Ronald Florence v. Michael J Astrue, No. 5:2008cv00883 - Document 19 (C.D. Cal. 2009)
Court Description: OPINION AND ORDER by Magistrate Judge Rosalyn M. Chapman; IT IS ORDERED that: (1) plaintiffs request for relief is denied; and (2) the Commissioners decision is affirmed, and Judgment shall be entered in favor of defendant. (jy)
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 RONALD FLORENCE, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) No. EDCV 08-0883-RC OPINION AND ORDER 17 18 Plaintiff Ronald Florence filed a complaint on July 10, 2008, 19 seeking review of the decision denying his application for disability 20 benefits. 21 complaint, and the parties filed a joint stipulation on January 16, 22 2009. On December 1, 2008, the Commissioner answered the 23 24 BACKGROUND 25 I 26 On March 12, 2003, plaintiff applied for disability benefits 27 under the Supplemental Security Income ( SSI ) program of Title XVI of 28 the Act, 42 U.S.C. § 1382(a), claiming an inability to work since 1 October 1, 2002, due to blindness and headaches. Certified 2 Administrative Record ( A.R. ) 40-42, 59. 3 was held before Administrative Law Judge Bernard A. Trembly ( ALJ 4 Trembly ) on October 1, 2004, A.R. 29, 164-82, and on February 15, 5 2005, ALJ Trembly found plaintiff is not disabled. 6 Appeals Council denied review, A.R. 3-6, and on October 19, 2005, 7 plaintiff filed his first federal court complaint: 8 Astrue, EDCV 05-0954-RC ( Florence I ).1 9 granted plaintiff s request for relief and remanded the matter to the An administrative hearing A.R. 7-14. The Florence v. On July 23, 2007, this Court 10 Social Security Administration ( SSA ) under sentence four of 42 11 U.S.C. § 405(g), A.R. 195-205, and the Appeals Council, in turn, 12 remanded the matter for an administrative hearing before 13 Administrative Law Judge F. Keith Varni ( the ALJ ). 14 310-18. 15 A.R. 183-94, and that decision is now before this Court. A.R. 206-08, On April 24, 2008, the ALJ found plaintiff is not disabled, 16 17 II 18 The plaintiff, who was born on June 27, 1959, is currently 50 19 years old. A.R. 40, 167. He is a high school graduate, and has 20 previously worked as a general laborer and an assistant manager at a 21 mobile home park. A.R. 60, 65, 68-75, 167. 22 23 This Court, in its Florence I decision, summarized some of the 24 relevant medical evidence, as follows: 25 // 26 27 28 1 Pursuant to Fed. R. Evid. 201, this Court takes judicial notice of relevant documents in Florence I. 2 1 The plaintiff was severely injured in an automobile accident 2 in May of 1979, sustaining injuries to his head, face, and 3 lower back, as well as losing his right eye. 4 April 2, 2003, Lilian Chang, M.D., an internist, examined 5 plaintiff, noting his right eye was missing and finding 6 plaintiff s [v]isual fields to confrontation are intact on 7 the left with mildly decreased visual acuity on the left 8 and a pterygium with minimal encroachment on the left pupil. 9 The plaintiff s vision was determined to be 20/70 in his [¶] On 10 left eye, without glasses, and 20/50, with pinhole 11 correction. 12 mildly decreased lumbar spine range of motion due to pain 13 and mildly decreased hearing bilaterally, although 14 plaintiff was able to carry out conversation within a normal 15 speaking distance. 16 carry 50 pounds occasionally and 25 pounds frequently; he 17 can stand and walk for at least 6 hours in an 8-hour work 18 day, and sit for 8 hours in an 8-hour work day; he can 19 frequently bend, stoop and crouch; he has mild visual 20 limitations; but he is not otherwise limited. 21 July 29, 2003, Donald E. Shearer, M.D., examined plaintiff 22 and diagnosed him with an enucleated right eye, a pterygium 23 in the left eye, a left eye refractive error, and 24 presbyopia. 25 acuity in his left eye is 20/60, without glasses, and 20/30, 26 with glasses. Additionally, Dr. Chang found plaintiff had Dr. Chang opined plaintiff: can lift and [¶] On Dr. Shearer determined plaintiff s visual 27 28 Florence I at 2:21-4:2 (footnotes omitted; citations omitted). 3 1 On October 16, 2007, plaintiff had surgery to remove the 2 pterygium from his left eye. A.R. 295-303. On January 17, 2008, Dr. 3 Shearer reexamined plaintiff, and diagnosed him with an enucleated 4 right eye, with ball implant, and a left eye recurrent pterygium, as 5 well as corneal scarring from excision of the pterygium, with 6 uncorrected vision of 20/70 in his left eye and best possible 7 correction 20/40. A.R. 236-40. 