Annette Davis v. Michael J. Astrue, No. 5:2010cv01591 - Document 21 (C.D. Cal. 2011)

Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal; the Court concludes that the ALJ provided ample specific and legitimate reasons for rejecting the treating doctors opinion. Accordingly, remand is not required. Consistent with the foregoing, IT IS ORDERED that Judgment be entered AFFIRMING the decision of the Commissioner and dismissing this action with prejudice. See order for further details. (jy)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ANNETTE DAVIS, Plaintiff, 12 13 14 15 16 v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) NO. EDCV 10-01591-SS MEMORANDUM DECISION AND ORDER 17 18 I. 19 INTRODUCTION 20 21 Annette Davis ( Plaintiff ) brings this action seeking to overturn 22 the decision of the Commissioner of the Social Security Administration 23 (the Commissioner ) denying her application for disability insurance 24 benefits and Supplemental Security Income ( SSI ) benefits. 25 25, 2011, Plaintiff filed a complaint (the Complaint ) commencing the 26 instant action. 27 Complaint (the Answer ). 28 Memorandum in Support of the Complaint (the Reply ). On March On June 1, 2011, Defendant filed an Answer to the On June 16, 2011, Plaintiff filed a Reply The parties have 1 consented to the jurisdiction of the undersigned United States 2 Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons stated 3 below, the decision of the Commissioner is AFFIRMED. 4 5 II. 6 PROCEDURAL HISTORY 7 8 9 On February 27, 2003, Plaintiff filed applications for disability insurance benefits and SSI benefits under Titles II and XVI. 10 (Administrative Record ( AR ) 287-95). 11 1964 and was 38 years old at the time she filed her applications for 12 disability insurance benefits and SSI. 13 applications allege disability beginning on March 26, 2000, due to 14 carpal tunnel syndrome in both hands. 15 insurance benefits and SSI application were denied initially and upon 16 reconsideration. 17 an Administrative Law Judge ( ALJ ) that took place on August 17, 2004. 18 (AR 307-19). 19 September 20, 2004. (AR 9-19). Plaintiff requested review of the ALJ s 20 decision, which was denied by the Appeals Council. (AR 4-6). Plaintiff 21 then filed civil action EDCV 05-00821, and the District Court remanded 22 pursuant to sentence four of U.S.C. 23 parties stipulation to remand. (AR 296-304). Plaintiff was born on July 26, (AR 287). (Id.). Plaintiff s initial Plaintiff s disability Plaintiff then requested a hearing by The ALJ determined that Plaintiff was not disabled on §405(g)(2011), following the (AR 440-54). 24 25 On August 22, 2005, Plaintiff filed another application for 26 disability insurance and supplemental security benefits. 27 administrative hearing was held on November 28, 2006. 28 January 26, 2007, the ALJ issued a decision finding Plaintiff not 2 (AR 345). An (AR 359-91). On 1 disabled. (AR 345-53). On April 14, 2007, the Appeals Council vacated 2 the ALJ s final decision and remanded the matter consistent with the 3 Court s remand order. (AR 436-39). Another administrative hearing was 4 held on August 30, 2007, after which the ALJ issued a decision again 5 finding that Plaintiff was not disabled. 6 filed another civil action in the District Court, EDCV 08-00538. 7 907-09). 8 remand. (AR 889-906). Plaintiff then (AR On October 20, 2008, the District Court issued a judgment of (AR 938-39). 9 A further administrative hearing then took place in San Bernardino, 10 11 California on January 28, 2010 with ALJ David M. Ganly presiding. (AR 12 1123-49). 13 (AR 1131-35). 14 29, 2010, during which Luis O. Mas, an impartial vocational expert, 15 testified. 16 unfavorable decision, finding Plaintiff capable of performing other jobs 17 that exist in significant numbers in the national economy. (AR 861-71). 18 Plaintiff then requested judicial review by filing this civil action 19 pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3)(2011). 20 \\ 21 \\ 22 \\ 23 \\ 24 \\ 25 \\ 26 \\ 27 \\ 28 \\ Plaintiff, represented by counsel, appeared and testified. A supplemental administrative hearing took place on June (AR 1150-71). On August 6, 2010, the ALJ issued an 3 1 III. 2 FACTUAL BACKGROUND 3 4 A. Plaintiff s Medical History 5 6 Plaintiff s medical history includes notes from the San Bernardino 7 County Department of Behavioral Health. 8 1107). 9 and mental abilities to do work. (AR 203-34, 984-1021, 1088- It also includes various assessments of Plaintiff s physical Plaintiff s 10 Regarding 11 physician completed a medical opinion form concerning Plaintiff s 12 ability to do physical work-related activities. 13 physician noted that Plaintiff had the ability to stand for sixty 14 minutes before changing position, the ability to stand and walk for 15 about four hours with normal breaks during an eight hour day, no limit 16 to her ability to sit with normal breaks during an eight hour day and 17 she would not need to lay down at unpredictable intervals during a work 18 shift. 19 occasionally twist, stoop and climb stairs and could never crouch or 20 climb ladders and that these findings were supported by carpal tunnel 21 symptoms. 