Joseph Preston v. Michael J Astrue, No. 5:2011cv01914 - Document 16 (C.D. Cal. 2012)
Court Description: MEMORANDUM OF DECISION by Magistrate Judge Andrew J. Wistrich. The Commissioner's decision is supported by substantial evidence and is free of legal error. Accordingly, the Commissioner's decision is affirmed. IT IS SO ORDERED. (mz)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 13 14 15 16 JOSEPH PRESTON, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of the Social ) Security Administration, ) ) Defendant. ) _____________________________________) Case No. EDCV 11-01914 AJW MEMORANDUM OF DECISION 17 Plaintiff filed this action seeking reversal of the decision of defendant, the Commissioner of the 18 Social Security Administration (the Commissioner ), denying plaintiff s application for disability insurance 19 benefits and supplemental security income ( SSI ) benefits. The parties have filed a Joint Stipulation ( JS ) 20 setting forth their contentions with respect to each disputed issue. 21 Administrative Proceedings 22 The procedural facts are undisputed and are summarized in the Joint Stipulation. [JS 2; see 23 [Administrative Record ( AR ) 236-237]. Following a decision by this court reversing the Commissioner s 24 denial of benefits and remanding this case for further development of the record, an administrative law judge 25 ( ALJ ) issued a final written hearing decision dated September 22, 2011. The ALJ found that plaintiff did 26 not have a severe impairment or combination of impairments beginning on April 1, 2008, and therefore that 27 28 1 plaintiff s disability ended on that date.1 [AR 239-245]. 2 Standard of Review 3 The Commissioner s denial of benefits should be disturbed only if it is not supported by substantial 4 evidence or is based on legal error. Stout v. Comm r, Social Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 5 2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). Substantial evidence means more than 6 a mere scintilla, but less than a preponderance. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 7 2005). It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. 8 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)(internal quotation marks omitted). The court is 9 required to review the record as a whole and to consider evidence detracting from the decision as well as 10 evidence supporting the decision. Robbins v. Social Sec. Admin, 466 F.3d 880, 882 (9th Cir. 2006); 11 Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). Where the evidence is susceptible to more than 12 one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld. 13 Thomas, 278 F.3d at 954 (citing Morgan v. Comm r of Social Sec. Admin., 169 F.3d 595, 599 (9th Cir. 14 1999)). 15 Discussion 16 Severity determination 17 Plaintiff contends that the ALJ erred in finding that plaintiff s mental impairment is not severe. 18 At step two of the sequential evaluation procedure, a claimant has the burden to present evidence of 19 medical signs, symptoms and laboratory findings that establish a medically determinable physical or mental 20 impairment that is severe, and that can be expected to result in death or which has lasted or can be expected 21 to last for a continuous period of at least twelve months. Ukolov v. Barnhart, 420 F.3d 1002, 1004 1005 (9th 22 Cir. 2005); Smolen v. Chater, 80 F.3d 1273, 1289-1290 (9th Cir. 1996). A medically determinable mental 23 impairment is one that results from anatomical, physiological, or psychological abnormalities which can 24 25 26 27 28 1 Plaintiff previously was found disabled under the childhood disability standard for attention deficit hyperactivity disorder and oppositional defiant disorder, but those benefits were terminated once plaintiff turned 18. Plaintiff filed new applications for disabled adult child benefits and for adult SSI benefits. His application for adult SSI benefits was granted, but on remand, the ALJ reopened that application and denied it, along with plaintiff s application for disabled adult child benefits. The denial of plaintiff s applications for disabled adult child benefits and adult SSI benefits are at issue in this action. [See JS 2; AR 236-237]. 2 1 be shown by medically acceptable clinical and laboratory diagnostic techniques, and it must be established 2 by medical evidence consisting of signs, symptoms, and laboratory findings, not only by [the claimant s] 3 statement of symptoms. 4 416.920a(b)(1). Symptoms are the claimant s description of his or her impairment, while psychiatric signs 5 are medically demonstrable and observable phenomena which indicate specific abnormalities of behavior, 6 affect, thought, memory, orientation, and contact with reality. See 20 C.F.R. §§ 404.1520a(b), 404.1528(b), 7 416.920a(b), 416.928(b); see also Social Security Ruling ( SSR ) 96-4p, 1996 WL 374187, at *1-*2. 