James Leon Dowdy v. Michael J Astrue, No. 5:2011cv01111 - Document 15 (C.D. Cal. 2013)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle (ec)
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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 JAMES LEON DOWDY, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) NO. EDCV 11-1111-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on July 19, 2011, seeking review of the 19 denial of his application for supplemental security income ( SSI ). 20 August 18, 2011, the parties consented, pursuant to 28 U.S.C. § 636(c), 21 to proceed before the undersigned United States Magistrate Judge. 22 parties 23 which: 24 and remanding this case for the payment of benefits or, alternatively, 25 for further administrative proceedings; and the Commissioner requests 26 that his decision be affirmed or, alternatively, remanded for further 27 administrative proceedings. 28 // filed a Joint Stipulation on March 12, 2012, On The in plaintiff seeks an order reversing the Commissioner s decision 1 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 2 3 On October 5, 2007, plaintiff filed an application for SSI. 4 (Administrative Record ( A.R. ) 12.) 5 23, 1962 (A.R. 22),1 claims to have been disabled since January 1, 2002 6 (A.R. 7 depression, paranoia, suicidal 8 compulsive disorder, drug 9 replacement, inability to handle stress, and asthma. 12), due to both mental Plaintiff, who was born on April and physical thoughts, dependency, problems, including hallucinations, obsessive mood swings, left knee (A.R. 222.) 10 11 After the Commissioner denied plaintiff s claim initially and upon 12 reconsideration, plaintiff requested a hearing. 13 22, 2009, plaintiff, who was represented by an attorney, appeared and 14 testified at an initial hearing before Administrative Law Judge Michael 15 D. Radensky (the ALJ ). 16 Scott also testified. 17 for the supplemental hearing held on February 18, 2010, because he was 18 incarcerated. 19 were independent medical expert David Glassmire and vocational expert 20 David Rinehart. 21 claim 22 plaintiff s request for review of the ALJ s decision (A.R. 1-4). 23 decision is now at issue in this action. 24 // 25 // (A.R. (A.R. 12, 29-59.) (A.R. 29-59.) (A.R. 12, 60-82.) (Id.) 12-24), (A.R. 12.) On January Vocational expert Troy However, plaintiff did not appear Appearing and testifying at that time On April 2, 2012, the ALJ denied plaintiff s and the Appeals Council subsequently denied That 26 27 28 1 On the alleged disability onset date, plaintiff was 45 years old, which is defined as a younger individual. (Id.; citing 20 C.F.R. § 416.963.) 2 1 SUMMARY OF ADMINISTRATIVE DECISION 2 3 The ALJ found that plaintiff has not engaged in substantial gainful 4 activity since October 5, 2007, his application date (A.R. 14), and has 5 the following severe impairments: 6 neck and back; degenerative joint disease in the left knee; mood 7 disorder, not otherwise specified; anxiety disorder, not otherwise 8 specified; [and] polysubstance abuse. 9 plaintiff s impairments, including his substance abuse disorders, meet 10 sections 12.04(c)(2) and 12.09 of 20 C.F.R. Part 404, Subpart P, 11 Appendix 1 (20 C.F.R. § 416.920(d)). (Id.) degenerative disc disease in the (A.R. 15.) The ALJ found that 12 13 The ALJ found that, even if plaintiff stopped abusing substances, 14 his remaining limitations would constitute a severe impairment or 15 combination of impairments. 16 that plaintiff nonetheless would not have an impairment or combination 17 of impairments that meets or medically equals any of the impairments 18 listed 20 C.F.R. 19 § 416.920(d)). (Id.) in Part (A.R. 15.) 404, However, the ALJ further found Subpart P, Appendix 1 (20 C.F.R. 20 21 After reviewing the record, and presuming that plaintiff had 22 stopped his substance abuse, the ALJ determined plaintiff would have the 23 residual functional capacity ( RFC ) to perform light work as defined in 24 20 C.F.R. § 416.967(b). 25 plaintiff: (A.R. 16.) Specifically, the ALJ found that 26 27 could lift and/or carry 10 pounds frequently and 20 pounds 28 occasionally; [plaintiff] could stand and/or walk 2 hours in 3 1 an eight-hour workday, and sit for 6 hours in an eight-hour 2 workday; he could occasionally balance, stoop, kneel, crouch, 3 crawl, or climb ramps, stairs, ladders, ropes, or scaffolds; 4 [he] could frequently, but not constantly, use his right hand; 5 is limited to simple repetitive tasks; he is precluded from 6 interacting with the public, but he is allowed only non- 7 intense 8 [plaintiff] is precluded from tasks requiring hypervigilance 9 or fast paced work. interaction with co-workers and supervisors; 10 11 (Id.) 12 13 With those limitations, the ALJ concluded that plaintiff would be 14 unable to perform his past relevant work.2 (A.R. 22.) Given plaintiff s 15 RFC, 16 vocational 17 significant number of jobs in the national economy if he stopped his 18 substance abuse. 19 could work as an electronics worker, a sewing machine operator, and an 20 addresser. 21 plaintiff would not be disabled if he stopped his substance abuse, 22 plaintiff s substance abuse disorder is a contributing factor material 23 to the determination of disability under 20 C.F.R. § 416.935. (Id.) age, education,3 expert, the (Id.) (A.R. 23.) work ALJ experience, and found plaintiff that the testimony could of the perform a Specifically, the ALJ noted that plaintiff Accordingly, the ALJ concluded that, because 24 25 2 26 In his decision, the ALJ noted that the plaintiff has past relevant work as a car wash attendant, DOT 915.667-010, which is a light, unskilled job. (A.R. 22.) 