Daniel R. Phillips v. Michael J. Astrue, No. 5:2011cv00383 - Document 19 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND OPINION by Magistrate Judge Marc L. Goldman. The decision of the Commissioner is affirmed. (db)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 DANIEL R. PHILLIPS, 13 Plaintiff, 14 15 16 v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 17 Defendant. 18 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. EDCV 11-00383-MLG MEMORANDUM OPINION AND ORDER 19 Plaintiff Daniel R. Phillips ( Plaintiff ) seeks review of the 20 Commissioner s final decision denying his application for Disability 21 Insurance Benefits ( DIB ) pursuant to Title II of the Social Security 22 Act. For the reasons stated below, the Commissioner s decision is 23 affirmed. 24 25 I. Factual and Procedural Background 26 Plaintiff was born on August 31, 1967. (Administrative Record 27 ( AR ) at 119). He completed three years of high school and obtained a 28 General Education Development certificate. (AR at 18-19). Plaintiff has 1 relevant work experience as a car salesman and as a mixer. (AR at 189, 2 756). 3 On April 11, 2008, Plaintiff filed an application for DIB, alleging 4 that he has been disabled since July 30, 2007, due to ongoing pain. (AR 5 at 119, 128). The Social Security Administration denied Plaintiff s 6 application initially and on reconsideration. (AR at 56, 60). 7 An administrative hearing was held before Administrative Law Judge 8 ( ALJ ) Michael Radensky on January 12, 2009. (AR at 17-23). Plaintiff, 9 who was represented by counsel, testified at the hearing. (AR at 19-22). 10 A vocational expert also testified at the hearing. (AR at 31-35). On 11 February 2, 2009, the ALJ issued a decision ( Decision #1) finding that 12 Plaintiff was able to perform his past relevant work and, therefore, was 13 not disabled. (AR at 43-55). 14 The Appeals Council affirmed the ALJ s decision on April 29, 2009. 15 (AR at 1). Plaintiff commenced an action in this Court, CV 09-01055 MLG. 16 Following a stipulated remand, the Appeals Council vacated the ALJ s 17 decision and remanded the case to the ALJ to conduct further proceedings 18 and to give further consideration to statements from Plaintiff s spouse. 19 (AR at 766, 772). 20 A second hearing was held before the ALJ on June 11, 2010. (AR at 21 743-60). Plaintiff was represented by counsel and testified in his own 22 behalf. (AR at 746-55). A vocational expert also testified at the 23 hearing. (AR at 755-59). 24 On August 5, 2010, the ALJ issued a decision (Decision #2) denying 25 benefits.1 (AR at 733-42). The ALJ found that through his date last 26 insured of June 30, 2008, Plaintiff: (1) had not engaged in substantial 27 1 28 In finding Plaintiff not disabled, the ALJ incorporated by reference the findings from Decision #1. (AR at 738). 2 1 gainful activity since his alleged onset date of disability (step 1); 2 (2) 3 impingement syndrome, degenerative disc disease of the lumbar spine, 4 left knee impairment, obesity, and mood disorder (step 2); (3) did not 5 have any impairments that met or equaled the criteria of a listed 6 impairment (step 3); (4) had a residual functional capacity ( RFC ) to 7 perform a range of light work;2 (5) was unable to perform any past 8 relevant work (step 4); but (6) could have performed jobs that existed 9 in significant numbers in the national economy, including work as a 10 bench assembler, small products assembler, and inspector hand packager 11 (step 5). (AR at 734-41). Therefore, the ALJ concluded that Plaintiff 12 was not under a disability at any time from his alleged onset date 13 through his date last insured. (AR at 741). suffered from severe impairments, including left shoulder 14 On February 2, 2011, the Appeals Council denied review, and 15 Decision #2 became the final decision of the Commissioner. (AR at 715- 16 17). 17 Plaintiff commenced this action for judicial review on March 7, 18 2011. The parties filed a Joint Stipulation on October 11, 2011. 19 Plaintiff raises the following claims of error: 20 1. The ALJ erred by failing to give controlling weight to Plaintiff s primary Worker s Compensation physician. 