(SS) Saesee v. Commissioner of Social Security, No. 1:2008cv00117 - Document 26 (E.D. Cal. 2010)

Court Description: DECISION and ORDER Denying Plaintiff's Social Security Complaint; ORDER Directing The Entry of Judgment For Defendant Michael J. Astrue, Commissioner of Social Security, and Against Plaintiff Namor Saesee signed by Magistrate Judge Gary S. Austin on 2/19/2010. CASE CLOSED. (Esteves, C)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 NAMOR SAESEE, 10 Plaintiff, 11 v. 12 MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL 13 SECURITY, 14 15 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) 1:08-cv-00117-GSA DECISION AND ORDER DENYING PLAINTIFF S SOCIAL SECURITY COMPLAINT (DOC. 1) ORDER DIRECTING THE ENTRY OF JUDGMENT FOR DEFENDANT MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, AND AGAINST PLAINTIFF NAMOR SAESEE 16 Plaintiff is proceeding in forma pauperis and with counsel 17 with an action seeking judicial review of a final decision of the 18 Commissioner of Social Security (Commissioner) finding that 19 Plaintiff, who had previously been determined to have been 20 disabled as of August 26, 2002, was no longer disabled as of 21 April 1, 2005. (A.R. 14-20.) The parties have consented to the 22 jurisdiction of the United States Magistrate Judge pursuant to 28 23 U.S.C. § 636(c)(1), and pursuant to the order of Judge Oliver W. 24 Wanger filed on October 30, 2008, the matter has been assigned to 25 the Magistrate Judge to conduct all further proceedings in this 26 case, including entry of final judgment. 27 The decision under review is that of Social Security 28 1 1 Administration (SSA) Administrative Law Judge (ALJ) Stephen W. 2 Webster, dated June 8, 2007 (A.R. 14-20), rendered after a 3 hearing held on January 10, 2007, at which Plaintiff appeared and 4 testified with the assistance of a Lahu interpreter and an 5 attorney (A.R. 14). Plaintiff s husband and Jose L. Chaparro, a 6 vocational expert (VE), also testified. (Id.) 7 The Appeals Council denied Plaintiff s request for review of 8 the ALJ s decision on November 15, 2007 (A.R. 4-6), and 9 thereafter Plaintiff filed the complaint in this Court on January 10 23, 2008. Plaintiff s brief was filed on July 31, 2009, and 11 Defendant s cross-motion for summary judgment was filed on August 12 26, 2009. Plaintiff s reply brief was filed on September 28, 13 2009. The matter has been submitted without oral argument to the 14 Magistrate Judge. 15 I. Jurisdiction 16 This Court has subject matter jurisdiction pursuant to 42 17 U.S.C. §§ 1383(c)(3) and 405(g), which provide that an applicant 18 suffering an adverse final determination of the Commissioner of 19 Social Security with respect to disability or SSI benefits after 20 a hearing may obtain judicial review by initiating a civil action 21 in the district court within sixty days of the mailing of the 22 notice of decision. Plaintiff timely filed her complaint on 23 January 23, 2008. 42 U.S.C. § 405(g), (h); 20 C.F.R. §§ 24 422.210(c), 404.981, 404.901; Fed. R. Civ. P. 6(a). 25 II. Standard and Scope of Review 26 Congress has provided a limited scope of judicial review of 27 the Commissioner's decision to deny benefits under the Act. In 28 reviewing findings of fact with respect to such determinations, 2 1 the Court must determine whether the decision of the Commissioner 2 is supported by substantial evidence. 42 U.S.C. § 405(g). 3 Substantial evidence means "more than a mere scintilla," 4 Richardson v. Perales, 402 U.S. 389, 402 (1971), but less than a 5 preponderance, Sorenson v. Weinberger, 514 F.2d 1112, 1119, n. 10 6 (9th Cir. 1975). It is "such relevant evidence as a reasonable 7 mind might accept as adequate to support a conclusion." 8 Richardson, 402 U.S. at 401. The Court must consider the record 9 as a whole, weighing both the evidence that supports and the 10 evidence that detracts from the Commissioner's conclusion; it may 11 not simply isolate a portion of evidence that supports the 12 decision. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 13 2006); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 14 It is immaterial that the evidence would support a finding 15 contrary to that reached by the Commissioner; the determination 16 of the Commissioner as to a factual matter will stand if 17 supported by substantial evidence because it is the 18 Commissioner s job, and not the Court s, to resolve conflicts in 19 the evidence. Sorenson v. Weinberger, 514 F.2d 1112, 1119 (9th 20 Cir. 1975). 21 In weighing the evidence and making findings, the 22 Commissioner must apply the proper legal standards. Burkhart v. 23 Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must 24 review the whole record and uphold the Commissioner's 25 determination that the claimant is not disabled if the 26 Commissioner applied the proper legal standards, and if the 27 Commissioner's findings are supported by substantial evidence. 28 See, Sanchez v. Secretary of Health and Human Services, 812 F.2d 3 1 509, 510 (9th Cir. 1987); Jones v. Heckler, 760 F.2d at 995. If 2 the Court concludes that the ALJ did not use the proper legal 3 standard, the matter will be remanded to permit application of 4 the appropriate standard. Cooper v. Bowen, 885 F.2d 557, 561 (9th 5 Cir. 1987). 6 7 8 III. Continuing Disability A. Legal Standards In order initially to qualify for benefits, a claimant must 9 establish that she is unable to engage in substantial gainful 10 activity due to a medically determinable physical or mental 11 impairment which has lasted or can be expected to last for a 12 continuous period of not less than twelve months. 