Elizabeth Clevenger v. Michael J. Astrue, No. 5:2009cv01279 - Document 18 (C.D. Cal. 2010)

Court Description: DECISION AND ORDER by Magistrate Judge Carla Woehrle, IT IS ORDERED that: 1. The decision of the Commissioner is AFFIRMED. 2. This action is DISMISSED WITH PREJUDICE. (SEE ORDER FOR FURTHER DETAILS) (lmh)

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Elizabeth Clevenger v. Michael J. Astrue Doc. 18 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 EASTERN DIVISION 10 11 ELIZABETH CLEVENGER, ) ) ) ) ) ) ) ) ) ) _ ) 12 Plaintiff, 13 14 15 v. MICHAEL J. ASTRUE, Commissioner, Social Security Administration, 16 Defendant. No. EDCV 09-1279 CW DECISION AND ORDER 17 18 The parties have consented, under 28 U.S.C. § 636(c), to the 19 jurisdiction of the undersigned magistrate judge. Plaintiff seeks 20 review of the denial of disability benefits. The court finds that 21 judgment should be granted in favor of defendant, affirming the 22 Commissioner s decision. 23 I. BACKGROUND 24 Plaintiff Elizabeth Clevenger was born on November 22, 1974, and 25 was thirty-three years old at the time of her administrative hearing. 26 [AR 11.] She has an eleventh grade education and past relevant work 27 experience as a nurse s assistant. [AR 11, 75-79.] Plaintiff alleges 28 1 Dockets.Justia.com 1 disability on the basis of mood and mental disorders, chronic 2 bronchitis, depression, and pain in her right hand. [AR 111.] 3 4 II. PROCEEDINGS IN THIS COURT Plaintiff s complaint was lodged on July 2, 2009, and filed on 5 July 20, 2009. 6 Plaintiff s Administrative Record ( AR ). 7 parties filed their Joint Stipulation ( JS ) identifying matters not 8 in dispute, issues in dispute, the positions of the parties, and the 9 relief sought by each party. 10 11 12 On January 13, 2010, Defendant filed an Answer and On March 19, 2010, the This matter has been taken under submission without oral argument. III. PRIOR ADMINISTRATIVE PROCEEDINGS Plaintiff applied for supplemental security income ( SSI ) under 13 Title XVI on November 27, 2006, alleging disability since March 1, 14 1992. [AR 96.] After the claim was denied initially and upon 15 reconsideration, Plaintiff requested an administrative hearing. 16 hearings were held on August 18, 2008 and November 25, 2008, before 17 Administrative Law Judge Lowell Fortune. [Id.] 18 represented by Attorney Daniel Keenan at both hearings. [Id.] 19 Testimony was taken from Plaintiff, medical expert Joseph 20 Malancharuvil and vocational expert Sandra M. Fioretti. [Id.] The ALJ 21 denied benefits in a decision issued on February 3, 2009. 22 Appeals Council denied review on May 20, 2009, the ALJ s decision 23 became the Commissioner s final decision. 24 25 IV. Two Plaintiff was When the STANDARD OF REVIEW Under 42 U.S.C. § 405(g), a district court may review the 26 Commissioner s decision to deny benefits. 27 ALJ s) findings and decision should be upheld if they are free of 28 legal error and supported by substantial evidence. 2 The Commissioner s (or However, if the 1 court determines that a finding is based on legal error or is not 2 supported by substantial evidence in the record, the court may reject 3 the finding and set aside the decision to deny benefits. 4 v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. 5 Halter, 242 F.3d 1144, 1147 (9th Cir. 2001); Osenbrock v. Apfel, 240 6 F.3d 1157, 1162 (9th Cir. 7 1097 (9th Cir. 1999); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 8 1998); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Moncada 9 v. Chater, 60 F.3d 521, 523 (9th Cir. 1995)(per curiam). 10 See Aukland 2001); Tackett v. Apfel, 180 F.3d 1094, Substantial evidence is more than a scintilla, but less than a 11 preponderance. Reddick, 157 F.3d at 720. 12 which a reasonable person might accept as adequate to support a 13 conclusion. 14 a finding, a court must review the administrative record as a whole, 15 weighing both the evidence that supports and the evidence that 16 detracts from the Commissioner s conclusion. 17 can reasonably support either affirming or reversing, the reviewing 18 court may not substitute its judgment for that of the Commissioner. 