Nicholas Olivas v. Michael J. Astrue, No. 5:2010cv01637 - Document 21 (C.D. Cal. 2011)

Court Description: AMENDED MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal, IT IS ORDERED that an amended 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 12 13 14 15 16 NICHOLAS OLIVAS, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of the Social ) Security Administration, ) ) Defendant. ) _______________________________) NO. EDCV 10-1637 SS AMENDED MEMORANDUM DECISION AND ORDER 17 18 I. 19 INTRODUCTION 20 21 Nicholas Olivas ( Plaintiff ) brings this action seeking to reverse 22 the decision of the Commissioner of the Social Security Administration 23 (hereinafter 24 Supplemental Security Income ( SSI ). 25 jurisdiction of the undersigned United States Magistrate Judge, pursuant 26 to 28 U.S.C. § 636(c). 27 the Commissioner is AFFIRMED. 28 Decision and Order to correct minor, non-substantive errors in the the Commissioner ) denying his application for The parties consented to the For the reasons stated below, the decision of The Court issues this Amended Memorandum original Memorandum Decision and Order issued on October 7, 2011. 1 However, the 2 ultimate findings are not altered Memorandum. 3 this Amended II. 4 in PROCEDURAL HISTORY 5 Plaintiff applied for Title XVI SSI benefits on November 6, 2007,1 6 7 alleging a disability onset of January 1, 2001. 8 ( AR ) 9; see AR 86-88). 9 head trauma that (Administrative Record Plaintiff claimed he is disabled due to past caused difficulties in understanding, balance, 10 equilibrium, memory, dizziness, dry mouth, lack of coordination and 11 frequent headaches. 12 and faints if he exerts himself for twenty minutes, that he experiences 13 slurred 14 medications. 15 schizophrenic and bipolar, that he suffers from hallucinations, hears 16 voices, experiences extreme paranoia, and is depressed. speech (AR 96). and (Id.). is Plaintiff also noted that he feels weak unable to function normally due to his Plaintiff alleges that he was diagnosed as (Id.). 17 18 The Agency initially denied Plaintiff s SSI claim on May 5, 2008. 19 (AR 49-54). Plaintiff requested reconsideration on May 20, 2008. 20 57). 21 63). 22 Administrative Law Judge on January 29, 2009. The Agency denied his claim again on December 24, 2008. Thereafter, Plaintiff filed a Request For (AR (AR 59- Hearing By (AR 64). 23 24 25 The Agency scheduled a hearing for June 30, 2009. Plaintiff testified at the hearing before Administrative Law Judge ( ALJ ) Jay E. 26 27 28 1 Plaintiff also concurrently filed for Title II Social Security Disability Insurance benefits, but later withdrew his Title II application at the June 30, 2009 hearing. (AR 21-22). 2 1 Levine, in San Bernardino, California. (AR 19-44). Sandra Fioretti, 2 a vocational expert also testified at the hearing. 3 Valsquez, Plaintiff s sister also appeared, but did not testify at the 4 hearing. (Id.). The ALJ denied Plaintiff s claim on November 18, 2009. 5 (AR 6-14). 6 unfavorable decision before the Appeals Council. 7 15, 2010, the Agency denied Plaintiff s request for review, making the 8 ALJ s decision the final decision of the Commissioner. 9 Plaintiff commenced this action on October 26, 2010. (Id.). Denise On January 14, 2010, Plaintiff sought review of the ALJ s (AR 5). On September (AR 1-3). 10 11 III. 12 FACTUAL BACKGROUND 13 14 Plaintiff was born on June 11, 1964 and was forty-five years old 15 at the time of the hearing. (AR 22-23, 86). Plaintiff received his GED 16 in 1992. 17 mover, (AR 97, 129, 204), as a porter while in prison, (AR 130, 204), 18 and as a self-employed handyman. 19 disability stemming from schizophrenia, bipolar disorder, and trauma 20 from a head injury in 2002. (AR 101). Plaintiff has past work experience as a furniture (AR 131, 204). Plaintiff claims (AR 96). 21 22 A. Plaintiff s Records 23 24 Plaintiff noted that he has spent most of [his] life in prison. 25 (AR 135). Plaintiff testified at the June 30, 2009 hearing that he was 26 incarcerated from 1989 to 1992 for possession and sale of cocaine, and 27 was incarcerated again in 2002 for sixteen months for receiving stolen 28 property. (AR 26). In 2002, Plaintiff was found guilty of purchasing 3 1 and receiving a stolen 1991 Honda, and attaching a stolen license plate 2 to the car. 3 conviction, Plaintiff was released on parole. (See AR 26). 4 testified that after his 2003 release, he violated his parole like 5 four . . . or five times by absconding, and was incarcerated for 6 approximately six months or less after each violation. (AR 227). After serving the sentence for his 2002 Plaintiff (AR 27). 7 8 A substantial portion of the record is comprised of Case Management 9 Notes from the California Department of Corrections ( CDC ) regarding 10 Plaintiff s behavior and progress while out on parole. (See AR 219-250, 11 277-299). 12 detail, inter alia, Plaintiff s commitment offense and criminal history 13 reports. 14 2006, June 26, 2007, and July 23, 2007, Plaintiff violated parole by 15 absconding, and not reporting to his agent. 16 These evaluations also note Plaintiff violated his parole by having 17 access to ammo and a knife. 18 claim Plaintiff s past criminal history: The CDC Case Management Notes include evaluations that (AR 227). Evaluations reflect that on May 19, 2004, June 6, (Id.). (AR 227, 233, 245, 296). Specifically, all evaluations 19 20 [I]s violent and includes the use of narcotics. [Plaintiff] 21 was arrested July of 99 for Spousal Battery. 22 fact has been arrested numerous times on Spousal Battery. 23 [Plaintiff] stated that he committed [ten] [b]atteries on 24 just one of his girlfriends. 25 either charged or arrested for Possession of a Controlled 26 Substance, Fighting, Resisting Arrest, Forgery. 27 28 4 [Plaintiff] in [Plaintiff] has also been 1 (Id.). In addition to Plaintiff s parole violations for absconding, 2 Plaintiff has also violated parole on two separate occasions by abusing 3 methamphetamine on June 26, 2006, and August 14, 2006. (AR 252). 4 5 In total, Plaintiff has served four prison terms, spent a total 6 of eleven years incarcerated, and was last paroled in June 2008. 7 386). 8 2008. (AR Plaintiff was eventually discharged from parole in September (AR 306). 9 10 B. Substance Abuse History 11 12 During Plaintiff s June 30, 2009 hearing, Plaintiff testified that 13 he had used methamphetamine, marijuana, and cocaine in the past, but had 14 not used any drugs for about two years prior to the hearing. 15 Plaintiff testified that he participated in a program for six or seven 16 months to straighten out. (AR 25). (AR 25-26). 17 18 The CDC Case Management Notes provide further detail regarding 19 Plaintiff s substance abuse history. The May 19, 2004 evaluation states 20 that Plaintiff reported both marijuana and methamphetamine would relax 21 him especially when he was upset and he used them both mellow out, and 22 that Plaintiff said back in 1992 he was really into methamphetamine 23 . . . that he was cooking methamphetamine in a house in Covina when it 24 blew up. The explosion of course brought the police. (AR 229). 25 26 The June 6, 2006 evaluation states that at the time of the report, 27 Plaintiff claimed that he used methamphetamine and marijuana regularly 28 to mellow out. (AR 235). The July 23, 2007 evaluation reports that 5 1 Plaintiff stated he has tried every drug out there beginning as a [sic] 2 early teen and into adulthood. [Plaintiff] told me he was reluctant to 3 talk about this because is [sic] he thinks it might hinder his social 4 security claim. (AR 297). The evaluation further states, [Plaintiff] 5 has used cocaine, meth, and marijuana . . . [and] used it when ever 6 [sic] it was around, which sounded like allot [sic]. 