Sharon Fields v. Michael J Astrue, No. 5:2007cv01442 - Document 17 (C.D. Cal. 2008)

Court Description: MEMORANDUM AND OPINION by Magistrate Judge Jennifer T. Lum. After careful consideration of all documents filed in this matter, this Court finds that the decision of the Commissioner is supported by substantial evidence and that the Commissioner applied the proper legal standards. The Court, therefore, AFFIRMS the decision of the Commissioner of Social Security Administration. LET JUDGMENT BE ENTERED ACCORDINGLY. (san)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 8 9 10 11 SHARON FIELDS, 12 Plaintiff, 13 14 15 ) ) ) ) ) ) ) ) ) ) ) ) v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. 16 17 18 Case No. EDCV 07-1442-JTL MEMORANDUM OPINION AND ORDER PROCEEDINGS 19 On November 8, 2007, Sharon Fields ( plaintiff ) filed a Complaint seeking review of the 20 Social Security Administration s denial of her applications for Disability Insurance Benefits and 21 Supplemental Security Income benefits. On November 27, 2007, plaintiff filed a Consent to 22 Proceed Before United States Magistrate Judge Jennifer T. Lum. On March 17, 2008, Michael 23 J. Astrue, Commissioner of Social Security ( defendant ), filed a Consent to Proceed Before 24 United States Magistrate Judge Jennifer T. Lum. Thereafter, on May 12, 2008, defendant filed 25 an Answer to the Complaint. On July 18, 2008, the parties filed their Joint Stipulation. 26 The matter is now ready for decision. 27 /// 28 /// 1 BACKGROUND 2 On May 17, 2005, plaintiff filed applications for Disability Insurance Benefits and 3 Supplemental Social Security Income benefits alleging a disability onset date of April 30, 1998. 4 (Administrative Record [ AR ] at 47, 214; see AR at 12). The Commissioner denied plaintiff s 5 applications for benefits both initially and upon reconsideration. (AR at 27, 28, 29-33, 42-46). 6 Thereafter, plaintiff requested a hearing before an Administrative Law Judge ( ALJ ). (AR at 7 40). 8 On April 18, 2007, the ALJ conducted a hearing in San Bernardino, California. (See AR 9 at 232-58). Plaintiff appeared at the hearing without counsel and testified. (AR at 236-45, 246- 10 51, 252-55, 257-58). Barbara Fields, plaintiff s mother, also appeared at the hearing and 11 testified. (AR at 246). In addition, Corinne Porter, a vocational expert, testified at the hearing. 12 (AR at 254-57). On May 3, 2007, the ALJ issued his decision denying benefits to plaintiff. (AR 13 at 12-21). The ALJ found that plaintiff had the following severe impairments: diabetes mellitus, 14 hypertension, ganglion cyst in the left wrist and obesity. (AR at 14). The ALJ noted that while 15 plaintiff alleged that she suffers from back pain and depression, the evidence in the record did 16 not support a finding that these impairments were severe. The ALJ determined that plaintiff's 17 conditions did not meet or equal any of the impairments listed in Appendix 1 of the regulations. 18 (Id.). The ALJ concluded that plaintiff retained the residual capacity to perform light work with 19 some limitation in the use of her hands, and that plaintiff retained the residual functional 20 capacity to perform her past relevant work as a tax preparer. (AR at 14-20). Moreover, the ALJ 21 determined that plaintiff could perform jobs that exist in significant numbers in the national 22 economy. (AR at 20-21). Accordingly, the ALJ concluded that plaintiff was not disabled from 23 April 30, 1998, the alleged onset date, through May 3, 2007, the date of the decision. (AR at 24 21). The Appeals Council denied plaintiff s timely request for review of the ALJ s decision. (AR 25 at 2-4). 26 Thereafter, plaintiff appealed to the United States District Court. 27 /// 28 /// 2 1 PLAINTIFF'S CONTENTIONS 2 Plaintiff makes the following claims: 3 1. 4 plaintiff s treating physician. 5 6 2. The ALJ failed to recontact Dr. Multani and fully develop the record with regard to plaintiff s mental impairment. 7 8 The ALJ failed to properly consider the opinion of Gurmeet S. Multani, M.D., 3. The ALJ failed to properly discredit plaintiff s subjective complaints and the lay witness testimony of Herman Hill, plaintiff s husband, and Barbara Fields, plaintiff s mother. 9 10 STANDARD OF REVIEW 11 Under 42 U.S.C. Section 405(g), this Court reviews the ALJ's decision to determine 12 whether the ALJ's findings are supported by substantial evidence and whether the proper legal 13 standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial 14 evidence means more than a mere scintilla but less than a preponderance. Richardson v. 15 Perales, 402 U.S. 389, 401 (1971); Saelee v. Chater, 94 F.3d 520, 521-22 (9th Cir. 1996). 16 Substantial evidence is such relevant evidence as a reasonable mind might accept as 17 adequate to support a conclusion. Richardson, 402 U.S. at 401. This Court must review the 18 record as a whole and consider adverse as well as supporting evidence. Morgan v. Comm r, 19 169 F.3d 595, 599 (9th Cir. 1999). Where evidence is susceptible to more than one rational 20 interpretation, the ALJ's decision must be upheld. