Martha Alicia Gomez v. Michael J Astrue, No. 2:2012cv08594 - Document 15 (C.D. Cal. 2013)

Court Description: MEMORANDUM OPINION AND ORDER Affirming the Commissioner by Magistrate Judge Jean P. Rosenbluth. (see document for details). (dro)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 MARTHA ALICIA GOMEZ, 10 Plaintiff, 11 vs. 12 13 CAROLYN W. COLVIN, Acting Commissioner of Social Security,1 14 Defendant. 15 ) Case No. CV 12-8594-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 disability insurance 20 benefits ( DIB ) and supplemental security income benefits 21 ( SSI ). The parties consented to the jurisdiction of the 22 undersigned U.S. Magistrate Judge pursuant to 28 U.S.C. § 636(c). 23 This matter is before the Court on the parties Joint 24 Stipulation, filed June 19, 2013, which the Court has taken under 25 26 1 On February 14, 2013, Colvin became the Acting 27 Commissioner of Social Security. Pursuant to Federal Rule of Civil Procedure 25(d), the Court therefore substitutes Colvin for 28 Michael J. Astrue as the proper Respondent. 1 1 submission without oral argument. For the reasons discussed 2 below, the Commissioner s decision is affirmed and this action is 3 dismissed. 4 II. BACKGROUND 5 Plaintiff was born on December 10, 1971. 6 Record ( AR ) 85.) 7 12th grade. She attended high school but did not complete (AR 29.) Plaintiff previously worked as a retail 8 clerk and a shipping clerk. 9 (Administrative (AR 30-31.) On April 24 and 30, 2009, respectively, Plaintiff filed 10 applications for DIB and SSI. (AR 40-41, 85-96.) After 11 Plaintiff s applications were denied, she requested a hearing 12 before an Administrative Law Judge ( ALJ ). (AR 58.) A hearing 13 was held on March 28, 2011, at which Plaintiff, who was not 14 represented by counsel, and a vocational expert ( VE ) testified. 15 (AR 28-38.) On April 19, 2011, the ALJ issued a written decision 16 finding Plaintiff not disabled. (AR 13-21.) On June 13, 2011, 17 Plaintiff requested review of the ALJ s decision. (AR 8-9.) On 18 August 30, 2012, the Appeals Council denied her request for 19 review. (AR 1-5.) This action followed. 20 III. STANDARD OF REVIEW 21 Pursuant to 42 U.S.C. § 405(g), a district court may review 22 the Commissioner s decision to deny benefits. The ALJ s findings 23 and decision should be upheld if they are free of legal error and 24 supported by substantial evidence based on the record as a whole. 25 § 405(g); Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 26 1420, 1427, 28 L. Ed. 2d 842 (1971); Parra v. Astrue, 481 F.3d 27 742, 746 (9th Cir. 2007). Substantial evidence means such 28 evidence as a reasonable person might accept as adequate to 2 1 support a conclusion. Richardson, 402 U.S. at 401; Lingenfelter 2 v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 3 a scintilla but less than a preponderance. It is more than Lingenfelter, 504 4 F.3d at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 5 882 (9th Cir. 2006)). To determine whether substantial evidence 6 supports a finding, the reviewing court must review the 7 administrative record as a whole, weighing both the evidence that 8 supports and the evidence that detracts from the Commissioner s 9 conclusion. 10 1996). Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. If the evidence can reasonably support either affirming 11 or reversing, the reviewing court may not substitute its 12 judgment for that of the Commissioner. Id. at 720-21. 13 IV. THE EVALUATION OF DISABILITY 14 People are disabled for purposes of receiving Social 15 Security benefits if they are unable to engage in any substantial 16 gainful activity owing to a physical or mental impairment that is 17 expected to result in death or which has lasted, or is expected 18 to last, for a continuous period of at least 12 months. 42 19 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 20 (9th Cir. 1992). 21 A. 22 The ALJ follows a five-step sequential evaluation process in The Five-Step Evaluation Process 23 assessing whether a claimant is disabled. 20 C.F.R. 24 §§ 404.1520(a)(4), 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 25 828 n.5 (9th Cir. 1995) (as amended Apr. 9, 1996). In the first 26 step, the Commissioner must determine whether the claimant is 27 currently engaged in substantial gainful activity; if so, the 28 claimant is not disabled and the claim must be denied. 3 1 §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not 2 engaged in substantial gainful activity, the second step requires 3 the Commissioner to determine whether the claimant has a severe 4 impairment or combination of impairments significantly limiting 5 her ability to do basic work activities; if not, a finding of not 6 disabled is made and the claim must be denied. 7 §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a 8 severe impairment or combination of impairments, the third step 9 requires the Commissioner to determine whether the impairment or 10 combination of impairments meets or equals an impairment in the 11 Listing of Impairments ( Listing ) set forth at 20 C.F.R., Part 12 404, Subpart P, Appendix 1; if so, disability is conclusively 13 presumed and benefits are awarded. 14 416.920(a)(4)(iii). §§ 404.1520(a)(4)(iii), If the claimant s impairment or combination 15 of impairments does not meet or equal an impairment in the 16 Listing, the fourth step requires the Commissioner to determine 17 whether the claimant has sufficient residual functional capacity 18 ( RFC )2 to perform her past work; if so, the claimant is not 19 disabled and the claim must be denied. 20 416.920(a)(4)(iv). §§ 404.1520(a)(4)(iv), The claimant has the burden of proving that 21 she is unable to perform past relevant work. 22 1257. Drouin, 966 F.2d at If the claimant meets that burden, a prima facie case of 23 disability is established. Id. If that happens or if the 24 claimant has no past relevant work, the Commissioner then bears 25 26 2 RFC is what a claimant can do despite existing 27 exertional and nonexertional limitations. 