7 adamant that he is not an addict. Clinically [Plaintiff] was minimizing 8 his pattern of use and was reluctant to disclose too much. 9 98). [Plaintiff] was (AR 297- 10 11 Plaintiff s methamphetamine abuse resulted in parole violations on 12 June 26, 2006 and August 14, 2006, as reported by Plaintiff s parole 13 agent, 14 Questionnaire. 15 Johnson further reported that as of the date of the questionnaire, 16 Plaintiff received monthly scheduled and random drug tests as part of 17 his parole. 18 tested positive since his last release on May 24, 2007. C. Reed-Johnson, in (AR 252-53). his February 4, 2008 Parole Agent In that same questionnaire, Mr. Reed- Mr. Reed-Johnson also reported that Plaintiff has not (AR 252). 19 20 C. Plaintiff s Medical History 21 22 1. Treating Physicians 23 24 On the June 18, 2009 Claimant s Recent Medical Treatment form, 25 Plaintiff identified his current treating physicians as High Desert 26 Walk-In Crisis 27 Regional Medical Center ( Arrowhead ) staff. 28 stated that he has been a patient of Arrowhead since September 2008 and Center s ( HDCWIC ) 6 Dr. Bagwal, and the Arrowhead (AR 201). Plaintiff 1 HDCWIC since January 2009. Plaintiff reported that treating doctors 2 informed him that he has major problems with balance, . . . suffer[s] 3 from depression, bi polar [sic], schizophrenia, rage[] hallucinations, 4 hear[s] voices, [commits] self-mutilation, observes that he breaks out 5 in sweats, notes that he sustained a head injury, can t see well, 6 . . . ha[s] been suicidal, and that he is confused and unstable. 7 (Id.). In addition, Plaintiff met regularly with CDC doctors during his 8 parole for medication monitoring. (AR 219-50, 270-99). 9 10 On the June 18, 2009 Claimant s Medications form, Plaintiff 11 reported that he was presently taking Seroquil 400mg twice daily and 12 Depacote 500mg three times daily as an anti-psychotic medication, a mood 13 stabilizer, and as treatment for his bipolar disorder. 14 Plaintiff also noted that was taking Celexa 20mg twice daily and 15 Propranolol 20mg three times daily for depression and hypertension, 16 respectively; 17 medication interaction of his other prescriptions; and Effexor 75mg 18 twice daily for depression. (Id.). Plaintiff reported that he had been 19 taking Seroquil and Depacote since 2002, Celexa and Effexor since 20 November 2008, Benadryl since February 2009, and Propranolol since March 21 2009. 22 a side effect of the Propranolol. (Id.). Benadryl 50mg three times daily to help (AR 203). with the Plaintiff stated that he suffered from hallucinations as (Id.). 23 24 a. Arrowhead Regional Medical Center 25 26 The records provided by Arrowhead primarily consist of pre-printed 27 handouts that contain information identifying Plaintff s prescribed 28 drugs. The handouts explain the drug s common uses, what Plaintiff 7 1 should do before taking the medication, how Plaintiff should take the 2 medication, what Plaintiff should do in the event of an overdose, and 3 other 4 informational handouts reflect that Arrowhead prescribed to Plaintiff 5 Seroquel, 6 Effexor, Temazepam (used to treat sleep disorders), Citalopram (used to 7 treat depression), Divalproex (used to treat seizures) and Famotidine 8 (a histamine blocker used to treat ulcers). information. Depakote, (AR 208-09, Diphenhydram 312-27, (an 338, 343-47). antihistamine), These Propranolol, (Id.). 9 10 In addition to these prescription informational handouts, the 11 Arrowhead records contain three Notices of Certification, dated December 12 29, 2007, February 13, 2009 and February 20, 2009, respectively. 13 210, 340, 341). 14 receive intensive treatment for no more than [fourteen] days in 15 Arrowhead s Behavioral Health intensive treatment facility for being a 16 danger to himself and being gravely disabled. 17 notices in the record, only the February 20, 2009 notice is legible. 18 It states that the staff at Arrowhead certified Plaintiff for commitment 19 because he was very depressed . . . [brother with] life sentence mom 20 dying of [cancer], has suicidal thought [sic], unable to work . . . no 21 plan to self care. 22 committal was for medication stabilization and or possible placement. 23 (Id.). (AR These notices certified Plaintiff as eligible to (AR 340). (Id.). Of the three The proposed treatment plan for the 24 25 The Arrowhead records also contain an Involuntary Patient 26 Advisement ( Advisement ), dated February 18, 2009, that informed 27 Plaintiff that he would be held for a period of up to [seventy-two] 28 hours beginning February 17, 2009 at 9:30PM and ending at February 20, 8 1 2009 at 9:30PM. (AR 342). The Advisement indicated the seventy-hour 2 committal was necessary because it was the opinion of the professional 3 staff at Arrowhead that Plaintiff was likely to harm himself because he 4 was hearing voices telling [him] to harm [himself] with plan [sic] to 5 run into traffic and because there was a history of previous suicide 6 attempts. (Id.). 7 8 b. High Desert Crisis Walk-In Center 9 10 HDCWIC records contain a Psychiatrist Intake Assessment Form, dated 11 January 14, 2009; four Crisis Stabilization Follow Up of Care Forms, 12 dated January 25, 2009, February 6, 2009, February 9, 2009 and April 23, 13 2009, respectively; a Psychiatric Evaluation Follow Up of Care Form, 14 dated May 26, 2009; and a MD Progress Note from Dr. Adam Opbroek, dated 15 February 6, 2009. 16 Refill: Psychiatrist s Assessment, dated October 24, 2007. (AR 358-364). The record also contains a Medication (AR 391). 17 18 In the January 14, 2009 Intake Form, Dr. Opbroek noted Plaintiff 19 complained of auditory hallucinations, paranoia, anger and that he 20 demanded Ativan. 21 [suicidal ideations/homicidal ideations] and is clearly capable of 22 creating much risk for himself or others. 23 described Plaintiff as an antisocial character with a potential for 24 explosive assaultive behavior, who was last on meds several months 25 ago. 26 suspected he was still abusing. 27 Plaintiff s 28 normal, his motor skills were restless, his thought content was (Id.). (AR 364). Dr. Opbroek stated, [Plaintiff] [d]enies (Id.). Dr. Opbroek Although Plaintiff denied drug abuse, Dr. Opbroek sensorium, (Id.). orientation, 9 eye Dr. Opbroek also noted contact and speech were 1 paranoid, his thought process was circumstantial, and his insight, 2 judgment, and impulse control was decreased. 3 prescribed Plaintiff Zyprexa on a trial basis to clarify [treatment] 4 need and [diagnosis] while diminishing risk. (Id.). Dr. Opbroek (Id.). 5 6 In the January 25, 2009 Crisis Stabilization form, Dr. Opbroek 7 reported that Plaintiff came in complaining that the Zyprexa was not 8 working, and complained about anger, impulse control, aggression. (AR 9 363). Dr. Opbroek observed that Plaintiff s sensorium, orientation, eye 10 contact, speech, mood, and thought content were normal, his motor was 11 restless, his mood was angry, his affect was reactive, his thought 12 process 13 impaired. (Id.). Dr. Opbroek also noted that Plaintiff did have some 14 suicidal ideations, but with no plan or intent to execute them. was circumstantial, and his insight and judgment were (Id.). 