Lisa Linnette Banta v. Michael J Astrue, No. 5:2011cv01302 - Document 24 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Jean P Rosenbluth, AFFIRMING THE COMMISSIONER AND DISMISSING ACTION. (See document for details.)(rla)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 LISA LINNETTE BANTA, 13 Plaintiff, 14 v. 15 MICHAEL J. ASTRUE, Commissioner of Social Security, 16 17 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. EDCV 11-1302 JPR MEMORANDUM OPINION AND ORDER AFFIRMING THE COMMISSIONER AND DISMISSING ACTION 18 19 I. PROCEEDINGS 20 Plaintiff seeks review of the Commissioner s final decision 21 denying her application for Social Security Disability Insurance 22 Benefits ( DIB ) under her account number and Widow s Insurance 23 Benefits ( WIB ) under her deceased husband s account number. 24 The parties consented to the jurisdiction of the undersigned U.S. 25 Magistrate Judge pursuant to 28 U.S.C. § 636(c). 26 filed a Joint Stipulation on May 15, 2012. 27 the Joint Stipulation under submission without oral argument. 28 For the reasons stated below, the Commissioner s decision is 1 The parties The Court has taken 1 affirmed and this action is dismissed. 2 II. 3 BACKGROUND Plaintiff was born on December 19, 1955. (Administrative 4 Record ( AR ) 77, 230.) 5 and died December 19, 2000. 6 school graduation equivalency diploma. (AR 92.) She worked as a 7 cashier and a communications operator. (AR 89.) She claims to 8 have been disabled since August 2, 2006 (AR 216, 230), although 9 she worked from November 1, 2007, until she was let go on August 10 11 Her husband was born October 11, 1952, (AR 215.) Plaintiff earned a high 14, 2008 (AR 89). On August 25, 2008, Plaintiff filed applications for DIB and 12 WIB, alleging that she was unable to work because of several 13 medical problems, including depression, migraines, seizure 14 disorder, and high blood pressure. 15 Plaintiff s application was denied, she requested a hearing 16 before an Administrative Law Judge ( ALJ ). 17 held on September 14, 2010, at which time Plaintiff appeared with 18 a lawyer and testified on her own behalf. 19 vocational expert also testified. 20 2010, the ALJ found that Plaintiff was not disabled within the 21 meaning of the Social Security Act. 22 2011, the Appeals Council denied Plaintiff s request for review 23 of the ALJ s decision. 24 III. STANDARD OF REVIEW 25 (AR 4-6.) (AR 77, 88, 216.) After (AR 74-76.) (AR 230-42.) (AR 242-47.) It was A On October 5, (AR 12-21.) On June 24, This action followed. Under 42 U.S.C. § 405(g), a district court may review the 26 decision of the Commissioner to deny benefits. 27 aside the Commissioner s decision when the ALJ s findings were 28 based on legal error or were not supported by substantial 2 The Court may set 1 evidence in the record as a whole. 2 F.3d 1033, 1035 (9th Cir. 2001); Smolen v. Chater, 80 F.3d 1273, 3 1279 (9th Cir. 1996). 4 scintilla, but less than a preponderance. 5 157 F.3d 715, 720 (9th Cir. 1998). 6 which a reasonable person might accept as adequate to support a 7 conclusion. 8 supports a finding, the court must consider the record as a 9 whole, weighing both evidence that supports and evidence that Id. Aukland v. Massanari, 257 Substantial evidence is more than a Reddick v. Chater, It is relevant evidence To determine whether substantial evidence 10 detracts from the [Commissioner s] conclusion. Aukland, 257 11 F.3d at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th 12 Cir. 1993)). 13 affirming or reversing that conclusion, a court may not 14 substitute its judgment for that of the Commissioner, and the 15 ALJ s decision must be upheld. 16 IV. If the evidence can reasonably support either Reddick, 157 F.3d at 720-21. THE EVALUATION OF DISABILITY 17 People are disabled for purposes of receiving Social 18 Security benefits if they are unable to engage in any substantial 19 gainful activity owing to a severe physical or mental impairment 20 that is expected to result in death or which has lasted, or is 21 expected to last, for a continuous period of at least 12 months. 22 42 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 23 (9th Cir. 1992). 24 A. The Five-Step Evaluation Process 25 The Commissioner follows a five-step sequential evaluation 26 process in assessing whether a claimant is disabled. 27 § 404.1520(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th 28 Cir. 1995) (as amended Apr. 9, 1996). 