21 22 23 24 25 26 27 28 2 The ALJ found that Plaintiff was able to lift and carry 10 pounds frequently and 20 pounds occasionally, sit with normal breaks for six hours in an eight-hour workday, stand and/or walk with normal breaks for six hours in an eight-hour workday, occasionally stoop, kneel, crouch, bend, crawl, balance and climb ramps and stairs, occasionally use his left lower extremity to operate foot controls, and occasionally have contact with co-workers and supervisors. (AR at 736). The ALJ further found that while Plaintiff was able to perform unskilled work, he was precluded from climbing ladders, ropes, and scaffolds, using his left upper extremity for above-the-shoulder work, and performing work tasks involving contact with the public. (AR at 736). 3 1 2. The ALJ provided insufficient reasons for rejecting 2 Plaintiff s credibility. 3 3. The 4 ALJ provided legally insufficient reasons for rejecting Plaintiff s treating physician s opinion. 5 4. The ALJ erred by failing to properly consider the third 6 party statement from Plaintiff s spouse. 7 (Joint Stipulation at 3). Plaintiff seeks remand for payment of 8 benefits. (Joint Stipulation at 32-33). The Commissioner requests that 9 the ALJ s decision be affirmed or, in the alternative, remanded for 10 further proceedings. (Joint Stipulation at 34). The Joint Stipulation 11 has been taken under submission without oral argument. 12 13 14 II. Standard of Review Under 42 U.S.C. § 405(g), a district court may review the 15 Commissioner s decision to deny benefits. The Commissioner s or ALJ s 16 findings and decision should be upheld if they are free from legal error 17 and are supported by substantial evidence based on the record as a 18 whole. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 19 (1971); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial 20 evidence means such evidence as a reasonable person might accept as 21 adequate 22 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It is more 23 than a scintilla, but less than a preponderance. Lingenfelter, 504 F.3d 24 at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 25 2006)). To determine whether substantial evidence supports a finding, 26 the reviewing court must review the administrative record as a whole, 27 weighing both the evidence that supports and the evidence that detracts 28 from the Commissioner s conclusion. Reddick v. Chater, 157 F.3d 715, to support a conclusion. 4 Richardson, 402 U.S. at 401; 1 720 (9th Cir. 1996). If the evidence can reasonably support either 2 affirming or reversing, the reviewing court may not substitute its 3 judgment for that of the Commissioner. Id. at 720-721. 4 5 III. DISCUSSION 6 A. Physicians s Opinions 7 Plaintiff contends that the ALJ failed to properly evaluate the 8 opinions of two of his doctors, Guy H. Gottschalk, M.D. and Norman 9 Reichwald, Psy.D. (Joint Stipulation at 3-7, 9-11, 21-25, 27-29). 10 Generally, the opinions of treating physicians are given greater 11 weight than those of other physicians, because treating physicians are 12 employed to cure and therefore have a greater opportunity to know and 13 observe the claimant. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir.2007); 14 Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). The uncontradicted 15 opinion of a treating physician is entitled to controlling weight, and 16 may be rejected only for clear and convincing reasons supported by 17 substantial evidence in the record. See Lester v. Chater, 81 F.3d 821, 18 831 (9th Cir. 1996). If a treating physician s opinion is contradicted 19 by other substantial evidence, the treating physician s opinion is still 20 entitled to deference and may be rejected only for specific and 21 legitimate reasons supported by substantial evidence. Lester, 81 F.3d 22 at 830; Orn, 495 F.3d at 631-33. Where an examining physician s opinion 23 is based on independent clinical findings that differ from the findings 24 of the treating physician, the examining physician s opinion may be 25 considered substantial evidence to reject the treating physician s 26 opinion. See Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) 27 (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). 28 opinion of a nonexamining physician, 5 however, is not by The itself 1 substantial evidence to justify the rejection of the opinion of either 2 an examining physician or a treating physician. Lester, 81 F.3d at 831. 