22 be absent from work due to impairments or treatment less than once a 23 month. (AR 1023-24). (AR 1024). physical (AR 856-57, 1023-25, 1031-32). ability, on October 29, 2008, (AR 1023-25). a The The physician also stated that Plaintiff could The physician concluded that the Plaintiff would (AR 1025). 24 25 Regarding Plaintiff s mental ability, on June 24, 2010, Gurmit 26 Sekhon, M.D., of the San Bernardino County Department of Behavioral 27 Health wrote a letter clarifying his diagnosis of Plaintiff as bipolar 28 and stating that Plaintiff suffered 4 from irritability, paranoia, 1 helplessness and anhedonia, as well as having a history of auditory and 2 visual 3 trusting people, irritability and inability to take care of her needs. 4 (AR 1085). Dr. Sekhon prescribed Plaintiff Ambien, Seroquel, Limbitrol 5 and 6 decompensate evidenced by increased depression, anxiety, nervousness, 7 moody spells, [inability] to do chores or stay focused[,][ ]isolation, 8 difficult[y] relating to people and neglect [of] herself, both in her 9 care and her hygiene. hallucinations, Zoloft and noted paranoid that ideation, difficulty relating and without medication, [Plaintiff] would (Id.). 10 11 Notes from Dr. Sekhon s treatment of Plaintiff, dated March 2, 2003 12 to June 25, 2010, are also included in the record. (AR 203-220, 984- 13 1021, 1087-1101). 14 symptoms of mental illness. However, Dr. Sekhon s more recent treatment 15 notes depict an improvement in Plaintiff s mental state provided she 16 maintains ongoing medication ( [symptoms] are well controlled with the 17 medication ). 18 Plaintiff had [n]o evidence of any agitation or acting out and 19 [m]edications are helping her. 20 Sekhon again noted [m]edications help [Plaintiff]. 21 also stated that Plaintiff [r]eported less period[s] of depression, 22 anxiety, irritability, and isolation. 23 of an agitation or episode of violent or inappropriate behavior. 24 (Id.). 25 energy are getting better with the medication. The treatment notes document Plaintiff s reported (AR 1087-98). Dr. Sekhon noted on January 4, 2010 that (AR 1098). On February 5, 2010, Dr. (AR 1096). He Less paranoia . . . No evidence He further noted Plaintiff s [s]leep, appetite, and level of (Id.). 26 27 28 Dr. Sekhon noted again during a March 12, 2010 examination that Plaintiff s medications help her 5 and she had less auditory 1 hallucinations of negative nature and less feelings of helplessness, 2 hopelessness, anhedonia, isolation, and irritability. 3 April 16, 2010, Dr. Sekhon noted that Plaintiff had [n]o agitation. 4 No intrusive behavior . . . Able to relate. 5 1090). 6 cooperative, directable, less anxious, and less distanced and [s]leep, 7 appetite, and level of energy are better with medication. (AR 1093). Stayed focused. On (AR Dr. Sekhon noted on May 21, 2010, Plaintiff was alert, (AR 1087). 8 9 B. Consultative Exams 10 11 Several separate physicians conducted in between 2003 and 2010. consultative exams of 12 Plaintiff 13 65, 266-70, 271, 272, 273, 823-25, 828-36, 1046-50). 14 2003, Dr. Laurence Meltzer conducted an 15 Plaintiff. 16 evidence of carpal tunnel syndrome. 17 although Plaintiff complain[ed] of severe pain with the slightest touch 18 of her wrists, she [did] have full range of motion. 19 Meltzer concluded that Plaintiff did not have any functional disability 20 from a purely orthopedic standpoint. (AR 235-40). (AR 235-40, 242-47, 248-51, 252- orthopedic On April 28, evaluation of Dr. Meltzer opined that Plaintiff had no (AR 239). He also noted that (Id.). Dr. (Id.). 21 22 On May 1, 2003, Dr. Linda Smith conducted a psychiatric evaluation 23 of Plaintiff. (AR 242-47). Dr. Smith did not see any evidence of any 24 depression that would warrant a psychiatric diagnosis. In addition, she 25 was not at all credible in the formal mental status examination. 26 247). 27 coherent and organized. 28 relevant and non-delusional and [t]here was no bizarre or psychotic (AR Dr. Smith noted that for thought processes, Plaintiff was (AR 244). 6 Plaintiff s thought content was 1 thought content. There was no current suicidal, homicidal or paranoid 2 ideation. 3 appeared to be attempting to feign a poor mental status and the 4 problems she portrayed were strikingly inconsistent with the rest of the 5 interview. 6 [she did] not believe that [Plaintiff had] a psychiatric disorder and 7 Plaintiff did not appear to be impaired due to a psychiatric disorder. 8 (Id.). (AR 245). As a result, Dr. Smith believed that Plaintiff (AR 247). Dr. Smith concluded that [f]or these reasons, 9 10 On May 15, 2003, Dr. Larry Havert, a clinical psychologist, 11 completed a Short-Form Evaluation for Mental Disorders concerning 12 Plaintiff. 13 difficulty controlling anger impulses she also possessed normal 14 motor activity and had cooperative interview behavior. 15 concluded 16 depression [and] anger and was capable of managing funds in her best 17 interest. (AR 248-51). that Plaintiff Dr. Havert noted that while Plaintiff had was marginally stable (AR 248). He periods of with (AR 250-51). 18 19 On May 27, 2003, Dr. Myra Becraft, a psychiatrist, completed a 20 psychiatric review of Plaintiff. 21 that Plaintiff s allegations [were] not totally credible. 