15 16 The February 6, 2009 and February 9, 2009 Crisis Stabilization 17 notes show that Plaintiff was not on any medication at the time of the 18 appointment. 19 suicidal or homicidal ideations and was normal in the areas of his 20 senses, orientation, eye contact, motor, speech, thought process, 21 insight and judgment, Plaintiff was labile, hypomanic, and suffered 22 from hallucinations, delusions, paranoia and depression. (AR 360-61). Although the notes reflect Plaintiff had no (Id.). 23 24 In the February 6, 2009 MD Progress Note, Dr. Opbroek reported 25 Plaintiff was brought to HDCWIC after he called 911 threatening to 26 commit suicide, and after the sheriff determined there was no acute need 27 for a 5150 committal. 28 claims none of his meds are working, resists filling out paperwork or (AR 362). 10 Dr. Opbroek stated, [Plaintiff] 1 interactions with staff, and states he wants to go voluntarily to the 2 hospital. This presentation [is] identical to prior [HDCWIC] visits and 3 he has also been seeking Benzo [prescription] without success. 4 Dr. Opbroek noted that Plaintiff sat calmly in the clinic, exhibited no 5 mania, mood instability, recurring active signs of depression, or 6 psychotic thought processes. 7 killing himself only [were] verbalized when he [was] advised [his] 8 clinical condition does not warrant 5150, and that he exhibits no 9 indication for acute hospitalization. 10 concluded Plaintiff s 11 malingering. (Id.). His anger, irritability, and threat of presentation (Id.). [was] Dr. Opbroek ultimately clearly consistent with (Id.). 12 13 The April 23, 2009 Crisis Stabilization reflects that Plaintiff was 14 back on his medication, and that he felt somewhat stable as a result. 15 (AR 359). 16 hallucinations, delusions and paranoia. 17 2009 Psychiatric Evaluation notes indicate Plaintiff reported that he 18 was doing well after going back on his medication. Plaintiff was still hypomanic, labile, and suffering from (Id.). Further, the May 26, (AR 358). 19 20 HDCWIC records also indicate Plaintiff received prescriptions for 21 Propranolol, (AR 368), Diphenhydramine (used to treat symptoms of the 22 common 23 Citalopram (both used to treat depression), (AR 372-73), Seroquel, (AR 24 377) and Divalproex Sodium (used to treat seizures, bipolar disorder, 25 and migraine headaches). cold and allergic conditions), (AR 378). 26 27 28 11 (AR 371), Venlafaxine and 1 c. CDC Case Management Notes 2 3 The CDC Case Management Notes include sections on Plaintiff s 4 Medical History, Mental 5 Relevant 6 medication 7 treating physician. Psychosocial monitoring Status Examination, Information, Treatment appointments between Psychiatric Plans, Plaintiff and and History, notes on the CDC (AR 219-250, 270-99). 8 9 According to notes prepared on May 20, 2004 from Plaintiff s 10 medication monitoring appointment with Dr. Ronald Marcus, Plaintiff was 11 initially referred for a medication evaluation because he was on 12 psychotropic 13 appointment, Plaintiff stated he has always had a problem with mood 14 swings, frequent depression, controlling his anger and has made several 15 suicide gestures [usually when he broke up with a girlfriend] in the 16 past. 17 reported Plaintiff was never treated for these symptoms until he was 18 incarcerated in 2002. 19 he was initially treated with Depakote and Seroquel, and he felt the 20 Seroquel was more helpful in controlling his auditory hallucinations 21 . . . but this was discontinued and switched to Geodon when he moved to 22 [the California Institution for Men in Chino, California]. drugs while incarcerated. (AR (Id.) (internal quotations omitted). (Id.). 221). During the Dr. Marcus further At this appointment, Plaintiff stated (Id.). 23 24 According to the CDC s Medical History Evaluations on May 19, 2004 25 and June 6, 2006, Plaintiff reported he suffered a head injury in 2002, 26 and claimed, he was in the garage fighting with his girlfriend s ex- 27 husband when they [sic] girlfriend s ex-husband s son hit him over the 28 head with a wrench. He stated he was knocked unconscious, that a 12 1 helicopter took him to the hospital, there was a major lost [sic] of 2 blood but that he survive [sic]. 3 Status Examinations on May 19, 2004, June 6, 2006, and June 26, 2007 4 concluded that Plaintiff was well-oriented and alert, was cognitively 5 intact, and that he primarily exhibit[ed] symptoms of mood disorder. 6 (AR 228, 234, 295). (AR 227-28, 234). The CDC s Mental 7 8 During Plaintiff s July 23, 2007 Mental Status Evaluation, the 9 examining physician noted Plaintiff s eye contact continuously strayed 10 away, and that Plaintiff was reluctant to offer certain information 11 [because] [h]e felt it would hinder a pending social security claim. 12 (AR 296). 13 appear[ed] intact, and that Plaintiff denied suffering from auditory 14 hallucinations and suicidal and homicidal ideations at that time. 15 (Id.). 16 and 17 [Plaintiff] exhibits a sense of entitlement to live off his parents and 18 to receive SSI/SSD benefits. 19 and no remorse for his past was expressed. However, the physician noted, Plaintiff s [c]ognition Plaintiff reported a long term history of polysubstance abuse possible dependence. (Id.). The physician also noted, He sees himself as a man better than most (AR 296-97). 20 2. 21 Examining Consultative Doctors 22 23 a. Dr. Kevin D. Gregg, M.D. 24 25 On March 19, 2008, Dr. Kevin D. Gregg, M.D. examined Plaintiff and 26 prepared his findings in a Psychiatric Review Technique and Mental 27 Residual Functional Capacity (RFC) Assessment. 28 Dr. Gregg found Plaintiff suffered 13 from (AR 254-64, 265-67). affective and substance 1 addiction disorders. (AR 254). Specifically, Dr. Gregg diagnosed 2 Plaintiff with bipolar disorder and multiple substance addiction. 3 256-57, 260). 4 the presence of any organic mental disorders, schizophrenic, paranoia, 5 other 6 disorders, somatoform disorders, personality disorders, or autistic 7 disorders. (AR Dr. Gregg found insufficient evidence to substantiate psychotic disorders, mental retardation, anxiety-related (AR 254-61). 8 9 With respect to Plaintiff s B Criteria functional limitations, 10 Dr. Gregg found Plaintiff has mild limitations in activities of daily 11 living, mild difficulties in maintaining concentration, persistence, or 12 pace, moderate difficulties in maintaining social functioning, and no 13 repeated episodes of decompensation. 14 concluded that Plaintiff s impairments also did not meet any C 15 criteria. (AR 262). Dr. Gregg also (AR 263). 16 17 Dr. Gregg also opined on Plaintiff s Mental RFC. (See AR 265-267). 18 Dr. Gregg found moderate limitations in 19 understand and remember detailed instructions, carry out detailed 20 instructions, maintain attention and concentration for extended periods, 21 interact appropriately with the general public, accept instructions and 22 respond appropriately to criticism from supervisors. 23 Gregg also found Plaintiff has no significant limitations in the fifteen 24 other areas of mental functioning. 25 concluded Plaintiff is reasonably able to learn, remember and sustain 26 [s]imple, [r]outine [t]asks in a non-public setting over the course of 27 a normal, 40-[hour] work week. (Id.). (AR 267). 28 14 Plaintiff s ability (AR 265-66). to Dr. Ultimately, Dr. Gregg 1 b. S&L Medical Group 2 3 On April 15, 2008 and August 17, 2009, the S&L Medical Group 4 conducted a Neurologic Evaluation and Psychological Evaluation on 5 Plaintiff. (AR 270-73, 384-89). 