Aaron Adams v. Michael J Astrue, No. 5:2011cv01669 - Document 19 (C.D. Cal. 2012)

Court Description: MEMORANDUM AND OPINION AND ORDER by Magistrate Judge Sheri Pym: IT IS THEREFORE ORDERED that Judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits, and dismissing this action with prejudice. (am)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 AARON ADAMS, 12 13 14 Plaintiff, v. MICHAEL J. ASTRUE, 15 Commissioner of Social Security Administration, 16 Defendant. 17 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. ED CV 11-1669-SP MEMORANDUM OPINION AND ORDER 18 19 I. 20 INTRODUCTION 21 On October 25, 2011, plaintiff Aaron Adams filed a complaint against 22 defendant Michael J. Astrue, seeking a review of a denial of supplemental security 23 income ( SSI ). Both plaintiff and defendant have consented to proceed for all 24 purposes before the assigned Magistrate Judge pursuant to 28 U.S.C. § 636(c). 25 The court deems the matter suitable for adjudication without oral argument. 26 Plaintiff presents six disputed issues for decision: (1) whether the 27 28 1 1 administrative law judge ( ALJ ) properly determined that plaintiff could perform 2 other work; (2) whether the ALJ properly considered plaintiff s credibility; (3) 3 whether the ALJ properly considered the opinion of James B. Martin; (4) whether 4 the ALJ properly assessed plaintiff s residual functional capacity ( RFC ); (5) 5 whether the ALJ posed a complete hypothetical to the vocational expert; and (6) 6 whether the ALJ complied with the Appeals Council remand order. Memorandum 7 in Support of Plaintiff s Complaint ( Pl. Mem. ) at 3-23; Defendant s 8 Memorandum in Support of Defendant s Answer ( D. Mem. ) at 1-10. 9 Having carefully studied, inter alia, the parties s written submissions, the 10 Administrative Record ( AR ), and the decision of the ALJ, the court concludes 11 that, as detailed herein, the ALJ properly determined that plaintiff could perform 12 other work, properly considered plaintiff s credibility, properly considered the 13 opinion of Martin, properly assessed plaintiff s RFC, posed a complete 14 hypothetical to the vocational expert, and complied with the Appeals Council 15 remand order. Consequently, this court affirms the decision of the Commissioner 16 of the Social Security Administration ( Commissioner ) denying benefits. 17 II. 18 FACTUAL AND PROCEDURAL BACKGROUND 19 Plaintiff, who was 39 years old on the date of his September 8, 2009 20 hearing, completed some high school and one year of community college. AR at 21 27-90, 129, 267. He has no past relevant work.1 Id. at 20. 22 On March 31, 2006, plaintiff filed an application for SSI, alleging an onset 23 date of August 1, 1995, due to attention deficit disorder, depression, and spine 24 1 Although plaintiff s Earnings Records appear to reflect that he held steady jobs from 2001-2005 (AR at 266), plaintiff testified that he did not perform most 26 of the jobs listed in the record (id. at 84). Further, plaintiff stated that the longest 27 job he ever held was for a month as a stocker. Id. at 273. 25 28 2 1 shoulder, and knee problems.2 Id. at 167, 254, 272. The Commissioner denied 2 plaintiff s application initially and upon reconsideration, after which he filed a 3 request for a hearing. Id. at 160-64,167-71, 173. 4 On December 1, 2008, plaintiff, represented by counsel, appeared and 5 testified before ALJ Thomas Gaye. Id. at 123-41. ALJ Gaye postponed the 6 hearing in order to allow plaintiff time to obtain updated medical records. Id. at 7 139-40. On March 2, 2009, plaintiff again testified before ALJ Gaye. Id. at 918 122. Medical expert Dr. Shapiro, vocational expert Troy Scott, and plaintiff s 9 mother, Cheryl Adams, also provided testimony. Id. ALJ Gaye denied benefits on 10 April 6, 2009.3 Id. at 147-55. Plaintiff filed a request for review of the decision on April 15, 2009. Id. at 11 12 216. On June 25, 2009, the Appeals Council remanded the case, ordering that the 13 ALJ: further evaluate plaintiff s mental impairment; further consider plaintiff s 14 RFC; evaluate the opinion of Martin and obtain additional evidence from him;4 15 and if warranted, obtain supplemental evidence from a vocational expert. Id. at 16 157-59. 