20 C.F.R. §§ 404.1508, 416.908; see 20 C.F.R. §§ 404.1520a(b)(1), 8 If a claimant demonstrates the existence of a medically-determinable impairment, the ALJ must 9 determine whether the impairment significantly limits the claimant s ability to perform basic work 10 activities. 20 C.F.R. §§ 404.1521 (a), 416.921(a); see Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005). 11 Basic work activities are the abilities and aptitudes necessary to do most jobs, such as (1) physical 12 functions like walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, and handling; (2) the 13 capacity for seeing, hearing, speaking, understanding, carrying out, and remembering simple instructions; 14 (3) the use of judgment; and (4) the ability to respond appropriately to supervision, co-workers, and usual 15 work situations. 20 C.F.R. §§ 404.1521(b), 416.921(b). 16 The ALJ must consider the claimant s subjective symptoms in making a severity determination if 17 the claimant first establishes by objective medical evidence (i.e., signs and laboratory findings) that he or 18 she has a medically determinable physical or mental impairment(s) and that the impairment(s) could 19 reasonably be expected to produce the alleged symptom(s). SSR 96-3p, 1996 WL 374181, at *2. If the 20 claimant produces such evidence, and there is no evidence of malingering, the ALJ can reject the claimant's 21 testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for 22 doing so. Smolen, 80 F.3d at 1281. 23 The ALJ found that plaintiff had a medically determinable combination of impairments, and that 24 those impairments could reasonably be expected to cause plaintiff s alleged symptoms. Therefore, the ALJ 25 was obliged to consider plaintiff s subjective symptoms as well as objective medical evidence (that is, signs 26 and laboratory findings ) in making his severity determination. The ALJ found that plaintiff s subjective 27 symptoms were not credible, and that the objective medical evidence did not demonstrate the existence of 28 an impairment that more than minimally limited his ability to work during any consecutive 12-month period. 3 1 [AR 239, 240, 244]. Selective muteness 2 3 The ALJ noted that plaintiff refused to testify or answer questions (save one) during the August 17, 4 2011 hearing on remand.2 However, the ALJ and the hearing monitor observed plaintiff speaking outside 5 the hearing room, either to his father or to a third person. In addition, plaintiff had testified extensively 6 during the October 2009 hearing, exhibited no problems communicating, and responded appropriately to 7 questioning. [See AR 242, 392, 401-402]. 8 The ALJ pointed out that selective muteness also had been documented in some of plaintiff s 9 medical records. [See AR 241-243]. For example, during a March 2010 consultative examination with 10 Carol Fetterman, Ph.D., plaintiff did not speak at all, making it impossible for Dr. Fetterman to interview 11 him or conduct a mental status examination. [AR 304-305]. Plaintiff s father provided a history. He told 12 Dr. Fetterman that plaintiff had been psychiatrically hospitalized four times, most recently in 2008. [AR 13 301]. Based on plaintiff s father s report and a February 2010 treatment note (which was also based on 14 plaintiff s father s report of plaintiff s symptoms), Dr. Fetterman gave plaintiff a diagnosis of schizoaffective 15 disorder with depression by history. She opined that plaintiff was severely impaired, with a Global 16 Assessment of Function ( GAF ) score of 21.3 [AR 241, 243, 300-305]. In contrast, plaintiff provided an 17 18 19 20 21 22 23 24 25 26 27 28 2 The hearing transcript indicates that plaintiff answered the ALJ s first question by responding Yes I am when asked whether he was represented by attorney Dan Keenan, who was present during the hearing. [AR 392]. The hearing transcript states that plaintiff s responses to the ALJ s next two questions were inaudible, including his response to the question Are you going to sit here and not talk through this at all, Mr. Preston? [AR 392]. Hearing no answer, the ALJ instructed plaintiff to go sit in the back of the room. Plaintiff s counsel did not object. Neither the ALJ nor plaintiff s counsel asked plaintiff any additional questions. The ALJ warned plaintiff on the record that he would use plaintiff s refusal to speak as a ground for denying benefits. [See AR 392-402]. 