Humberto Romero v. Michael J. Astrue, No. 5:2012cv00615 - Document 16 (C.D. Cal. 2013)

Court Description: MEMORANDUM OPINION AND ORDER AFFIRMING THE COMMISSIONER by Magistrate Judge Jean P Rosenbluth. (twdb)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 HUMBERTO ROMERO, 10 Plaintiff, 11 vs. 12 13 CAROLYN W. COLVIN, Acting Commissioner of Social Security,1 14 Defendant. 15 ) Case No. EDCV 12-0615-JPR ) ) ) MEMORANDUM OPINION AND ORDER ) AFFIRMING THE COMMISSIONER ) ) ) ) ) ) ) 16 17 I. PROCEEDINGS 18 Plaintiff seeks review of the Commissioner s final decision 19 denying his application for Social Security disability insurance 20 benefits ( DIB ) and Supplemental Security Income benefits 21 ( SSI ). The parties consented to the jurisdiction of the 22 undersigned U.S. Magistrate Judge pursuant to 28 U.S.C. § 636(c). 23 This matter is before the Court on the parties Joint 24 Stipulation, filed January 2, 2013, which the Court has taken 25 26 1 On February 14, 2013, Colvin became the Acting 27 Commissioner of Social Security. Pursuant to Federal Rule of Civil Procedure 25(d), the Court therefore substitutes Colvin for 28 Michael J. Astrue as the proper Respondent. 1 1 under submission without oral argument. For the reasons stated 2 below, the Commissioner s decision is affirmed and this action is 3 dismissed. 4 II. BACKGROUND 5 Plaintiff was born on February 17, 1951. 6 Record ( AR ) 32.) He has some elementary-school education and 7 speaks some English. (AR 32-33, 218.) Plaintiff previously 8 worked as a warehouse worker and assembler. 9 10 SSI. (Administrative (AR 43.) On April 10, 2009, Plaintiff filed applications for DIB and (AR 14, 60-61.) Plaintiff alleged that he had been unable 11 to work since April 20, 2007, because of his status after hip 12 replacement, osteoarthritis of the left shoulder, obesity, and a 13 mood disorder. (Id.) His applications were denied initially, on 14 July 14, 2009 (AR 80-85), and upon reconsideration, on October 15 23, 2009 (AR 88-93). 16 After Plaintiff s applications were denied, he requested a 17 hearing before an ALJ. (AR 94-97.) A hearing was held on 18 October 19, 2010, at which Plaintiff, who was represented by 19 counsel, appeared and testified through an interpreter; a medical 20 expert, a vocational expert ( VE ), and Plaintiff s son also 21 testified. (AR 29-54.) In a written decision issued on December 22 8, 2010, the ALJ determined that Plaintiff was not disabled. 23 8-28.) (AR On March 28, 2012, the Appeals Council denied Plaintiff s 24 request for review. (AR 1-5.) This action followed. 25 III. STANDARD OF REVIEW 26 Pursuant to 42 U.S.C. § 405(g), a district court may review 27 the Commissioner s decision to deny benefits. The ALJ s findings 28 and decision should be upheld if they are free of legal error and 2 1 supported by substantial evidence based on the record as a whole. 2 § 405(g); Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 3 1420, 1427, 28 L. Ed. 2d 842 (1971); Parra v. Astrue, 481 F.3d 4 742, 746 (9th Cir. 2007). Substantial evidence means such 5 evidence as a reasonable person might accept as adequate to 6 support a conclusion. Richardson, 402 U.S. at 401; Lingenfelter 7 v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 8 a scintilla but less than a preponderance. It is more than Lingenfelter, 504 9 F.3d at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 10 882 (9th Cir. 2006)). To determine whether substantial evidence 11 supports a finding, the reviewing court must review the 12 administrative record as a whole, weighing both the evidence that 13 supports and the evidence that detracts from the Commissioner s 14 conclusion. 15 1996). Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. If the evidence can reasonably support either affirming 16 or reversing, the reviewing court may not substitute its 17 judgment for that of the Commissioner. Id. at 720-21. 18 IV. THE EVALUATION OF DISABILITY 19 People are disabled for purposes of receiving Social 20 Security benefits if they are unable to engage in any substantial 21 gainful activity owing to a physical or mental impairment that is 22 expected to result in death or which has lasted, or is expected 23 to last, for a continuous period of at least 12 months. 42 24 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 25 (9th Cir. 1992). 26 A. 27 The ALJ follows a five-step sequential evaluation process in The Five-Step Evaluation Process 28 assessing whether a claimant is disabled. 3 20 C.F.R. 1 §§ 404.1520(a)(4), 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 2 828 n.5 (9th Cir. 1995) (as amended Apr. 9, 1996). In the first 3 step, the Commissioner must determine whether the claimant is 4 currently engaged in substantial gainful activity; if so, the 5 claimant is not disabled and the claim must be denied. 6 §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not 7 engaged in substantial gainful activity, the second step requires 8 the Commissioner to determine whether the claimant has a severe 9 impairment or combination of impairments significantly limiting 10 his ability to do basic work activities; if not, a finding of not 11 disabled is made and the claim must be denied. 12 §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a 13 severe impairment or combination of impairments, the third step 14 requires the Commissioner to determine whether the impairment or 15 combination of impairments meets or equals an impairment in the 16 Listing of Impairments ( Listing ) set forth at 20 C.F.R., Part 17 404, Subpart P, Appendix 1; if so, disability is conclusively 18 presumed and benefits are awarded. 19 416.920(a)(4)(iii). §§ 404.1520(a)(4)(iii), If the claimant s impairment or combination 20 of impairments does not meet or equal an impairment in the 21 Listing, the fourth step requires the Commissioner to determine 22 whether the claimant has sufficient residual functional capacity 23 ( RFC )2 to perform his past work; if so, the claimant is not 24 disabled and the claim must be denied. §§ 404.1520(a)(4)(iv), 25 26 2 RFC is what a claimant can still do despite existing 27 exertional and nonexertional limitations. 20 C.F.R. §§ 404.1545, 416.945; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th 28 Cir. 1989). 4 1 416.920(a)(4)(iv). The claimant has the burden of proving that 2 he is unable to perform past relevant work. 3 1257. Drouin, 966 F.2d at If the claimant meets that burden, a prima facie case of 4 disability is established. Id. If that happens or if the 5 claimant has no past relevant work, the Commissioner then bears 6 the burden of establishing that the claimant is not disabled 7 because he can perform other substantial gainful work available 8 in the national economy. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 9 That determination comprises the fifth and final step in the 10 sequential analysis. §§ 404.1520, 416.920; Lester, 81 F.3d at 11 828 n.5; Drouin, 966 F.2d at 1257. 