20 C.F.R. §§ 404.1545, 416.945; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th 28 Cir. 1989). 4 1 the burden of establishing that the claimant is not disabled 2 because she can perform other substantial gainful work available 3 in the national economy. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 4 That determination comprises the fifth and final step in the 5 sequential analysis. §§ 404.1520, 416.920; Lester, 81 F.3d at 6 828 n.5; Drouin, 966 F.2d at 1257. 7 B. 8 At step one, the ALJ found that Plaintiff had not engaged in The ALJ s Application of the Five-Step Process 9 substantial gainful activity since February 4, 2008, the alleged 10 onset date. (AR 15.) At step two, the ALJ concluded that 11 Plaintiff had the severe impairments of degenerative disc 12 disease, depression, and bipolar disorder. (Id.) At step three, 13 the ALJ determined that Plaintiff s impairments did not meet or 14 equal any of the impairments in the Listing. (AR 15-16.) At 15 step four, the ALJ found that Plaintiff had the RFC to perform 16 light work 3 except that she could only 17 stand/walk 6 hours in an 8 hour period; sit 6 hours in an 18 8 hour period; occasionally climb, balance, stoop, kneel, 19 crouch, 20 understanding and crawl; and and [has] remembering mild limitations tasks, in sustain[ing] 21 22 23 24 25 26 27 28 3 Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. 20 C.F.R. §§ 404.1567(b), 416.967(b). The regulations further specify that [e]ven though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. Id. A person capable of light work is also capable of sedentary work, which involves lifting no more than 10 pounds at a time and occasionally lifting or carrying [small articles] and may involve occasional walking or standing. §§ 404.1567(a)-(b); 416.967(a)-(b). 5 1 concentration and persistence, socially interacting with 2 the general public, and adapting to workplace changes. 3 (AR 16.) Based on the VE s testimony, the ALJ concluded that 4 Plaintiff could perform her past relevant work as a retail clerk 5 as well as other jobs that existed in significant numbers in the 6 national economy. (AR 19-20.) Accordingly, the ALJ determined 7 that Plaintiff was not disabled.4 (AR 21.) 8 V. DISCUSSION 9 Plaintiff alleges that the ALJ erred in (1) determining 10 Plaintiff s mental RFC and (2) failing to properly assess her 11 credibility. 12 A. 13 (J. Stip. at 3.) The ALJ Did Not Err in Determining Plaintiff s Mental RFC 14 Plaintiff contends that in determining her RFC, the ALJ 15 improperly rejected and misstated material medical evidence 16 concerning Plaintiff s mental functioning. (J. Stip. at 3.) 17 Specifically, Plaintiff contends that the ALJ erred by rejecting 18 treating physician Surinder Sidhy s opinion regarding 19 Plaintiff s mental limitations and instead relying on the opinion 20 of examining physician Joseph Mirkovich. (J. Stip. at 4-6.) As 21 discussed below, however, the ALJ properly determined Plaintiff s 22 RFC. 23 24 1. Applicable law In determining disability, the ALJ must develop the record 25 26 27 28 4 The parties state that Plaintiff filed a second application for DIB on June 16, 2011, and that on May 7, 2013, a different ALJ found that Plaintiff had been disabled since April 20, 2011 the day after the decision at issue in this case and awarded her DIB benefits. (J. Stip. at 2.) 6 1 and interpret the medical evidence but need not discuss every 2 piece of evidence in the record. 3 1006, 1012 (9th Cir. 2003). Howard v. Barnhart, 341 F.3d The ALJ is responsible for resolving 4 conflicts in the medical evidence. Carmickle v. Comm r, Soc. 5 Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008). When evidence 6 in the record is susceptible to more than one rational 7 interpretation, the ALJ s decision must be affirmed. Vasquez v. 8 Astrue, 572 F.3d 586, 591 (9th Cir. 2009). 9 A district court must uphold an ALJ s RFC assessment when 10 the ALJ has applied the proper legal standard and substantial 11 evidence in the record as a whole supports the decision. 12 v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). Bayliss The ALJ must 13 consider all the medical evidence in the record and explain in 14 [his] decision the weight given to . . . [the] opinions from 15 treating sources, nontreating sources, and other nonexamining 16 sources. §§ 404.1527(e)(2)(ii), 416.927(e)(2)(ii). In making 17 an RFC determination, the ALJ may consider those limitations for 18 which there is support in the record and need not consider 19 properly rejected evidence or subjective complaints. See 20 Bayliss, 427 F.3d at 1217 (upholding ALJ s RFC determination 21 because the ALJ took into account those limitations for which 22 there was record support that did not depend on [claimant s] 23 subjective complaints ). 24 Three types of physicians may offer opinions in Social 25 Security cases: (1) those who treat[ed] the claimant (treating 26 physicians); (2) those who examine[d] but d[id] not treat the 27 claimant (examining physicians); and (3) those who neither 28 examine[d] nor treat[ed] the claimant (non-examining 7 1 physicians). Lester, 81 F.3d at 830. A treating physician s 2 opinion is generally entitled to more weight than the opinion of 3 a doctor who examined but did not treat the claimant, and an 4 examining physician s opinion is generally entitled to more 5 weight than that of a nonexamining physician. 6 Id. The opinions of treating physicians are generally afforded 7 more weight because they are employed to cure and have a greater 8 opportunity to know and observe the claimant. 9 80 F.3d 1273, 1285 (9th Cir. 1996). Smolen v. Chater, If a treating physician s 10 opinion is well supported by medically acceptable clinical and 11 laboratory diagnostic techniques and is not inconsistent with the 12 other substantial evidence in the record, it should be given 13 controlling weight. §§ 404.1527(c)(2), 416.927(c)(2). If a 14 treating physician s opinion is not given controlling weight, its 15 weight is determined by length of the treatment relationship, 16 frequency of examination, nature and extent of the treatment 17 relationship, amount of evidence supporting the opinion, 18 consistency with the record as a whole, the doctor s area of 19 specialization, and other factors. §§ 404.1527(c)(2)-(6), 20 416.927(c)(2)-(6). 