Mohammad Hasan Alsyouf v. Michael J Astrue, No. 5:2011cv01867 - Document 18 (C.D. Cal. 2013)
Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal; Consistent with the foregoing, and pursuant to sentence four of 42 U.S.C. § 405(g), IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner and dismissing this action with prejudice. See order for details. (jy)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MOHAMMAD HASAN ALSYOUF, 12 13 14 15 16 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) NO. EDCV 11-1867 SS MEMORANDUM DECISION AND ORDER 17 18 I. 19 INTRODUCTION 20 21 Mohammad Hasan Alsyouf ( Plaintiff ) brings this action seeking to 22 overturn the decision of the Commissioner of the Social Security 23 Administration (hereinafter the Commissioner or the Agency ) denying 24 his application for Supplemental Security Income benefits ( SSI ). The 25 parties consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction 26 of the undersigned United States Magistrate Judge. 27 stated below, the decision of the Agency is AFFIRMED. 28 For the reasons 1 II. 2 PROCEDURAL HISTORY 3 4 Plaintiff filed an application for SSI on February 2, 2005. 5 (Administrative Record ( AR ) 89). 6 of October 24, 2002. 7 (AR 696). 8 (AR 75). 9 claim, Plaintiff s claim was denied again on July 15, 2005. (Id.). He alleged a disability onset date His last-insured date was June 30, 2006. The Agency initially denied this claim on April 15, 2005. After Plaintiff requested and received reconsideration of his (AR 82). 10 11 On August 28, 2005, Plaintiff filed a written request for hearing. 12 (AR 87). Plaintiff testified at a hearing held before Administrative 13 Law Judge ( ALJ ) Henry M. Tai on March 14, 2007. 14 the ALJ issued a decision denying benefits. On March 14, 2007, (AR 43-56). 15 16 On May 18, 2007, Plaintiff requested that the Appeals Council 17 review the ALJ s decision. 18 Plaintiff s request on August 3, 2009. 19 civil 20 reversing the ALJ s determination and remanding the action for further 21 proceedings. 22 properly assess whether Plaintiff s mental health impairment was severe. 23 (AR 582-83). Specifically, the Court explained that there was objective 24 evidence that Plaintiff suffered from a mental health impairment and ALJ 25 Tai failed to follow the Secretary s regulations for evaluating such 26 impairments. (AR 586). 27 basing his determination that Plaintiff s mental impairment was not action, which (AR 40). resulted (AR 578-93). in a The Appeals Council denied (Id.). Plaintiff then filed a Memorandum Decision and Order The Court concluded that ALJ Tai failed to The Court also explained that the ALJ erred in 28 2 1 severe in part on the fact that Plaintiff had not been hospitalized for 2 psychiatric treatment. (AR 586). 3 4 The Court required the Agency to consider three issues on remand. 5 First, the Court instructed the ALJ to rate the degree of functional 6 loss resulting from the impairment by considering four areas of function 7 (a) 8 concentration, 9 decompensation. (AR 587 n.4) (citing 20 C.F.R. § 416.920a(c)(2)-(4)). 10 The ALJ was further instructed to determine whether the claimant has 11 a severe mental impairment after rating the degree of loss. 12 (citing C.F.R. § 416.920a(d)). 13 determine that Plaintiff has a severe mental impairment, the ALJ must 14 then determine whether it meets or equals a listing in 20 C.F.R. Part 15 404, Subpart P, Appendix 1. 16 The Court also explained that if a listing is not met, the ALJ must 17 assess Plaintiff s residual functional capacity ( RFC ) and incorporate 18 into the ALJ s decision the pertinent findings and conclusions regarding 19 Plaintiff s mental impairment, including a specific finding as to the 20 degree of limitation in each of the functional areas described in C.F.R. 21 § 416.920a(c)(3). activities of daily living; persistence, or (b) pace; social and functioning; (d) (c) episodes of (Id.) The Court noted that if the ALJ were to (Id.) (citing C.F.R. § 416.920a(d)(2)). (Id.) (citing C.F.R. § 416.920a(d)(3), (e)(2)). 22 23 Second, the Court instructed the ALJ to take the testimony of a 24 vocational expert. 25 relying solely on the Medical-Vocational Guidelines ( Grids ) when 26 assessing whether Plaintiff is disabled. Where, as in Plaintiff s case, 27 the claimant has Specifically, the Court noted that the ALJ erred in both exertional 28 3 and significant non-exertional 1 limitations, the Grids are inapplicable and the ALJ must take the 2 testimony of a vocational expert. 3 856 F.2d 1335, 1340 (9th Cir. 1988)). (AR 588) (citing Burkhart v. Bowen, 4 5 Third, the Court instructed the ALJ to consider Plaintiff s 6 subjective pain testimony, explaining that the first ALJ decision failed 7 to provide clear and convincing reasons to reject such testimony. 8 590-91). (AR 9 10 Pursuant to this Court s remand, the Appeals Council vacated the 11 ALJ s decision on February 9, 2011. 12 Plaintiff testified at a hearing held before ALJ Tamara Turner-Jones. 13 (AR 689-722). 14 563-77). 15 Commissioner on August 29, 2011. 16 by filing the instant action on November 23, 2011. The (AR 596). On May 11, 2011, The ALJ denied Plaintiff s claim on July 29, 2011. ALJ s decision became the final decision of (AR the Plaintiff requested judicial review 17 18 III. 19 FACTUAL BACKGROUND 20 21 Plaintiff, who was forty-nine at the time of the second ALJ 22 hearing, has a high school education and three years of college. 23 357). Plaintiff worked as a gas station cashier, car salesman, and auto 24 trader driver from 1998 until his alleged disability onset date of 25 October 24, 2002. 26 a gas station cashier from 1992 to 1993. 27 ALJ hearing, Plaintiff stated that he had not sought work since October (AR 106, 114, 131, 964). 28 4 (AR Plaintiff also worked as (AR 131). During the second 1 24, 2002 and instead supports himself with help from his brother and a 2 $130,000 lump-sum workers compensation settlement that he received in 3 2007. 4 difficulty, cannot sit for extended periods of time, has nerve damage 5 to his leg, and has numbness and no feeling in his left ankle. (AR 696- 6 707). (AR 694-95). Plaintiff claims that he cannot walk without 7 8 9 Plaintiff also complains that he became less self sufficient following the 2002 incident. He testified that he stopped driving 10 immediately after the incident, although Plaintiff also testified that 11 he later resumed driving to the market, shopping center, and pharmacy 12 by himself. 13 handle finances, although the third party functionality report completed 14 by Plaintiff s wife states that his ability to handle money has not 15 changed since his disability onset date.1 16 Plaintiff reads, 17 walking. (AR 114, 122). (AR 697). Plaintiff further complains of an inability to watches tv, (AR 126). exercises, naps, On a daily basis, and does minimum 18 19 \\ 20 \\ 21 \\ 22 \\ 23 24 1 The Court notes, however, that Plaintiff s wife may have 25 intended to state that his ability to handle money has changed since the 26 October 2002 incident. Plaintiff s wife checked the no box on a form asking whether there had been such a change in Plaintiff s ability. In 27 explaining her answer, Plaintiff s wife added that Plaintiff has no patience or concentration. (AR 126). 28 5 1 A. Plaintiff s Medical History 2 3 Plaintiff has seen a variety of medical professionals between his 4 alleged disability onset date and when he filed for benefits. The Court 5 summarizes Plaintiff s medical history below. 6 7 After being injured during a robbery at his workplace on October 8 24, 2002, Plaintiff sought treatment from the Riverside County Regional 9 Medical Center Emergency Department for a gunshot wound to his left 10 thigh. (AR 167-68, 705). 11 femur. 12 sustained when he was hit in the head during the incident. 13 Plaintiff was treated and released after his symptoms were resolved 14 within seventy-six hours. (AR 185). An x-ray showed no fracture within the Plaintiff also sought treatment for injuries (AR 176). (AR 179). 15 16 On November 19, 2002, Plaintiff saw Dr. Stephen P. Suzuki for a 17 complex orthopaedic consultation regarding injuries sustained in the 18 October incident. (AR 193). Dr. Suzuki noted that Plaintiff complained 19 of neck pain, left thigh pain, left leg weakness, and left ankle pain. 20 (Id.). 21 of motion and motor strength in all but his lower extremities. (AR 196- 22 97). 23 the left thigh. 24 time of the exam]. 25 very minimal erythema around the actual gunshot sites. 26 drainage. 27 to Plaintiff s left ankle, Dr. Suzuki observed a mild amount of soft However, Dr. Suzuki reported that Plaintiff had a normal range Plaintiff presented with a through and through gunshot wound to The enter and exit wounds [were] clean and dry at [the There [was] no surrounding fluctuance. There [were] no palpable masses. 28 6 (AR 198). There [was] There [was] no With respect 1 tissue swelling coupled with limited motion. (Id.). Dr. Suzuki also 2 noted that cervical spine x-rays showed no evidence of specific 3 fractures, dislocations, or calcifications. (AR 198-99). X-rays taken 4 of Plaintiff s left ankle showed arthritis of the ankle joint, while x- 5 rays of his left foot and femur showed no fractures dislocations, or 6 calcifications. 