8 9 Additionally, plaintiff has received some psychiatric evaluations 10 and treatment. 11 plaintiff was in prison, a staff psychiatrist diagnosed plaintiff with 12 unspecified depression, noting plaintiff s wife had recently died, and 13 determined plaintiff s Global Assessment of Functioning ( GAF ) was 14 60.2 15 with no depression, anxiety or other psychiatric problems. 16 On May 4, 2001, J. Howlin, Ed.D., a staff psychologist, diagnosed 17 plaintiff with a depressive disorder, noting plaintiff was concerned 18 about his parole. 19 Wellbutrin3 to treat his depression. A.R. 114. Between April 14, 2000, and November 22, 2002, while Subsequently in 2000, plaintiff was doing well -- A.R. 111. A.R. 112. Plaintiff was subsequently prescribed Id. On August 16, 2001, a staff 20 21 22 23 24 25 26 27 28 2 A GAF of 51-60 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 coworkers). American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 34 (4th ed. (Text Revision) 2000). 3 Wellbutrin . . . is given to help relieve certain kinds of major depression. [¶] . . . Unlike the more familiar tricyclic antidepressants, such as Elavil, Tofranil, and others, Wellbutrin tends to have a somewhat stimulating effect. The PDR Family Guide to Prescription Drugs, 737 (8th ed. 2000). 4 1 physician examined plaintiff, who was requesting Wellbutrin, and found 2 plaintiff had no psychiatric diagnosis and malingering should be 3 ruled out. 4 no complaints and was not depressed. 5 Dennis C. Olson, Ph.D., a staff psychologist, examined plaintiff and 6 found he was alert and oriented, and not psychotic or suicidal but was 7 worried, and diagnosed plaintiff with an unspecified psychotic 8 disorder and hallucinogen dependence in early full remission 9 (provisional). A.R. 108. On September 12, 2001, plaintiff stated he had A.R. 106. On May 7, 2002, A.R. 99. 10 11 On April 12, 2003, Suzanne Dupee, M.D., a psychiatrist, examined 12 plaintiff and diagnosed him with a history of alcohol dependence in 13 full, sustained remission and cannabis abuse or dependence, and 14 determined plaintiff s GAF was 70-75.4 15 plaintiff, who was homeless at the time, appeared to be having 16 significant social problems, but not psychiatric problems, and he had 17 no impairment in his ability to: understand, remember, and carry out 18 detailed and complex or simple one or two-step instructions; relate 19 and interact with supervisors, coworkers, and the public; maintain A.R. 130. Dr. Dupee opined 20 21 22 23 24 25 26 27 28 4 A GAF of 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[,] American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 34 (4th ed. (Text Revision) 2000), while a GAF of 71-80 indicates [i]f symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). Id. 5 1 concentration, attention, persistence, and pace; associate with day- 2 to-day work activity, including attendance and safety; adapt to the 3 stresses common to a normal work environment, including attendance and 4 safety; and maintain regular attendance in the workplace and perform 5 work activities on a consistent basis. A.R. 126-31. 6 7 On June 27, 2007, D. Durant-Wilson, a psychologist, examined 8 plaintiff and diagnosed him as having a bipolar 1 disorder, most 9 recent episode hypomanic, and cannabis abuse, noted plaintiff had been 10 prescribed Depakote,5 and opined plaintiff remained psychologically 11 stable during his incarceration at the California Rehabilitation 12 Center. 13 treatment on parole. A.R. 257-59. Plaintiff continued to receive outpatient A.R. 243-56, 261-81. 14 15 On January 8, 2008, Linda M. Smith, M.D., a psychiatrist, 16 examined plaintiff and diagnosed him with polysubstance abuse, 17 possibly abstaining, and determined his GAF was 85.6 18 Dr. Smith found plaintiff was not a credible historian, was vague and 19 evasive, and highly manipulative, opining: A.R. 224-35. 20 21 22 23 24 25 26 27 28 5 Among other uses, Depakote . . . [is] used to control the manic episodes periods of abnormally high spirits and energy that occur in bipolar disorder (manic depression). The PDR Family Guide to Prescription Drugs, 194 (8th ed. 2000). 6 A GAF of 85 indicates [a]bsent or minimal symptoms (e.g., mild anxiety before an exam), good functioning in all areas, interested and involved in a wide range of activities, socially effective, generally satisfied with life, no more than everyday problems or concerns (e.g., an occasional argument with family members). American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 34 (4th ed. (Text Revision) 2000). 