19 Reddick, 157 F.3d at 720-721; see also Osenbrock, 240 F.3d at 1162. Id. It is relevant evidence To determine whether substantial evidence supports 20 V. Id. If the evidence DISCUSSION 21 A. THE FIVE-STEP EVALUATION 22 To be eligible for disability benefits a claimant must 23 demonstrate a medically determinable impairment which prevents the 24 claimant from engaging in substantial gainful activity and which is 25 expected to result in death or to last for a continuous period of at 26 least twelve months. 27 721; 42 U.S.C. § 423(d)(1)(A). 28 Tackett, 180 F.3d at 1098; Reddick, 157 F.3d at Disability claims are evaluated using a five-step test: 3 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two. Step two: Does the claimant have a severe impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate. Step three: Does the claimant s impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Part 404, Subpart P, Appendix 1? If so, the claimant is automatically determined disabled. If not, proceed to step four. Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 1 2 3 4 5 6 7 8 9 10 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended 11 April 9, 1996); see also Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 12 S. Ct. 2287, 96 L. Ed. 2d 119 (1987); Tackett, 180 F.3d at 1098-99; 20 13 C.F.R. § 404.1520, § 416.920. If a claimant is found disabled or 14 not disabled at any step, there is no need to complete further 15 steps. Tackett, 180 F.3d 1098; 20 C.F.R. § 404.1520. 16 Claimants have the burden of proof at steps one through four, 17 subject to the presumption that Social Security hearings are non18 adversarial, and to the Commissioner s affirmative duty to assist 19 claimants in fully developing the record even if they are represented 20 by counsel. Tackett, 180 F.3d at 1098 and n.3; Smolen, 80 F.3d at 21 If this burden is met, a prima facie case of disability is 1288. 22 made, and the burden shifts to the Commissioner (at step five) to 23 prove that, considering residual functional capacity ( RFC )1, age, 24 25 1 26 27 28 Residual functional capacity measures what a claimant can still do despite existing exertional (strength-related) and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 n.s. 5-6 (9th Cir. 1989). Nonexertional limitations limit ability to work without directly limiting strength, and include mental, sensory, postural, manipulative, and environmental limitations. Penny v. 4 1 education, and work experience, a claimant can perform other work 2 which is available in significant numbers. 3 1100; Reddick, 157 F.3d at 721; 20 C.F.R. § 404.1520, § 416.920. Tackett, 180 F.3d at 1098, 4 B. THE ALJ S EVALUATION IN PLAINTIFF S CASE 5 Here, the ALJ found that the Plaintiff had not engaged in 6 substantial gainful activity since her disability application date 7 (step one); that Plaintiff had the following severe impairment: non- 8 specified mood disorder (step two); and that Plaintiff did not have an 9 impairment or combination of impairments that met or equaled a listing 10 (step three). [AR 100.] The ALJ determined that Plaintiff has the RFC 11 for a full range of work at all exertional levels, with the provision 12 that Plaintiff cannot perform jobs requiring hyper vigilance, a high 13 production quota, and rapid assembly work or work involving the 14 public. 15 operations or in which she is responsible for the safety of others. 16 Finally, the Plaintiff can engage in only occasional non-intensive 17 interaction with supervisors and/or coworkers. [AR 101.] 18 was unable to perform past relevant work (step four). [Id.] The 19 vocational expert testified that a person with Plaintiff s RFC could 20 perform work existing in significant numbers, such as an industrial 21 cleaner, kitchen helper and/or hand packer (step five). [AR 102.] 22 Accordingly, Plaintiff was not found disabled as defined by the 23 Social Security Act. [Id.] Additionally, Plaintiff cannot perform work requiring safety Plaintiff 24 C. ISSUES IN DISPUTE 25 The parties Joint Stipulation sets out five disputed issues: 26 27 28 Sullivan, 2 F.3d 953, 958 (9th Cir. 1993); Cooper, 800 F.2d at 1155 n.7; 20 C.F.R. § 404.1569a(c). Pain may be either an exertional or a nonexertional limitation. Penny, 2 F.3d at 959; Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir. 1985); 20 C.F.R. § 404.1569a(c). 5 1 1. 2 3 witness statements; 2. 