3 Dr. Gottschalk 4 Dr. Gottschalk, a specialist in occupational medicine, internal 5 work related illnesses, and orthopaedic injuries, began treating 6 Plaintiff in August 2007, for Plaintiff s work-related injuries. (AR at 7 531-38). Dr. Gottschalk diagnosed Plaintiff with strain and sprain of 8 the cervical thoracic spine, bilateral shoulder strain and tendonitis, 9 and strain and sprain of thoracolumbosacral spine, prior grade 1 spin 10 listhesis (L5-S1), and right knee contusion, resolved. (AR at 534-35). 11 Dr. Gottschalk opined that Plaintiff was temporarily totally disabled. 12 (AR at 536). Dr. Gottschalk continued to designate Plaintiff as not 13 capable of gainful employment and temporarily totally disabled through 14 April 2008. (AR at 490, 501, 511, 528). 15 In June 2008, Dr. Gottschalk opined that Plaintiff was capable of 16 gainful employment, but was not capable of returning to his previous 17 type of work activity. (AR at 483). Dr. Gottschalk reported that 18 Plaintiff s condition was permanent and stationary. (AR at 483). Dr. 19 Gottschalk also added the following medical conditions to Plaintiff s 20 diagnosis: cervical disc disease with disc bulges, right and left 21 shoulder internal derangement, exacerbation of multilevel cervical disc 22 disease, history of chronic and frequent urinary incontinence, and 23 chronic sleepiness and fatigue. (AR at 481). Dr. Gottschalk deferred the 24 psychological diagnosis to Plaintiff s psychologist. (AR at 481). 25 In a residual functional capacity questionnaire completed in 26 January 2009, Dr. Gottschalk reported that Plaintiff was capable of 27 lifting and carrying less than 10 pounds frequently and 20 pounds 28 occasionally, had a moderate limitation in the ability to deal with work 6 1 stress, would experience frequent interference with attention and 2 concentration, and was likely to be absent from work three times per 3 month. (AR at 667, 669, 671). Dr. Gottschalk opined that Plaintiff s 4 prognosis was poor. (AR at 665). 5 In July 2009, Dr. Gottschalk concluded that while Plaintiff s 6 condition remained permanent and stationary, Plaintiff was no longer 7 capable of gainful employment. (AR at 959). Dr. Gottschalk also found 8 that Plaintiff suffered from sleep apnea, in addition to his previously 9 diagnosed conditions. (AR at 959). 10 In January 2010, Dr. Gottschalk opined that Plaintiff was not 11 capable of gainful employment and that no amount of rehabilitation would 12 return Plaintiff to gainful employment. (AR at 948). Dr. Gottschalk 13 found that Plaintiff s orthopedic injury was related to a variety of 14 conditions, 15 hypertension, weight gain and obesity, sleep disorder and sleep apnea, 16 type II diabetes mellitus, and exacerbation of hypercholesterolemia. (AR 17 at 947). including erectile dysfunction, bowel incontinence, 18 The ALJ rejected Dr. Gottschalk s opinion, relying instead on the 19 opinions of two examining orthopedic surgeons, Robert L. Samson, M.D. 20 and Bunsri T. Sophon, M.D. (AR at 52-53, 315-84, 738-39, 822-33). In 21 April 2008, Dr. Samson, an agreed medical examiner, diagnosed Plaintiff 22 with cervical and lumbar disc disease and bilateral shoulder impairment. 23 (AR at 343-44). Dr. Samson concluded that Plaintiff was capable of 24 resuming normal activity, except for work involving significant bending, 25 stooping, kneeling crouching, crawling or lifting and carrying objects 26 over 25 pounds. (AR at 347). Dr. Sophon, a consultative examiner who 27 evaluated Plaintiff in March 2010, found that Plaintiff was capable of 28 performing light work, except for overhead work with the left arm, more 7 1 than frequent reaching with the left arm, balancing, stooping, kneeling, 2 and crouching. (AR at 828-33). Dr. Samson and Dr. Sophon supported their 3 opinions that Plaintiff was capable of work activity with physical 4 examinations of Plaintiff, clinical tests, and review of Plaintiff s 5 medical 6 physicians s opinions rested on objective clinical findings, the ALJ 7 properly viewed them as substantial evidence to reject Dr. Gottschalk s 8 opinion of disability. (AR at 52-53, 739); Andrews, 53 F.3d at 1041 (ALJ 9 has sole[ ] province to resolve conflicts between credible, yet 10 records. (AR at 315-84, 822-33). Because these examining conflicting, medical evidence). 