3 The GAF score is a multiaxial assessment that reflects a clinician's subjective judgment of a patient s overall level of functioning by asking the clinician to rate two components: the severity of a patient's psychological symptoms, or the patient s psychological, social, and occupational functioning. A GAF score of 21 through 30 means that delusions or hallucinations considerably influence the individual s behavior, a serious impairment in communication or judgment exists (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation), or the individual is unable to function in almost all areas (e.g., stays in bed all day; no job, home, or friends). See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition ( DSM-IV ) Multiaxial Assessment, 27-36 (rev. 2000)). 4 1 oral history and answered questions during a March 2008 consultative psychiatric examination with Dr. 2 Linda Smith. [See AR 243, 197-203]. She opined that plaintiff had a very mild mood disorder, not 3 otherwise specified, was not functionally impaired, and assigned a GAF score of 68, denoting mild 4 symptoms. See note 3, supra. 5 Plaintiff s treating psychiatrist, Dr. Jesse Devera of San Bernardino County Department Behavioral 6 Health ( County Behavioral Health), wrote that plaintiff was selectively mute in progress notes dated 7 December 2009 and February 2010. [AR 282, 284]. However, other treatment records indicate that plaintiff 8 spoke with his doctors and answered their questions. [See, e.g., AR 358-364]. 9 Reasoning that plaintiff had not been diagnosed with any communication disorder and was able to 10 speak when he wanted to do so, the ALJ permissibly concluded that plaintiff s selective muteness 11 amounted to a failure to cooperate that seriously undermined the credibility of plaintiff s subjective 12 symptoms. See Thomas, 278 F.3d at 959 (holding that the claimant s failure to cooperate during 13 examinations and self-limiting behaviors were compelling reasons supporting the ALJ s finding that 14 her subjective complaints were not credible); Tonapetyan v. Halter, 242 F.3d 1144, 1147 (9th Cir. 2001) 15 (holding that the ALJ permissibly discredited the plaintiff s testimony based on her lack of cooperation 16 and poor effort during consultative examinations); Walker v. Astrue, 2011 WL 590599, at *4, 10 (E.D. 17 Cal. Feb. 10, 2011) (holding that the claimant s selective muteness demonstrated a lack of cooperation that 18 supported the ALJ's negative credibility determination); see also Widman v. Astrue, 302 Fed.Appx. 744, 747 19 (9th Cir. Dec. 9, 2008) (holding that the ALJ properly used ordinary techniques of credibility evaluation 20 to reject subjective testimony where an examining physician observed the claimant purposefully 21 underperforming on a medical exam ). 22 Lay witness testimony - Field Office interviewer 23 Significantly, plaintiff does not challenge the ALJ s credibility findings with respect to plaintiff or 24 his father. Plaintiff contends, however, that the ALJ did not properly consider observations of plaintiff by 25 a Social Security Administration ( SSA ) Field Office interviewer. [JS 21-23 (citiing AR 318-320)]. 26 Plaintiff s argument is baseless. The cited report was not prepared by a field office interviewer and 27 does not report firsthand observations of plaintiff by any SSA employee. It is a Case Analysis prepared 28 5 1 by the state disability agency that summarizes evidence in the case file and asks Dr. Amado for 2 recommendations. [AR 318-320]. The ALJ properly evaluated Dr. Amado s opinion. He was not required 3 to consider the summary of evidence in the Case Analysis. 4 Examining and nonexamining source opinions 5 Plaintiff contends that in making his severity finding, the ALJ improperly rejected Dr. Fetterman s 6 March 2010 consultative psychiatric evaluation and the April 2010 opinion of Dr. Amado, a nonexamining 7 state agency physician. 8 If a treating source opinion is uncontroverted, the ALJ must provide clear and convincing reasons, 9 supported by substantial evidence in the record, for rejecting it. If contradicted by that of another doctor, 10 a treating or examining source opinion may be rejected for specific and legitimate reasons that are based on 11 substantial evidence in the record. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007); Tonapetyan, 242 F.3d 12 at 1148-1149; Lester v. Chater, 81 F.3d 821, 830-831 (9th Cir. 1995). The opinion of a non-examining 13 physician normally is entitled to less deference than that of an examining and treating physician because he 14 or she does not have the opportunity to conduct an independent examination and does not have a treatment 15 relationship with the claimant. See Andrews v. Shalala, 53 F.3d 1035, 1040-1041 (9th Cir. 1995). [T]he 16 contrary opinion of a non-examining medical expert does not alone constitute a specific, legitimate reason 17 for rejecting a treating or examining physician's opinion, [but] it may constitute substantial evidence when 18 it is consistent with other independent evidence in the record. Tonapetyan, 242 F.3d at 1148. 