4 5 Whether the ALJ erred in failing to consider the lay Whether the ALJ failed to properly consider Dr. Stone s Mental Residual Functional Capacity Assessment; 3. Whether the ALJ properly considered the treating 6 psychiatrist s opinion regarding the Plaintiff s 5150 7 status; 8 4. 9 10 Whether the ALJ properly considered the consultative examiner s opinion and properly developed the record; and 5. 11 Whether the ALJ posed a complete hypothetical question to the Vocational Expert. 12 [JS 2-3.] 13 D. 14 In the first claim, Plaintiff asserts that the ALJ failed to 15 consider the written statements of Shirley Abbey, Plaintiff s mother. 16 Plaintiff asserts that the ALJ ignored these statements and failed to 17 provide germane reasons for doing so. 18 completed a Function Report - Adult - Third Party form describing 19 Plaintiff s daily activities and other functions. 20 that Plaintiff tends to get dizzy when bending over, tires easily, and 21 either sleeps a lot or not at all. [AR 227, 228, 231.] She also wrote, 22 among other things, that Plaintiff is short tempered and unable to get 23 along with others. [AR 231]. 24 handle stress or changes in her routine, and she sees and hears 25 things. [AR 232.] 26 ISSUE ONE: LAY TESTIMONY AND STATEMENTS On February 3, 2007, Ms. Abbey Ms. Abbey wrote She indicated that Plaintiff cannot The testimony of lay witnesses about their own observations 27 regarding the claimant s impairments constitutes competent evidence 28 that must be taken into account and evaluated by the Commissioner in 6 1 the disability evaluation. Bruce v. Astrue, 557 F.3d 1113, 1115 (9th 2 Cir. 2009); Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 3 2006); Stout v. Commissioner, Social Sec. Admin., 454 F.3d 1050, 1053 4 (9th Cir. 2006). 5 gives reasons that are germane to that witness. 6 Commissioner, Social Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008); 7 Stout v. Commissioner, 454 F.3d at 1053 (citing Dodrill v. Shalala, 12 8 F.3d 915, 919 (9th Cir. 1993)); Bayliss v. Barnhart, 427 F.3d 1211, 9 1218 (9th Cir. 2005); Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. Such testimony cannot be discounted unless the ALJ Carmickle v. 10 2001). 11 competent lay testimony favorable to the claimant, a reviewing court 12 cannot consider the error harmless unless it can confidently conclude 13 that no reasonable ALJ, when fully crediting the testimony, could have 14 reached a different disability determination. Stout, 454 F.3d at 15 1056. 16 [W]here the ALJ s error lies in a failure to properly discuss The ALJ s failure to address Ms. Abbey s testimony was harmless 17 error under Stout. 18 was substantially similar to statements made by Plaintiff. 19 document entitled Function Report - Adult, Plaintiff wrote that she 20 cannot lift things very well, spends most of her time in bed, and 21 sleeps either all day or not at all. [AR 234, 235, 239.] Plaintiff 22 also wrote that she is unable to handle stress or changes in routine, 23 is unable to get along with others, and that she sees and hears 24 things. [AR 239, 240.] The ALJ fully addressed Plaintiff s testimony 25 and discounted it for clear and convincing reasons, which Plaintiff 26 does not challenge on appeal. 27 not add substantial weight to Plaintiff s claim. 28 F.3d at 885 (finding reversible error in failure to consider testimony Ms. Abbey s testimony as to Plaintiff s symptoms In a Accordingly, Ms. Abbey s testimony did 7 Cf. Robbins, 466 1 of claimant s son, noting that [b]ecause the ALJ did not make a 2 legally sufficient adverse credibility finding with regard to [the 3 claimant s] own testimony, we cannot say with respect to [the son s] 4 testimony that no reasonable ALJ, when fully crediting the testimony, 5 could have reached a different disability determination )(citations 6 and internal quotation marks omitted). 7 failure to address fully this evidence was inconsequential to the 8 ultimate determination of non-disability. 9 Under these circumstances, the Stout, 454 F.3d at 1055. Moreover, while the ALJ did not specifically mention Ms. Abbey s 10 testimony, it appears from the record that the ALJ accounted for 11 Plaintiff s limitations as described by both Plaintiff and Ms. Abbey 12 and incorporated them in the RFC determination. 13 Plaintiff s tendency to tire easily and get dizzy are reasonably 14 reflected in the ALJ s finding that she cannot be expected to perform 15 jobs that require hyper vigilance, that require a high production 16 quota, [or] that require rapid assembly work. [AR 101.] 