7 the examination and appeared to have a good memory. 8 Suzuki also 9 independently. (AR 199). reported that Plaintiff was alert and oriented during Plaintiff sits, (AR 194). stands, Dr. and ambulates (Id.). 10 11 Dr. Suzuki diagnosed Plaintiff with (1) [l]eft thigh gunshot wound 12 through and through with severe quadriceps atrophy, (2) cervical spine 13 strain and contusion and headaches, and (3) chronic arthritis in the 14 left ankle. (Id.). He prescribed physical therapy along with both pain 15 medication and muscle relaxants. 16 Plaintiff went to seven physical therapy appointments and missed three, 17 at which point he was discharged for failure to attend appointments 18 despite progress being noted on the physical therapy reports. (AR 202). (Id.). Medical records indicate that 19 20 Plaintiff s primary treating physician was Dr. Anthony T. Fenison, 21 who Plaintiff first saw in early December 2002 for back pain, head and 22 neck pain, and left leg pain and numbness. 23 medical records, Plaintiff saw Dr. Fenision at various points between 24 December 2002 and January 2004. (See AR 317, 321). On January 7, 2004, 25 Dr. Fenison reported that while Plaintiff initially presented with 26 difficulties with his foot and ankle and left upper extremity, these 27 areas have improved with appropriate conservative care. (AR 330). Dr. 28 7 (AR at 321). According to 1 Fenison concluded that Plaintiff was permanent and stationary for 2 rating purposes and opined that Plaintiff should be limited to light 3 work . . . in a very benign atmosphere and not placed [in] an 4 environment that will require stressful interactions or an environment 5 that 6 assailant. might place him at increased risk of encountering another (AR 331). 7 8 Additionally, at various points between December 29, 2002 and 9 January 5, 2004, Plaintiff sought chiropractic treatment from Dr. Derick 10 Lajom for neck pain and muscle spasms. (AR 203-23). On at least one 11 occasion, Dr. Lajom noted that Plaintiff was responding well to the 12 current treatment regimen. (AR 212). 13 14 On June 17, 2003, Plaintiff saw Dr. Jurkowitz for a qualified 15 medical evaluation in neurology. (AR 245). Dr. Jurkowitz reviewed 16 Plaintiff s medical record and performed a physical examination and 17 neurological examination. (AR 264-65). On June 23, 2003, Dr. Jurkowitz 18 diagnosed Plaintiff with posttraumatic headaches, cervical sprain, 19 lumbosacral sprain and possible radiculopathy, and pain syndrome of 20 left lower extremity which is turning into some sort of chronic pain. 21 (AR 263). 22 status was [g]rossly normal, although [Plaintiff was] somewhat nervous 23 and certainly . . . phobic about needles. 24 Jurkowitz reported that Plaintiff evidenced atrophy of the left lower 25 extremity, he also noted that Plaintiff had normal strength in the 26 upper extremities and that Plantiff had normal strength in his right 27 lower extremity. However, Dr. Jurkowitz also reported that Plaintiff s mental (Id.). (AR 262). While Dr. After a subsequent evaluation on March 31, 28 8 1 2004, Dr. Jurkowitz reported that Plaintiff s mental status seemed 2 normal, although Plaintiff evidenced a somewhat flattened affect. (AR 3 248). 4 strength in Plaintiff s left lower extremity because it was then too 5 tender to touch, Plaintiff retained normal strength in both upper 6 extremities and right lower extremity. 7 diagnosed Plaintiff with posttraumatic headaches, cervical sprain, 8 lumbosacral sprain and possible radiculopathy, and pain syndrome in the 9 left lower extremity. Dr. Jurkowitz also reported that while it was impossible to test (Id.). Dr. Jurkowitz again (AR 249). 10 11 Plaintiff sought pain management treatment from Dr. Andrew W. 12 Hesseltine. On August 13 [Plaintiff] 14 Plaintiff was then given refills of Remeron 15 mf, Lidoderm 5% patch, 15 Bextra 10 mg tab, and Effexor XR 75 mg tab. 16 later, on July 24, 2003, complaining of neck pain, Plaintiff received 17 an MRI from Dr. Ronald Otto. 18 significant problems. states that 5, 2003, overall Dr. he (AR is Hesseltine doing well. (AR 273). 275-77). reported (AR that 272). A few months Dr. Otto found no (AR 276). 19 20 Additionally, Plaintiff sought psychological treatment from Dr. 21 Marilyn Neudeck-Dicken, PhD. (AR 224-243). Plaintiff s first visit 22 appears to have been on May 21, 2003. 23 treatment notes from Dr. Neudeck-Dicken are from May 29, 2003. 24 238). 25 difficulty sleeping, and other psychological symptoms associated with 26 the October 2002 incident. Dr. Neudeck-Dicken diagnosed Plaintiff with 27 possible posttraumatic stress disorder, chronic. (AR 234). However, the earliest (AR At that time, Plaintiff complained of anxiety, depression, 28 9 (AR 243). However, 1 On March 16, 2004, Dr. Neudeck-Dicken reported that Plaintiff has made 2 great strides in his posttraumatic stress disorder and that his 3 depression has greatly improved even though he still demonstrates the 4 effects of a depressive triad of negative views of self worth, present 5 living, and his future. 6 that Plaintiff was no longer isolating himself within his home and was 7 getting out and going places, including trips with his wife. (Id.). 8 Further, while Plaintiff still showed symptoms of anxiety, Dr. Neudeck- 9 Dicken noted that Plaintiff s anxiety was less[ened] when he use[d] his (AR 234). 10 relaxation exercises. 11 Plaintiff s feeling of helplessness and hopelessness [was] not as 12 great. 13 greatly 14 demonstrat[ing] increased concentration. 15 reading, going to the library, and using his computer to study various 16 subjects of interest to him, although he retained signs of PTSD. 17 (Id.). 18 psychological symptoms stemming from the October 2002 incident. 19 230). 20 nightmares nightly and recurrent recollections of the incident in 21 addition to difficulty sleeping and difficulty returning to sleep. 22 (Id.). 23 state, and feeling weak and vulnerable. 24 depression associated with self doubt and loss in self confidence, loss 25 of 26 concentrating 27 diagnosed Plaintiff with chronic posttraumatic stress disorder ( PTSD ), (Id.). Dr. Neudeck-Dicken also reported that At that time, Plaintiff s cognitive functioning [was] improved, On (Id.). Dr. Neudeck-Dicken also reported May 8, with 2004, Plaintiff however, no longer (AR 235). Plaintiff still confused and Plaintiff was complained of (AR According to Dr. Neudeck-Dicken s notes, Plaintiff reported Plaintiff further reported being anxious, in a hyper-alert interest in and previously making enjoyed decisions. 28 10 (Id.). He also complained of activities, (Id.). Dr. and difficulty Neudeck-Dicken 1 with mixed anxiety and depressed mood in addition to sleep terror 2 disorder 3 personality traits. 4 request by the State of California Department of Social Services, Dr. 5 Neudeck-Dicken noted that Plaintiff was able to manage funds on his own 6 behalf. 7 does not interfere with activities including properly car[ing] for 8 personal 9 transportation, pay[ing] bills, maintain[ing] residence, [and] car[ing] and possible (AR 229). affairs, dependent (AR 231). personality with [n]egativistic Later, in response to a June 22, 2005 Dr. Neudeck-Dicken also noted that Plaintiff s PTSD do[ing] shopping, cook[ing], (AR 227). us[ing] public 10 for grooming and hygiene . . . . Finally, Dr. Neudeck- 11 Dicksen noted that she see[s] no problem in concentration and task 12 completion, including Plaintiff s ability to sustain focused attention, 13 complete everyday household routines, and follow and understand simple 14 written or oral instructions. (AR 228). 15 16 B. Consultative Evaluations 17 18 1. Psychiatric Evaluations 19 20 Plaintiff saw Dr. Romualdo R. Rodriguez, M.D., for a complete 21 psychiatric evaluation at the request of the Department of Social 22 Security. 23 examination and Plaintiff was the sole source of information for the 24 evaluation. 25 reliable historian ). 26 Dr. Rodriguez reported that Plaintiff complained of becoming depressed, 27 irritable, and anxious. (AR 355, 361). No psychiatric records were reviewed in the (AR 355) (observing that Plaintiff appears to be a In a March 15, 2005 summary of that evaluation, (AR 356). 28 11 Plaintiff further complained of 1 suicidal feelings, nightmares, homicidal feelings toward his wife, and 2 problems with memory and concentration. 3 reported 4 (Id.). 5 chores and can take care of self-dressing, bathing, and personal 6 hygiene. 7 transportation. 8 Plaintiff is able to handle cash and pay bills appropriately. 9 His thought process was coherent and organized with no tangentiality that medication (Id.). significantly However, Dr. Rodriguez improved the nightmares. Further, Dr. Rodriguez reported that Plaintiff does household (AR 357). Plaintiff also drives his own automobile for (Id.). He watches TV, walks, and reads. (Id.). 10 or loosening of associations. 11 relevant and non-delusional and without bizarre or psychotic thought 12 content. 