21 When a treating doctor s opinion is not contradicted by 22 another doctor, it may be rejected only for clear and 23 convincing reasons. Carmickle, 533 F.3d at 1164 (quoting 24 Lester, 81 F.3d at 830-31). When a treating physician s opinion 25 conflicts with another doctor s, the ALJ must provide only 26 specific and legitimate reasons for discounting it. Id. 27 Further, the ALJ need not accept any medical opinion that 28 conflicts with the physician s own treatment notes or the record 8 1 as a whole. See Bayliss, 427 F.3d at 1216 (holding that 2 discrepancy between physician s notes and his assessment of 3 limitations was clear and convincing reason for rejecting 4 opinion); Connett v. Barnhart, 340 F.3d 871, 874-75 (9th Cir. 5 2003) (affirming ALJ s rejection of physician s RFC questionnaire 6 because it was not supported by his own notes and had multiple 7 inconsistencies with all other evaluations (alteration 8 omitted)). 9 10 2. Relevant facts On February 23, 2007, Dr. Gerald Ray Watkins at Kaiser 11 Permanente noted that Plaintiff was doing significantly better 12 on her psychiatric medication, was less emotionally labile and 13 anxious, fe[lt] bad or sad less of the time, and had fewer and 14 less severe headaches. (AR 203.) He noted that Plaintiff still 15 awoke early in the morning and had irregular eating habits. 16 (Id.) Plaintiff had an unremarkable mental-status exam and was 17 not obviously tense, anxious, or in any distress. (AR 204.) 18 He diagnosed bipolar II disorder, [s]ignificantly improved ; 19 major depression in partial remission, [s]ignificantly (at least 20 moderately) improved ; dysthymic disorder, organic mood disorder, 21 pain disorder, and insomnia. 22 (Id.) On February 8, 2008, four days after the alleged onset date, 23 Dr. Watkins noted that since he had last seen Plaintiff a year 24 earlier, she had lost her home and her job at Walmart, suffered a 25 miscarriage, and given birth to a premature baby who had died 26 earlier that week. (AR 202.) He noted that Plaintiff was 27 undeniably melancholic, quite anxious, fidgety, restless, and 28 impatient, but she denied having suicidal ideation or delusions. 9 1 (Id.) He diagnosed dysthymia; bipolar II disorder, major 2 depressive episode; organic mood disorder related to chronic 3 pain; pain disorder; and insomnia. (Id.) Dr. Watkins prescribed 4 medication and noted that Plaintiff would seek counseling through 5 a program for mothers who had lost children. 6 (AR 202-03.) On June 16, 2009, Plaintiff underwent an Adult Initial 7 Assessment with E. Nagatani, a therapist at the Los Angeles 8 County Department of Mental Health ( DMH ). (AR 286-90, 306.) 9 Nagatani noted that Plaintiff reported receiving inpatient 10 psychiatric treatment in 1995 and 1996, and she currently 11 complained of daily depressed mood, sleep difficulties, poor 12 appetite, and an increase in symptoms since February 2008. 13 286.) (AR Nagatani noted that without treatment, Plaintiff was 14 agitated, irritable, and anxious; with treatment, Plaintiff will 15 be stable and able to sleep better. (Id.) Upon examination, 16 Nagatani noted that Plaintiff had restless and agitated motor 17 activity, average grooming, normal eye contact, unimpaired but 18 pressured speech, unimpaired intellectual functioning and memory, 19 average fund of knowledge, irritable mood, constricted affect, 20 unimpaired thought process, and moderately impaired judgment and 21 insight. (AR 289.) Plaintiff had intact concentration but was 22 easily distracted by outside stimulus. (Id.) Nagatani noted 23 that Plaintiff had poor impulse control and was aggressive, 24 demanding, violent, destructive, and self-destructive. (Id.) 25 Nagatani diagnosed bipolar II and alcohol dependence and assigned 26 27 28 10 1 a Global Assessment of Functioning ( GAF ) score of 51.5 (AR 2 290.) 3 On June 23, 2009, Plaintiff underwent an initial medication 4 evaluation with a DMH doctor. (AR 440-42.) The doctor diagnosed 5 bipolar affective disorder and post-traumatic stress disorder 6 ( PTSD ) and prescribed medication. (AR 442.) On July 7, 2009, 7 a DMH doctor noted that Plaintiff had some anxiety, but her mood 8 and sleep were better and her appetite was o.k. 9 doctor prescribed medication. 10 (AR 439.) The (Id.) On August 4, 2009, Plaintiff began group therapy, which she 11 continued to attend about once a week until at least early 12 October 2009. (AR 402-11.) On September 8, 2009, a DMH doctor 13 noted that Plaintiff reported mood swings, depressed mood, low 14 motivation, low energy at times, and thoughts of death and dying. 15 (AR 435.) On September 29, 2009, a DMH doctor noted that 16 Plaintiff had a flat mood and social anxiety. (AR 437.) 17 Plaintiff complained of mood swings, but the doctor noted that 18 they were not readily evident that day. (Id.) The doctor noted 19 that Plaintiff had a diagnosis of major depressive disorder, 20 bipolar disorder, and PTSD and adjusted her medications. 21 (Id.) On September 26, 2009, Dr. Joseph Mirkovich, a board- 22 certified psychiatrist, evaluated Plaintiff at the Social 23 24 25 26 27 28 5 A GAF score represents a rating of overall psychological functioning on a scale of 0 to 100. See Am. Psychiatric Ass n, Diagnostic and Statistical Manual of Disorders, Text Revision 34 (4th ed. 2000). A GAF score in the range of 51 to 60 indicates [m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational or school functioning (e.g., few friends, conflicts with peers or co-workers). Id. 11 1 Security Administration s request. (AR 310-14.) He noted that 2 Plaintiff was able to drive herself to her appointment and that 3 she reported two previous psychiatric hospitalizations, for 4 suicidal ideation and depression. (AR 310-11.) Plaintiff s 5 daily activities included staying at home, trying to clean her 6 room, performing household chores with her husband s help, doing 7 some cooking, taking care of her own hygiene and grooming, 8 reading books, and watching television, including court shows. 