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 21 882 (9th Cir. 2006). 22 23 24 DISCUSSION A. The Sequential Evaluation 25 A claimant is disabled under Title II of the Social Security Act if he or she is unable "to 26 engage in any substantial gainful activity by reason of any medically determinable physical or 27 mental impairment which can be expected to result in death or . . . can be expected to last for 28 3 1 a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). The Commissioner 2 has established a five-step sequential process to determine whether a claimant is disabled. 20 3 C.F.R. §§ 404.1520, 416.920. 4 The first step is to determine whether the claimant is presently engaging in substantially 5 gainful activity. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). If the claimant is engaging 6 in substantially gainful activity, disability benefits will be denied. Bowen v. Yuckert, 482 U.S. 7 137, 141 (1987). Second, the ALJ must determine whether the claimant has a severe 8 impairment. Parra, 481 F.3d at 746. Third, the ALJ must determine whether the impairment 9 is listed, or equivalent to an impairment listed, in Appendix I of the regulations. Id. If the 10 impediment meets or equals one of the listed impairments, the claimant is presumptively 11 disabled. Bowen, 482 U.S. at 141. Fourth, the ALJ must determine whether the impairment 12 prevents the claimant from doing past relevant work. Pinto v. Massanari, 249 F.3d 840, 844-45 13 (9th Cir. 2001). If the claimant cannot perform his or her past relevant work, the ALJ proceeds 14 to the fifth step and must determine whether the impairment prevents the claimant from 15 performing any other substantially gainful activity. Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 16 2000). 17 The claimant bears the burden of proving steps one through four, consistent with the 18 general rule that at all times, the burden is on the claimant to establish his or her entitlement 19 to disability insurance benefits. Parra, 481 F.3d at 746. Once this prima facie case is 20 established by the claimant, the burden shifts to the Commissioner to show that the claimant 21 may perform other gainful activity. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 22 2006). 23 B. 24 25 Gurmeet S. Multani, M.D. Plaintiff argues that the ALJ failed to properly consider the opinion of Gurmeet S. Multani, M.D., plaintiff s treating physician. (Joint Stipulation at 3-7). 26 On June 16, 2005, Dr. Multani completed an Evaluation Form for mental disorders 27 indicating that he treated plaintiff once a month from August 8, 2003 though April 6, 2004. (AR 28 at 174-77). When asked to describe plaintiff s present illness, Dr. Multani replied: 4 1 [Plaintiff] has been feeling depressed and overwhelmed. 2 [Plaintiff] is anxious and irritable. [Plaintiff] has poor self- 3 esteem and is poorly motivated. [Plaintiff] has feelings of 4 helplessness, hopelessness and worthlessness. [Plaintiff] is 5 isolative and withdrawn. [Plaintiff] has been feeling dejected. 6 [Plaintiff] has insomnia and decreased energy. [Plaintiff] has 7 poor ability to carry out tasks. [Plaintiff] is unable to deal with 8 problems and issues. [Plaintiff] has poor ability to cope. 9 (AR at 174). Dr. Multani noted that plaintiff had no past history or family history of psychiatric 10 problems. (Id.). He noted that plaintiff did not need assistance to properly care for personal 11 affairs, do shopping, use transportation, pay bills maintain residence, care for grooming or 12 hygiene and that she could take care of her funds and basic needs. (AR at 176, 177). He 13 stated that plaintiff was calm and cooperative, had fair judgment and insight, was able to deal 14 with reality and did not present delusions, hallucinations, paranoid ideations, confusion or mood 15 swings. (AR at 175). He also noted that plaintiff had decreased energy and insomnia. (Id.). 16 Dr. Multani further noted that plaintiff had difficulty interacting appropriately and 17 communicating effectively with others. (AR at 176). He noted that plaintiff had poor 18 concentration, but could complete everyday household routines and follow and understand 19 simple written or oral instructions. (Id.). He opined that plaintiff was unable to carry out tasks 20 and work on goals and issues. (Id.). He concluded that plaintiff should not be able to go for 21 training for work or apprenticeship for eight hours a day. (Id.). Notably, when asked if 22 plaintiff s condition could be expected to improve, Dr. Multani replied affirmatively: Yes 23 [plaintiff s] condition can be expected to improve. (AR at 176-77). 24 The ALJ is charged with determining a claimant's residual functional capacity based on 25 an evaluation of the evidence as a whole. See 20 C.F.R. § 416.945; see also Magallanes v. 26 Bowen, 881 F.2d 747, 750 (9th Cir. 1989) (the ALJ is responsible for determining credibility and 27 resolving conflicts in medical testimony). The medical opinion of a treating physician is entitled 28 to special weight. 