3 20 C.F.R. In the first step, the 1 Commissioner must determine whether the claimant is currently 2 engaged in substantial gainful activity; if so, the claimant is 3 not disabled and the claim is denied. 4 the claimant is not engaged in substantial gainful activity, the 5 second step requires the Commissioner to determine whether the 6 claimant has a severe impairment or combination of impairments 7 significantly limiting her ability to do basic work activities; 8 if not, a finding of not disabled is made. 9 If the claimant has a severe impairment or combination of § 404.1520(a)(4)(i). If § 404.1520(a)(4)(ii). 10 impairments, the third step requires the Commissioner to 11 determine whether the impairment or combination of impairments 12 meets or equals an impairment in the Listing of Impairments 13 ( Listing ) set forth at 20 C.F.R., Part 404, Subpart P, 14 Appendix 1; if so, disability is conclusively presumed and 15 benefits are awarded. 16 impairment does not meet an impairment in the Listing, the fourth 17 step requires the Commissioner to determine whether the claimant 18 has sufficient residual functional capacity ( RFC )1 to perform 19 his past work; if so, the claimant is not disabled. 20 § 404.1520(a)(4)(iv). 21 that she is unable to perform past relevant work. 22 F.2d at 1257. 23 case of disability is established. 24 the claimant has no past relevant work, the Commissioner then 25 bears the burden of establishing that the claimant is not § 404.1520(a)(4)(iii). If the claimant s The claimant has the burden of proving Drouin, 966 If the claimant meets that burden, a prima facie Id. If that happens or if 26 27 28 1 RFC is what a claimant can still do despite existing exertional and nonexertional limitations. 20 C.F.R. § 404.1545; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 4 1 disabled because she can perform other substantial gainful work 2 available in the national economy. 3 determination comprises the fifth and final step in the 4 sequential analysis. 5 966 F.2d at 1257. § 404.1520(a)(4)(v). That Id.; Lester, 81 F.3d at 828 n.5; Drouin, 6 B. 7 At step one, the ALJ found that Plaintiff engaged in The ALJ s Application of the Five-Step Process 8 substantial gainful activity as an Operator II for Verizon from 9 November 1, 2007, to August 14, 2008. (AR 14-15.) Thus, she was 10 not disabled during that period. 20 C.F.R. § 404.1520(a)(4)(i). 11 Because there were continuous 12-month periods during which 12 Plaintiff did not engage in substantial gainful activity, 13 however, the ALJ addressed those periods. 14 the ALJ found that Plaintiff had severe impairments of seizure 15 disorder, hypertension, and migraine headaches but concluded that 16 her mental impairment of depression did not cause more than 17 minimal limitation in her ability to perform basic mental work 18 activities and was therefore nonsevere. 19 concluded that Plaintiff s complaints of hoarding, obsessive 20 compulsive disorder, and back pain were not supported by any 21 objective evidence and were thus not medically determinable. 22 (Id.) 23 impairments did not meet or equal any of the impairments in the 24 Listing. 25 had the RFC to perform medium work 2 except lifting and/or (AR 15.) (Id.) At step two, The ALJ also At step three, the ALJ determined that Plaintiff s (AR 17.) At step four, the ALJ found that Plaintiff 26 27 28 2 Medium work is defined as work involving lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. 20 C.F.R. § 404.1567(c). A 5 1 carrying 50 pounds occasionally, 25 pounds frequently; standing 2 and walking for 6 hours; sit for about 6 hours; occasional 3 climbing of ladders, ropes and scaffolds; occasional stooping; 4 and avoid even moderate exposure to hazards such as machinery and 5 heights. 6 Plaintiff was capable of performing her past relevant work as a 7 telephone operator and cashier/checker and that such jobs existed 8 in significant number in the national economy. 9 Accordingly, the ALJ determined that Plaintiff was not disabled. 10 V. At step five, the ALJ found that (AR 20-21.) (AR 21.) 11 (AR 18-19.) 12 DISCUSSION Plaintiff contends the ALJ improperly (1) rejected the 13 opinion of her treating psychiatrist, Dr. Ochuko G. Diamreyan, 14 and therefore discounted the severity of her mental limitations 15 (J. Stip. 4-10); and (2) found that Plaintiff was not credible as 16 to the severity of her condition and limitations (id. at 14-19). 