6 1 [Plaintiff] attempted to be falsely ingratiating at times 2 and he attempted flattery at times. 3 animated and he gestured normally. 4 carefully gauging how I was responding to him and then he 5 would shift what he was saying in response. 6 depended on how I behaved and this was very manipulative. 7 He was superficially cooperative. 8 information spontaneously. 9 agitation or retardation. He was normally He appeared to often be This all He was able to volunteer There was no psychomotor He did not appear to be genuine 10 and truthful. There did appear to be substantial evidence 11 of exaggeration and attempting to maneuver around my 12 questions, etc. 13 be very credible. None of the interview actually appeared to 14 15 A.R. 224-25, 228. Dr. Smith determined that plaintiff has no mental 16 disorder, but has drug seeking behavior for Wellbutrin, stating: 17 18 There certainly is no evidence of bipolar disorder, no 19 evidence of [post-traumatic stress disorder] and no evidence 20 of any psychosis. 21 related to substance abuse. 22 has no problem at all even off medication, but when he does 23 want medication it is always Wellbutrin and nothing else 24 with a lot of drug seeking behavior for Wellbutrin; this is 25 a drug of abuse in prison. 26 and joked throughout the interview. 27 tack of being flattering and ingratiating to me today. 28 says he is no longer using drugs. There is a long criminal history often In his prison records he often He frequently smiled and laughed 7 He generally took the He He probably does have 1 antisocial personality traits with the level of manipulation 2 and his criminal background, etc., but I do not believe he 3 would be impaired in his ability to work from a psychiatric 4 standpoint if he gave a fair effort. 5 6 A.R. 230-31. Thus, Dr. Smith found plaintiff was not impaired in his 7 ability to: 8 commands; interact appropriately with supervisors, co-workers, or the 9 public; comply with job rules such as safety and attendance; respond 10 to changes in the normal workplace setting; and maintain persistence 11 and pace in a normal workplace setting. understand, remember or complete simple or complex A.R. 231-35. 12 13 DISCUSSION 14 III 15 The Court, pursuant to 42 U.S.C. § 405(g), has the authority to 16 review the decision denying plaintiff disability benefits to determine 17 if his findings are supported by substantial evidence and whether the 18 Commissioner used the proper legal standards in reaching his decision. 19 Sam v. Astrue, 550 F.3d 808, 809 (9th Cir. 2008) (per curiam); Vasquez 20 v. Astrue, 547 F.3d 1101, 1104 (9th Cir. 2008). 21 22 In determining whether the Commissioner s findings are supported 23 by substantial evidence, [this Court] must review the administrative 24 record as a whole, weighing both the evidence that supports and the 25 evidence that detracts from the Commissioner s conclusion. 26 v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Holohan v. Massanari, 27 246 F.3d 1195, 1201 (9th Cir. 2001). 28 reasonably support either affirming or reversing the decision, [this 8 Reddick Where the evidence can 1 Court] may not substitute [its] judgment for that of the 2 Commissioner. 3 cert. denied, 128 S. Ct. 1068 (2008); Vasquez, 547 F.3d at 1104. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007), 4 5 The claimant is disabled for the purpose of receiving benefits 6 under the Act if he is unable to engage in any substantial gainful 7 activity due to an impairment which has lasted, or is expected to 8 last, for a continuous period of at least twelve months. 9 § 1382c(a)(3)(A); 20 C.F.R. § 416.905(a). 42 U.S.C. The claimant bears the 10 burden of establishing a prima facie case of disability. Roberts v. 11 Shalala, 66 F.3d 179, 182 (9th Cir. 1995), cert. denied, 517 U.S. 1122 12 (1996); Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996). 13 14 The Commissioner has promulgated regulations establishing a five- 15 step sequential evaluation process for the ALJ to follow in a 16 disability case. 17 must determine whether the claimant is currently engaged in 18 substantial gainful activity. 19 Second Step, the ALJ must determine whether the claimant has a severe 20 impairment or combination of impairments significantly limiting him 21 from performing basic work activities. 22 so, in the Third Step, the ALJ must determine whether the claimant has 23 an impairment or combination of impairments that meets or equals the 24 requirements of the Listing of Impairments ( Listing ), 20 C.F.R. 25 § 404, Subpart P, App. 1. 