17 On September 8, 2009, plaintiff appeared and testified at a hearing before 18 ALJ David M. Ganly. Id. at 27-90. Two medical experts, Dr. Samuel Landau and 19 Joseph Malancharuvil, plaintiff s mother, Cheryl Adams, and vocational expert 20 21 22 2 Plaintiff filed a prior application on April 14, 1997, which was denied. AR at 254 3 This court will not discuss ALJ Gaye s evaluation because the presently appealed decision was new and independent and did not incorporate the findings 24 in the April 6, 2009 denial. AR at 29. 25 4 As evidenced by its cites to 20 C.F.R. § 416.927 and Social Security 26 Rulings ( SSR ) 96-2p and 96-5p, the Appeals Council appeared to be under the 27 misconception that James B. Martin was an acceptable medical source. AR at 158. 23 28 3 1 ( VE ) Sandra Fioretti also testified at the hearing. Id. The ALJ denied benefits 2 on February 12, 2010.5 Id. at 11-22. 3 Applying the well-known five-step sequential evaluation process, the ALJ 4 found, at step one, that plaintiff has not engaged in substantial gainful activity 5 since March 31, 2006, the application date. Id. at 13. 6 At step two, the ALJ found that plaintiff suffered from the following severe 7 impairments: asthma; cervical spine pain of unknown etiology; attention deficit 8 disorder; a mood disorder, not otherwise specified with possible bipolar feature; 9 and a possible obsessive compulsive disorder. Id. 10 At step three, the ALJ found that plaintiff s impairments, whether 11 individually or in combination, did not meet or medically equal one of the listed 12 impairments set forth in 20 C.F.R. part 404, Subpart P, Appendix 1 (the 13 Listings ). Id. at 14. The ALJ then assessed plaintiff s RFC 6 and determined that he had the 14 15 capacity to perform a narrow range of medium work as defined in 20 C.F.R. 16 § 416.967(c) with the following limitations: plaintiff could stand/walk/sit for six 17 hours each in an eight-hour period; could occasionally stoop and bend; was 18 precluded from climbing ladders and working at heights or balance; could do 19 occasional neck motion but should avoid extremes of motion; could maintain a 20 21 5 All subsequent references to the ALJ and VE refer to ALJ Ganly and 22 Fioretti. 23 6 Residual functional capacity is what a claimant can do despite existing 24 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 25 1155-56 n.5-7 (9th Cir. 1989). Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ 26 assesses the claimant s residual functional capacity. Massachi v. Astrue, 486 27 F.3d 1149, 1151 n.2 (9th Cir. 2007). 28 4 1 fixed head position for fifteen to thirty minutes at a time, occasionally, but 2 plaintiff s head should be held in a comfortable position most of the time; could 3 not operate motorized equipment or work around unprotected machinery; and 4 could not be in charge of the safety of others. Id. at 15. In addition, the ALJ 5 determined that plaintiff required an air-conditioned work environment that was 6 free of excessive inhaled pollutants, could perform simple repetitive tasks as well 7 as moderately complex tasks of four to five steps, and could perform object8 oriented tasks in a habituated setting that did not require hypervigilence. Id. 9 The ALJ found, at step four, that plaintiff had no past relevant work. Id. at 10 20. 11 At step five, the ALJ found there were jobs that existed in significant 12 numbers in the national economy that plaintiff could perform. Id. at 20-21. 13 Consequently, the ALJ concluded that plaintiff was not under a disability since 14 March 31, 2006. Id. at 21. 15 The decision of the Appeals Council stands as the final decision of the 16 Commissioner. 17 III. 18 STANDARD OF REVIEW 19 This court is empowered to review decisions by the Commissioner to deny 20 benefits. 