42 U.S.C. §§ 13 416(i), 1382c(a)(3)(A). A claimant must demonstrate a physical or 14 mental impairment of such severity that the claimant is not only 15 unable to do the claimant s previous work, but cannot, 16 considering age, education, and work experience, engage in any 17 other kind of substantial gainful work which exists in the 18 national economy. 42 U.S.C. 1382c(a)(3)(B); Quang Van Han v. 19 Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989). The burden of 20 establishing a disability is initially on the claimant, who must 21 prove that the claimant is unable to return to his or her former 22 type of work; the burden then shifts to the Commissioner to 23 identify other jobs that the claimant is capable of performing 24 considering the claimant's residual functional capacity, as well 25 as her age, education and last fifteen years of work experience. 26 Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990). 27 Here, the applicant was initially found to have been 28 disabled; the Commissioner thereafter determined that the 4 1 disability ceased. 2 With respect to determining whether an individual s 3 disability continues, the regulations provide for a seven-step, 4 sequential analysis. 20 C.F.R. § 416.994(b)(5)1. First, it must be 5 determined if the person has an impairment or combination thereof 6 which meets or equals the severity of an impairment listed in 7 appendix 1 of subpart P of part 404 (the listings). 20 C.F.R. § 8 416.994(b)(5)(i). Second, if not, the adjudicator will consider 9 whether there has been medical improvement, as defined in § 10 416.994(b)(1)(i). § 416.994(b)(5)(ii). Third, if there has been 11 medical improvement as shown by a decrease in medical severity, 12 then it must further be determined whether it is related to the 13 person s ability to do work, that is, whether there as been an 14 increase in the person s residual functional capacity (RFC) based 15 on the impairments(s) present at the time of the most recent 16 favorable medical determination. § 416.994(b)(5)(iii). Fourth, if 17 there has been no medical improvement, or if the medical 18 improvement is not related to the person s ability to do work, it 19 must be determined if any of the exceptions set forth in § 20 416.994(b)(3) or (4) apply; if no exceptions apply, then the 21 person s disability will continue; if an exception from the 22 second group of exceptions to medical improvement applies, then 23 the disability will be found to have ended. § 416.994(b)(5)(iv). 24 Fifth, if medical improvement is related to the person s ability 25 to work or if one of the first group of exceptions to medical 26 improvement applies, then it must be determined if all the 27 28 1 All references to the Code of Federal Regulations are to the 2008 version unless otherwise noted. 5 1 person s current impairments, in combination, are severe (i.e., 2 whether they significantly limit the person s physical or mental 3 abilities to do basic work activities); if they are not severe, 4 then the person will be found no longer disabled. 20 C.F.R. § 5 416.994(b)(5)(v). Sixth, if the person s impairments are severe, 6 then it must be determined whether the person has the RFC to 7 perform any work he or she has done in the past; if the person 8 can perform past work, then the person s disability will be found 9 to have ended. § 416.994(b)(5)(vi). Seventh, if the person does 10 not have the RFC to perform past work, it must be determined if 11 considering the person s RFC, age, education, and past work 12 experience, the person is able to do other work; if so, then the 13 disability will be found to have ended; if not, then the 14 disability will continue. § 416.994(b)(5)(vii). 15 16 B. The ALJ s Findings The ALJ found that the most recent favorable medical 17 decision finding Plaintiff disabled was dated March 3, 2003, when 18 it had been determined that Plaintiff had been disabled as of 19 August 26, 2002; this was the comparison point decision, or 20 CPD. (A.R. 14-15.) At the time of the CPD, Plaintiff had 21 medically determinable impairments of thrombocytopenia, 22 depression, and post-traumatic stress disorder that resulted in a 23 restriction to light work and inability to perform basic work 24 activities on a sustained basis, difficulty relating 25 appropriately to others, and difficulty adapting appropriately to 26 changes in the work setting. (A.R. 15.) Plaintiff did not develop 27 any additional impairment after the CPD through April 1, 2005; 28 further, Plaintiff s thrombocytopenia was no longer a severe 6 1 impairment. (A.R. 16.) As of April 1, 2005, medical improvement 2 occurred, and Plaintiff did not have an impairment or combination 3 thereof that met or medically equaled the severity of a listed 4 impairment; further, Plaintiff on that date had the RFC to 5 perform simple, routine, and repetitive work at all exertional 6 levels. (A.R. 17.) Plaintiff s medical improvement was related to 7 the ability to work because it resulted in an increase in her 8 RFC; although her impairments were severe, Plaintiff, who had no 9 past relevant work, was a younger individual aged eighteen 10 through forty-four, and was illiterate and unable to communicate 11 in English, was nevertheless able to perform a significant number 12 of jobs in the national economy. As of April 1, 2005, Plaintiff 13 was able to perform unskilled jobs, including jobs to which the 14 VE specifically testified, including commercial cleaner, poultry 15 offal icer, and brush clearing laborer, which were consistently 16 represented in the Dictionary of Occupational Titles (DOT). (A.R. 17 19-20.) 