17 18 19 20 21 22 23 24 25 26 27 28 person capable of medium work is also capable of light work, which involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. § 404.1567(b). The regulations further specify that [e]ven though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. Id. A person capable of medium or light work is also capable of sedentary work, which involves lifting no more than 10 pounds at a time[,] occasionally lifting or carrying [small articles], and mostly sitting but occasionally walking and standing too. § 404.1567(a). 6 A. 1 Rejection of Treating Psychiatrist s Opinion 1. 2 Applicable Law Three types of physicians3 may offer opinions in social 3 4 security cases: (1) those who treat[ed] the claimant (treating 5 physicians); (2) those who examine[d] but d[id] not treat the 6 claimant (examining physicians); and (3) those who neither 7 examine[d] nor treat[ed] the claimant (non-examining 8 physicians). 9 opinion is generally entitled to more weight than the opinion of Lester, 81 F.3d at 830. A treating physician s 10 a doctor who examined but did not treat the claimant, and an 11 examining physician s opinion is generally entitled to more 12 weight than that of a nonexamining physician. Id. 13 The opinions of treating physicians are generally afforded 14 more weight than the opinions of nontreating physicians because 15 treating physicians are employed to cure and have a greater 16 opportunity to know and observe the claimant. 17 1285. 18 whether it was supported by sufficient medical data and was 19 consistent with other evidence in the record. 20 § 404.1527(c)(2). 21 supported by medically acceptable clinical and laboratory 22 diagnostic techniques and was not inconsistent with the other 23 substantial evidence in the record, it should be given 24 controlling weight and should be rejected only for clear and Smolen, 80 F.3d at The weight given a treating physician s opinion depends on See 20 C.F.R. If a treating physician s opinion was well 25 26 27 28 3 For purposes of this memorandum opinion, the term physician or doctor includes psychologists and psychiatrists. See 20 C.F.R. § 404.1527(a)(2) (defining medical opinions as statements from physicians and psychologists or other acceptable medical sources ); Lester, 81 F.3d at 830 n.7. 7 1 convincing reasons. See Lester, 81 F.3d at 830; 2 § 404.1527(c)(2). 3 with other medical evidence or was not supported by clinical or 4 laboratory findings, the ALJ must provide only specific and 5 legitimate reasons for discounting that doctor s opinion. 6 v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). 7 to the evaluation of a treating physician s opinion include the 8 [l]ength of the treatment relationship and the frequency of 9 examination as well as the [n]ature and extent of the treatment When a treating physician s opinion conflicts Orn Factors relevant 10 relationship between the patient and the physician. 11 § 404.1527(c)(2)(i)-(ii). 2. 12 Applicable Facts In August and September 2006, Dr. Diamreyan examined 13 14 Plaintiff. (AR 141-45.) On September 29, 2006 over a year 15 before Plaintiff was gainfully employed full time for nine months 16 (AR 14) he prepared a Mental Disorder Questionnaire Form. 17 141-45.) 18 behavior as [a]nxious fearful restless and stated that she had 19 a depressed mood. 20 impaired, especially her immediate memory, and stated that her 21 insight and judgment were mildly impaired. 22 Diamreyan also explained that Plaintiff had suicide ideation 23 and indicated that she had recently attempted to overdose. 24 143.) 25 and talking obscenities, and other paranoia. 26 stated that Plaintiff needed help remembering things and that her 27 family had to help her with the activities of daily living. (AR 28 143-44.) (AR (AR Dr. Diamreyan described Plaintiff s attitude and (AR 142.) He described her memory as (AR 142.) Dr. (AR He noted her reports of hearing voices calling her name (AR 143.) He He indicated that her concentration was impaired. 8 1 144.) 2 like situations would be affected by her isolation, lack of 3 focus, level of frustration, and poor motivation, concentration, 4 and memory. 5 disorder single chronic with psychosis. 6 He concluded that her ability to adapt to work or work- (AR 144.) He diagnosed her with [m]ajor depressive (AR 145.) On November 16, 2006, Dr. John S. Woodard, a neurologist and 7 psychiatrist, evaluated Plaintiff as a consultative examiner in 8 response to her prior application for benefits. 9 Plaintiff complained about seizures, depression, and hypertension (AR 146-48.) 10 and indicated she was taking medication. 