6 Neurologic Evaluation, 7 Psychological Evaluation. and Dr. Dr. John S. Woodard conducted the Charlene K. Krieg conducted the (Id.). 8 9 In the April 15, 2008 Neurologic Evaluation, Dr. Woodard noted 10 Plaintiff was on time 11 communicated 12 neurologic examination, Plaintiff recounted how he injured his head in 13 2002. 14 regained awareness while he was being transported to the hospital by 15 helicopter. 16 expressions, 17 tension and emotional overreactivity, and found that Plaintiff s 18 intellectual function is grossly intact. 19 found no abnormalities with respect to Plaintiff s motor function, 20 reflex function, sensory function, and cranial nerves. 21 Ultimately, Dr. Woodard concluded that although Plaintiff had an injury 22 to his head, the examination [did] not reveal any objective neurologic 23 deficits. 24 not appear to be any limitation in [Plaintiff s] physical activities 25 on the basis of his current neurologic status. reasonably (Id.). for his was (AR well. appointment, During 270). cooperative, Dr. and Woodard s He stated that after he was rendered unconscious, he (Id.). Dr. verbalizations (AR 272). Woodard and noted postures Plaintiff s suggest (AR 271). slight [f]acial emotional Dr. Woodard also (AR 271-72). Furthermore, Dr. Woodward found that there did (Id.). 26 27 In the August 17, 2009 Psychological Evaluation, Dr. Krieg reported 28 that Plaintiff supplied the historical information, and was a fair 15 1 historian. (AR 384). Dr. Krieg noted that [h]is attitude was one of 2 disinterest in the tasks at hand, and that his eye contact and 3 interaction with the examiner [was] fair to poor. 4 cooperative and did not appear to be putting forth his best effort on 5 most of the test items. 6 [Plaintiff] was 7 directions. His psychomotor functions appeared to be within normal 8 limits. 9 Plaintiff recounted the story of his 2002 head injury, and stated he was 10 unconscious for an unknown period of time, and woke up in the hospital. 11 (AR 385). able (AR 384-85). to Dr. Krieg also observed that understand He exhibited fidgeting. He was minimally test (AR 386-87). questions and follow During this evaluation Plaintiff denied having any memory of the event. (Id.). 12 13 During Dr. Krieg s examination, Plaintiff reported that he had been 14 diagnosed with bipolar disorder, mood disorder, depression, 15 insomnia. (AR 385). 16 or homicidal ideations. 17 alcohol or using drugs, and denied a history of substance abuse or 12- 18 step meeting attendance. Further, he denied any history of hallucinations (Id.). Plaintiff also denied ever drinking (Id.). Dr. Krieg opined: 19 20 [Plaintiff s] current level of intellectual functioning is in 21 the 22 attention/concentration 23 scanning hand sequencing abilities is in the marked to severe 24 deficit range. 25 tasks that require the manipulation of complex information is 26 in the low-average to average range. mild and mental retarded range. tasks that His measure performance on simple visual His performance on attention/concentration 27 28 16 1 (AR 389). However, Dr. Krieg followed this analysis with the caveat 2 that [if Plaintiff] was not putting forth his best effort, it is 3 conceivable that his performance could be higher. (Id.). 4 5 Dr. Krieg ultimately concluded Plaintiff did not evidence any 6 disorder on mental status. 7 speech was understandable, and his TOMM scores were in the very 8 probably range for malingering which raises the question of a conscious 9 or unconscious effort to feign impairment, i.e., fake bad. 10 89). (AR 388). Dr. Krieg found Plaintiff s (AR 388- She further noted that if: 11 12 [H]is test performance is not a valid indicator of his 13 current 14 understanding 15 directions, and completing simple tasks. 16 sustain performance on detailed and complex tasks. 17 be able to accept instructions from supervisors and interact 18 with coworkers and the public. 19 a regular attendance in the workplace. 20 special or additional supervision on work activities. level of functioning, clear he would instructions, be capable following of simple He would be able to He would He would be able to maintain He would not need 21 22 (AR 389). Dr. Krieg further concluded: 23 24 [If] his test performance is not a valid indicator of his 25 current level of functioning, there is no impairment that 26 would interfere with his ability to complete a normal workday 27 or workweek. 28 that may be encountered in competitive work and adjust to He would be able to deal with the ususal stress 17 1 changes. He would not create a hazard in the workplace. He 2 would be capable of performing simple, repetitive work tasks. 3 4 (Id.). 5 6 D. Plaintiff s Work History 7 8 On June 18, 2009 Plaintiff reported on the Claimant s Work 9 Background form that he worked as a furniture mover for Valley Transfer 10 in the San Gabriel Valley from 1987 to 1989, a porter for the Susanville 11 Folson State Prison from 1989 to 1992 and was self-employed as a 12 handyman from 1993 to 2002. (AR 204). 13 14 E. Plaintiff s Testimony 15 16 On June 30, 2009, Plaintiff appeared at a hearing before the ALJ. 17 (AR 19). Plaintiff testified that he suffered a head injury in 2002 18 when he was hit seven times with an 18-inch, inch-and-3/4-wrench. (AR 19 28). 20 attack and somebody had pulled over, they jumped out of the car, they 21 beat [him] they left [him] in the driveway for dead . . . [and that he] 22 woke up three or four days later and had [twenty-two] staples in [his 23 head]. 24 injury, he has been unable to work. Plaintiff also testified that he was just a random victim of an (AR 28-29). Plaintiff stated that as a result of his head (AR 29). 25 26 Plaintiff noted that he takes Seroquel, Depakote, Propranolol, 27 Celexa, Effexor and Benadryl for his mental impairments. 28 Plaintiff testified that he is maxing out all his medications because 18 (AR 29, 31). 1 his mental condition is worsening. 2 that he is taking 1,200mg of Depakote a day, and Propranolol three times 3 a day. 4 function under the influence of all his medication. 5 noted that he has to stop and rest after walking for about seven to ten 6 minutes because he feels like he will pass out. 7 stated that he has to stand up slowly when he gets up because of the 8 Seroquel prescription. 9 hallucinations, (AR 29). (Id.). Specifically, he reported As a result, he testified that it is difficult to (AR 30). depression, (Id.). (Id.). Plaintiff Plaintiff Plaintiff also complained of auditory dizziness, nausea and a lack of 10 coordination. (AR 29, 30, 35). Plaintiff reported that he cannot exert 11 himself physically for longer than fifteen or twenty minutes or he will 12 blackout. 13 almost all the other medications [Plaintiff] has tried, and [Plaintiff] 14 can t function on them. (AR 31). Plaintiff stated that he has tried a lot of, (AR 30). 15 16 Plaintiff explained that he frequently voluntarily discontinues his 17 medication because he get[s] frustrated and, and sometimes [Plaintiff] 18 think[s] that [he] can make it on [his] own. (AR 32). 19 Plaintiff 20 medication, he eventually ends up back on the medications because 21 Plaintiff get[s] really out of whack. 22 as of the date of the hearing he had been taking medication as 23 prescribed for over a year. stated that each time he voluntarily (Id.). However, discontinues his Plaintiff noted that, (AR 36). 