17 testimony that Plaintiff has a short temper and inability to get along 18 with others is reflected in the finding that Plaintiff cannot perform 19 work that involves the public . . . [or] work that requires safety 20 operations or in which she is responsible for the safety of others. 21 Lastly, the claimant can engage in only occasional non-intensive 22 interaction with supervisors and/or coworkers. [Id.] Accordingly, 23 Plaintiff s claim is without merit. 24 25 26 E. Testimony regarding Also, ISSUES TWO AND FIVE: DR. STONE Background Plaintiff testified that most recently, she has been seen by 27 psychiatrist Dr. Steve Salinger in October 2008, and Dr. Duonne in 28 July 2008. [AR 38, 80.] Prior to that, Plaintiff testified that she 8 1 was seen by psychiatrist Dr. Chip Stone at Yucaipa Guidance Center 2 from November 2006 to June 2008. [AR 13, 39.] 3 various documents indicating that Plaintiff visited Dr. Stone for 4 medication visits from November 2006 to May 2008. [AR 345-348, 360- 5 366.] 6 Dr. Stone, on November 21, 2006.2 [AR 346.] All other clinical 7 assessments were done by Keisha Downey, M.A. [AR 349-352, 362.] 8 Stone filled out a Work Capacity Evaluation (Mental) check-box 9 assessment form, and although it wasn t dated, Plaintiff testified The record reflects However, of these visits, only one evaluation was completed by Dr. 10 that it was filled out and submitted to Social Security in May or June 11 2008. [AR 83, 357-58.] She testifies that this took place while Dr. 12 Stone was still her treating physician, and prior to his leaving. 13 [Id.] This form indicated that Plaintiff is markedly limited in her 14 ability to maintain attention and concentration for extended periods; 15 perform activities within a schedule, maintain regular attendance, and 16 be punctual within customary tolerances; sustain an ordinary routine 17 without special supervision; make simple work-related decisions; 18 interact appropriately with the general public; maintain socially 19 acceptable behavior and adhere to basic standards of neatness and 20 cleanliness; and set realistic goals or make plans independently of 21 others. [AR 357-58.] Additionally, Dr. Stone opined that Plaintiff is 22 extremely limited in her ability to work in coordination with or in 23 proximity to others without being distracted by them; accept 24 25 26 27 28 2 The evaluation occurred shortly after Plaintiff attempted suicide in November 2006 by cutting her wrists. [AR 98.] Dr. Stone diagnosed Plaintiff with bipolar disorder-mixed and adjusted her medication. [AR 346-47.] The ALJ noted, consistent with the record, that Plaintiff subsequently had regular medication visits and by January 2007, was found capable of managing her own medication. [AR 98; see AR 348.] 9 1 instructions and respond appropriately to criticism from supervisors; 2 get along with co-workers or peers without distracting them or 3 exhibiting behavioral extremes; and respond appropriately to changes 4 in the work setting. [Id.] 5 6 The Commissioner s Finding In the administrative decision, the ALJ stated that he gave Dr. 7 Stone s report little to no evidentiary weight. He noted that there 8 were only a few documents regarding Dr. Stone s treating relationship 9 with Plaintiff, and none of these indicated that he actually counseled 10 or observed Plaintiff to any degree. [AR 99.] The ALJ added that 11 [the] report does not appear to be an objective assessment of the 12 claimant s abilities but rather an attempt to accommodate the 13 claimant s request to assist in seeking disability benefits. [Id.] 14 The ALJ noted that there was nothing in any of Dr. Stone s mental 15 health records to support the various contentions made on the check 16 box assessment, notably the opinion that Plaintiff has marked 17 impairment in her ability to function. [Id.] Plaintiff alleges that 18 the ALJ failed to provide specific and legitimate reasons for 19 rejecting Dr. Stone s opinion. 20 ALJ properly noted that there was little evidence of a treating 21 relationship between Dr. Stone and Plaintiff; and even if there was a 22 treating relationship, the ALJ s evaluation was supported by 23 substantial evidence. 