13 homicidal ideation, Dr. Rodriguez reported that Plaintiff had no plans 14 or intent at that time. 15 no homicidal or paranoid ideation. He denies recent auditory or visual 16 hallucinations. Plaintiff 17 somewhat despondent, he was alert and oriented to time, place, 18 person, and purpose. 19 [sic] least average intelligence. 20 serial threes as well as simple mathematic problems and was able to 21 follow conversation well. 22 judgment, Dr. Rodriguez reported that [i]nsight into his problems 23 appears reasonable in that he is using medications for his nightmares 24 and post traumatic stress disorder. 25 would be able to handle the situation of a lost child in a department 26 store ). 27 Plaintiff was reasonably stable on his psychiatric medication, has (Id.). (AR 358). (Id.). Dr. Rodrigez found Plaintiff Further, while Plaintiff previously had suicidal and (Id.). (Id.). Dr. Rodriguez noted that [t]here is While (Id.). described his mood as Plaintiff also appear[ed] to be of at (AR 358). (AR 359). Plaintiff could perform As for Plaintiff s insight and (Id.) (adding that Plaintiff Dr. Rodriguez diagnosed Plaintiff with PTSD and observed that 28 12 1 no functional limitations based on the examination, and is capable of 2 independently managing funds in an appropriate manner at this time. 3 (AR 360). 4 2. 5 Orthopedic Evaluations 6 7 On March 17, 2005, Dr. Laurence Meltzer summarized the results of 8 a complete orthopedic evaluation done at the request of the Department 9 of Social Services. According to Dr. Meltzer, Plaintiff s primary 10 complaint was pain in the neck, knees, ankle, feet, and lower back. (AR 11 362). 12 nourished male who is alert and cooperative. (Id.). Plaintiff s range 13 of motion in his hips, knees, ankles, and feet was normal. 14 Further, while there was some left lower extremity muscle weakness in 15 comparison to the right and there was atrophy to Plaintiff s left thigh 16 and calf muscles as compared to the right, Plaintiff s motor strength 17 was otherwise grossly within normal limits. 18 Meltzer found that Plaintiff had residual femoral nerve neuropathy and 19 atrophy of the left lower extremity but that the examination provided 20 no support for claims of neck and back pain, left knee pain, left ankle 21 discomfort, or upper extremity problems. (Id.). 22 that occasionally 23 routinely in addition to being able to sit for unlimited periods of 24 time and stand and walk with his cane 4 hours in an 8-hour workday, 25 alternating sitting and standing every hour. Dr. Meltzer reported that Plaintiff is a well-developed, well- Plaintiff could lift 20 pounds 26 27 \\ 28 13 (AR 366). (Id.). In sum, Dr. Dr. Meltzer concluded (Id.). and 10 pounds 1 C. Medical History After Last-Insured Date 2 3 After the last-insured date, on November 19, 2007, Dr. Nick Sharma 4 conducted an orthopedic examination of Plaintiff. 5 that on November 14, 2007, he was driving a car when he collided with 6 another vehicle. 7 addition to pain in his neck, left shoulder, chest, and lower back. (AR 8 640). 9 left leg had worsened, Dr. Sharma found that Plaintiff had a normal gait 10 and evidenced no difficulty toe walking, heel walking, kneeling, or 11 squatting. 12 a full range of motion of the lower extremities and that examination of 13 the ankles revealed no tenderness. 14 chiropractic treatment. (AR 638-39). Plaintiff reported Plaintiff complained of headaches in Further, while Plaintiff complained that the condition of his (AR 640-45). Dr. Sharma also reported that Plaintiff had (Id.). He recommended continuing (AR 646). 15 16 Also after the last-insured date, on February 20, 2008, Plaintiff 17 was hospitalized for acute chest pain. (AR 510). 18 showed left ventricular ejection fraction and severe hypokinesia of the 19 posterior lateral wall of left ventricle. 20 was able to move 4 extremities voluntarily or on command. 21 Plaintiff underwent stent placement without complication. (AR 518-22). (Id.). An echocardiogram However, Plaintiff (AR 516). 22 23 On April 15, 2008, Plaintiff again saw Dr. Neudeck-Dicken for 24 treatment. (AR 650). In a treatment report dated April 25, 2008, Dr. 25 Neudeck-Dicken found that Plaintiff s condition worsened following a 26 heart attack that occurred in 2007, after his last-insured date. 27 652-63). Specifically, Dr. Neudeck-Dicken reported that while Plaintiff 28 14 (AR 1 was making great progress until that heart attack, his heart attack has 2 caused his PTSD to escalate at greater degree then [sic] in the past 3 years. 4 such as a heart attack, [sic] can cause the reoccurrence of the symptoms 5 of 6 [Plaintiff s] symptoms have increased post the heart attack causing 7 depression and anxiety, as well as the escalation of with-drawl [sic] 8 behaviors. 9 Posttraumatic Stress Disorder, Chronic, Adjustment Disorder with 10 mixed Anxiety and depressed mood [sic], Adjustment Disorder with 11 withdrawal [sic], and Somatization Disorder. (AR 655). However, Dr. 12 Neudeck-Dicken reported that [Plaintiff s] PTSD was under control 13 before the heart attack. 14 leave his home with his wife and travel to Las Vegas ). (AR 650, 652). PTSD. (AR 652). (AR 652-63). Dr. Neudeck-Dicken noted that [a]n incident Dr. Neudeck-Dicken further noted that Dr. Neudeck-Dicken diagnosed Plaintiff with (AR 656) (noting that Plaintiff was able to 15 16 On May 26, 2008, Dr. Oluwafemi Adeyemo conducted a single 17 psychiatric consultive examination of Plaintiff. (AR 658). According 18 to Dr. Adeyemo, Plaintiff complained of not doing well due to 19 depressive symptoms and anxiety stemming from the October 2002 incident. 20 (Id.). 21 speech, and claimed he had memory problems, Plaintiff was oriented to 22 self and place and appeared alert. (AR 658-660). Dr. Adeyemo diagnosed 23 Plaintiff with PTSD, a GAF score of 45, and major depressive disorder. 24 (AR 660). 25 responding appropriately to co-workers, supervisors, and the public. 26 (Id.). While Plaintiff was unable to spell world backwards, had slow He also concluded that Plaintiff would have difficulty 27 28 15 1 D. Vocational Expert s Testimony 2 3 A vocational expert testified at Plaintiff s 2011 hearing. (AR 4 711-21). The expert testified that Plaintiff worked as a cashier, 5 automobile sales person, light truck driver, and cashier checker. 6 711). 7 Plaintiff s vocational profile and RFC would not be able to perform 8 Plaintiff s past relevant work. (AR 712). 9 testified that such a person would be able to work as a bench assembler 10 of small products, surveillance system monitor, or information clerk. 11 (Id.). 12 three jobs would not be prevented if the ALJ were to further restrict 13 the hypothetical by providing that such person would work better with 14 objects than with individuals, but interaction with coworkers and 15 general public is not precluded. 16 testified that even if such person could not deal with the public at 17 all, performance of the small products assembler and information system 18 monitor jobs would remain possible. 19 by counsel, the vocational expert testified that adding a requirement 20 that such person must use a cane whenever standing or walking would not 21 preclude performance of any of the three jobs. (AR The expert also testified that a hypothetical individual of The vocational expert The vocational expert also testified that performance of the (AR 714-15). (Id.). The vocational expert Finally, upon questioning (AR 715). 22 23 E. Lay Witness Testimony 24 25 On February 15, 2005, Rosa Alsyouf, Plaintiff s wife, submitted a 26 third party function report. (AR 122-130). 27 between waking up and going to bed, Plaintiff reads, watches television, 28 16 Ms. Alsyouf reported that 1 exercises, naps, and does minimum [sic] walking. (AR 122). According 2 to Ms. Alsyouf, Plaintiff has sleeping problems and requires assistance 3 in dressing, bathing, shaving, and sitting and standing when using the 4 toilet. 5 not perform yard work, rarely goes outside, does not shop, and does not 6 drive. 7 unable to pay bills or handle a savings account because he is unable 8 to remember [and] says [he] doesn t feel like handling finances. 9 125). (AR 123). (AR 124-25). Ms. Alsyouf further reported that Plaintiff does She noted that Plaintiff can count change but is (AR 10 11 F. Plaintiff s Testimony 12 13 At the 2011 ALJ hearing, Plaintiff testified that he stopped 14 working in 2002 because he is scared from [sic] doing anything, 15 because he cannot focus on things, and because his leg is shrinking. 16 (AR 694, 700). The ALJ was careful to instruct Plaintiff that the 17 period relevant 18 disability onset date of October 24, 2002 to his last-insured date of 19 June 30, 2006. 20 he had difficulty taking a shower and bathing without assistance. 21 (Id.). 22 to the market and did grocery shopping. 23 testified that prior to 2006, he did not drive himself to doctors 24 appointments. 25 drives to the shopping center, market, and pharmacy. 26 the ALJ asked Plaintiff why he now drives himself to the market, of time (AR 696). to the hearing was Plaintiff s alleged Plaintiff testified that during that period, Plaintiff further testified that prior to 2006, his wife went (AR 699). (AR 697). Plaintiff also However, Plaintiff testified that he now 27 28 17 (AR 693). When 1 Plaintiff stated that his wife was more attentive prior to 2006. (Id.). 