22 Dr. Becraft also determined that Plaintiff had no restrictions of 23 activities 24 functioning, episodes of decompensation, each of extended duration and 25 only mild difficulties in maintaining concentration, persistence or 26 pace. 27 Functional Capacity Assessment of Plaintiff. 28 determined that Plaintiff had no limitations in sustaining an ordinary (AR of daily 262). living, Dr. (AR 252-65). difficulties Dr. Becraft determined in (AR 252). maintaining social Becraft also completed a Mental Residual 7 (AR 266-70). Dr. Becraft 1 routine without special supervision, working in coordination with or 2 proximity to others without being distracted by them, maintaining 3 socially appropriate behavior and responding appropriately to changes 4 in the work setting. 5 that Plaintiff was not credible. (AR 266-67). Dr. Becraft ultimately determined (AR 270). 6 7 On July 23, 2003, Dr. Donald Williams, a psychiatrist, examined 8 Plaintiff and concluded Plaintiff had no evidence of depression . . . 9 at all and Plaintiff was not credible at all. (AR 271). Dr. 10 Williams also noted Plaintiff exaggerated and tried to manipulate the 11 outcome of the [mental status] exam. 12 Norman Cooley also examined Plaintiff concerning carpal tunnel syndrome. 13 (AR 272). 14 carpal tunnel syndrome or any other impairment. 15 2003, Dr. Gwendolyn Taylor-Holmes examined Plaintiff and determined 16 there was no evidence of [a] severe medically determinable impairment 17 which limits work capacity for a continuous twelve month period. 18 273). 19 Capacity Assessment of Plaintiff. 20 that Plaintiff is partially credible as it relates to symptoms but not 21 to the extent that she is totally disabled and the medical evidence 22 does not support a finding of disability. (Id.). On May 12, 2003, Dr. Dr. Cooley determined that Plaintiff had no evidence of (Id.). On July 24, (AR Dr. Taylor-Holmes also completed a Physical Residual Functional (AR 828-36). In it, she determined (AR 834). 23 24 On November 7, 2005, Dr. K. Gregg completed another Mental Residual 25 Functional Capacity Assessment of Plaintiff. 26 determined that Plaintiff was not significantly limited in her ability 27 to sustain an ordinary routine without special supervision, to maintain 28 socially appropriate behavior and 8 the (AR 823-25). ability to get Dr. Gregg along with 1 coworkers or peers without distracting them or exhibiting behavioral 2 extremes. 3 work with the public, she could adapt and relate to coworkers and 4 supervisors. (AR 823-4). Dr. Gregg noted that while Plaintiff could not (AR 825). 5 6 On March 7, 2010, Dr. Kim Goldman, clinical psychologist, completed 7 a psychological evaluation of Plaintiff. (AR 1046-50). Dr. Goldman 8 could not record valid test results because Plaintiff did not make an 9 adequate effort on the tasks presented to her. (AR 1048). She also 10 noted that Plaintiff s performance reflects that she is attempting to 11 simulate cognitive impairment and Plaintiff endorsed items that 12 represent an over reporting of psychopathology in an attempt to appear 13 more disturbed than she is in reality. 14 concluded that Plaintiff s functional limitations were unable to be 15 accurately assessed due to malingering. (AR 1049). Dr. Goldman (AR 1050). 16 17 C. State Agency Doctors 18 19 Plaintiff was evaluated by Dr. Samuel Landau, an impartial medical 20 expert in internal medicine, who determined that she cannot do forceful 21 gripping, grasping or twisting with her hands, but she can do occasional 22 fine manipulation and frequent gross manipulation. 23 also stand, walk and sit for 6 hours out of an 8 hour workday with 24 normal breaks. 25 record that Plaintiff was a malingerer. (Id.). During the hearing, Dr. 26 Landau stated that Plaintiff did not have any conditions that would meet 27 the approved list of impairments. (Id.). (AR 1137). She can Dr. Landau did not find any indication in the (AR 1136). 28 9 He also noted that her 1 medications were entirely for psychiatric use and not orthopedic. 2 (AR 1138). 3 4 Plaintiff was also evaluated by Dr. Joseph Malancharuvil, an 5 impartial medical expert in psychology. (AR 1140-43, 1145-48, 1162-64). 6 Dr. Malancharuvil testified that the psychological consultative examiner 7 only gave the Plaintiff a diagnosis of malingering. 8 testified that Plaintiff has a personality disorder with anti-social 9 features, a mood disorder and continuing marijuana use, which do not (AR 866). He also He also testified 10 meet the requirements for mental disability. 11 that Plaintiff has no to mild impairments in activities of daily living. 12 (Id.). 13 to be resolved as Plaintiff denied using them but tested positive for 14 marijuana as well as opiate use. (AR 1143-44, 1162). Dr. Malancharuvil 15 commented that while Plaintiff did 16 testing, she tested as mentally retarded during formal testing and 17 did not come across presenting herself adequately. (Id.). He also noted that Plaintiff s use of drugs and alcohol needed fairly well during informal (AR 1162-63). 