19 Both Dr. Fetterman and Dr. Smith are examining doctors, so their opinions cannot be distinguished 20 on that basis. As noted above, plaintiff did not speak to Dr. Fetterman, so she was unable to obtain the 21 clinical data that such an examination would ordinarily provide. Instead, Dr. Fetterman relied on a 22 description of plaintiff s history and symptoms provided by his father, whose observations are not sufficient 23 to establish the existence of a severe impairment. See 20 C.F.R. §§ 404.1528(a)&(b), 416.928(a)&(b) 24 ( Symptoms are your own description of your physical or mental impairment. Your statements alone are not 25 enough to establish that there is a physical or mental impairment. . . . Signs are anatomical, physiological, 26 or psychological abnormalities which can be observed, apart from your statements (symptoms). Signs must 27 be shown by medically acceptable clinical diagnostic techniques. ). 28 6 1 Dr. Smith, on the other hand, was able to conduct a complete psychiatric evaluation, including an 2 interview and a mental status examination, and she cogently explained how her examination findings 3 supported her conclusions. See 20 C.F.R. §§ 404.1527(c)(3), 416.927(c)(3) ( The more a medical source 4 presents relevant evidence to support an opinion, particularly medical signs and laboratory findings, the more 5 weight we will give that opinion. The better an explanation a source provides for an opinion, the more 6 weight we will give that opinion. ). The ALJ was entitled to reject Dr. Fetterman s opinion in favor of that 7 of Dr. Smith. 8 Similarly, both Dr. Amado, whose opinion the ALJ rejected, and Dr. Kania, whose testimony the 9 ALJ accepted, are nonexamining physicians. [See AR 240, 243, 306-317, 393-400]. Both provided an 10 explanation for their conclusions, but Dr. Amado s opinion was based in part on Dr. Fetterman s opinion, 11 which the ALJ permissibly rejected. Dr. Kania also had the opportunity to consider plaintiff s treatment 12 history after April 2010, the date of Dr. Amado s opinion. Dr. Kania testified that [e]ven with the most 13 recent records, there is no evidence the plaintiff has a psychotic disorder, which will last for or has lasted 14 for 12 months duration. [AR 240, 397]. Accordingly, the ALJ did not err in rejecting Dr. Amado s 15 opinion. 16 The ALJ s resolution of the conflicts between the examining and nonexamining source opinions was 17 proper. See generally Andrews, 53 F.3d at 1039 ( The ALJ is responsible for determining credibility, 18 resolving conflicts in the medical testimony, and for resolving ambiguities. ). 19 Treating source reports 20 21 Plaintiff contends that the ALJ did not properly consider the treating physicians findings from September 2009 through March 2010 and June 27, 2011. 22 The ALJ noted that during the relevant period (after April 1, 2008), the earliest date that plaintiff 23 sought mental health treatment was September 2009, when he presented to County Behavioral Health.4 [AR 24 241]. On intake, plaintiff was noted to be a poor historian and gave a vague history of his symptoms. Much 25 of the reporting came from plaintiff s father, who said that his son stayed in his bedroom for days, did not 26 27 28 4 This matter was remanded to the Commissioner for further development of the record, particularly with respect to treating source evidence. Plaintiff, who was represented by counsel during the hearing on remand, does not contend that the record is not fully and fairly developed. 7 1 like to be around people, had poor eating habits, low energy, low motivation, and a dark mood. Plaintiff 2 was using marijuana. His father said that he was a paranoid schizophrenic Plaintiff was not receiving 3 treatment and was not prescribed any medication. During an initial medication visit with Dr. Han Nguyen, 4 plaintiff said: My dad thinks I m crazy, he wants me to take medication. Dr. Nguyen diagnosed 5 schizoffective disorder and cannabis abuse and prescribed medication. [AR 241, 291-299]. 6 Plaintiff returned for follow-up on October 20, 2009. He reported that he was alright, denied hearing 7 voices, was not paranoid, and said that he was taking his medications as prescribed. He was noted to have 8 blunted affect, poor insight, and subdued mood. [AR 241, 285]. 9 On a follow-up visit on December 8, 2009, Dr. Devera observed that plaintiff was selectively mute. 10 His father reported that plaintiff was not interacting with his family. He was alert and oriented with restricted 11 affect. [AR 241, 284]. 12 On January 22, 2010, Dr. Devera signed a form provided by the San Bernardino County Transitional 13 Assistance Department stating that plaintiff had been incapacitated from September 3, 2009 through that 14 date. Dr. Devera commented that plaintiff cannot function under the stress of employment. [AR 282]. 