26 Fourth Step, the ALJ must determine whether the claimant has 27 sufficient residual functional capacity despite the impairment or 28 various limitations to perform his past work. 20 C.F.R. § 416.920. In the First Step, the ALJ 20 C.F.R. § 416.920(b). 20 C.F.R. § 416.920(c). 20 C.F.R. § 416.920(d). 9 If not, in the If If not, in the 20 C.F.R. § 416.920(f). 1 If not, in Step Five, the burden shifts to the Commissioner to show 2 the claimant can perform other work that exists in significant numbers 3 in the national economy. 20 C.F.R. § 416.920(g). 4 5 Moreover, where there is evidence of a mental impairment that may 6 prevent a claimant from working, the Commissioner has supplemented the 7 five-step sequential evaluation process with additional regulations. 8 Maier v. Comm r of the Soc. Sec. Admin., 154 F.3d 913, 914 (9th Cir. 9 1998) (per curiam). First, the ALJ must determine the presence or 10 absence of certain medical findings relevant to the ability to work. 11 20 C.F.R. § 416.920a(b)(1). 12 these medical findings, the ALJ must rate the degree of functional 13 loss resulting from the impairment by considering four areas of 14 function: (a) activities of daily living; (b) social functioning; (c) 15 concentration, persistence, or pace; and (d) episodes of decompensa- 16 tion. 17 of loss, the ALJ must determine whether the claimant has a severe 18 mental impairment. 19 impairment is found to be severe, the ALJ must determine if it meets 20 or equals a Listing. 21 Listing is not met, the ALJ must then perform a residual functional 22 capacity assessment, and the ALJ s decision must incorporate the 23 pertinent findings and conclusions regarding the claimant s mental 24 impairment, including a specific finding as to the degree of limita- 25 tion in each of the functional areas described in [§ 416.920a(c)(3)]. 26 20 C.F.R. § 416.920a(d)(3), (e)(2). Second, when the claimant establishes 20 C.F.R. § 416.920a(c)(2-4). Third, after rating the degree 20 C.F.R. § 416.920a(d). Fourth, when a mental 20 C.F.R. § 416.920a(d)(2). Finally, if a 27 28 Applying the five-step sequential evaluation process, the ALJ 10 1 found plaintiff has not engaged in substantial gainful activity since 2 his alleged application date, March 12, 2003. 3 then found plaintiff has a severe bilateral ocular impairment with 4 enucleation in the right eye and [a] history of substance abuse[,] 5 but his mental impairment is not severe,7 (Step Two); and he does not 6 have an impairment or combination of impairments that meets or equals 7 a Listing. 8 past relevant work. 9 plaintiff can perform a significant number of jobs in the national 10 (Step Three). (Step One). The ALJ The ALJ next determined plaintiff has no (Step Four). Finally, the ALJ determined economy; therefore, he is not disabled. (Step Five). 11 12 13 IV The Step Two inquiry is a de minimis screening device to dispose 14 of groundless claims. Smolen, 80 F.3d at 1290; Webb v. Barnhart, 15 433 F.3d 683, 687 (9th Cir. 2005). 16 at Step Two of the sequential evaluation process increases the 17 efficiency and reliability of the evaluation process by identifying at 18 an early stage those claimants whose medical impairments are so slight 19 that it is unlikely they would be found to be disabled even if their 20 age, education, and experience were taken into account. 21 Yuckert, 482 U.S. 137, 153, 107 S. Ct. 2287, 2297, 96 L. Ed. 2d 119 22 (1987). 23 requirement violates the Act by denying benefits to claimants who meet 24 the statutory definition of disabled. Including a severity requirement Bowen v. However, an overly stringent application of the severity Corrao v. Shalala, 20 F.3d 943, 25 26 7 27 28 In reaching this conclusion, the ALJ no limitation in activities of daily living, [and] concentration, persistence or pace . . experienced no episodes of decompensation. 11 found plaintiff has social functioning, . [and] has A.R. 189. 1 949 (9th Cir. 1994). 2 3 A severe impairment or combination of impairments within the 4 meaning of Step Two exists when there is more than a minimal effect on 5 an individual s ability to do basic work activities. 6 at 686; Mayes v. Massanari, 276 F.3d 453, 460 (9th Cir. 2001); see 7 also 20 C.F.R. § 416.921(a) ( An impairment or combination of 8 impairments is not severe if it does not significantly limit [a 9 person s] physical or mental ability to do basic work activities. ). Webb, 433 F.3d 10 Basic work activities are the abilities and aptitudes necessary to do 11 most jobs, including physical functions such as walking, standing, 12 sitting, lifting, pushing, pulling, reaching, carrying or handling, as 13 well as the capacity for seeing, hearing and speaking, understanding, 14 carrying out, and remembering simple instructions, use of judgment, 15 responding appropriately to supervision, co-workers and usual work 16 situations, and dealing with changes in a routine work setting. 