Linda Gomez v. Michael J Astrue, No. 5:2012cv00925 - Document 15 (C.D. Cal. 2013)

Court Description: MEMORANDUM OPINION AND ORDER AFFIRMING THE COMMISSIONER by Magistrate Judge Jean P Rosenbluth: (See document for details.) CONCLUSION Consistent with the foregoing, and pursuant to sentence four of 42 U.S.C. 405(g),15 IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner and dismissing this action with prejudice. IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment on counsel for both parties. (rla)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 LINDA GOMEZ, 10 Plaintiff, 11 vs. 12 13 CAROLYN W. COLVIN, Acting Commissioner of Social Security,1 14 Defendant. 15 ) Case No. EDCV 12-0925-JPR ) ) ) MEMORANDUM OPINION AND ORDER ) AFFIRMING THE COMMISSIONER ) ) ) ) ) ) ) 16 17 I. PROCEEDINGS 18 Plaintiff seeks review of the Commissioner s final decision 19 denying her application for Social Security Supplemental Security 20 Income benefits ( SSI ) and Disabled Adult Child benefits 21 ( DAC ).2 The parties consented to the jurisdiction of the 22 23 24 25 26 27 28 1 On February 14, 2013, Colvin became the Acting Commissioner of Social Security. Pursuant to Federal Rule of Civil Procedure 25(d), the Court therefore substitutes Colvin for Michael J. Astrue as the proper Respondent. 2 DAC benefits are available for a disabled child of a person who is deceased or drawing Social Security disability or retirement benefits. See 42 U.S.C. § 402(d). To be eligible for DAC benefits, the applicant must have become disabled before age 22. See id. 1 1 undersigned U.S. Magistrate Judge pursuant to 28 U.S.C. § 636(c). 2 This matter is before the Court on the parties Joint 3 Stipulation, filed February 21, 2013, which the Court has taken 4 under submission without oral argument. For the reasons stated 5 below, the Commissioner s decision is affirmed and this action is 6 dismissed. 7 II. BACKGROUND 8 Plaintiff was born on February 27, 1976. 9 Record ( AR ) 127.) 10 174.) (Administrative She has a 12th-grade education. (AR 35, In 1999 Plaintiff worked for approximately two and a half 11 months as a newspaper jogger, stacking newspapers and inserting 12 them into a machine. (AR 31, 65, 170, 197, 199.) 13 job when she became pregnant. (AR 60.) She last worked as a 14 grocery-store clerk for one day in 2006. 15 (AR 31, 170, 197.) On May 8, 2009, Plaintiff filed applications for SSI and DAC 16 based on the earnings record of her father. 17 176.) She left that (AR 127-28, 160-63, Plaintiff alleged that she had been unable to work since 18 January 1, 1995, because of bipolar disorder, anxiety, and 19 attention deficit disorder. (AR 169.) Her applications were 20 denied initially, on June 24, 2009 (AR 77-85), and upon 21 reconsideration, on September 30, 2009 (AR 89-94). 22 After Plaintiff s applications were denied, she requested a 23 hearing before an ALJ. (AR 96.) A hearing was held on October 24 21, 2010, at which Plaintiff, who was represented by counsel, 25 appeared and testified; a medical expert and a vocational expert 26 ( VE ) also testified. (AR 24-68.) In a written decision issued 27 December 21, 2010, the ALJ determined that Plaintiff was not 28 disabled. (AR 9-20.) On April 18, 2012, the Appeals Council 2 1 denied Plaintiff s request for review. (AR 1-3.) This action 2 followed. 3 III. STANDARD OF REVIEW 4 Pursuant to 42 U.S.C. § 405(g), a district court may review 5 the Commissioner s decision to deny benefits. The ALJ s findings 6 and decision should be upheld if they are free of legal error and 7 supported by substantial evidence based on the record as a whole. 8 § 405(g); Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 9 1420, 1427, 28 L. Ed. 2d 842 (1971); Parra v. Astrue, 481 F.3d 10 742, 746 (9th Cir. 2007). Substantial evidence means such 11 evidence as a reasonable person might accept as adequate to 12 support a conclusion. Richardson, 402 U.S. at 401; Lingenfelter 13 v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 14 a scintilla but less than a preponderance. It is more than Lingenfelter, 504 15 F.3d at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 16 882 (9th Cir. 2006)). To determine whether substantial evidence 17 supports a finding, the reviewing court must review the 18 administrative record as a whole, weighing both the evidence that 19 supports and the evidence that detracts from the Commissioner s 20 conclusion. 21 1996). Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. If the evidence can reasonably support either affirming 22 or reversing, the reviewing court may not substitute its 23 judgment for that of the Commissioner. Id. at 720-21. 24 IV. THE EVALUATION OF DISABILITY 25 People are disabled for purposes of receiving Social 26 Security benefits if they are unable to engage in any substantial 27 gainful activity owing to a physical or mental impairment that is 28 expected to result in death or which has lasted, or is expected 3 1 to last, for a continuous period of at least 12 months. 42 2 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 3 (9th Cir. 1992). 4 Under Title II of the Social Security Act, a disabled adult 5 whose parent is entitled to Social Security disability insurance 6 benefits may receive DAC benefits if she can show, among other 7 things, that at the time of filing for DAC benefits she was 8 unmarried, dependent on the wage-earning parent, and under a 9 disability . . . [that] began before [s]he attained the age of 10 22. 42 U.S.C. § 402(d)(1)(B); 20 C.F.R. § 404.350. To be 11 eligible for benefits, the claimant must be disabled 12 continuously and without interruption beginning before her 13 twenty-second birthday until the time she applied for child s 14 disability insurance benefits. Smolen v. Chater, 80 F.3d 1273, 15 1280 (9th Cir. 1996) (emphasis in original). 16 A. 17 The ALJ follows a five-step sequential evaluation process in The Five-Step Evaluation Process 18 assessing whether a claimant is disabled. 