11 that she had a colloid cyst of the third ventricle removed in 12 1992, and although her condition had improved, she continued to 13 have a form of epileptic seizure. 14 number of tests, Dr. Woodard stated that her intellectual 15 function was grossly intact. 16 she had no abnormality with her sensory function. 17 displayed slight emotional tension and emotional 18 overreactivity. 19 colloid cyst, post surgical with epileptic seizures and 20 slight back strain. 21 seizures Dr. Woodard advised that Plaintiff must not undertake 22 any activities in which the event of a seizure would create a 23 hazard. 24 (AR 147.) (AR 146.) (AR 146.) (AR 147.) She reported After performing a He also stated that (AR 148.) She Dr. Woodard diagnosed her with (AR 147-48.) Because of the epileptic (AR 148.) On January 25, 2009, Dr. Jason H. Yang, a psychiatrist, 25 evaluated Plaintiff as a consultative examiner. 26 Plaintiff reported that she was taking an antidepressant but was 27 not seeing a psychiatrist or therapist and never had. 28 Dr. Yang assessed her level of functioning as being able to eat, 9 (AR 177-80.) (AR 178.) 1 dress, and bathe independently. (AR 179.) He also indicated 2 that she was able to do some household chores, run errands, shop, 3 cook, manage money, and drive herself. 4 evaluation also indicated that Plaintiff (AR 179.) Dr. Yang s 5 denies suicidal or homicidal thoughts at this time. 6 [Plaintiff] denies auditory or visual hallucinations, 7 or other psychotic symptoms presently. 8 were elicited. 9 (AR 179.) No delusions He reiterated that she was without signs of 10 perceptual disturbances or delusional disorders. (AR 180.) The 11 evaluation further stated that her thought processes were goal 12 directed and her memory and concentration were grossly intact. 13 (AR 179.) 14 carrying out simple and complex tasks, and that she had the 15 ability to tolerate the stress inherent in the work environment, 16 maintain regular attendance, and work without supervision. 17 180.) Dr. Yang concluded that she should have no problem (AR 18 On January 28, 2009, Dr. Bryan H. To performed an 19 independent internal-medicine evaluation of Plaintiff. 20 86.) 21 of Plaintiff, her [m]emory appears to be intact, she had no 22 problem with coordination, and her sensory was grossly 23 intact. 24 taking her medication for seizures and hypertension in August 25 2008 and was having two migraines a month and one seizure a week. 26 (AR 184.) 27 28 (AR 181- Dr. To indicated that based on his neurological assessment (AR 184.) Dr. To indicated that Plaintiff stopped On February 25, 2009, Dr. Henry Amado completed a Psychiatric Review Technique form. 10 (AR 196-209.) Dr. Amado 1 indicated that insufficient evidence existed that Plaintiff had 2 psychological or behavioral abnormalities, including memory 3 impairment. 4 insufficient evidence of psychotic disorders. 5 Amado found that Plaintiff had a depressive affect disorder (AR 6 199, 202) but concluded that the impairment was not severe (AR 7 199, 209). 8 Yang s evaluation and noted that [t]here is some prior psych- 9 related MER [medical evidence of record] in the paper folder, 10 suggesting a more severe condition in the past, but this MER 11 precedes the current AOD [alleged onset date]. (AR 200.) (AR 200-01.) Dr. In making this determination, Dr. Amado credited Dr. 3. 12 Dr. Amado also indicated that there was (AR 209.) Analysis In concluding that Plaintiff s medically determinable mental 13 14 impairment of depressive disorder was not severe the ALJ 15 attributed little weight to Dr. Diamreyan s mental disorder 16 questionnaire form. 17 legitimate reasons for this determination. 18 properly considered the brief duration of Plaintiff s mental- 19 health treatment by Dr. Diamreyan. 20 Dr. Diamreyan s questionnaire was completed after only a month of 21 treatment. 22 was examined for the first time on August 24, 2006, and her last 23 examination was September 29, 2006. 24 visits was every two weeks. 25 Dr. Diamreyan could have examined Plaintiff two or three times at 26 most. 27 undermined Dr. Diamreyan s assessment. 28 consider the length of treatment and frequency of examination in (AR 16.) The ALJ articulated three specific, First, the ALJ (AR 16.) The ALJ noted that According to the questionnaire, Plaintiff (AR 145.) (AR 145.) The frequency of Under that time frame, The brief duration of plaintiff's psychiatric treatment 11 The ALJ was entitled to 1 assessing the doctor s opinion. 