12 B. 13 At step one, the ALJ found that Plaintiff had not engaged in The ALJ s Application of the Five-Step Process 14 any substantial gainful activity since April 20, 2007. (AR 16.) 15 At step two, the ALJ concluded that Plaintiff had the severe 16 impairments of status post hip replacement, osteoarthritis of 17 the left shoulder and lumbar spine, and obesity. (AR 16.) He 18 concluded that Plaintiff s medically determinable mental 19 impairment of mood disorder was not severe. (AR 17-18.) At 20 step three, the ALJ determined that Plaintiff s impairments did 21 not meet or equal any of the impairments in the Listing. 22 18.) (AR At step four, the ALJ found that Plaintiff retained the RFC 23 to perform less than the full range of medium work, with 24 certain additional limitations. (AR 18-19.) Based on the VE s 25 testimony, the ALJ concluded that Plaintiff was unable to perform 26 any past relevant work as actually or generally performed. 27 22.) (AR At step five, the ALJ concluded that Plaintiff was not 28 disabled under the framework of the Medical-Vocational 5 1 Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2, and that 2 jobs existed in significant numbers in the national economy that 3 Plaintiff could perform. (AR 22-23.) Based on the VE s 4 testimony, the ALJ found that Plaintiff could perform such jobs 5 as hand packager (DOT 920.587-018, 1991 WL 687916) and dining 6 room attendant (DOT 311.677-018, 1991 WL 672696). (AR 23.) 7 Accordingly, the ALJ determined that Plaintiff was not disabled. 8 (Id.) 9 V. 10 DISCUSSION Plaintiff alleges that the ALJ erred in (1) finding that his 11 mental impairment was not severe; (2) evaluating the lay-witness 12 testimony of Plaintiff s son; and (3) evaluating Plaintiff s 13 credibility.3 14 A. 15 (J. Stip. at 3-4.) The ALJ Did Not Err in Determining that Plaintiff s Mood Disorder Was Not a Severe Impairment 16 Plaintiff first contends that the ALJ erred in determining 17 that his mood disorder was not a severe impairment. 18 3-6.) (J. Stip. at Reversal is not warranted on this basis because 19 substantial evidence in the record supports the ALJ s finding 20 that Plaintiff s mood disorder was not severe. 21 22 1. Applicable law At step two of the sequential evaluation process, a 23 plaintiff has the burden to present evidence of medical signs, 24 symptoms, and laboratory findings that establish a medically 25 determinable physical or mental impairment that is severe and can 26 27 28 3 The Court addresses Plaintiff s contentions in an order different from that used by the parties, to avoid repetition and for other reasons. 6 1 be expected to result in death or last for a continuous period of 2 at least 12 months. Ukolov v. Barnhart, 420 F.3d 1002, 1004-05 3 (9th Cir. 2005) (citing 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D));4 4 see 20 C.F.R. §§ 404.1520, 416.920, 404.1509, 416.909. 5 Substantial evidence supports an ALJ s determination that a 6 claimant is not disabled at step two when there are no medical 7 signs or laboratory findings to substantiate the existence of a 8 medically determinable physical or mental impairment. 9 420 F.3d at 1004-05 (citing SSR 96-4p). Ukolov, An impairment may never 10 be found on the basis of the claimant s subjective symptoms 11 alone. 12 Id. at 1005. Step two is a de minimis screening device [used] to dispose 13 of groundless claims. 14 Cir. 1996). Smolen v. Chater, 80 F.3d 1273, 1290 (9th Applying the applicable standard of review to the 15 requirements of step two, a court must determine whether an ALJ 16 had substantial evidence to find that the medical evidence 17 clearly established that the claimant did not have a medically 18 severe impairment or combination of impairments. Webb v. 19 Barnhart, 433 F.3d 683, 687 (9th Cir. 2005); see also Yuckert v. 20 Bowen, 841 F.2d 303, 306 (9th Cir. 1988) ( Despite the deference 21 usually accorded to the Secretary s application of regulations, 22 numerous appellate courts have imposed a narrow construction upon 23 the severity regulation applied here. ). An impairment or 24 combination of impairments is not severe if the evidence 25 26 4 A medical sign is an anatomical, physiological, or 27 psychological abnormality that can be shown by medically acceptable clinical diagnostic techniques. Ukolov, 420 F.3d at 28 1005. 7 1 established only a slight abnormality that had no more than a 2 minimal effect on an individual s ability to work. Webb, 433 3 F.3d at 686 (citation omitted). 4 5 2. Relevant facts On April 27, 2007, Plaintiff was seen at Upland Community 6 Counseling by a clinician, Julie Porter, under the supervision of 7 Dr. Guia Montenegro, because of depressive and psychotic 8 symptoms. (AR 336-41.) After speaking with Plaintiff and his 9 daughter, Porter noted that Plaintiff was extremely 10 unresponsive, reported eating and sleeping poorly, and was 11 capable of very limited self-care. (AR 336-37.) Based on 12 speaking to his daughter, she noted that he appeared to have been 13 depressed for the past two years but with a recent onset of 14 psychotic features (paranoia, delusional thinking), in the 15 preceding two weeks. (Id.) She diagnosed Plaintiff with 16 psychotic disorder [not otherwise specified] and assessed a 17 Global Assessment of Functioning ( GAF ) score of 20.5 18 (AR 341.) Plaintiff was prescribed medications for his depression and 19 visited Dr. Montenegro approximately every one to two months 20 between 2007 and 2010 for checkups. (AR 342-44, 447-49.) On 21 January 25, 2008, Dr. Montenegro diagnosed Plaintiff with bipolar 22 disorder and assessed a GAF score of 45.6 (AR 341.) His 23 5 A GAF of hurting 24 self or others, score of 20 indicates [s]ome danger minimal occasionally fail[ing] to maintain 25 personal hygiene, or gross impairment in communication. See 26 27 28 Am. Psychiatric Ass n, Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed. 2000). 