Kenneth Pitchford Jr. v. Michael J. Astrue, No. 5:2009cv00279 - Document 16 (C.D. Cal. 2009)
Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal: IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner and dismissing this action with prejudice. (dhl)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 KENNETH PITCHFORD, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of the Social ) Security Administration, ) ) Defendant. ) ______________________________) NO. EDCV 09-279 SS MEMORANDUM DECISION AND ORDER 17 18 I. 19 INTRODUCTION 20 21 Kenneth Pitchford ( Plaintiff ) brings this action seeking to 22 overturn the decision of the Commissioner of the Social Security 23 Administration (hereinafter the Commissioner or the Agency ) denying 24 his applications for Supplemental Security Income ( SSI ) and Disability 25 Insurance Benefits ( DIB ). 26 U.S.C. § 636(c), to the jurisdiction of the undersigned United States 27 Magistrate Judge. 28 Commissioner is AFFIRMED. The parties consented, pursuant to 28 For the reasons stated below, the decision of the 1 II. 2 PROCEDURAL HISTORY 3 4 Plaintiff protectively filed applications for SSI and DIB on March 5 18, 2004.1 6 a disability onset date of November 20, 2003 (AR 48) due to depression 7 and anxiety. (AR 58). The Agency denied Plaintiff s claims for SSI and 8 DIB initially on August 12, 2004. 9 upon reconsideration on November 16, 2004. (Administrative Record ( AR ) 48-50, 235, 391). (AR 19-23). He alleged This denial was upheld (AR 26-30). 10 11 On February 2, 2006, a hearing was held before Administrative Law 12 Judge ( ALJ ) Joseph D. Schloss. 13 in a written decision dated April 27, 2006. (AR 8-16). On May 4, 2006, 14 Plaintiff sought review of the unfavorable decision. 15 Appeals Council declined review on July 21, 2006. (AR 236-52). The ALJ denied benefits (AR 7). The (AR 4-6). 16 17 Plaintiff filed a complaint in District Court, seeking review of 18 the Commissioner s decision (Case No. EDCV 06-978 SS). 19 2007, the Court remanded the case for further proceedings, reasoning 20 that the ALJ had failed to properly consider the lay witness testimony 21 of Plaintiff s mother. (AR 293-305). On December 26, 2007, the Appeals 22 Council remanded the matter for further proceedings pursuant to the 23 District Court s August 14, 2007 order. On August 14, (AR 306-08). 24 25 26 27 28 1 Plaintiff previously filed an application for DIB on September 14, 2001. (AR 11). The claim was denied at the initial level and no appeal was filed. (Id.). 2 1 On April 17, 2008, ALJ Jesse J. Pease held a second hearing. 2 405-46). The ALJ held a supplemental hearing on September 4, 2008. (AR 3 392-404). 4 62). The ALJ again denied benefits on November 4, 2008. (AR (AR 253- Plaintiff commenced the instant action on February 17, 2009. 5 6 III. 7 FACTUAL BACKGROUND 8 9 A. Generally 10 11 Plaintiff was born on December 24, 1946, and was 61 years old at 12 the time of the September 4, 2008 hearing. 13 bachelor s degree in geology and past relevant work experience as a 14 geologist. (AR 48, 392). He has a (AR 59, 64, 261, 397-98). 15 16 B. Relevant Medical History 17 18 1. Treating Physician 19 20 In or about October 1988, Plaintiff was involved in a motorcycle 21 accident that resulted in multiple injuries including a fracture of the 22 right femur and a fracture dislocation of the right forefoot. (AR 116). 23 On March 1, 2000, Plaintiff began receiving treatment from Dr. Richard 24 Gordinier, a family practitioner, for his depression. (AR 189, 191-92). 25 On that date, Dr. Gordinier prescribed Effexor. 26 6, 2001, Dr. Gordinier changed Plaintiff s prescription from Effexor to 27 Prozac after Plaintiff reported that Effexor was not working. (AR 188). 28 On September 10, 2001, he noted that Plaintiff had improved on Prozac 3 (AR 191). On August 1 (AR 186), and on November 19, 2003, he commented that Plaintiff was 2 doing well on Prozac. 3 Plaintiff reported that he was not getting better. (AR 182). However, on December 1, 2003, (AR 181). 4 5 On June 1, 2004, Plaintiff complained of depression and anxiety. 6 (AR 175). On that date, Dr. Goridinier wrote on a prescription pad that 7 Plaintiff had long standing bipolar disease with panic attacks and 8 that medication help[ed] but d[id] not ease this problem. 9 On August 3, 2004, Dr. Gordinier reported that during office visits, (AR 174). 