18 19 C. Plaintiff s Contentions Plaintiff argues that the ALJ wrongly found that Plaintiff s 20 thrombocytopenia was no longer severe, that no new impairments 21 had arisen, that Plaintiff s impairments did not meet or equal a 22 listed impairment, that Plaintiff had not performed any past 23 relevant work, that there had been medical improvement, and that 24 Plaintiff had the RFC to perform work that existed in significant 25 numbers in the national economy. Plaintiff argues that the ALJ s 26 decision was based on improper legal standards and was not 27 supported by substantial evidence. (Brief. p. 8.) 28 Plaintiff specifically contends that the ALJ failed to state 7 1 specific, legitimate reasons for rejecting the assessments of 2 treating physician Dr. Kuo, and that the ALJ s conclusions as to 3 Plaintiff s condition were not supported by the opinions of the 4 consulting examiner and of Plaintiff s surgeon s after 5 Plaintiff s operation. The ALJ failed to state legally sufficient 6 reasons for rejecting Plaintiff s subjective claims and the 7 testimony of Plaintiff s husband and of a third party witness. 8 The ALJ erred by failing to perform a function-by-function RFC 9 assessment and failed to consider Plaintiff s severe anemia; the 10 ALJ failed properly to weigh the opinions of M.F.T. Sharon 11 Meckenstock, Dr. Barnett, and the treating psychiatrists; and the 12 ALJ erred in not recontacting Dr. Kuo and Dr. Lessenger. 13 IV. Medical Record 14 Plaintiff was treated at the Tulare Community Health Clinic 15 from May 2001 through the November 2006. (A.R. 174-318, 401-456.) 16 Progress notes from 2001-2002 and 2004-2005 reflect complaints of 17 dizziness, poor sleep, headaches, and neck and back pain; 18 mentally, Plaintiff reported depression and anxiety without being 19 suicidal that was treated initially with Remeron, which helped a 20 little, and later with Nortriptyline. (A.R. 206, 219-20, 225, 21 240, 255-57, 268, 271, 276-77, 280-81, 297, 303, 308, 310-15, 22 429.) There were few objective findings noted by Dr. Kuo or the 23 other examiners aside from mild epigastric findings and slight 24 pallor. (A.R. 314, 225.) 25 In November 2002, non-examining state agency medical 26 consultant Alfred Torre, M.D., opined that as a result of her 27 thrombocytopenia, Plaintiff could lift and carry twenty pounds 28 occasionally, ten pounds frequently, and stand and/or walk and 8 1 sit about six hours in an eight-hour workday. (A.R. 381-89.) 2 On January 30, 2003, consulting, examining physician Michael 3 S. Barnett, M.D., L.T.D., a psychiatrist, performed a psychiatric 4 evaluation of Plaintiff with an interpreter after reviewing a 5 previous consulting opinion from 1998. (A.R. 166-68.) Plaintiff 6 did not know her age or the length of her marriage, although she 7 knew she had four daughters at home; she ran away from the 8 Communists in Laos, where her brother was murdered by soldiers, 9 and she saw a lot of people shot and killed. She had never 10 attended school. She complained of crying, not sleeping well, 11 being dizzy and depressed, feeling irritable and withdrawn, and 12 having decreased appetite, low energy, and poor concentration. 13 She heard things, including voices daily telling her that they 14 wanted to kill her and that she was stupid. She felt that people 15 watched her and wanted to hurt and kill her. At night there was 16 an evil force or demons who wanted to get her; when attempting 17 to sleep, she saw her dead parents trying to stab her. She would 18 awaken mid-cycle and be unable to go back to sleep. When angry 19 she had thought of killing herself, but she had never attempted 20 suicide. (A.R. 166.) She had begun treatment at Visalia Mental 21 Health in 1993, but she stopped going. She reported that she 22 needed assistance dressing and bathing herself and had been 23 isolated for a long time. She was casually and sloppily dressed, 24 appeared depressed, tearful, flushed, and chronically mentally 25 ill, exhibited unspecified psychotic symptoms, had no 26 involuntary movements, and had a flat affect and meek demeanor. 27 (A.R. 167.) She did not know the date, month, or year, could not 28 perform serial threes or simple calculations, repeated two digits 9 1 forward and zero digits backward, recalled zero out of five 2 objects in five minutes, could not describe either the similarity 3 or difference between an apple and an orange, could not interpret 4 proverbs, and did not know what she would do in a fire in a 5 theater or if she found a stamped, addressed envelope on the 6 sidewalk. (A.R. 167.) 7 Dr. Barnett diagnosed PTSD, chronic, schizo-affective 8 disorder, depressed; no diagnosis on Axis II; and a global 9 assessment of functioning (GAF) of 48. Dr. Barnett opined that 10 Plaintiff was functioning at a very low level and needed adequate 11 doses of antidepressant and neuroleptic medications to control 12 her symptoms; given her lack of education and poor adaptation to 13 living in this country, it was doubtful that she would be able to 14 work even with appropriate treatment. Because of her low level of 15 functioning, depressive and psychotic symptoms, and social 16 isolation, it was unlikely that she would be able to work 17 regularly or perform work activities on a consistent basis; lack 18 of spoken English would cause great difficulty in being able to 19 understand, remember, and carry out simple, one-step or two-step 20 job instructions; she would be unable to engage in work 21 activities without special or additional supervision; her 22 symptoms would interfere with the completion of a normal work day 23 or week; and she would be incapable of interacting with 24 supervisors, coworkers, or the public or of coping with the 25 stressors encountered in a normally competitive workplace. The 26 prognosis was poor, due in part to lack of education and poor 27 acculteration, although treatment would be beneficial. (A.R. 16728 68.) 