20 C.F.R. 19 §§ 404.1520(a)(4), 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 20 828 n.5 (9th Cir. 1995) (as amended Apr. 9, 1996).3 In the first 21 step, the Commissioner must determine whether the claimant is 22 currently engaged in substantial gainful activity; if so, the 23 claimant is not disabled and the claim must be denied. 24 §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not 25 26 27 28 3 In evaluating a claimant s eligibility for DAC benefits, the ALJ uses the same five-step process as used to evaluate eligibility for a claimant s own disability insurance benefits under Title II of the Social Security Act. See 42 U.S.C. §§ 401 et seq.; 20 C.F.R. §§ 404.301, 404.1520. 4 1 engaged in substantial gainful activity, the second step requires 2 the Commissioner to determine whether the claimant has a severe 3 impairment or combination of impairments significantly limiting 4 her ability to do basic work activities; if not, a finding of not 5 disabled is made and the claim must be denied. 6 §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a 7 severe impairment or combination of impairments, the third step 8 requires the Commissioner to determine whether the impairment or 9 combination of impairments meets or equals an impairment in the 10 Listing of Impairments ( Listing ) set forth at 20 C.F.R., Part 11 404, Subpart P, Appendix 1; if so, disability is conclusively 12 presumed and benefits are awarded. 13 416.920(a)(4)(iii). §§ 404.1520(a)(4)(iii), If the claimant s impairment or combination 14 of impairments does not meet or equal an impairment in the 15 Listing, the fourth step requires the Commissioner to determine 16 whether the claimant has sufficient residual functional capacity 17 ( RFC )4 to perform her past work; if so, the claimant is not 18 disabled and the claim must be denied. 19 416.920(a)(4)(iv). §§ 404.1520(a)(4)(iv), The claimant has the burden of proving that 20 she is unable to perform past relevant work. 21 1257. Drouin, 966 F.2d at If the claimant meets that burden, a prima facie case of 22 disability is established. Id. If that happens or if the 23 claimant has no past relevant work, the Commissioner then bears 24 the burden of establishing that the claimant is not disabled 25 26 4 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). 5 1 because she can perform other substantial gainful work available 2 in the national economy. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 3 That determination comprises the fifth and final step in the 4 sequential analysis. §§ 404.1520, 416.920; Lester, 81 F.3d at 5 828 n.5; Drouin, 966 F.2d at 1257. 6 To establish eligibility for DAC benefits, the Commissioner 7 must also find that the claimant is the child of the insured, is 8 dependent on the insured, is unmarried, and has a disability that 9 began before age 22. 20 C.F.R. § 404.350(a). 10 B. 11 At step one, the ALJ found that Plaintiff had not turned 22 The ALJ s Application of the Five-Step Process 12 as of January 1, 1995, the alleged onset date, and had not 13 engaged in substantial gainful activity since that date. 14 11.) (AR She found that the limited work Plaintiff performed in 1999 15 and 2006 did not rise to the level of substantial gainful 16 activity. (Id.) At step two, the ALJ concluded that Plaintiff 17 had the severe impairments of bipolar disorder, not otherwise 18 specified; attention deficit disorder; and a history of substance 19 abuse. (AR 12.) At step three, the ALJ determined that 20 Plaintiff s impairments did not meet or equal any of the 21 impairments in the Listing. (AR 12-13.) At step four, the ALJ 22 found that Plaintiff retained the RFC to perform a full range of 23 work at all exertional levels but was limited to simple, 24 repetitive tasks and no interaction with the public and only 25 non-intense contact with coworkers and supervisors ; she was also 26 precluded from positions requiring hypervigilence, fast-paced 27 work or responsibility for the safety of others. (AR 13.) 28 Based on the VE s testimony, the ALJ concluded that Plaintiff was 6 1 capable of performing past relevant work as a newspaper jogger 2 as she actually performed it but not as generally performed 3 based on the testimony of the [VE]. (AR 19.) The ALJ therefore 4 concluded that with respect to her application for DAC, Plaintiff 5 was not disabled as defined in § 223(d) of the Social Security 6 Act, 42 U.S.C. § 423(d), prior to attaining age 22.5 (Id.) With 7 respect to her application for SSI, the ALJ determined that 8 Plaintiff was not disabled under § 1614(a)(3)(A) of the Social 9 Security Act, 42 U.S.C. § 1382c(a)(3)(A). (Id.) 10 V. DISCUSSION 11 Plaintiff alleges that the ALJ erred in (1) evaluating the 12 opinion of her treating physician; (2) failing to address an 13 inconsistency between Plaintiff s RFC and the Dictionary of 14 Occupational Titles ( DOT ); and (3) evaluating the Third Party 15 Disability Report completed by Plaintiff s mother. (J. Stip. at 16 2-3.) 17 A. 18 19 The ALJ Did Not Err in Evaluating the Opinion of Plaintiff s Treating Physician Plaintiff first contends that the ALJ erred in evaluating 20 the opinion of her treating physician, psychiatrist Dr. Ochuko 21 Gregson Diamreyan. (J. Stip. at 3-5.) Reversal is not warranted 22 on this basis because the ALJ gave specific and legitimate 23 reasons for rejecting Dr. Diamreyan s opinion and those reasons 24 25 26 27 28 5 The ALJ did not make specific findings as to the other factors enumerated in § 404.350(a). (See AR 11-19.) The record showed, however, that Plaintiff was the child of Anthony Paul Gomez, who was eligible to receive DIB (AR 164-65, 176), she was likely his dependent (AR 161), and she was unmarried (AR 30, 32, 160). 7 1 were supported by substantial evidence in the record. 2 3 1. Applicable law Three types of physicians may offer opinions in social 4 security cases: (1) those who treat[ed] the claimant (treating 5 physicians); (2) those who examine[d] but d[id] not treat the 6 claimant (examining physicians); and (3) those who neither 7 examine[d] nor treat[ed] the claimant (non-examining 8 physicians). Lester, 81 F.3d at 830. A treating physician s 9 opinion is generally entitled to more weight than the opinion of 10 a doctor who examined but did not treat the claimant, and an 11 examining physician s opinion is generally entitled to more 12 weight than that of a nonexamining physician. 