9 (AR 311-12.) 10 Dr. Mirkovich found that Plaintiff had a dysthymic mood and 11 restricted affect but a normal and cooperative attitude and 12 behavior, logical mental activity, normal but soft speech, and 13 appropriate thought content. (AR 312.) Plaintiff was unable to 14 correctly spell the word world backward, but she could 15 correctly perform a three-step command, count by twos up to 20, 16 and do simple mathematical calculations. (AR 312-13.) Dr. 17 Mirkovich diagnosed [b]ipolar 2 per history and assigned a GAF 18 score of 55 to 60. (AR 313.) He opined that Plaintiff could 19 perform simple and repetitive tasks as well as detailed and 20 complex tasks and noted that Plaintiff was able to perform well 21 in the mental status exam today. (Id.) He believed that 22 Plaintiff could accept instructions from supervisors, interact 23 with coworkers and the public, perform work activities on a 24 consistent basis without special or additional instruction, 25 maintain regular attendance in the workplace, complete a normal 26 workday and workweek without interruptions from a psychiatric 27 condition, and deal with the usual stress encountered in a 28 competitive work environment. (AR 313-14.) 12 1 On September 29, 2009, a DMH doctor noted that Plaintiff 2 reported feeling somewhat better but was tired and not sleeping 3 well. (AR 432.) The doctor diagnosed bipolar II disorder and 4 PTSD and adjusted her medications. 5 (AR 433-34.) On October 14, 2009, Dr. L.O. Mallare reviewed Plaintiff s 6 medical records and completed a mental-RFC assessment and 7 psychiatric-review-technique form. (AR 324-37.) In the mental- 8 RFC assessment, Dr. Mallare opined that Plaintiff was moderately 9 limited in her ability to understand, remember, and carry out 10 detailed instructions and respond appropriately to changes in the 11 work setting.6 (AR 324-25.) He opined that Plaintiff was not 12 significantly limited in her ability to remember locations and 13 worklike procedures; understand, remember, and carry out very 14 short and simple instructions; maintain attention and 15 concentration for extended periods; perform activities on a 16 schedule; maintain regular attendance and be punctual; sustain an 17 ordinary routine without special supervision; work in 18 coordination with or proximity to others without being distracted 19 by them; make simple work-related decisions; complete a normal 20 workday and workweek; perform at a consistent pace; interact with 21 the public; ask simple questions or request assistance; accept 22 instructions and respond appropriately to criticism from 23 supervisors; get along with coworkers without distracting them or 24 exhibiting behavioral extremes; maintain socially appropriate 25 26 6 The mental-RFC-assessment form included check-off boxes 27 for indicating whether a claimant was [n]ot [s]ignificantly [l]imited, [m]oderately [l]imited, or [m]arkedly [l]imited 28 in each of several categories. (See AR 324-25.) 13 1 behavior and adhere to basic standards of neatness and 2 cleanliness; be aware of normal hazards and take appropriate 3 precautions; travel to unfamiliar places and use public 4 transportation; or set realistic goals and make plans 5 independently of others. (AR 324-25.) Dr. Mallare also noted 6 that Plaintiff had adequate mental function to perform 1-2 step 7 and some detailed instr[uctions] and was able to interact 8 appropriately with others and adapt to simple changes in the 9 workplace. 10 (AR 326.) On the psychiatric-review-technique form, Dr. Mallare noted 11 Plaintiff s diagnoses as BAD, or bipolar affective disorder, 12 and substance abuse. (AR 330, 333.) He opined that Plaintiff s 13 mental impairments resulted in mild restriction of activities of 14 daily living; mild difficulties in maintaining social 15 functioning; and mild difficulties in maintaining concentration, 16 persistence, or pace. (AR 335.) Dr. Mallare also indicated that 17 he had reviewed Dr. Mirkovich s September 2009 report and 18 various intermittent notes dating from December 2006 to June 19 2009. 20 (AR 337.) On October 20, 2009, a DMH doctor noted that Plaintiff had 21 no abnormalities on mental-status examination and that her 22 unstable mood had improved substantially since the start of 23 treatment. (AR 430-31.) 24 medication. (AR 431.) The doctor adjusted Plaintiff s On December 2, 2009, a DMH doctor noted 25 that Plaintiff had no abnormalities on mental-status examination 26 and prescribed medications. (AR 428-29.) On December 20, 2009, 27 and February 4, 2010, a DMH doctor met with Plaintiff and 28 adjusted her medications. (AR 423-24, 426-29.) 14 On February 23, 1 2010, a DMH doctor recorded no notable findings on mental2 status examination and prescribed medication. 3 (AR 421-22.) On March 10, 2010, Dr. C. Dudley, a nonexamining reviewing 4 doctor, affirmed Dr. Mallare s assessment of Plaintiff s mental 5 functioning. (AR 384-85.) On March 17, 2010, a DMH doctor noted 6 that Plaintiff complained of feeling restless, depressed, and 7 anxious. (AR 420.) On March 18, 2010, a DMH doctor noted that 8 Plaintiff appeared depressed but did not have hallucinations or 9 delusions; the doctor prescribed medication. 10 (AR 418-19.) On March 31, 2010, a DMH doctor noted that Plaintiff 11 complained that she felt depressed, tired, and aggravated and 12 could not take care of her six-year-old daughter. (AR 417.) The 13 doctor noted that Plaintiff had a depressed and irritable mood 14 and fair insight and judgment. (Id.) The doctor diagnosed 15 bipolar disorder, manic and paranoid, and prescribed medication. 