10 1 In February 2003, state agency consultant Glenn Ikawa, M.D., 2 concluded that due to schizo-affective disorder, depressed type, 3 and PTSD, Plaintiff had moderate restriction of activities of 4 daily living, and moderate difficulties in maintaining social 5 functioning and maintaining concentration, persistence, or pace; 6 she was moderately limited in the ability to understand, 7 remember, and carry out short and simple instructions, perform 8 activities within a schedule, maintain regular attendance, 9 complete a normal workday and workweek without interruptions from 10 symptoms, be punctual, sustain an ordinary routine without 11 special supervision, work in coordination with or proximity to 12 others without being distracted, make simple, work-related 13 decisions, interact appropriately with the general public, 14 supervisors, coworkers, and peers, adapt to changes in the work 15 setting, travel, and set goals or make plans. Plaintiff was 16 markedly limited in the ability to understand, remember, and 17 carry out detailed instructions. Dr. Ikawa concluded that she was 18 unable to perform basic work activities on a sustained basis. 19 (A.R. 360-79.) 20 With respect to Plaintiff s physical impairments, 21 Plaintiff s blood platelet count was low in November 2000 (31), 22 and contemporaneous treating records of Dr. Nauman Qureshi noted 23 mild or borderline anemia. (A.R. 316, 302, 300.) Plaintiff was 24 referred to Dr. Kuo. (A.R. 298.) In December 2001, Plaintiff s 25 platelet count (25) and iron (14) were low. (A.R. 294.) 26 Hematopathalogical reports of Dr. Gary A. Walter, M.D., and 27 Leonard R. Miller, M.D., in October 2001 revealed mild to 28 moderate microcytic/hypochromic anemia, an iron deficiency type 11 1 of the disease, and marked thrombrocytopenia of speculative 2 etiology. (A.R. 293, 287.) In April and July 2002, platelet count 3 (35, 21) and iron (16, 19) were still low. (A.R. 272-74, 279.) 4 Dr. Samuel Kuo, M.D., performed a bone marrow aspiration and 5 biopsy in August 2002, and Dr. Gary A. Walter, M.D., diagnosed 6 normocellular to mildly hypercellular bone marrow exhibiting mild 7 megaloblastic changes of the erythroid series, increased 8 megakaryocytes with immature forms, adequate stainable iron, and 9 negative for bone marrow fibrosis or metastatic disease. There 10 was adequate bone marrow response to the persistent 11 thrombocytopenia. (A.R. 256-57, 260-62.) In September and October 12 2002, platelet counts (24, 21) were low. (A.R. 251, 254.) 13 A gap exists in the Tulare Community Health Clinic notes 14 after October 2002 until February 2004. (A.R. 244-45.) Platelet 15 counts were low in February 2004 (26), April 2004 (17), May 2004 16 (19), July 2004 (13), August 2004 (20), November 2004 (25), 17 December 2004 (13), February 2005 (17), April 2005 (19, 31, 43), 18 and May 2005 (27, 90, 54, 12). (A.R. 196, 201-03, 207, 209, 212, 19 217, 223-24, 232, 237, 239, 243- 244). Ferritin was within the 20 normal range in December 2004. (A.R. 230-31.) 21 Plaintiff had been prescribed Prednisone in May 2004 and had 22 been taking it off and on ; she had been partially responding. 23 (A.R. 214, 218, 240.) In December 2004, next to an assessment of 24 ITP, treater s notes reflect a question as to whether or not 25 Plaintiff was non-compliant. (A.R. 228.) While taking Prednisone 26 in January 2005, Plaintiff s legs swelled; the dose was adjusted 27 upward on March 5, 2005, while Plaintiff was awaiting surgery. 28 (A.R. 226, 220.) Treating notes of March 17, 2005, reflect that 12 1 Plaintiff had stopped taking Prednisone because of soreness on 2 her legs and an inability to tolerate it. (A.R. 218-19.) A note 3 from April 7, 2005, clarifies that Plaintiff generally stopped 4 the medication by herself. (A.R. 214.) It would be necessary for 5 her to have high dose intravenous immungloburin therapy before 6 surgery. (A.R. 214.) 7 In March 2005, Dr. Kuo diagnosed thrombocytopenia, 8 autoimmune disease, esophageal reflux disease, and depression, 9 and noted that Plaintiff stopped taking Prednisone by herself. A 10 recent lupus panel showed borderline increase of ANA, elevations 11 of SSA antibodies, elevated thyroid antibodies, and slightly low 12 C at 80. A general surgery evaluation was anticipated. (A.R. 218, 13 214.) In April 2005, Dr. Kuo noted that Plaintiff had elevated 14 SSA, thyroid parasites oral antibodies, immunothyromobcytopenia 15 (ITP), and possible autoimmune disease. 