2 Plaintiff testified that he uses a cane every day. (AR 701). 3 4 IV. 5 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 6 7 To qualify for disability benefits, a claimant must demonstrate a 8 medically determinable physical or mental impairment that prevents him 9 from engaging in substantial gainful activity2 and that is expected to 10 result in death or to last for a continuous period of at least twelve 11 months. 12 42 U.S.C. § 423(d)(1)(A)). 13 incapable of performing the work he previously performed and incapable 14 of performing any other substantial gainful employment that exists in 15 the national economy. 16 1999) (citing 42 U.S.C. § 423(d)(2)(A)). Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing The impairment must render the claimant Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 17 18 19 To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. § 416.920. The steps are: 20 21 (1) Is the claimant presently engaged in substantial gainful 22 activity? If so, the claimant is found not disabled. 23 If not, proceed to step two. 24 25 26 2 Substantial gainful activity means work that involves doing 27 significant and productive physical or mental duties and is done for pay or profit. 20 C.F.R. § 416.910. 28 18 1 (2) Is the claimant s impairment 2 claimant is found not disabled. 3 severe? If not, the three. 4 (3) Does the claimant s If so, proceed to step impairment meet or equal the 5 requirements of any impairment listed at 20 C.F.R. Part 6 404, Subpart P, Appendix 1? 7 found disabled. 8 (4) 9 If not, proceed to step four. Is the claimant capable of performing h[er] past work? If so, the claimant is found not disabled. 10 11 If so, the claimant is If not, proceed to step five. (5) Is the claimant able to do any other work? 12 claimant is found disabled. 13 If not, the If so, the claimant is found not disabled. 14 15 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 16 949, 953-54 (9th Cir. 2001); 20 C.F.R. § 416.920(b)-(g)(1). 17 18 The claimant has the burden of proof at steps one through four, and 19 the Commissioner has the burden of proof at step five. Bustamante, 262 20 F.3d at 953-54. 21 establishing an inability to perform the past work, the Commissioner 22 must show that the claimant can perform some other work that exists in 23 significant numbers in the national economy, taking into account the 24 claimant s RFC, age, education and work experience. 25 at 1100; 20 C.F.R. § 416.920(g)(1). 26 testimony of a vocational expert or by reference to the Medical- 27 Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart P, If, at step four, the claimant meets her burden of 28 19 Tackett, 180 F.3d The Commissioner may do so by the 1 Appendix 2 (commonly known as the Grids ). 2 F.3d 1157, 1162 (9th Cir. 2001). 3 (strength-related) 4 inapplicable and the ALJ must take the testimony of a vocational expert. 5 Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000). and Osenbrock v. Apfel, 240 When a claimant has both exertional nonexertional limitations, the Grids are 6 7 V. 8 THE ALJ S DECISION 9 10 On remand, ALJ Tamara Turner-Jones correctly noted that Plaintiff 11 filed an application for disability and disability insurance benefits 12 on November 3, 2004, with a claimed disability onset date of October 24, 13 2002. 14 application was previously denied by ALJ Tai on May 18, 2007. 15 id.). However, after the Appeals Council denied Plaintiff s request for 16 review, this Court reversed the first ALJ decision and remanded the case 17 for further administrative proceedings. 18 procedural history, pursuant to this Court s order, the Appeals Council 19 directed ALJ Turner-Jones to (1) evaluate Plaintiff s mental impairment 20 as a severe 21 functional capacity with non-exertional mental limitations and procure 22 the testimony of a vocational expert to consider both the exertional and 23 non-exertional limitations of Plaintiff; and (3) further evaluate 24 Plaintiff s subjective pain testimony. (AR 566). As ALJ impairment; (2) Turner-Jones 26 \\ 27 \\ 28 20 noted, Plaintiff s (See As discussed in the section on re-evaluate 25 also the Plaintiff s residual 1 Plaintiff appeared and testified at a hearing held before ALJ 2 Turner-Jones on May 11, 2011. 3 testified at the hearing. An impartial vocational expert also (AR 691-772). 4 5 ALJ Turner-Jones then employed the five-step sequential evaluation 6 process and concluded that Plaintiff was not disabled under the Social 7 Security Act. 8 had not engaged in substantial gainful activity since his alleged 9 disability onset date of October 24, 2002. (AR 566-77). At step one, the ALJ found that Plaintiff (AR 569). At step two, the 10 ALJ found that Plaintiff had the severe impairments of degenerative 11 spondylosis, status post gunshot wound to the left anterior thigh with 12 residual 13 depressive disorder, and an anxiety disorder. 14 the ALJ throughly considered the impairments listed in step two and 15 found that, through the last-insured date, none of them met or medically 16 equaled a listed impairment. 17 Plaintiff had the following RFC: neuropathic pain in the left lower (AR 569-70). extremity, (Id.). a major At step three, The ALJ then found that 18 19 [Plaintiff] has the residual functional capacity to perform 20 sedentary work (20 CFR 404.1567(a)). [Plaintiff] could lift 21 and carry 10 pounds occasionally and less than 10 pounds 22 frequently. 23 workday, and he could stand and walk for 2 hours out of an 8- 24 hour 25 scaffolds. 26 he could occasionally kneel, stoop, and crawl. 27 impairment limited him to simple, repetitive tasks, which He could sit for 6 hours out of an 8-hour workday. He could not climb ladders, ramps, or He could occasionally climb ramps and stairs; and 28 21 His mental 1 were not production line. 2 He could work in an object- oriented work environment. 3 4 (AR 570). 5 return to his past work. 6 a vocational expert in coming to this conclusion. 7 step five, the ALJ found that considering [Plaintiff s] age, education, 8 work experience, and residual functional capacity, there were jobs that 9 existed in significant numbers in the national economy that [Plaintiff] 10 could have performed. (AR 576). In coming to this conclusion, the ALJ 11 relied 12 Plaintiff s RFC would be able to work as a bench assembler of small 13 products, surveillance system monitor, or information clerk. 14 712). 15 could have performed work that existed in significant numbers in the 16 national economy. on Next, at step four, the ALJ found that Plaintiff could not the (AR 575). vocational The ALJ relied on the testimony of expert s testimony (Id.). that a Finally, at person with (See AR The ALJ found that Plaintiff was not disabled because Plaintiff (AR 576). 17 18 VI. 19 STANDARD OF REVIEW 20 21 Under 42 U.S.C. § 405(g), a district court may review the 22 Commissioner s decision to deny benefits. The court may set aside the 23 Commissioner s decision when the ALJ s findings are based on legal error 24 or are not supported by substantial evidence in the record as a whole. 25 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Smolen v. 26 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). 27 more than a scintilla, but less than a preponderance. 28 F.3d at 720. Substantial evidence is Reddick, 157 It is relevant evidence which a reasonable person might 22 1 accept as adequate to support a conclusion. Id. To determine whether 2 substantial evidence supports a finding, the court must consider the 3 record as a whole, weighing both evidence that supports and evidence 4 that detracts from the [Commissioner s] conclusion. Aukland, 257 F.3d 5 at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 6 If the evidence can reasonably support either affirming or reversing 7 that conclusion, the court may not substitute its judgment for that of 8 the Commissioner. Reddick, 157 F.3d at 720-21. 9 10 VII. 11 DISCUSSION 12 13 Plaintiff contends the ALJ erred for four reasons. First, 14 Plaintiff alleges that the ALJ failed to properly consider Plaintiff s 15 subjective complaints and properly assess his credibility. (Id. at 13). 16 Second, Plaintiff argues that the ALJ erred in fail[ing] to mention the 17 primary treating physician permanent and stationary report prepared by 18 the treating orthopedic surgeon Dr. Anthony T. Fenison, M.D. dated 19 January 7, 2004. 20 that reports from Dr. Neudeck-Dicken and Dr. Adeyemo establish that his 21 mental symptoms and limitations are far more severe than as found by the 22 ALJ in her residual functional capacity assessment. 23 Fourth, Plaintiff contends that his residual functional limitations 24 preclude him from performing the jobs identified by the vocational 25 expert and that the vocational expert provided incorrect definitions of 26 the jobs the ALJ found that Plaintiff could perform. (Complaint Mem. at 4). 27 28 23 Third, Plaintiff contends (Id. at 9). (Id. at 19-24). 