2 (ii); see Edlund v. Massanari, 253 F.3d 1152, 1157 (9th Cir.) (as 3 amended Aug. 9, 2001); see also Carmickle v. Comm r, Soc. Sec. 4 Admin., 533 F.3d 1155, 1164 (9th Cir. 2008). 5 20 C.F.R. § 404.1527(c)(2)(i)- The ALJ s second reason for attributing little weight to 6 Dr. Diamreyan s mental disorder questionnaire form was that he 7 indicated that Plaintiff had a memory problem and diagnosed her 8 with psychosis (AR 142, 145), yet none of the consultative 9 examiners nor Plaintiff s general practitioner, Dr. Quion, 10 indicated that she had memory problems, and Plaintiff never 11 manifested any signs of psychosis to the consultative examiners 12 or Dr. Quion.4 13 concluded that Plaintiff denied psychotic symptoms and that her 14 memory was intact. 15 further stated that her thought processes are goal directed and 16 her memory, concentration, and sensory are grossly intact. 17 179, 184.) 18 signs or symptoms of psychosis. 19 entitled to assign more weight to these examinations because they 20 were conducted years after Dr. Diamreyan filled out the mental 21 disorder questionnaire, which predated Plaintiff s full-time (AR 16.) Rather, the consultative examiners (AR 179, 184, 200-01.) The evaluations (AR Dr. Quion s treatment notes also do not reflect any (AR 150-74.) The ALJ was also 22 23 24 25 26 27 28 4 The ALJ references three consultative examiners, but the citations provided in the ALJ s decision are to Dr. Yang s consultative psychiatric evaluation (AR 177-80), Dr. To s consultative internal-medicine evaluation (AR 181-86), and medical records provided by Dr. Quion, a general practitioner who treated Plaintiff on various occasions (AR 149-74). The ALJ possibly intended to cite to Dr. Amado s Psychiatric Review Technique form (AR 196-209) as the third consultative examiner s report. 12 1 job.5 2 predate employment are of limited relevance). See Carmickle, 533 F.3d at 1165 (medical opinions that 3 The ALJ s final reason for attributing less weight to Dr. 4 Diamreyan was that there were no treatment notes in the record 5 from the doctor of any kind, much less those recording treatment 6 or complaints of psychosis. 7 2006 questionnaire, there was no other evidence at all of memory 8 problems or psychosis. 9 of treatment notes in discounting Dr. Diamreyan s questionnaire. 10 See Lester, 81 F.3d at 830; Tonapetyan v. Halter, 242 F.3d 1144, 11 1149 (9th Cir. 2001) (ALJ properly rejected doctor s opinion when 12 no objective evidence, including treatment notes, supported 13 diagnosis). 14 (AR 16.) Outside of Dr. Diamreyan s The ALJ could properly rely on the lack Plaintiff faults the ALJ for relying on the lack of 15 treatment notes, claiming that it was the ALJ s responsibility to 16 develop the record; Plaintiff contends that the ALJ should have 17 asked her or her attorney, and they would have made every effort 18 to obtain these records from Dr. Diamreyan. 19 The ALJ has an independent duty to develop a record in order to 20 make a fair determination as to disability. 21 at 1150. 22 disabled. 23 (citing 42 U.S.C. § 423(d)(5) (Supp. 2001), and Clem v. Sullivan, 24 894 F.2d 328, 330 (9th Cir. 1990)); see also 20 C.F.R. (J. Stip. at 4-5.) Tonapetyan, 242 F.3d But it is the plaintiff s duty to prove that she is Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001) 25 5 26 27 28 Although not mentioned by the ALJ (perhaps because it was prepared for a prior application for benefits), Dr. Woodard s evaluation, conducted shortly after Dr. Diamreyan evaluated Plaintiff, further undermines Dr. Diamreyan s questionnaire. Plaintiff did not mention psychotic symptoms or memory problems to Dr. Woodard. (AR 146-48.) 13 1 § 404.1512(c) ( You must provide medical evidence showing that 2 you have an impairment(s) and how severe it is during the time 3 you say that you are disabled. ). 4 record further is triggered only when the record contains 5 ambiguous evidence or is inadequate to allow for proper 6 evaluation of the evidence. 7 Tonapetyan, 242 F.3d at 1150). 8 ambiguous and the record was not inadequate. 9 hearing the ALJ asked Plaintiff s counsel if he had anything to 10 add to the record, and he responded, I believe it is complete, 11 Your Honor. 12 benefits Plaintiff could have, but did not, submit any treatment 13 notes from Dr. Diamreyan to the Appeals Council for review. 14 4-6.) (AR 229.) An ALJ s duty to develop the Mayes, 276 F.3d at 459-60 (citing Here, the evidence was not Indeed, during the Moreover, after the ALJ s denial of (AR 15 Plaintiff points to two progress reports from Dr. Quion, 16 from 2008 and 2009, indicating that Dr. Quion assessed her as 17 suffering depression with anxiety and prescribed her 18 medication. 