10 Plaintiff 11 appointments, was able to follow simple instructions, and got along with 12 others. 13 a mental impairment but did not refer Plaintiff to a mental health 14 professional. 15 discontinued 16 reported problems with Prozac. was alert (AR 208-09). (AR Prozac and appropriate, cooperated with keeping He noted that he saw some signs or symptoms of 209). and On again November 26, prescribed 2007, Effexor Dr. Gordinier after Plaintiff (AR 380). 17 18 2. Consultative Examining Physicians 19 20 On February 14, 2002, Dr. Ernest Bagner conducted a psychiatric 21 evaluation of Plaintiff. 22 swings with anger outbursts, anxiety, helplessness, and hopelessness. 23 (AR 154, 157). 24 that resulted in a coma and right facial surgery. 25 also 26 marijuana possession and public nuisance. 27 examination revealed: Plaintiff reported feeling dysphoric ; his affect 28 was mood congruent; his speech was intact and coherent but decreased in reported (AR 154-57). Plaintiff complained of mood He stated that he had previously suffered a head trauma a history of marijuana 4 use and (AR 155). Plaintiff incarcerations (Id.). for A mental status 1 rate, rhythm, and volume; his thought processes were tight with no 2 flight of thought, looseness of association, thought blocking, or 3 distractibility; his fund of knowledge was slightly impaired2; he 4 appeared to be of average intelligence; he was alert and oriented to 5 person, place, and time; he denied suicidal or homicidal ideation; he 6 appeared to have normal reality contact; he did not display evidence of 7 auditory or visual hallucinations, or paranoid or grandiose delusions; 8 his memory and concentration were intact; his abstractions were intact; 9 and his insight and judgment were fair. (AR 156). Dr. Bagner assessed 10 a Global Assessment of Functioning ( GAF ) score of 733 and diagnosed 11 Plaintiff with mood disorder, not otherwise specified, and rule out 12 marijuana deprendency. (AR 156-57). He found that Plaintiff would have 13 mild limitations interacting with supervisors, peers, and the public; 14 mild limitations handling normal stresses at work; and no limitations 15 maintaining concentration and attention, completing simple and complex 16 tasks, or completing a normal workweek without interruption. (AR 157). 17 18 19 20 21 22 23 24 25 26 27 28 2 Plaintiff was able to name the current president of the United States and one of the two preceding presidents. (AR 156). 3 A GAF score is the clinician s judgment of the individual s overall level of functioning. It is rated with respect only to psychological, social and occupational functioning, without regard to impairments in functioning due to physical or environmental limitations. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 32 (4th ed. 2000) (hereinafter DSM IV ). A GAF of 71 to 80 is indicative of situations where, [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.). DSM IV at 34. 5 On July 2, 2004, Dr. Louis Fontana administered another psychiatric 1 2 evaluation of Plaintiff. 3 involved 4 significant loss of consciousness and delirium for approximately two 5 weeks. 6 know the location of the stigmata of his surgery. 7 complained of difficulty focusing and poor anger control since the 8 accident. 9 psychiatrist. in a (AR 203-07). motorcycle (AR 204). accident Plaintiff reported that he was in 1988 which left him with He stated that he underwent neurosurgery but did not (AR 203-04). (Id.). Plaintiff Plaintiff noted that he had never seen a (Id.). 10 11 Dr. Fontana performed a mental status examination which revealed 12 the following: Plaintiff had good eye contact; he was cooperative; his 13 mood was somewhat dysphoric ; his affect was full and appropriate; his 14 speech was of normal tone and meter; his thought processes were logical 15 and goal-directed; he did not display any evidence of hallucinations or 16 delusions; he denied any suicidal or homicidal ideation; he was oriented 17 to 18 calculations, abstract thinking, judgment, and insight were intact. (AR 19 205-06). 20 [h]ead [i]njury[] [w]ith [b]ehavioral [d]isturbance and assessed a GAF 21 score of 55.4 22 perform simple and repetitive tasks, as well as more detailed and 23 complex 24 appropriately with coworkers and the public; perform work activities on person, place, and time; and his memory, fund of knowledge, Dr. Fontana diagnosed Plaintiff with [d]ementia [d]ue to (AR 206). tasks; accept He opined that Plaintiff should be able to: instructions from supervisors; interact 25 26 27 28 4 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 co-workers). DSM IV at 34. 