17 20 C.F.R. § 416.921(b); Webb, 433 F.3d at 686. 18 19 The ALJ found plaintiff does not have a severe mental impairment. 20 A.R. 189. However, plaintiff contends this finding is not supported 21 by substantial evidence because the ALJ failed to properly consider 22 the opinion of psychologist Dr. Olson. 23 24 Dr. Olson examined plaintiff on May 7, 2002, and opined plaintiff 25 had an unspecified psychotic disorder and determined plaintiff s GAF 26 was 55. 27 worried, not psychotic and not suicidal. 28 specifically address Dr. Olson s opinion that plaintiff s GAF was 55, A.R. 99. Dr. Olson found plaintiff was alert, oriented, 12 Id. The ALJ did not 1 which, as noted above, indicates moderate symptoms. Rather, the ALJ 2 reviewed all of plaintiff s records, and concluded plaintiff does not 3 have a severe mental impairment. A.R. 189, 191-92. 4 5 A GAF score reflects the clinician s judgment of the 6 individual s overall level of functioning regarding only psycholog- 7 ical, social and occupational functioning, and not considering 8 physical or environmental limitations. 9 Diagnostic and Statistical Manual of Mental Disorders, 32 (4th ed. 10 (Text Revision) 2000); Langley v. Barnhart, 373 F.3d 1116, 1122-23 11 n.3 (10th Cir. 2004). 12 the medical record is not deficient solely because it does not 13 reference a particular GAF score. 14 276 F.3d 235, 241 (6th Cir. 2002); see also Howard v. Barnhart, 15 341 F.3d 1006, 1012 (9th Cir. 2003) ( [I]n interpreting the evidence 16 and developing the record, the ALJ does not need to discuss every 17 piece of evidence. (citations omitted)); Ramos v. Barnhart, 18 513 F. Supp. 2d 249, 261 (E.D. Pa. 2003) ( Clinicians use a GAF scale 19 to identify an individuals [sic] overall level of functioning, and a 20 lower score may indicate problems that do not necessarily relate to 21 the ability to hold a job. 22 50764-65 ( The GAF scale . . . does not have a direct correlation to 23 the severity requirements in our mental disorder listings. ). 24 particularly true in this case since nothing in the substance of Dr. 25 Olson s note shows plaintiff suffered from any impairment in his 26 ability to perform basic work activities. 27 note indicates plaintiff was considered to be alert, oriented and not 28 psychotic or suicidal, id., and in the mental health visit prior to American Psychiatric Ass n, However, without more, the ALJ s assessment of Howard v. Comm r of Soc. Sec., (citation omitted)); 65 Fed. Reg. 50746, 13 A.R. 99. This is Rather, the brief 1 Dr. Olson s examination, plaintiff denied any psychiatric complaints, 2 depression or hallucinations, and he was not taking any psychiatric 3 medication. 4 plaintiff claimed to have a disability. 5 plaintiff became disabled as of October 1, 2002); Carmickle v. Comm r, 6 Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th Cir. 2008) ( Medical 7 opinions that predate the alleged onset of disability are of limited 8 relevance. ). 9 opinions of examining psychiatrists Drs. Dupee and Smith, support the Moreover, Dr. Olson s report was issued well before See A.R. 40 (alleging On the other hand, substantial evidence, including the 10 ALJ s determination that plaintiff does not have a severe mental 11 impairment. 12 2007) (examining physician s medical report based on independent 13 examination of claimant constitutes substantial evidence to support 14 ALJ s disability determination). 15 claim.8 See, e.g., Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. Thus, there is no merit to this 16 17 V 18 A claimant s residual functional capacity ( RFC ) is what he can 19 still do despite his physical, mental, nonexertional, and other limi- 20 tations. 21 1155 n.5 (9th Cir. 1989). 22 to perform a full range of work at all exertional levels limited 23 only by monocularity. 24 finding is not supported by substantial evidence because the ALJ Mayes, 276 F.3d at 460; Cooper v. Sullivan, 880 F.2d 1152, Here, the ALJ found plaintiff has the RFC A.R. 189. However, plaintiff contends this 25 26 8 27 28 This is true whether Dr. Olson is considered to be a treating physician or examining physician. In the Court s opinion, however, he is an examining physician since the records show he saw plaintiff one time. See A.R. 99. 