16 Consulting, examining psychologist Leslie H. Lessenger, 17 Ph.D., performed a psychological evaluation of Plaintiff on March 18 24, 2005, with the assistance of a Lahu interpreter. (A.R. 16919 71.) Dr. Lessenger reviewed records, took a diagnostic history, 20 performed a mental status exam and interview, and administered 21 the Test of Nonverbal Intelligence-3 (TONI-3), the Rey 15 Item 22 Memory Test, and the Test of Memory Malingering (TOMM). Plaintiff 23 reported that her problems had begun two years earlier; she had 24 back pain, trouble breathing, and abdominal pains. She was 25 frequently depressed, which caused her to take a pill and a nap; 26 she had difficulty sleeping without medication, had frequent 27 nightmares and daytime intrusive thoughts about her dead father, 28 and she ate poorly because of abdominal pain. Sometimes her 13 1 husband had to bathe her because dizziness caused her to fear 2 falling; her activities were lying in bed or on the sofa. 3 Plaintiff was casually dressed, hygiene was adequate, she avoided 4 eye contact with the evaluator and rarely looked at the 5 interpreter, and mood was depressed and blunted. Plaintiff was 6 unable to give the month or the name of her town. Plaintiff 7 reported having four children but could not give their ages or 8 the name of their schools, although with prompting she identified 9 one child as a teenager and reported that all the children were 10 over five years of age. Motivation was questionable. She reported 11 hearing vague voices that aren t there, but she could not 12 understand what they said. On the TONI-3, Plaintiff was unable to 13 answer any of the first five items correctly despite two reviews 14 of the sample items. Dr. Lessenger concluded that the Rey memory 15 test might not be an appropriate assessment for Plaintiff, who 16 had never been to school. On the TOMM, Plaintiff was unable 17 correctly to identify the sample items despite two trials, scores 18 were both below chance, and one trial clearly suggested that 19 Plaintiff knew the correct answer and deliberately chose the 20 incorrect answer. Plaintiff s performance was consistent with 21 malingering. The diagnostic impression was malingering, history 22 of PTSD, and depression; diagnosis on Axis II was deferred; the 23 GAF was unknown. Dr. Lessenger concluded that Plaintiff, who was 24 thirty-eight years old, was clearly malingering cognitive 25 deficits; thus, it was not possible to assess her cognitive and 26 psychological functioning with any confidence. (A.R. 170-71.) 27 On April 8, 2005, consulting, examining physician Vinay K. 28 Buttan, M.D., who was certified in internal medicine, evaluated 14 1 Plaintiff for complaints of dizziness and weakness, depression, 2 anxiety, and not feeling like working. (A.R. 172-73.) Plaintiff 3 was four feet four inches tall, 119 pounds, and the exam produced 4 normal findings. The impression was pancytopenia, etiology 5 undetermined, depression, and anxiety. He opined that the 6 weakness and dizziness could be secondary to pancytopenia, 7 especially anemia, but he did not have reports of her hemoglobin 8 and hematocrit values. On the basis of history and exam, Dr. 9 Buttan concluded that Plaintiff s main problems were mental 10 rather than physical; there was no restriction of sitting, 11 standing, or walking; she might not be able to do heavy physical 12 exertion because of anemia, but there was no restriction of 13 working with her hands. She needed a psychiatric evaluation and 14 medication adjustment to control depression and anxiety. (A.R. 15 172-73.) 16 State agency medical consultant Emanuel H. Rosen, M.D., 17 opined on April 20, 2005, that Plaintiff had no medically 18 determinable mental impairment; she had a prior history of 19 credibility concerns noted and considered in context with the 20 current consulting examiner s opinion (apparently a reference to 21 Dr. Lessenger) and the Plaintiff s lack of treatment. (A.R. 34022 53.) 23 State agency medical consultant George G. Spellman, M.D., 24 opined on April 25, 2005, that Plaintiff s ITP resulted in an 25 ability to lift fifty pounds occasionally and twenty-five pounds 26 frequently, and stand and/or walk and sit about six hours per 27 work day, with no other limitations. (A.R. 330-37.) 28 Prednisone was reinstated in May 2005. (A.R. 206.) On May 5, 15 1 2005, Dr. Kuo stated that Plaintiff had thrombocytopenia, 2 splenomegaly, and elevated ANA with thyroid proxitase auto3 antibodies; he would repeat the high dose of IVIG therapy if 4 clinically indicated. (A.R. 205.) 5 On May 25, 2005, Dr. Cesar Ramos, M.D., evaluated Plaintiff 6 and diagnosed intrahepatic thrombocytopenic purpura. (A.R. 190.) 7 Plaintiff denied dizziness or headaches, but she reported weight 8 loss at 116 pounds. He noted her progressive drop in platelet 9 count despite oral medication. (A.R. 190.) She would be given 10 Prednisone to improve her platelet count prior to her surgery. 11 (Id.) 12 In a note regarding treatment on May 26, 2005, treating 13 physician Dr. Kuo referred to Plaintiff s most recent failure to 14 comply with treatment: 15 16 17 18 19 The patient has been very non-compliant to her treatment. She was started on Prednisone 40 mg. once a day on 5/5/05. Her platelet count was 27000 (sic) a week after starting 40 mg of Prednisone her platelet count was 90000 on 5/12/05. Because of [s]ide effects related to Prednisone the patient felt weak and itchy on the skin and cut down her medication. Her platelet count was 54000 on 5/16/05 and 12000 on 5/24/05. Her splenectomy was postponed due to low platelet (sic). 20 (A.R. 188.) Dr. Kuo s assessment was Immunothrombocytopenia 21 responding to high dose Prednisone. (Id.) 22 On June 8, 2005, Dr. Ramos performed a splenectomy without 23 complications. (A.R. 181-84.) There were no abnormal findings 24 upon pre-operative examination. The surgical pathology report of 25 Gary A. Walter, M.D., was congestion, mild increase in white pulp 26 regions, and negative for splenic fibrosis; the post-operative 27 diagnosis was ITP (idiopathic thrombocytopenic purpura). (Id.) On 28 16 1 June 12, 2005, Plaintiff was discharged with an improved platelet 2 count; she was doing fine, had improved at discharge, and the 3 doctor stated, Activity ambulatory, but no heavy physical 4 exertion. Disability approximately 4-6 weeks. (A.R. 179.) 