6 1 a consistent basis without additional supervision; maintain regular 2 attendance in the workplace; and complete a normal workday/workweek. 3 (Id.). 4 3. 5 Medical Experts 6 At the April 17, 2008 hearing, Drs. David Glassmire and William 7 8 DeBolt testified as medical experts. 9 psychologist, testified that Plaintiff had a depressive disorder, not 10 otherwise specified, and a provisional cognitive disorder, not otherwise 11 specified. 12 diagnosis of cognitive disorder because, although Dr. Fontana diagnosed 13 dementia due to head injury with behavioral disturbance, Dr. Fontana s 14 mental status evaluation did not reveal any significant cognitive 15 problems. 16 contain any significant treatment records for psychological issues. (AR 17 422). 18 2006, Plaintiff would be limited to moderately complex tasks that are 19 up to three to four step instructions with non[-]intense contact with 20 others. (AR 418-19). (AR 421). (AR 417-34). Dr. Glassmire, a He explained that he gave a provisional Dr. Glassmire also noted that the record did not He concluded that from November 20, 2003 through December 31, (AR 420). 21 22 Dr. DeBolt, a neurologist and psychiatrist, testified that Dr. 23 Fontana s diagnosis of dementia could not be substantiated without 24 neuropsychological testing. (AR 425). Dr. DeBolt opined that there was 25 some question about [Plaintiff s] credibility due to Plaintiff s 26 unsubstantiated 27 inconsistent statements regarding his drug use and incarcerations. (AR 28 426). Specifically, he noted that the treatment records did not support statements concerning 7 his head trauma and his 1 Plaintiff s assertions to the consultative examining physicians that he 2 had suffered a severe head injury which resulted in a coma. 3 26). 4 of drug use and incarcerations to Dr. Bagner but not to Dr. Fontana. 5 (AR 426). He concluded that he could not give an opinion on Plaintiff s 6 mental capacity because the issue of coma is simply not supported 7 within the medical record. 8 assuming Plaintiff had never suffered a coma, Plaintiff did not have any 9 mental impairment from November 20, 2003 through December 31, 2006. (AR 10 (AR 425- Furthermore, Dr. DeBolt noted that Plaintiff reported a history (AR 428-29). Dr. DeBolt testified that, 429-30). 11 12 C. Plaintiff s Testimony 13 14 At the February 2, 2006 hearing, Plaintiff testified that he 15 suffered from depression, anxiety, and panic attacks. 16 stated that he had difficulty maintaining focus. 17 noted that he frequently left work due to anxiety. (AR 240-41). (AR 247). He Plaintiff (AR 248-49). 18 19 At the April 17, 2008 hearing, Plaintiff testified that, after 20 talking 21 unconscious for two to three weeks following his motorcycle accident. 22 (AR 434). He noted that when he woke up, he was unable to walk or talk. 23 (AR 435). Plaintiff stated that he did not have any recollection of a 24 head injury but was told that he had suffered such an injury. 25 36). 26 Plaintiff noted that the motorcycle accident left his helmet with marks 27 on the back and right side. to his friends and family, he learned that he He did recall that he had suffered a broken leg. (AR 442). 28 8 had been (AR 435(AR 436). Plaintiff had been 2 pending, he worked, intermittently, as a geological consultant. (AR 3 242-45, 409-13). 4 and $36,000 in 2007. 5 in his income from 2006 to 2007 was not the result of his improved 6 condition but rather due to willpower - specifically, forcing himself 7 to work. 1 testified that while his disability case In particular, he note that he earned $4,600 in 2006 (AR 410-11). Plaintiff stated that the increase (AR 411-12). 8 9 IV. 10 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 11 12 To qualify for disability benefits, a claimant must demonstrate 13 a medically determinable physical or mental impairment that prevents him 14 from engaging in substantial gainful activity5 and that is expected to 15 result in death or to last for a continuous period of at least twelve 16 months. 17 42 U.S.C. § 423(d)(1)(A)). 18 incapable of performing the work he previously performed and incapable 19 of performing any other substantial gainful employment that exists in 20 the national economy. 