6 A GAF score of 45 indicates serious symptoms ([e.g.] suicidal ideation . . .) OR any serious impairment in social, occupational or school functioning. See Am. Psychiatric Ass n, 8 1 treatment notes between 2007 and 2010, however, indicate that 2 Plaintiff s symptoms markedly improved on medications and he had 3 few, if any, ongoing issues. (See AR 345-66, 418-61.) For 4 example, in May 2007, just a month after Plaintiff s original 5 symptoms of psychosis, Dr. Montenegro noted that Plaintiff s 6 affect was better, he was able to answer questions more than 7 the last visit, and his paranoia was still present, but 8 improved. (AR 365.) In July 2007 Dr. Montenegro noted that 9 Plaintiff s affect was improved, he was more verbal, his 10 sleeping and eating habits had improved, and he had increased 11 energy. (AR 362.) In October 2007, Dr. Montenegro noted that 12 Plaintiff s affect was markedly improved and his depression is 13 completely controlled. (AR 358.) In May 2008, Dr. Montenegro 14 noted that Plaintiff rode his bike on his own to his appointment, 15 denied auditory and visual hallucinations and paranoia, and had a 16 good appetite and a stable mood. (AR 351.) In April 2009, 17 Dr. Montenegro noted that Plaintiff came to his appointment by 18 himself, was alert and compliant with medications, denied 19 auditory and visual hallucinations and paranoia, and was eating 20 and sleeping normally. (AR 345.) In March 2010, Dr. Montenegro 21 noted that Plaintiff came to his appointment by himself, had lost 22 15 pounds by dieting and walking 30 minutes a day for exercise, 23 denied auditory and visual hallucinations and paranoia, denied 24 being depressed, and had no problems with meds. (AR 418.) In 25 August 2010, the most recent treatment notes in the record, Dr. 26 Montenegro noted that Plaintiff came in good spirits, was 27 Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed. 28 2000). 9 1 compliant [with] medications, feels better, denies 2 depression, slept 10-11 hours a night, watches his diet [and] 3 exercises, walks 3 miles per day, denied audio and visual 4 hallucinations and paranoia, and had no problems with his 5 medications. 6 (AR 458.) On August 27, 2007, Plaintiff was evaluated by consulting 7 psychiatrist Dr. Ernest Bagner. (AR 303-06.) Dr. Bagner 8 diagnosed Plaintiff with depressive disorder, not otherwise 9 specified, and assessed a GAF score of 73.7 (AR 305.) He noted 10 that Plaintiff had a good relationship with his friends and 11 family; his affect was mood congruent ; his thought processes 12 were tight ; his intellectual functioning was average; he was 13 alert to person and place ; he had adequate fund of knowledge, 14 memory, concentration, abstractions, insight, and judgment; and 15 there was no evidence of auditory or visual hallucinations or 16 paranoid or grandiose delusions. (AR 304-05.) Dr. Bagner 17 concluded that Plaintiff does self-care and other activities of 18 daily living, gets along well with family and friends, and, if 19 he continues with psychiatric treatment, . . . should be 20 significantly better in less than six months. (AR 305-06.) Dr. 21 Bagner opined that Plaintiff would have no limitations 22 interacting with supervisors, peers or the public, zero to mild 23 limitations maintaining concentration and attention and 24 25 26 27 28 7 A GAF score of 73 indicates that [i]f symptoms are present, they are transient and expectable reactions to psychosocial stressors and no more than slight impairment in social, occupational or school functioning. See Am. Psychiatric Ass n, Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed. 2000). 10 1 completing simple tasks, mild limitations completing complex 2 tasks and completing a normal workweek without interruption, and 3 mild to moderate limitations handling normal stresses at work. 4 (AR 306.) 5 On September 5, 2007, consulting psychiatrist Dr. H. Amado 6 evaluated Plaintiff and filled out a Mental Residual Functional 7 Capacity Assessment form, noting that Plaintiff was moderately 8 limited in the ability to carry out detailed instructions, 9 maintain attention and concentration for extended periods, 10 complete a normal workday and workweek without interruptions from 11 psychologically based symptoms, perform at a consistent pace 12 without an unreasonable number and length of rest periods, and 13 respond appropriately to changes in the work setting. 14 13.) (AR 312- He found that Plaintiff was not significantly limited in 15 any other respect. (Id.) On the same day, Dr. Amado also 16 completed a Psychiatric Review Technique form, noting that 17 Plaintiff had depressive disorder, not otherwise specified, but 18 that insufficient evidence supported any other limitations. 19 315-22.) (AR He noted that Plaintiff had moderate difficulties in 20 maintaining concentration, persistence, or pace, mild 21 restrictions of activities of daily living and difficulties in 22 maintaining social functioning, and no episodes of 23 decompensation. (AR 323.) He noted that Plaintiff has some 24 degree of psychomotor retardation . . . and mild/moderate 25 problems with sustained concentration . . . while the functional 26 information as per third-party seems to convey fairly pervasive 27 depression. (AR 325.) He concluded that although [t]he 28 proposed Non-severe determination may be a little too optimistic 11 1 in this case, he agree[d] that listings are not met and 2 therefore allegations are only partially supported. 3 (AR 325.) On June 3, 2009, Plaintiff underwent another consultative 4 psychiatric evaluation, by psychiatrist Dr. H. Skopec. 5 77.) (AR 367- Dr. Skopec noted that Plaintiff had depression and mild 6 restrictions of activities of daily living, mild difficulties 7 in maintaining social functioning and concentration, persistence, 8 or pace, and no episodes of decompensation. (Id.) He concluded 9 that Plaintiff was partially credible but the psychiatric 10 [symptoms] do not significantly decrease [Plaintiff s] ability to 11 function. 12 (AR 377.) On June 22, 2007, Plaintiff s son Humberto Romero, Jr., 13 filled out a Third Party Function Report, stating that Plaintiff 14 was depressed, hardly eats, refused to care for his personal 15 needs, had lost interest in cooking and doing chores, was scared 16 to go outside, was unable to manage money, no longer pursued his 17 hobbies of gardening, watching TV, [and] working on cars, was 18 isolated and withdrawn from friends, could not handle any 19 stress at all, and was paranoid. (AR 224-31.) On the same 20 day, Plaintiff filled out a Function Report providing 21 substantially the same information. 22 (AR 235-42.) On April 26, 2009, Humberto Jr. filled out another Third 23 Party Function Report,8 stating that Plaintiff s daily activities 24 25 26 27 28 8 Plaintiff s son gives his name as Robert on this form, whereas the June 2007 form lists his name as Humberto R. Romero. The handwriting is the same on both forms, and it appears that Robert may be Plaintiff s son s middle name. (See AR 224, 255.) For clarity, the Court refers to him as Humberto Jr. (See AR 46.) 