Bradley Shackford v. Michael J Astrue, No. 8:2009cv01398 - Document 18 (C.D. Cal. 2010)

Court Description: MEMORANDUM DECISION AND ORDER: by Magistrate Judge Suzanne H. Segal: 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 of the Court serve copies of this Order and the Judgment on counsel for both parties. (dhl)

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Bradley Shackford v. Michael J Astrue Doc. 18 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 BRADLEY SHACKFORD, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of the Social ) Security Administration, ) ) Defendant. ) ______________________________) NO. SACV 09-01398 SS MEMORANDUM DECISION AND ORDER 17 18 I. 19 INTRODUCTION 20 21 Bradley Shackford ( Plaintiff ) brings this action seeking to 22 overturn the decision of the Commissioner of the Social Security 23 Administration (hereinafter the Commissioner or the Agency ) denying 24 his application for Disability Insurance Benefits ( DIB ). The parties 25 consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the 26 undersigned United States Magistrate Judge. 27 below, the decision of the Commissioner is AFFIRMED. 28 \\ For the reasons stated Dockets.Justia.com 1 II. 2 PROCEDURAL HISTORY 3 4 Plaintiff filed an application for DIB benefits on January 19, 2005 5 (Administrative Record ( AR ) 49). 6 of September 21, 2001 (AR 15, 82) due to depression, anxiety, and his 7 HIV positive status. 8 initially and upon reconsideration. (AR 31-32, 35-39, 41-45). Plaintiff 9 requested and was granted a hearing before Administrative Law Judge 10 ( ALJ ) John L. Geb on October 6, 2006. (AR 19, 33, 27). Plaintiff was 11 represented by counsel and testified on his own behalf. 12 Additionally, Mary Shackford, a witness for Plaintiff testified at the 13 hearing. 14 denying benefits. 15 decision before the Appeals Council. 16 Appeals Council denied Plaintiff s request for review and the ALJ s 17 decision became final (AR 4). (AR 467). (AR 41). He alleged a disability onset date Plaintiff s application was denied (AR 468). On March 16, 2007, the ALJ issued a decision (AR 505). Plaintiff then sought review of the ALJ s (AR 7). On June 22, 2007, the 18 19 Plaintiff then filed an appeal with this Court, which reversed and 20 remanded the matter for further proceedings due to the ALJ s failure to 21 obtain vocational expert ( VE ) testimony during the hearing. (AR 518- 22 27). 23 Commissioner s prior decision and remanded the case to the ALJ for 24 further proceedings consisted with the District Court s order. (AR 515- 25 17). 26 528-55). 27 Plaintiff, testified during the hearing, as did Dr. Malancharuvil, a 28 clinical psychologist, and Alan Boroskin, a VE. On January 10, 2009, the Appeals Council vacated ALJ John Kays convened a second hearing on July 20, 2009. the (AR Plaintiff and Clara Dewyer, a friend and former employer of 2 (AR 529-30). On 1 September 16, 2009, the ALJ issued an unfavorable decision. (AR 494- 2 505). Thus, Plaintiff commenced the present action on November 25, 3 2009. (Memorandum in Support of Defendant s Answer ( Answer Memo ) at 4 2). 5 6 III. 7 FACTUAL BACKGROUND 8 9 Plaintiff was born on May 14, 1963 and was forty-seven years of age 10 at the time of the hearing. (Memorandum in Support of Plaintiff s 11 Complaint ( Complaint Memo ) at 1). 12 completed some college courses. (AR 470). 13 experience in installing sprinkler systems, landscaping, and managing 14 rental 15 disability began on September 21, 2001. (AR 11). 16 engaged in substantial gainful activity since his alleged onset of 17 disability. (AR 13). properties. (AR 470, He has a high school diploma and 475). Plaintiff has previous work Plaintiff alleges that his Plaintiff has not 18 19 Plaintiff has a history of methamphetamine abuse (See, e.g., AR 20 365, 413, 440, 533), was arrested for attempting to sell amphetamines 21 and has a DUI conviction. 22 of psychiatric treatment and psychotherapy for depression. 23 540). 24 473). 