1 However, the Court finds that Plaintiff s claims lack merit. For the 2 reasons discussed below, the Court finds that the ALJ s decision should 3 be AFFIRMED. 4 5 6 A. The ALJ Provided Clear And Convincing Reasons For Rejecting Plaintiff s Credibility 7 8 9 Plaintiff contends that the ALJ failed to properly consider his subjective complaints. (Complaint Mem. at 13). In sum, Plaintiff 10 claims that the ALJ failed to provide clear and convincing reasons to 11 reject Plaintiff s testimony regarding the severity of his symptoms. 12 (Id. at 17). The Court disagrees. 13 14 In assessing the credibility of a claimant s testimony regarding 15 subjective pain or the intensity of symptoms, the ALJ engages in a 16 two-step analysis. 17 2009). 18 medical evidence of an underlying impairment which could reasonably be 19 expected to produce the pain or other symptoms alleged. 20 Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)). 21 claimant has presented such evidence, and there is no evidence of 22 malingering, then the ALJ must give specific, clear and convincing 23 reasons in order to reject the claimant s testimony about the severity 24 of the symptoms. 25 same time, the ALJ is not required to believe every allegation of 26 disabling pain, or else disability benefits would be available for the 27 asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A). 28 v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. First, the ALJ must determine whether there is objective Id. (quoting Id. (quoting Lingenfelter, 504 F.3d at 1036). 24 If the At the Fair 1 In evaluating the claimant s testimony, the ALJ may use ordinary 2 techniques of credibility evaluation. 3 613 F.3d 1217, 1224 n.3 (9th Cir 2010) (quoting Smolen, 80 F.3d at 4 1284). For instance, the ALJ may consider inconsistencies either in the 5 claimant s 6 conduct, 7 treatment or to follow a prescribed course of treatment, and whether 8 the claimant engages in daily activities inconsistent with the alleged 9 symptoms. testimony or unexplained between or the Turner v. Comm r of Soc. Sec., testimony inadequately and explained the claimant s failure to seek See Turner, 613 F.3d at 1224 n.3 (internal quotation marks 10 omitted), Tommasetti v. Astrue, 533 F.3d at 1035, 1039 (9th Cir 2008) 11 (internal quotation marks omitted), Lingenfelter, 504 F.3d at 1040. 12 While a claimant need not vegetate in a dark room in order to be 13 eligible for benefits, Cooper v. Bowen, 815 F.2d 557, 561 (9th Cir. 14 1987) (internal quotation omitted), the ALJ may discredit a claimant s 15 testimony when the claimant reports participation in everyday activities 16 indicating capacities that are transferable to a work setting. 17 Morgan, 169 F.3d at 600. 18 some difficulty functioning, they may be grounds for discrediting the 19 claimant s testimony to the extent that they contradict claims of a 20 totally 21 Likelihood 22 discounting a plaintiff s testimony. See Tonapetyan v. Halter, 242 F.3d 23 1144, 1148 (9th Cir. 2001). 24 also serve as clear and convincing grounds to reject such testimony. 25 Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). debilitating of See Further, even where those activities suggest impairment. exaggeration is See a Turner, clear and 613 F.3d specific at 1225. reason for A plaintiff s conflicting testimony may 26 27 Here, there was medical evidence of an underlying impairment. 28 However, the ALJ gave specific, clear and convincing reasons to reject 25 1 Plaintiff s testimony about the severity of his symptoms. Indeed, the 2 ALJ thoroughly reviewed Plaintiff s medical record before explaining 3 that the objective medical evidence does not support his testimony. (AR 4 571-75). 5 6 As a basis for discounting Plaintiff s subjective testimony, the 7 ALJ summarized the doctors reports finding that Plaintiff appeared to 8 be exaggerating his symptoms. 9 doctors reported that Plaintiff exaggerated responses to stimuli and did (AR 574). The ALJ observed that several 10 not exert full effort during examinations. 11 a report dated March 17, 2005, Dr. Laurence Meltzer observed that 12 [Plaintiff] is not totally cooperative. 13 to 90 degrees (out of a possible 140 degrees), and I must coax him to 14 allow me to do this, despite the fact that he sits with his knees flexed 15 to 90 degrees on the examining table. 16 noted that Plaintiff was uncooperative despite the fact that Plaintiff s 17 ability to extend his knees bilaterally was normal and there was no 18 pathology in either knee. (Id.). Dr. Meltzer also noted that [t]here 19 [was] no swelling, redness, increased heat or deformity in or around the 20 knees. 21 or pain with patellofemoral compression. 22 cruciate or rotatory instability. 23 popliteral fossa nor tenderness over the pes anserine bursa. McMurray s 24 test [was] negative for a torn medial and/or lateral meniscus. Pivot- 25 shift test [was] negative. (Id.). 26 Finally, Dr. Meltzer reported that Plaintiff was uncooperative during 27 an examination of his ankles, feet, and toes. (Id.). Specifically, Dr. 28 Meltzer observed that [e]xamination of [Plaintiff s] ankles and feet There [was] no effusion. (AR 574). For example, in I can only bend his left knee (AR 365). Further, Dr. Meltzer There [was] no patellofemoral grating There [was] no collateral, There [were] no masses in the Lachman s test [was] negative. 26 1 is within normal limits, however, he does resist, and I must constantly 2 tell him to allow me to examine him and relax, that I am not going to 3 hurt him. (Id.). 4 results indicate that Plaintiff was exaggerating or faking his alleged 5 disability. 6 Robert D. McDaniel noted that on the Minnesota Multiphasic Personality 7 Inventory-2, Plaintiff scored an invalid profile and that faking 8 bad is the most likely reason. Further, as the ALJ explained, personality test (See AR 345, 574). In a report dated March 31, 2004, Dr. (AR 345). 9 10 The ALJ also observed that Plaintiff gave inconsistent answers 11 regarding not only his ability to care for himself but also his ability 12 to leave home and the frequency with which he drove. 13 ALJ noted, while Plaintiff testified that he was scared to go nowhere 14 [sic] after the 2002 incident, (AR 697), the record clearly establishes 15 that Plaintiff traveled around the world at least twice after the 16 incident. 17 placement, Plaintiff mention[ed] plans that he was within a week or so 18 planning to go back home to visit his family in Jordan. 19 recently, Plaintiff traveled to Jordan in 2011. 20 also 21 examination report, Dr. Romauldo R. Rodriguez observed that [Plaintiff] 22 can leave home alone. 23 transportation, [Plaintiff] drives his own automobile." (Id.). 24 Rodriguez also reported that Plaintiff s other [o]utside activities 25 include walking. (AR 574). accurately (AR 574). As the During an April 2009 hospitalization for stent observed that in (AR 357). a March (AR 10). More (AR 687-88). 15, 2005 The ALJ psychological Dr. Rodriguez reported that [f]or (Id.). 26 27 28 27 Dr. 1 Plaintiff also provided inconsistent testimony about his ability 2 to care for himself. 3 unable to dress himself without assistance during the period from 2002 4 to 2006. 5 a shower or a bath without assistance. 6 stated that I cannot be standing in the shower. 7 hold me . . . . (Id.). 8 Rodriguez s March 2005 report, noting that while [Plaintiff] is careful 9 not to easily admit that he does household chores, Plaintiff stated 10 that he can take care of self-dressing, bathing, and personal hygiene. 11 (AR 357). 12 ground for discounting Plaintiff s testimony. 13 finds 14 testimony 15 Plaintiff s 16 convincing reasons to reject Plaintiff s subjective testimony and no 17 remand is required. (AR 695). At the hearing, Plaintiff testified that he was Plaintiff testified that he had difficulty taking (Id.). Specifically, Plaintiff I have somebody to However, this testimony is contradicted by Dr. The ALJ cited these inconsistent statements as a separate that the discrepancies constitutes a testimony. clear between and the (AR 574). record convincing Accordingly, the ALJ and reason The Court Plaintiff s to provided discount clear and 18 19 20 B. The ALJ Provided Specific And Legitimate Reasons For Discounting Dr. Fenison s Opinion 21 22 According to Plaintiff, the ALJ s failure to properly consider the 23 opinions of the treating physician Dr. Fenison regarding Plaintiff s 24 physical limitations clearly constitutes reversible error. (Id. at 8). 25 Plaintiff further argues that Dr. Fenison s conclusions indicate that 26 Plaintiff would be precluded from performing the occupations listed by 27 the ALJ at step five. (Complaint Mem. at 7). 28 28 For example, Plaintiff 1 alleges that the occupation of Small Product Assembler identified by 2 the vocational expert . . . and relied upon by the ALJ in her decision 3 . . . would be precluded based on its repetitive nature and the fact 4 that it would obviously require repetitive motions involving Plaintiff s 5 cervical spine. (Id.). 