13 Id. The opinions of treating physicians are generally afforded 14 more weight than the opinions of nontreating physicians because 15 treating physicians are employed to cure and have a greater 16 opportunity to know and observe the claimant. 17 1285. Smolen, 80 F.3d at If a treating physician s opinion is well supported by 18 medically acceptable clinical and laboratory diagnostic 19 techniques and is not inconsistent with the other substantial 20 evidence in the record, it should be given controlling weight. 21 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). If a treating 22 physician s opinion is not given controlling weight, its weight 23 is determined by length of the treatment relationship, frequency 24 of examination, nature and extent of the treatment relationship, 25 amount of evidence supporting the opinion, consistency with the 26 record as a whole, the doctor s area of specialization, and other 27 factors. 28 20 C.F.R. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6). When a treating or examining doctor s opinion is not 8 1 contradicted by another doctor, it may be rejected only for 2 clear and convincing reasons. Carmickle v. Comm r, Soc. Sec. 3 Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) (quoting Lester, 81 4 F.3d at 830-31). When a treating or examining physician s 5 opinion conflicts with another doctor s, the ALJ must provide 6 only specific and legitimate reasons for discounting the 7 treating doctor s opinion. Further, the ALJ need not Id. 8 accept the opinion of any physician, including a treating 9 physician, if that opinion is brief, conclusory, and inadequately 10 supported by clinical findings. Thomas v. Barnhart, 278 F.3d 11 947, 957 (9th Cir. 2002); accord Batson v. Comm r of Soc. Sec. 12 Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). The weight given an 13 examining physician s opinion, moreover, depends on whether it is 14 consistent with the record and accompanied by adequate 15 explanation, among other things. 20 C.F.R. §§ 404.1527(c)(3)- 16 (6), 416.927(c)(3)-(6). 17 18 2. Relevant facts On May 7, 2009, apparently the first day he saw Plaintiff, 19 Dr. Diamreyan signed a handwritten note stating only, 20 21 The above named is very sick. She is not well enough to hold a job. 22 (AR 289.) He also performed an initial psychiatric evaluation 23 of Plaintiff on that date, in which he noted that Plaintiff had 24 been recently hospitalized pursuant to a 5150 admission6 and that 25 26 27 28 6 California Welfare and Institutions Code section 5150 provides: When any person, as a result of mental disorder, is a danger to others, or to himself or herself, or gravely 9 1 she had a history of methamphetamine use, petty theft, and 2 battery on her domestic partner. (AR 280; see also AR 243-53 3 (Apr. 2009 hospitalization records), AR 272 (noting history of 4 domestic battery).) He noted that she was anxious and had 5 vocal tics, but her general appearance was clean, her mood 6 was euthymic, her speech, perception, thought process, thought 7 control, and cognitive functions were all intact, and her 8 impulse control, judgment, insight, and reliability were fair. 9 (AR 280.) He diagnosed her with bipolar disorder, assessed a 10 Global Assessment of Functioning ( GAF ) score of 40,7 and 11 prescribed antidepressants. 12 guarded. 13 (AR 281.) His prognosis was (Id.) On May 14, 2009, Dr. Diamreyan saw Plaintiff again and noted 14 that she had stopped taking the medication he prescribed after 15 one day and showed signs of anxiety and depression, but her 16 appearance was appropriate ; she was cooperative, made eye 17 contact, and was interactive ; and she did not show any 18 19 20 21 22 23 24 25 26 27 28 disabled, a peace officer, member of the attending staff, as defined by regulation, of an evaluation facility designated by the county, designated members of a mobile crisis team provided by Section 5651.7, or other professional person designated by the county may, upon probable cause, take, or cause to be taken, the person into custody and place him or her in a facility designated by the county and approved by the State Department of Social Services as a facility for 72-hour treatment and evaluation. 7 A GAF score of 40 indicates some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) OR major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood . . . . See Am. Psychiatric Ass n, Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed. 2000). 10 1 psychomotor agitation or retardation, elation, inappropriate 2 affect, lack of impulse control, delusions, hallucinations, 3 suicidal or homicidal ideation, or impaired orientation, memory, 4 or judgment. (AR 279.) 5 appointment. (Id.) He prescribed Prozac and set a follow-up On May 26, June 25, and July 24, 2009, Dr. 6 Diamreyan noted similarly that Plaintiff appeared anxious and 7 depressed but did not have any other signs of impaired mental 8 functioning, and he continued to adjust her medication dosages. 9 (AR 276-78.) On July 6, 2009, Dr. Diamreyan signed a note 10 stating that Plaintiff is my patient with a diagnosis of Bipolar 11 [disorder], Tourette (vocal tics), problems with impulse 12 control, and kleptomania. (AR 289.) He noted that Plaintiff is 13 on Prozac and Lamictal [and] I see her every 2 weeks for 14 medication [management]. (Id.) On August 14, 2009, Dr. 15 Diamreyan noted that Prozac makes [Plaintiff have] worse mood 16 swings, and Plaintiff reported that her husband 8 kicked her 17 out of the house and suspected that she was using methamphetamine 18 again. (AR 275.) Dr. Diamreyan noted that she appeared anxious 19 and depressed and had lack of impulse control, but she did not 20 show any other signs of impaired mental functioning. He (Id.) 21 discontinued Prozac and prescribed a different medication. (Id.) 22 On September 18, 2009, Dr. Diamreyan noted that Plaintiff was 23 still having mood swings, keeps giving excuses for not 24 following up with further testing, said her family suspects 25 she s doing drugs again, seemed impulsive and restless, and 26 27 28 8 Plaintiff was not in fact married but lived with her boyfriend, who was the father of her two children. (See AR 30, 32.) 