18 19 IV. 20 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 21 22 To qualify for disability benefits, a claimant must demonstrate 23 a medically determinable physical or mental impairment that prevents him 24 from engaging in substantial gainful activity1 and that is expected to 25 result in death or to last for a continuous period of at least twelve 26 27 28 1 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. 10 1 months. Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing 2 42 U.S.C. § 423(d)(1)(A)). 3 incapable of performing the work he previously performed and incapable 4 of performing any other substantial gainful employment that exists in 5 the national economy. 6 1999) (citing 42 U.S.C. § 423(d)(2)(A)). The impairment must render the claimant Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 7 8 9 To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920. The steps are: 10 11 (1) Is the claimant presently engaged in substantial gainful 12 activity? 13 If not, proceed to step two. 14 (2) If so, the claimant is found not disabled. Is the claimant s impairment 15 claimant is found not disabled. 16 severe? If not, the three. 17 (3) If so, proceed to step Does the claimant s impairment meet or equal one of a 18 list of specific impairments described in 20 C.F.R. Part 19 404, Subpart P, Appendix 1? 20 found disabled. 21 (4) If so, the claimant is If not, proceed to step four. Is the claimant capable of performing his past work? 22 so, the claimant is found not disabled. 23 If to step five. 24 (5) If not, proceed Is the claimant able to do any other work? 25 claimant is found disabled. 26 found not disabled. 27 28 11 If not, the If so, the claimant is 1 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 2 949, 953-54 (9th Cir. 2001) (citing Tackett); 20 C.F.R. §§ 404.1520(b)- 3 404.1520(f)(1) & 416.920(b)-416.920(f)(1). 4 5 The claimant has the burden of proof at steps one through four, and 6 the Commissioner has the burden of proof at step five. 7 F.3d 8 affirmative duty to assist the claimant in developing the record at 9 every step of the inquiry. at 953-54 (citing Tackett). Additionally, Id. at 954. Bustamante, 262 the ALJ has an If, at step four, the claimant 10 meets his burden of establishing an inability to perform past work, the 11 Commissioner must show that the claimant can perform some other work 12 that exists in significant numbers in the national economy, taking 13 into account the claimant s residual functional capacity ( RFC ),2 age, 14 education, and work experience. 15 Reddick, 157 F.3d at 721; 20 C.F.R. §§ 404.1520(f)(1), 416.920(f)(1). 16 The Commissioner may do so by the testimony of a vocational expert or 17 by reference to the Medical-Vocational Guidelines appearing in 20 C.F.R. 18 Part 404, Subpart P, Appendix 2 (commonly known as the Grids ). 19 Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001) (citing 20 Tackett). 21 nonexertional limitations, the Grids are inapplicable and the ALJ must 22 take the testimony of a vocational expert. 23 864, 869 (9th Cir. 2000) (citing Burkhart v. Bowen, 856 F.2d 1335, 1340 24 (9th Cir. 1988)). Tackett, 180 F.3d at 1098, 1100; When a claimant has both exertional (strength-related) and Moore v. Apfel, 216 F.3d 25 26 27 28 2 Residual functional capacity is what [one] can still do despite [his] limitations and represents an assessment based upon all of the relevant evidence. 20 C.F.R. §§ 404.1545(a), 416.945(a). 12 1 V. 2 THE ALJ S DECISION 3 4 The ALJ employed the five-step sequential evaluation process 5 discussed above. 6 had not engaged in substantial gainful activity since the date of 7 alleged disability onset, September 21, 2004. 8 ALJ found that Plaintiff suffered from the following severe impairments: 9 bilateral carpal tunnel syndrome; degenerative disc disease of the spine At the first step, the ALJ indicated that Plaintiff and lumbar spine; (AR 864). obesity; Second, the 10 cervical affective disorder; 11 personality disorder, not otherwise specified; cocaine dependence in 12 reported remission; and malingering. (Id.). 13 14 At the third step, the ALJ found that Plaintiff does not have an 15 impairment or combination of impairments that meet or medically equal 16 any of the impairments appearing in the Listing of Impairments set 17 forth in 20 C.F.R. Part 404, Subpart P, Appendix 1. 18 noted that Plaintiff s mental impairments, considered singly and in 19 combination, do not meet or medically equal the criteria of listing 20 12.04, 12.08 and 12.09. 21 paragraph B or paragraph C criteria were satisfied and found that 22 neither paragraph was satisfied. 23 in order to determine whether the Paragraph B criteria were satisfied, 24 the mental impairment must result in two of the following: marked 25 restriction of activities of daily living, marked difficulties in 26 maintaining social functioning; marked difficulties in maintaining 27 concentration, or repeated 28 decompensation, each with extended duration. (AR 864). or The ALJ The ALJ considered whether the (Id.). persistence, (Id.). (AR 864-65). pace; 13 The ALJ explained that episodes of The ALJ found 1 that Plaintiff s mental impairment did not satisfy at least two of the 2 above marked limitations or one marked limitation with repeated 3 episodes of decompensation extending in duration. (AR 864-65). 