21 1999) (citing 42 U.S.C. § 423(d)(2)(A)). Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing The impairment must render the claimant Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 22 To decide if a claimant is entitled to benefits, an ALJ conducts 23 24 a five-step inquiry. 25 20 C.F.R. §§ 404.1520, 416.920. The steps are as follows: 26 27 28 5 Substantial gainful activity means work that involves doing significant and productive physical or mental duties and is done for pay or profit. 20 C.F.R. §§ 404.1510, 416.910. 9 1 (1) Is the claimant presently engaged in substantial gainful 2 activity? 3 If not, proceed to step two. If so, the claimant is found not disabled. 4 5 (2) Is the claimant s impairment 6 claimant is found not disabled. 7 severe? If not, the three. If so, proceed to step 8 9 (3) Does the claimant s impairment meet or equal one of a 10 list of specific impairments described in 20 C.F.R. Part 11 404, Subpart P, Appendix 1? 12 found disabled. If so, the claimant is If not, proceed to step four. 13 14 (4) Is the claimant capable of performing her past work? 15 so, the claimant is found not disabled. 16 If to step five. If not, proceed 17 18 (5) Is the claimant able to do any other work? 19 claimant is found disabled. 20 If not, the found not disabled. If so, the claimant is 21 22 Tackett, 180 F.3d at 1098-99; see also 20 C.F.R. §§ 404.1520(b)-(g)(1), 23 416.920(b)-(g)(1); Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th 24 Cir. 2001) (citations omitted). 25 26 The claimant has the burden of proof at steps one through four, and 27 the Commissioner has the burden of proof at step five. 28 F.3d at 953-54. Bustamante, 262 If, at step four, the claimant meets his burden of 10 1 establishing an inability to perform past work, the Commissioner must 2 show that the claimant can perform some other work that exists in 3 significant numbers in the national economy, taking into account the 4 claimant s residual functional capacity ( RFC ),6 age, education, and 5 work experience. 6 721; 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 7 do so by the testimony of a vocational expert or by reference to the 8 Medical-Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart 9 P, Appendix 2 (commonly known as the Grids ). Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at The Commissioner may Osenbrock v. Apfel, 240 10 F.3d 1157, 1162 (9th Cir. 2001). 11 (strength-related) 12 inapplicable and the ALJ must take the testimony of a VE. 13 Apfel, 216 F.3d 864, 869 (9th Cir. 2000). and When a claimant has both exertional nonexertional limitations, the Grids are Moore v. 14 15 V. 16 THE ALJ S DECISION 17 18 At step one, the ALJ found that Plaintiff had not engaged in 19 substantial gainful activity during the period at issue - from November 20 20, 2003 through December 31, 2006.7 (AR 255, 257). 21 22 23 24 25 26 27 28 6 Residual functional capacity is the most [one] can still do despite [one s] limitations and represents an assessment based on all the relevant evidence in [one s] case record. 20 C.F.R. §§ 404.1545(a), 416.945(a). 7 The ALJ noted that Plaintiff has admitted that he had engaged in substantial gainful activity since the end of 2006 and agreed to have the ALJ consider a closed period of disability from November 20, 2003 through December 31, 2006. (AR 255, 257). 11 1 At step two, the ALJ determined that, during the period at issue, 2 Plaintiff 3 otherwise specified. had the severe impairment of depressive disorder, not (AR 257). 4 5 At step three, the ALJ concluded that, during the period at issue, 6 Plaintiff did not have an impairment or combination of impairments that 7 met or medically equaled a listed impairment. (AR 258). 8 9 At step four, the ALJ found that, during the period at issue, 10 Plaintiff retained the RFC to perform a full range of work at all 11 exertional levels but with the following nonexertional limitations: 12 three or four step instructions with no intense contact with others. 13 (AR 260). 14 performing his past relevant work as a geologist. The ALJ determined that Plaintiff was not capable of (AR 261). 