42 U.S.C. § 405(g). The findings and decision of the Commissioner 21 must be upheld if they are free of legal error and supported by substantial 22 evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) (as 23 amended). But if the court determines that the ALJ s findings are based on legal 24 error or are not supported by substantial evidence in the record, the court may 25 reject the findings and set aside the decision to deny benefits. Aukland v. 26 27 28 5 1 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 2 1144, 1147 (9th Cir. 2001). 3 Substantial evidence is more than a mere scintilla, but less than a 4 preponderance. Aukland, 257 F.3d at 1035. Substantial evidence is such 5 relevant evidence which a reasonable person might accept as adequate to support 6 a conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 7 F.3d at 459. To determine whether substantial evidence supports the ALJ s 8 finding, the reviewing court must review the administrative record as a whole, 9 weighing both the evidence that supports and the evidence that detracts from the 10 ALJ s conclusion. Mayes, 276 F.3d at 459. The ALJ s decision cannot be 11 affirmed simply by isolating a specific quantum of supporting evidence. 12 Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th 13 Cir. 1998)). If the evidence can reasonably support either affirming or reversing 14 the ALJ s decision, the reviewing court may not substitute its judgment for that 15 of the ALJ. Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 16 1992)). 17 IV. 18 DISCUSSION 19 A. The ALJ Did Not Err at Step Five 20 Plaintiff argues that the ALJ erred at step five because the jobs identified by 21 the vocational expert were inconsistent with plaintiff s RFC. Id. at 3-9. 22 Specifically, plaintiff contends that the identified jobs required working with 23 machinery, close attention to detail, and adherence to safety procedure. Id. at 6. 24 Plaintiff further claims that the ALJ failed to address the inconsistencies between 25 the testimony of the vocational expert and the Dictionary of Occupational Titles 26 ( DOT ). Id. at 7. The court disagrees. 27 28 6 1 At step five, the burden shifts to the ALJ to identify jobs that exist in 2 significant numbers in the national economy that the claimant can perform. 3 Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006); Tackett v. Apfel, 4 180 F.3d 1094, 1100 (9th Cir. 1999); Johnson v. Shalala, 60 F.3d 1428, 1432 (9th 5 Cir. 1995). The ALJ can meet this burden by: (1) the testimony of a VE, who can 6 assess the claimant s limitations and identify any existing jobs the claimant can 7 perform; or (2) relying on the Medical-Vocational Guidelines set forth in 20 8 C.F.R. part 404, Subpart P, Appendix 2. Lounsburry, 468 F.3d at 1114; Tackett, 9 180 F.3d at 1100-01. The ALJ may also rely on the DOT in evaluating whether 10 the claimant is able to perform other work in the national economy. Johnson, 60 11 F.3d at 1435; see also 20 C.F.R. § 416.966(d)(1) (DOT is source of reliable job 12 information). 13 An ALJ may not rely on a VE s testimony regarding the requirements of a 14 particular job without first inquiring whether the testimony conflicts with the 15 DOT, and if so, the reasons for any conflict. Massachi, 486 F.3d 1152-53; SSR 16 00-4p (an ALJ has an affirmative responsibility to ask about any possible conflict 17 between the [VE s testimony] and information provided in the DOT ). In order 18 for an ALJ to accept vocational expert testimony that contradicts the [DOT], the 19 record must contain persuasive evidence to support the deviation. Pinto v. 20 Massanari, 249 F.3d 840, 846 (9th Cir. 2001) (internal quotation marks and 21 citation omitted). Evidence sufficient to permit such a deviation may be either 22 specific findings of fact regarding the claimant s residual functionality, or 23 inferences drawn from the context of the expert s testimony. Light v. Soc. Sec. 24 Admin., 119 F.3d 789, 793 (9th Cir. 1997) (internal citation omitted). 