20 C.F.R. § 404.1527; Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998); 5 1 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). The opinions rendered by treating 2 physicians must be weighed using all of the factors provided in 20 C.F.R. Section 404.1527, 3 such as the length of the treatment relationship, frequency of examination, and the nature and 4 extent of the treatment relationship. Social Security Ruling ("SSR")1 96-2p; 20 C.F.R. § 5 404.1527(d)(2). Where the treating physician s opinion is not contradicted by another doctor, 6 it may be rejected only for clear and convincing reasons. Lester, 81 F.3d at 830. The ALJ 7 may reject a controverted opinion of a treating physician's opinion only by providing specific and 8 legitimate reasons supported by substantial evidence in the record. See Connett v. Barnhart, 9 340 F.3d 871, 874 (9th Cir. 2003); Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). 10 The ALJ can meet this burden by setting out a "detailed and thorough summary of the 11 facts and conflicting clinical evidence, stating his interpretation thereof, and making findings." 12 Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986). An ALJ may rely on the absence of 13 objective findings to reject a treating physician's opinion. Johnson v. Shalala, 60 F.3d 1428, 14 1432 (9th Cir. 1995) (inadequate clinical findings provide specific and legitimate basis for ALJ 15 to reject treating physician's opinion); Buckhart v. Bowen, 856 F.2d 1335, 1339 (9th Cir. 1988) 16 (proper to disregard uncontroverted treating physician's opinion when he fails to provide 17 objective descriptions of medical findings). 18 Here, the ALJ noted that the evaluation form completed by Dr. Multani indicated that Dr. 19 Multani treated plaintiff on[c]e a month from August 2003 through April 2004 for a major 20 depression episode and prescribed Prozac and Desyrel for her symptoms. 2 (AR at 17; see AR 21 1 22 23 24 25 26 27 28 Social Security Rulings are issued by the Commissioner to clarify the Commissioner s regulations and policies. Bunnell v. Sullivan, 947 F.2d 341, 346 n.3 (9th Cir. 1991). Although they do not have the force of law, they are nevertheless given deference unless they are plainly erroneous or inconsistent with the Act or regulations. Han v. Bowen, 882 F.2d 1453, 1457 (9th Cir. 1989). 2 Dr. Multani indicated that plaintiff s current medications were 20 mg of Prozac, to be taken every morning, and 150 mg of Desyrel, to be taken every morning. (AR at 176). Prozac is used for treating depression or obsessive-compulsive disorder (OCD) in adults and children. It is used to treat bulimia nervosa and panic disorder in adults. Drugs.com, http://www.drugs.com/cdi/prozac.html. Desyrel is used for treating depression. It may also be used for relief of an anxiety disorder (eg, sleeplessness, tension), chronic pain. Drugs.com, http://www.drugs.com/cdi/desyrel.html. 6 1 at 174, 176). The ALJ summarized Dr. Multani s findings in his decision: 2 Dr. Multani asserted [plaintiff] was feeling depressed, 3 overwhelmed, anxious, irritable, poor self-esteem, poor 4 motivation, helplessness, hopelessness, and worthlessness. 5 She was isolative and withdrawn with insomnia, and decreased 6 energy. Dr. Multani asserted [plaintiff] was unable to carry out 7 tasks and work on goals and issues, and she should not be 8 able to go for training for work or apprenticeship for eight hours 9 a day. He also asserted that [plaintiff s] symptoms were expected to improve. [AR at 174-77]. 10 11 (AR at 17). The ALJ opined that plaintiff may have experienced an episode of depression 12 around the time she testified that she underwent drug and alcohol rehabilitation treatment,3 but 13 concluded that there was no evidence that plaintiff s depression lasted 12 consecutive months 14 or longer. (AR at 17). 15 The ALJ did not err in his consideration of Dr. Multani s opinion. The ALJ noted that Dr. 16 Multani offered no clinical findings or treatment records to support his findings and that there 17 is no evidence of a longitudinal history of a psychiatric impairment, psychiatric hospitalizations, 18 or prolonged outpatient treatment. (AR at 17). An ALJ may properly reject all or part of an 19 examining physician's report if it contains inconsistencies, is conclusory, or inadequately 20 supported by clinical findings. Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); see 21 Baston v. Comm r, 359 F.3d 1190, 1195 (9th Cir. 2004) (affirming ALJ's rejection of the 22 controverted opinion of claimant s treating physician because the opinion was conclusory, in 23 checklist form and not supported by the record as a whole, or by objective medical findings).4 24 Moreover, the ALJ s decision regarding the severity of plaintiff s mental disorder was 25 26 27 28 3 At the hearing, plaintiff testified that she started using drugs and alcohol in 1986 (AR at 245), but has not used since she completed a rehabilitation program in November 2003. (AR at 244). 