4 5 Before proceeding to the fourth step, the ALJ considered 6 Plaintiff s RFC. 7 extent to which the symptoms can be reasonably accepted as consistent 8 with the objective medical evidence and other record evidence. 9 865). In doing so, the ALJ considered all symptoms and the (AR The ALJ found Plaintiff s testimony concerning the intensity, 10 persistence and limiting effects of the symptoms was not credible, 11 especially in light of the treatment progress notes and consultative 12 exams. 13 examinations and State Agency reviews, the ALJ concluded that the 14 Plaintiff has the RFC to perform a limited range of light work as 15 defined in 20 C.F.R. §404.1567(b) and §416.967(b), with the following 16 limitations: she can lift and carry 20 pounds occasionally and 10 pounds 17 frequently; she can sit, stand and walk for 6 hours out of an 8 hour 18 work day with normal breaks such as every 2 hours; she can climb stairs, 19 but she cannot climb ladder, work at heights or balance; she cannot do 20 forceful gripping, grasping or twisting with her hands, but she can do 21 occasional fine manipulation such as keyboarding; she can do frequent 22 gross manipulations such as opening drawers and carrying files; and her 23 mental impairments limit her to moderately complex tasks that are object 24 oriented. 25 have the additional limitation of not being responsible for the safety 26 of others when she was using marijuana. (AR 866). Considering the above in light of the consultative (AR 865). In addition, the ALJ found that Plaintiff would 27 28 14 (Id.). 1 After the ALJ addressed Plaintiff s functional limitations, he 2 concluded that Plaintiff was unable to perform any of her past relevant 3 work as a nursing assistant. 4 generally performed as semi-skilled work at the medium exertional level, 5 which the Plaintiff s RFC does not allow. 6 determined that considering Plaintiff s age, education, work experience 7 and RFC, there are jobs that exist in significant numbers in the 8 national economy that Plaintiff can perform. 9 include such representative (AR 870). Work as a nursing assistant is (Id.). occupations (Id.). as However, the ALJ These jobs would cleaner, small parts 10 assembler and counter clerk. (AR 871). As a result, the ALJ determined 11 that Plaintiff has not been under a disability, as defined in the Social 12 Security Act, since the application was filed on April 29, 2008. (Id.). 13 14 VI. 15 STANDARD OF REVIEW 16 17 Under 42 U.S.C. § 405(g), a district court may review the 18 Commissioner s decision to deny benefits. The court may set aside the 19 Commissioner s decision when the ALJ s findings are based on legal error 20 or are not supported by substantial evidence in the record as a whole. 21 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (citing 22 Tackett, 180 F.3d at 1097); Smolen v. Chater, 80 F.3d 1273, 1279 (9th 23 Cir. 1996) (citing Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989)). 24 25 Substantial evidence is more than a scintilla, but less than a Reddick, 157 F.3d at 720 (citing Jamerson v. Chater, 26 preponderance. 27 112 F.3d 1064, 1066 (9th Cir. 1997)). 28 a reasonable person might accept as adequate to support a conclusion. 15 It is relevant evidence which 1 Id. (citing Jamerson, 112 F.3d at 1066; Smolen, 80 F.3d at 1279). 2 determine whether substantial evidence supports a finding, the court 3 must consider the record as a whole, weighing both evidence that 4 supports 5 conclusion. 6 F.3d 953, 956 (9th Cir. 1993)). 7 either affirming or reversing that conclusion, the court may not 8 substitute its judgment for that of the Commissioner. Reddick, 157 F.3d 9 at 720-21 (citing Flaten v. Sec y, 44 F.3d 1453, 1457 (9th Cir. 1995)). and evidence that detracts from the To [Commissioner s] Aukland, 257 F.3d at 1035 (citing Penny v. Sullivan, 2 If the evidence can reasonably support 10 11 VII. 12 DISCUSSION 13 14 A. The ALJ Correctly Determined Plaintiff s RFC And Properly Relied 15 Upon The VE s Testimony To Find Plaintiff Capable Of Performing 16 Certain Jobs 17 18 Plaintiff claims that the ALJ erred in finding her capable of 19 performing other work as a Cleaner, Small Parts Assembler and Counter 20 Clerk. 21 the ALJ erred in relying on the testimony of the Vocational Expert 22 ( VE ). 23 the VE are not consistent with the RFC assessment determined by the 24 ALJ. (Complaint Memo. at 3-6). (Id. at 3). (Id.). Specifically, Plaintiff claims that Plaintiff argues that [t]he jobs identified by These claims are without merit. 25 26 Social Security Ruling 96-8p defines a claimant s residual 27 functional capacity as an assessment of an individual s ability to do 28 sustained work-related physical and mental activities in a work setting 16 1 on a regular and continuing basis. The term regular and continuing 2 basis is further defined as meaning 8 hours a day, for 5 days a week, 3 or an equivalent work schedule. 4 functional capacity, the ALJ must consider subjective symptoms such as 5 fatigue and pain. Id. In determining residual Smolen, 80 F.3d at 1291. 6 7 Here, the ALJ determined that Plaintiff retained the residual 8 functional capacity to perform a limited range of light work . . . Her 9 mental impairment limits her to moderately complex tasks that are object 10 oriented. 