15 16 At step five, the ALJ considered Plaintiff s RFC, work experience, 17 education, age. 18 vocational expert that a person in Plaintiff s circumstances would be 19 able to perform the requirements of occupations such as hand packager, 20 office helper, and small products assembler. (Id.). The ALJ found that 21 Plaintiff was capable of making a successful adjustment to other work 22 that existed in significant numbers in the national economy during the 23 period at issue. 24 Plaintiff was not disabled from November 20, 2003 through the date of 25 this decision. 26 /// 27 /// 28 /// (AR 261-62). He also considered the testimony of the (AR 262). Therefore, the ALJ concluded that (Id.). 12 1 VI. 2 STANDARD OF REVIEW 3 4 Under 42 U.S.C. § 405(g), a district court may review the 5 Commissioner s decision to deny benefits. 6 Commissioner s decision when the ALJ s findings are based on legal error 7 or are not supported by substantial evidence in the record as a whole. 8 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Smolen v. 9 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). The court may set aside the 10 11 Substantial evidence is more than a scintilla, but less than a 12 preponderance. 13 which a reasonable person might accept as adequate to support a 14 conclusion. 15 a finding, the court must consider the record as a whole, weighing 16 both 17 [Commissioner s] conclusion. Aukland, 257 F.3d at 1035 (quoting Penny 18 v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 19 reasonably support either affirming or reversing that conclusion, the 20 court may not substitute its judgment for that of the Commissioner. 21 Reddick, 157 F.3d at 720-21. 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// evidence Reddick, 157 F.3d at 720. Id. It is relevant evidence To determine whether substantial evidence supports that supports and evidence 13 that detracts from the If the evidence can 1 VII. 2 DISCUSSION 3 4 A. The ALJ Properly Considered The Treating Physician s Opinion 5 6 Plaintiff contends that the ALJ failed to provide specific and 7 legitimate reasons for rejecting Dr. Gordinier s statements written on 8 a 9 longstanding bipolar disorder with panic attacks. 10 June 1, 2004 prescription pad, indicating that Plaintiff had (Jt. Stip. at 3-5). This Court disagrees. 11 12 Although a treating physician s opinion is entitled to great 13 deference, it is not necessarily conclusive as to either the physical 14 condition or the ultimate issue of disability. 15 Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999). 16 doctor s opinion is not contradicted by another doctor, it may be 17 rejected 18 substantial evidence in the record. 19 (9th Cir. 1995) (citing Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th 20 Cir. 1991)). 21 by the opinion of another doctor, the ALJ may properly reject the 22 treating 23 reasons supported by substantial evidence in the record. 24 Astrue, 495 F.3d 625, 633 (9th Cir. 2007) (quoting Reddick, 157 F.3d at 25 725). 26 thorough summary of the facts and conflicting clinical evidence. 27 Magallanes v. Bowen, 881 F.2d 747, 751, 753-55 (9th Cir. 1989) (noting only for clear and convincing Morgan v. Comm r of reasons If the treating supported by Lester v. Chater, 81 F.3d 821, 830 Even when the treating doctor s opinion is contradicted doctor s opinion by providing specific and legitimate Orn v. The ALJ can meet this burden by setting forth a detailed and 28 14 See 1 that the court may draw inferences from the ALJ s discussion of the 2 evidence in the record that reveal his rationale). 3 4 Here, the ALJ properly considered the treatment records from Dr. 5 Gordinier. 6 mental status examination findings, and except for infrequent changes 7 in medication due to complaints about increased depression and anxiety, 8 there is no report of any symptoms. 9 Gordinier s observations that during office visits, Plaintiff was alert 10 and appropriate, cooperated with keeping appointments, was able to 11 follow simple instructions, and interacted well with others. 12 The ALJ further observed that, although Dr. Gordinier saw some signs or 13 symptoms 14 referring Plaintiff to a mental health practitioner. of Specifically, the ALJ noted that [t]here are no formal a mental impairment, (AR 258). Dr. He also noted Dr. Gordinier never (Id.). considered (Id.). 