4 In support of her argument that the ALJ improperly rejected Dr. Multani s opinion, plaintiff also argues that the ALJ failed to meet his obligation to recontact Dr. Multani and further develop the record. (See Joint Stipulation at 5). This argument is addressed infra in Section C. 7 1 supported by substantial evidence in the record, including Dr. Multani s evaluation. Dr. Multani 2 stated that he treated plaintiff for an eight-month period and that plaintiff s symptoms were 3 expected to improve. See 20 C.F.R. §§ 404.1509, 416.909 (an impairment must have lasted 4 or must be expected to last for a continuous period of at least 12 months ). The ALJ noted that 5 plaintiff has not required, nor received, psychiatric treatment other than the use of a mild anti- 6 depressant, and that plaintiff reported that after 2003, she stopped seeing her psychiatrist and 7 stopped taking psychotropic medications. (AR at 17-18). In addition, the ALJ discussed the 8 findings of Dr. Linda M. Smith, who performed a consultative psychiatric evaluation of plaintiff 9 on August 9, 2005. (AR at 18; see AR at 178-83). The ALJ noted that plaintiff reported she 10 had some outpatient treatment for about a year until 2003, and denied any current mental 11 health treatment, counseling or therapy, and denied taking any psychotropic medications. (AR 12 at 18; see AR at 179). The ALJ noted that Dr. Smith diagnosed plaintiff with a depressive 13 disorder, not otherwise specified, and a current Global Assessment of Functioning ( GAF )5 14 score of 64, which indicates only some mild symptoms; that Dr. Smith asserted that overall 15 plaintiff might be mildly impaired, but she was not seriously impaired; found that plaintiff was 16 not impaired in her ability to do a number of work-related activities including her ability to 17 understand, remember, complete simple or complex commands, comply with job rules, respond 18 to change or maintain persistence and pace in the workplace setting; and found that plaintiff 19 was only mildly impaired in her ability to interact appropriately with supervisors, coworkers or 20 the public. (AR at 18; see AR at 182, 183). The ALJ also noted that multiple State Agency 21 review examiners determined that plaintiff has no severe psychiatric impairment. (AR at 19; 22 see AR at 195-213). In this case, the ALJ set forth in a detailed and thorough manner the 23 bases of his conclusions and substantial evidence supports the ALJ s decision. Thus, the ALJ 24 25 26 27 28 5 A GAF score is a rough estimate of an individual s psychological, social, and occupational functioning used to reflect the individual s need for treatment. Vargas v. Lambert, 159 F.3d 1161, 1164 n.2 (9th Cir. 1998). A GAF score between 61 and 70 indicates [s]ome mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. See Diagnostic and Statistical Manual of Mental Disorders 34 (4th. ed, rev. 2000). 8 1 did not err in his consideration of Dr. Multani s opinion. 2 C. The ALJ s Duty to Develop the Record 3 Plaintiff argues that the ALJ failed to meet his duty to recontact Dr. Multani to obtain the 4 medical records documenting his treatment of plaintiff from August 2003 through April 2004. 5 (Joint Stipulation at 11-12). Defendant argues that the requisite ambiguity to trigger the ALJ s 6 duty to develop the record was not present and that the record was adequate to allow the ALJ 7 to make a disability determination. (Joint Stipulation at 12-13). 8 In Social Security cases, the ALJ has a special duty to fully and fairly develop the record 9 and to assure that the claimant's interests are considered. Brown v. Heckler, 713 F.2d 441, 443 10 (9th Cir. 1983); Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 1991). As noted above, 11 plaintiff was unrepresented at the hearing. (AR at 234-35). Thus, the ALJ's duty to develop the 12 record in this case was "heightened." See, e.g., Cox v. Califano, 587 F.2d 988, 991 (9th Cir. 13 1978); Higbee v. Sullivan, 975 F.2d 558, 561-562 (9th Cir. 1992). The duty to develop the 14 record arises where the record before the ALJ is ambiguous or inadequate to allow for proper 15 evaluation of the evidence. 20 C.F.R. §§ 404.1512(e), 416.912(e); Mayes v. Massanari, 276 16 F.3d 453, 459 (9th Cir. 2001). When the evidence is ambiguous, or if the ALJ finds that the 17 record is inadequate to allow for proper evaluation of disability, the ALJ's duty to develop the 18 record is triggered and he or she must "conduct an appropriate inquiry." Smolen v. Chater, 80 19 F.3d 1273, 1288 (9th Cir. 1996). 20 Plaintiff appears to argue that the absence of treatment notes or other evidence to 21 support Dr. Multani s evaluation of plaintiff s mental disorders triggered the ALJ's duty to 22 develop the record. Plaintiff's claim is without merit. Dr. Multani s report detailing his findings 23 was clear and unambiguous. (AR at 174-77). Thus, the requisite ambiguity or inadequacy in 24 Dr. Multani s findings did not trigger the ALJ's duty to further develop the record. See Mayes, 25 276 F.3d at 459. Moreover, there was substantial evidence in the record that supported the 26 ALJ s determination that plaintiff did not suffer from a severe mental impairment, including the 27 findings of Dr. Smith, who performed a consultative psychiatric evaluation of plaintiff (AR at 28 178-83), and the findings of the State Agency review examiners (AR at 195-213). 