5 On June 16, 2005, Dr. Kuo noted that Plaintiff had tolerated 6 the surgery well, and stitches had been removed; the assessment 7 was immunothrombocytopenia post-splenectomy, and dizziness; the 8 plan was to continue observation and repeat blood tests in two 9 weeks. (A.R. 176.) By July 2005, Plaintiff s platelet count was 10 within the normal range. (A.R. 175.) 11 On July 14, 2005, the clinic progress note reflected that 12 Plaintiff s ITP post-splenectomy was in remission. (A.R. 429.) 13 Plaintiff continued to suffer mild left upper quadrant pain and 14 nightmares. (Id.) In August, Plaintiff complained of being tired 15 all the time and depressed. The assessment was fatigue, 16 dizziness, and depression. (A.R. 428.) 17 Two non-examining state agency physicians, psychiatrist 18 Archimedes Garcia and Carmen E. Lopez, M.D., assessed Plaintiff s 19 RFC on July 29, 2005, and August 8, 2005, respectively. They 20 concluded that there had been medical improvement with respect to 21 her thrombocytopenia based on Plaintiff s surgeon s post-surgery 22 assessment of no heavy work for four to six weeks. (A.R. 319-20.) 23 Dr. Garcia completed a psychiatric review technique finding that 24 Plaintiff s affective disorder was not severe (A.R. 329.) Dr. 25 Lopez concluded that Plaintiff could lift and carry one hundred 26 pounds occasionally, twenty-five pounds frequently, and stand 27 and/or walk and sit about six hours in a workday with no 28 limitations. (A.R. 321-28.) 17 1 On August 25, 2005, treating physician Dr. Kuo opined on a 2 form that based on a clinical diagnosis, without mention of any 3 specific findings or test results, Plaintiff had had depression 4 for two to three years, and it was stable on medication 5 (Nortriptyline) with a fair prognosis. (A.R. 390-94, 390.) He did 6 not complete the physical RFC portion of the form. However, with 7 respect to the effect on Plaintiff s mental and emotional 8 capacities of Plaintiff s impairments, she had poor ability 9 (i.e., a seriously limited ability to function, but all 10 functioning was not precluded) to follow work rules, relate to 11 coworkers, deal with the public, interact with supervisors, deal 12 with work stress, function independently, use judgment, maintain 13 attention and concentration, and understand, remember, and carry 14 out complex, detailed but not complex, and even simple job 15 instructions. Further, she had poor ability to maintain personal 16 appearance, behave in an emotionally stable manner, relate 17 predictably in social situations, and demonstrate reliability. 18 (A.R. 390-94.) 19 In September 2005, Plaintiff s platelet result was high. 20 (A.R. 425.) Dr. Kuo noted the good response of the platelet 21 count. (A.R. 423.) Plaintiff continued to complain of dizziness, 22 fatigue, and severe depression; she reported that she had been 23 taking medication according to her previous doctor at Mental 24 Health, but there was no improvement, and re-evaluation was 25 required. The assessment was severe fatigue, chronic dizziness, 26 and history of depression. Mental health evaluation for 27 adjustment of medication was recommended. (A.R. 423.) 28 In October 2005, progress notes from a post-operative 18 1 followup at the Tulare Community Health Clinic reflect that 2 Plaintiff was doing fairly well with minimal pain and a platelet 3 count of 240,000. The plan was discharge. (A.R. 178.) 4 In November 2005, Plaintiff reported nightmares, difficulty 5 sleeping, and inability to see her psychiatrist; the assessment 6 was severe fatigue, chronic dizziness and depression, and 7 insomnia. Medications were adjusted. (A.R. 421-22.) Treating 8 physician Dr. Kuo essentially repeated his opinion of three 9 months earlier, concluding that as a result of Plaintiff s 10 depression, dizziness, and fatigue, and based on clinical 11 findings of fatigue and weakness assessed by the doctor for about 12 two to three years after she had last seen her mental health 13 doctor, Plaintiff had the same poor abilities, and she was unable 14 to do any wage-earning work. (A.R. 395-99.) For two years, 15 Plaintiff had been able to sit less than thirty minutes at a 16 time, stand and/or walk less than ten minutes at a time, and sit 17 or stand less than thirty minutes over an eight-hour period. The 18 clinical findings that supported the assessment were the 19 clinical presentation. (A.R. 397.) Although he did not list any 20 objective findings, Dr. Kuo stated that the assessment was based 21 upon his objective findings and not only on the person s 22 subjective comments. (A.R. 397-98.) 23 In January 2006, Plaintiff reported weakness but better 24 sleep; the assessment was dizziness, fatigue, and depression 25 along with peptic ulcer disease and history of depression. (A.R. 26 419-20.) The diagnosis continued in March 2006. (A.R. 417.) In 27 May 2006, Plaintiff s platelet count was high. (A.R. 412.) She 28 complained of epigastric pain. (A.R. 410.) In June 2006, 19 1 Plaintiff reported that her dizziness fluctuated from really bad 2 to relatively light on some days. Nortriptyline was reduced to 3 lessen the dizziness. (A.R. 407.) Plaintiff reported being very 4 weak in July 2006. Medications were continued; the assessment was 5 chronic dizziness, peptic ulcer disease, and insomnia. (A.R. 6 405.) 