16 (Id.) On May 10, 2010, a DMH doctor noted that Plaintiff 17 complained of depression, anxiety, restlessness, and insomnia. 18 (AR 416.) The doctor noted that Plaintiff s mood was depressed 19 and affect constricted, and she had severe psychomotor 20 retardation ; the doctor diagnosed bipolar illness and chronic 21 alcoholism and prescribed medication. 22 (Id.) Also on May 10, 2010, Dr. Sidhy, a DMH physician, completed 23 a mental-disorder-questionnaire form that listed the [d]ate of 24 first examination as May 10, 2010, the same date she was 25 completing the report.7 (AR 390-94.) Dr. Sidhy noted that 26 27 28 7 Although Dr. Sidhy s notes do not indicate the doctor s gender, Plaintiff and the ALJ refer to the doctor as she. (See AR 19; J. Stip. at 4.) The Court therefore does as well. 15 1 Plaintiff was irritable, anxious, and severely depressed. 2 390, 392.) (AR She had a very slow gait, a blank stare, severe 3 psychomotor retardation, poor concentration, poor insight and 4 judgment, and a fair memory. (AR 390-91, 393.) Plaintiff 5 reported that she spent most of the day at home and sometimes 6 cooked dinner for her family. 7 (AR 391.) Dr. Sidhy listed Plaintiff s diagnosis as major depression 8 with psychosis and noted that her prognosis was poor. 9 394.) (AR Dr. Sidhy noted that Plaintiff was afraid of people, 10 communicated poorly, and was isolated and withdrawn. (AR 393.) 11 Dr. Sidhy believed that Plaintiff was unable to sustain 12 concentration but was able to understand written and verbal 13 commands. (Id.) Dr. Sidhy opined that because of Plaintiff s 14 major depression with psychosis, she was unable to handle any 15 stresses at work and was unable to make any decisions. (Id.) 16 She concluded that Plaintiff was totally disabled, unable to 17 function, and unable to drive her car. 18 19 3. (Id.) Discussion The ALJ found that despite Plaintiff s mental impairments, 20 she retained the RFC to perform a limited range of light work, 21 with only mild limitations in understanding and remembering 22 tasks, sustain[ing] concentration and persistence, socially 23 interacting with the general public, and adapting to workplace 24 changes. (AR 16.) In doing so, the ALJ accorded significant 25 weight to the opinions of examining physician Mirkovich and 26 nonexamining physician Mallare and little weight to the opinion 27 of Dr. Sidhy. 28 (AR 18-19.) The ALJ gave specific and legitimate reasons for rejecting 16 1 Dr. Sidhy s findings and controverted opinion that Plaintiff was 2 totally disabled. See Carmickle, 533 F.3d at 1164. First, the 3 ALJ correctly concluded that he need not accept Dr. Sidhy s 4 assertion that Plaintiff was totally disabled because the 5 determination of a claimant s ultimate disability is reserved to 6 the Commissioner. (AR 19); see §§ 404.1527(d)(1) ( A statement 7 by a medical source that you are disabled or unable to work 8 does not mean that we will determine that you are disabled. ), 9 416.927(d)(1) (same); SSR 96-5p, 1996 WL 374183, at *5 10 (treating-source opinions that a person is disabled or unable to 11 work can never be entitled to controlling weight or given 12 special significance ); see also McLeod v. Astrue, 640 F.3d 881, 13 885 (9th Cir. 2011) (as amended) ( A disability is an 14 administrative determination of how an impairment, in relation to 15 education, age, technological, economic, and social factors, 16 affects ability to engage in gainful activity. ). The ALJ 17 therefore was not obligated to accept Dr. Sidhy s opinion that 18 Plaintiff was totally disabled. 19 Second, the ALJ permissibly discounted Dr. Sidhy s findings 20 that Plaintiff had significant psychological symptoms because 21 they conflicted with the treatment records, which indicated that 22 [Plaintiff s] symptoms significantly improved with medication 23 and therapy. (AR 18); see Batson v. Comm r of Soc. Sec. Admin., 24 359 F.3d 1190, 1195 (9th Cir. 2004) ( an ALJ may discredit 25 treating physicians opinions that are conclusory, brief, and 26 unsupported by the record as a whole . . . or by objective 27 medical findings ); §§ 404.1527(c)(4) ( Generally, the more 28 consistent an opinion is with the record as a whole, the more 17 1 weight we will give to that opinion. ), 416.927(c)(4) (same); see 2 also Valentine v. Comm r, Soc. Sec. Admin., 574 F.3d 685, 692-93 3 (9th Cir. 2009) (contradiction between treating physician s 4 opinion and evidence in record, including his own treatment 5 notes, constituted specific and legitimate reason for rejecting 6 treating physician s opinion). Indeed, Plaintiff began receiving 7 consistent mental-health treatment in June 2009, and by July 8 2009, Plaintiff was noted to have some anxiety, but her mood and 9 sleep were better and her appetite was o.k. (AR 439.) In 10 September 2009, she was feeling tired but somewhat better (AR 11 431); in October 2009, she was noted to have made progress during 12 her three months of group therapy (AR 402), and a doctor found 13 she had no abnormalities on mental-status exam and her unstable 14 mood had improved substantially since the start of treatment 15 (AR 430-31); and in December 2009 and February 2010, doctors 16 noted no abnormalities during mental-status examinations (AR 42117 22, 428-29). In September 2009, Dr. Mirkovich similarly found 18 that Plaintiff was able to perform well on a mental-status exam. 19 (AR 313.) Indeed, Plaintiff s medical records from before her 20 onset date also showed that her condition responded well to 21 treatment. (See, e.g., AR 203 (Feb. 2007, noting that Plaintiff 22 was significantly better on psychiatric medication).) Dr. 23 Sidhy s observation that Plaintiff was unable to drive her car 24 (AR 393) was also inconsistent with Plaintiff s own testimony at 25 the March 2011 hearing that she was able to drive (AR 34-35) and 26 with Dr. Mirkovich s September 2009 observation that Plaintiff 27 had driven herself to the appointment (AR 310). Dr. Sidhy s 28 inconsistency with the treatment notes and the evidence of record 18 1 was therefore a specific and legitimate reason for discounting 2 Dr. Sidhy s opinion. 