24 25 However, Defendant contends that the Discussion Ninth Circuit cases distinguish among the opinions of three types 26 of physicians: those who treat the claimant (treating physicians), 27 those who examine but do not treat the claimant (examining or 28 consultative physicians), and those who neither examine nor treat the 10 1 claimant (non-examining physicians). Lester v. Chater, 81 F.3d 821, 2 830 (9th Cir. 1995); see also Orn v. Astrue, 495 F.3d 625, 631 (9th 3 Cir. 2007). 4 because he is employed to cure and has a greater opportunity to know 5 and observe the patient as an individual. 6 633; Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987). 7 opinion of an examining physician is, in turn, entitled to greater 8 weight than the opinion of a non-examining physician. 9 495 F.3d at 631; Lester v. Chater, 81 F.3d at 830. The opinion of a treating physician is given deference Orn v. Astrue, 495 F.3d at The Orn v. Astrue, Where the opinion 10 of a treating or examining physician is uncontroverted, the ALJ must 11 provide clear and convincing reasons, supported by substantial 12 evidence in the record, for rejecting it. 13 another doctor, a treating or examining source opinion may be rejected 14 for specific and legitimate reasons that are based on substantial 15 evidence in the record. 16 F.3d 684, 692 (9th Cir. 2009); Ryan v. Commissioner of Social Sec., 17 528 F.3d 1194, 1198 (9th Cir. 2008); Bayliss v. Barnhart, 427 F.3d 18 1211, 1216 (9th Cir. 2005); Lester v. Chater, 81 F.3d at 830-831. 19 However, if the treating physician s opinion is not well-supported, or 20 is inconsistent with other evidence in the record, various factors can 21 be considered in determining how much weight the testimony should be 22 given. 23 relationship and the frequency of examination by the treating 24 physician; and the nature and extent of the treatment relationship 25 between the patient and the treating physician. 26 F.3d at 631 (internal citations and quotation marks omitted). 27 Additional factors include the amount of relevant evidence that 28 supports the opinion and the quality of the explanation provided; the If contradicted by that of Valentine v. Commissioner of Social Sec., 475 These factors include the length of the treatment 11 Orn v. Astrue, 495 1 consistency of the medical opinion with the record as a whole; the 2 specialty of the physician providing the opinion; and other 3 factors... 4 Id. First, the record includes sufficient evidence of a treating 5 relationship between Dr. Stone and Plaintiff. 6 that Dr. Stone prescribed medication to Plaintiff from November 2006 7 to May 2008, consistent with Plaintiff s testimony that Dr. Stone 8 treated her from November 2006 to June 2008. [AR 13, 38-39, 345-58, 9 360-66.] 10 The record indicates However, the ALJ provided sufficient reasons for rejecting the 11 opinion of Dr. Stone. 12 conclusory and inadequately supported by his own mental health clinic 13 records. 14 Holohan v. Massanari, 246 F.3d 1195, 1202 n. 2 (9th Cir. 2001)(holding 15 that medical opinion is entitled to little if any weight where the 16 physician presents no support for her or his opinion ). 17 the initial psychological evaluation performed by Dr. Stone in 2006, 18 the remainder of his records over the two year treating relationship 19 do not provide any support for his opinion expressed in the check-box 20 assessment form. 21 substantial evidence in the record, such as the opinion of both 22 consultative psychiatrists Dr. Adam Cash and Dr. Malancharuvil that 23 Plaintiff had no marked limitations in her ability to function and was 24 malingering. 25 The ALJ found that Dr. Stone s opinion was See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); Other than Moreover, Dr. Stone s opinion was in conflict with Accordingly, this claim is without merit. With regard to Issue Five, Plaintiff alleges that the ALJ did not 26 consider all of Plaintiff s limitations when posing a hypothetical to 27 the Vocational Expert. 28 did not give specific and legitimate reasons for rejecting Dr. Stone s Specifically, Plaintiff alleges that the ALJ 12 1 opinion, and that the ALJ should have considered all limitations 2 included in Dr. Stone s opinion. 3 limitations for which there is no evidence. 