Astrue, 674 28 F.3d 1104, 1112 (9th Cir. 2012) (internal quotation marks and 16 1 citation omitted). In evaluating a claimant s subjective symptom 2 testimony, the ALJ engages in a two-step analysis. 3 Lingenfelter, 504 F.3d at 1035-36. See First, the ALJ must 4 determine whether the claimant has presented objective medical 5 evidence of an underlying impairment [that] could reasonably be 6 expected to produce the pain or other symptoms alleged. 7 1036 (internal quotation marks omitted). Id. at If such objective 8 medical evidence exists, the ALJ may not reject a claimant s 9 testimony simply because there is no showing that the impairment 10 can reasonably produce the degree of symptom alleged. Smolen v. 11 Chater, 80 F.3d 1273, 1282 (9th Cir. 1996) (emphasis in 12 original). When the ALJ finds a claimant s subjective complaints 13 not credible, the ALJ must make specific findings that support 14 the conclusion. 15 Cir. 2010). See Berry v. Astrue, 622 F.3d 1228, 1234 (9th Absent affirmative evidence of malingering, those 16 findings must provide clear and convincing reasons for 17 rejecting the claimant s testimony. Lester, 81 F.3d at 834. If 18 the ALJ s credibility finding is supported by substantial 19 evidence in the record, the reviewing court may not engage in 20 second-guessing. Thomas v. Barnhart, 278 F.3d 947, 959 (9th 21 Cir. 2002). 22 At the hearing, Plaintiff testified that she last worked as 23 a housekeeper in 1999 and stopped working after that because she 24 became homeless and it was kind of hard to work. (AR 28.) 25 She testified that her typical day consisted of staying home6 and 26 27 28 6 At the time of the hearing Plaintiff was not homeless, as she lived with her boyfriend in a house and had been with him off and on, for about 14 years. (AR 26, 142.) 17 1 watching television and that she went to the grocery store 2 approximately once every three days; she was able to get around 3 by riding a bicycle or using public transportation. (AR 29-30.) 4 She testified that she had no difficulty attending to her 5 personal needs or doing housekeeping, and she did the grocery 6 shopping and cooking for the household. (AR 30-31.) She claimed 7 that she was unable to work because of a lack of concentration 8 and hearing voices that confused her. (AR 33.) She stated 9 that she heard voices every day and that sometimes she had 10 trouble going out in public because she thought people were 11 talking about her. 12 (AR 34, 43-44.) On March 26, 2009, Plaintiff filled out an Adult Function 13 Report stating that her daily activities included making coffee 14 and breakfast in the morning, showering, going for a bike ride, 15 watching TV, cleaning the house, watering plants, and cooking 16 lunch and dinner. (AR 142.) She stated that because of hearing 17 voices she was unable to think straight or do chores without 18 interruption from the voices, but she noted that she could get 19 around, take care of shopping and personal needs, and manage 20 money on her own. (AR 143-45.) She stated that she did not go 21 out [too] much now because [s]ometimes I think people are 22 talking about me. (AR 147.) She stated that her ability to 23 follow written and spoken instructions and interact with 24 authority figures was good, but she did not handle stress or 25 changes in routine well. (AR 147-48.) Her boyfriend, Henry 26 Gonzalez, filled out a third-party report, giving substantially 27 similar answers. 28 (AR 134-41.) In her written opinion, the ALJ found that to the extent 18 1 Plaintiff claimed that her ability to work was more restricted 2 than the ALJ found, it was not credible. (AR 16-17.) The ALJ 3 provided a detailed summary of the evidence of record, noting 4 that substantial evidence showed that Plaintiff had no trouble 5 caring for herself, getting around town, or performing household 6 chores; her symptoms improved when she was compliant with 7 prescribed medications; and the times when Plaintiff s symptoms 8 worsened corresponded to times when she was noncompliant with her 9 medications. 