12 1 consisted of eat[ing], sleep[ing], tak[ing] meds, and watch[ing] 2 TV and then falling asleep, and once a week [he] takes out 3 trash. (AR 254.) He stated that Plaintiff sleeps at odd hours 4 (during day) and is lethargic, needed help with grooming and 5 personal care, and could not prepare meals. (AR 255-56.) He 6 also stated that Plaintiff mowed the lawn for 30 minutes every 7 two weeks and took out the trash for 15 minutes every week; went 8 outside for approximately one hour a day; did grocery shopping 9 once a week for 30 minutes; watched TV for two to three hours 10 daily; was able to talk and share meals with family members ; 11 and went to the doctor s office and to church. (AR 256-58.) He 12 stated that Plaintiff could not follow written instructions well 13 but could follow very simple spoken instructions and did not 14 have any problems with authority figures. (AR 259-60.) He 15 stated that stress dampens disabled person[ s] performance and 16 accuracy and disabled person does not respond well to changes 17 in routine. (AR 260.) He concluded by stating that Plaintiff 18 could drive very little for short trips during the day and 19 otherwise walks to the local market and is driven everywhere 20 else ; Plaintiff was socially withdrawn from church and cares 21 little of his physical appearance ; Plaintiff lacks clarity of 22 thought and many times has trouble following simple directions ; 23 and Plaintiff s mental sharpness is clouded and does not 24 function at a normal level. (AR 261.) On the same day, 25 Plaintiff filled out a Function Report providing substantially 26 the same information. 27 (AR 262-69.) At the hearing, Plaintiff testified that he could not work 28 because he had ongoing problems with his hip, left knee, and 13 1 right shoulder after he was injured in a fall in 2006. 2 35, 295-96.) (AR 34- Although Plaintiff testified that he took 3 medications for his pain (AR 36), the only prescribed medications 4 appearing in the record were for depression, cholesterol, and 5 diabetes (AR 251, 283). The ALJ asked Plaintiff if he had any 6 other medical conditions, either physical or mental, that he 7 claimed were disabling besides those stemming from his fall, and 8 Plaintiff replied no, none. (AR 35.) The ALJ then asked if 9 Plaintiff s complaints involve your hip, left knee, and you hit 10 your head and your right shoulder? and Plaintiff responded, 11 Yes. (Id.) It was only when later prompted by his attorney 12 that Plaintiff testified that he also had emotional problems 13 that limited his ability to work. (Id.) Plaintiff testified 14 that he felt a lot of anxiety when he first sought psychiatric 15 treatment in 2007, after having hip surgery, but answered no 16 when asked if he had any other kinds of mental health symptoms. 17 (AR 35-36.) He testified that he had problems remembering things 18 at times, but he slept well at night . . . 10 or 11 hours. 19 (AR 36.) 20 Medical Expert Dr. Craig Rath then testified that he had 21 reviewed the medical evidence in the record, and it indicated 22 that Plaintiff had a medically determinable impairment of mood 23 disorder not otherwise specified, with depression and anxiety 24 present. (AR 39.) Dr. Rath then summarized the treatment notes 25 from Dr. Montenegro and noted that they indicated that 26 Plaintiff s symptoms improved after he was placed on medication, 27 in April 2007; Dr. Rath concluded that Plaintiff had an 28 emotional reaction to his physical situation which didn t last 14 1 very long, so there are durational issues and severity issues, 2 and no limitations. (AR 40.) When questioned by Plaintiff s 3 attorney, Dr. Rath reiterated that Plaintiff appeared to have 4 been depressed for a short period of time with possibly some 5 psychotic symptoms, and he remained at some level of depression 6 and anxiety, but not so bad to be psychotic. (AR 41.) He 7 stated that a GAF score of 45 indicated severe depression but 8 that that score in January 2008 was not indicative of Plaintiff s 9 symptoms at that time because Dr. Montenegro did not perform a 10 multiaxial diagnosis to update the GAF score but instead noted 11 Plaintiff s progress in clinical notes. 12 (AR 41-42.) Humberto Jr. also testified at the hearing. (AR 46-52.) He 13 testified that Plaintiff stopped working in April 2007 after an 14 onset of major depression, for which he started seeing Dr. 15 Montenegro. (AR 48.) He testified that Plaintiff had anxiety, 16 severe depression, and psychotic symptoms until he started seeing 17 Dr. Montenegro, who put him on medication. (AR 48-49.) He 18 stated that Plaintiff exercised and helped with grocery shopping, 19 and he tried to look for work but had trouble finding jobs he 20 was qualified to do. (AR 50-51.) He testified that Plaintiff s 21 condition was managed pretty much with the medications and 22 exercises, and his depression was a little bit better, . . . a 23 little bit more stable after he started taking psychiatric 24 medication, though his symptoms worsened when he didn t take his 25 medication. 26 27 3. (Id.) Analysis In his written decision, the ALJ found that a thorough 28 review of the objective record supports the diagnosis of mood 15 1 disorder, [not otherwise specified] with symptoms of depression 2 and anxiety and that Plaintiff was severely depressed for a 3 brief period of time, likely with psychotic features, but his 4 depression stabilized with medication and was not severe after 5 that brief period. (AR 17.) The ALJ summarized the medical 6 evidence from Dr. Bagner and Dr. Montenegro that indicated that 7 Plaintiff s mood improved with medication, and he also noted that 8 during the hearing Plaintiff said he had no impairments other 9 than physical ones until his attorney prompted him to testify 10 about his emotional problems. (AR 17-18.) He concluded by 11 finding that Plaintiff s 12 mood disorder is a non-severe impairment because it 13 results in only minimal limitations of functioning. 14 Specifically, there are mild restrictions of activities 15 of daily living, difficulties in maintaining social 16 functioning, 17 concentration, persistence or pace. 18 are no episodes of decompensation. 19 the findings of two reviewing physicians for the State 20 agency who opined the claimant s mental impairment was 21 non-severe. 22 because it is consistent with the evidence of record and 23 the medical expert s opinion. and This difficulties opinion is in maintaining Furthermore, there This is supported by assessed great weight 24 Thus, the claimant s medically determinable mental 25 impairment does not cause minimal limitations in the 26 claimant s 27 activities and is therefore non-severe. ability to perform 28 (AR 18 (citations omitted).) 16 basic mental work 1 Substantial evidence supports the ALJ s finding that 2 Plaintiff s mood disorder was not severe. Although evidence in 3 the record shows that Plaintiff had some type of mood disorder, 4 the existence of a mood disorder alone does not constitute a 5 severe impairment if it does not prevent a person from working. 