7 Plaintiff reported to Sharon Meckenstock, MFT, in an initial 8 assessment in July and August 2006 that although Plaintiff had 9 received mental health therapy and medications a few years 10 before, it did not help, so she stopped her treatment. (A.R. 44211 49.) She had never been hospitalized for mental conditions and 12 was not on any psychiatric medications. She reported that she had 13 trouble sleeping; she had little energy, found little pleasure in 14 anything, and could not concentrate due to her shame because her 15 fifteen-year-old daughter had been removed from Plaintiff s home 16 and was in a foster home for excessive truancy. The family was 17 under a child welfare watch. Plaintiff and her husband had lost 18 control of their several children, and this had caused 19 Plaintiff s depression, which she had felt for about a year, to 20 worsen. Plaintiff reported doing nothing in the home. She heard 21 voices, mostly at night, that spoke clearly, but Plaintiff was 22 vague when asked what they said, and she did not share what was 23 said. (A.R. 445.) 24 A mental status exam by Meckenstock found Plaintiff clean 25 and appropriately dressed, sitting lethargically, with clear and 26 well understood speech, very sad and almost indifferent affect, 27 thought content that indicated no mental impairment, intact 28 memory, average intelligence based on her apparent understanding 20 1 of the questions, and speech that contained coherent sentences 2 with apparently no rambling. The Lahu interpreter had no 3 difficulty understanding Plaintiff. (A.R. 445.) 4 Meckenstock diagnosed major depressive episode, recurrent, 5 severe with psychotic features and melancholic features, rule out 6 adjustment disorder with depressed mood, chronic, with diagnosis 7 on Axis II deferred; the GAF was 45. (A.R. 446-47.) The 8 assessment form itself states that mood disorders such as major 9 depression must be referred for psychiatric evaluation. (A.R. 10 449.) The plan was therapy and medications. (A.R. 448.) 11 In September 2006, Plaintiff reported little change. (A.R. 12 441.) A wellness plan was created, and Plaintiff went to therapy 13 with a goal of washing dishes twice a day. Plaintiff was very 14 emotional and planned to see the doctor in November to get 15 medications; she was angry that she could not do and go as others 16 could. (A.R. 439.) Plaintiff reported an improvement in her 17 chronic dizziness in September 2006. The assessment was 18 hypercholesterolemia, chronic dizziness, and history of peptic 19 ulcer disease. (A.R. 403.) 20 In November 2006, Plaintiff had the flu and still did 21 nothing at home. (A.R. 438.) Her platelets were at 11, with a 22 reference range of 11.5 through 16.8. (A.R. 430.) Plaintiff 23 weighed 108 pounds. (A.R. 435.) When she saw Dr. Maximo A. 24 Parayno, Jr., M.D., in November for a medication evaluation, she 25 continued to complain of depressive symptoms, problems with 26 sleep, low energy, and seeing ghosts at night. Plaintiff was 27 alert but disoriented as to time, place, and situation, and she 28 did not know the date, her address, her telephone number, or her 21 1 date of birth; her affect was flat and mood depressed; she had 2 poverty of ideations and content, but no suicidal or homicidal 3 ideations; memory and concentration appeared rather suspect; and 4 judgment and insight were limited. Dr. Parayno s assessment was 5 major depressive disorder, recurrent with psychotic features. 6 (A.R. 434.) The doctor prescribed Sertraline for depression and 7 nightmares, Seroquel to enhance sleep and modulate the 8 nightmares, and Trazodone to enhance sleep. (A.R. 434.) In 9 December 2006, the wellness plan was completed. (A.R. 433.) 10 On January 4, 2007, Dr. Kuo opined that since 2000, 11 Plaintiff had been precluded from performing any work, including 12 sedentary work, by her depression, based on unspecified clinical 13 findings, such that she could sit less than an hour at one time 14 or over an eight-hour period, and stand and/or walk less than 15 fifteen minutes at one time and less than thirty minutes over an 16 eight-hour period. (A.R. 400.) 17 In February 2007, Xavier Lara, M.D., examined Plaintiff as 18 part of medication support services. Plaintiff complained of 19 sleeping problems, mild depression daily and nightmares almost 20 daily, and sounds of war. Plaintiff looked sad and tearful and 21 had underlying hopelessness, but she was not suicidal or 22 homicidal. Blood tests were normal. She had slow speech of low 23 volume, down mood and flat affect, fair insight and judgment, 24 good impulse control, and she was clear, coherent, alert, and 25 oriented, although she looked a little confused. She did not know 26 her age. Plaintiff was also taking Zoloft in addition to the 27 medications listed by Dr. Parayno. The assessment was major 28 depressive disorder with psychotic features, and post-traumatic 22 1 stress disorder traits. The plan was validation, reassurance, 2 education, and increasing the doses of Seroquel and Zoloft. (A.R. 3 431.) 4 V. Plaintiff s Testimony and Reports 5 Plaintiff testified at the hearing held on January 10, 2007, 6 that she was born in 1966, was married, and had four children. 