11 1 had missed her last appointment. (AR 274.) He noted that she 2 appeared anxious and depressed but did not show any other signs 3 of impaired mental functioning. 4 medication dosages. (Id.) (Id.) He again adjusted her On October 2, 2009, Dr. Diamreyan 5 noted that Plaintiff was doing well but missed her children9 6 and had some mood swings. (AR 273.) He again noted that she 7 appeared anxious and depressed but did not show any other signs 8 of impaired mental functioning. 9 medication. (Id.) (Id.) He adjusted her On March 1, 2010, Dr. Diamreyan saw Plaintiff 10 again and noted that Plaintiff had stopped taking her medications 11 because she was concerned about weight gain ; he did not make 12 any notes about her mental status but did prescribe new 13 medication. 14 15 (AR 309.) 3. Analysis After thoroughly summarizing the medical evidence of record, 16 the ALJ discussed Dr. Diamreyan s opinion that Plaintiff was 17 unable to work: 18 The undersigned has read and considered the 19 disability statement written by Dr. Ochuko Diamreyan 20 dated May 7, 2009. 21 was too sick to work. 22 positive objective clinical or diagnostic findings to 23 support this statement and it appears the doctor largely 24 adopted the claimant s own reported symptomatology. 25 Diamreyan s own clinical findings on this same date Dr. Diamreyean opined the claimant Dr. Diamreyan did not document Dr. 26 27 28 9 Plaintiff s children were removed from her home in August 2009 and not returned until October 2010. (See AR 55-56, 291-99.) 12 1 revealed essentially unremarkable findings, including 2 intact memory, attention, concentration and fair judgment 3 and insight. Furthermore, the undersigned finds that Dr. 4 Diamreyan only started to have a treating relationship 5 with the claimant at the time he authored this disability 6 statement. 7 doctor 8 picture of the claimant s medical condition. 9 undersigned finds Dr. Diamreyan s conclusion has no One examination would not have provided the enough information to obtain a longitudinal Thus, the 10 probative value and rejects it. 11 issue reserved to the Commissioner, this statement is not 12 entitled to controlling weight and is not given special 13 significance 14 416.927(e). pursuant to 20 As an opinion on an C.F.R. 404.1527(e) and 15 (AR 18.) 16 The ALJ gave specific and legitimate reasons for rejecting 17 Dr. Diamreyan s opinion that Plaintiff was unable to work, and 18 those reasons were supported by substantial evidence in the 19 record.10 First, as the ALJ correctly noted, Dr. Diamreyan s 20 opinion conflicted with his treatment notes, which showed that 21 although Plaintiff was anxious and depressed, had a GAF score of 22 40, had mood swings, was not always compliant with her 23 medication, and may have continued to use methamphetamine, her 24 appearance was appropriate, she was cooperative, she made eye 25 26 27 28 10 Because Dr. Diamreyan s opinion conflicted with his own treatment notes and the opinions of the medical expert and stateagency physicians, the ALJ needed to provide only specific and legitimate reasons for rejecting it. See Carmickle, 533 F.3d at 1164. 13 1 contact and was interactive, and she did not show any 2 psychomotor agitation or retardation, elation, inappropriate 3 affect, delusions, hallucinations, suicidal or homicidal 4 ideation, or impaired orientation, memory, or judgment. (AR 273- 5 81); see Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 2003) 6 (treating doctor s opinion properly rejected when treatment notes 7 provide no basis for the functional restrictions he opined 8 should be imposed on [claimant] ); Valentine v. Comm r, Soc. Sec. 9 Admin., 574 F.3d 685, 692-93 (9th Cir. 2009) (contradiction 10 between treating physician s opinion and his treatment notes 11 constitutes specific and legitimate reason for rejecting treating 12 physician s opinion); Batson, 359 F.3d at 1195 ( an ALJ may 13 discredit treating physicians opinions that are conclusory, 14 brief, and unsupported by the record as a whole . . . or by 15 objective medical findings ); Rollins v. Massanari, 261 F.3d 853, 16 856 (9th Cir. 2001) (ALJ permissibly rejected treating 17 physician s opinion when opinion was contradicted by or 18 inconsistent with treatment reports). The ALJ did not ignore Dr. 19 Diamreyan s findings that Plaintiff suffered from ongoing 20 anxiety, depression, mood swings, poor impulse control, and 21 difficulty interacting with others. She properly accounted for 22 those symptoms in her RFC finding by limiting Plaintiff to 23 simple, repetitive tasks and limiting her contact with 24 supervisors, coworkers, and the public. (AR 13.) Indeed, she 25 gave Plaintiff the benefit of the doubt by rejecting the portions 26 of the opinions of the state-agency physicians opining that 27 Plaintiff s impairments had not lasted the requisite 12 months to 28 be considered severe ; she agreed with those physicians that 14 1 Plaintiff should be limited to simple repetitive tasks but 2 found, after considering the claimant s bipolar disorder, 3 attention deficit hyperactivity and history of methamphetamine 4 use, that the evidence supports additional restrictions on 5 Plaintiff s ability to interact with others. (AR 18-19, 254-72.) 6 The ALJ s analysis was thus consistent with Dr. Diamreyan s 7 properly supported medical findings. 