25 The ALJ here, at step five, relied on the testimony of the vocational expert 26 to determine whether plaintiff, given his RFC, could perform other jobs that exist 27 28 7 1 in significant numbers in the national economy. See AR at 78-89. The vocational 2 expert testified that there was a variety of assembly work that plaintiff could do 3 given his limitations, including small products assembler II, hand packager, and 4 kitchen helper. Id. at 87. In response to a more restrictive hypothetical, the 5 vocational expert identified toy assembler and optical assembly as examples of 6 jobs that plaintiff could do. Id. at 88. After the ALJ inquired, the vocational 7 expert also testified that the identified jobs were consistent with the DOT.7 Id. 8 Accordingly, the ALJ found that plaintiff could perform, among other jobs, the 9 occupations of small products assembler II, hand packager, and kitchen helper. Id. 10 at 21. 11 Based on the DOT descriptions, the duties for a small products assembler II, 12 hand packager, kitchen helper include the possible use of motorized equipment. A 13 small products assembler may have to use motorized equipment such as portable 14 powered tools, bench machines, arbor presses, or punch presses. DOT 739.68715 030. A hand packager may need to use a conveyor. DOT 920.587-018. A kitchen 16 helper may require the use of a peeling machine or burnishing-machine tumbler. 17 DOT 318.687-010. But the DOT does not require that a person be able to perform 18 all of the listed duties of the job, but rather any combination of them. See DOT 19 739.687-030, 920.587-018, 318.687-010; see also Johnson, 60 F.3d at 1435 20 (stating that the DOT provides only occupational information on jobs as they 21 have been found to occur, but they do not coincide in every respect with the 22 contents of jobs as performed in particular establishments or at certain localities ) 23 (citation omitted). Thus, the jobs can be performed without operating motorized 24 25 7 The list of jobs cited by the vocational expert was not an exclusive list. The 26 vocational expert testified that these positions were merely representative of the 27 work plaintiff could perform. AR at 88. 28 8 1 equipment and the testimony of the vocational expert does not plainly conflict 2 with the DOT. See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) ( Where 3 evidence is susceptible to more than one rational interpretation, it is the ALJ s 4 conclusion that must be upheld. ) (citation omitted). 5 Accordingly, the ALJ did not err at step five. 6 B. The ALJ Properly Considered Plaintiff s Credibility 7 Plaintiff claims that the ALJ improperly rejected plaintiff s credibility. Pl. 8 Mem. at 9-14. Specifically, plaintiff contends that plaintiff s daily activities, 9 including his ability to care for his daughter, is not a clear and convincing reason 10 for discounting his testimony. Id. at 12. Plaintiff also argues that the ALJ failed 11 to specify which statements were not credible. Id. at 11. The court disagrees. 12 The ALJ must make specific credibility findings, supported by the record. 13 SSR 96-7p. To determine whether testimony concerning symptoms is credible, the 14 ALJ engages in a two-step analysis. Lingenfelter v. Astrue, 504 F.3d 1028, 103515 36 (9th Cir. 2007). First, the ALJ must determine whether a claimant produced 16 objective medical evidence of an underlying impairment which could reasonably 17 be expected to produce the pain or other symptoms alleged. Id. at 1036 (quoting 18 Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). Second, if there 19 is no evidence of malingering, an ALJ can reject the claimant s testimony about 20 the severity of [his] symptoms only by offering specific, clear and convincing 21 reasons for doing so. Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); 22 Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003). The ALJ may consider 23 several factors in weighing a claimant s credibility, including: (1) ordinary 24 techniques of credibility evaluation such as a claimant s reputation for lying; (2) 25 the failure to seek treatment or follow a prescribed course of treatment; and (3) a 26 27 28 9 1 claimant s daily activities. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2 2008); Bunnell, 947 F.2d at 346-47. 