27 3 28 The ALJ found that plaintiff has a high school education and is able to communicate in English. (Id.) 4 1 Thus, the ALJ found that plaintiff has not been disabled within the 2 meaning of the Social Security Act at any time from the date the 3 application was filed through the date of his decision. (A.R. 23.) 4 5 STANDARD OF REVIEW 6 7 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s 8 decision to determine whether it is free from legal error and supported 9 by substantial evidence in the record as a whole. Orn v. Astrue, 495 10 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is such relevant 11 evidence as a reasonable mind might accept as adequate to support a 12 conclusion. 13 a mere scintilla but not necessarily a preponderance. 14 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). 15 record can constitute substantial evidence, only those reasonably drawn 16 from the record will suffice. 17 1066 (9th Cir. 2006)(citation omitted). Id. (citation omitted). The evidence must be more than Connett v. While inferences from the Widmark v. Barnhart, 454 F.3d 1063, 18 19 Although this Court cannot substitute its discretion for that of 20 the Commissioner, the Court nonetheless must review the record as a 21 whole, weighing both the evidence that supports and the evidence that 22 detracts from the [Commissioner s] conclusion. 23 Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 24 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 25 responsible for determining credibility, resolving conflicts in medical 26 testimony, and for resolving ambiguities. 27 1035, 1039 (9th Cir. 1995). 28 5 Desrosiers v. Sec y of The ALJ is Andrews v. Shalala, 53 F.3d 1 The Court will uphold the Commissioner s decision when the evidence 2 is susceptible to more than one rational interpretation. Burch v. 3 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 4 review only the reasons stated by the ALJ in his decision and may not 5 affirm the ALJ on a ground upon which he did not rely. 6 at 630; see also Connett, 340 F.3d at 874. 7 the Commissioner s decision if it is based on harmless error, which 8 exists only when it is clear from the record that an ALJ s error was 9 inconsequential to the ultimate nondisability determination. Robbins 10 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 11 Comm r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d 12 at 679. However, the Court may Orn, 495 F.3d The Court will not reverse 13 14 DISCUSSION 15 16 Plaintiff claims that the ALJ: (1) improperly considered the 17 relevant medical evidence; and (2) improperly discounted the credibility 18 of plaintiff and his girlfriend. 19 4-12, 21-28.) (Joint Stipulation ( Joint Stip. ) at Each of these claims lacks merit. 20 21 22 I. The ALJ Properly Considered The Medical Evidence In The Record. 23 24 It is the responsibility of the ALJ to analyze evidence and resolve 25 conflicts in medical testimony. Magallanes v. Bowen, 881 F.2d 747, 750 26 (9th Cir. 1989). 27 assessing a social security claim, [g]enerally, a treating physician s 28 opinion carries more weight than an examining physician s, and an In the hierarchy of physician opinions considered in 6 1 examining physician s opinion carries more weight than a reviewing 2 physician s. 3 2001); 20 C.F.R. § 416.927(d). Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 4 5 The opinions of treating physicians are entitled to the greatest 6 weight, because the treating physician is hired to cure and has a better 7 opportunity to observe the claimant. Magallanes, 881 F.2d at 751. When 8 a treating physician s opinion is not contradicted by another physician, 9 it may be rejected only for clear and convincing reasons. Lester v. 10 Chater, 81 F.3d 821, 830 (9th Cir. 1995). When contradicted by another 11 doctor, a treating physician s opinion may only be rejected if the ALJ 12 provides specific and legitimate reasons supported by substantial 13 evidence in the record. Id. 14 15 The opinion of a nonexamining physician cannot by itself 16 constitute substantial evidence that justifies the rejection of the 17 opinion of . . . a treating physician. 18 Pitzer v. Sullivan, 908 F.2d 502, 506 n.4 (9th Cir. 1990)(finding that 19 the 20 constitute substantial evidence). 21 claimant s treating physician is contradicted, and the opinion of a 22 nontreating source is based on independent clinical findings that differ 23 from those of the treating physician, the opinion of the nontreating 24 source may itself be substantial evidence. 25 Independent clinical findings include (1) diagnoses that differ from 26 those offered by another physician and that are supported by substantial 27 evidence, or (2) findings based on objective medical tests that the 28 treating physician has not herself considered. nonexamining physician s opinion Lester, 81 F.3d at 831; see with nothing more did not However, [w]here the opinion of the 7 Andrews, 53 F.3d at 1041. Orn, 495 F.3d at 632 1 (internal citations omitted). 2 3 Plaintiff alleges four sources of reversible error in the ALJ s 4 treatment of the relevant medical evidence: (A) failure to properly 5 consider the opinion of Nancy A. McCarthy, M.D., a treating physician; 6 (B) failure to properly consider the opinion of Shellee Pollard, a 7 social worker; (C) failure to acknowledge plaintiff s use of a cane for 8 ambulation; and (D) failure to comment on plaintiff s Global Assessment 9 of Functioning ( GAF ) scores. (Joint Stip. at 4-12.) 10 11 A. The ALJ Properly Considered The Medical 12 Opinion Of Dr. McCarthy, Plaintiff s Treating 13 Physician. 