6 See 20 C.F.R. § 404.1520(c) (severe impairment is one that 7 significantly limits [claimant s] physical or mental ability to 8 do basic work activities ), § 416.920(c) (same). Dr. 9 Montenegro s notes from May 2007 to August 2010 show that 10 Plaintiff s condition improved steadily after he was placed on 11 medication, and by as early as October 2007 Plaintiff s affect 12 was markedly improved and his depression was completely 13 controlled. (AR 358; see AR 342-44, 447-49.) All the way up 14 until August 2010, Plaintiff continued to show few, if any, 15 symptoms. In August 2010, just two months before the ALJ hearing 16 and the most recent notes in the record, Dr. Montenegro noted 17 that Plaintiff was in good spirits, was compliant [with] 18 medications, feels better, denies depression, slept 10 to 11 19 hours a night, watches his diet [and] exercises, walks 3 miles 20 per day, denied audio and visual hallucinations and paranoia, 21 and had no problems with his medications. (AR 458.) Drs. 22 Bagner s and Skopec s reports showed that Plaintiff s mood 23 disorder caused no more than minimal limitations on his ability 24 to work. (See AR 303-06, 312-25, 367-77.) Based on the 25 aforementioned evidence, the ALJ reasonably concluded that 26 Plaintiff s mood disorder was effectively controlled with 27 medication and did not affect his ability to work. (AR 17); see 28 20 C.F.R. § 404.1529(c)(4)(iv) (ALJ may consider effectiveness of 17 1 medication in evaluating severity and limiting effects of 2 impairment), § 416.929(c)(4)(iv) (same); Beck v. Astrue, 303 F. 3 App x 455, 457 (9th Cir. 2008) (holding that substantial evidence 4 supported ALJ s finding that plaintiff s sleep apnea and 5 depression with anxiety are not severe impairments because 6 conditions could be controlled effectively with treatment and 7 medical records [did] not indicate any severe problems ); Warre 8 v. Comm r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 9 2006) ( Impairments that can be controlled effectively with 10 medication are not disabling for the purpose of determining 11 eligibility for SSI benefits. ); see also Fields v. Astrue, No. 12 EDCV 07-1442-JTL, 2008 WL 4384248, at *7 (C.D. Cal. Sept. 3, 13 2008) (holding that substantial evidence supported ALJ s finding 14 that plaintiff s depression was not severe and adequately 15 controlled with mild anti-depressive medication with no more than 16 mild functional limitations because record showed that plaintiff 17 responds well to medications ). 18 Dr. Rath s hearing testimony also supported the ALJ s 19 determination that Plaintiff s mood disorder was not severe. The 20 ALJ found that Dr. Rath s opinion was consistent with the medical 21 record. (AR 17.) Substantial evidence supported that finding; 22 as noted above, virtually all of the medical evidence in the 23 record showed that Plaintiff s mood disorder was effectively 24 treated with medication and was not severe. The ALJ was 25 therefore entitled to rely on Dr. Rath s corroborative testimony 26 as further evidence that Plaintiff s mood disorder was not 27 severe. See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 28 2002) ( The opinions of non-treating or non-examining physicians 18 1 may also serve as substantial evidence when the opinions are 2 consistent with independent clinical findings or other evidence 3 in the record. ); Morgan v. Comm r of Soc. Sec. Admin., 169 F.3d 4 595, 600 (9th Cir. 1999) ( Opinions of a nonexamining, testifying 5 medical advisor may serve as substantial evidence when they are 6 supported by other evidence in the record and are consistent with 7 it (citing Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 8 1995)); see 20 C.F.R. §§ 404.1527(c)(4) (ALJ will generally give 9 more weight to opinions that are more consistent . . . with the 10 record as a whole ), 416.927(c)(4) (same). Dr. Rath reviewed all 11 of the medical evidence and heard Plaintiff testify before 12 rendering his opinion. See 20 C.F.R. §§ 404.1527(c)(3) (in 13 weighing medical opinions, ALJ will evaluate the degree to which 14 these opinions consider all of the pertinent evidence in 15 [claimant s] claim, including opinions of treating and other 16 examining sources ), 416.927(c)(3) (same). Moreover, the ALJ 17 could credit Dr. Rath s opinion because he testified at the 18 hearing and was subject to cross-examination. See Andrews, 53 19 F.3d at 1042 (greater weight may be given to nonexamining doctors 20 who are subject to cross-examination). 21 To the extent Plaintiff ever had a severe mood disorder, 22 the ALJ properly found that it did not last very long. (AR 17.) 23 An impairment is not severe unless it has lasted or is expected 24 to last for a continuous period of at least 12 months. 20 C.F.R. 25 §§ 404.1520(a)(4)(ii) ( If you do not have a severe medically 26 determinable physical or mental impairment that meets the 27 duration requirement in § 404.1509 . . ., we will find that you 28 are not disabled. ), 416.920(a)(4)(ii) (same, referencing 19 1 durational requirement in § 416.909); id. §§ 404.1509 (impairment 2 must have lasted or must be expected to last for a continuous 3 period of at least 12 months ), 416.909 (same). Dr. Montenegro s 4 notes reflect that by May 2007, only a month after Plaintiff was 5 first diagnosed with depression, his symptoms had started to 6 improve (AR 365), and by October 2007 Plaintiff s affect was 7 markedly improved and his depression [was] completely 8 controlled (AR 358). In August 2007, Dr. Bagner evaluated 9 Plaintiff, found that Plaintiff would have only mild to moderate 10 limitations handling normal stresses at work and zero to mild 11 limitations in all other aspects, diagnosed him with a GAF score 12 of 73 (indicating little to no impairment), and found that if he 13 continued with treatment Plaintiff should be significantly 14 better in less than six months. (AR 305-06.) In September 2007 15 Dr. Amado evaluated Plaintiff and concluded that Plaintiff was 16 only moderately limited in certain abilities and not 17 significantly limited in any other respect. (AR 312-13.) After 18 reviewing the evidence, Dr. Rath agreed that Plaintiff s mood 19 disorder did not meet the 12-month durational requirement. 20 39-40.) (AR Substantial evidence thus supported the ALJ s finding 21 that Plaintiff s mood disorder, to the extent it was ever 22 severe, did not last for the requisite 12 months. 23 Plaintiff argues that Dr. Montenegro s assessment of a GAF 24 score of 45 in January 2008 shows that Plaintiff s condition had 25 not improved over time. (J. Stip. at 4-5.) As an initial 26 matter, a score of 45 was an improvement over the score of 20 27 eight months earlier, before Plaintiff began taking medications 28 for his depression. Dr. Rath testified that Dr. Montenegro s 20 1 treatment notes showed that Plaintiff s condition had improved, 2 the GAF score was likely a reflection of Plaintiff s past 3 condition, and nothing in the record indicated that it was 4 updated to show Plaintiff s progress after being treated for his 5 depression. (AR 41-42.) Dr. Bagner assessed a GAF score of 73 6 in August 2007 (AR 305), and nothing in the record indicates that 7 Plaintiff s condition worsened between then and January 2008 8 indeed, the record shows just the opposite (see AR 342-44, 4479 49). Dr. Rath s testimony was thus consistent with the record. 