8 Second, the ALJ properly rejected Dr. Diamreyan s opinion 9 that Plaintiff could not work because it was rendered on the 10 first day he saw Plaintiff, and thus he had not had enough 11 information to obtain a longitudinal picture of [Plaintiff s] 12 medical condition when he rendered it. (AR 18); see Orn v. 13 Astrue, 495 F.3d 625, 631 (9th Cir. 2007) (factors in assessing 14 treating physician s opinion include length of treatment 15 relationship, frequency of examination, and nature and extent of 16 treatment relationship); accord 20 C.F.R. §§ 404.1527(c)(2), 17 416.927(c)(2). Notably, after he had spent more time treating 18 her, Dr. Diamreyan never again opined that Plaintiff was unable 19 to work. 20 (See AR 273-81, 309.) Third, to the extent Dr. Diamreyan s opinion was premised on 21 Plaintiff s discredited subjective statements the rejection of 22 which Plaintiff does not contest the ALJ also properly rejected 23 it. See Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 24 2001) (when ALJ properly discounted claimant s credibility, he 25 was free to disregard doctor s opinion that was premised on 26 claimant s subjective complaints); Morgan v. Comm r of Soc. Sec. 27 Admin., 169 F.3d 595, 602 (9th Cir. 1999) (when physician s 28 opinion of disability premised to a large extent upon 15 1 claimant s own accounts of symptoms, limitations may be 2 disregarded if complaints have been properly discounted ); 3 Houghton v. Comm r of Soc. Sec. Admin., 493 F. App x 843, 845 4 (9th Cir. 2012) (ALJ s finding that doctors opinions were 5 internally inconsistent, unsupported by their own treatment 6 records or clinical findings, inconsistent with the record as a 7 whole, and premised primarily on [claimant s] subjective 8 statements which the ALJ found unreliable constituted specific 9 and legitimate bases for discounting them). Dr. Diamreyan 10 clearly relied at least in part on Plaintiff s subjective 11 symptoms because his May 7, 2010 notes reveal few abnormal 12 clinical findings but extensively document her subjective 13 statements. 14 (See AR 280-87.) Fourth, the ALJ was entitled to reject Dr. Diamreyan s 15 opinion that Plaintiff was unable to work because it was a legal 16 conclusion rather than a medical opinion and thus was not 17 entitled to deference. (AR 18); see 20 C.F.R. § 416.945(e); SSR 18 96-5p, 1996 WL 374183, at *5 (Commissioner must make ultimate 19 disability determination; opinions from medical sources about 20 whether a claimant is disabled or unable to work can never 21 be entitled to controlling weight or given special 22 significance ); McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 23 2011) (noting that a treating physician ordinarily does not 24 consult a vocational expert or have the expertise of one ; 25 treating physician s evaluation of claimant s ability to work 26 thus not entitled to deference because [t]he law reserves the 27 disability determination to the Commissioner ). 28 Finally, to the extent the ALJ rejected Dr. Diamreyan s 16 1 opinion in favor of the opinion of testifying medical expert Dr. 2 David Glassmire, she was entitled to do so. Dr. Glassmire s 3 opinion was consistent with the objective evidence. (AR 18); see 4 Thomas, 278 F.3d at 957 ( The opinions of non-treating or 5 non-examining physicians may also serve as substantial evidence 6 when the opinions are consistent with independent clinical 7 findings or other evidence in the record. ); Morgan, 169 F.3d at 8 600 ( Opinions of a nonexamining, testifying medical advisor may 9 serve as substantial evidence when they are supported by other 10 evidence in the record and are consistent with it (citing 11 Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995))); see 20 12 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4) (ALJ will generally give 13 more weight to opinions that are more consistent . . . with the 14 record as a whole ). For example, Dr. Glassmire noted that 15 Plaintiff had been diagnosed with bipolar disorder and attention 16 deficit hyperactivity disorder and also had a history of 17 methamphetamine abuse, mood swings, and explosive personality, 18 but her mental status examinations in 2009 by Dr. Diamreyan and 19 in May and June 2010 by Dr. Salvador Lasala were generally 20 normal. (AR 48-54, 273-83, 301-07, 309.) He also noted that 21 although Plaintiff was assessed low GAF scores by Dr. Diamreyan, 22 Dr. James Pace, who evaluated Plaintiff in connection with issues 23 over custody of her children, and Dr. Lasala (see AR 281 (GAF 24 score of 40), 298 (GAF score of 40), 306 (GAF score of 47)11), 25 26 27 28 11 A GAF score of 47 indicates serious symptoms ([e.g.] suicidal ideation . . .) OR any serious impairment in social, occupational or school functioning. See Am. Psychiatric Ass n, Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed. 2000). 17 1 those scores were not consistent with the evaluations of 2 Plaintiff s behavior in those same reports, showing that 3 Plaintiff s cognitive functioning was largely intact and her 4 behavior was mostly normal (see AR 55, 273-83, 291-99, 301-07, 5 309).12 Moreover, Dr. Glassmire, unlike Dr. Diamreyan, reviewed 6 all the medical evidence up to the date of the hearing before 7 rendering his opinion. (AR 114-15); see 20 C.F.R. 8 §§ 404.1527(c)(6) (extent to which doctor is familiar with the 9 other information in [claimant s] case record is relevant factor 10 in determining weight given to opinion), 416.927(c)(6) (same). 11 The ALJ could also credit Dr. Glassmire s opinion because he 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 12 The ALJ made a similar finding, which Plaintiff does not directly challenge: The undersigned has read and considered the GAF scores throughout the claimant s medical record. The undersigned finds GAF scores in general are of limited evidentiary value. These subjectively assessed scores reveal only snapshots of impaired and/or improved behavior. The undersigned gives more weight to the objective details and chronology of the record, which more accurately describe the claimant s impairments and limitations. In this instance, the claimant was given low GAF scores after precipitating events such as drug misuse requiring hospitalization and having her children taken away through child protective services. Despite relatively unremarkable mental status examinations, the claimant s treating physicians continued to assess low GAF scores. The undersigned finds these GAF scores are not a true reflection of the claimant s overall function based on the totality of the medical evidence [and] the claimant s actual functional level including her own statements regarding daily living activities. 