25 \\ 26 \\ (AR 533). Plaintiff also has some history (AR 363, Plaintiff was diagnosed as HIV positive on May 16, 1984. (AR 27 In response to the previous remand order, instructing the ALJ to 28 take VE testimony in light of the non-physical limitations, (AR 533) the 3 1 Agency arranged for a cognitive evaluation of Plaintiff. 2 Although the results suggested that Plaintiff may be in the mildly 3 mental[ly] retarded range, Dr. Krieg, who performed the evaluation 4 questioned the validity of the result, stating that Plaintiff was 5 oppositional to the examiner and did not appear to be putting forth 6 his best effort. 7 conceivable that his performance could be higher. (AR 1116, 1120). (AR 1116). According to Dr. Krieg, it is (AR 1121). 8 9 IV. 10 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 11 12 To qualify for disability benefits, a claimant must demonstrate 13 a medically determinable physical or mental impairment that prevents him 14 from engaging in substantial gainful activity1 and that is expected to 15 result in death or to last for a continuous period of at least twelve 16 months. 17 42 U.S.C. § 423(d)(1)(A)). 18 incapable of performing the work he previously performed and incapable 19 of performing any other substantial gainful employment that exists in 20 the national economy. 21 1999) (citing 42 U.S.C. § 423(d)(2)(A)). Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing The impairment must render the claimant Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 22 23 To decide if a claimant is entitled to benefits, an ALJ conducts 24 a five-step inquiry. 25 20 C.F.R. §§ 404.1520, 416.920. The steps are as follows: 26 27 28 1 Substantial gainful activity means work that involves doing significant and productive physical or mental duties and is done for pay or profit. 20 C.F.R. §§ 404.1510, 416.910. 4 1 (1) Is the claimant presently engaged in substantial gainful 2 activity? If so, the claimant is found not disabled. 3 If not, proceed to step two. 4 5 (2) Is the claimant s impairment 6 claimant is found not disabled. 7 severe? If not, the If so, proceed to step three. 8 9 (3) Does the claimant s impairment meet or equal one of a 10 list of specific impairments described in 20 C.F.R. Part 11 404, Subpart P, Appendix 1? 12 found disabled. If so, the claimant is If not, proceed to step four. 13 14 (4) Is the claimant capable of performing her past work? 15 so, the claimant is found not disabled. 16 If If not, proceed to step five. 17 18 (5) Is the claimant able to do any other work? 19 claimant is found disabled. 20 If not, the If so, the claimant is found not disabled. 21 22 Tackett, 180 F.3d at 1098-99; see also 20 C.F.R. §§ 404.1520(b)-(g)(1), 23 416.920(b)-(g)(1); Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th 24 Cir. 2001) (citations omitted). 25 26 The claimant has the burden of proof at steps one through four, and 27 the Commissioner has the burden of proof at step five. 28 F.3d at 953-54. Bustamante, 262 If, at step four, the claimant meets his burden of 5 1 establishing an inability to perform past work, the Commissioner must 2 show that the claimant can perform some other work that exists in 3 significant numbers in the national economy, taking into account the 4 claimant s residual functional capacity ( RFC ),2 age, education, and 5 work experience. 6 721; 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 7 do so by the testimony of a VE or by reference to the Medical-Vocational 8 Guidelines appearing in 20 C.F.R. Part 404, Subpart P, Appendix 2 9 (commonly known as the Grids ). Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at The Commissioner may Osenbrock v. Apfel, 240 F.3d 1157, 10 1162 (9th Cir. 2001). When a claimant has both exertional (strength- 11 related) and nonexertional limitations, the Grids are inapplicable and 12 the ALJ must take the testimony of a VE. 13 869 (9th Cir. 2000). Moore v. Apfel, 216 F.3d 864, 14 15 V. 16 THE ALJ S DECISION 17 18 The ALJ employed the five-step sequential evaluation process and 19 concluded that Plaintiff was not disabled within the meaning of the 20 Social Security Act. 21 that Plaintiff had not engaged in substantial gainful activity at any 22 time relevant to his decision. 