3 At the first step, the ALJ found that plaintiff s medically determinable 4 impairments could reasonably be expected to cause the symptoms alleged, but that 5 the statements concerning the intensity, persistence, and limiting effects of the 6 symptoms were not credible to the extent that they were inconsistent with his 7 RFC. AR at 16. 8 At the second step, because the ALJ did not find any evidence of 9 malingering, the ALJ was required to provide clear and convincing reasons for 10 discounting plaintiff s credibility. Here, the ALJ discounted plaintiff s credibility 11 because: (1) there was a lack of objective medical evidence to support the alleged 12 symptoms; (2) he received conservative treatment; (3) he failed to adhere to his 13 treatment plan; (4) his daily activities were inconsistent with his alleged 14 symptoms; and (5) he had a spotty work record. Id. at 16-17. These were clear 15 and convincing reasons supported by substantial evidence. 16 First, the ALJ found that the objective medical evidence did not support 17 plaintiff s symptoms. Regarding plaintiff s mental limitations, the ALJ noted that 18 the mental status examinations were essentially normal except for impaired 19 concentration with no significant cognitive deficits noted. Id. at 16; see Rollins v. 20 Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (lack of corroborative objective 21 medicine may be one factor in evaluating credibility). On August 28, 2006, Dr. 22 Romualdo R. Rodriguez, a psychiatrist examined plaintiff. AR at 366-72. Dr. 23 Rodriguez noted that plaintiff was able to make good eye contact and 24 interpersonal contact, cooperative, coherent, organized, alert, and oriented. Id. at 25 369. During the examination, plaintiff performed proficiently on the tests. Id. at 26 370. Dr. Rodriguez opined that with proper treatment, plaintiff could easily 27 28 10 1 recover from his problems within [twelve] months, and even without the 2 treatment he primarily had only slight non-exertional limitations. Id. at 371-72. In 3 2009, plaintiff s treating physician at the Riverside County Department of Mental 4 Health conducted several mental health examinations and opined that other than 5 impaired concentration, plaintiff s appearance, mood, affect, and speech were 6 appropriate. Id. at 403, 405, 411-12. 7 As for plaintiff s physical limitations, the ALJ noted that: there was an 8 absence of reflex, sensory, and neurological deficits; plaintiff s physical 9 examination was essentially within normal limits, showing only decreased 10 flexion/extension of the neck with tenderness to palpation ; and an x-ray showed a 11 normal cervical spine. Id. at 16, 19. The ALJ s findings are supported by 12 plaintiff s treatment records. See id. at 343, 346-52. Thus, the ALJ s 13 determination that the objective medical evidence did not support the alleged 14 symptoms was supported by substantial evidence. 15 Second, the ALJ correctly noted that plaintiff s mental health treatment was 16 conservative and non-aggressive. Id. at 16-17; see Parra v. Astrue, 481 F.3d 742, 17 751 (9th Cir. 2007) ( [E]vidence of conservative treatment is sufficient to 18 discount a claimant s testimony regarding severity of an impairment. ); 19 Tommasetti, 533 F.3d at 1039 (conservative treatment may be a clear and 20 convincing reason for discounting a claimant s credibility). Plaintiff s mental 21 health treatment plan consisted only of periodic prescriptions for medications such 22 as Wellbutrin and Prozac, and individual therapy.8 See, e.g., AR at 48, 276, 35723 60, 393, 415. Indeed, plaintiff did not use any psychiatric medications from 24 approximately 2001 through at least 2006. Id. at 334, 367. 25 26 8 Plaintiff was hospitalized twice sixteen or seventeen years ago, but did not 27 have any subsequent hospitalizations. AR at 367. 