6 7 However, Plaintiff s argument that the ALJ failed to consider Dr. 8 Fenison s opinions is not supported by the record. The most recent ALJ 9 decision incorporated by reference the prior decision. Because this 10 action was remanded only on the issue of mental impairments, the ALJ s 11 incorporation of the prior decision s analysis of other issues was 12 proper. 13 the remand order directed the ALJ to re-evaluate Plaintiff s RFC with 14 non-exertional mental limitations and further consider Plaintiff s 15 credibility. 16 not instructed to reconsider evidence pertaining to Plaintiff s alleged 17 physical impairments.3 18 Fenison s reports on remand because such reports pertain only to 19 Plaintiff s alleged physical impairments. Furthermore, the first ALJ s 20 decision adequately addressed Dr. Fenison s reports. 21 Plaintiff s claim fails. As the ALJ accurately noted and as this Court discussed above, (See AR 566, 578-93; see also AR 587 n.4). The ALJ was Indeed, the ALJ did not need to evaluate Dr. Accordingly, 22 23 Even if the ALJ had given additional consideration to Dr. Fenison s 24 findings, it is unclear that Dr. Fenison s reports would support 25 Plaintiff s alleged disability. In his complaint, Plaintiff selectively 26 3 The Court notes that this may explain why the review of Plaintiff s medical history in the most recent ALJ opinion largely 28 focuses on the period of time subsequent to the first opinion. 27 29 1 quotes portions of Dr. Fenison s reports. 2 as finding, among other things, that Plaintiff should be precluded from 3 performing any repetitive motions involving the cervical spine along 4 with "any heavy work or prolonged stationary positioning involving the 5 lumbar spine. 6 Plaintiff ignores Dr. Fenison s conclusion that while Plaintiff was 7 unable to return to his usual and customary duties, he should be 8 allowed to undergo vocational rehabilitation and is limited to light 9 work . . . in a very benign atmosphere." (Complaint Mem. at Plaintiff cites Dr. Fenison 4-5) (quoting AR 331). (AR 331). However, The first ALJ 10 opinion accurately noted that Dr. Fenison found Plaintiff would be 11 limited to light work with continued use of his cane for assistance and 12 with ambulation. (AR 53). Thus, any failure to consider Dr. Fenison s 13 opinions 14 consideration of Dr. Fenison s opinions would not have altered the 15 outcome. 16 1162 (9th Cir. 2008) (if ALJ s error was inconsequential to the ultimate 17 nondisability determination, no remand required). on remand could only be considered harmless error, as See Carmickle v. Comm r of Soc. Sec. Admin., 533 F.3d 1155, 18 19 Finally, to the extent that Dr. Fenison s opinions may have been 20 rejected, the first ALJ opinion provides specific and legitimate reasons 21 for doing so. 22 to great deference, it is not necessarily conclusive as to either the 23 physical condition or the ultimate issue of disability. 24 Comm r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999). 25 treating doctor s opinion is contradicted by another doctor, the 26 Commissioner may not reject his opinion without providing specific and 27 legitimate reasons supported by substantial evidence. Benton ex rel. 28 Benton v. Barnhart, 331 F.3d 1030, 1036 (9th Cir. 2003) (quoting Lester Although the opinion of a treating physician is entitled 30 Morgan v. When a 1 v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)). 2 weight to a treating physician s opinions when the treating physician s 3 opinions conflicted with those of a non-examining physician and the non- 4 examining 5 Magallanes v. Bowen, 881 F.2d 747, 751-755 (9th Cir. 1989). physician s opinions were An ALJ may allow less consistent with the record. 6 7 Here, the first ALJ opinion accurately noted that in March of 2005, 8 Dr. Laurence Meltzer saw Plaintiff 9 evaluation and concluded that Plaintiff had the ability to lift/carry 10 up to 20 pounds occasionally; sit for unlimited periods of time; [and] 11 stand/walk with his cane for four hours in an eight-hour workday. 12 53). 13 Plaintiff had full cervical range of motion, but limited lumbar range 14 of motion; did not appear to put forth full effort, as he moved on and 15 off the examining table with very little effort and went from the supine 16 to the sitting position and vice versa without difficulty; had a normal 17 heel-toe gait when using his cane; extended his knees fully; and had no 18 abnormalities in his upper extremities. 19 conclusion is consistent with evidence in the record that Plaintiff 20 exercises and goes on walks. 21 also 22 Plaintiff exaggerated his symptoms and did not exert full effort during 23 physical tests. 24 opinions, which were consistent with evidence in the record, was a 25 legitimate 26 Accordingly, no remand is required. a consultative orthopedic (AR The ALJ also correctly observed that Dr. Meltzer reported consistent and with (AR 114, 122). evidence that, (AR 251-57, 365). specific reason to 27 28 for \\ 31 (AR 53). Dr. Meltzer s Dr. Meltzer s opinion is during several examinations, Reliance upon Dr. Meltzer s reject Dr. Fenison s opinions. 1 C. The ALJ Gave Specific and Legitimate Reasons For Discounting The Opinions Of Drs. Neudeck-Dicken And Oluwafemi Adeyemo 2 3 4 Plaintiff contends that his mental symptoms and limitations are 5 far more severe than was found by the ALJ in her residual functional 6 capacity assessment. 7 claim, Plaintiff alleges that the ALJ improperly discounted an April 25, 8 2008 9 consultive psychological evaluation performed by Dr. Oluwafemi Adeyemo. report completed (Complaint Mem. at 9). by Dr. Neudeck-Dicken As support for this and a May 26, 2008 10 (Id.). However, while a retrospective diagnosis or opinion may be 11 relevant to the determination of a continuously existing disability 12 with onset prior to expiration of insured status, 13 Health & Human Servs., 44 F.3d 1453, 1461 n.5 (9th Cir. 1995), the ALJ 14 properly discounted the opinions of Drs. Neudeck-Dicken and Adeyemo on 15 multiple specific and legitimate grounds. Flatten v. Sec y of 16 17 1. Dr. Neudeck-Dicken 18 19 As Plaintiff notes, Dr. Neudeck-Dicken found that his symptoms 20 became more severe following a heart attack that occurred after the 21 last-insured date. 22 Plaintiff, Dr. Neudeck-Dicken did indeed conclude that [a]n incident 23 such as a heart attack, [sic] can cause the reoccurrence of the symptoms 24 of PTSD and that [Plaintiff s] symptoms have increased post the heart 25 attack. (AR 652-63). She also stated that Plantiff made great strides 26 in his [PTSD] until he sustained a heart attack last year. 27 Finally, Dr. Neudeck-Dicken diagnosed Plaintiff with Posttraumatic 28 Stress Disorder, Chronic, Adjustment Disorder with mixed Anxiety and (Id. at 10). In a 2008 report, after examining 32 (AR 652). 1 depressed mood [sic], Adjustment Disorder with withdrawal [sic], and 2 Somatization 3 legitimate and specific reasons for discounting Dr. Neudeck-Dicken s 4 opinions. Disorder. (AR 655). However, the ALJ provided 5 6 As the Court explained in its discussion of Dr. Fenison s reports, 7 the opinion of a treating physician is generally entitled to great 8 deference. 9 to either the physical condition or the ultimate issue of disability. However, such an opinion is not necessarily conclusive as 10 Morgan, 169 F.3d at 600. If a treating or examining doctor s opinion 11 is contradicted by another doctor s opinion, an ALJ may only reject it 12 by providing specific and legitimate reasons that are supported by 13 substantial evidence. 14 Cir. 2005). 15 opinion where it conflicts with that of a non-examining physician and 16 the non-examining physician s opinion is consistent with the record as 17 a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Indeed, less weight may be given to a treating physician s Magallanes, 881 F.2d at 751-755. 18 19 Here, Plaintiff alleges that the ALJ reject[ed] the entirety of 20 Dr. Neudeck-Dicken s report because Dr. Neudeck-Dicken had not examined 21 Plaintiff in several years, the report was based solely on Plaintiff s 22 statements, and at least some of those statements were inconsistent with 23 the record. 24 The ALJ did not reject Dr. Neudeck-Dicken s report. 25 gave the report substantial consideration but did not give [it] great 26 weight. (Complaint Mem. at 10). (AR 573). 27 28 33 However, Plaintiff is mistaken. Instead, the ALJ 1 As a basis for discounting Dr. Neudeck-Dicken s report, the ALJ 2 explained that Dr. Neudeck-Dicken had not seen [Plaintiff] for several 3 years, 4 anxiety]. 5 Neudeck-Dicken relied on [Plaintiff s] statements that he did not leave 6 his house, but the record indicates otherwise. 7 Neudeck-Dicken reported that Plaintiff presented with symptoms including 8 fearfulness of leaving the home. 9 repeatedly shows that Plaintiff left his home following the 2002 when [Plaintiff] (AR 574). returned, complaining of [depression and The ALJ also explained that [i]t appears Dr. (AR 652). (Id.). Indeed, Dr. However, the record 10 incident. To establish that Dr. Neudeck-Dicken s opinion was not 11 supported by the record, the ALJ cited Dr. Rodriguez s March 15, 2005 12 report. 13 [Plaintiff] can leave home alone. (AR 357). Dr. Rodriguez also noted 14 that [f]or transportation, [Plaintiff] drives his own automobile. 