10 Moreover, GAF scores [do] not have a direct correlation to the 11 severity requirements in the Social Security Administration s 12 mental disorders listings, and an ALJ may properly disregard a 13 low GAF score if other substantial evidence supports a finding 14 that the claimant was not disabled. Doney v. Astrue, 485 F. 15 App x 163, 165 (9th Cir. 2012) (alterations and citations 16 omitted). The only other medical evidence indicating that 17 Plaintiff s mood disorder may have been severe was Dr. Amado s 18 note in September 2007 near the beginning of Plaintiff s mood 19 disorder that [t]he proposed Non-severe determination may be a 20 little too optimistic in this case. (AR 325.) But Dr. Amado 21 also found that Plaintiff was not severely limited in performing 22 any mental tasks and agreed that Plaintiff s allegations of the 23 severity of his symptoms were not entirely credible. 24 312-25.) (See AR Any conflict in the properly supported medical-opinion 25 evidence was the sole province of the ALJ to resolve. See 26 Thomas, 278 F.3d at 956-57. 27 The only other evidence in the record concerning Plaintiff s 28 mood disorder was his own testimony and that of his son. 21 1 Plaintiff and his son both stated at the hearing and in their 2 function reports that Plaintiff s depression essentially rendered 3 him incapable of caring for himself and performing all but the 4 most basic activities. 5 254-61, 262-69.) (See AR 35-36, 39-45, 224-31, 235-42, But as the ALJ noted, Plaintiff initially 6 testified that the only conditions preventing him from working 7 were physical impairments; he had to be prompted by his attorney 8 before he mentioned his mood disorder. (See AR 18, 35-36.) 9 Moreover, Plaintiff s and his son s 2009 function reports 10 indicated that his condition had improved since 2007 they both 11 noted in 2009 that Plaintiff was able to once again do such 12 chores as grocery shopping and mowing the lawn, went outside for 13 at least an hour each day whereas in 2007 he was afraid to go 14 outside, had resumed his hobby of TV watching, exercised 15 regularly, and once again was socializing with his family and 16 with his friends at church. (See AR 254-61, 262-69.) Humberto 17 Jr. also admitted during the hearing that Plaintiff s condition 18 had improved with medication. 19 (See AR 52.) Dr. Montenegro s notes also indicate that by October 2007 20 Plaintiff s depression was completely controlled and by at 21 least May 2008 he was able to ride his bicycle to his 22 appointments on his own. (See AR 351- 358.) Plaintiff s ability 23 to exercise, socialize, manage his doctor s appointments on his 24 own, and perform various daily activities belies his and his 25 son s claims that his depression was severe. See Bray v. Comm r 26 of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009); Curry 27 v. Sullivan, 925 F.2d 1127, 1130 (9th Cir. 1990) (finding that 28 claimant s ability to take care of her personal needs, prepare 22 1 easy meals, do light housework and shop for some groceries . . . 2 may be seen as inconsistent with the presence of a condition 3 which would preclude all work activity ) (citing Fair v. Bowen, 4 885 F.2d 597, 604 (9th Cir. 1989)). 5 Plaintiff is not entitled to remand on this ground. 6 B. The ALJ Did Not Err in Assessing Plaintiff s 7 8 Credibility Plaintiff argues that the ALJ failed to provide clear and 9 convincing reasons for discounting his credibility. 10 17-23.) (J. Stip. at Because the ALJ did provide clear and convincing reasons 11 supporting his evaluation of Plaintiff s testimony and those 12 reasons were supported by substantial evidence in the record, 13 reversal is not warranted on this basis. 14 15 1. Applicable law An ALJ s assessment of pain severity and claimant 16 credibility is entitled to great weight. See Weetman v. 17 Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. Heckler, 779 18 F.2d 528, 531 (9th Cir. 1986). [T]he ALJ is not required to 19 believe every allegation of disabling pain, or else disability 20 benefits would be available for the asking, a result plainly 21 contrary to 42 U.S.C. § 423(d)(5)(A). 22 F.3d 1104, 1122 (9th Cir. 2012). Molina v. Astrue, 674 In evaluating a claimant s 23 subjective symptom testimony, the ALJ engages in a two-step 24 analysis. See Lingenfelter, 504 F.3d at 1035-36. First, the 25 ALJ must determine whether the claimant has presented objective 26 medical evidence of an underlying impairment [that] could 27 reasonably be expected to produce the pain or other symptoms 28 alleged. Id. at 1036 (internal quotation marks omitted). 23 If 1 such objective medical evidence exists, the ALJ may not reject a 2 claimant s testimony simply because there is no showing that the 3 impairment can reasonably produce the degree of symptom alleged. 4 Smolen, 80 F.3d at 1282 (emphasis in original). When the ALJ 5 finds a claimant s subjective complaints not credible, the ALJ 6 must make specific findings that support the conclusion. 7 Berry v. Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). See Absent 8 affirmative evidence of malingering, those findings must provide 9 clear and convincing reasons for rejecting the claimant s 10 testimony. Lester, 81 F.3d at 834. If the ALJ s credibility 11 finding is supported by substantial evidence in the record, the 12 reviewing court may not engage in second-guessing. Thomas, 278 13 F.3d at 959. 14 15 2. Relevant facts On June 22, 2007, Plaintiff filled out a Function Report, 16 mainly attesting to his mental condition. 17 not discuss his physical capacities. (AR 235-42.) (See id.) He did On April 26, 18 2009, Plaintiff filled out another Function Report, again mostly 19 discussing his mental condition, but he also stated that he was 20 able to mow the lawn, take out the trash, and go grocery 21 shopping. (AR 262-69.) He stated that his ability to lift, 22 squat, bend, stand, and kneel was limited and that because of my 23 physical injuries [right] hip replacement, [left] knee 24 microspopic [sic] surgery I can lift no more than 30 [pounds] 25 and cannot bend squat or stand very long. (AR 267.) He stated 26 that he could walk an eighth of a mile before having to rest for 27 at least 15 minutes. (Id.) He stated that his family generally 28 drove him places, but he was able to drive for short distances 24 1 during the day. 2 (AR 269.) At the hearing, Plaintiff testified that sometime in 2006 he 3 was injured in a fall and fractured his right hip, injured his 4 left knee, and hit his head and his shoulder. (AR 34.) He 5 stated that he took pain medication for his hip and knee but 6 could not remember what it was called. (AR 36.) He also 7 testified that he had been diagnosed with diabetes approximately 8 four months earlier and took insulin. 