4 F.3d 1157, 1164-65 (9th Cir. 2001). The ALJ s hypothetical questions 5 accounted for a person who could not perform work requiring 6 hypervigilance, high quota production rate, rapid assembly line work, 7 and work involving the public. [AR 85-86.] He also accounted for a 8 person who could not be responsible for safety operations or the 9 safety of others, and could only engage in occasional, non-intense The ALJ is not required to include Osenbrock v. Apfel, 240 10 interaction with supervisors and coworkers. [Id.] As mentioned above 11 with regard to Issue Two, the ALJ gave specific and legitimate reasons 12 for discounting Dr. Stone s opinion. 13 by the ALJ included all limitations for which there was sufficient 14 supporting evidence in the record. 15 without merit. The hypothetical questions asked Accordingly, this claim is also 16 F. ISSUE THREE: GAF SCORE 17 On November 9, 2006, Plaintiff was admitted to Moreno Valley 18 Community Hospital after cutting her wrists. [AR 307.] 19 admittance, Plaintiff was diagnosed with Bipolar Disorder I, Mixed, 20 and a global assessment of functioning ( GAF )3 score of 28. 21 310.] Upon [AR When Plaintiff was discharged on November 13, 2006, she was 22 23 24 25 26 27 28 3 A GAF score reflects a clinician's subjective rating, on a scale of 0 to 100, of the more severe of two components: the severity of a patient s psychological symptoms, or the psychological, social, and occupational functioning of a patient. A GAF score of 21-30 is indicative of behavior that is considerably influenced by delusions or hallucinations OR serious impairment in communications or judgment OR inability to function in all areas. 13 1 2 assessed with a GAF score of 404. [AR 307.] Plaintiff asserts that these GAF scores were consistent with 3 findings of the treating psychiatrist, Dr. Stone. Plaintiff further 4 asserts that the ALJ failed to indicate if he accepted or rejected the 5 findings regarding both the GAF scores and Dr. Stone s findings. 6 However, the ALJ properly rejected the findings of Dr. Stone, as 7 discussed above in Issue Two. 8 acceptance or rejection of certain findings can be inferred. See 9 Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989) (A reviewing With regard to the GAF scores, an ALJ s 10 court may draw specific and legitimate inferences from the ALJ's 11 opinion "if those inferences are there to be drawn."). 12 this case stated the following in the administrative decision: [Dr. 13 Malancharuvil] noted that while the claimant had a GAF of 31 when she 14 slit her wrists, shortly thereafter her GAF was assessed to be 65 and 15 she was found capable of managing her own medications. [AR 99.] 16 Additionally he noted that Dr. Cash did not provide a GAF on his 17 report, presumably due to the invalidation of the test results. 18 [Id.] It is reasonable to infer from the ALJ s discussion of the GAF 19 scores that he rejected the findings regarding the GAF scores. 20 The ALJ in Furthermore, this decision was entirely consistent with the 21 record. The record shows that these scores were administered 22 immediately after Plaintiff attempted suicide by slitting her wrists. 23 Since this incident, Plaintiff has not attempted suicide. 24 Additionally, there is no evidence, including the assessment by Dr. 25 Stone, that the scores are relevant to her current mental state and 26 27 28 4 A GAF of 31-40 indicates some impairment in reality testing or communication OR major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. 14 1 residual functional capacity. 2 necessarily indicative of a plaintiff s functional capacity to work 3 for Social Security purposes, and in this case, represented only an 4 initial assessment. 5 (6th Cir. 2002). 6 7 8 9 G. Moreover, a GAF score is not See Howard v. Commissioner, 276 F.3d 235, 241 Accordingly, these claims are without merit. ISSUE FOUR: DR. CASH Background On September 24, 2008, Plaintiff underwent a consultative psychological examination by Dr. Adam Cash. [AR 367-371.] The 10 examination included general observations, relevant history, as well 11 as the administration of mental status and intelligence tests. 12 on the results of these tests, Dr. Cash noted that Plaintiff s level 13 of intellectual functioning was in the borderline to low average 14 range based on observation alone and her ability to articulate 15 herself. [AR 369.] Her results on the Wechsler Adult Intelligence 16 Scale-III (WAIS-III) IQ test, however, placed her within the 17 Extremely Low range. 