28 (AR 17-18 (citations omitted).) 18 1 testified at the hearing, heard most of Plaintiff s testimony,13 2 and was subject to cross-examination. See Andrews, 53 F.3d at 3 1042 (greater weight may be given to nonexamining doctors who are 4 subject to cross-examination). Any conflict in the properly 5 supported medical-opinion evidence was the sole province of the 6 ALJ to resolve. See id. at 1041. 7 Plaintiff is not entitled to remand on this ground. 8 B. 9 Performing Her Past Relevant Work Did Not Conflict with 10 11 The ALJ s Finding that Plaintiff Was Capable of the DOT Plaintiff argues that the ALJ erred in determining that 12 Plaintiff was capable of performing her past relevant work as a 13 newspaper jogger because the DOT description most applicable to 14 that job was inconsistent with the ALJ s RFC finding. 15 at 8-11.) (J. Stip. No inconsistency existed, and thus reversal is not 16 warranted on this basis. 17 18 1. Applicable law When a VE provides evidence about the requirements of a job, 19 the ALJ has a responsibility to ask about any possible conflict 20 between that evidence and the DOT. See SSR 00-4p, 2000 WL 21 1898704, at *4; Massachi v. Astrue, 486 F.3d 1149, 1152-54 (9th 22 Cir. 2007) (holding that application of SSR 00-4p is mandatory). 23 An ALJ s failure to do so is procedural error, but the error is 24 harmless if no actual conflict existed or the VE provided 25 sufficient evidence to support the conclusion. Massachi, 486 26 27 28 13 Dr. Glassmire was wanted in another proceeding and left before Plaintiff had completely finished testifying. (AR 46, 55.) 19 1 F.3d at 1154 n.19. 2 3 2. Relevant facts At the hearing Plaintiff testified that she worked at the 4 Press Enterprise newspaper as a newspaper jogger for 5 approximately two and a half months in 1999; her job was pretty 6 routine[] and involved stacking the papers [and] inserting them 7 in a machine. (AR 31.) She described the job similarly in her 8 May 13, 2009 Work History Report as insert jogger put the 9 newspaper into the machine as it went around, and checked boxes 10 indicating that she used machines, tools, or equipment but did 11 not use technical knowledge or skills, do any writing or 12 completing of reports, or supervise others. 13 quit the job when she became pregnant. 14 (AR 199.) Plaintiff (AR 60.) Regarding Plaintiff s RFC, Dr. Glassmire testified that 15 Plaintiff should be limited to simple, repetitive tasks; no 16 interaction with the public; only non-intense interactions with 17 co-workers and supervisors; no tasks requiring hypervigilence; no 18 fast paced work; and I would not have her responsible for the 19 safety of others. (AR 52.) The VE then took the stand and 20 testified that the only one of Plaintiff s past jobs that 21 potentially rose to the level of past relevant work was the 22 newspaper jogger position. (AR 65.) The VE testified that 23 there was no specific DOT code for a newspaper jogger, but the 24 job likely fell under the title of print-shop helper, DOT 25 979.684-026, 1991 WL 688686. (Id.) He noted that the job as 26 described in the DOT required a Specific Vocational Preparation 27 ( SVP ) level of 3, semi-skilled and medium, but as it was 28 actually performed was at an SVP: 2, indicating unskilled work. 20 1 (Id.); see SSR 00-4p, 2000 WL 1898704, at *3. In keeping with 2 Dr. Glassmire s RFC assessment, the ALJ then questioned the VE as 3 follows: 4 Q. Okay. If we assume a hypothetical person who is 18 5 years old, has a 12th grade education, is literate, 6 speaks English and can perform the demands of work 7 within the following RFC: there are no exertional 8 limitations, 9 repetitive tasks; no interaction with the public 10 and only non-intense contact with co-workers and 11 supervisors; no jobs requiring hypervigilence; no 12 fast paced work; and no responsibility for the 13 safety of others. 14 her past relevant work? but 15 A. Q. Okay. 17 A. limited to simple, Would this person be able to do I believe so, yes. 16 she s Yes, Your Honor. Both as performed and per the DOT? 18 (AR 66.) 19 The DOT provides the following description of the print-shop 20 helper job: 21 Assists 22 printing presses, and making plates, performing any 23 combination of following duties: Moves material and 24 supplies to and from various work areas. 25 making ready and adjusting presses for production runs. 26 Keeps presses supplied with paper stock. Cleans presses, 27 printing plates, and type setups after use. 28 dampening rolls with wool or felt. workers engaged in 21 setting type, operating Assists in Covers Counts, stacks, and 1 wraps finished printed material. 2 shells prior to casting, and removes excess metal from 3 edges or backs of cast printing plates, using metal 4 trimming and shaving machines. Trims stereotype matrices 5 to size and dries them between steam or flame-heated 6 plates. 7 plating solutions. 8 prepared plates to bring plates to printing level. 9 set type by hand following copy. May be designated 10 according to work involved as Electrotyper Helper (print. 11 & 12 Stereotyper Helper (print. & pub.). 13 duties as described under HELPER (any industry) Master 14 Title. pub.); Cleans electrotype Immerses cast plates in copper and chrome Nails wooden blocks to backs of Photoengraving Helper (print. & May pub.); Performs other 15 DOT 979.684-026, 1991 WL 688686. 