24 25 Plaintiff stated at the time of the hearing he was living in an 26 assisted living shelter. (AR 28). Plaintiff testified before living 27 at the shelter, he lived at another similar shelter for fourteen months, 28 and before that he was homeless. (AR 24). 19 Plaintiff also testified 1 that he has not lived alone since January 2008. (AR 36). Plaintiff pays 2 $600 per month to stay at the shelter, and in return the shelter 3 provides food and daily reminders to take his medicine. 4 Plaintiff testified that he occupies himself by sleeping, all day, all 5 day, all day, all day. 6 walk to a store, however Plaintiff testified that it takes him about 7 [forty] to [forty-six] minutes to complete the normally ten minute 8 walk. (AR 35). (AR 28, 34). Every once in awhile Plaintiff will (AR 35). 9 10 During the hearing, Plaintiff also testified that he had previously 11 used methamphetamine, marijuana and cocaine. (AR 25). Plaintiff stated 12 he had been clean for about two years as of the date of the hearing. 13 (Id.). 14 about six or seven months to straighten out. 15 noted that his drug test screens have been negative since May 2007. (AR 16 37). 17 1992, and again in 2002 for sixteen months. 18 Plaintiff noted that he had spent additional time in prison for 19 violating his parole by absconding. Plaintiff also testified that he participated in a program for (AR 25-26). Plaintiff Plaintiff further testified that he was incarcerated from 1989 to (AR 26). In addition, (Id.). 20 21 Plaintiff testified that between the early 80s to mid 95" he 22 used to work under-the-table as 23 Plaintiff stated that he used to work for five or six different moving 24 companies all under-the-table and all for cash. 25 typically made ten to twelve dollars per hour for said jobs. 26 Plaintiff testified he discontinued working as a furniture mover because 27 he can t get along with people and [he] can t work in and around other 28 people because that s just the way that [he is]. 20 a furniture mover. (Id.). (Id.). (AR 33). Plaintiff (Id.). Plaintiff 1 further noted that he branched off and [he] started doing [his] own 2 little construction projects. (Id.). Plaintiff testified he could not 3 continue this work because of the head injury he suffered in 2002. 4 (Id.). 5 6 D. Vocational Expert s Testimony 7 8 9 Sandra Fioretti testified at the June 30, 2009 hearing as a vocational expert ( VE ). (AR 19). After the VE heard Plaintiff s 10 testimony and reviewed his file, the VE described Plaintiff s past work 11 as a furniture mover who is a van driver, helper, . . . very heavy, 12 semi-skilled, SVP three . . . . 13 hypothetical questions to the VE. 14 the ALJ asked the VE whether an individual of the [Plaintiff s] age, 15 education 16 limitations . . . [who can work] with things rather than with people and 17 no more than three to four-step work processes would be able to perform 18 Plaintiff s past work. 19 that such a person could. (Id.). The second hypothetical was identical 20 to the first, except with the restriction that the person would be off- 21 task at least [twenty] percent of the time due to psychological based 22 symptoms. 23 hypothetical individual would not be able to perform Plaintiff s past 24 work. (Id.). Plaintiff s attorney also posed a hypothetical to the VE, 25 asking her if 26 he would miss work more than two days a month due to psychiatric 27 symptoms. 28 be employable. and prior (Id.). work (AR 40). (Id.). experience (Id.). . The ALJ then posed two In the first hypothetical, . . [with] no exertional Given this hypothetical, the VE found With this added restriction, the VE found that the the same hypothetical individual would be employable if (Id.). The VE responded that such an individual would not (Id.). 21 1 IV. 2 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 3 4 To qualify for disability benefits, a claimant must demonstrate 5 a medically determinable physical or mental impairment that prevents him 6 from engaging in substantial gainful activity2 and that is expected to 7 result in death or to last for a continuous period of at least twelve 8 months. 9 42 U.S.C. § 423(d)(1)(A)). Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing The impairment must render the claimant 10 incapable of performing the work he previously performed and incapable 11 of performing any other substantial gainful employment that exists in 12 the national economy. 13 1999) (citing 42 U.S.C. § 423(d)(2)(A)). Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 14 15 16 To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. § 416.920. The steps are: 17 18 (1) Is the claimant presently engaged in substantial gainful 19 activity? 20 If not, proceed to step two. 21 (2) If so, the claimant is found not disabled. Is the claimant s impairment severe? 22 claimant is found not disabled. 23 If not, the three. 24 (3) 25 If so, proceed to step Does the claimant s impairment meet or equal one of a list of specific impairments described in 20 C.F.R. Part 26 27 28 2 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. 22 1 404, Subpart P, Appendix 1? 2 found disabled. 3 (4) If so, the claimant is If not, proceed to step four. Is the claimant capable of performing his past work? 4 so, the claimant is found not disabled. 5 If to step five. 6 (5) If not, proceed Is the claimant able to do any other work? 7 claimant is found disabled. 8 If not, the If so, the claimant is found not disabled. 9 10 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 11 949, 953-54 (9th Cir. 2001) (citations omitted); 20 C.F.R. § 416.920(b)- 12 (g)(1). 13 14 The claimant has the burden of proof at steps one through four, and 15 the Commissioner has the burden of proof at step five. 16 F.3d at 953-54. Additionally, the ALJ has an affirmative duty to assist 17 the claimant in developing the record at every step of the inquiry. Id. 18 at 954. If, at step four, the claimant meets his burden of establishing 19 an inability to perform past work, the Commissioner must show that the 20 claimant can perform some other work that exists in significant 21 numbers in the national economy, taking into account the claimant s 22 residual 23 experience. 24 20 C.F.R. §§ 404.1520(f)(1), 416.920(f)(1). 25 by the testimony of a vocational expert or by reference to the Medical- functional capacity ( RFC ),3 age, Bustamante, 262 education, and work Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 721; The Commissioner may do so 26 27 28 3 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). 23 1 Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart P, 2 Appendix 2 (commonly known as the Grids ). 3 F.3d 1157, 1162 (9th Cir. 2001) (citing Tackett). 4 both exertional (strength-related) and nonexertional limitations, the 5 Grids are inapplicable and the ALJ must take the testimony of a 6 vocational expert. Osenbrock v. Apfel, 240 When a claimant has Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000). 7 8 V. 9 THE ALJ S DECISION 10 11 The ALJ employed the five-step sequential evaluation process and 12 concluded that Plaintiff was not disabled under the Social Security Act. 13 (AR 14). 14 engaged in substantial gainful activity since November 6, 2007. 15 11). 16 including: affective mood disorder, [a] history of polysubstance abuse 17 and status post intracranial injury. At the first step, the ALJ found that Plaintiff had not (AR At step two, the ALJ found that Plaintiff had severe impairments (Id.). 