9 1 Moreover, although the ALJ has a duty to develop the record, the burden of proving 2 disability remains on plaintiff. See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). 3 Plaintiff had multiple opportunities to submit medical records into evidence and inform the ALJ 4 whether records documenting her treatment by Dr. Multani existed. (See AR at 9, 25, 32, 37). 5 However, plaintiff failed to do so. Moreover, in December 2005, the State Agency physician 6 noted that plaintiff had submitted no new evidence and had no new complaints (AR at 210, 7 212), and, on the Disability Report dated February 14, 2006, plaintiff further indicated that she 8 had not received any recent treatment for emotional or mental problems. (AR at 99). 9 Thus, plaintiff failed to meet the burden to establish that she suffered from a severe 10 medically determinable mental impairment. The ALJ found the evidence in the record sufficient 11 to make his disability determination and, accordingly, the ALJ's duty to develop the record was 12 not triggered. Thus, the ALJ s failure to recontact Dr. Multani does not constitute error.6 13 14 15 16 17 6 Plaintiff also argues that her testimony at the April 18, 2007 ALJ hearing triggered the ALJ's duty to develop the record. (Joint Stipulation at 11). Plaintiff alleges that she testified that she was seeing Dr. Multani at the time of the hearing and the ALJ should have contacted Dr. Multani to obtain her current treatment records. The record, however, does not support plaintiff s assertion. At the hearing the following exchange took place between plaintiff and the ALJ: ALJ: . . . You ve had some, some depression. Are you seeing any psychiatrist or psychologist? Plaintiff: Well, I don t - - only one that I seen is Dr. Multanny (Phonetic). I don t, I don t, I don t even know what he is. I don t know if he - - ALJ: What do you - - 22 Plaintiff: - - a psychologist - - 23 ALJ: What do you see him for? 24 Plaintiff: The depression. 18 19 20 21 25 26 27 28 (AR at 239-40). Plaintiff further testified that she took Trazodone (the generic name for Desyrel) and Fluoxetine (generic Prozac) for her depression and that she got these medications from Dr. Multani. (AR at 240). Plaintiff s testimony does not, as plaintiff argues, state that she was currently seeing Dr. Multani. See generally Robbins, 466 F.3d at 882 (where evidence is susceptible to more than one rational interpretation, the ALJ's decision must be upheld). Moreover, as discussed above, plaintiff had the burden of proving disability and there is no evidence in the record that suggests that she was treated by Dr. Multani after April 2004. Thus, plaintiff s argument fails. 10 1 D. The ALJ s Credibility Findings 2 Plaintiff argues that the ALJ failed to specify which portions of plaintiff s testimony, as 3 well as the testimony of Herman Hill, plaintiff s husband, and Barbara Fields, plaintiff s mother, 4 he discredited. (Joint Stipulation at 14-16). Defendant argues that the ALJ properly considered 5 the statements made by plaintiff, her husband and mother and made proper findings regarding 6 their credibility. (Joint Stipulation at 16-18). 7 An ALJ is not "required to believe every allegation of disabling pain" or other 8 non-exertional impairment. See Fair v. Bowen, 885 F.2d 597, 603 (9th Cir.1989). However, 9 in order to discredit a claimant's testimony when a medical impairment has been established, 10 the ALJ must provide "specific, cogent reasons for the disbelief." Morgan, 169 F.3d at 599 11 (quoting Lester, 81 F.3d at 834). An ALJ must "cit[e] the reasons why the [claimant's] testimony 12 is unpersuasive." Id. An ALJ may consider many factors in weighing a claimant's credibility, 13 including "(1) ordinary techniques of credibility evaluation, such as the claimant's reputation for 14 lying, prior inconsistent statements concerning the symptoms, and other testimony by the 15 claimant that appears less than candid; (2) unexplained or inadequately explained failure to 16 seek treatment or to follow a prescribed course of treatment; and (3) the claimant's daily 17 activities." Smolen, 80 F.3d at 1284; see Orn, 495 F.3d at 637-39. 18 In his decision, the ALJ determined that plaintiff s medically determinable impairments 19 could reasonably be expected to produce some of her alleged symptoms. (AR at 19). At the 20 hearing, plaintiff testified that in 2002 she withdrew from school because of numbness and 21 tingling in her hands, bad headaches and because she could hardly move her leg. (AR at 238). 