23 had the following severe impairments: HIV positive, with depression 24 resulting from this condition, a personality disorder, and intermittent (AR 499). At the first step, the ALJ observed (Id.). Next, he found that Plaintiff 25 26 27 28 2 Residual functional capacity is the most [one] can still do despite [one s] limitations and represents an assessment based on all the relevant evidence in [one s] case record. 20 C.F.R. §§ 404.1545(a), 416.945(a). 6 1 substance abuse. (Id.). At the third step, the ALJ found that the 2 severe impairments at step two did not meet or medically equal a listed 3 impairment. (Id.). 4 5 At step four, the ALJ found that Plaintiff retains the functional 6 capacity to perform medium work.3 (AR 500). The ALJ specifically found 7 that Plaintiff could perform moderately complex tasks of 4 to 5 steps 8 in a habituated environment but is precluded from working around 9 hazardous machinery because of his history of amphetamine abuse. 10 (Id.). The ALJ found that Plaintiff s HIV positive status did not 11 physically prevent him from working because his medical history showed 12 that he had no abnormalities apart from two papular lesions on the right 13 forearm most likely secondary to flea bites. (AR 501). 14 15 In regards to Plaintiff s alleged mental impairments, the ALJ found 16 the Plaintiff s complaints not entirely credible. 17 highlighted 18 substance abuse. 19 to his last use of drugs or alcohol was vague and general, lacking the 20 specificity to make it more convincing. 21 effort at the consultative cognitive examination detracted from his 22 credibility, and his care of an elderly woman suggested to the ALJ that 23 his activities are not as limited as would be expected. that Plaintiff (Id.). has consistently (AR 503). The ALJ misrepresented his The ALJ found that Plaintiff s testimony as (Id.). His apparent lack of (Id.). 24 25 3 26 27 28 Medium work, as defined in 20 C.F.R. 404.1567(c) and 416.967(c), permits lifting and carrying 50 pounds occasionally and 25 pounds frequently, standing and walking with normal breaks for 6 hours out of an 8 hour day, and sitting with normal breaks for 6 hours out of an 8 hour day. 7 1 The ALJ credited Dr. Krieg s opinion that if Plaintiff exerted 2 effort, he would be able to understand clear instructions, follow simple 3 directions, complete tasks, and maintain regular attendance in the 4 workplace. 5 Dr. 6 opportunity to review the entire record and heard the testimony of 7 Plaintiff at the hearing. 8 limitations in areas of key mental functioning found by Dr. Luce, 9 plaintiff s treating physician, were unsupported and inconsistent with (AR 502). Malancharuvil, The ALJ also gave great weight to the opinion of a (AR 502). medical expert, (AR 503). because the doctor had the The ALJ found the marked 10 the record. Further, the ALJ found the Dr. Luce ignored or 11 placed minimal emphasis on the impact of Plaintiff s drug use on his 12 mental functioning, and therefore gave Dr. Luce s statement less weight. 13 (Id.). 14 15 Finally, at step five, the ALJ concluded that, Plaintiff could not 16 perform his 17 Plaintiff s RFC, the testimony of the VE, Plaintiff s status as a 18 younger individual, education, and work experience; Plaintiff could 19 perform 20 inspector. (AR 504). Accordingly, the ALJ found that Plaintiff was not 21 disabled, as defined in the Social Security Act, at any time through the 22 date of the decision. 23 \\ 24 \\ work past as relevant a laundry work. (AR worker, 503). kitchen (AR 505). 25 VI. 26 STANDARD OF REVIEW 27 28 8 However, helper, based packager, on and 1 Under 42 U.S.C. § 405(g), a district court may review the 2 Commissioner s decision to deny benefits. The court may set aside the 3 Commissioner s decision when the ALJ s findings are based on legal error 4 or are not supported by substantial evidence in the record as a whole. 5 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Smolen v. 6 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). 