18 19 At step three, the ALJ found that the severe impairments at step 20 two did not meet or medically equal a listed impairment. 21 ALJ found that Plaintiff suffered: mild restrictions in his activities 22 of daily living and maintaining concentration, persistence and pace; 23 moderate 24 decompensation of an extended duration. (Id.). Accordingly, Plaintiff 25 did not satisfy the B Criteria of listings for mental impairments. 26 (Id.). 27 presence of C Criteria listings for mental impairments. difficulties in social functioning; and no (Id.). The episodes of The ALJ also found that the evidence failed to establish the 28 24 (AR 12). 1 At step four, the ALJ considered all Plaintiff s symptoms, and the 2 extent to which these symptoms can reasonably be accepted as consistent 3 with the objective medical evidence and other evidence, to determine 4 Plaintiff s RFC. 5 determinable impairments could reasonably be expected to cause the 6 alleged symptoms, but found Plaintiff s testimony lacked credibility 7 with respect to his statements about the intensity, persistence and 8 limiting effects of his impairments. 9 credibility finding on, and gave great weight to, Dr. Krieg s August 17, 10 2009 Psychological Evaluation wherein she noted Plaintiff did not appear 11 to be putting forth his best effort, and that Plaintiff s test results 12 were very probable for malingering. (Id.). The ALJ found that Plaintiff s medically (AR 12-13). The ALJ based his (AR 14, 380). 13 14 The ALJ found that Plaintiff has the residual functional capacity 15 to perform a full range of work at all exertional levels but with the 16 following nonexertional limitations: working with things rather than 17 people and 3-4 step work process. (AR 12). 18 19 At step five, the ALJ found that Plaintiff is capable of performing 20 past relevant work as a furniture mover. (AR 14). Accordingly, the ALJ 21 found that Plaintiff is not disabled. (Id.). 22 23 VI. 24 STANDARD OF REVIEW 25 26 Under 42 U.S.C. § 405(g), a district court may review the 27 Commissioner s decision to deny benefits. 28 Commissioner s decision when the ALJ s findings are based on legal error 25 The court may set aside the 1 or are not supported by substantial evidence in the record as a whole. 2 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Smolen v. 3 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). 4 5 Substantial evidence is more than a scintilla, but less than a 6 preponderance. 7 which a reasonable 8 conclusion. 9 a finding, the court must consider the record as a whole, weighing evidence Reddick, 157 F.3d at 720. Id. It is relevant evidence person might accept as adequate to support a To determine whether substantial evidence supports 10 both that supports and evidence that detracts from the 11 [Commissioner s] conclusion. Aukland, 257 F.3d at 1035 (quoting Penny 12 v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 13 reasonably support either affirming or reversing that conclusion, the 14 court may not substitute its judgment for that of the Commissioner. 15 Reddick, 157 F.3d at 720-21. If the evidence can 16 17 VII. 18 DISCUSSION 19 20 Plaintiff contends the ALJ erred for a number of reasons. First, 21 he claims that the ALJ failed to properly consider all of the relevant 22 medical 23 (Plaintiff s Memorandum ( Pl. Memo ) at 2). 24 the ALJ s credibility finding regarding Plaintiff s testimony was 25 improper because he failed to consider Plaintiff s subjective complaints 26 and the objective medical evidence supporting Plaintiff s complaints. 27 (Id. at 6). Finally, Plaintiff claims the ALJ failed to properly assess 28 third party lay witness statements. evidence, particularly 26 Plaintiff s treating records. Second, Plaintiff argues (Id. at 6-7). For the reasons 1 discussed below, the Court disagrees with Plaintiff s contentions and 2 concludes that the ALJ s decision should be AFFIRMED. 3 4 A. The ALJ Properly Considered All Of The Relevant Medical Records 5 6 Plaintiff contends that the ALJ [] clearly failed to properly 7 consider the relevant treating evidence of record including multiple 8 psychiatric admits and [Global Assessment Functioning] [s]cores in the 9 marginal or non-functional range, all indicative of severe mental 10 symptoms and limitations. (Pl. Memo at 5). Further, Plaintiff claims 11 the ALJ [did not] provide any explanation as to why he was completely 12 disregarding all of the relevant treating evidence of record. 13 Memo at 3). 14 consider medical evidence indicating Plaintiff s admissions into the 15 hospital for psychiatric reasons on at least three separate occasions: 16 December 29, 2007, February 13, 2009, and February 18, 2009. (Pl. Memo 17 at 2). 18 that Plaintiff s health care providers have listed [Plaintiff s] [GAF 19 scores] ranging from 30-62 at various points in time between 2003 and 20 2009. 21 to 22 psychological technician with San Bernardino County Department of 23 Behavioral Health dated February 22, 2008, which consistently and 24 credibly describes significant psychological symptoms and limitations 25 effecting [sic] this Plaintiff. 26 with Plaintiff s contentions. (Pl. Specifically, Plaintiff first asserts the ALJ failed to Second, Plaintiff claims the ALJ failed to consider evidence (Pl. Memo at 2-3). consider a third Finally, Plaintiff contends the ALJ failed party statement from Mr. (Pl. Memo at 3). 27 28 27 Tyree Adair, a The Court disagrees 1 If the treating doctor s opinion is not contradicted by another 2 doctor, it may be rejected only for clear and convincing reasons. 3 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (citing Baxter v. 4 Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991)). 5 doctor s opinion is contradicted by the opinion of another doctor, the 6 ALJ 7 specific and legitimate reasons supported by substantial evidence in 8 the record for so doing. 9 Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). may reject the treating doctor s opinion When the treating only by providing Lester, 81 F.3d at 830 (citing Murray v. Furthermore, the ALJ is 10 responsible for resolving conflicts in medical testimony, and for 11 resolving ambiguities, Andrew v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 12 1995), 13 susceptible to more than one rational interpretation. 14 Bowen, 881 F.2d 747, 750 (9th Cir. 1989). and his decision must be upheld where the evidence is Magallanes v. 15 16 In his decision, the ALJ found that Plaintiff suffers from 17 affective mood disorder, a severe mental impairment. 18 Specifically, the ALJ based a finding of Plaintiff s impairment from 19 examining sources that claimed Plaintiff has mild or moderate paragraph 20 B criteria limitations. (AR 11-12). (AR 11). The ALJ noted: 21 22 In activities of daily living, [Plaintiff] has mild 23 restriction. In social functioning, [Plaintiff] has moderate 24 difficulties. 25 pace, [Plaintiff] has mild difficulties. 26 decompensation, [Plaintiff] has experienced no episodes of 27 decompensation, which have been of extended duration. With regard to concentration, persistence or 28 28 As for episodes of 1 (AR 11). The ALJ explained that the limitations identified in the 2 paragraph 3 assessment. However, the ALJ stated [Plaintiff s] RFC assessment 4 reflects the degree of limitation the [ALJ] has found in the paragraph 5 B mental function analysis. B criteria are not a residual functional capacity (AR 12). 