14 1 improperly determined plaintiff was not a credible witness and 2 erroneously failed to consider the testimony of plaintiff s 3 girlfriend. 4 5 A. Credibility: 6 At the first administrative hearing, plaintiff testified he does 7 not work because he cannot see, stating I can t read that sign right 8 there unless I look right down the bridge of my nose. 9 The plaintiff also complained his knees are messed up[,] every time 10 he bends over, his eyes water and his back wrenches up[,] he has a 11 dry mouth, he experiences seizures, and he gets headaches three or 12 four times a month, lasting from between a couple of hours to three 13 days. 14 and back pain, ringing in his ears, and sinus pressure. A.R. 169, 172. A.R. 169, 173. The plaintiff also stated he experiences neck A.R. 82. 15 16 Once a claimant has presented objective evidence he suffers from 17 an impairment that could cause pain or other nonexertional limita- 18 tions,9 the ALJ may not discredit the claimant s testimony solely 19 because the degree of pain alleged by the claimant is not supported by 20 objective medical evidence. 21 (9th Cir. 1991) (en banc); Moisa v. Barnhart, 367 F.3d 882, 885 (9th 22 Cir. 2004). 23 complaints are not credible, he must provide specific, cogent 24 reasons for the disbelief. Bunnell v. Sullivan, 947 F.2d 341, 347 Thus, if the ALJ finds the claimant s subjective Greger v. Barnhart, 464 F.3d 968, 972 25 26 27 28 9 While most cases discuss excess pain testimony rather than excess symptom testimony, rules developed to assure proper consideration of excess pain apply equally to other medically related symptoms. Swenson v. Sullivan, 876 F.2d 683, 687-88 (9th Cir. 1989). 15 1 (9th Cir. 2006) (citations omitted); Orn, 495 F.3d at 635. 2 is medical evidence establishing an objective basis for some degree of 3 pain and related symptoms, and no evidence affirmatively suggesting 4 that the claimant is malingering, the ALJ s reasons for rejecting the 5 claimant s testimony must be clear and convincing. 6 of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Carmickle, 7 533 F.3d at 1160. If there Morgan v. Comm r 8 9 Here, the ALJ found plaintiff was not credible for several 10 reasons, including plaintiff s infrequent and sporadic treatment, 11 and lack of medical treatment between July 29, 2003, and March 2005. 12 A.R. 190, 304-09. 13 of treatment in his credibility determination. 14 400 F.3d 676, 681 (9th Cir. 2005); Batson v. Comm r of the Soc. Sec. 15 Admin., 359 F.3d 1190, 1196 (9th Cir. 2004); see also Fair v. Bowen, 16 885 F.2d 597, 603 (9th Cir. 1989) ( [A]n unexplained, or inadequately 17 explained, failure to seek treatment or follow a prescribed course of 18 treatment . . . can cast doubt on the sincerity of the claimant s 19 . . . testimony. ). Clearly, [t]he ALJ is permitted to consider lack Burch v. Barnhart, 20 21 The ALJ also found that, despite plaintiff s complaint of 22 constant head pain and pain in his back, treatment records reflect 23 that the use of pain medication is limited to occasional consumption 24 of mild analgesics with no evidence that treatment should be any more 25 aggressive. 26 that [plaintiff s] complaints of symptoms are not adequately 27 controlled with medication without any reported side effects. 28 These, too, are proper bases for the ALJ s adverse credibility A.R. 192. Moreover, the ALJ found there is no evidence 16 Id. 1 determination. See Osenbrock v. Apfel, 240 F.3d 1157, 1166 (9th Cir. 2 2001) (noting lack of adverse side effects in rejecting claimant s 3 excess pain testimony); Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 4 1999) (Claimant s claim that she experienced pain approaching the 5 highest level imaginable was inconsistent with the minimal, 6 conservative treatment that she received. ). 7 8 9 Furthermore, with respect to plaintiff s complaints of difficulty reading, the ALJ found that the physicians who have evaluated 10 plaintiff s vision have concluded that while the [plaintiff] does 11 have severe ocular impairments, he has adequate visual fields and 12 overall visual efficiency. 13 the ALJ s adverse credibility determination. 