15 16 The ALJ was not required to specifically discuss Dr. Gordinier s 17 notation of longstanding bipolar disorder with panic attacks. First, 18 Dr. Gordinier s diagnosis was not probative of Plaintiff s functional 19 limitations. See Rhodes v. Schweiker, 660 F.2d 722, 723 (9th Cir. 1981) 20 (the mere existence of a functional impairment is insufficient to 21 justify an award of disability benefits, but rather there must be proof 22 of the impairment s disabling severity). Moreover, the diagnosis was 23 not supported by any clinical findings. See Thomas v. Barnhart, 278 24 F.3d 947, 957 (9th Cir. 2002) ( The ALJ need not accept the opinion of 25 any physician, including a treating physician, if that opinion is brief, 26 conclusory, 27 Therefore, the ALJ was not required to discuss why Dr. Gordinier s 28 finding of longstanding bipolar disorder with panic attacks should have and inadequately supported 15 by clinical findings. ). 1 been rejected.8 2 F.3d 1006, 1012 (9th Cir. 2003) ( the ALJ is not required to discuss 3 evidence 4 Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (an ALJ need not discuss 5 all evidence but must explain why significant probative evidence has 6 been 7 warranted on this claim. that See Howard ex rel. Wolff ( Wolff ) v. Barnhart, 341 is rejected ) neither (citation significant omitted). nor probative ); Accordingly, Vincent remand is v. not 8 9 B. The ALJ Properly Considered The Severity Of Plaintiff s Mental 10 Impairment 11 12 Plaintiff argues that the ALJ improperly found that Plaintiff s 13 mental impairment was not severe. (Jt. Stip. at 8-9). In support of 14 this contention, Plaintiff points to Dr. Gordinier s statements that 15 Plaintiff had long standing bipolar disease with panic attacks and 16 that medication help[ed] but d[id] not ease this problem. 17 at 8). 18 of Plaintiff s mental impairment. (Jt. Stip. The Court finds that the ALJ properly considered the severity 19 By its own terms, the evaluation at step two is a de minimis test 20 21 intended to weed out the most minor of impairments. See Bowen v. 22 Yuckert, 482 U.S. 137, 153-154, 107 S. Ct. 2287, 96 L. Ed. 2d 119 23 (1987); Edlund v. Massanari, 253 F.3d 1152, 1158 (9th Cir. 2001) 24 (stating that the step two inquiry is a de minimis screening device to 25 26 27 28 8 Furthermore, the ALJ specifically addressed Leslie Pitchford s (Plaintiff s sister) finding of bipolar disorder. (AR 259). The ALJ found that Ms. Pitchford s finding was not supported by any clinical finding. (Id.). 16 1 dispose of groundless claims) (quoting Smolen, 80 F.3d at 1290). An 2 impairment is not severe only if the evidence establishes a slight 3 abnormality that has only a minimal effect on an individual s ability 4 to work. 5 omitted). Smolen, 80 F.3d at 1290 (internal quotations and citations 6 7 Here, the ALJ did find that Plaintiff had a severe mental 8 impairment, namely, depressive disorder, not otherwise specified. 9 257). Indeed, he noted depressive that [t]here has been resulted no in dispute more than that 10 [Plaintiff s] 11 limitations[.] 12 two of the sequential evaluation. 13 contention that the ALJ found Plaintiff s mental impairment not severe 14 is incorrect and not supported by the record. (AR 258). disorder has (AR mild Thereafter, the ALJ continued beyond step (AR 258-62). Thus, Plaintiff s 15 16 To the extent Plaintiff contends that the ALJ should have 17 specifically found bipolar disorder and panic attacks to be severe, 18 Plaintiff s contention fails. 19 findings were not supported by any clinical findings and were not 20 probative of Plaintiff s functional limitations. 21 at 723; see also Thomas, 278 F.3d at 957. 22 would have supported the ALJ s finding that bipolar disorder and panic 23 attacks, if there were probative evidence that Plaintiff even suffered 24 from these conditions, were not severe impairments. 25 erred, however, in his conclusion regarding the severity of Plaintiff s 26 bipolar disorder and panic attacks, the error was harmless. 27 Comm r, Soc. Sec. Admin., 454 F.3d 1050, 1053 (9th Cir. 2006). As discussed above, Dr. Gordinier s 28 17 See Rhodes, 660 F.2d Thus, substantial evidence Even if the ALJ Stout v. As Dr. 1 Gordinier s findings did not support any greater limitations, it would 2 not have altered the ALJ s conclusions regarding Plaintiff s RFC. 3 4 5 C. The ALJ Properly Discounted Plaintiff s Subjective Symptom Testimony 6 7 Plaintiff contends that the ALJ failed to properly assess 8 Plaintiff s subjective allegations of disabling symptoms. 9 at 10-11). Specifically, he alleges that the ALJ failed to specifically 10 explain whether he accepted 11 complaints. 