28 11 1 As for plaintiff s physical impairments, plaintiff also received periodic 2 conservative treatment, primarily in the form of pain relievers. See, e.g., id. at 38, 3 334. The ALJ also stated that plaintiff failed to participate in the type of treatment 4 consistent with chronic pain syndrome such as physical therapy. AR at 16. This 5 was not a clear and convincing reason because plaintiff testified that he was 6 unable to receive physical therapy due to insurance issues. Id. at 47; see Orn v. 7 Astrue, 495 F.3d 625, 638 (9th Cir. 2007) (stating that the failure to seek treatment 8 may be a basis for an adverse credibility finding unless there was a good reason 9 for not doing so). But the ALJ s error in this regard was harmless, given the other 10 clear and convincing reasons he cited, as discussed herein, for discounting 11 plaintiff s credibility. See Batson v. Comm r, 359 F.3d 1190, 1197 (9th Cir. 2004) 12 (ALJ s error in relying on one of several reasons in support of an adverse 13 credibility determination was harmless because ALJ s remaining reasons and 14 ultimate credibility determination were supported by substantial evidence). 15 Third, the ALJ correctly observed that plaintiff was often non-compliant 16 with his treatment plan. AR at 16-17; see also Orn, 495 F.3d at 638 (the failure to 17 seek treatment for complaints is a basis for finding the complaint unjustified or 18 exagerrated ); Tommasetti, 533 F.3d at 1039. Plaintiff frequently did not show 19 up to appointments and was dismissed from a psychiatric clinic for too many 20 absences.9 Id. at 360, 367, 391-92. His treating physicians were also unsure 21 whether plaintiff was compliant with his medication plan. See, e.g., id. at 403, 22 405. 23 24 9 During the September 8, 2009 hearing, plaintiff testified that he did not attend his sessions with Lillian Barnes because he did not drive. AR at 65-66. 26 But plaintiff did not explain why he did not seek alternate modes of transportation 27 such as public transportation. 25 28 12 1 Fourth, the ALJ found that plaintiff s daily activities were inconsistent with 2 his claimed symptoms.10 Id. at 16; see Morgan v. Comm r, 169 F.3d 595, 600 (9th 3 Cir. 1999) (a claimant s ability to spend a substantial part of his day engaged in 4 pursuits involving the performance of physical functions that are transferable to a 5 work setting may be sufficient to discredit him). The ALJ noted that plaintiff 6 could cook, clean, do laundry, do yard work, handle other household chores, run 7 errands, and get his daughter ready for school. AR at 16. [T]he mere fact a 8 plaintiff has carried on certain daily activities, such as grocery shopping, driving a 9 car, or limited walking for exercise, does not in any way detract from [his] 10 credibility as to [his] overall disability. Vertigan v. Halter, 260 F.3d 1044, 1050 11 (9th Cir. 2001). A claimant does not need to be utterly capacitated. Fair v. 12 Bowen, 885 F.2d 597, 603 (9th Cir. 1989). But if a claimant is able to spend a 13 substantial part of his day engaged in pursuits involving the performance of 14 physical functions that are transferable to a work setting, a specific finding as to 15 this fact may be sufficient to discredit him. Id. (emphasis in original). Here, the 16 activities appear to be transferable to a work setting and also appear inconsistent 17 with the extent of his claimed mental and physical limitations. 18 Finally, the ALJ stated that plaintiff s spotty work record reflected a lack 19 of motivation to work. AR at 16; see Thomas v. Barnhart, 278 F.3d 947, 959 (9th 20 Cir. 2002) (a poor work history negatively affects a claimant s credibility 21 regarding his inability to work). Here, plaintiff has never held a job for longer 22 than a month and last worked in 2004. AR at 272-73. Dr. Malancharuvil, a 23 24 25 10 Plaintiff claims that his statements were not inconsistent with the limitations 26 brought on by his seizures. Pl. Mem. at 12. Plaintiff does not claim to suffer 27 from seizures and the ALJ does not mention seizures. 28 13 1 medical expert, also testified that it appeared that plaintiff had a motivation 2 problem. Id. at 54. 3 The ALJ provided multiple clear and convincing reasons supported by 4 substantial evidence for discounting plaintiff s credibility. Accordingly, the ALJ 5 did not err in this regard. 