14 15 Plaintiff claims the ALJ failed to properly consider the opinions 16 of treating sources, including a medical source statement from Dr. 17 McCarthy, M.D., which appears in the Administrative Record at AR1142- 18 1146. (Joint 19 questionnaire cited by plaintiff, Dr. McCarthy opined: Stip. at 6.) At the end of the medical disorder 20 21 Patient is totally disabled and is expected to be for life. 22 Patient 23 direction 24 patient[ ]s capacity to interact appropriately with others, 25 communicate effectively, concentrate, complete tasks, and 26 adapt to stresses common to the work environment (including 27 the pressures of time, supervision & decision making) are 28 severely impaired. requires to a significant perform activities degree of of daily assistance and living. The This patient would not be reliable in 8 1 reporting for work, carrying out simple, repetitive tasks. 2 This patient has poor frustration tolerance, and has a limited 3 ability to interact w[ith] the public, peers and supervisors. 4 Current medications are needed to stabilize in the community. 5 6 (A.R. 1146.) 7 8 The ALJ only explicitly rejected Dr. McCarthy s opinion insofar as 9 it expressed the opinion that plaintiff was disabled and could not work. 10 (A.R. 19.) Specifically, the ALJ rejected Dr. McCarthy s conclusion 11 that plaintiff s mental limitations prevent him from sustaining full 12 employment. 13 express an opinion on an issue reserved to the Commissioner, and the 14 undersigned 15 disability. 16 a medical source that you are disabled or unable to work is not a 17 medical opinion, and receives no special significance in the ALJ s 18 disability determination. 19 the extent Dr. McCarthy opined that plaintiff could not work, the ALJ 20 provided a specific and legitimate reason for disregarding this opinion. (Id.) The ALJ correctly observed that these statements disregards this conclusion (Id.; emphasis added) regarding the claimant s As the ALJ noted, a statement by (Id.; 20 C.F.R. § 416.927). Therefore, to 21 22 To the extent that Dr. McCarthy s mental disorder questionnaire 23 merited consideration as a medical opinion, as distinguished from a non- 24 medical 25 expressly reject it. 26 of Dr. McCarthy s opinion, as contained in the record. 27 stating, The undersigned has read and considered the total disability 28 statements made by Nancy A. McCarthy, M.D., a staff psychiatrist at the conclusion about plaintiff s disability, the ALJ did not The ALJ stated that he had read and considered all 9 (A.R. 19, 1 parole outpatient clinic (Exs. 8F, pp. 7-11 and 11F, p. 2). ). The ALJ 2 then expressly acknowledged the frequency and duration with which Dr. 3 McCarthy or her staff treated plaintiff. (Id., stating, claimant has 4 sought treatment once or twice a month, from April 2, 2007 to April 28, 5 2008. ) 6 that, if the [plaintiff] was medication compliant, his ability to 7 remain stable 8 omitted.) Upon consideration of all the medical evidence, including Dr. 9 McCarthy s opinion, the ALJ determined that, if plaintiff stopped 10 abusing substances (and presumably was compliant with his medication), 11 he would maintain the mental capacity for simple repetitive tasks and 12 non-intense interaction with co-workers and supervisors, but would be 13 precluded 14 hypervigilance or fast paced work. Furthermore, the ALJ expressly noted Dr. McCarthy s opinion in from the community interaction is with more likely. the public and (Id.; tasks citations requiring (A.R. 16.) 15 16 There is nothing in Dr. McCarthy s medical opinion that directly 17 contradicts this assessment. (A.R. 16, 1142.) As to plaintiff s social 18 functioning, Dr. McCarthy opined, 19 20 [plaintiff] has little capacity to interact well with others 21 for 22 inappropriate with others as he misreads social cues and his 23 paranoid ideations remain acute. 24 with 25 probl[em]s with neighbors. 26 acute with his less[en]ed abil[i]ty to interact well with 27 others unless he is medication compliant. any longer family, perio[d]s landlords, of or time. He easily becomes He cannot communicate well fellow employees. He has These behaviors have become more 28 10 1 (A.R. 1144; emphasis added.) 2 3 As to plaintiff s concentration and task completion, Dr. McCarthy 4 opined that [plaintiff] cannot sustain focus on everyday household 5 routines. 6 problems concentrat[ing] as he is easily distracted. He cannot follow simple instructions oral or written. He has (Id.) 7 8 In fact, these very symptoms and limitations were recognized and 9 taken into account by Dr. Glassmire, the medical expert, whose opinion 10 the ALJ credited in formulating plaintiff s mental RFC assessment. 11 ALJ 12 credible. 13 abuse, plaintiff would have mild difficulty with activities of daily 14 living; moderate difficulty with social functioning; moderate difficulty 15 with concentration persistence and pace. 16 findings, Dr. Glassmire - in the very language of the ALJ s RFC 17 assessment - opined that plaintiff was limited to simple repetitive 18 tasks, no interaction with the public; non-intense interaction with co- 19 workers;. . .[no] tasks involving hypervigilance or fast paced work. 20 (Id.) found the testimony (A.R. 20.) of medical expert Dr. Glassmire The highly Dr. Glassmire opined that, absent substance (Id.) Based on these 21 22 In short, the ALJ s decision is not inconsistent to any significant 23 degree with the opinion of treating physician Dr. McCarthy. However, to 24 the extent that Dr. McCarthy s medical opinion could be read to suggest 25 that plaintiff could neither perform simple, repetitive tasks nor engage 26 in non-intense interactions with co-workers, the ALJ provided specific 27 and legitimate reasons, supported by substantial evidence in the record, 28 for rejecting those implications. First, the ALJ noted that, while 11 1 plaintiff did not apply for SSI benefits until October 5, 2007, Dr. 2 McCarthy 3 beginning on April 2, 2007. 