11 The ALJ also properly cited the opinions of the state agency 12 reviewing 13 doctors s opinions and underlying independent examinations. (AR at 52, 14 385-91); see Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) 15 (holding that opinions of nontreating or nonexamining doctors may serve 16 as 17 findings or other evidence in the record); Andrews, 53 F.3d at 1041 18 ( reports of the nonexamining advisor need not be discounted and may 19 serve as substantial evidence when they are supported by other evidence 20 in the record and are consistent with it ). 21 physicians, substantial Further, as evidence the ALJ they when were consistent consistent properly with considered the with the examining independent amount of clinical relevant 22 evidence that supported the treating physician s opinion and the quality 23 of 24 Gottschalk s opinion to the extent it reflected a conclusory opinion and 25 was not supported by clinical findings. (AR at 53, 738); 20 C.F.R. § 26 404.1527(d) (treatment history, consistency with the record as a whole, 27 and supportability of report affect weight accorded physician s report); 28 Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). The ALJ explained the explanation provided. The 8 ALJ gave less weight to Dr. 1 that Dr. Gottschalk s opinion that Plaintiff could not return to his 2 former work was primarily based on Plaintiffs subjective complaints. 3 (AR 4 Plaintiff s subjective symptom testimony was supported by substantial 5 evidence. 6 ( Credibility determinations do bear on evaluations of medical evidence 7 when 8 inconsistency 9 diagnosed conditions. ). Finally, Dr. Gottschalk s opinion was not 10 conclusive as to the ultimate issue of disability. Magallanes, 881 F.2d 11 at 751 (citing Rodriguez v. Bowen, 876 F.2d 759, 761 62 & n.7 (9th Cir. 12 1989)). Thus, the ALJ s consideration of Dr. Gottschalk s opinion was 13 supported by substantial evidence. at an 53). As Webb ALJ discussed v. is below, Barnhart, presented between a the 433 with F.3d ALJ s 683, decision 688 conflicting claimant s to (9th medical subjective discredit Cir. 2005) opinions complaints and or his 14 Dr. Reichwald 15 Dr. Reichwald, an agreed medical examiner, conducted an initial 16 psychiatric evaluation of Plaintiff in October 2007. (AR at 297-313). 17 Dr. Reichwald diagnosed Plaintiff with major depressive disorder, NOS, 18 anxiety disorder, and a Global Assessment of Functioning ( GAF ) score 19 of 48, indicating a serious impairment. (AR at 309). Dr. Reichwald 20 considered Plaintiff to be temporarily totally disabled. (AR at 309). In 21 February 2008, Dr. Reichwald reported that Plaintiff had the following 22 work function impairments: moderate restrictions in the ability to 23 comprehend and follow instructions, perform simple and repetitive tasks, 24 relate to others beyond giving and receiving instructions, influence 25 people, and accept and carry out responsibility for directions, control, 26 and 27 maintain a work pace appropriate to a given work load and perform 28 complex or varied tasks; and severe restrictions in the ability to planning; moderate-to-severe 9 restrictions in the ability to 1 make generalizations, 2 supervisors. (AR at 288). Concluding that Plaintiff had problems with 3 activities 4 persistence, 5 Plaintiff s emotional impairment was marked and his prognosis was poor. 6 (AR at 289-90). of evaluations daily and living, pace, and or social decisions adaptation, without functioning, Dr. immediate concentration, Reichwald opined that 7 The ALJ found that Dr. Reichwald s opinion was not entitled to the 8 weight generally afforded to treating physicians, as there were no 9 progress notes establishing the nature and extent of any treating 10 relationship with Plaintiff. (AR at 48). The ALJ also questioned Dr. 11 Reichwald s objectivity, as he had been retained by Plaintiff s attorney 12 in connection with Plaintiff s claim for disability benefits. (AR at 13 48). While the purpose for which the report was obtained does not 14 provide a legitimate basis for rejecting it, Reddick, 157 F.3d at 726, 15 the ALJ properly rejected Dr. Reichwald s opinion in favor of the 16 conflicting opinions of examining and reviewing doctors, all of whom 17 found no mental limitations beyond those already accounted for in the 18 ALJ s residual functional capacity assessment. (AR at 736). 