22 Plaintiff testified that both wrists hurt if she uses her fingers too long and can only use a 23 keyboard for about an hour before both wrists begin to bother her. (AR at 241-42). Plaintiff 24 testified that her left wrist sometimes gets enlarged and that she suffers from a great deal of 25 pain in her right hand. (AR at 247). Plaintiff also testified that she gets frequent headaches, 26 is nauseated at times and sometimes gets depressed and does not want to do anything. (AR 27 at 242, 253). 28 The ALJ discredited plaintiff s allegations of total disability and determined that plaintiff 11 1 retained the residual capacity to perform light work with some limitation in the use of her hands. 2 (AR at 14-19). Contrary to plaintiff s allegations, the ALJ clearly identified which portions of 3 plaintiff s testimony he found not credible and properly explained what evidence undermined 4 the testimony at issue. As discussed below, the ALJ's credibility finding is supported by 5 substantial evidence in the record, and his reasons for discrediting plaintiff s subjective 6 complaints withstands scrutiny. See Thomas, 278 F.3d at 959 (if an ALJ's credibility finding is 7 supported by substantial evidence in the record, a reviewing court may not engage in 8 second-guessing). 9 The ALJ properly cited to plaintiff s limited treatment in concluding that plaintiff s 10 allegations of being totally debilitated are not borne out by the evidence. (AR at 19). See 11 Smolen, 80 F.3d at 1284 (an ALJ may consider unexplained or inadequately explained failure 12 to seek treatment or to follow a prescribed course of treatment in weighing a claimant's 13 credibility). The ALJ determined that the objective medical evidence and treatment records 14 show that plaintiff was generally seen for refills of her medication for diabetes mellitus and 15 hypertension, and only sporadically treated for mild symptoms resulting from her physical 16 impairments. (AR at 19). The ALJ noted that plaintiff had a history of ganglion cyst on the left 17 wrist, but there was no objective evidence or clinical findings that plaintiff suffered from carpal 18 tunnel syndrome. (AR at 16). The ALJ determined that it was reasonable that plaintiff might 19 have some pain and symptoms as a result of the ganglion cyst, but, after citing to her 20 conservative treatment, discredited her allegations of severe pain. (Id.). 21 With regard to plaintiff s headaches, the ALJ noted that treatment has been on an as 22 needed basis with no evidence to indicate that it should be any more aggressive. (AR at 16). 23 The ALJ noted that medical records show no evidence of persistent complaints or any 24 significant problems related to this condition. (Id.). The ALJ noted that the medical records 25 show only routine and conservative treatment with regard to her back problems and no 26 evidence of any significant back problems. (AR at 16). In addition, the ALJ noted that plaintiff 27 admitted that her back pain improved with lying down and taking medication. (Id.; see AR at 28 185). The ALJ also clearly stated that he found that plaintiff s alleged side effects of fatigue and 12 1 inability to concentrate or remember were not substantiated in the medical record. (AR at 19). 2 The ALJ noted that plaintiff s depression appears to be not severe and adequately controlled 3 with mild anti-depressive medication with no more than mild functional limitations. (Id.). 4 Such evidence of conservative treatment is sufficient to discount plaintiff s testimony 5 regarding the severity of her impairments. See Parra, 481 F.3d at 750-51; see also Fair, 885 6 F.2d at 604. Moreover, the record reflects that plaintiff responds well to medications. Such a 7 response to conservative medical treatment undermines plaintiff s allegations regarding the 8 disabling nature of her pain. The ALJ also noted that plaintiff was not always compliant with 9 her medications and opined that such non-compliance could reasonably account for her 10 symptoms and elevated blood pressure and glucose levels.7 (AR at 16). 11 Next, the ALJ stated he found plaintiff s allegations of total disability inconsistent with her 12 daily activities. With respect to daily activities, the Ninth Circuit has held that a specific finding 13 that a claimant is able to spend a substantial part of her day engaged in pursuits involving the 14 performance of physical functions that are transferable to a work setting may be sufficient to 15 discredit a claimant's allegations of pain. Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 16 2001). The Ninth Circuit, however, has cautioned that "many home activities are not easily 17 transferable to what may be the more grueling environment of the workplace, where it might 18 be impossible to periodically rest or take medication." Fair, 885 F.2d at 603. 