10 (AR 15-16.) Reversal is not warranted based on the ALJ s alleged failure 11 to make proper credibility findings or properly consider 12 Plaintiff s subjective symptoms. Contrary to Plaintiff s 13 arguments, the ALJ provided specific reasons for rejecting 14 Plaintiff s credibility: substantial medical evidence showed that 15 her symptoms were well controlled with medication, and her daily 16 activities were inconsistent with the level of disability she 17 alleged. 18 (Id.) Substantial evidence supports the ALJ s findings. As noted 19 above, the record showed that, throughout 2009 and 2010, when 20 Plaintiff took her medications her condition remained stable 21 and she exhibited appropriate mood, affect, speech, appearance, 22 and concentration. (See AR 214, 217, 314-19.) The psychiatrist 23 who examined Plaintiff concluded that she had the residual 24 functional capacity to perform simple, repetitive tasks. 25 302.) (AR Indeed, no doctor ever concluded that Plaintiff was unable 26 to work. Plaintiff herself admitted that she had no trouble 27 following instructions and interacting with authority figures, 28 and her boyfriend said the same. 19 (AR 139-40, 147-48.) 1 Plaintiff s symptoms appeared to worsen only when she did not 2 take her medications (see AR 224-44, 367), and when she then took 3 her medications, her symptoms improved (see AR 214-220, 367). 4 The ALJ s evaluation of Plaintiff s subjective symptom testimony 5 was therefore proper. See, e.g., 20 C.F.R. § 416.929(c)(4)(iv) 6 (ALJ may consider effectiveness of medication in evaluating 7 severity and limiting effects of an impairment); SSR 96-7p, 1996 8 WL 374186, at *6 ( medical signs and laboratory findings that . . 9 . demonstrate worsening or improvement of the underlying medical 10 condition . . . may also help an adjudicator to draw appropriate 11 inferences about the credibility of an individual s statements ); 12 Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995) (holding 13 that contradictions between claimant s testimony and the 14 relevant medical evidence provided clear and convincing reason 15 for ALJ to reject plaintiff s subjective symptom testimony). 16 The ALJ s finding that Plaintiff s testimony conflicted with 17 her daily activities was also proper. Although it is true that 18 one does not need to be utterly incapacitated in order to be 19 disabled, Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 20 2001), the extent of Plaintiff s activities here supports the 21 ALJ s finding that Plaintiff s reports of her impairment were not 22 fully credible. See Bray v. Comm r of Soc. Sec. Admin., 554 F.3d 23 1219, 1227 (9th Cir. 2009); Curry v. Sullivan, 925 F.2d 1127, 24 1130 (9th Cir. 1990) (finding that claimant s ability to take 25 care of her personal needs, prepare easy meals, do light 26 housework and shop for some groceries . . . may be seen as 27 inconsistent with the presence of a condition which would 28 preclude all work activity ) (citing Fair v. Bowen, 885 F.2d 597, 20 1 604 (9th Cir. 1989)). The ALJ properly noted that Plaintiff s 2 ability to do such daily activities as cooking, cleaning, riding 3 a bicycle, taking public transportation, and grocery shopping for 4 herself and her boyfriend, all of which require at least some 5 degree of concentration, indicated that she had the ability to 6 perform at least simple, repetitive tasks. (AR 15-17.) The ALJ 7 thus did not materially err in assessing Plaintiff s credibility, 8 and reversal is not warranted on this basis. 9 VI. 10 CONCLUSION Consistent with the foregoing, and pursuant to sentence four 11 of 42 U.S.C. § 405(g),7 IT IS ORDERED that judgment be entered 12 AFFIRMING the decision of the Commissioner and dismissing this 13 action with prejudice. IT IS FURTHER ORDERED that the Clerk 14 serve copies of this Order and the Judgment on counsel for both 15 parties. 16 17 DATED: January 17, 2013 18 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 19 20 21 22 23 24 25 26 27 28 7 This sentence provides: The [district] court shall have 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. 21
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