7 8 9 Substantial evidence is more than a scintilla, but less than a preponderance. Reddick, 157 F.3d at 720. It is relevant evidence 10 which a reasonable person might accept as adequate to support a 11 conclusion. 12 a finding, the court must consider the record as a whole, weighing 13 both 14 [Commissioner s] conclusion. Aukland, 257 F.3d at 1035 (quoting Penny 15 v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 16 reasonably support either affirming or reversing that conclusion, the 17 court may not substitute its judgment for that of the Commissioner. 18 Reddick, 157 F.3d at 720-21. evidence Id. To determine whether substantial evidence supports that supports and evidence that detracts from the If the evidence can 19 20 VII. 21 DISCUSSION 22 23 Plaintiff contends the ALJ erred for a number of reasons. First, 24 he claims that the ALJ erred in failing to fully and fairly develop the 25 record. (Complaint Memo at 2). Second, Plaintiff contends that the ALJ 26 improperly rejected the opinions of Plaintiff s treating physician, Dr. 27 Luce, concerning Plaintiff s metal capabilities. (Complaint Memo at 4). 28 Finally, Plaintiff contends that the ALJ erred in failing to discuss the 9 1 findings of Ms. Poulalion, a family therapist. (Complaint Memo at 7). 2 For the reasons discussed below, the Court disagrees with all of 3 Plaintiff s contentions. 4 5 A. The ALJ Fully And Fairly Developed The Record 6 7 Plaintiff contends that ALJ failed to fully and fairly develop the 8 record 9 recommended by the medical expert, Dr. Malancharuvil. (Complaint Memo 10 at 2). by not ordering an updated psychological examination as This Court disagrees. 11 12 The ALJ has an independent duty to develop the record, even when 13 the claimant is represented by counsel. 14 1144, 1150 (9th Cir. 2001) (citing Smolen, 80 F.3d at 1288); Crane v. 15 Shalala, 76 F.3d 251, 255 (9th Cir. 1996) (citing Brown v. Heckler, 713 16 F.2d 441, 443 (9th Cir. 1983)). 17 prove that she is disabled. 18 Cir. 19 Sullivan, 894 F.2d 328, 330 (9th Cir. 1990). 20 ALJ s duty to develop the record further is triggered only when there 21 is ambiguous evidence or when the record is inadequate to allow for 22 proper evaluation of the evidence. 23 Tonapetyan, 242 F.3d at 1150). 24 because the record was not ambiguous or inadequate. 25 \\ 26 2001)(citing Following of 42 the Plaintiff. However, it is the plaintiff s duty to Mayes v. Massanari, 276 F2d 453, 458 (9th U.S.C. remand, Tonapetyan v. Halter, 242 F.3d § 423(d)(5)(Supp. 2001) and Clem v. As noted in Mayes, an Mayes, 276 F.3d at 459 (citing Here, the ALJ s duty was not triggered, agency arranged Although for 27 examination 28 consultative examination, he refused to fully cooperate. 10 Plaintiff a consultative appeared at the During the 1 hearing the medical expert, Dr. Malancharuvil, said that he was not able 2 to determine Plaintiff s true level of cognitive impairment based off 3 of the cognitive examination because Plaintiff was uncooperative with 4 Dr. Krieg, who performed the consultative cognitive examination. 5 542). 6 [Plaintiff] is [that] he goes to a psychologist and cooperates fully and 7 gets [] testing of []his cognitive functions. (AR 542). Dr. Kreig had 8 previously stated that if he is not putting forth his best effort, it 9 is conceivable that his performance could be higher, and noted that 10 Plaintiff was oppositional with the examiner and only minimally to 11 moderately cooperative. (AR 1116, 1121). Dr. Malancharuvil concurred 12 with Dr. Krieg s findings that the test was not valid and stated that 13 as the record stands now his opinion is that Plaintiff is capable of 14 performing moderately complex tasks in a habituated setting. (AR 532- 15 33). Dr. Malancharuvil states that there is an outside opinion of what 16 is subjectively verifiable here and that based on the record, he can t 17 change his opinion. Dr. Malancharuvil then stated that my (AR recommendation to (AR 542). 18 19 Not only was any potential ambiguity in the record caused by 20 Plaintiff s own failure to comply with the consultative examiner, but 21 there was no actual ambiguity of the kind that would require further 22 development of the record. 