11 is using marijuana. 12 symptoms and the extent to which these symptoms can be reasonably 13 accepted as consistent with the objective medical evidence. 14 While Plaintiff s medically determinable impairments could reasonably 15 be expected to cause the alleged symptoms, her statements concerning the 16 intensity, persistence and limiting effects of these symptoms are not 17 credible. She cannot be responsible for the safety of others when she (AR 865). The ALJ based this determination on all (Id.). (AR 866). 18 19 Plaintiff also claims that the ALJ erred in relying on the VE s 20 testimony because it conflicted with the RFC assessment determined by 21 the ALJ. 22 that a deviation has occurred between Plaintiff s RFC of a limited 23 range of light work (AR 865) and the jobs of cleaner, small parts 24 assembly 25 inconsistency actually exists. The ALJ had already determined Plaintiff 26 was able to perform light and skilled work through the process of 27 determining Plaintiff s RFC and therefore the VE s suggested jobs, taken 28 from a representative sample of SVP: 2, light, unskilled work positions, (Plaintiff s Motion at 3). worker and counter clerk 17 However, while Plaintiff argues suggested by the VE, no such 1 are fully supported. (AR 865-69). Plaintiff contends that the VE s 2 suggested jobs do not match the job descriptions provided in the DOT, 3 however, [t]he DOT s occupational 4 comprehensive studies of how similar jobs are performed in different 5 workplaces. 6 collective description of these jobs. 7 numerous jobs. Social Security Ruling 00-4P, 2000 WL 1898704. The ALJ 8 specifically asked the VE if the jobs he suggested were a virtually 9 complete list, or a representative sample of a larger universe of jobs, 10 to which the VE responded the jobs were a representative sample of 11 quite a few jobs that would fall within that light work dynamic. 12 1166). definitions are the result of The term occupation, as used in the DOT, refers to the Each occupation represents (AR 13 14 Furthermore, the ALJ fulfilled his affirmative duty to confirm that 15 the jobs suggested by the VE were consistent with the DOT. 16 Security Ruling 00-4P ( When a VE or VS provides evidence about the 17 requirements of a job or occupation, the adjudicator has an affirmative 18 responsibility to ask about any possible conflict between that VE or VS 19 evidence and information provided in the DOT. In these situations, the 20 adjudicator will: Ask the VE or VS if the evidence he or she has 21 provided conflicts with information provided in the DOT ). 22 specifically asked the VE whether these jobs that you re using [are] 23 consistent with the DOT. 24 suggested jobs were strictly from the . . . DOT. 25 therefore completed his requirement to confirm the consistency of the 26 jobs suggested by the VE with the DOT. 27 \\ 28 \\ (AR 1166). 18 Social The ALJ The VE responded that the (Id.). The ALJ had 1 Even if a deviation from the DOT had occurred, the ALJ may rely on 2 expert testimony that contradicts the DOT if the records contains 3 persuasive evidence to support the deviation. 4 60 5 rebuttable and are not sole source of admissible information concerning 6 jobs) and Tommasetti v. Astrue, 533 F.3d 1035, 1042 (9th Cir. 2008)( an 7 ALJ may rely on expert testimony which contradicts the DOT, but only 8 insofar as the record contains persuasive evidence to support the 9 deviation ) (internal quotation marks omitted). F.3d 1428, 1435-36 (9th Cir. 1995) See Johnson v. Shalala, (DOT classifications are The VE testified that 10 the jobs of cleaner housekeeper, small parts assembly worker and counter 11 clerk were described by the DOT as unskilled, light work jobs. 12 1165-66). 13 for two hours per day because of pain, mental symptoms, [and] side 14 effects of medicines none of the suggested jobs would be applicable, 15 there is no evidence to support the limitations of this proposed 16 hypothetical. 17 treatment notes that Plaintiff had retained the ability to stay[] 18 focused provided she took her medication. (AR 1090, 1093, 1096, 1098). 19 Plaintiff argues that she is incapable of performing the suggested jobs 20 because they require forceful, gripping, grasping, or twisting with the 21 hands which the ALJ s RFC of Plaintiff precludes. 22 at 5). 23 occupational category of light, unskilled work, which is consistent 24 with the ALJ s RFC assessment. 25 the expert testimony of Drs. Goldman, Landau and Malancharuvil, who all 26 determined 27 restrictions in her RFC assessment. (AR 866-68)(citing AR 1046-53, 28 1135-39, 1140-43, 1145-48, Here, based on the record, there (AR While the VE did note that if Plaintiff would be off task (AR 1166). Dr. Sekhon repeatedly noted in Plaintiff s (Plaintiff s Motion However, the jobs suggested by the VE are part of the that Plaintiff s (AR 865-69). impairments 1162-64). 19 The ALJ chose to rely on do not justify greater 1 was persuasive evidence to support any deviation from the DOT. 2 No remand is required. 3 4 B. 5 The ALJ Provided Specific And Legitimate Reasons To Reject The Opinion Of Plaintiff s Treating Physician 6 7 Plaintiff complains that the ALJ improperly rejected the opinion 8 of Plaintiff s treating psychologist, Dr. Gurmit Sekhon. 