6 C. The ALJ Properly Discounted Martin s Lay Opinion 7 Plaintiff contends that the ALJ did not properly consider the opinion of 8 James B. Martin. Pl. Mem. at 14-16. Specifically, plaintiff characterizes Martin 9 as a treating physician to whose opinion the ALJ had a duty to give more 10 weight, and argues the ALJ failed to provide specific and legitimate reasons for 11 rejecting Martin s opinion.11 Id. The court disagrees. 12 As an initial matter, having carefully reviewed the record and the parties 13 written submissions, the court rejects plaintiff s characterization of Martin s 14 profession. Plaintiff argues that the ALJ failed to properly consider the opinion of 15 Martin, a treating source. Id. at 14. Plaintiff then refers to Martin as Dr. Martin 16 and as a treating physician, and relies on case law regarding the opinions of 17 physicians. Id. at 14-16. But Martin is in fact a marriage and family therapist 18 ( MFT ).12 AR at 357. Nothing in the record remotely suggests that Martin has a 19 degree or credential that caused him to be regarded as a physician or another 20 acceptable medical source. See 20 C.F.R. § 416.913(a). If plaintiff s attorney did 21 22 11 Plaintiff also argues that the ALJ had a duty to contact Martin to obtain 23 clarification and/or additional evidence if necessary. Pl. Mem. at 15. The court addresses this issue in Point IV(E) infra. 24 12 Defendant refers to Martin as a social worker. D. Mem. at 6-7. Although 25 this representation is not technically accurate, in California an MFT and social 26 worker are both licensed by the Board of Behavioral Sciences and can perform 27 many of the same functions. See http://www.bbs.ca.gov/. 28 14 1 not purposefully seek to mislead this court, then at a minimum she demonstrated a 2 troubling lack of legal knowledge and appreciation for the significance of the 3 distinction between an MFT and a physician. 4 An MFT is not an acceptable medical source for establishing a medically 5 determinable impairment, but his opinion may considered to show the severity of 6 an impairment. See 20 C.F.R. §§ 416.913(a), (d); see also Turner v. Comm r, 613 7 F.3d 1217, 1223-24 (9th Cir. 2010) (social workers are not considered acceptable 8 medical sources under the regulations, but instead are treated as other sources); 9 Fricke v. Comm r, No. 10-1030, 2012 WL 1355664, at *13 (E.D. Cal. Apr. 18, 10 2012) (the regulations do not recognize MFTs as acceptable medical sources); 11 Green v. Astrue, No. 10-01294, 2011 WL 2785741, at *4 (C.D. Cal. Jul. 15, 2011) 12 (an MFT is not an acceptable medical source). Because MFTs are not acceptable 13 medical sources, their opinions are not entitled to the same standard of review 14 afforded physicians; instead, their opinions are reviewed under the standard 15 afforded lay witnesses. See Turner, 613 F.3d at 1224. Thus, if an ALJ wishes to 16 discount the opinion of an MFT, the ALJ must give germane reasons for doing so. 17 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012); Dodrill v. Shalala, 12 F.3d 18 915, 919 (9th Cir. 1993). 19 Martin treated plaintiff for an unspecified period, from at least March 2, 20 2005 through May 11, 2006. AR at 357-60. In a status report, dated May 11, 21 2006, Martin opined that plaintiff had moderate difficulty sustaining attention, 22 brooding over the past, maintaining energy, completing tasks, and interacting with 23 co-workers and family. Id. at 358. Martin further opined that plaintiff had a 24 severe depressed mood, as well as severe difficulty organizing tasks and activities 25 and interacting with supervisors. Id. Martin noted that plaintiff had fluctuating 26 alertness and disorganized speech, presented himself in a bizarre fashion, had 27 28 15 1 mildly impaired memory, and fair eye contact. Id. Consequently, Martin opined 2 that plaintiff had difficulty maintaining his own affairs, was incapable of caring 3 for his daughter, and would be unable to secure employment. Id. at 360. 