16 17 3. Analysis The ALJ found that Plaintiff had the RFC to perform a full 18 range of work at all exertional levels, was limited to simple, 19 repetitive tasks and no interaction with the public and only 20 non-intense contact with coworkers and supervisors, and was 21 precluded from positions requiring hypervigilence, fast-paced 22 work or responsibility for the safety of others. (AR 13.) She 23 then made the following findings regarding Plaintiff s ability to 24 perform the work of newspaper jogger: 25 The claimant is capable of performing past relevant 26 work as a newspaper jogger as she actually performed it. 27 This work does not require the performance of work 28 related activities precluded by the claimant s residual 22 1 functional capacity. 2 The vocational expert reviewed the claimant s 3 vocational file prior to the hearing. 4 expert was present to hear the claimant s testimony and 5 to ask questions. Based on the claimant s limitations as 6 stated herein, the vocational expert testified that the 7 claimant would be able to do her past work as a newspaper 8 jogger as she actually performed it and not as generally 9 performed in the economy.14 The vocational 10 The vocational expert described the claimant s past 11 relevant work as newspaper jogger, and that she performed 12 it at a light unskilled job. 13 The vocational expert stated that the DOT described 14 the claimant s past work as a print shop helper, DOT 979- 15 687.026, medium, semiskilled (SVP 3) occupation. 16 The testimony of the vocational expert is consistent 17 with the DOT, and the undersigned accepts it. 18 comparing the claimant s residual functional capacity 19 with the physical and mental demands of work as a 20 newspaper jogger, the undersigned has determined the 21 claimant is able to perform this past relevant occupation In 22 23 24 25 26 27 28 14 The ALJ erred in stating that the VE found that Plaintiff could not perform the print-shop helper job as it was generally performed: the VE testified that Plaintiff could perform the job as actually and generally performed. (See AR 66.) Because the ALJ s conclusion that Plaintiff could perform the job as actually performed was supported by substantial evidence, however, the error was harmless and does not require reversal. See Stout v. Comm r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) (nonprejudicial or irrelevant mistakes harmless). 23 1 as actually performed but not as generally performed 2 based on the testimony of the vocational expert. 3 (AR 19 (citations and footnotes omitted).) 4 Plaintiff is not entitled to reversal on this claim. 5 Plaintiff argues that the ALJ s RFC finding that Plaintiff was 6 limited to simple, repetitive tasks and minimal interaction with 7 coworkers and supervisors conflicts with the DOT description of 8 print-shop helper, which requires performing a large variety of 9 detailed tasks and assist[ing] workers engaged in setting type, 10 operating printing presses, and making plates . . . . 11 at 11.) (J. Stip. But the ALJ specifically found that Plaintiff could not 12 perform the job as it was generally performed, as described in 13 the DOT. (AR 19); see SSR 00-4p, 2000 WL 1898704, at *3 (DOT 14 lists maximum requirements of occupations as generally 15 performed, not the range of requirements of a particular job as 16 it is performed in specific settings ). Instead, the ALJ found 17 that Plaintiff could perform the job only as it had actually been 18 performed by Plaintiff. (See AR 19.) Plaintiff testified that 19 the job as she actually performed it was pretty routine, 20 consisting of stacking newspapers and inserting them into a 21 machine, and did not involve supervising or interacting 22 extensively with others. (See AR 31, 199.) Plaintiff s RFC 23 limiting her to simple, repetitive tasks and little interaction 24 with others was thus consistent with her description of the 25 newspaper-jogger position as she actually performed it. 26 The VE s testimony also supports the ALJ s decision. The VE 27 testified that as actually performed, the work was an SVP level 28 of 2, which indicates unskilled work. 24 See SSR 00-4p, 2000 WL 1 1898704, at *3. Unskilled work needs little or no judgment to 2 do simple duties that can be learned on the job in a short period 3 of time. 20 C.F.R. §§ 404.1568(a), 416.968(a). A person 4 limited to the performance of simple, repetitive tasks can do 5 unskilled work. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 6 1173-74 (9th Cir. 2008) (finding that ALJ did not err in holding 7 that claimant limited to performing simple, routine, repetitive 8 sedentary work could perform unskilled jobs). 9 No conflict existed between the ALJ s RFC finding and her 10 determination that Plaintiff could perform the job of newspaper 11 jogger as Plaintiff had actually performed it. 12 therefore not warranted on this basis. Reversal is See Giordano v. Astrue, 13 304 F. App x 507, 509 (9th Cir. 2008) ( It was also reasonable 14 for the ALJ to conclude that [claimant] could return to her past 15 relevant work, given that [claimant s] own description of her 16 past jobs accommodated all of the limitations. ). 17 C. 18 19 The ALJ Did Not Err in Evaluating the Third-Party Report of Plaintiff s Mother Plaintiff lastly contends that the ALJ erred in evaluating 20 the third-party report submitted by her mother, Evelyn Gomez. 21 (J. Stip. at 13-16.) 22 23 1. Reversal is not warranted on this basis. Applicable law In determining whether a claimant is disabled, an ALJ must 24 consider lay witness testimony concerning a claimant s ability to 25 work. Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009) 26 (quoting Stout v. Comm r, Soc. Sec. Admin., 454 F.3d 1050, 1053 27 (9th Cir. 2006) (internal quotation marks omitted)); see also 20 28 C.F.R. § 404.1513(d) (statements from therapists, family, and 25 1 friends can be used to show severity of impairment(s) and effect 2 on ability to work), § 416.913(d) (same). Such testimony is 3 competent evidence and cannot be disregarded without comment. 4 Bruce, 557 F.3d at 1115 (quoting Nguyen v. Chater, 100 F.3d 1462, 5 1467 (9th Cir. 1996) (internal quotation marks omitted)); 6 Robbins, 466 F.3d at 885 ( [T]he ALJ is required to account for 7 all lay witness testimony in the discussion of his or her 8 findings. ). When rejecting the testimony of a lay witness, an 9 ALJ must give specific reasons that are germane to that witness. 