4 significant amount of the treatment records are from the period of time 5 prior to [plaintiff s] eligibility for benefits )4; see Dotson v. Astrue, 6 2011 U.S. Dist. LEXIS 52751 at *18 (E.D. Cal. May 17, 2011)(noting that 7 an opinion rendered almost a year before the filing of plaintiff s SSI 8 application was stale and not time-relevant to [p]laintiff s current 9 claim of disability, especially as compared to another opinion rendered based her medical opinion on examinations of plaintiff (A.R. 18, in which the ALJ noted that a 10 one month after the application was filed). Second, the ALJ noted Dr. 11 McCarthy s comment that plaintiff will have an increased ability to 12 remain stable if he takes his medication as directed. 13 1145.) 14 treating physician Dr. Gurmit Sekhon, at the Arrowhead Medical Center, 15 who also opined that plaintiff responded to the medication in the 16 past 17 Impairments that can be controlled effectively with medication are not 18 disabling for purposes of determining eligibility for SSI benefits. 19 Warre v. Comm r, 439 F.3d 1001, 1006 (9th. Cir. 2006). 20 gave 21 consultative examiner, and State agency review physicians, finding all (See A.R. 19, The ALJ also noted the contemporaneous report by plaintiff s and would significant be stabilized weight to on the medication. opinions of (A.R. the 19, 1250.) Lastly, the ALJ medical expert, 22 23 24 25 26 27 28 4 As the ALJ correctly notes, plaintiff did not apply for SSI until October 5, 2007. Thus, while the ALJ considered plaintiff s complete medical history, including records that pre-date plaintiff s SSI application, the relevant period for determining whether plaintiff is entitled to benefits is the period beginning on October 5, 2007. See 43 U.S.C. § 1382(c)(7)(noting that an application of an individual for SSI benefits shall be effective on the later of the first day of the month following the date such application is filed or the first date of the month following the date such individual becomes eligible for such benefits with respect to such application ); see also 20 C.F.R. §§ 416.330, 416.335. 12 1 of these physicians are generally consistent in [opining] that 2 [plaintiff] is able to perform work as determined by the [RFC] herein. 3 (A.R. 22.) 4 5 On January 22, 6 consultative 7 evidence or impairment in [plaintiff s] ability to understand, remember 8 and carry out job instructions, maintain attention, concentration, 9 persistence and pace, relate and interact with supervisors, coworkers examiner, 2008, licensed Clifford Taylor, clinical Ph.D., psychologist found no and credible 10 and the public or adapt to day-to-day work activities . . . . (A.R. 11 1089-90.) 12 Smith, M.D., opined that plaintiff had no difficulty in maintaining 13 social functioning and maintaining concentration, persistence, or 14 pace. 15 second consultative examination, and in consideration of plaintiff s 16 history of homelessness, poor social interactions, strong criminal 17 history, and drug abuse history, Dr. Taylor found evidence of moderate 18 impairment in [plaintiff s] ability to understand, remember, and carry 19 out job instructions, maintain attention, concentration, persistence and 20 pace, and marked impairment in [plaintiff s] ability to relate and 21 interact with supervisors, coworkers, and the public. On February 20, 2008, State agency psychiatrist Barbara A. (A.R. 1105.) On October 16, 2009, Dr. Taylor conducted a (A.R. 1331.) 22 23 Notably, the ALJ gave plaintiff a more restrictive mental RFC than 24 either the State agency physicians or the consultative examiner. 25 16, 20.) Therefore, if Dr. McCarthy s medical opinion is construed to 26 suggest that plaintiff could neither complete simple, repetitive tasks 27 nor engage in non-intense interactions with coworkers, her opinion is 28 contradicted by the opinions of non-treating physicians, which are 13 (A.R. 1 supported by independent clinical findings. 2 See Andrews, 53 F.3d at 1041. 3 4 The ALJ gave specific and legitimate reasons for rejecting Dr. 5 McCarthy s opinion to the extent it conflicted with the ALJ s assessment 6 of plaintiff s mental RFC. 7 assessment of Dr. McCarthy s opinion. As a result, the ALJ did not err in his 8 9 B. The ALJ Properly Considered The Opinion Of 10 Plaintiff s Social Worker, Shellee Pollard. 11 12 Plaintiff also complains that the ALJ failed to properly consider 13 the opinion of plaintiff s social worker, Shellee Pollard, LCSW, at the 14 parole outpatient clinic. (Joint Stip. at 10.) Specifically, plaintiff 15 points to Ms. Pollard s finances notes from February 11, 2008, which 16 read: 17 18 Patient is recommended for SSI. 19 and 20 significant degree of assistance and direction to perform 21 activities of daily living. 22 interact appropriately with others, communicate effectively, 23 concentrate, complete tasks, and adapt to stresses common to 24 the 25 supervision 26 However, he is currently working in sales and believes he can 27 work and will try it. is expected work to environment and be for Patient is totally disabled life. requires a This patient s capacity to (including decision Patient making), 28 14 the are pressures of time, severely impaired. 1 (Id., relying on A.R. 1112; emphasis added.) 2 3 The social worker s report does not establish that plaintiff was 4 incapacitated. First, for the same reason that plaintiff s treating 5 physician may not usurp the role of the ALJ in determining plaintiff s 6 disability, neither may plaintiff s social worker. Thus, the social 7 worker s disabled 8 expected to be for life is not controlling. 9 Second, as a social worker, Ms. Pollard is not considered an acceptable conclusion that [plaintiff] is totally 20 C.F.R. § 416.913(a),(d). and is 20 C.F.R. § 416.927(d). 10 medical source. 