19 David E. Sones, M.D., an agreed medical examiner, evaluated 20 Plaintiff in May 2008 and diagnosed Plaintiff with adjustment disorder 21 with mixed anxiety and depressed mood. (AR at 421). Dr. Sones assessed 22 Plaintiff with a GAF score of 54, indicating moderate difficulty in 23 social, occupational, or school functioning. (AR at 426). Nevertheless, 24 Dr. Sones concluded that from a psychiatric standpoint, Plaintiff was 25 capable of resuming his usual and customary work duties as a sales 26 person, without the need for any modifications. (AR at 426). Dr. Sones s 27 assessment of Plaintiff s work functioning was consistent with the 28 findings of the consultative examiners, Sohini P. Parikh, M.D. and 10 1 Douglas Larson, Ph.D. (AR at 392-436, 739-40, 835-45). In June 2008, Dr. 2 Parikh, diagnosed Plaintiff with mood disorder secondary to his physical 3 condition, but found that Plaintiff did not have any work related 4 psychological impairments. (AR at 435-36). In March 2010, Dr. Larson 5 diagnosed Plaintiff with mood disorder, NOS, with features of psychotic 6 disorder, NOS, and attention deficient hyperactivity disorder. (AR at 7 841). Dr. Larson assessed Plaintiff with mild to moderate mental 8 limitations in his ability to do complex work, to comply with job rules, 9 to respond to changes in the workplace, to maintain persistence and 10 pace, and to interact with supervisors, coworkers, and the public. (AR 11 841). The opinions of Drs. Sones, Parikh, and Larson were each supported 12 by independent clinical findings, and thus, constituted substantial 13 evidence upon which the ALJ properly relied. See Andrews, 53 F.3d at 14 1041. The opinions of the state agency reviewing psychiatrists, which 15 were consistent with the examining doctors s opinions and underlying 16 independent examinations, provided additional support for the ALJ s 17 rejection of Dr. Reichwald s opinion. (AR at 47, 437-47, 465-66); see 18 Tonapetyan, 242 F.3d at 1149 (holding that opinions of nontreating or 19 nonexamining doctors may serve as substantial evidence when consistent 20 with independent clinical findings or other evidence in the record); 21 Andrews, 53 F.3d at 1041 ( reports of the nonexamining advisor need not 22 be discounted and may serve as substantial evidence when they are 23 supported by other evidence in the record and are consistent with it ). 24 Accordingly, a remand or reversal is not warranted on this basis. 25 B. Credibility 26 Plaintiff contends that the ALJ failed to properly evaluate his 27 subjective complaints and credibility. (Joint Stipulation at 11-17, 19- 28 21). 11 1 The determination of credibility and the resolution of conflicts in 2 the testimony are 3 Commissioner. Morgan v. Commissioner of Social Security, 169 F.3d 595, 4 599 (9th Cir. 1999); Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996). 5 In general, an ALJ s assessment of credibility should be given great 6 weight. Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985). The ALJ may 7 employ ordinary techniques of credibility evaluation and may take into 8 account prior inconsistent statements or a lack of candor by the 9 witness. Fair v. Bowen, 885 F.2d 597, 604 n. 5 (9th Cir. 1989). Once a 10 claimant has presented medical evidence of an underlying impairment, the 11 ALJ may not discredit the claimant s testimony regarding subjective pain 12 and other symptoms merely because the symptoms, as opposed to the 13 impairments, 14 Lingenfelter, 504 F.3d at 1035-36; Reddick, 157 F.3d at 722; Light v. 15 Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). Absent evidence 16 showing that a claimant is malingering, the ALJ may reject a claimant s 17 testimony 18 specific, clear and convincing reasons for doing so. Lingenfelter, 19 504 F.3d at 1036 (quoting Smolen, 80 F.3d at 1281. It is not sufficient 20 for the ALJ to make only general findings. Dodrill v. Shalala, 12 F.3d 21 915, 918 (9th Cir. 1993) The ALJ must clearly identify evidence in the 22 record undermining the claimant s testimony to properly discredit his 23 alleged limitations. Id.; see also Reddick, 157 F.3d at 722 ( the ALJ 24 must 25 undermines 26 omitted). are about identify the functions of unsupported the what severity testimony claimant s the by of is ALJ acting objective his not complaints ) symptoms credible on behalf medical only and (citations the evidence. by what and of offering evidence quotations 27 Plaintiff claims that he was injured in July 2007 when a co-worker 28 kicked him in the back of the knees and knocked him to the ground. (RT 12 1 at 19-20, 746). 