6 7 The ALJ concluded that based on Plaintiff s limitations, and 8 [a]fter careful consideration of the entire record, the [ALJ] finds 9 that [Plaintiff] has the residual functional capacity to perform a full 10 range of work at all exertional 11 nonexertional limitations: working with things rather than people and 12 3-4 step work process. 13 finding, the [ALJ] has considered all symptoms and the extent to which 14 these symptoms can reasonably be accepted as consistent with the 15 objective medical evidence and other evidence, based on the requirements 16 of 20 C.F.R. § 416.929 and SSRs 96-4p and 96-7p. (AR 12). levels but with the following The ALJ noted that [i]n making this (AR 12). 17 18 In determining Plaintiff s RFC, the ALJ specifically cited an 19 evaluation from April 15, 2008, conducted by State Agency medical 20 consultants. 21 observed 22 generally within normal limits. 23 emotional tension/over-reactivity. 24 intact; however general fund of knowledge is impaired. 25 normal range, Romberg (-) . . . . 26 that State Agency medical consultants concluded there were no physical 27 functional limitations. that The ALJ found relevant that State Agency consultants Plaintiff has extensive tattoos but appearance is Facial expressions/postures suggest Intellectual function was grossly (AR 13, 274). (AR 13, 275). 28 29 Gait is within The ALJ reiterated 1 The ALJ also incorporated in his RFC findings medical treating 2 records from an examining physician, Dr. Opborek, and treating records 3 from Arrowhead Regional Medical Center dated January 13, 2009 to March 4 3, 2009. (AR 13). The ALJ noted that: 5 6 Per the records the [Plaintiff] was prescribed Inderol and 7 was doing well overall on medication. 8 [Plaintiff] had some difficulty reading. 9 he was prescribed Depakote Celexa, Seroquil, Effexor, and Per the records the On April 30, 2009 10 Benadryl. He was diagnosed with a Mood Disorder, Psychotic 11 Disorder, NOS, and Personality Disorder, NOS, with antisocial 12 traits. 13 He 14 thoughts. 15 Crisis Center Department of Behavioral Health and was last 16 seen February 3, 2009 and said he was diagnosed with Bi-Polar 17 Disorder, Mood Disorder, Depression, and Insomnia. He denied 18 any history of hallucinations or homicidal ideations. 19 stopped smoking cigarettes two months ago and denied ever 20 drinking alcohol or using drugs. 21 substance abuse or 12-step meeting attendance. [Plaintiff s] 22 typical daily activities include sleeping that he attributed 23 to being depressed. 24 assistance or verbal prompting. 25 with family and friends. [Plaintiff] reported being depressed and anxious. denied being currently suicidal but sometimes has He reported being seen five times at Arrowhead He He denied a history of He is able to manage self-care without He stated not getting along 26 27 (AR 13). The ALJ also relied on Dr. Krieg, a consultative examiner who 28 found that [Plaintiff] did not appear to be putting forth his best 30 1 effort, to conclude that Plaintiff s test results may not be valid. 2 (AR 14). 3 records, but instead incorporated the observations contained in the 4 treating records into his conclusion that Plaintiff has a severe mental 5 impairment affective mood disorder. (See AR 11-13). The ALJ did not reject findings in the relevant treating 6 7 Moreover, to the extent the ALJ did not expressly consider records 8 identified in Plaintiff s Memorandum, Plaintiff does not demonstrate how 9 those records change the analysis or outcome that Plaintiff is not 10 disabled. The ALJ found severe mental limitations. 11 The 12 limitations. 13 these records was harmless error as they would not have changed the 14 outcome. 15 (if ALJ s error was inconsequential to the ultimate nondisability 16 determination, no remand required); Burch v. Barnhart, 400 F.3d 676, 679 17 (9th Cir. 2005) ( A decision of the ALJ will not be reversed for errors 18 that are harmless. ). records identified by Plaintiff are (See AR 11-12). consistent with those Therefore, any error in failing to expressly acknowledge See Carmickle v. Comm r, 533 F.3d 1155, 1162 (9th Cir. 2008) 19 20 B. The ALJ Properly Rejected Plaintiff s Credibility 21 22 Plaintiff asserts that the ALJ erred in reaching his decision 23 because he improperly discounted Plaintiff s subjective testimony. (Pl. 24 Memo at 6). 25 was improper because he failed to consider objective medical evidence 26 supporting Plaintiff s subjective complaints of impairment. 27 Plaintiff states the ignored objective medical evidence includes 28 Plaintiff s testimony that he had been living in an assisted living First, Plaintiff claims that the ALJ s credibility finding 31 (Id.). 1 facility with other psychiatric patients for approximately a year and 2 a half, Plaintiff s subjective written statements of record which 3 document consistent and credible subjective symptoms and limitations 4 throughout this process, and the fact that Plaintiff s claims regarding 5 his impairments and inability to work have been consistent throughout 6 the entire claims process. 7 ALJ failed to specify which allegations of pain and/or symptoms he found 8 not credible, and that the ALJ failed to state clear and convincing 9 reasons for rejecting Plaintiff s testimony. 10 (Id.). Second, Plaintiff argues that the (Id. at 7). The Court finds these arguments are without merit. 11 12 The ALJ may reject a plaintiff s testimony if he or she makes an 13 explicit credibility finding that is supported by a specific, cogent 14 reason for the disbelief. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th 15 Cir. 1990) (internal citations omitted). 16 finding is supported by substantial evidence in the record, the Court 17 may not engage in second-guessing. 18 959 (9th Cir. 2002). 19 reason to find a claimant not credible. 20 Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003). 21 entitled to deference if they are supported by substantial evidence and 22 are sufficiently specific to allow a reviewing court to conclude the 23 adjudicator rejected the claimant s testimony on permissible grounds and 24 did 25 [subjective symptoms]." 26 Cir. 1991) (en banc). Unless there is affirmative evidence showing that 27 the plaintiff is malingering, the ALJ s reasons for rejecting the 28 plaintiff s testimony must be clear and convincing. not If the ALJ's credibility Thomas v. Barnhart, 278 F.3d, 947, Evidence of malingering, by itself, is sufficient arbitrarily discredit a See Benton ex rel. Benton v. claimant s The ALJ s findings are testimony regarding Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th 32 Lester, 81 F.3d 1 at 834. Inconsistency with medical evidence is one such reason. 2 See Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). 3 4 Here, the ALJ gave valid reasons for discounting Plaintiff s 5 allegations of subjectively disabling symptoms. The ALJ explicitly 6 noted Dr. Krieg s opinion that Plaintiff was likely malingering. 7 13-14, 388-89). 8 this finding 9 Plaintiff was malingering. (AR Even Plaintiff s treating doctor, Dr. Opbroek, echoed in his February 6, 2009 Progress note stating that (AR 362). Accordingly, substantial 10 evidence supports the ALJ s adverse credibility finding. See Benton, 11 331 F.3d at 1040 (finding evidence of malingering, by itself, is 12 sufficient reason to find a claimant not credible). 13 14 Furthermore, Plaintiff s functional restrictions assessed by Dr. 15 Gregg, Dr. Woodard, and Dr. Krieg were all inconsistent with the extreme 16 limitations claimed by Plaintiff. 