19 Here, the ALJ noted that plaintiff s statements, and the statements of plaintiff s husband, 20 Herman Hill, indicate that plaintiff engaged in a wide range of daily activities including 21 preparing meals, shopping, cleaning, ironing, doing the laundry, paying bills and handling her 22 finances, and talking on the telephone as well as reading, watching television, and attending 23 religious activities. (AR at 19; see AR at 81-89, 90-97). The ALJ noted that statements from 24 plaintiff and Mr. Hill stated plaintiff could perform very little physical activity; that she was very 25 limited in her ability to lift, carry, stand and walk; and that she has difficulty getting along with 26 27 28 7 In his decision, the ALJ stated: . . . medical records dated January 2004, December 2004, and March 2005 note [plaintiff] had been out of medication for as long as two months at one point, which could reasonably account for [plaintiff s] symptoms and elevated blood pressure and glucose levels. (AR at 16). 13 1 others, remembering things and is easily distracted. (AR at 19). Yet, the ALJ noted that 2 plaintiff testified that she attends college classes from 6 pm to 9 pm, 3 days per week, and she 3 admitted that she could likely return to her past work as a tax preparer but that she was 4 convicted of tax fraud. (Id.; see AR at 245, 254-55; see also AR at 237-38). The ALJ 5 acknowledged that while [plaintiff s] ability to perform these activities does not necessarily 6 prove she can obtain and maintain employment, her ability to perform these activities does tend 7 to establish that [plaintiff] retains the physical and mental capacity to perform work like 8 activities. (AR at 19). The ALJ properly cited to plaintiff's daily activities in support of his 9 decision to discredit her testimony of disabling pain and severe functional limitations. See SSR 10 95-5p; Smolen, 80 F.3d at 1284 (an ALJ may consider a claimant s daily activities in weighing 11 a claimant's credibility). 12 Plaintiff also argues that the ALJ did not properly consider the testimony of Mr. Hill, 13 plaintiff s husband. A social security claimant may provide evidence from other sources to 14 show the severity of her impairment and how the impairment affects her ability to work. 20 15 C.F.R. § 404.1513(d). Other sources include, but are not limited to, nurse-practitioners, 16 physicians' assistants, therapists, educational personnel, social welfare agency personnel, 17 relatives, friends and clergy. Id. An ALJ may reject the testimony of an "other source" by 18 providing reasons germane to that witness. See Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 19 1993); Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001). 20 Mr. Hill is properly categorized as an "other source" and the ALJ may consider his 21 opinion regarding the severity of plaintiff's impairment and how it affects her ability to work. See 22 20 C.F.R. § 404.1513(d). An ALJ must consider the testimony of a competent lay witness a 23 person who is in a position to observe a claimant regularly and testifies regarding the claimant's 24 symptoms and ability to work. Dodrill, 12 F.3d at 919. However, an ALJ need not meet the 25 impossible burden of mentioning every piece of evidence presented in his or her decision. 26 Howard v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003); Orcutt v. Barnhart, 2005 U.S. Dist. 27 LEXIS 39731, at *25 (C.D. Cal. Sept. 27, 2005). Silent disregard of competent lay witness 28 testimony is harmless error if the Court can confidently conclude that no reasonable ALJ, when 14 1 fully crediting the testimony at issue, could reach a different disability determination. Stout v. 2 Comm'r, 454 F. 3d 1050, 1056 (9th Cir. 2006). 3 Mr. Hill completed a third-party questionnaire describing plaintiff s functional limitations 4 dated June 15, 2005. (AR at 81-89). When asked to describe what plaintiff does all day, Mr. 5 Hill stated: She eats, talk, watch television, take medicine, use the restroom, sleep, housework, 6 use the phone, pay bills, cook, complain feel depressed, express concerns, show fear, some 7 interaction with others. [sic] (AR at 81). Mr. Hill indicated that plaintiff takes care of him and 8 her two boys. (AR at 82). He stated that plaintiff prepares meals once or twice a week, does 9 laundry and some cleaning, drives a car, goes out alone, shops in stores for food, household 10 items and clothes and is able to pay bills, count change, handle a savings account, and use a 11 checkbook or money orders. (AR at 83-84). Mr. Hill then indicated that plaintiff does very little 12 physical activity, that her condition affects her ability to do a number of work related activities8 13 and that she can only walk 100 to 150 yards before needing to rest for 5 to 10 minutes. (AR 14 at 86). He also stated that plaintiff is not good at remembering details for a long period of time, 15 that she reads ok, may need to read written instructions several times, and does not handle 16 stress well. (AR at 86-87). Mr. Hill remarked that the combination of plaintiff s medications 17 have an effect on her ability to concentrate, handle stress and definitely has caused physical 18 limitations to her body. (AR at 88). He went on to note that her days are filled with up and 19 down feelings of being ok, not ok. Reading compression [sic] is almost zero . . . staying 20 focused is a real challenge for her. Medicine causes mood swings dizziness and sleep . . . she 21 loves to be isolated. (AR at 88). 