15 (Id.). 16 [o]utside activities include walking. (Id.). Dr. Rodriguez s report 17 is consistent with the record as a whole. 18 discussion of Plaintiff s credibility, the record establishes that 19 Plaintiff not only drove to the market, pharmacy, and shopping center 20 by himself after the 2002 incident but also traveled internationally on 21 at least two occasions. 22 provided specific and legitimate reasons for discounting Dr. Neudeck- 23 Dicken s opinion.4 (AR 574). Finally, Dr. In that report, Rodriguez Dr. observed Rodriguez that noted Plaintiff s that other As explained above in the Accordingly, the Court finds that the ALJ 24 4 Plaintiff might contend that because Dr. Neudeck-Dicken s 2008 25 report summarizes Plaintiff s condition following a 2007 heart attack, 26 (see AR 652-63), the fact that Plaintiff drove and left his home prior to 2007 does not contradict Dr. Neudeck-Dicken s report. However, the 27 Court notes that the period of time most relevant to the ALJ s decision is the period between Plaintiff s alleged disability onset date of 28 October 24, 2002 and his last-insured date of June 30, 2006. The Court 34 1 2. Dr. Adeyemo 2 3 Plaintiff also contends that the ALJ improperly discounted Dr. 4 Adeyemo's May 26, 2008 examination. (Complaint Mem. at 11). 5 emphasizes that Dr. Adeyemo diagnosed Plaintiff with having Post 6 Traumatic Stress Disorder, chronic, major depressive disorder recurrent 7 severe without psychotic features, and R/O anxiety disorder and found 8 Plaintiff to have a GAF score of 45. (Id.). Plaintiff alleges that the 9 ALJ rejected Dr. Adeyemo s report because Dr. Adeyemo saw Plaintiff on 10 a one-time basis, and because his opinion is outweighed by the totality 11 of the evidence, which reveals that [Plaintiff s] depressive and anxiety 12 symptoms are largely controlled, both with and without psychiatric 13 medication. (Id.). Plaintiff contends that this basis for discounting 14 Dr. Adeyemo s report makes no sense whatsoever. 15 Plaintiff, to reject all medical opinions such as Dr. Adeyemo s simply 16 because they only evaluated the individual on a one-time basis [would 17 mean that] none of the Social Security consultative examination reports 18 would be given any weight whatsoever since they are also conducted on 19 a one-time basis. (Id.). Plaintiff According to (Id. at 11-12). 20 21 As an initial matter, Plaintiff is mistaken that the ALJ failed 22 to give Dr. Adeyemo s opinion any weight. Plaintiff is correct that Dr. 23 Adeyemo diagnosed him with a GAF of 45 and Post Traumatic Stress 24 further notes that the ALJ both found that period most relevant to Plaintiff s claim and emphasized that Dr. Neudeck-Dicken s report is 25 dated April 25, 2008, well beyond the date last insured. (AR 572). 26 Further, at least one of Plaintiff s international trips occurred as late as 2011, three years after Dr. Neudeck-Dicken s report. Finally, 27 according to Dr. Neudeck-Dicken, prior to Plaintiff s heart attack, Plaintiff was able to leave his home with his wife and travel to Las 28 Vegas. (AR 656). 35 1 Disorder, Chronic, Major Depressive Disorder Recurrent Severe without 2 Psychotic Features, [and] R/O Anxiety Disorder . . . . 3 However, the ALJ provided a comprehensive summary of Dr. Adeyemo s 4 conclusions. 5 conclusion that Plaintiff should not be placed in a regular work 6 environment given his symptoms of depression and anxiety. 7 660). 8 . . 9 for discounting Dr. Adeyemo s opinions. (See AR 660). The ALJ noted Dr. Adeyemo s diagnosis along with his (AR 573, The ALJ simply d[id] not give great weight to the opinions . . (AR 573). Instead, the ALJ provided clear and specific reasons 10 11 The Ninth Circuit has explained that an ALJ may give less weight 12 to an examining doctor s opinion for lack of objective support. 13 Tonapetyan, 242 F.3d at 1149. 14 an examining doctor s opinion than to a treating physician s opinion on 15 the 16 plaintiff. 17 Adeyemo s opinion because Dr. Adeyemo saw [Plaintiff] on a one-time 18 basis, and his opinion is outweighed by the totality of the evidence, 19 which reveals that the claimant s depressive and anxiety symptoms are 20 largely controlled, both with and without psychiatric medications. (AR 21 573). 22 noted 23 medication 24 examination. 25 contradicts 26 Plaintiff s treating psychologist. 27 Dr. Neudeck-Dicken reported that Plaintiff has made great strides in 28 his posttraumatic stress disorder and is no longer isolating himself basis of the Further, an ALJ may give less weight to examining doctor s limited Lester, 81 F.3d at 832. observation of the Here, the ALJ discounted Dr. The Court notes that in his March 2005 report, Dr. Rodriguez that Plaintiff and was ha[d] (AR 360). Dr. no reasonably functional stable on his limitations psychiatric based on the Further, as an example of where the record Adeyemo s opinion, 36 the ALJ (AR 574). cited reports from Specifically, in 2004, 1 within his home. (AR 234). Dr. Neudeck-Dicken also reported that 2 Plaintiff is now getting out and going to places with his cousins as 3 well as on trips with his wife. He is also once again driving. 4 Dr. Neudeck-Dicken noted that Plaintiff s cognitive functioning has 5 greatly improved. 6 concentration. 7 computer to study various subjects of interest to him. 8 Finally, Dr. Neudeck-Dicken reported that Plaintiff truly enjoys being 9 with people and has picked up his former relationships with family and (Id.). He is no longer confused, and demonstrates increased He is now reading, going to the library, and using his (Id.). (AR 235). 10 friends. 11 Adeyemo only saw Plaintiff on one occasion. 12 provided 13 Adeyemo s] opinion is outweighed by the totality of the evidence. 14 573). 15 legitimate reasons to discount Dr. Adeyemo s opinions. numerous As the ALJ explained, the record indicates that Dr. examples supporting his (AR 28-31, 34). conclusion The ALJ that [Dr. (AR Accordingly, the Court finds that the ALJ provided specific and 16 17 18 D. The ALJ s Reliance On The Vocational Expert s Testimony Was Supported By Substantial Evidence 19 20 Finally, Plaintiff argues that the ALJ improperly relied on the 21 testimony of the vocational expert. (AR 19-24). 22 The ALJ provided the vocational expert with the following RFC: 23 24 [Plaintiff] has the residual functional capacity to perform 25 sedentary work (20 CFR 404.1567(a)). [Plaintiff] could lift 26 and carry 10 pounds occasionally and less than 10 pounds 27 frequently. 28 workday, and he could stand and walk for 2 hours out of an 8- He could sit for 6 hours out of an 8-hour 37 1 hour workday. He could not climb ladders, ramps, or 2 scaffolds. He could occasionally climb ramps and stairs; and 3 he could occasionally kneel, stoop, and crawl. 4 impairment limited him to simple, repetitive tasks, which 5 were not production line. 6 oriented work environment. His mental He could work in an object- 7 8 (AR 570). After being asked whether there are jobs in the national 9 economy that a person with Plaintiff s age, education, work experience, 10 and RFC could perform, the vocational expert testified that such a 11 person could perform work as a bench assembler of small products, 12 surveillance system monitor, and information clerk. (AR 576, 712-21). 13 14 As an initial matter, the Court notes that in order for the 15 vocational expert s testimony to constitute substantial evidence, the 16 hypothetical posed must consider all of the claimant s limitations. 17 Andrews v. Shalala, 53 F.3d 1035, 1044 (9th Cir. 1995). 18 ALJ is not required to include limitations for which there was no 19 evidence. 20 as true the restrictions set forth in hypothetical if they were not 21 supported by substantial evidence). 22 limitations preclude him from performing the jobs identified by the 23 vocational expert. (Complaint Mem. at 19-24). In sum, Plaintiff argues 24 that the vocational expert was wrong about what each job entails. 25 (Id.). However, the See Osenbrock, 240 F.3d at 1164-65 (ALJ not bound to accept The Court disagrees. 26 27 28 38 Here, Plaintiff contends that his 1. 1 Bench Assembler Of Small Products 2 3 Plaintiff alleges that he could not be a small products assembler 4 because the ALJ s RFC excludes production line jobs and the DOT 5 description of that occupation [requires] working on an assembly line. 6 (Complaint Mem. at 20). Specifically, Plaintiff asserts that the ALJ s 7 preclusion from production line work activity, would clearly preclude 8 the occupation of small products assembler. 9 Plaintiff quotes, without citation, the DOT as providing that a small assembler products 11 repetitive tasks on assembly line to mass produce small products . . . 12 . (Id.). However, Plaintiff s argument is misplaced. The ALJ did not 13 preclude all assembly line work. 14 paced assembly line work. Indeed, the ALJ limited the vocational expert 15 to listing jobs involving simple, routine, repetitive tasks in a work 16 environment free of fast-paced production requirements or assembly line 17 work, such as that involving a conveyor belt. 18 restriction, 19 Plaintiff s RFC could perform work as an assembler of small products. 