11 public and private social welfare agency personnel as other sources, 12 20 C.F.R. § 416.913(d)(3), and the ALJ may expressly disregard lay 13 testimony if he gives reasons germane to each witness for doing so. 14 Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001). 15 not address the quoted finances notes, he did address plaintiff s most 16 recent CDC parole reports, dated February 25, 2008, in which Ms. 17 Pollard 18 plaintiff s finances. (A.R. 19, 1108-09.) In particular, the ALJ noted 19 Ms. Pollard s statement that [plaintiff] reported he was taking his 20 medication and [it] was working to keep his symptoms under control[]. 21 (Id.) 22 testimony, because plaintiff s self-reporting as to the efficacy of his 23 medication belies Ms. Pollard s assessment of the nature and severity of 24 plaintiff s limitations.5 reiterated, verbatim, her February The regulations treat 11, While the ALJ did 2008 appraisal of This was an appropriate reason for disregarding Ms. Pollard s (Id.) 25 26 5 27 28 Moreover, Ms. Pollard s opinion of plaintiff s work-related limitations was reasonably credited in plaintiff s RFC, which limited him to simple, repetitive, non-hypervigilant tasks and non-intense interaction with co-workers. (A.R. 16.) 15 1 2 Therefore, the ALJ did not err in disregarding a portion of Ms. Pollard s reports. 3 4 C. The ALJ Committed No Reversible Error By 5 Excluding Plaintiff s Use Of A Cane From His 6 RFC Assessment. 7 8 Plaintiff contends that the ALJ erred in his RFC assessment and 9 hypothetical questions 10 hypothetical 11 plaintiff needs to use a cane whenever standing or walking. 12 Stip. at 4.) Plaintiff relies on the vocational expert s testimony, and 13 argues that the ALJ erred in ignoring the reduction in jobs that 14 resulted from plaintiff s use of a cane: questions to the vocational to fail[ed] expert, the include because his requirement that (Joint 15 16 Question: []If the individual were using a cane when standing 17 or walking, would that have any effect on the jobs 18 you identified? 19 Answer: Not the addresser, [which] would not be impacted. 20 Both the sewing machine operator and electronics 21 worker need to move finished products when they 22 accumulate to some type of central place. 23 on 24 reasonably close I don t see a significant impact. 25 It s almost a job by job situation. 26 opinion it might be wise to erode the figures I ve 27 provided 28 repositories. how far by that 50% central to 16 rule place out is. the Depends If it s I guess in my far distance 1 Question: You re saying that at some point in time they have 2 to like push a bin with finished product somewhere 3 or carry a basket, or these sort of things? 4 Answer: Exactly. (AR79) 5 6 (Joint Stip. at 5.) 7 8 9 The ALJ s failure to credit plaintiff s cane usage does not constitute reversible error. As the ALJ expressly noted at the hearing, 10 [plaintiff] asserted he has been using a cane for 10 to 15 years. 11 (A.R. 17; emphasis added.) 12 assertion in the record. 13 total knee replacement in 2005 (A.R. 18), and a physician s note dated 14 January 26, 2007, indicates that plaintiff then required use of a knee 15 brace and a cane (A.R. 18, 1065). 16 March 27, 2007, likewise indicated plaintiff used a cane for ambulation. 17 (A.R. 1147.) 18 indicated 19 limits] (A.R. 1158), and no parole reports during the relevant period 20 beginning 21 indicate any cane usage (A.R. 1061-79). 22 plaintiff s adult function report, dated April 14, 2008, in which 23 plaintiff indicated that he used a cane.6 24 report plaintiff stated he could perform certain daily living activities 25 such as cleaning, watching television, maintaining personal care, However, there is little support for this The ALJ noted that plaintiff underwent a left A face-to-face parole report dated However, by September 12, 2007, plaintiff s parole report that plaintiff s October 5, 2007 gait -- and movement plaintiff s SSI [are within application normal date -- The ALJ read and considered (A.R. 17, 304.) In the same 26 27 28 6 The ALJ failed to mention an earlier adult function report completed by plaintiff only five months earlier, on October 25, 2007, in which plaintiff reported neither problems with squatting, bending, standing, or walking, nor any need to use a cane. (A.R. 258-59.) 17 1 riding in a car, and attending church a couple times a month. (A.R. 17, 2 298-302.) 3 plaintiff, the ALJ reasoned that [plaintiff] s ability to participate 4 in 5 credibility of the [plaintiff] s allegations of functional limitations. 6 (A.R. 17.) the Thus, although activities of exertional daily living, limitations stated were above, alleged undermined by the 7 8 Moreover, the ALJ read and considered the third party function 9 reports submitted by plaintiff s girlfriend, Katarena Loven, on October 10 26, 2007, and April 14, 2008, respectively. 11 plaintiff asserted that he used a cane throughout that time period, only 12 the 13 limitations or need to use a cane. latter of Ms. Loven s two reports (A.R. 17-18.) identifies any Although exertional (A.R. 241-48, 286-93.) 14 15 Thus, the only evidence of plaintiff s cane usage during the 16 relevant period is in the inconsistent testimony of plaintiff and his 17 girlfriend - individuals who, for reasons discussed below, the ALJ 18 found lacked credibility. 19 support plaintiff s alleged need to use a cane, the ALJ did not err by 20 excluding such purported cane usage from plaintiff s RFC, and his 21 hypothetical questions to the vocational expert. 