22 The ALJ discussed Mr. Hill s testimony in his decision and noted that Mr. Hill s 23 statements indicate that plaintiff engages in a wide range of daily activities and that, although 24 plaintiff s ability to perform these activities does not necessarily prove she can obtain and 25 maintain employment, her ability to perform these activities establishes that she retains the 26 27 28 8 When asked to circle the listed items that plaintiff s illness, injuries or conditions affected, Mr. Hill circled all of the listed items: lifting, squatting, bending, standing, reaching, walking, sitting, kneeling, talking, hearing, seeing, memory, stair-climbing, using hands, completing tasks, concentration, understanding, following instructions and getting along with others. (AR at 86). 15 1 physical and mental capacity to perform work like activities. (AR at 19). The ALJ also noted 2 that the statements made by Mr. Hill concerning the intensity, duration and limiting effects of 3 plaintiff s alleged symptoms are not entirely credible given the lack of supporting objectiv e 4 evidence. (Id.). The ALJ properly cited to valid bases for discrediting Mr. Hill s testimony an 5 d, thus, the Court finds that the ALJ did not err in his treatment of Mr. Hill s testimony. See 6 Dodrill, 12 F.3d at 919 (an ALJ may reject the testimony of an "other source" by providing 7 reasons germane to that witness). 8 In addition, even if the ALJ fully credited Mr. Hill s testimony, the Court finds that no 9 reasonable ALJ could have reached a different disability determination based solely on his 10 testimony. See Stout, 454 F.3d at 1056. Thus, the Court finds that even if the ALJ erred by 11 discrediting Mr. Hill's testimony, any such error is harmless and cannot serve as the basis for 12 remand. See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (a decision of the ALJ will 13 not be reversed for errors that are harmless); see also 20 C.F.R. §§ 404.1528, 404.1529 14 (objective medical evidence of an underlying impairment is necessary to establish disability). 15 Plaintiff also argues that the ALJ did not properly consider the testimony of Barbara 16 Fields, plaintiff s mother. At the hearing, Ms. Fields testified that plaintiff s testimony was true 17 and accurate to the best of her knowledge and added: 18 [Plaintiff] stays depressed. She stays stressing [sic] out, and 19 I try to comfort her and talk to her and be with her, but it, it 20 doesn t seem to happen. She cries a lot. She - - her hands 21 swell when she try [sic] to type and stuff. That s why the, the 22 time distance between her working and everything, once she 23 worked and hour, her hands swells, and it usually - - they 24 usually stay for about two or three days. You soak them in 25 water and salt and stuff like that trying to get them down, but 26 they usually just puff up really bad. 27 28 (AR at 246). In the decision, the ALJ noted that Ms. Fields testified at the hearing that plaintiff s 16 1 testimony was true and accurate. (AR at 19; see AR at 246). The ALJ noted that Ms. Fields 2 testified that plaintiff was stressed and depressed, that she cried a lot and that her hand swells 3 when she works at a keyboard too long. (AR at 19; see AR at 246). After considering the 4 medical evidence and the evidence in the record, the ALJ concluded that her statements 5 concerning the intensity, duration and limiting effects of these symptoms are simply not entirely 6 credible given the lack of supporting objective evidence. (AR at 19). The Court finds that the 7 lack of supporting evidence for Ms. Fields brief testimony regarding the severity of plaintiff s 8 symptoms is a proper basis to discredit Ms. Fields testimony. See Dodrill, 12 F.3d at 919. 9 Thus, the ALJ did not err in his consideration of her testimony. 10 Moreover, even if the ALJ fully credited Ms. Fields testimony, the Court finds that no 11 reasonable ALJ could have reached a different disability determination based solely on her 12 testimony, which simply echoed and supported plaintiff s own subjective complaints. See Stout, 13 454 F.3d at 1056. Thus, the Court finds that even if the ALJ had erred by discrediting Ms. 14 Fields testimony, any such error is harmless and could not serve as the basis for remand. See 15 Burch, 400 F.3d at 679 (a decision of the ALJ will not be reversed for errors that are harmless). 16 ORDER 17 18 After careful consideration of all documents filed in this matter, this Court finds that the 19 decision of the Commissioner is supported by substantial evidence and that the Commissioner 20 applied the proper legal standards. The Court, therefore, AFFIRMS the decision of the 21 Commissioner of Social Security Administration. 22 23 24 25 LET JUDGMENT BE ENTERED ACCORDINGLY. DATED: September 3, 2008 /s/-Jennifer T. Lum JENNIFER T. LUM UNITED STATES MAGISTRATE JUDGE 26 27 28 17

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