3 Third, the ALJ found that Dr. Sidhy s opinion was entitled 4 to less weight because she did not have a treating relationship 5 with [Plaintiff] prior to making her conclusions and in fact 6 first examined [Plaintiff] the same day that she rendered her 7 opinion. (AR 19.) Indeed, Dr. Sidhy reported that she had 8 first examined Plaintiff on 5-10-10, the same day she completed 9 the mental-disorder-questionnaire form. (AR 394.) The ALJ was 10 entitled to consider Dr. Sidhy s limited relationship with 11 Plaintiff when determining how much weight to give her opinion. 12 See Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007) (factors in 13 assessing treating physician s opinion include length of 14 treatment relationship, frequency of examination, and nature and 15 extent of treatment relationship); accord §§ 404.1527(c)(2), 16 416.927(c)(2). 17 The ALJ was also entitled to rely on Drs. Mirkovich s and 18 Mallare s opinions because they were supported by independent 19 clinical findings and thus constituted substantial evidence upon 20 which the ALJ could properly rely. See Tonapetyan v. Halter, 242 21 F.3d 1144, 1149 (9th Cir. 2001); Andrews v. Shalala, 53 F.3d 22 1035, 1041 (9th Cir. 1995). Dr. Mirkovich noted Plaintiff s 23 psychiatric history and performed a full psychiatric evaluation, 24 finding, for example, that Plaintiff had a dysthymic mood and 25 restricted affect but normal and cooperative attitude and 26 behavior, logical mental activity and speech, and appropriate 27 thought content; could perform a three-step command correctly; 28 and had good mathematical ability. 19 (AR 312-13.) Dr. Mallare s 1 opinion, moreover, relied on Dr. Mirkovich s findings and was 2 consistent with them. See Thomas v. Barnhart, 278 F.3d 947, 957 3 (9th Cir. 2002) ( The opinions of non-treating or non-examining 4 physicians may also serve as substantial evidence when the 5 opinions are consistent with independent clinical findings or 6 other evidence in the record. ). Dr. Mallare also reviewed some 7 of Plaintiff s medical records before rendering his opinion. 8 337.) (AR See §§ 404.1527(c)(3) (in weighing medical opinions, ALJ 9 will evaluate the degree to which these opinions consider all of 10 the pertinent evidence in [claimant s] claim, including opinions 11 of treating and other examining sources ), 416.927(c)(3) (same). 12 Indeed, Plaintiff does not challenge the ALJ s reliance on Dr. 13 Mallare s opinion. (See J. Stip. at 3-7, 11-13.) Any conflict 14 in the properly supported medical-opinion evidence was solely 15 the province of the ALJ to resolve. 16 Andrews, 53 F.3d at 1041. Plaintiff contends that the ALJ erred in relying on Dr. 17 Mirkovich s opinion because it was inconsistent with his findings 18 that Plaintiff had a dysthymic mood, restricted affect, tired 19 appearance, and GAF score of 55-60, which indicated moderate 20 psychological symptoms. 21 supra, at 34. (J. Stip. at 6); Am. Psychiatric Ass n, Notwithstanding those symptoms, however, Dr. 22 Mirkovich found that Plaintiff was cooperative, with logical and 23 normal mental activity and speech and appropriate thought 24 content; could perform a three-step command and simple 25 mathematical computations; and was able to perform well on the 26 mental-status exam. (AR 312-13.) Those findings support Dr. 27 Mirkovich s conclusion that Plaintiff could, for example, perform 28 simple and detailed tasks, accept instruction from supervisors, 20 1 interact with coworkers and the public, and maintain regular 2 attendance in the workplace. (AR 313-14.) They were also 3 consistent with the findings of one of Plaintiff s treating 4 doctors, who noted, around that same time, that Plaintiff had no 5 abnormalities on mental-status examination and that her unstable 6 mood had improved substantially since she started treatment. 7 (AR 430-31.) 8 Plaintiff is not entitled to remand on this ground. 9 B. 10 The ALJ Permissibly Discounted Plaintiff s Credibility Plaintiff argues that the ALJ improperly undermined 11 Plaintiff s credibility and rejected her testimony regarding her 12 symptoms and limitations in mental functioning. 8 (J. Stip. at 13 13.) 14 15 1. Applicable law An ALJ s assessment of symptom severity and claimant 16 credibility is entitled to great weight. See Weetman v. 17 Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. Heckler, 779 18 F.2d 528, 531 (9th Cir. 1986). [T]he ALJ is not required to 19 believe every allegation of disability, or else disability 20 benefits would be available for the asking, a result plainly 21 contrary to 42 U.S.C. § 423(d)(5)(A). Molina v. Astrue, 674 22 F.3d 1104, 1112 (9th Cir. 2012) (internal quotation marks and 23 citation omitted). In evaluating a claimant s subjective symptom 24 testimony, the ALJ engages in a two-step analysis. 25 Lingenfelter, 504 F.3d at 1035-36. See First, the ALJ must 26 27 28 8 Plaintiff does not challenge the ALJ s rejection of her testimony regarding her physical complaints. (See J. Stip. at 13-15, 20-22.) 21 1 determine whether the claimant has presented objective medical 2 evidence of an underlying impairment [that] could reasonably be 3 expected to produce the pain or other symptoms alleged. 4 1036 (internal quotation marks omitted). Id. at If such objective 5 medical evidence exists, the ALJ may not reject a claimant s 6 testimony simply because there is no showing that the impairment 7 can reasonably produce the degree of symptom alleged. 8 80 F.3d at 1282 (emphasis in original). Smolen, When the ALJ finds a 9 claimant s subjective complaints not credible, the ALJ must make 10 specific findings that support the conclusion. 11 Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). See Berry v. Absent affirmative 12 evidence of malingering, those findings must provide clear and 13 convincing reasons for rejecting the claimant s testimony. 