19 Diamreyan s questionnaire not because he disagreed with its 20 depression and anxiety diagnosis but rather for the reasons 21 outlined above. 22 Plaintiff had a medically determinable impairment of depressive 23 disorder but concluded that it did not cause more than minimal 24 limitation in Plaintiff s ability to perform basic mental work 25 activities. 26 finding. 27 28 (J. Stip. 6; AR 211, 213.) (AR 16.) (AR 15.) But the ALJ rejected Dr. Indeed, the ALJ acknowledged that Nothing in the record contradicts that Seemingly acknowledging that Dr. Diamreyan s questionnaire was insufficient to support her disability claim as she submitted 14 1 it, Plaintiff next faults the Commissioner and the ALJ for not 2 asking her to amend the alleged onset date from August 2, 2006, 3 to August 15, 2008, the date, she testified, when she could no 4 longer perform any work-related activity. 5 Plaintiff cites no authority for the proposition that the ALJ or 6 the Commissioner had a duty to inform her that she should amend 7 her onset date. 8 medical evidence supporting memory or psychosis problems even 9 after her substantial gainful employment for Verizon. (J. Stip. at 6-9.) Moreover, as discussed above, there was no See Lewis 10 v. Apfel, 236 F.3d 503, 510 (9th Cir. 2001) (Commissioner did not 11 err in denying requests to amend alleged onset date because 12 counsel did not inform ALJ before hearing of any change in 13 alleged onset date and record did not support alleged onset 14 date). 15 The ALJ was entitled to credit the findings of the 16 consultative doctors because they were supported by their 17 independent examination of Plaintiff and thus constituted 18 substantial evidence upon which the ALJ could properly rely to 19 reject Dr. Diamreyan s much older opinion. 20 F.3d at 1149. 21 reasons for rejecting Dr. Diamreyan s opinion. 22 Plaintiff s contentions do not warrant remand.6 See Tonapetyan, 242 The ALJ provided three specific and legitimate Accordingly, 23 24 25 26 27 28 6 Plaintiff contends that Dr. Yang found that Plaintiff would be limited to following simple one- and two-part instructions and therefore her depressive disorder impairment was severe even discounting Dr. Diamreyan s opinion. (J. Stip. at 5.) Plaintiff misstates Dr. Yang s comment. He never said she was limited to such tasks. Rather, Dr. Yang indicated that Plaintiff could carry[] out simple and complex tasks and should have no problem performing work duties. (AR 180.) 15 1 B. Adverse Credibility Determination 1. 2 3 Applicable Law An ALJ s assessment of credibility is entitled to great 4 weight. See Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 5 1989); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1986). 6 the ALJ finds a claimant s subjective complaints not credible, 7 the ALJ must make specific findings that support the conclusion. 8 See Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en 9 banc); Varney v. Sec y of Health & Human Servs., 846 F.2d 581, When 10 584 (9th Cir.), modified on reh g, 859 F.2d 1396 (9th Cir. 1988). 11 Absent affirmative evidence of malingering, the ALJ must give 12 clear and convincing reasons for rejecting the claimant s 13 testimony. 14 credibility finding is supported by substantial evidence in the 15 record, the ALJ s decision must be upheld, even if he relied on 16 some improper reasons in support of the finding. 17 533 F.3d at 1162-63. 18 supported by substantial evidence, the reviewing court may not 19 engage in second-guessing. 20 959 (9th Cir. 2002). 2. 21 22 Lester, 81 F.3d at 834. As long as the ultimate See Carmickle, If the ALJ s credibility finding is Thomas v. Barnhart, 278 F.3d 947, Analysis Here, the ALJ made four specific findings in support of his 23 adverse credibility determination regarding the severity of 24 Plaintiff s impairments and the limitations they allegedly 25 caused. 26 that her condition worsened because she was not able to afford 27 medication was inconsistent with her ability to accumulate and 28 care for up to 19 cats. (AR 19-20.) First, the ALJ concluded that her statement (AR 20.) 16 Second, the ALJ doubted 1 Plaintiff s allegations that she had seizures almost daily 7 and 2 that it took hours to recover from a seizure episode. 