2 testified that he suffered from depression, sleep apnea, incontinence, 3 gout, fatigue, and pain in his low back, feet, and shoulders. (AR at 21- 4 24, 27, 49). According to Plaintiff, he could sit for only 15 minutes at 5 a time and stand for 15 minutes at a time. (AR at 24, 49). At his second 6 hearing in June 2010, Plaintiff testified that his condition had 7 deteriorated. (AR at 747). He had developed an impairment in his left 8 knee, which impeded his ability to walk. (AR at 748-49, 754). Plaintiff 9 also testified At his about first hearing increased in mental January 2009, instability, Plaintiff auditory 10 hallucinations, nightmares, and trouble interacting with people. (AR at 11 747-48, 751-54). 12 The ALJ found that while Plaintiff s medically determinable 13 impairments could reasonably be expected to cause symptoms, Plaintiff s 14 claims concerning the intensity, persistence and limiting effects of 15 those symptoms were not credible to the extent alleged. (AR at 50, 738). 16 The ALJ offered several reasons for discounting Plaintiff s credibility, 17 some of which were incorporated by reference from Decision #1. (AR at 18 737-38). The Court finds that the ALJ properly discredited Plaintiff s 19 testimony. 20 First, the ALJ found that the medical evidence conflicted with 21 Plaintiff s asserted limitations. 22 404.1529(c)(2) (explaining that the medical evidence is a relevant 23 factor in determining the severity of the claimant s pain and its 24 disabling effects). In particular, the ALJ cited the opinion of the 25 agreed medical evaluator, Dr. Samson, who found that Plaintiff could 26 resume normal activity, except for work involving significant bending, 27 stooping, kneeling, crouching, crawling, and lifting/carrying more than 28 twenty-five pounds. (AR at 53, 315-84). Dr. Samson s opinion was 13 (AR at 53); see 20 C.F.R. § 1 consistent with the opinions of the state agency physicians, who 2 concluded that Plaintiff was able to perform light work. (AR at 52, 385- 3 89, 465-66). The ALJ further noted that there was no medical evidence 4 that Plaintiff suffered from radiculopathy, motor or sensory deficits, 5 or muscle atrophy. (AR at 53, 254, 450, 829). And, while Plaintiff 6 appeared at one consultative exam using a cane, there was no evidence 7 that Plaintiff had ever been prescribed an assistive device to ambulate 8 nor had any doctor opined that a cane was required. (AR at 53, 125, 254, 9 737, 829). Though subjective symptom testimony cannot be rejected on the 10 sole ground that it is not fully corroborated by objective medical 11 evidence, the medical evidence was a legitimate and relevant factor to 12 be considered in assessing the severity of Plaintiff s pain and its 13 disabling effects. Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 14 1991) 15 corroborate claimant s subjective symptoms, so long as it is not the 16 only 17 Barnhart, 400 F.3d 676, 681 (9th Cir. 2005); Rollins v. Massanari, 261 18 F.3d 853, 856 (9th Cir. 2001). (ALJ reason may for consider lack discounting a of objective claimant s medical evidence credibility); Burch to v. 19 The ALJ also properly determined that Plaintiff s ability to 20 perform certain daily activities were at odds with his claims of 21 debilitating pain. (AR at 152-59, 737). At his hearings, Plaintiff 22 testified to extremely limited activities. (AR at 21-31, 749-55). For 23 example, Plaintiff testified that he waters the yard, lies on the couch 24 five hours a day, tries not to drive, does not help out around the 25 house, does not cook, does not help care for his pets, and is not good 26 with people. (AR at 21-31, 749-55). In a work function report, however, 27 Plaintiff admitted that he helps to feed his two dogs, sits outside, 28 maintains his personal care, prepares meals, washes dishes, dusts, 14 1 prunes plants, shops, and socializes with the mailman and the neighbors. 