9 Memo. at 6-9). (Complaint Plaintiff further complains that the ALJ failed to set 10 forth adequate reasons for giving insignificant weight to Dr. Sekhon s 11 opinion. (Id. at 9). This Court disagrees. 12 13 Although the treating physicians opinion is entitled to great 14 deference, it is not necessarily conclusive as to either the physical 15 condition or the ultimate issue of disability. 16 Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999). 17 conflicting medical evidence, the Secretary must determine credibility 18 and resolve the conflict. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th 19 Cir. 1992) (citing Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984)). 20 When a treating doctor s opinion is contradicted by another doctor, the 21 Commissioner may not reject his opinion without providing specific and 22 legitimate reasons supported by substantial evidence. 23 Chater, 81 F.3d 821, 830 (9th Cir. 1995). Morgan v. Comm r of When there is Lester v. 24 25 The opinion of a nonexamining medical advisor cannot by itself 26 constitute substantial evidence that justifies the rejection of the 27 opinion of an examining or treating physician. 28 602. Morgan, 169 F.3d at However, a court can reject such an opinion based in part on the 20 1 testimony of a nontreating, 2 (emphasis in original); see also Magallanes v. Bowen, 881 F.2d 747, 751- 3 755 (9th Cir. 1989) (affirming an ALJ s decision awarding less weight 4 to a treating physician based on the testimony of a nonexamining 5 physician that was consistent with evidence in the record). 6 addition, the ALJ need not accept the opinion of any physician, 7 including a treating physician, if that opinion is brief, conclusory, 8 and inadequately supported by clinical findings. 9 at 1019; Batson v. Comm r of Soc. Sec., 359 F.3d 1190, 1195 (9th Cir. 10 2004). Furthermore, an ALJ can reject a treating physician s assessment 11 of limitations when the physician s clinical notes and other recorded 12 observations 13 assessment. regarding nonexamining Plaintiff s medical advisor. Id. In See Matney, 981 F.2d capabilities contradict the Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2005). 14 On January 8, 2010, Dr. Sekhon completed a medical opinion of 15 16 Plaintiff, stating 17 standards 18 interruptions from psychologically based symptoms and performing at a 19 consistent pace without an unreasonable number and length of rest 20 periods. 21 limited but satisfactory ability to maintain regular attendance and be 22 punctual within customary, usually strict tolerances, get along with co- 23 workers 24 behavioral extremes and maintain socially appropriate behavior. (Id.). 25 Plaintiff also was seriously limited but not precluded from interacting 26 appropriately with the general public. 27 \\ 28 \\ in that completing (AR 1031-32). or Plaintiff peers a was normal unable workday to and meet competitive workweek without Dr. Sekhon also noted that Plaintiff had a without unduly 21 distracting them (AR 1032). or exhibiting 1 Dr. Sekhon s 2010 medical opinion displays an improvement in 2 Plaintiff s limitations from the medical opinion he completed on August 3 27, 2007. (AR 856-57). In 2007, Dr. Sekhon stated Plaintiff was unable 4 to meet competitive standards for maintaining regular attendance, 5 sustaining 6 proximity to others and maintaining socially appropriate behavior. 7 (Id.). 8 in performing at a consistent pace without an unreasonable number and 9 length of rest periods. an ordinary routine, working in coordination with or He also noted that Plaintiff had no useful ability to function (AR 856). The ALJ chose not to give 10 significant weight to Dr. Sekhon s opinion as most of it is based on the 11 subjective complaints of the claimant and is not supported by objective 12 findings. 13 only limited weight to Dr. Sekhon s medical opinion where it differed 14 from Dr. Malancharuvil and Dr. Goldman s opinions regarding Plaintiff s 15 mental functional capacities. (AR 869). Accordingly, the ALJ explained that he accorded (AR 866-69). 16 17 As noted above, the ALJ found that the medical statement findings 18 were not consistent with the treatment notes and Plaintiff s testimony 19 and activities. 20 Sekhon indicated that the claimant could not maintain attention for two 21 hour segments, but his type written notes reflect that during office 22 visits, the claimant has been alert and stays focused. 23 Plaintiff claims that Dr. Sekhon s opinion has remained consistently 24 the same and unchanged since the Work Capacity Evaluation (Mental) 25 evaluation form he completed on December 26, 2003 (Complaint Memo. at 26 7), Dr. Sekhon s 2007 and 2010 evaluations indicate an improvement in 27 Plaintiff s abilities in work situations. 28 Furthermore, after January 4, 2010, the remainder of [Dr. Sekhon s] (AR 869). Specifically, the ALJ explained that Dr. 22 (Id.). While (AR 856-57, 1031-32). 1 treatment notes continue in the same vein, with [Plaintiff s] condition 2 overall stable with medication. 