22 Apfel, 240 F.3d 1157, 1164-65 (9th Cir. 2001)(ALJ not bound to accept as 23 true the restrictions set forth in hypothetical if they were not 24 supported by substantial evidence). Given the lack of credible evidence to See Osenbrock v. 25 26 Further, even assuming arguendo that the ALJ erred, any omission of 27 plaintiff s asserted need to use a cane from the RFC determination and 28 the hypothetical to the vocational expert would have been harmless. See 18 1 Stout, 454 F.3d at 1056 (where ALJ s error lies in a failure to properly 2 discuss evidence favorable to the claimant, a reviewing court cannot 3 consider the error harmless unless it can confidently conclude that no 4 reasonable ALJ, when fully crediting the evidence, could have reached a 5 different disability determination). As noted by plaintiff, even after 6 accounting for plaintiff s alleged cane usage, the vocational expert 7 still opined that plaintiff could perform jobs existing in significant 8 numbers in the local and national economies. (A.R. 79.) 9 10 Specifically, the vocational expert testified that cane usage would 11 have no effect on plaintiff s ability to work as an addresser and would 12 only erode the numbers of jobs as machine operator and electronics 13 worker by 50%. 14 vocational expert opined there were 4,550 such jobs available locally 15 and 89,000 such jobs available nationally. 16 usage, those numbers drop to 3,175 and 56,000 respectively.7 17 Circuit has held that fewer jobs in the local economy constitute 18 significant numbers. 19 (9th Cir. 1998)(reviewing district court decisions within this circuit 20 and holding 2,466 jobs constitute a significant number under the case 21 law from other circuits and district courts within this circuit). 22 Although plaintiff hints that this Court should consider the population 23 of the local region, which plaintiff asserts exceeds 15,000,000 (Joint (A.R. 79.) Without consideration of the cane, the (A.R. 76-77.) With cane The Ninth See Barker v. Secretary, 882 F.2d 1474, 1478 24 25 26 27 28 7 Available locally and nationally, there were, respectively, 1,400 and 32,000 electronics worker positions, 1,350 and 34,000 sewing machine operator positions, and 1,800 and 23,000 addresser positions. (A.R. 76-77.) Halving only the electronics worker numbers to 700 and 16,000, and the sewing machine operator numbers to 675 and 17,000, the resulting jobs available to plaintiff would total 3,175 locally and 56,000 nationally. 19 1 Stip. at 5), the plain language of the regulations do not contemplate 2 a ratio analysis. Martinez v. Heckler, 800 F.2d 771, 775 (9th Cir. 3 1986)(declining to ignore the number of jobs that plaintiff is able to 4 perform and to analyze the ratio of jobs to the general population of 5 the Greater Metropolitan Los Angeles and Orange County areas). 6 reasonable ALJ could have reached a different disability determination 7 given this precedent. 8 account 9 harmless. for plaintiff s No Therefore, to the extent the ALJ failed to alleged cane usage appropriately, it was 10 11 12 For these reasons, the ALJ s treatment of plaintiff s alleged need to use a cane does not constitute reversible error. 13 14 D. The ALJ Properly Considered Plaintiff s GAF 15 Scores In Determining Plaintiff s RFC. 16 17 Lastly, plaintiff objects to the ALJ s failure to comment on three 18 GAF scores - a 41, 34, and 48 - which, according to plaintiff, 19 indicate he is non-functional. 20 have recognized that an ALJ s failure to mention a GAF score does not 21 render his assessment of a claimant s RFC deficient. Chavez v. Astrue, 22 699 F. Supp. 2d 1125, 1135 (C.D.Cal. 2009)(collecting cases). 23 cases cited in Chavez make clear, an ALJ s assessment of the medical 24 evidence is not deficient simply because he fails to mention GAF scores 25 of record. (Joint Stip. at 10.) Federal courts As the Id. 26 27 All three of the GAF scores on which plaintiff relies were assessed 28 while plaintiff was incarcerated in 2003 and 2006 (A.R. 353, 357, 371) 20 1 -- to wit, before the relevant time period at issue in this case. 2 Further, the ALJ considered plaintiff s GAF scores from the relevant 3 period. 4 shortly thereafter on April 20, 2009, plaintiff was assessed with GAF 5 scores of 20 and 55 respectively, but that plaintiff was then abusing 6 alcohol, marijuana, cocaine, and PCP. 7 acknowledged that, on October 16, 2009, the consultative examiner 8 diagnosed plaintiff with polydrug abuse and dependence and gave the 9 [plaintiff] a GAF score of 50. (A.R. 19-21.) The ALJ noted that on April 16, 2009, and (A.R. 19-20.) The ALJ also (A.R. 21.) The ALJ found that 10 plaintiff s GAF scores had little evidentiary value, because they are 11 subjectively assessed scores reveal[ing] only snapshots of impaired and 12 improved behavior, and he preferred, instead, to give[] more weight to 13 the objective details and chronology of the record. 14 The ALJ explained his reasoning with respect to plaintiff s GAF scores 15 adequately and properly considered plaintiff s GAF scores in conjunction 16 with the medical evidence as a whole. (A.R. 19, n.1.) 17 18 * * * * * 19 20 In sum, plaintiff has not identified any legal error in the ALJ s 21 treatment of the relevant medical evidence. Moreover, the ALJ s RFC 22 assessment is supported by substantial medical evidence. 23 first issue, therefore, does not warrant reversal or remand. Plaintiff s 24 25 26 II. The ALJ Properly Discounted The Credibility of Plaintiff And His Girlfriend. 27 28 Once a disability claimant produces objective medical evidence of 21 1 an underlying impairment that is reasonably likely to be the source of 2 claimant s subjective symptom(s), all subjective testimony as to the 3 severity of the symptoms must be considered. 4 F.3d 882, 885 (9th Cir. 2004); Bunnell v. Sullivan, 947 F.2d 341, 345 5 (9th Cir. 1991); see also 20 C.F.R. § 416.929(a) (explaining how pain 6 and other symptoms are evaluated). 