23 cognitive examinations. (AR 1112, 1116). 24 expert testify 25 Malancharuvil s statement that Plaintiff should obtain another cognitive 26 assessment was a recommendation to Plaintiff, not to the ALJ. 27 ( [M]y recommendation to him is that . . . . ) (emphasis added). 28 this statement does not indicate that Dr. Malancharuvil found the record and a VE both The Agency had ordered physical and at 11 the The ALJ had both a medical hearing. (AR 529). Dr. (AR 542) Thus, 1 incomplete, but rather that Plaintiff would need a valid test showing 2 cognitive impairment in order to change [his] opinion. (AR 542-43). 3 4 The Court notes that Plaintiff s failure to cooperate may be held 5 against him 6 regulations state that if a claimant does not have a good reason for 7 failing or refusing to take part in consultative examinations or tests 8 arranged by the ALJ, or fails to cooperate with the process, then the 9 ALJ may make a negative disability determination based solely on this to in take the disability 11 416.918(a) ( If you are applying for benefits and do not have a good 12 reason 13 examination or test which we arrange for you to get information we need 14 to determine your disability or blindness, we may find that you are not 15 disabled. ); see also Kreidler v. Barnhart, 385 F. Supp. 2d 1034, 1037 16 (C.D. Cal. 2005) (failure to attend an examination is equivalent to a 17 failure to cooperate, which is sufficient to warrant termination of 18 disability benefits). 19 mental, educational and linguistic limitations in determining whether 20 the 21 consultative examination. 22 Higbee v. Sullivan, 975 F.2d 558, 562 (9th Cir. 1992). However, in the 23 absence of a good excuse for non-cooperation, the claimant may be 24 disqualified. 25 determination discussed above usually follows a claimant s complete 26 failure to attend an examination, the underlying rationale is applicable 27 here -- i.e., a claimant should not be entitled to further examination claimant had a or C.F.R. refusing § to 404.1594(e)(2); take part in a 20 Security failure failing 20 Social 10 for part. determination. C.F.R. § consultative The ALJ must consider the claimant s physical, good reason for failing to cooperate with 20 C.F.R. §§ 404.1518(a); 416.918(a). 20 C.F.R. § 404.1594(e)(2). 28 12 a See Although the nondisability 1 if he fails to fully cooperate in the first examination. At a minimum, 2 Plaintiff has a duty to fully cooperate with consultative examinations. 3 4 Based on Dr. Malanchrauvil s testimony and the remainder of the 5 record, the ALJ correctly decided that the record was not incomplete or 6 ambiguous. Thus, there was no duty to further develop the record. 7 8 B. The ALJ Properly Rejected The Treating Physician s Opinion 9 10 Plaintiff also contends that the ALJ erroneously rejected the 11 opinion of the treating 12 Specifically, 13 recontact Dr. Luce, Plaintiff s treating physician, for clarification 14 of her assessment and for failing to provide specific and legitimate 15 reasons for rejecting Dr. Luce s opinion. 16 disagrees. Plaintiff physician. claims that the (Complaint ALJ erred Memo in (Id. at 6-7). at failing 4). to This Court 17 18 As a general rule, more weight is usually afforded to the opinion 19 of a treating physician than to doctors who do not treat the claimant. 20 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). 21 deference is not absolute and may be discounted where it is not 22 supported by objective evidence. 23 (9th Cir. 1999). 24 by the opinion of another doctor, the ALJ may properly reject the 25 treating 26 reasons which are supported by substantial evidence in the record. 27 Lester, 81 F.3d at 830 (citing Murray v. Heckler, 722 F.2d 499, 502 (9th 28 Cir. 1983)). A consultative medical examiner s findings can constitute However, such Morgan v. Apfel, 169 F.3d 595, 600 When the treating physician s opinion is contradicted doctor s opinion by providing 13 specific and legitimate 1 substantial evidence if it rests on independent clinical findings. 