14 10 F.3d 678, 680 (9th Cir. 1995) (substantial evidence supported 15 finding claimant could do a narrow range of medium work where no 16 examining physician concluded claimant was totally disabled); Harper 17 v. Sullivan, 887 F.2d 92, 96-97 (5th Cir. 1989) (substantial evidence 18 supported ALJ s conclusion claimant s complaints were not credible 19 when [n]o physician stated that [the claimant] was physically 20 disabled ). A.R. 190-92. This finding also supports See Matthews v. Shalala, 21 22 Additionally, the ALJ properly found that Dr. Smith s 23 determination that plaintiff was not credible, A.R. 191, 193, 24 supported his own adverse credibility determination, see, e.g., 25 Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001) ( In 26 assessing the claimant s credibility, the ALJ may use ordinary 27 techniques of credibility evaluation, such as considering the 28 claimant s reputation for truthfulness and any inconsistent statements 17 1 in her testimony. (citation omitted)); Anderson v. Barnhart, 344 F.3d 2 809, 815 (8th Cir. 2003) (ALJ properly considered psychologist s 3 opinion that claimant was manipulative in making adverse credibility 4 determination), as does the ALJ s finding that plaintiff s history of 5 incarceration, which included a theft conviction, showed lack of 6 honesty or credibility. 7 v. Astrue, 504 F. Supp. 2d 814, 822 (C.D. Cal. 2007); see also Ellison 8 v. Astrue, 2008 WL 4425764, *4 (C.D. Cal.) (ALJ properly considered 9 claimant s theft conviction since [p]ast conduct involving dishonesty 10 A.R. 193; see also A.R. 127, 227. Albidrez is relevant to a determination of a [claimant s] credibility. ). 11 12 In short, [t]he ALJ s reasons for his [adverse] credibility 13 determination were clear and convincing, sufficiently specific, and 14 supported by substantial evidence. 15 1181 (9th Cir. 2003); Thomas, 278 F.3d at 959. Celaya v. Halter, 332 F.3d 1177, 16 17 B. Lay Witness Opinion: 18 Plaintiff next contends the ALJ s decision is not supported by 19 substantial evidence because the ALJ failed to properly consider a 20 third-party questionnaire plaintiff s girlfriend completed, in which 21 she indicated plaintiff: lives alone in a tent; has headaches, neck 22 and back pain; has difficulty shaving because he cannot see; and 23 cannot read because he cannot see.10 24 // A.R. 88-93. 25 26 10 27 28 Ms. Burke, the girlfriend, testified at the first administrative hearing, A.R. 175, 179-80, but plaintiff does not challenge the ALJ s assessment of this testimony. Jt. Stip. at 8:9-10:12, 11:9-24. 18 1 There is no merit to this claim since the ALJ did consider the 2 third-party information, but found it was less credible than the 3 medical evidence and opinions, A.R. 192-93, and this is a germane 4 reason for rejecting the girlfriend s information. 5 464 F.3d at 972 (ALJ gave germane reasons for doubting claimant s 6 former girlfriend s testimony, including that it was inconsistent with 7 the medical evidence); Lewis, 236 F.3d at 511 ( One reason for which 8 an ALJ may discount lay testimony is that it conflicts with medical 9 evidence. ). See, e.g., Greger, 10 11 12 V At Step Five, the burden shifts to the Commissioner to show the 13 claimant can perform other jobs that exist in the national economy. 14 Hoopai v. Astrue, 499 F.3d 1071, 1074-75 (9th Cir. 2007); Widmark, 15 454 F.3d at 1069. 16 identify specific jobs existing in substantial numbers in the 17 national economy that [the] claimant can perform despite her 18 identified limitations. 19 60 F.3d at 1432). 20 this burden: (1) by the testimony of a vocational expert, or (2) by 21 reference to the Medical Vocational Guidelines [ Grids ] at 20 C.F.R. 22 pt. 404, subpt. P, app. 2. 11 To meet this burden, the Commissioner must Meanel, 172 F.3d at 1114 (quoting Johnson, There are two ways for the Commissioner to meet Tackett v. Apfel, 180 F.3d 1094, 1099 23 24 25 26 27 28 11 The Grids are guidelines setting forth the types and number of jobs that exist in the national economy for different kinds of claimants. Each rule defines a vocational profile and determines whether sufficient work exists in the national economy. These rules represent the [Commissioner s] determination, arrived at by taking administrative notice of relevant information, that a given number of unskilled jobs exist in the national economy that can be performed by persons with 19 1 (9th Cir. 1999); Widmark, 454 F.3d at 1069. However, [w]hen [the 2 Grids] do not adequately take into account [a] claimant s abilities 3 and limitations, the Grids are to be used only as a framework, and a 4 vocational expert must be consulted. 5 Widmark, 454 F.3d at 1069. Thomas, 278 F.3d at 960; 6 7 Hypothetical questions posed to a vocational expert must consider 8 all of the claimant s limitations, Thomas, 278 F.3d at 956; Lewis, 9 236 F.3d at 517, and [t]he ALJ s depiction of the claimant s 10 disability must be accurate, detailed, and supported by the medical 11 record. 