3 The ALJ stated that there was no objective medical evidence to 4 support this. 5 Plaintiff s credibility was further diminished by her lack of 6 compliance with her recommended treatment, citing evidence that 7 she consistently had sub-therapeutic levels of anti-seizure 8 medication in her blood. 9 credibility further reduced by evidence of her daily living (AR 20.) Third, the ALJ concluded that (AR 20.) Fourth, the ALJ found her 10 activities. 11 statements made by Plaintiff and her daughter that Plaintiff was 12 driving her son to and from work five days a week was inherently 13 inconsistent with her allegations regarding frequent seizures. 14 (AR 20.) 15 (AR 20.) (AR 20.) Specifically, the ALJ found that Plaintiff first attacks the ALJ s credibility finding by 16 arguing that she had 16 cats, not 19, and noting that the fact 17 that she eventually had to give up the cats is simply 18 confirmation that she had no money to pay for anything, her 19 cats, her medications, et cetera. 20 (J. Stip. at 15.) Plaintiff testified at the hearing that she ended up with 21 nineteen cats. (AR 235, 241.) Although she stated in a 22 February 16, 2010 disability report that she had 16 cats (AR 23 130), the precise number of cats is immaterial to the ALJ s point 24 in doubting her credibility. 25 based on her ability to pay to care for a large number of cats The ALJ s credibility finding was 26 7 27 28 Plaintiff has provided varying responses regarding the frequency of her seizures, ranging from once a week (January 2009; AR 184) to 3-4 times a week (October 2008; AR 119) to two or three times a day (September 2010; AR 233). 17 1 while claiming she could not afford medication for herself. (AR 2 20.) 3 support in the record that she had the cats at the same time she 4 claimed to be unable to afford her medicine. 5 2010 disability report she indicated that she had been hoarding 6 cats, and that the hoarding, along with other symptoms, began in 7 2008. 8 some time before the disability report (AR 127-31),8 within the 9 time period she claims she was disabled and could not afford Moreover, although Plaintiff claims otherwise, there is (AR 127, 130.) In the February 16, Thus, she cared for the cats from 2008 to 10 medication. Furthermore, at least one function report indicates 11 she was caring for her cats in October 2008, at the same time she 12 was suffering from seizures but not taking her medications 13 because she allegedly could not afford them. 14 120.) 15 Plaintiff s testimony and her daily activities and conduct, and 16 the first ground of the adverse credibility determination was 17 supported by substantial evidence. 18 59; Batson v. Comm r, Soc. Sec. Admin., 359 F.3d 1190, 1196-97 19 (9th Cir. 2004) (adverse credibility determination supported in 20 part by conflict between claimant s allegation he could not 21 return to work because of pain and testimony that he tended to 22 his animals, among other activities).9 (AR 106-07, 114-15, The ALJ could properly consider inconsistencies between See Thomas, 278 F.3d at 958- 23 24 25 26 27 28 8 In the February 16, 2010 disability report she indicates she had cats. (AR 130.) At the hearing she testified that she lost her home twice and had to give up her cats. (AR 239.) 9 Even if the timing of Plaintiff s possession of the cats did not significantly coincide with the period she claimed she couldn t afford her medications, any error would be harmless. See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) ( A decision of the ALJ will not be reversed for errors that are harmless. ) At 18 Plaintiff also challenges the ALJ s determination that her 1 2 claim that it takes her hours to recover after a seizure was not 3 supported by objective evidence in the record. 4 16.) 5 contradicting her testimony at the hearing that her recovery 6 period was only about 30 minutes. 7 But Plaintiff indicated on her October 17, 2008 seizure 8 questionnaire that her recovery period after seizures was two 9 hours. (J. Stip. at 15- Plaintiff argues that there is no evidence in the record (AR 119.) (J. Stip. at 15-16; AR 240.) The ALJ could properly consider these 10 inconsistencies as affecting Plaintiff s credibility. 11 Thomas, 278 F.3d at 958-59. 12 supported by substantial evidence. 13 See The ALJ s second reason was Id. at 959. Plaintiff further claims that it was improper for the ALJ to 14 rely on Plaintiff s lack of full compliance with her treatment 15 recommendations. 