12 failed to make proper credibility findings. 13 Court finds Plaintiff s contentions meritless. (Jt. Stip. at 10). or rejected Plaintiff s (Jt. Stip. subjective Plaintiff also contends that the ALJ (Jt. Stip. at 10). The 14 15 To determine whether a claimant s testimony regarding subjective 16 pain or symptoms is credible, an ALJ must engage in a two-step analysis. 17 First, the ALJ must determine whether the claimant has presented 18 objective medical evidence of an underlying impairment which could 19 reasonably be expected to produce the pain or other symptoms alleged. 20 Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (citing 21 Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)) 22 (internal quotation marks omitted). 23 show that her impairment could reasonably be expected to cause the 24 severity of the symptom she has alleged; she need only show that it 25 could reasonably have caused some degree of the symptom. 26 Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996)). 27 28 18 The claimant, however, need not Id. (quoting 1 Second, if the claimant meets this first test, and there is no 2 evidence of malingering, the ALJ can reject the claimant s testimony 3 about the severity of her symptoms only by offering specific, clear and 4 convincing reasons for doing so. Smolen, 80 F.3d at 1281. 5 6 The ALJ may consider the following factors when weighing the 7 claimant s credibility: (1) his reputation for truthfulness; (2) 8 inconsistencies either in his testimony or between his testimony and his 9 conduct; (3) his daily activities; (4) his work record; and (5) 10 testimony from physicians and third parties concerning the nature, 11 severity, and effect of the symptoms of which he complains. 12 Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). Thomas v. 13 14 Contrary to Plaintiff s contention, the ALJ expressly found 15 Plaintiff s subjective complaints not credible to the extent they are 16 inconsistent with the above [RFC] assessment. 17 provided legally sufficient reasons for rejecting Plaintiff s subjective 18 complaints. First, the ALJ found that, despite Plaintiff s allegations 19 of a head trauma, there has been scant evidence of anything resembling 20 the type of injury being alleged by [Plaintiff] in terms of there being 21 a prolonged coma let alone neurosurgery. (AR 260-61). Second, the ALJ 22 found that, although Plaintiff alleged disabling depression and anxiety, 23 the findings of the treating and examining physicians indicated only 24 mild to moderate problems, and the moderate findings were based on a 25 history which was inconsistent with the other histories of record as 26 well 27 neurosurgical treatment of his head trauma, but he could not identify 28 the site of such surgery. as being internally inconsistent (Id.). 19 (AR 260). since The ALJ also [Plaintiff] alleged Third, the ALJ found that despite 1 Plaintiff s complaints of ongoing serious problems, he managed to earn 2 $37,000 in 2007 as a geologist. 3 in 2007 did not fall within the relevant time period, the inconsistency 4 between Plaintiff s assertion that he continued to remain disabled in 5 2007 and his earnings that year reflected negatively on his credibility. 6 Plaintiff s daily activities, watching television, reading, and playing 7 the piano, were also inconsistent with his claims of disability. 8 14). (Id.). Although Plaintiff s earnings (AR 9 10 The ALJ provided multiple clear and convincing reasons for his 11 decision to give less weight to Plaintiff s subjective evidence. 12 ALJ found that Plaintiff s alleged disabling depression and anxiety were 13 inconsistent with his own statements and the findings of the treating 14 and 15 Plaintiff s complaints were inconsistent with his work record. 16 By 17 demonstrated that Plaintiff s credibility was suspect. In addition, the 18 ALJ found that Plaintiff had failed to present objective medical 19 evidence of his head trauma, which could have been reasonably expected 20 to produce Plaintiff s alleged symptoms. 21 provided the legally sufficient reasons necessary to disregard such 22 testimony. examining physicians. highlighting such (AR 261). The inconsistencies, the ALJ also ALJ has (AR 260-61). noted The that (Id.). adequately Thus, the ALJ 23 24 25 D. The ALJ Properly Considered The Side Effects Of Plaintiff s Medication 26 27 28 Plaintiff contends that the ALJ failed to properly consider the side effects of his medication. (Jt. Stip. at 14-15). 