15 Plaintiff saw Dr. Devera again on February 1, 2010. Plaintiff was noted to be isolative at home and 16 selectively mute. His father reported that he threw his video game device out the window for no reason. He 17 was alert and oriented with restricted affect and poor insight. [AR 181]. 18 During a visit on March 2, 2010, Dr. Marcia Hudson noted that plaintiff s father reported that 19 plaintiff had not been taking his medication for about a month. Plaintiff was cooperative and well-groomed. 20 His mood was angry. [AR 388]. 21 Two weeks later, plaintiff s father told Dr. Devera noted that plaintiff again was selectively mute. 22 His father reported that plaintiff had left home for 10 days, and that he found plaintiff in a restaurant. 23 Plaintiff started taking his medications when he returned home. Plaintiff was alert and oriented, with a 24 restricted affect and angry mood. He denied hallucinations and delusions. Dr. Devera noted that plaintiff 25 was positive for auditory hallucinations, but the source of that information is unclear. [AR 387]. Plaintiff 26 received a medication refill in June 2010, but there is no corresponding progress note. [AR 385]. 27 /// 28 8 1 The next treatment note is dated June 27, 2011, about 15 months after plaintiff s last treatment visit. 2 Plaintiff s father or another family member called the police because plaintiff was having a blank stare and 3 threatening to kill his dad and then himself with his house keys. Dad informed that [plaintiff] has 4 schizophrenic bipolar and [was] off his medication. [AR 334]. Plaintiff s father also reported that plaintiff 5 had prior hospitalizations and had problems with multiple substance use. [AR 332]. Police officers 6 transported plaintiff to Arrowhead Regional Medical Center, where he was evaluated and admitted pursuant 7 to California Welfare and Institutions Code section 5150 on the ground that he posed a danger to himself 8 or others. [AR 322-343]. Asked on intake about the history of his present illness, plaintiff replied, Ask my 9 father. I don t know[,] this is bull . . . I heard that I tried to take the bat from my father. [AR 339]. 10 Plaintiff s admitting diagnosis was schizoaffective disorder, bipolar type, rule out schizophrenia, paranoid 11 type. [AR 334]. He was started on medication to control his agitation and hostile behavior. [AR 332, 334]. 12 He was assigned an initial GAF score of 25, signifying a complete inability to function. [AR 334]. 13 Plaintiff was discharged several days later, on July 2, 2011, with a diagnosis of schizoaffective 14 disorder, bipolar type; a history of polysubstance abuse; and a GAF score of 50, which denotes serious 15 symptoms or a serious impairment in functioning. [AR 334]. Plaintiff had initially refused medication but 16 eventually complied, and his hospital course was uneventful. [AR 334]. A doctor who treated plaintiff 17 during his hospitalization met with plaintiff s father, who asserted that did not believe plaintiff s threat was 18 credible and was not concerned for his own safety. Instead, he expressed concern that plaintiff could be shot 19 by police if he acted in a threatening manner. [AR 334-335]. The physician wrote that plaintiff s father was 20 eager to take [plaintiff] home to take care of some financial problems, secondary to [plaintiff] getting 21 conned by a money scheme on the internet and [to] prepare for SSI appeal. [AR 335]. Plaintiff s father 22 reported a long, conflicted relationship with his son, and said that plaintiff tend[ed] to act up when he did 23 not get his way. [AR 335]. 24 The ALJ reasonably concluded that the treatment reports did not warrant a finding that plaintiff had 25 a severe mental impairment for any consecutive 12-month period. First, the ALJ rejected Dr. Devera s 26 January 2010 disability opinion on the ground that it was a check marked form that contained no 27 supporting findings and was not prepared using social security disability guidelines. See Batson v. Comm r 28 9 1 of Social Sec. Admin., 359 F.3d 1190, 1195 & n.3 (9th Cir. 2004) (upholding the ALJ's rejection of an 2 opinion that was conclusionary in the form of a check-list and lacked supporting clinical findings). Even 3 if Dr. Devera s January 2010 statement is accepted at face value, it does not establish that plaintiff was 4 disabled for a consecutive 12-month period. 5 Second, plaintiff s diagnoses of schizoaffective disorder and a history of polysubstance abuse are 6 not sufficient to demonstrate that he had a severe mental impairment during any consecutive 12-month 7 period. See Sample v. Schweiker, 694 F.2d 639, 642-643 (9th Cir. 1982) (noting that the existence of a 8 diagnosed emotional disorder is not per se disabling, and that there must be proof of the impairment's 9 disabling severity ). 