17 resulted in problems with understanding, memory, balance, equilibrium, 18 dizziness, dry mouth, and headaches. 19 faints after twenty minutes of exertion, suffers from extreme paranoia, 20 hallucinations, suicidal ideations, depression and extreme outbursts of 21 anger. Plaintiff claimed his head trauma (AR 96). He also claimed he (Id.). 22 23 In contrast, Dr. Gregg opined [Plaintiff] is reasonably able to 24 learn, remember and sustain [s]imple, [r]outine [t]asks in a non-public 25 setting over the course of a normal, [forty-hour] work week. (AR 267). 26 Dr. Woodard also found that there did not appear to be any limitations 27 in [Plaintiff s] physical activities on the bases of his current 28 33 1 neurologic status. (AR 272). Thus, Plaintiff's subjective symptom 2 testimony is inconsistent with the medical evidence. 3 4 Dr. Krieg similarly stated that if Plaintiff was malingering: 5 6 There would be no impairment that would interfere with his 7 ability to complete a normal workday or workweek. 8 be may be 9 encountered in competitive work and adjust to changes. He able to deal with the ususal stress He would that 10 would no create a hazard in the workplace. He would be 11 capable of performing simple, repetitive work tasks. 12 13 (AR 389). Because ample evidence supported a finding that Plaintiff was 14 malingering, and because the ALJ s credibility finding is supported by 15 substantial evidence in the record, the ALJ's credibility determination 16 is entitled to deference. Thus, no remand is necessary. 17 18 C. The ALJ's Failure To Expressly Consider The Third Party Statements 19 Was Harmless Error Because Neither Statement Would Have Altered 20 The Outcome 21 22 Plaintiff contends that the ALJ committed reversible error because 23 Plaintiff s subjective testimony was bolstered by two third party 24 statements also contained within the Administrative Record neither of 25 which were even mentioned . . . . 26 Plaintiff claims [t]he ALJ [] completely failed to mention lay witness 27 statements made by Mr. Tyree Adair, a psychological technician, and Ms. 28 Carmen Rodriguez, a friend of Plaintiff s for over ten years, in his 34 (Pl. Memo at 7). Specifically, 1 unfavorable decision. (Pl. Memo 7-8). No remand is required based upon 2 these contentions. 3 4 In determining whether a claimant is disabled, an ALJ must consider 5 lay witness testimony concerning a claimant s ability to work. Stout 6 v. Comm r Soc. Sec. Admin., 454 F.3d 1050, 1053 (9th Cir. July 25, 7 2006); Smolen, 80 F.3d at 1288; 20 C.F.R. §§ 404.1519(d)(4) & (e), and 8 416(d)(4) & (e). 9 only if she gives reasons that are germane to each witness. Valentine 10 v. Comm r of Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009) (citing 11 Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993)); see also Lewis 12 v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001) ( Lay testimony as to a 13 claimant s symptoms is competent evidence that an ALJ must take into 14 account, unless he or she expressly determines to disregard such 15 testimony and gives reasons germane to each witness for doing so. 16 (citations omitted)). The ALJ may discount the testimony of lay witnesses 17 18 If an ALJ fails to expressly consider lay witness testimony, the 19 Court must determine whether the ALJ s decision remains legally valid, 20 despite such error. Carmickle, 533 F.3d at 1162. If the ALJ s ultimate 21 credibility determination and reasoning are adequately supported by 22 substantial evidence in the record, no remand is required. 23 Batson v. Comm r of Soc. Sec. Admin., 359 F.3d 1190, 1195-97 (9th Cir. 24 2004)). 25 testimony is inconsistent with the medical evidence. 26 at 1218. 27 medical evidence may be competent evidence to show the severity of Id. (citing An ALJ may reject lay witness testimony if the witness s Bayliss, 427 F.3d Credible lay witness testimony that is consistent with the 28 35 1 Plaintiff s symptoms and how it affects a Plaintiff s ability to work. 2 See Bruce v. Astrue, 557 F.3d 1113, 1116 (9th Cir. 2009). 3 4 Plaintiff asserts that the ALJ failed to consider the opinion of 5 Mr. Tyree Adair, a psychological technician at the Department of 6 Behavioral Health. 7 Report, Mr. Adair described Plaintiff s lack of social skills, inability 8 to follow directions, and Plaintiff s hallucinations. (AR 103-11). Mr. 9 Adair claims Plaintiff struggles daily to learn how to socialize in 10 groups . . . has to be told more than once what was said . . . [and] 11 gets suicidal, depressed and feels hopeless. 12 Mr. Adair s lay opinion on the severity of Plaintiff s impairments is 13 contradicted by the opinions of Dr. Opbroek and Dr. Krieg. 14 above, both doctors found evidence that Plaintiff was malingering. (AR 15 362, 389). See Bayliss, 427 F.3d at 1218 ( [i]nconsistency with the 16 medical evidence is one such reason for discrediting the testimony of 17 a lay witness). 18 statement merely recounted what Plaintiff had told him while completing 19 the Function Report. 20 Adair's statement would not have altered the ALJ's decision. 21 it was error not to expressly consider the statement, the error was 22 harmless. The ALJ s decision remains legally valid, despite such error. 23 Carmickle, 533 F.3d at 1162. (Pl. Memo at 3). In his February 22, 2008 Function (AR 107-09). However, As noted Furthermore, alternative portions of Mr. Adair s (AR 103-11). Thus, express consideration of Mr. Even if 24 25 Further, to the extent the ALJ erred by disregarding the third 26 party statement of Ms. Rodriguez, any error was harmless. Ms. Rodriguez 27 stated: 28 36 1 [She has] been helping Mr. Olivas for sometimes [sic]. 2 needs reminding on just about all of his important daily 3 activities such as medications and keeping appointments. [She 4 has] witnessed on several occasions outbursts with violent 5 espsidoes 6 Becomes argumentative and verbally out of control. 7 medication daily which seems to keep him stable. [sic] that comes [sic] from his He frustration. Needs 8 9 (AR 127). Ms. Rodriguez claimed Plaintiff is moody, [it is] hard [for 10 him] to concentrate, [Plaintiff experiences] drowsniess [sic], [and] is 11 not able to really socialize with others. 12 Rodriguez s 13 testimony, her testimony would not have altered the ALJ's decision. 14 Accordingly, even if the ALJ committed error in disregarding her 15 statement, the error was harmless. 16 decision remains legally valid. 17 \\ 18 \\ 19 \\ 20 \\ 21 \\ 22 \\ 23 \\ 24 \\ 25 \\ 26 \\ 27 \\ 28 \\ statement is substantively (AR 125). identical to Because Ms. Plaintiff s No remand is required, as the ALJ's Carmickle, 533 F.3d at 1162. 37 1 VIII. 2 CONCLUSION 3 4 Consistent with the foregoing, and pursuant to sentence four of 42 5 U.S.C. § 405(g),4 IT IS ORDERED that an amended judgment be entered 6 AFFIRMING the decision of the Commissioner and dismissing this action 7 with prejudice. IT IS FURTHER ORDERED that the Clerk of the Court serve 8 copies of this Amended Memorandum Decision and Order and the Amended 9 Judgment on counsel for both parties. 10 11 DATED: October 11, 2011 12 13 __________/S/___________________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 14 15 16 THIS MEMORANDUM IS NOT INTENDED FOR PUBLICATION NOR IS INTENDED TO 17 BE INCLUDED IN OR SUBMITTED TO ANY ONLINE SERVICE SUCH AS WESTLAW OR 18 LEXIS. 19 20 21 22 23 24 25 26 27 28 4 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. 38

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