10 Bruce, 557 F.3d at 1115; see also Stout, 454 F.3d at 1054; 11 Nguyen, 100 F.3d at 1467. 12 If an ALJ fails to discuss competent lay testimony favorable 13 to the claimant, a reviewing court cannot consider the error 14 harmless unless it can confidently conclude that no reasonable 15 ALJ, when fully crediting the testimony, could have reached a 16 different disability determination. 17 see also Robbins, 466 F.3d at 885. Stout, 454 F.3d at 1056; But an ALJ s failure to 18 comment upon lay witness testimony is harmless where the same 19 evidence that the ALJ referred to in discrediting [the 20 claimant s] claims also discredits [the lay witness s] claims. 21 Molina v. Astrue, 674 F.3d 1104, 1122 (9th Cir. 2012) (quoting 22 Buckner v. Astrue, 646 F.3d 549, 560 (8th Cir. 2011)). 23 24 2. Relevant facts On May 15, 2009, Evelyn Gomez filled out a Third Party 25 Function Report. (AR 180-87.) She noted that Plaintiff lived in 26 a house with her boyfriend and children, spent time with Gomez on 27 weekends, and spoke to her on the phone daily. (AR 180.) She 28 claimed that Plaintiff stays inside most of [the] time and 26 1 [o]rganizes [her] house excessively ; cared for her children 2 half of the time with her boyfriend s help; needed to be 3 reminded to bathe regularly; did not prepare meals; was able to 4 clean and do chores around the house, though she needed to be 5 told to do so by her boyfriend; was able to go grocery shopping 6 once a week for about an hour ; was able to drive a car; and was 7 able to pay bills and count change but did not have any bank 8 accounts. (AR 180-84.) She stated that Plaintiff was hard to 9 get along [with] before her medicine and that Plaintiff s 10 condition affected her talking, memory, concentration, and 11 ability to complete tasks, follow instructions, and get along 12 with others. (AR 185.) She noted that Plaintiff has a very 13 short attention span and had difficulty following instructions 14 but can sometimes follow spoken instructions. (Id.) She also 15 stated that Plaintiff did not respect authority ; reacted to 16 stress by becoming nervous and anxious and getting headaches; and 17 was very recluusive [sic]. (AR 185-86.) She concluded by 18 stating, I don t think Linda is capable of working right now 19 because [s]he needs some help. 20 testify at the hearing. 21 22 3. (AR 187.) Gomez did not (See AR 24-68.) Analysis The ALJ addressed Gomez s report in her written opinion as 23 follows: 24 The undersigned has read and considered the Third 25 Party Function Report completed by the claimant s mother, 26 Evelyn Gomez on May 15, 2009. 27 reported seeing the claimant on weekends and having daily 28 telephone conversations with 27 The Claimant s mother the claimant. The 1 claimant s mother stated the claimant was able to care 2 for her children half the time with help from the 3 claimant s boyfriend. The claimant s mother reported the 4 claimant was able to clean, go to the store and purchase 5 food for the family. 6 claimant was not capable of working. 7 While a The claimant s mother opined the layperson can offer an opinion on a 8 diagnosis, the severity of the claimant s symptoms in 9 relationship to the claimant s ability to work, the 10 opinion of a layperson is far less persuasive on those 11 same 12 professionals as relied herein. In addition, the opinion 13 of the claimant s mother is not an unbiased one because 14 she has a motherly motivation to support the claimant. 15 More importantly, the clinical or diagnostic medical 16 evidence that is discussed elsewhere in this decision 17 does not support her statements. 18 [sic] the statement [sic] of the claimant s mother are 19 not 20 inconsistent 21 assessment herein. issues credible than are the opinions of medical The undersigned find to the extent her with the residual statements functional are capacity 22 (AR 15 (citations omitted).) 23 The ALJ did not err in evaluating Gomez s report. The ALJ 24 gave specific reasons supporting her evaluation of Gomez s report 25 and those reasons were supported by substantial evidence. To the 26 extent Gomez s statements conflicted with the medical evidence, 27 the ALJ was entitled to reject them. (AR 15); see Bayliss v. 28 Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) ( [i]nconsistency 28 1 with medical evidence is germane reason[] for discrediting the 2 testimony of lay witnesses ). Moreover, the ALJ found 3 Plaintiff s own statements not credible, a finding Plaintiff does 4 not challenge. (AR 14-15.) 5 identical to Plaintiff s. Gomez s statements were nearly (Compare AR 180-87 with AR 189-96.) 6 For that reason, to the extent the ALJ erred in not providing 7 further support for her rejection of Gomez s statements, any 8 error was harmless. See Molina, 674 F.3d at 1122. Although the 9 fact that Gomez was Plaintiff s mother and had a motherly 10 motivation to support the claimant (AR 15) was not a valid 11 reason for rejecting Gomez s testimony, see Smolen, 80 F.3d at 12 1289 ( The fact that a lay witness is a family member cannot be a 13 ground for rejecting his or her testimony. ), the remainder of 14 the ALJ s reasons for rejecting Gomez s testimony were supported 15 by substantial evidence, and the error was therefore harmless. 16 See Stout, 454 F.3d at 1056. Reversal is not warranted on this 17 basis. 18 19 20 21 22 23 24 25 26 27 28 29 1 VI. CONCLUSION 2 Consistent with the foregoing, and pursuant to sentence four 3 of 42 U.S.C. § 405(g),15 IT IS ORDERED that judgment be entered 4 AFFIRMING the decision of the Commissioner and dismissing this 5 action with prejudice. IT IS FURTHER ORDERED that the Clerk 6 serve copies of this Order and the Judgment on counsel for both 7 parties. 8 9 10 DATED: March 28, 2013 11 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 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. 30

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