7 malingering based on affirmative evidence thereof, he or she may only 8 find an applicant not credible by making specific findings as to 9 credibility and stating Moisa v. Barnhart, 367 [U]nless an ALJ makes a finding of clear and Robbins, 466 F.3d at 883. convincing reasons for 10 each. 11 weighing 12 reputation for 13 claimant s testimony 14 conduct; (3) the claimant s daily activities; (4) the claimant s work 15 record; and (5) testimony from physicians and third parties concerning 16 the nature, severity, and effect of the symptoms of which the claimant 17 complains. 18 2002); see also 20 C.F.R. § 416.929(c). a claimant s credibility truthfulness; or The factors to be considered in (2) between include: (1) inconsistencies the claimant s the claimant s either in the testimony and his See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 19 20 The ALJ also is required to consider the credibility of lay 21 testimony provided by family members and friends, who may provide their 22 own statements regarding a claimant s disabling symptoms. 23 Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009). 24 witness testimony, the ALJ must provide specific reasons that are 25 germane to each witness whose testimony he rejects. 26 testimony cannot be rejected merely because it is irrelevant to medical 27 conclusions 28 inconsistency with medical evidence is a germane reason to discredit lay or not supported by 22 medical Bruce v. If an ALJ rejects lay evidence, Id. id. While lay at 1116, 1 testimony. Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). 2 3 A. The ALJ Properly Determined That Plaintiff 4 Lacked Credibility. 5 6 The ALJ found that if [plaintiff] stopped the substance abuse, 7 [plaintiff s] medically determinable impairments could reasonably be 8 expected to produce the alleged symptoms. 9 although the ALJ cited affirmative evidence of malingering in the record 21), he did not make a specific (A.R. 18.) finding of Further, 10 (A.R. malingering. 11 Accordingly, the ALJ s reason for finding plaintiff to lack credibility 12 must be clear and convincing. 13 14 The ALJ stated that plaintiff s statements concerning the 15 intensity, persistence and limiting effects of [his] symptoms are not 16 credible to the extent they are inconsistent with [the ALJ s RFC] 17 assessment. 18 be not credible because of: 19 assertion regarding his functional limitations and his daily activities; 20 (2) plaintiff s extensive criminal history involving crimes of deception 21 and moral turpitude; and (3) inconsistencies between plaintiff s alleged 22 functional limitations and the objective medical evidence. 23 21.) 24 credibility determination. (A.R. 18.) More specifically, the ALJ found plaintiff to (1) inconsistencies between plaintiff s (A.R. 17- These reasons are adequate to support the ALJ s unfavorable 25 26 The ALJ s first ground for rejecting plaintiff s testimony - that 27 plaintiff s function report is internally contradictory -- is clear and 28 convincing. The ALJ considered plaintiff s April 14, 2008, adult 23 1 function report but found plaintiff only credible to the extent that he 2 can 3 [plaintiff] stated he could do the following activities of daily living 4 includ[ing]: 5 riding in a car, and attending church [a] couple times a month. 6 A.R. 298-302.) 7 hours to clean house because I do a thor[ou]gh job, and that he does so 8 everyday, sometimes 2x a day. 9 noted [plaintiff] stated he has exertional, postural, and mental do the work described herein. (A.R. 17.) He noted that cleaning, watching television, maintaining personal care, (Id., In particular, plaintiff explained that he takes 4 (A.R. 300.) At the same time, the ALJ 10 limitations that would make it difficult for him to work. (A.R. 17, 11 303-04.) 12 his ability to lift, squat, bend, stand, reach, walk, talk, hear, see, 13 remember, complete tasks, concentrate, understand, follow instructions, 14 use his hands, and get along with others. 15 claimed he could only walk two blocks before needing to rest and could 16 only pay attention for one minute at a time. 17 conceive how plaintiff could thoroughly clean house for four hours at a 18 time, sometimes twice a day, if he had trouble lifting, bending, 19 standing, completing tasks, using his hands, and concentrating for more 20 than a minute. 21 participate in the activities of daily living, stated above, undermined 22 the credibility of [plaintiff] s allegations of functional limitations. 23 (A.R. 17.) 24 adult function report provided a clear and convincing reason for finding 25 that plaintiff lacked credibility. Specifically, plaintiff alleged that his condition affected (A.R. 303.) (Id.) Plaintiff It is difficult to As the ALJ recognized, [plaintiff] s ability to Therefore, the internal contradictions within plaintiff s 26 27 Second, plaintiff s extensive criminal history was also a clear and 28 convincing reason supporting the ALJ s adverse credibility finding. 24 1 Felony convictions and convictions involving moral turpitude are a 2 proper basis for an adverse credibility determination. 3 Astrue, 504 F. Supp. 2d 814, 822 (C.D. Cal. 2007)(finding plaintiff s 4 convictions for false identification to a police officer and attempted 5 robbery supported the ALJ s adverse credibility finding). 6 explained, [plaintiff] has admitted to being incarcerated with charges 7 being one of moral turpitude or a crime of deception. 8 particular, the ALJ noted that plaintiff was charged with robbery which 9 makes his credibility highly suspect. (Id.) Albiderez v. As the ALJ (A.R. 18.) In Indeed, the exhibit that 10 the ALJ referenced shows that, in addition to plaintiff s numerous drug- 11 related convictions, plaintiff has been incarcerated for robbery, escape 12 from jail, and vehicle crimes. 