14 Lester, 81 F.3d at 834. If the ALJ s credibility finding is 15 supported by substantial evidence in the record, the reviewing 16 court may not engage in second-guessing. Thomas, 278 F.3d at 17 959. 18 19 2. Relevant facts On May 20, 2009, Plaintiff completed a function-report form, 20 stating that on a good day, which was rare, she would take 21 her daughter to school, take her medication, hopefully clean up 22 a bit, pick her daughter up at 11 a.m. and tend to her needs, 23 nap, give her daughter lunch and play with her, make dinner, and 24 watch television. (AR 127.) She cooked daily for the most 25 part and made quick and easy meals. (AR 129.) She performed 26 basic cleaning, which would take all day because she would stop 27 to take breaks. (Id.) Plaintiff wrote that she would take care 28 of her husband and two children by cooking, cleaning, and 22 1 attending to other household needs when I can. (AR 128.) 2 Plaintiff wrote that on bad day[s], which outnumbered her good 3 days, she would only tend to [her] little one [and] do nothing 4 else because of [her] back pain [and] depression. 5 (AR 134.) Plaintiff wrote that she went outside two or three times a 6 week but could not go out alone and needed her husband or kids to 7 go with her. (AR 130.) She shopped in stores for groceries and 8 clothing for her children, which would take less than an hour 9 because she would get tired and anxious around people. (Id.) 10 Plaintiff got along well with authority figures and was able to 11 pay bills, count change, and use money orders. (AR 130, 133.) 12 Her hobbies included watching television, which she did every 13 day, and reading, which she did once in a while. 14 (AR 131.) Plaintiff wrote that her conditions affected her ability to 15 lift, squat, bend, stand, walk, sit, kneel, talk, climb stairs, 16 remember, concentrate, complete tasks, and get along with others. 17 (AR 132.) She could walk for less than 30 minutes before needing 18 to rest for 15 and could pay attention for one hour before 19 get[ting] annoyed. (Id.) Plaintiff could follow written 20 instructions ok but would forget and have to read [them] 21 again, and she could sometimes follow spoken instructions 22 well. (Id.) Plaintiff wrote that she had been fired from her 23 job at Walmart because she was dating her supervisor. 24 (AR 133.) In an undated disability report, Plaintiff wrote that she 25 was unable to work because of her bipolar disorder, chronic back 26 pain, anxiety, and depression. (AR 116.) She wrote that she 27 c[ouldn t] stand to be around people anymore or stand or sit 28 for a long time and was always in pain and very withdrawn 23 1 and irritable all the time. (Id.) Plaintiff wrote that she 2 last worked on December 24, 2007, and left that job because it 3 was seasonal and she was pregnant. (Id.) She wrote that she 4 became unable to work because of her disability on February 4, 5 2008. 6 (Id.) In an undated Disability Report Appeal, Plaintiff wrote 7 that regarding her physical conditions, she could no longer 8 function without pain medication, and regarding her mental 9 limitations, she couldn t function properly and was working 10 with a psychiatrist to find the correct medications. (AR 160.) 11 In another undated Disability Report Appeal, Plaintiff wrote 12 that her back condition was ok as long as her doctor kept 13 giving her shots, but she still had spasms. (AR 172.) 14 Plaintiff wrote that even with medication, she fe[lt] worse 15 mentally and couldn t find any peace. 16 (Id.) At the hearing on March 28, 2011, Plaintiff testified that 17 she was unable to work because her back would spasm a lot, she 18 was bipolar, and she had anxiety issues. (AR 31-34.) 19 Plaintiff believed she could stand or walk for a few hours, sit 20 for a couple hours in an eight-hour day, and comfortably lift 21 about 20 pounds at a time. (AR 32-33.) Plaintiff testified that 22 she could drive and would try to cook and do the dishes and 23 laundry, but her husband helped her or did a lot of the chores 24 himself. (AR 34-35.) Plaintiff and her husband would go grocery 25 shopping and pick her daughter up from school. (AR 35.) She 26 said she didn t really do a whole lot of . . . anything and 27 usually s[a]t at home watching television. (Id.) Plaintiff 28 said she had just started treatment at DMH but would not receive 24 1 psychiatric medication for about two more months. (AR 34.) 2 Plaintiff also testified that she was fired from her retail job 3 because she had been having a relationship with her supervisor. 4 (AR 31.) 5 6 3. Discussion The ALJ found that Plaintiff s medically determinable 7 impairments could reasonably be expected to produce the alleged 8 symptoms but that her statements concerning the intensity, 9 persistence and limiting effects of these symptoms are not 10 credible to the extent they are inconsistent with an RFC for a 11 limited range of light work with mild limitations in 12 understanding and remembering tasks, sustaining concentration and 13 persistence, socially interacting with the general public, and 14 adapting to workplace changes. (AR 17.) Reversal is not 15 warranted based on the ALJ s alleged failure to make proper 16 credibility findings or properly consider Plaintiff s subjective 17 symptoms. 18 First, the ALJ discounted Plaintiff s subjective complaints 19 because her psychiatric symptoms appear stable with medication 20 and therapy. (AR 19.) As discussed above in Section V.A, 21 Plaintiff s psychiatric symptoms did improve substantially 22 after she started treatment, and she was often noted to have no 23 abnormal findings upon mental-status examination, which was 24 inconsistent with Plaintiff s allegations of totally debilitating 25 psychiatric symptoms. (See, e.g., AR 430-31.) This was 26 therefore a legally sufficient reason for discounting Plaintiff s 27 credibility. See Bray v. Comm r of Soc. Sec. Admin., 554 F.3d 28 1219, 1227 (9th Cir. 2009) (ALJ permissibly discounted 25 1 credibility when claimant s statements at her hearing [did] not 2 comport with objective evidence in her medical record ); 3 Carmickle, 533 F.3d at 1161 ( Contradiction with the medical 4 record is a sufficient basis for rejecting the claimant s 5 subjective testimony. ); see also Garcia v. Comm r of Soc. Sec. 6 Admin., 498 F. App x 710, 711 (9th Cir. 2012) (ALJ permissibly 7 discounted plaintiff s credibility based on conflicts between his 8 testimony and doctor s testimony); cf. Warre v. Comm r Soc. Sec. 9 Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) ( Impairments that 10 can be controlled effectively with medication are not disabling 11 for the purpose of determining eligibility for SSI benefits. ). 