2 Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). Furthermore, 3 [t]he 4 conflicts in the medical testimony, and for resolving ambiguities. 5 Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). ALJ is responsible for determining credibility, resolving 6 7 Plaintiff s treating physician, Dr. Luce, performed a mental status 8 examination on Plaintiff and found Plaintiff had marked limitations in 9 key areas of mental function and poor ability to complete most 10 activities. (AR 502, 1120). 11 there is nothing in the clinical progress notes to support the presence 12 of a mental impairment to the degree reported by Dr. Luce. (AR 502). 13 A lack of objective evidence is a specific and legitimate reason to 14 reject a treating doctor s opinion. 15 754 (9th Cir. 1989). Dr. Luce s opinion was contradicted by that of Dr. 16 Krieg and Dr. Malancharuvil, who both found that Plaintiff could perform 17 moderately 18 Malancharuvil s formed their opinions based on independent, objective 19 clinical findings. (See AR 1116-20). Dr. Krieg and Dr. Malancharuvil s 20 opinions qualify specific and legitimate reasons supported by the record 21 for 22 physicians may serve as substantial evidence if they are supported by 23 other evidence in the record. Tonapetyan v. Halter, 242 F.3d 1144, 1149 24 (9th Cir. 2001). complicated rejecting Dr. tasks. Luce s The ALJ rejected this opinion because Magallanes v. Bowen, 881 F.2d 747, (AR opinion. 532). The Dr. reports Krieg of and Dr. consultative 25 26 As stated previously, an ALJ s duty to develop the record further 27 is triggered only when there is ambiguous evidence or when the record 28 is inadequate to allow for proper evaluation of the evidence. 14 Mayes, 1 276 F.3d at 459. 2 unsupported did not suggest that the record was ambiguous or inadequate 3 as there was sufficient evidence in the record to allow for a proper 4 evaluation of Plaintiff s limitations. 5 assistance of Dr. Lunianski, a medical expert, to review the medical 6 records and to provide an assessment of Plaintiff s limitations. 7 502). Dr. Lunianski found the record complete and found that Dr. Luce s 8 opinion was inconsistent with the rest of the record and unsupported by 9 objective findings. (AR 455). 10 The ALJ s finding that Dr. Luce s opinion was Indeed, the ALJ sought the (AR Thus, we cannot find that the ALJ erred in failing to recontact Dr. Luce to obtain clarification. 11 12 Here, the ALJ properly resolved the conflict between Dr. Luce and 13 the other medical experts and found Dr. Luce s opinion should be given 14 less weight. 15 rejecting Dr. Luce s opinion, he did not err by giving it less weight. 16 See Tonapetyan, 242 F.3d at 1149. Because the ALJ had specific and legitimate reasons for No remand is required. 17 18 19 C. The ALJ Did Not Err In Failing To Discuss The Opinion Of Ms. Poulalion 20 21 Plaintiff also contends that the ALJ improperly ignored the mental 22 assessment of Ms. Poulalion, 23 (Complaint Memo at 7). 24 substantiate the memory and concentration problems claimed by Plaintiff, 25 and therefore, by failing to discuss her findings, the ALJ committed 26 reversible error. (Id.). a non-physician Family Therapist. Plaintiff claims Ms. Poulalion s findings This Court disagrees. 27 28 15 1 An ALJ need not discuss all evidence presented, but rather must 2 explain why significant probative evidence has been rejected. Vincent 3 v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984). 4 Security regulations, a therapist is not an acceptable medical source, 5 20 C.F.R. § 404.1513(a); however, an ALJ must consider such evidence, 6 at a minimum, as qualified evidence or lay testimony. 7 416.913(d)(3); see also Gomez v. Chater, 74 F.3d 967, 970-1 (9th Cir. 8 1996). Therefore, although the opinions of non-physician other medical 9 sources such as therapists, cannot be used to establish the existence 10 of a condition, they may be relevant to the severity of the condition. 11 See 20 C.F.R. § 416.913(d)(1). 12 non-physician witnesses only if he gives reasons that are germane to 13 each witness. Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993). 