20 (AR 713). vocational perform any combination As support, 10 the would (Id.). of following The ALJ instead only precluded fast- expert testified (AR 712). that a Given this person with 21 22 Further, although the expert described a job that deviated slightly 23 from the DOT, the record supported Plaintiff s ability to perform this 24 job. 25 the records contain persuasive evidence to support the deviation. 26 Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995); Tommasetti, 533 27 F.3d at 1042. 28 of small products assembler to only those small products assembler jobs An ALJ may rely on expert testimony that deviates from the DOT if See Here, the vocational expert limited the DOT definition 39 1 that are sedentary. (AR 713). The vocational expert not only testified 2 that sedentary 3 quantified the number of such jobs in the national and local economy. 4 (Id.). 5 including the slight deviation from the DOT, is thus supported by 6 substantial evidence. 7 expert identified small products assembler jobs that can be performed 8 by someone with Plaintiff s RFC. Accordingly, Plaintiff s argument that 9 the ALJ improperly relied upon the vocational expert s testimony fails. small products assembler positions exist but also The ALJ s reliance on the vocational expert s testimony, Further, as explained above, the vocational 10 2. 11 Surveillance System Monitor 12 13 Plaintiff also contends that his impairments precluded him from 14 being a surveillance system monitor. 15 Plaintiff cites Wikipedia for the proposition that he could not work 16 as a surveillance system monitor because it is neither a sedentary nor 17 unskilled position. 18 any, employers ask employees to simply sit and watch a bank of monitors 19 all day long. Rather, in order to avoid excessive boredom, fatigue, and 20 the resultant poor performance, employers ask surveillance system 21 monitors to do a wider variety of security related tasks throughout the 22 work day, thus rendering the exertional level required to do the 23 occupation greater than sedentary. (Complaint Mem. at 21-22) (quoting 24 Wikipedia). Plaintiff also alleges that surveillance system monitor is 25 not 26 experienced and trained workers are needed and because [s]ome say 27 that effective monitoring in the [gambling] industry requires training 28 beyond what would be considered required for unskilled work. an unskilled (Id.). (Complaint Mem. at 20-22). According to Plaintiff, [v]ery few, if occupation because 40 in the post 9/11 world, (Id. at 1 22) (quoting Wikipedia). Plaintiff 2 downloaded two job postings for surveillance system monitor and that 3 those postings prove that work as a surveillance system monitor requires 4 quantitative, 5 ability. communicative, and additionally other skills states beyond that he Plaintiff s (Id. at 22). 6 7 The Court first notes that [t]he DOT is the best source for how 8 a job is generally performed, Carmickle, 533 F.3d at 1166 (internal 9 quotation marks omitted)), and the Court questions the reliability of 10 Wikipedia as a source. To the extent Plaintiff is complaining again 11 about the vocational expert s alleged deviation from the DOT, the Court 12 notes that an ALJ may rely on expert testimony that deviates from the 13 DOT if the records contain persuasive evidence to support the deviation. 14 See Johnson, 60 F.3d at 1435. Here, the vocational expert provided a DOT 15 definition for government service surveillance monitor. 16 The vocational expert then discussed the position further, explaining 17 that surveillance monitors are found throughout the labor market and 18 that being a monitor is a fairly flexible occupation that can be 19 performed on a sedentary basis. 20 The expert also quantified the number of surveillance system monitor 21 positions that are available at both the national and regional level. 22 (AR 713). 23 reference to Wikipedia and despite the two job postings that Plaintiff 24 provides as evidence that the position entails work beyond Plaintiff s 25 RFC, the ALJ did not err in relying on the vocational expert s testimony 26 about the requirements of work as a surveillance system monitor. (Id.). (AR 713). Tommasetti, 533 F.3d at 1042. Accordingly, the Court finds that despite Plaintiff s 27 28 41 While 1 some system monitor positions no doubt require job skills that are not 2 required by other surveillance system monitor positions, the vocational 3 expert s testimony relates to the occupation in general and is supported 4 by the DOT. 5 3. 6 Information Clerk 7 8 9 Finally, Plaintiff alleges that he cannot perform work as an information clerk. When the vocational expert testified that a person 10 with Plaintiff s RFC could perform work as an information clerk, the 11 expert explained that [t]here is no good DOT match with what is done 12 today. 13 information clerk to information clerk positions found outside the 14 transportation sector and explained that there are approximately 52,000 15 jobs nationally and 1,200 regionally. 16 contends that a person with his RFC could not work as an information 17 clerk because (1) every aspect of the occupation of information clerk 18 pertains to dealing with people rather than objects; and (2) the ALJ s 19 RFC, 20 environment would clearly preclude the performance of the occupation 21 of information clerk. (Complaint Mem. at 24). According to Plaintiff, 22 the DOT definition of an information clerk is someone who provides 23 travel information 24 regarding departures, arrivals, stops, and destinations of scheduled 25 buses or trains. 26 information clerk in a train depot, an airport, a shopping mall, or a (AR 713). which The expert then deviated from the DOT for train included He could for bus (Id.). or work train (Id.). in Nevertheless, Plaintiff an patrons; object-oriented [a]nswers work inquiries Plaintiff claims that [w]hether it is an 27 28 42 1 public office building, all of these information clerks involve dealing 2 with people rather than objects and thus they would clearly be precluded 3 by 4 capacity. the ALJ s own assessment of Plaintiff s residual functional (Id.). 5 6 As an initial matter, the Court notes that Plaintiff s RFC does not 7 clearly preclude all interaction with the public. It merely states that 8 Plaintiff could work in an object-oriented environment. 9 It does not state that Plaintiff can only work in an object-oriented (AR 570). 10 environment. Accordingly, Plaintiff s claim fails to the extent that 11 he is not limited only to work in an object-oriented environment. 12 13 The Court further notes that Plaintiff s claim would fail even if 14 Plaintiff were somehow able to establish that he is limited exclusively 15 to work in an object-oriented environment. 16 expert explained that even if the person [with Plaintiff s RFC] would 17 work better with objects than with individuals, that person could 18 perform any of the three jobs, including information clerk. 19 The vocational expert also explained that the information clerk position 20 would only be precluded if such a person could not interact with the 21 public at all. 22 he is completely unable to interact with the public. Instead, Plaintiff 23 contends that he could not be an information clerk because [the] 24 occupation . . . involve[s] dealing with people rather than objects the 25 vast majority of the work day [sic]. 26 extend that Plaintiff admits he is capable of some interaction with the 27 public, he is capable of working as an information clerk. (Id.). Indeed, the vocational (AR 714). Notably, however, Plaintiff does not claim that 28 43 (Complaint Mem. at 24). To the 1 Finally, the vocational expert testified that even if interaction 2 with the public were completely precluded, a person with Plaintiff s RFC 3 could work as a small products assembler or surveillance system monitor. 4 (AR 714-15). 5 object-oriented. Nor does Plaintiff argue that either position is not 6 object-oriented. Accordingly, the Court finds that even if Plaintiff 7 were restricted to object-oriented jobs, the ALJ did not commit error 8 by 9 Plaintiff s contention that the ALJ improperly relied on the vocational 10 There is no evidence that either position is anything but concluding jobs existed that Plaintiff could perform. Thus, expert s testimony fails. 11 12 VIII. 13 CONCLUSION 14 15 Consistent with the foregoing, and pursuant to sentence four of 42 16 U.S.C. § 405(g),8 IT IS ORDERED that judgment be entered AFFIRMING the 17 decision of the Commissioner and dismissing this action with prejudice. 18 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this 19 Order and the Judgment on counsel for both parties. 20 21 DATED: January 29, 2013. 22 /S/ ______________________________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 23 24 25 26 8 This sentence provides: The [district] court shall have power 27 to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of 28 Social Security, with or without remanding the cause for a rehearing. 44
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