2 (AR 152-59). Thus, in discounting Plaintiff s credibility, the ALJ 3 properly relied on the inconsistencies between Plaintiff s testimony 4 about his extreme limitations and his admissions about things that he is 5 still able to do despite his impairments, as set forth in his work 6 function report. See Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 7 1227 (9th Cir. 2009); Curry v. Sullivan, 925 F.2d 1127, 1130 (9th Cir. 8 1990) (finding that the claimant s ability to take care of her personal 9 needs, prepare easy meals, do light housework and shop for some 10 groceries ... may be seen as inconsistent with the presence of a 11 condition which would preclude all work activity ) (citing Fair, 885 12 F.2d at 604); Light, 119 F.3d at 792 (inconsistencies between testimony 13 and conduct may be considered in weighing a claimant s credibility). 14 In sum, the ALJ articulated specific, clear and convincing reasons 15 for rejecting Plaintiff s subjective testimony. Smolen, 80 F.3d at 1284. 16 C. Lay Witness Opinion 17 In Decision #1, the ALJ found that Plaintiff s alleged mental 18 impairment was not severe, as it did not cause more than minimal 19 limitation in his ability to perform basic mental work activities for 20 more than 12 months. (AR at 45). In Decision #2, the ALJ determined that 21 Plaintiff s mood disorder was severe. (AR at 736). The ALJ found that 22 Plaintiff s mental impairment precluded Plaintiff from performing tasks 23 involving contact with the public and restricted Plaintiff to occasional 24 contact with co-workers and/or supervisors. (AR at 736). 25 Plaintiff contends that the ALJ failed to properly consider the 26 impact of his mental impairments on his ability to work at step two of 27 the sequential evaluation process. In particular, Plaintiff asserts that 28 the ALJ failed to properly consider a third party function report 15 1 submitted by Plaintiff s wife. (Joint Stipulation at 31; AR at 136-43). 2 Plaintiff s wife reported that she helped Plaintiff with general 3 activities of daily living, including feeding the dogs, cooking, 4 driving, and walking. (AR at 138-39). She also indicated that Plaintiff 5 had difficulty concentrating, became frustrated easily, could not climb 6 stairs, and was limited to carrying 20 pounds, walking 500 feet before 7 needing a rest, and standing 10 minutes. (AR at 140-42). 8 Lay witness testimony as to a claimant s symptoms or how an 9 impairment affects the ability to work is competent evidence that the 10 Commissioner must take into account. Nguyen v. Chater, 100 F.3d 1462, 11 1467 (9th Cir. 1996); 20 C.F.R. §§ 404.1513(d), 404.1545(a)(3). An ALJ 12 may disregard such evidence only if he gives reasons that are germane 13 to each witness. Dodrill, 12 F.3d at 919. 14 In Decision #2, the ALJ discounted the statement from Plaintiff s 15 wife to the extent it conflicted with the residual functional capacity 16 assessed by the ALJ. (AR at 737). The ALJ stated a germane reason for 17 rejecting Plaintiff s wife s statement, finding that it mirrored the 18 claimant s allegations, which were found to be not credible. (AR at 19 737); see Valentine v. Commissioner Social Sec. Admin., 574 F.3d 685, 20 684 (9th Cir. 2009) (explaining that where lay witness testimony is 21 similar to the properly rejected subjective symptom testimony of the 22 claimant, it follows that the ALJ also gave germane reasons for 23 rejecting her testimony ). Further, because Plaintiff s wife s statement 24 essentially repeated Plaintiff s own testimony, her statement was not 25 significantly probative and therefore, could be disregarded as such. See 26 Vincent on Behalf of Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 27 1984). Accordingly, reversal is not warranted on this claim. 28 IV. Conclusion 16 1 2 For the reasons stated above, the decision of the Commissioner is affirmed. 3 4 DATED: November 4, 2011 5 6 ______________________________ MARC L. GOLDMAN United States Magistrate Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17
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