10 Third, the ALJ justifiably concluded that certain aspects of plaintiff treatment history were suspect. 11 [AR 243]. Plaintiff first sought psychiatric treatment shortly before the disability cessation hearing on 12 October 21, 2009. He began roughly monthly visits to County Behavioral Health. Plaintiff filed an 13 application for adult SSI benefits during this period, in December 2009. [See AR 274-277, 306]. His last 14 documented visit to County Behavioral Health was March 19, 2010. In April 2010, plaintiff s application 15 for SSI benefits was granted, and he began receiving benefits. [AR 237, 243, 306-320]. Other than a 16 prescription refill order in June 2010, there is no record that plaintiff sought or received mental health 17 treatment for approximately 15 months after his SSI benefits application was granted. 18 On June 3, 2011, the ALJ issued a Notice of Hearing advising plaintiff that an administrative 19 hearing would be held on August 17, 2011. [AR 243, 263-266]. On June 27, 2011, plaintiff s father or 20 another family member called the police to report that plaintiff exhibited a blank look and had threatened 21 plaintiff s father, which led to plaintiff s psychiatric evaluation and hospitalization. 22 The timing and duration of plaintiff s treatment, and the gaps in his treatment history (between April 23 2008 and September 2009 and between March 2010 and July 2011) are relevant to assessing the alleged 24 severity of his mental impairment. See Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (explaining that 25 an unexplained, or inadequately explained, failure to seek treatment or follow a prescribed course of 26 treatment can cast doubt on the sincerity of a claimant s subjective symptoms); Phillips v. Massanari, 27 2001 WL 936120, at *6, *9 (N.D. Ill. Aug. 16, 2001) (noting that where the claimant resumed treatment 28 10 1 three weeks before the hearing after an 11-month gap, the ALJ concluded that the timing of this effort was 2 suspicious, and holding that the ALJ could reasonably infer from the timing of the claimant s return to 3 treatment that his subjective complaints were exaggerated because he had been able to tolerate his symptoms 4 without medical intervention for a significant period); Nitz v. Massanari, 2001 WL 929759, at *10 (N.D. 5 Ill. Aug. 15, 2001) (holding that the timing of [the claimant s] first complaint about headaches one month 6 after the claimant filed his application was suspicious and supported the ALJ s adverse credibility 7 finding); Trejo v. Barnhart, 2004 WL 2595939, at *3 (W.D. Tex. Nov. 9, 2004) (holding that the ALJ 8 properly relied in part on the claimant s inconsistent and suspiciously-timed complaints of depression to 9 find that he did not have a severe mental impairment for a consecutive period of 12 months). 10 Fourth, the ALJ found it significant that plaintiff s father told a hospital doctor that he did not deem 11 his son s threats credible, that his son tended to act up when he did not get his way, and that he was eager 12 to take [plaintiff] home to take care of some financial problems related to an internet scam and to prepare 13 for [his] SSI appeal. [AR 243, 335] The ALJ was entitled to use ordinary techniques of credibility 14 evaluation to conclude that, in the context of the record as a whole, plaintiff s hospital records did not 15 warrant a finding that his mental impairment was severe for any consecutive 12-month period. Smolen, 80 16 F.3d at 1284. 17 Finally, the ALJ did not err in giving little weight to the GAF scores in plaintiff s hospital records, 18 both because he properly weighed the medical evidence as a whole, and because failure to discuss or adopt 19 GAF scores is not legal error. See Howard v. Comm r of Social Sec., 276 F.3d 235, 241 (6th Cir. 2002) 20 ( While a GAF score may be of considerable help to the ALJ in formulating the RFC, it is not essential to 21 the RFC's accuracy. Thus, the ALJ's failure to reference the GAF score in the RFC, standing alone, does not 22 make the RFC inaccurate. ); Revised Medical Criteria for Evaluating Mental Disorders and Traumatic Brain 23 Injury, 65 Fed. Reg. 50746, 50764-65 (August 21, 2000) (explaining that the Commissioner has not 24 endorsed the use of the GAF scale in determining disability, and that the GAF score does not have a direct 25 correlation to the severity requirements in our mental disorders listings ). 26 /// 27 /// 28 /// 11 1 2 Conclusion The Commissioner's decision is supported by substantial evidence and is free of legal error. 3 Accordingly, the Commissioner's decision is affirmed. 4 IT IS SO ORDERED. 5 6 7 8 October 31, 2012 _________________________ ANDREW J. WISTRICH United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12
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