12 Second, the ALJ was entitled to discount Plaintiff s 13 credibility because her claims of disability conflicted with her 14 reported daily activities. (See AR 19); Smolen, 80 F.3d at 1284 15 (ALJ may use ordinary techniques of credibility evaluation, 16 such as prior inconsistent statements concerning the symptoms, 17 and other testimony by the claimant that appears less than 18 candid ); Thomas, 278 F.3d at 958-59 (in assessing credibility, 19 ALJ may consider inconsistencies either in claimant s testimony 20 or between testimony and conduct); cf. Molina, 674 F.3d at 1113 21 ( Even where [claimant s] activities suggest some difficulty 22 functioning, they may be grounds for discrediting the claimant s 23 testimony to the extent that they contradict claims of a totally 24 debilitating impairment. ). Plaintiff asserted that she was able 25 to shop in stores for groceries and clothing; care for her young 26 daughter and take her to and from school; get along well with 27 authority figures; cook most days; perform basic cleaning, albeit 28 with some help; pay bills and use money orders; watch television, 26 1 including court shows; and read. (AR 34-35, 127, 129-30, 134.) 2 Those activities appear inconsistent with Plaintiff s claims that 3 she was totally disabled and, for example, c[ouldn t] stand to 4 be around people anymore, was very withdrawn and irritable all 5 the time, and couldn t function properly because of her 6 psychological condition. 7 (AR 132, 160.) One of the ALJ s credibility findings, however, was not 8 clear and convincing. The ALJ noted that Plaintiff had stopped 9 working because she was fired from her job at Walmart for having 10 a relationship with her supervisor, not because she was disabled 11 and unable to perform her job. (AR 19.) The Commissioner argues 12 that this was a permissible reason for discounting Plaintiff s 13 credibility, citing Bruton v. Massanari, 268 F.3d 824, 828 (9th 14 Cir. 2001). (J. Stip. at 18.) But in Bruton, the claimant s 15 alleged disability-onset date was the same date he was laid off 16 from his job as a machinist, and the Ninth Circuit found that the 17 ALJ permissibly discounted the claimant s credibility based on 18 his statements that he left his job because he was laid off, 19 rather than because he was injured. 268 F.3d at 826, 828. 20 Here, by contrast, Plaintiff never claimed to have stopped 21 working at Walmart because she was disabled; in fact, she 22 thereafter worked at another retail job for about a month before 23 stopping work on December 24, 2007, assertedly because it was a 24 seasonal job and she was pregnant. (AR 30, 116.) Plaintiff s 25 alleged onset date, moreover, was over a month later, on February 26 4, 2008, apparently right around the time she gave birth to a 27 premature baby who soon died. (See AR 202.) The fact that 28 Plaintiff was fired from her job at Walmart months before her 27 1 alleged disability onset date thus does not appear to be a clear 2 and convincing reason for discounting her credibility. See 3 McGowan v. Astrue, No. C12 281 TSZ BAT, 2012 WL 5390337, at *5 4 (W.D. Wash. Oct. 17, 2012) (noting that the reasons [plaintiff] 5 left her 2006 job was [sic] not a proper basis to discount her 6 credibility because the job ended long before her alleged 7 [disability] onset ); Shehan v. Astrue, No. EDCV 08 01302(MLG), 8 2009 WL 2524573, at *3 (C.D. Cal. Aug. 17, 2009) (noting that 9 [u]nlike Bruton, the record here does not support the inference 10 that Plaintiff sought disability benefits simply because she was 11 laid off from work, because [a]lthough Plaintiff admitted that 12 she stopped working in her previous two positions for reasons 13 unrelated to her alleged impairments, both jobs ended long before 14 her alleged onset date of August 2005 ). The ALJ s error, 15 however, was harmless because his credibility finding was 16 supported by other clear and convincing reasons. See Bray, 554 17 F.3d at 1227; Carmickle, 533 F.3d at 1162.9 18 In sum, the ALJ provided sufficient clear and convincing 19 reasons for discounting Plaintiff s credibility. Plaintiff is 20 not entitled to remand on this ground. 21 22 9 The ALJ also noted that no evidence indicated severe 23 disuse muscle atrophy that would be compatible with [Plaintiff s] alleged inactivity and inability to function. (AR 19.) The 24 observation of no severe muscle atrophy, while true, was not 25 particularly meaningful because Plaintiff did not claim to be 26 27 28 unable to perform any activity at all. Compare Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (ALJ permissibly discounted claimant s complaint that her pain required her to lie in a fetal position all day because she did not exhibit muscular atrophy or any other physical signs of an inactive, totally incapacitated individual ). 28 1 VI. CONCLUSION 2 Consistent with the foregoing, and pursuant to sentence four 3 of 42 U.S.C. § 405(g),10 IT IS ORDERED that judgment be entered 4 AFFIRMING the decision of the Commissioner and dismissing this 5 action with prejudice. IT IS FURTHER ORDERED that the Clerk 6 serve copies of this Order and the Judgment on counsel for both 7 parties. 8 9 10 11 DATED: October 4, 2013 12 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 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. 29

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