14 In cases in which the ALJ s error lies in a failure to properly discuss 15 competent lay testimony favorable to the claimant, a reviewing court 16 cannot consider the error harmless unless it can confidently conclude 17 that no reasonable ALJ, when fully crediting the testimony, could have 18 reached a different disability determination. 19 Security Administration, 466 F.3d 880, 885 (9th Cir. 2006). 20 ALJ s ultimate credibility determination and reasoning are adequately 21 supported by substantial evidence in the record, no remand is required. 22 Batson v. Comm r of Soc. Sec. Admin., 359 F.3d 1190, 1195-97 (9th Cir. 23 2004). Under Social 20 C.F.R. § The ALJ may discount the testimony of Robbins v. Social If the 24 25 Ms. Poulalion, a Marriage and Family therapist that Plaintiff saw 26 in connection with his HIV status, noted in an Initial Psychosocial 27 Assessment that Plaintiff s [t]houghts are slow and pressured and 28 that he exhibited poor memory, [and] poor concentration. (AR 1049). 16 1 However, this initial assessment consists almost entirely of Plaintiff s 2 subjective reporting, as is noted at the top of the assessment with the 3 instructions that the therapist us[e] ct s own words. 4 Additionally, this assessment is primarily concerned with the gathering 5 of background information about Plaintiff, such as his family history, 6 social support, religious beliefs, and past psychiatric history. (AR 7 1047-49). 8 assessment. See Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 9 (9th Cir. 2003). (AR 1047). These factors indicate the low probative value of this 10 11 Furthermore, even if the ALJ did err by not providing specific 12 reasons 13 harmless. 14 independent, objective clinical findings, and contradict the statements 15 made by Ms. Poulalion. (See AR 1116-20). Therefore these opinions would 16 provide substantial evidence for rejecting Ms. Poulalion s opinion. 17 Tonapetyan, 242 F.3d at 1149). 18 Plaintiff not credible based on his long history of drug abuse, (AR 503) 19 the ALJ could have properly rejected Ms. Poulalion s assessments because 20 she based her assessments entirely on Plaintiff s subjective complaints. 21 Fair v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989) (having discounted 22 plaintiff s credibility, ALJ properly discredited treating physician s 23 opinion based on plaintiff s subjective symptoms). 24 for rejecting Ms. Poulalion s statements, any error was The opinions of Dr. Krieg and Dr. Malancharuvil rest on Because the ALJ previously found Therefore, the ALJ did not error in failing to discuss the opinion 25 of Ms. Poulalion because it was not probative evidence. 26 F.2d at 1394-95. However, even if her opinion were probative, the ALJ 27 could have properly rejected Ms. Poulalion s observations for being 28 against the weight of the record, in contradiction to objective findings 17 Vincent, 739 1 by medical experts, and for being based on Plaintiff s subjectively 2 reported symptoms. 3 a reasonable ALJ, when fully crediting the testimony, could have 4 reached a different disability determination. 5 885. 6 reasoning are adequately supported by substantial evidence in the 7 record, and no remand is required for any error in failure to discuss 8 Ms. Poulalion s findings. Based on these reasons, it is highly unlikely that Therefore, the ALJ s ultimate credibility determination and 9 10 \\ 11 \\ 12 \\ 13 \\ 14 \\ 15 \\ 16 \\ 17 \\ 18 \\ 19 \\ 20 \\ 21 \\ 22 \\ 23 Robbins, 466 F.3d at \\ 24 25 26 VIII. 27 CONCLUSION 28 18 1 Consistent with the foregoing, and pursuant to sentence four of 42 2 U.S.C. § 405(g),4 IT IS ORDERED that judgment be entered AFFIRMING the 3 decision of the Commissioner and dismissing this action with prejudice. 4 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this 5 Order and the Judgment on counsel for both parties. 6 7 DATED: August 6, 2010. 8 9 _______/S/_______________________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 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. 19

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