16 contends that it was improper for the ALJ to consider her sub- 17 therapeutic levels of anti-seizure medication because these 18 medications are metabolized by every person differently and 19 frequently adjustments are needed to get the levels in the proper 20 range. 21 (AR 159, 161, 163, 167, 187), spanning October 25, 2005, to 22 January 28, 2009, appear not to be due to her metabolism rate but 23 to her failure to take her epilepsy seizure medication as 24 prescribed (AR 175, 184, 188, 233). 25 109184, at *3 (1987) ( Unless convincing evidence is provided (J. Stip. at 16-17.) (J. Stip. at 16.) Specifically, Plaintiff Plaintiff s sub-therapeutic levels See SSR 87-6, 1987 WL 26 27 28 the hearing Plaintiff testified that she kept three storage lockers (AR 241), the cost of which would surely cover at least some of her medications. 19 1 that subtherapeutic blood drug levels are due to abnormal 2 absorption or metabolism, and the prescribed drug dosage is not 3 itself inadequate, the conclusion should follow that the 4 individual is not complying with the treatment regimen. ). 5 Plaintiff has not presented any evidence, much less convincing 6 evidence, that she has a lower metabolism rate. 7 could properly rely on her lack of full compliance with treatment 8 recommendations.10 9 Cir. 2005) (ALJ partially discredited pain testimony based on 10 Thus, the ALJ See Burch v. Barnhart, 400 F.3d 676, 681 (9th lack of consistent treatment). Finally, Plaintiff challenges the ALJ s finding regarding 11 12 the inconsistencies in her daily activities. (J. Stip. at 17- 13 19.) 14 Plaintiff drives her son to and from work. 15 The ALJ found that this was inherently inconsistent with the 16 alleged severity of Plaintiff s seizures. 17 contends that the ALJ s reasoning was improper because nothing in 18 the record showed how far she had to drive and how long it took 19 to get there. 20 claim that she had seizures two to three times a day, causing her 21 to have a severe tremor and bite her tongue (AR 232-33), was 22 inconsistent with safely driving her son to and from work every 23 day (AR 106, 114), as Dr. Woodard had advised several years 24 earlier. 25 See Thomas, 278 F.3d at 958-59. The ALJ cited statements by Plaintiff and her daughter that (J. Stip. at 17.) (AR 20, 106, 114.) (AR 20.) Plaintiff Regardless of distance, her The ALJ could properly consider these inconsistencies. 26 10 27 28 Plaintiff s contention that she was taking her medication and that it simply did not metabolize normally is inconsistent with her argument elsewhere that she did not take her medication at all after August 2008 because she could not afford it. 20 The Court is mindful that it is a questionable practice to 1 2 chastise one with a mental impairment for the exercise of poor 3 judgment in seeking rehabilitation. 4 Sec. Admin., 166 F.3d 1294, 1299-1300 (9th Cir. 1999) (internal 5 quotation marks and citations omitted). 6 be faulted for not having taken medication they could not afford. 7 Orn, 495 F.3d at 638. 8 been credibly diagnosed with any mental health disorder other 9 than mild depression, and her claims of poverty were belied by Regennitter v. Comm r, Soc. Plaintiffs also cannot But as the ALJ noted, Plaintiff has never 10 some of her other expenditures. Even if the ALJ erred in basing 11 his credibility determination on those two factors, his other 12 stated reasons fully support his finding. 13 uphold it. Thus, this Court must Carmickle, 533 F.3d at 1162-63. The ALJ gave specific, clear and convincing reasons for 14 15 rejecting Plaintiff s testimony. 16 Because the ALJ s credibility finding was supported by 17 substantial evidence in the record, this Court will not second- 18 guess the ALJ s finding simply because the evidence may have 19 been susceptible of other interpretations more favorable to 20 Plaintiff. 21 2008). 22 VI. 23 24 Lester, 81 F.3d at 834. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. Thus, Plaintiff s contentions do not warrant remand. CONCLUSION Consistent with the foregoing, and pursuant to sentence four of 42 U.S.C. § 405(g),11 IT IS ORDERED that judgment be entered 25 26 27 28 11 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. 21 1 AFFIRMING the decision of the Commissioner and dismissing this 2 action with prejudice. 3 serve copies of this Order and the Judgment on counsel for both 4 parties. IT IS FURTHER ORDERED that the Clerk 5 6 DATED: June 1, 2012 ______________________________ JEAN P. ROSENBLUTH U.S. MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22
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