3 Sekhon s own statements are a legitimate reason to give less weight to 4 his opinions. (AR 867). The contradictions in Dr. 5 6 When Dr. Sekhon claimed that Plaintiff could not meet competitive 7 standards, his explanations were that Plaintiff does not always react 8 well to others when she is under stress; she does not do well performing 9 routine tasks; she does not complete simple tasks such as cooking; she 10 has racing thoughts and is easily distracted; she will blow if someone 11 irritates her; and she forgets items, such as when cooking, she will 12 place a skillet in the refrigerator. 13 However, 14 medication, Plaintiff is alert, cooperative, directable, less anxious, 15 and less distanced. his treatment notes (AR 869)(citing AR 1032). indicated that when treated with (AR 1087). 16 17 The record further supports the ALJ s finding that Dr. Sekhon s 18 medical statement is inconsistent with the medical evidence. 19 statement is also contradicted by both Dr. Malancharuvil and Dr. 20 Goldman s opinions. 21 examined Plaintiff and testified that she had a personality disorder 22 with anti-social features, a mood disorder, and continuing marijuana 23 use, which do not meet or equal Parts B or C of Listings 12.04, 12.08, 24 or 12.09. 25 confirmed 26 malingering. 27 diagnosed Plaintiff with malingering, amphetamine dependence in full 28 remission, and an underlying personality disorder with antisocial and (AR 866-67). For example, Dr. Malancharuvil (AR 866)(citing AR 1161-2). that Dr. Goldman s only Dr. Malancharuvil also diagnosis (Id.)(citing AR 1161, 1050). 23 The [of Plaintiff] was Dr. Goldman initially 1 histrionic features. 2 Goldman 3 limitations could not be accurately assessed due to her malingering. 4 (Id.)(citing AR 1050, 1053). 5 Plaintiff said during the exam that she showers, bathes, dresses, and 6 grooms 7 assistance, and prays, cleans house, and visits her best friend 8 indicating a lack of significant disability. (Id.)(citing 1047). Thus, 9 it was legitimate for the ALJ to give less weight to Dr. Sekhon s 10 opinions to the extent his opinions were inconsistent with substantial 11 evidence in the record.3 concluded herself, (AR 868)(citing AR 1049-1050). the takes diagnosis care by noting that However, Dr. [Plaintiff s] In addition, Dr. Goldman noted that of her personal finances without 12 13 While the ALJ did not go through each of the progress notes and 14 explain how the notes contradicted the doctor s form evaluation, the ALJ 15 specifically mentioned the progress notes and considered Plaintiff s 16 history of treatment with Dr. Sekhon, noting the content in the progress 17 18 19 20 21 22 23 24 25 26 27 28 3 Plaintiff also offered inconsistent statements concerning her history with drugs and alcohol, which renders her self-reporting of symptoms to Dr. Sekhon unreliable. During the January 2010 hearing, Plaintiff stated that in 2006, she had been using marijuana, weed, for [her] depression. (AR 1143-44). In response, Dr. Malancharuvil recommended that Plaintiff proffer actual objective data saying, okay, here is the date [and] I ve been sober since whenever, as Plaintiff s credibility would benefit from evidence of sobriety. (AR 1145). During the June 2010 hearing, Plaintiff claimed I never was [sic] on speed in my whole life, to which the ALJ responded, I m glad to hear that except that you have . . . you told the doctor you were using it at one time, and you have quit. (AR 1155). Plaintiff then said, I ve been clean for 14 years on cocaine. That was the drug substance at the time, and affirmed never in [her] whole life has she used speed. (Id.). However, Plaintiff did comment that she does smoke [marijuana] as far as my depression from time to time and she smokes twice a week. (Id.). She then responded to the ALJ s question of [h]ow much are you smoking? with [o]ne joint a day. (Id.). 24 1 notes does not support the several severe mental limitations that Dr. 2 Sekhon found in the medical statement. 3 1101). 4 Sekhon s assessment due to his his longstanding treating relationship 5 [with Plaintiff] and clinical observations [of Plaintiff] overtime 6 [sic] (Complaint Memo. at 8), Dr. Sekhon s January through May 2010 7 notes 8 symptoms, provided she takes the appropriate medications. (AR 1087-98). (AR 203-220, 984-1021, 1087- While Plaintiff argues that the progress notes reflect Dr. indicate a consistent trend of improvement of Plaintiff s 9 10 Accordingly, the Court concludes that the ALJ provided ample 11 specific and legitimate reasons for rejecting the treating doctor s 12 opinion. Accordingly, remand is not required. 13 14 VIII. 15 CONCLUSION 16 17 Consistent with the foregoing, IT IS ORDERED that Judgment be 18 entered AFFIRMING the decision of the Commissioner and dismissing this 19 action with prejudice. 20 Court serve copies of this Order and the Judgment on counsel for both 21 parties. IT IS FURTHER ORDERED that the Clerk of the 22 23 24 25 DATED: August 24, 2011. ________/S/___________________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 26 THIS MEMORANDUM IS NOT INTENDED FOR PUBLICATION NOR IS INTENDED TO BE 27 INCLUDED IN OR SUBMITTED TO ANY ONLINE SERVICE SUCH AS WESTLAW OR LEXIS. 28 25

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