9 10 3. (AR 36-37.) Analysis The ALJ found, [a]fter careful consideration of the 11 evidence, that Plaintiff s medically determinable impairments 12 could reasonably be expected to cause the alleged symptoms; 13 however, the claimant s statements concerning the intensity, 14 persistence and limiting effects of these symptoms are not 15 credible to the extent they are inconsistent with the ALJ s RFC 16 assessment. (AR 19.) The ALJ noted that there were significant 17 gaps in Plaintiff s medical treatment for his physical ailments, 18 including the three years between May 2006 and March 2009. 19 19, 407-16.) (AR He noted that a physical exam by Plaintiff s 20 treating physician in November 2009 revealed no joint swelling 21 or tenderness . . ., although the claimant s gait was antalgic 22 and the doctor noted that Plaintiff was not able to sit or stand 23 for prolonged periods. (Id.) He noted that the most recent 24 evidence, from January 2010, showed that Plaintiff has right 25 shoulder pain with decreased range of motion on exertion, but 26 there were no diagnostic images from January 2010 in the file. 27 (AR 20, 407.) He discussed the effect of Plaintiff s obesity on 28 his ability to work as well as the opinions of Dr. Boeck, Dr. To, 25 1 and the two state agency reviewing physicians finding that 2 Plaintiff was able to perform a range of medium work with certain 3 additional limitations. 4 406.) (AR 20, 307-11, 328-32, 380-85, 388-93, He discussed the opinion of Plaintiff s treating 5 physician, Dr. Miguel Doningo, who opined that Plaintiff was 6 unable to perform even sedentary work because of his diabetes, 7 and rejected that opinion because it was unsupported by clinical 8 findings and inconsistent with the other evidence in the record 9 (AR 21, 451-53), a finding Plaintiff does not challenge. 10 The ALJ then summarized Plaintiff s testimony and noted that 11 Plaintiff admitted that he was able to perform a range of daily 12 activities; medical reports revealed that Plaintiff was able to 13 walk long distances, exercise, and ride his bicycle, and 14 Plaintiff was not prescribed any pain medication, all of which 15 conflicted with Plaintiff s allegations of disabling pain. 16 21.) (AR Plaintiff s failure to mention his alleged mental 17 impairments until prompted by his attorney did not work towards 18 [Plaintiff s] favor. (AR 18.) The ALJ concluded that 19 Plaintiff s 20 pain allegations are not credible in light of the medical 21 evidence. 22 pain level appears to be increasing with constant pain, 23 the objective findings have not changed. 24 does not show any deterioration or any additional medical 25 difficulties. 26 prescribed any pain medications as his current list of 27 medications only includes those for cholesterol and 28 depression. While the claimant has complained that his Furthermore, 26 the His condition claimant is not 1 (AR 21.) The ALJ therefore found Plaintiff s allegations of 2 disabling pain not credible. 3 (Id.) Reversal is not warranted based on the ALJ s alleged failure 4 to make proper credibility findings or properly consider 5 Plaintiff s subjective symptoms. To the extent Plaintiff 6 challenges the ALJ s rejection of his subjective testimony with 7 respect to his mood disorder, the ALJ s decision was supported by 8 substantial evidence for the reasons discussed above in Section 9 V(A). 10 With respect to Plaintiff s physical impairments, the ALJ 11 provided clear and convincing reasons for rejecting Plaintiff s 12 subjective symptom testimony to the extent it was inconsistent 13 with the RFC assessment. (AR 26-30.) All of the medical 14 evidence with the exception of Dr. Doningo s report the 15 rejection of which Plaintiff does not challenge indicated that 16 Plaintiff was capable of performing a range of medium work. As 17 the ALJ noted, the record showed that Plaintiff was not taking 18 any prescription pain medication or undergoing any other 19 treatment for pain, which cast serious doubt on his allegations 20 of disabling pain. (AR 21, 283, 380.) Consulting orthopedist 21 Dr. William Boeck and consulting internist Dr. Brian To both 22 found after examining Plaintiff that he was able to perform a 23 range of medium work with certain additional limitations. 24 20, 307-11, 380-85.) (AR Drs. Boeck s and To s opinions were 25 supported by their own examinations of Plaintiff and test 26 results, including x-rays (see AR 308-10, 381-84), and thus 27 constituted substantial evidence upon which the ALJ could 28 properly rely. See Tonapetyan v. Halter, 242 F.3d 1144, 1149 27 1 (9th Cir. 2001) (ALJ may rely on consulting physician s opinion 2 when it rests on [physician s] own independent examination of 3 [claimant] ); Andrews, 53 F.3d at 1041. Two state agency 4 reviewing physicians also reviewed the record and opined that 5 Plaintiff was capable of performing a range of medium work. 6 328-32, 388-93, 406.) (AR The ALJ was entitled to credit those 7 opinions as well because they were consistent with substantial 8 other evidence in the record. See Thomas, 278 F.3d at 957. 9 Thus, the ALJ properly rejected Plaintiff s subjective testimony. 10 See Carmickle v. Comm r, Soc. Sec. Admin., 533 F.3d 1155, 1161 11 (9th Cir. 2008) ( Contradiction with the medical record is a 12 sufficient basis for rejecting the claimant s subjective 13 testimony. ); Lingenfelter, 504 F.3d at 1040 (in determining 14 credibility, ALJ may consider whether the alleged symptoms are 15 consistent with the medical evidence ); Burch v. Barnhart, 400 16 F.3d 676, 681 (9th Cir. 2005) ( Although lack of medical evidence 17 cannot form the sole basis for discounting pain testimony, it is 18 a factor that the ALJ can consider in his credibility 19 analysis. ); Kennelly v. Astrue, 313 F. App x 977, 979 (9th Cir. 20 2009) (same); Tommasetti v. Astrue, 533 F.3d 1035, 1039-40 (9th 21 Cir. 2008) (ALJ may consider unexplained or inadequately 22 explained failure to seek treatment and may also infer that 23 claimant s response to conservative treatment undermines 24 [claimant s] reports regarding the disabling nature of his 25 pain ). 26 Moreover, as the ALJ noted, both Plaintiff and Humberto Jr. 27 admitted that Plaintiff was able to exercise and do various 28 chores around the house, such as going to the grocery store, 28 1 mowing the lawn, and taking out the trash. (Id.) Dr. 2 Montenegro s notes also showed that Plaintiff often rode his 3 bicycle to his medical appointments, further casting doubt on his 4 claims of physical disability. (AR 21, 342-44, 447-49.) At 5 approximately the same time as Humberto Jr. said Plaintiff could 6 walk only around the block (see AR 259), Plaintiff told Dr. 7 Montenegro that he walked three miles a day and four miles to one 8 appointment (see AR 418). That Plaintiff s allegations of 9 disabling pain were inconsistent with his daily activities was 10 also a valid reason for the ALJ to discount his testimony. See 11 Bray, 554 F.3d at 1227. 