12 expert Joseph Mooney the following hypothetical question: Tackett, 180 F.3d at 1101. Here, the ALJ asked vocational 13 14 I d like you to consider a person of the claimant s 15 background. 16 [S]ecurity disability purposes. 17 does have a [twelfth] grade education. 18 is no past relevant work. 19 exertional limits and work is possible at any exertional 20 level, consider that the claimant is monocular and since he 21 has no past relevant work let s restrict the work to that 22 which is unskilled, entry level, [specific vocational 23 preparation] two. 24 capacities and limits is there any unskilled work that can 25 be performed? He is still a younger individual for [S]ocial The record indicates he Consider that there Also consider that there are no Within that entire constellation of 26 27 28 each level of residual functional capacity. Chavez v. Dep t of Health & Human Servs., 103 F.3d 849, 851 (9th Cir. 1996) (citations omitted). 20 1 A.R. 315-16. The vocational expert responded that there would be a 2 broad range of jobs that the claimant could perform, including 3 cleaners, housekeepers and warehouseman. A.R. 316. 4 5 The plaintiff contends, however, that the hypothetical question 6 is incomplete, and the Step Five determination, thus, is not supported 7 by substantial evidence because the hypothetical question did not 8 include plaintiff s alleged inability to read and Dr. Olson s GAF of 9 55. Jt. Stip. at 16:9-17:14, 18:11-13. This argument is without 10 merit. Since the ALJ s adverse credibility determination of both 11 plaintiff and his girlfriend is supported by substantial evidence, the 12 hypothetical question to the vocational expert did not have to include 13 their self-serving statements that plaintiff is unable to read.12 14 Greger, 464 F.3d at 973 (9th Cir. 2006) ( The ALJ . . . is free to 15 accept or reject restrictions in a hypothetical question that are not 16 supported by substantial evidence. (quoting Osenbrock, 240 F.3d at 17 1164-65)); Copeland v. Bowen, 861 F.2d 536, 540 (9th Cir. 1988) 18 12 19 20 21 22 23 24 25 26 27 28 Moreover, since substantial evidence supports the ALJ s rejection of plaintiff s testimony and Ms. Burke s evidence that plaintiff cannot read, plaintiff has not identified any conflict between the vocational expert s testimony and the Dictionary of Occupational Titles, see Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007) (In evaluating a vocational expert s testimony, the ALJ must first determine whether a conflict exists. If it does, the ALJ must then determine whether the vocational expert s explanation for the conflict is reasonable and whether a basis exists for relying on the expert rather than the [DOT]. ), and any possible error in the ALJ failing to ask the vocational expert about possible conflicts was harmless. Id. at 1154 n.19; see also Renfrow v. Astrue, 496 F.3d 918, 921 (8th Cir. 2007) ( [T]he ALJ s error in failing to ask the vocational expert about possible conflicts between his testimony and the Dictionary of Occupational Titles was harmless, since no such conflict appears to exist. ). 21 See 1 ( [E]xclusion of some of a claimant s subjective complaints in 2 questions to a vocational expert is not improper if the [Commissioner] 3 makes specific findings justifying his decision not to believe the 4 claimant s testimony about claimed impairments such as pain. ). 5 Further, as noted above, the ALJ properly found plaintiff does not 6 have a severe mental impairment, and Dr. Olson s opinion did not set 7 forth any limitation more severe than included in the hypothetical 8 question to the vocational expert. 9 ALJ posed to the VE contained all of the limitations that the ALJ Thus, [t]he hypothetical that the 10 found credible and supported by substantial evidence in the record. 11 The ALJ s reliance on testimony the VE gave in response to the hypo- 12 thetical therefore was proper. 13 1217 (9th Cir. 2005); Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175- 14 76 (9th Cir. 2008) Bayliss v. Barnhart, 427 F.3d 1211, 15 16 ORDER 17 IT IS ORDERED that: (1) plaintiff s request for relief is denied; 18 and (2) the Commissioner s decision is affirmed, and Judgment shall be 19 entered in favor of defendant. 20 21 DATE: July 1, 2009 22 23 /S/ ROSALYN M. CHAPMAN ROSALYN M. CHAPMAN UNITED STATES MAGISTRATE JUDGE R&R-MDO\08-0883.mdo 7/1/09 24 25 26 27 28 22
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