13 history was a clear and convincing reason for finding that plaintiff 14 lacked credibility. (A.R. 346.) Thus, plaintiff s criminal 15 16 Finally, in view of the above findings, the inconsistency between 17 plaintiff s subjective testimony and the objective medical findings 18 provided an additional clear and convincing reason for finding that 19 plaintiff lacked credibility. As the ALJ detailed, multiple reports by 20 the consultative examiners contained evidence of malingering, which cast 21 doubt on plaintiff s credibility. 22 28, 23 plaintiff 24 performance was consistent with malingering memory impairment. 25 21.) The ALJ noted the consultative examiner s report that [plaintiff] 26 embellished his symptoms and made inconsistent statements and that 27 there was no credible evidence of a mental impairment as a result [of 28 plaintiff s] poor cooperation in the examination. 2008, at plaintiff s failed the (A.R. 20-21.) mental Test of status Memory 25 In fact, on January consultative Malingering examination, and (Id.) his poor (A.R. During a 1 January 9, 2008, internal medicine evaluation, the consultative examiner 2 noted that [plaintiff] was not a good historian. 3 16, 2009 mental status examination, on October 16, 2009, plaintiff s 4 performance was again consistent with malingering memory impairment. 5 (Id.) 6 report, which found inconsistencies between [plaintiff] s presentation 7 and 8 retardation range 9 work/school history. (Id.) At an October Additionally, the ALJ relied on the consultative examiner s history; [plaintiff] attained which were (Id.) IQ test inconsistent Taken scores with together, in his the the mental verbal reports and from 10 plaintiff s consultative examinations support the ALJ s conclusion that 11 plaintiff s 12 limiting effects of [his] symptoms are not credible to the extent that 13 they are inconsistent with [the ALJ s RFC] assessment. 14 Inconsistency with the objective medical evidence, thus, was a clear and 15 convincing reason for finding plaintiff s testimony lacked credibility. statements concerning the intensity, persistence and (A.R. 18.) 16 17 18 Accordingly, the ALJ gave clear and convincing reasons for discrediting plaintiff s testimony. 19 20 B. The ALJ Properly Determined That Plaintiff s 21 Girlfriend, 22 Katarena Loven, Also Lacked Credibility. 23 24 The ALJ read and considered the third party function reports 25 submitted by plaintiff s girlfriend, Katarena Loven, but [found] her 26 only credible to the extent that [plaintiff] can do the work described 27 [in the ALJ s RFC assessment]. 28 [t]he third party function report has very little probative value in (A.R. 17-18.) 26 The ALJ reasoned that, 1 that it mirrors [plaintiff] s function report and allegations. (A.R. 2 18.) 3 [had] the motivation to be helpful to [plaintiff] so he [could] receive 4 benefits, and her statements were not made under oath. 5 ALJ concluded that her assertions are not credible as they are not 6 supported by any medically determined impairment. The ALJ added that Ms. Loven is not a medical professional, she (Id.) The (Id.) 7 8 9 Plaintiff complains that the ALJ s reasoning is circular and constitutes reversible error. (Joint Stip. at 22-24.) He contends 10 that, [i]f we are to accept the ALJ s analysis of Ms. Loven s third 11 party 12 acceptable by the Administration . . . . 13 this, plaintiff asserts that the ALJ s determination makes no sense 14 whatsoever 15 predetermined decision to deny benefits in this case. 16 24.) statements, other there than would it is never the be a third party statement (Joint Stip. at 22.) ALJ s attempt to From support his (Joint Stip. at 17 18 Contrary to plaintiff s contention, however, the fact that Ms. 19 Loven s reports mirrored plaintiff s function report was a germane 20 reason 21 plaintiff s function report completed the very same day as her report 22 (A.R. 298-305), Ms. Loven reported that plaintiff is limited in lifting, 23 bending, 24 completing tasks, concentrating, understanding, following instructions, 25 and using his hands (A.R. 286-93). She likewise reported that plaintiff 26 cleans house four hours a day, engages in certain daily activities 27 including watching television, maintaining personal care, riding in a 28 car, and attending church a couple of times a month. for disregarding standing, Ms. reaching, Loven s walking, 27 statements. talking, Just like hearing, (Id.) in seeing, Given that 1 Ms. Loven s third party report made the same assertion as in plaintiff s 2 own report, which the ALJ properly found lacked credibility, the fact 3 that Ms. Loven s statements 4 reason for disregarding her essentially identical report. See Valentine 5 v. Astrue, 574 F.3d 685, 694 (9th Cir. 2009)(finding that because the 6 ALJ gave clear and convincing reasons for rejecting the claimant s 7 subjective testimony, the ALJ therefore gave germane reasons when he 8 rejected the similar testimony of claimant s wife). mirrored those of plaintiff was a germane 9 10 * * * * * 11 12 13 For all these reasons, the ALJ did not commit reversible error with respect to his credibility findings. 14 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 28 1 CONCLUSION 2 3 For the foregoing reasons, the Court finds that the Commissioner s 4 decision is supported by substantial evidence and is free from material 5 legal error. Neither reversal of the Commissioner s decision nor remand 6 is warranted. 7 8 Accordingly, IT IS ORDERED that Judgment shall be entered affirming 9 the decision of the Commissioner of the Social Security Administration 10 and dismissing this action with prejudice. IT IS FURTHER ORDERED that 11 the Clerk of the Court shall serve copies of this Memorandum Opinion and 12 Order and the Judgment on counsel for plaintiff and for defendant. 13 14 LET JUDGMENT BE ENTERED ACCORDINGLY. 15 16 DATED: January 31, 2013 17 18 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 29
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