18 marginally valid at best and should be interpreted with caution. 19 was within the mental retardation range and this result is completely 20 inconsistent with her presentation and her history. [AR 370.] 21 Additionally, he noted that her Minnesota Multiphasic Personality 22 Inventory - 2nd Edition (MMPI-2) scores were marginally valid at best 23 and consistent with some overreporting, and her Rey 15 II scores were 24 indicative of dissimulation. [AR 368.] Dr. Cash further noted that 25 the [t]est results should be interpreted with caution. [Id.] 26 Overall, Dr. Cash opined that Plaintiff s tests were essentially 27 invalid. [AR 371.] Plaintiff alleges that Dr. Cash s statements that 28 the tests are both marginally valid and essentially invalid are Based Dr. Cash opined that this result was 15 It 1 inconsistent. 2 because if there is any validity to Plaintiff s IQ scores, then it is 3 more likely that Plaintiff meets the criteria in Listing 12.05. 4 5 Plaintiff alleges that this discrepancy is important The Commissioner s Finding In the administrative decision, that ALJ discussed the evaluation 6 of Dr. Cash. The ALJ also made a finding that Plaintiff does not have 7 an impairment or combination of impairments that meets or medically 8 equals one of the listed impairments. 9 the ALJ did not make it clear whether he accepted or rejected the However, Plaintiff asserts that 10 findings of Dr. Cash. 11 inquired further into the matter, and therefore that the matter should 12 be reversed or remanded for further proceedings. 13 14 Plaintiff asserts that the ALJ should have Discussion The opinion of the examining physician, if supported by clinical 15 tests and observations upon examination, constitutes substantial 16 medical evidence and may be relied upon by the ALJ in order to 17 determine a claimant s RFC. 18 treating physician is contradicted, and the opinion of a nontreating 19 source is based on independent clinical findings that differ from 20 those of the treating physician, the opinion of the nontreating source 21 may itself be substantial evidence. 22 1041 (9th Cir. 1995); Magallanes v. Bowen, 881 F.2d at 751; Miller v. 23 Heckler, 770 F.2d 845, 849 (9th Cir. 1985). 24 physician, the Commissioner must present clear and convincing 25 reasons for rejecting the uncontroverted opinion of an examining 26 physician and may reject the controverted opinion of an examining 27 physician only for specific and legitimate reasons that are supported 28 by substantial evidence. Carmickle v. Commissioner of SSA, 533 F.3d Where the opinion of the claimant s 16 Andrews v. Shalala, 53 F.3d 1035, As with a treating 1 1155, 1164 (9th Cir. 2008) (quoting Lester v. Chater, 81 F.3d at 830). 2 Here, the ALJ s finding that the Plaintiff does not have an 3 impairment that meets or medically equals a listed impairment was 4 consistent with the findings in Dr. Cash s report. As the ALJ noted, 5 Dr. Cash found that while Plaintiff did show evidence of some learning 6 and mood difficulties, other test scores which placed Plaintiff in the 7 mildly retarded range were inconsistent with her history and 8 presentation. 9 Plaintiff s scores were marginally valid at best referred It should also be noted that Dr. Cash s statement that 10 specifically to her MMPI-2 scores. [AR 370.] 11 statement that her tests were essentially invalid referred to the 12 analysis of the tests as a whole. [AR 371.] 13 statements are not necessarily inconsistent. 14 well as the record as a whole, do not suggest that Plaintiff s 15 condition meets or equals a listed impairment. 16 the ALJ clearly accepted Dr. Cash s findings, and took them into 17 consideration in the disability determination. 18 V. On the other hand the Thus, these two Dr. Cash s findings, as By holding the same, ORDERS 19 Accordingly, IT IS ORDERED that: 20 1. The decision of the Commissioner is AFFIRMED. 21 2. This action is DISMISSED WITH PREJUDICE. 22 3. The Clerk of the Court shall serve this Decision and Order 23 and the Judgment herein on all parties or counsel. 24 25 26 27 DATED: October 13, 2010 ______________________________ CARLA M. WOEHRLE United States Magistrate Judge 28 17

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