12 Because the ALJ gave clear and convincing reasons for his 13 credibility finding and those reasons were supported by 14 substantial evidence, the Court may not engage in 15 second-guessing. Thomas, 278 F.3d at 959 (citation omitted). 16 Plaintiff is not entitled to reversal on this claim. 17 C. 18 19 The ALJ Did Not Err in Evaluating the Third-Party Testimony of Plaintiff s Son Plaintiff contends that the ALJ erred in considering the 20 third-party reports submitted by Plaintiff s son, Humberto Jr., 21 and Humberto Jr. s hearing testimony. (J. Stip. at 9-15.) 22 Reversal is not warranted on this basis. 23 24 1. Applicable law In determining whether a claimant is disabled, an ALJ must 25 consider lay witness testimony concerning a claimant s ability to 26 work. Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009) 27 (quoting Stout v. Comm r, Soc. Sec. Admin., 454 F.3d 1050, 1053 28 (9th Cir. 2006) (internal quotation marks omitted)); see also 20 29 1 C.F.R. § 404.1513(d) (statements from therapists, family, and 2 friends can be used to show severity of impairment(s) and effect 3 on ability to work), § 416.913(d) (same). Such testimony is 4 competent evidence and cannot be disregarded without comment. 5 Bruce, 557 F.3d at 1115 (quoting Nguyen v. Chater, 100 F.3d 1462, 6 1467 (9th Cir. 1996) (internal quotation marks omitted)); 7 Robbins, 466 F.3d at 885 ( [T]he ALJ is required to account for 8 all lay witness testimony in the discussion of his or her 9 findings. ). When rejecting the testimony of a lay witness, an 10 ALJ must give specific reasons that are germane to that witness. 11 Bruce, 557 F.3d at 1115; see also Stout, 454 F.3d at 1054; 12 Nguyen, 100 F.3d at 1467. 13 If an ALJ fails to discuss competent lay testimony favorable 14 to the claimant, a reviewing court cannot consider the error 15 harmless unless it can confidently conclude that no reasonable 16 ALJ, when fully crediting the testimony, could have reached a 17 different disability determination. 18 see also Robbins, 466 F.3d at 885. Stout, 454 F.3d at 1056; But an ALJ s failure to 19 comment upon lay witness testimony is harmless where the same 20 evidence that the ALJ referred to in discrediting [the 21 claimant s] claims also discredits [the lay witness s] claims. 22 Molina, 674 F.3d at 1122 (quoting Buckner v. Astrue, 646 F.3d 23 549, 560 (8th Cir. 2011)). 24 25 2. Relevant facts On June 22, 2007, Humberto Jr. filled out a Third Party 26 Function Report, primarily attesting to Plaintiff s mental 27 functioning. (AR 224-31.) On April 26, 2009, Humberto Jr. 28 filled out another Third Party Function Report, again primarily 30 1 attesting to Plaintiff s mental functioning but also stating that 2 Plaintiff was limited in his ability to lift, squat, bend, stand, 3 and kneel; his physical injuries affect ability to lift more 4 than 30 [pounds] ; and squatting, bending, kneeling [are] very 5 hard to do. (AR 259.) He stated that Plaintiff could walk an 6 eighth of a mile before needing to rest for 15 to 30 minutes. 7 (Id.) He noted that Plaintiff did not need any assistive devices 8 to move around and that he walked to the local market but family 9 members drove him everywhere else. 10 (AR 260-61.) At the hearing, Humberto Jr. testified about Plaintiff s 11 depression and that Plaintiff was overweight, had arthroscopic 12 knee surgery in his left knee, had a complete replacement in 13 his right hip that limited his ability to move, walk, stand, and 14 do other physical activities, and had diabetes, which required 15 Humberto Jr. to administer insulin to Plaintiff. (AR 49.) He 16 further testified that Plaintiff had difficulty sitting and 17 standing, could not sit or stand for more than one hour at a 18 time, and could not walk farther than a very short block. 19 50.) (AR He also testified that in his opinion, Plaintiff could not 20 last eight hours at work and could not lift more than 10 pounds. 21 (AR 51.) He stated that Plaintiff took a nap twice a day for 20 22 to 30 minutes. (Id.) He also stated that Plaintiff s 23 condition was managed with medication and a few exercises. 24 (AR 52.) 25 26 3. Analysis The ALJ addressed Humberto Jr. s statements and testimony in 27 his written opinion as follows: 28 I considered two third party function reports submitted 31 1 by the claimant s son and the testimony of the claimant s 2 son, in which he discussed the claimant s restrictions. 3 While 4 claimant s subjective complaints, it is not supported by 5 the 6 Therefore, I assign little weigh to these reports and 7 statements. these greater reports are objective not medical inconsistent evidence of with the record. 8 (AR 21 (citation omitted).) 9 The ALJ did not err in evaluating Humberto Jr. s testimony 10 and reports. To the extent the ALJ rejected those concerning 11 Plaintiff s mental condition, that decision was supported by 12 substantial evidence, for the reasons discussed above in Section 13 V(A). To the extent the ALJ rejected Humberto Jr. s statements 14 about Plaintiff s physical abilities, he gave specific reasons 15 for doing so and those reasons were supported by substantial 16 evidence. 17 Plaintiff argues that the ALJ s three-sentence rejection of 18 Humberto Jr. s testimony and reports was insufficient. 19 14.) (AR 13- But the ALJ discussed the reasons for rejecting them in 20 connection with his reasons for rejecting Plaintiff s own 21 testimony and reports (see AR 21-22), and the two sources 22 provided substantially similar and repetitive information 23 (compare AR 49-52, 221-31, 254-61 with AR 32-38, 232-42, 262-69). 24 The ALJ did not need to separately summarize and discuss Humberto 25 Jr. s statements when the same evidence that the ALJ referred to 26 in discrediting Plaintiff s testimony and reports also 27 discredited Humberto Jr. s. Molina, 674 F.3d at 1122. 28 discussed above in Section V(B), the ALJ gave clear and 32 As 1 convincing reasons for rejecting Plaintiff s subjective testimony 2 and reports, and those reasons were supported by substantial 3 evidence. Reversal is therefore not warranted on this basis. 4 VI. CONCLUSION 5 Consistent with the foregoing, and pursuant to sentence four 6 of 42 U.S.C. § 405(g),9 IT IS ORDERED that judgment be entered 7 AFFIRMING the decision of the Commissioner and dismissing this 8 action with prejudice. IT IS FURTHER ORDERED that the Clerk 9 serve copies of this Order and the Judgment on counsel for both 10 parties. 11 12 13 DATED: March 20, 2013 14 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 This sentence provides: The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. 33

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