4 Here, the ALJ properly discounted the opinion of Martin. The ALJ gave 5 little weight to Martin s assessment because it was inconsistent with the mental 6 state examinations conducted by various physicians, plaintiff received 7 conservative treatment, plaintiff was non-compliant with his treatment, and there 8 were no treatment notes to support Martin s opinion.13 AR at 16-17. All are 9 germane reasons for rejecting Martin s opinion. See Lewis v. Apfel, 236 F.3d 503, 10 511-12 (9th Cir. 2001) (inconsistency with medical record is germane reason for 11 discounting lay opinion). Accordingly, the ALJ did not err when he rejected 12 Martin s lay opinion. 13 D. The ALJ Properly Determined Plaintiff s RFC and Posed a Complete 14 Hypothetical to the Vocational Expert 15 Plaintiff argues that the ALJ reached an incorrect RFC determination and 16 posed an incomplete hypothetical to the vocational expert. Pl. Mem. at 16-20. 17 Plaintiff s arguments rest on his assertion that the ALJ improperly rejected 18 Martin s opinion and should have included his limitations in both. Id. As the 19 court discussed supra, the ALJ properly rejected Martin s opinion. As such, it was 20 proper for the ALJ to exclude Martin s limitations from his RFC determination 21 and the hypothetical posed to the vocational expert. 22 23 13 27 Further, Martin s opinion is undermined by plaintiff s and his mother s testimonies. Martin opined that plaintiff was incapable of taking care of his daughter and handling funds. AR at 360. But plaintiff stated that he took care of his daughter at home, cooking for and reading to her, and would be able to handle his finances if he had money. Id. at 320, 322. Plaintiff s mother also testified that plaintiff was the primary caregiver for his daughter. Id. at 77. 28 16 24 25 26 1 E. The ALJ Complied with the Remand Order 2 Plaintiff argues that the ALJ failed to comply with the Appeals Council s 3 remand order to seek more evidence and clarification from Martin. Pl. Mem. at 4 20-23. Plaintiff further argues that the ALJ failed to fully analyze Martin s 5 opinion. Id. at 22. Plaintiff s claim lacks merit. 6 The Appeals Council, upon remand, ordered the ALJ to, inter alia, obtain 7 any additional evidence from Martin, consider the Martin opinion, reevaluate the 8 plaintiff s RFC and ability to perform jobs in light of his evaluation of the Martin 9 opinion, and retain a vocational expert if warranted. AR at 158. 10 The ALJ complied with the remand order. In the decision, the ALJ 11 discussed Martin s opinion and provided multiple germane reasons for rejecting it, 12 including that there were no additional treatment records to support the opinion. 13 Id. at 16-17. Consequently, the ALJ did not include Martin s limitations in his 14 RFC determination and did not ask the vocational expert any hypotheticals based 15 on Martin s opinion. 16 Other than the additional records, plaintiff s argument is simply a reiteration 17 of his arguments that the ALJ improperly rejected Martin s opinion and should 18 have incorporated Martin s limitations in his RFC determination. As for the 19 failure to obtain additional records, there is no evidence that the ALJ did not 20 attempt to obtain additional records, nor does plaintiff even argue that additional 21 records exist. In its remand order, the Appeals Council stated that the ALJ may 22 enlist the aid and cooperation of the claimant s representative in obtaining 23 evidence from Martin. AR at 158. This is what the ALJ did, having provided 24 plaintiff the opportunity to submit additional evidence. Id. at 225. Presumably 25 plaintiff, who was represented by counsel, would have done so had such evidence 26 existed. 27 28 17 1 Accordingly, the ALJ complied with the remand order of the Appeals 2 Council. 3 V. 4 CONCLUSION 5 IT IS THEREFORE ORDERED that Judgment shall be entered 6 AFFIRMING the decision of the Commissioner denying benefits, and dismissing 7 this action with prejudice. 8 9 10 DATED: September 19, 2012 11 SHERI PYM United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18

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