20 He notes that 1 he has been prescribed multiple medications, including Effexor, Prozac, 2 Lotrel, Lotensin, Plendil, Nicaripine, Diltiazem, Varapamil, and Altace. 3 (Jt. Stip. at 14). 4 his disability report that Effexor caused sleeping problems. (Jt. Stip. 5 at 14; AR 63). In particular, Plaintiff argues that he reported in The Court disagrees with Plaintiff s argument. 6 7 The type, dosage, effectiveness, and side effects of any 8 medication taken by the claimant to alleviate his or her pain or other 9 symptoms are factors relevant to a disability determination and should 10 be 11 416.929(c)(3)(iv); see also Social Security Ruling ( SSR ) 96-8p, 12 available at, 1996 WL 374184; SSR 96-7p, available at, 1996 WL 374186. 13 However, a claimant bears the burden of proving that an impairment, 14 including a medication s side effects, is disabling. Miller v. Heckler, 15 770 F.2d 845, 849 (9th Cir. 1985) (claimant failed to meet burden of 16 proving that an impairment is disabling where he produced no clinical 17 evidence showing that his prescription narcotic use impaired his ability 18 to work); Thomas, 278 F.3d at 960 (upholding the ALJ s rejection of the 19 plaintiff s statements that her medications affected her concentration 20 and made her dizzy where no objective evidence was put forth and the ALJ 21 properly found her testimony was generally not credible). Plaintiff has 22 not met his burden in this case. considered by the ALJ. 20 C.F.R. §§ 404.1529(c)(3)(iv), 23 24 Here, Plaintiff offers no objective evidence that his medications 25 interfered with his ability to work. See Osenbrock v. Apfel, 240 F.3d 26 1157, 1164 (9th Cir. 2001) (side effects not severe enough to interfere 27 with [a plaintiff s] ability to work are properly excluded from 28 consideration). The treatment notes do not contain any reference to 21 1 side effects caused by Plaintiff s medications. The only reference to 2 medication side effects is contained in Plaintiff s disability report, 3 in which he reported that Effexor caused sleeping problems. 4 However, during the time period at issue - from November 20, 2003 5 through December 31, 2006 - Plaintiff was not prescribed Effexor. Thus, 6 the alleged side effects of Effexor are irrelevant to Plaintiff s 7 current claim.9 (AR 63). 8 9 The Court notes that Plaintiff admitted to ongoing marijuana use. 10 (AR 155). He reported being arrested many times and incarcerated four 11 to five times for marijuana possession and public nuisance. 12 Plaintiff s contentions that his medications render him tired or sleep 13 impaired are undermined by his admission of regular marijuana use as it 14 would be difficult to determine which substance, if any, caused the 15 alleged side effects. (Id.). 16 17 Accordingly, Plaintiff has failed to put forth clinical evidence 18 showing that his medications affected his ability to sustain employment. 19 As such, the ALJ was not required to discuss any of the medications 20 side effects. 21 1394-95. See Wolff, 341 F.3d at 1012; Vincent, 739 F.2d at 22 23 24 25 26 27 28 9 Even if Effexor had been prescribed during the relevant period, the claimed side effects, unsupported by medical evidence, were no more than additional subjective complaint testimony, which the ALJ properly discounted in his credibility analysis. See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005) (ALJ did not err in failing to explicitly address the drowsiness side-effect of [claimant s] medication in making an RFC determination as the ALJ took into account those limitations for which there was record support that did not depend on [the claimant s] subjective complaints ). 22 1 VIII. 2 CONCLUSION 3 4 Consistent with the foregoing, and pursuant to sentence four of 42 5 U.S.C. § 405(g),10 IT IS ORDERED that judgment be entered AFFIRMING the 6 decision of the Commissioner and dismissing this action with prejudice. 7 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this 8 Order and the Judgment on counsel for both parties. 9 10 DATED: September 25, 2009. 11 /S/ 12 ______________________________ SUZANNE H. SEGAL UNITED STATES 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. 23
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