7 (A.R. 461.) She did not know the ages of her children, the name 8 of the doctor whom she had seen many times, or whether the place 9 she lived was a house or apartment. (A.R. 462, 464.) She did 10 nothing at home; her husband helped her bathe and dress. Once in 11 a while she went to church with her husband. She had never 12 worked. (A.R. 462-63.) She had depression, trouble sleeping, 13 abdominal and back pain, and she heard voices every night. The 14 voices said they would kill her and sometimes said to go and hit 15 other people. She got probably an hour or not even an hour, and 16 sometimes only ten minutes, of sleep at night. She could not sit 17 long, could only walk very slowly, and could not lift much. (A.R. 18 464-65.) When she was depressed, she felt scared to die because 19 she had trouble sleeping. She did not speak, read, or write 20 English or read or write in any language. (A.R. 465.) She was 21 dizzy in the daytime and could not move much; the medication she 22 took when she got dizzy did not help much. She did not cook 23 because she felt sick, and she did not do laundry because of 24 dizziness and trouble moving around. (A.R. 466.) When she was 25 depressed, she got angry and cried because of trouble sleeping. 26 (A.R. 466.) 27 In her report of continuing disability interview, Plaintiff 28 reported in December 2004 that she was disabled from hearing 23 1 voices, trouble sleeping, dizziness, and depression. Her daily 2 activities were walking around, grooming and attending to her 3 personal needs, visiting relatives monthly, and sometimes going 4 to church. She could not focus when she stood because she got 5 really bad dizzy spells that would come and go, even at home. She 6 had trouble sleeping, so she felt tired all the time. (A.R. 1197 28.) 8 Plaintiff reported through her husband in May 2005 and in 9 September 2005 (A.R. 146-52, 154-64) that her condition had 10 worsened since her last report. On about January 1, 2005, she 11 experienced hallucinations, hearing voices from dead people, a 12 sleeping disorder with three nightmares per night, paranoia, 13 emotional disturbance, confusion, poor memory and concentration, 14 major depression disorder, severe anxiety disorder, low blood 15 cells, body weakness, and suicidal attempts. Her new physical or 16 mental limitations since her last disability report were anemia 17 syndrome, severe frustration, poor functioning problem, illusion 18 disorder, dizziness disorder, chronic headaches, hallucination 19 syndrome, emotional depressive, nightmares, dizziness, post20 traumatic stress disorder, difficult breathing, and major 21 depression. Her new illnesses, injuries, or conditions since the 22 last disability report were abdominal pain (spleen), shortness of 23 breath, hallucination syndrome, emotional depressive, nightmares, 24 major depression, and suicidal attempts. (A.R. 146-52.) Surgery 25 to remove the spleen occurred or was about to occur. (A.R. 148.) 26 Plaintiff took Nortripyline as an anti-depression medication, 27 Prednisone for shortness of breath, Diphenhydramine for sleeping 28 and itching, and Famotidine for sleeping syndrome. (A.R. 149.) 24 1 Shortness of breach, severe frustration, poor functioning, 2 anxiety disorder, PTSD, poor memory problem, confusion problem, 3 major depression, emotional disturbance, dizziness, chronic 4 headaches, and hallucination syndrome affected her ability to 5 care for her personal needs. Abdominal pain (spleen), anemia 6 symptoms, body weakness, shortness of breath, difficult thinking 7 (poor memory), severe functioning, poor concentration, confusion, 8 emotional/depressive problem, and anxiety disorder were the 9 changes in her daily activities. (A.R. 150.) The aforementioned 10 symptoms or conditions, along with sadness, feelings of guilt, 11 paranoia disorder, and ulcer pain rendered her totally disabled. 12 (A.R. 151.) 13 VI. Testimony of Plaintiff s Husband 14 Plaintiff s husband, Mai Saesee, testified that he had been 15 married to Plaintiff for twenty years and lived with Plaintiff 16 and their children, aged 18, 17, 15, and 9. (A.R. 467-68.) Mr. 17 Saesee confirmed that Plaintiff did not cook, do laundry, or 18 clean because of pain and dizziness that Plaintiff said came with 19 getting up, sitting, or moving fast. (A.R. 468.) Plaintiff s 20 parents had the same mental illness. Plaintiff stayed quiet at 21 home. Her dizziness began in 1999. She began to be depressed 22 about four or five years before the hearing. (A.R. 474.) None of 23 her problems were getting better. (A.R. 469.) Mr. Saesee gave her 24 medications and took her to the doctor; she had problems trying 25 to sleep because of nightmares that she related after she awoke; 26 she had nightmares not every night but once in a while, and she 27 had problems sleeping through the night, like an hour or thirty 28 minutes sleep. (A.R. 471.) He and his daughter helped Plaintiff 25 1 bathe and dress; he took her to the store sometimes and told her 2 stories, and this made her feel better sometimes. (A.R. 471-72.) 3 After her spleen was removed, her dizziness and depression were 4 still the same; she was tired a lot, did not walk much during the 5 day, and he did not know how long she could stand; she did not 6 lift anything. (A.R. 472.) He took her to therapy twice a month 7 and to the doctors every two months for medication refills. (A.R. 8 473.) 9 10 VII. Third-Party Reports Jennifer See, Plaintiff s cousin, completed an adult third 11 party function report in January 2005 in which she reported 12 seeing Plaintiff every day. (A.R. 129-45.) Plaintiff stayed in 13 the apartment, ate three meals, and went to bed, but she did not 14 get good sleep because of nightmares and worrying about her dead 15 father coming back for her in her dreams. She did not understand 16 English, read, or know how to count; she was very quiet, afraid, 17 worried, and depressed. Plaintiff did not understand or remember 18 much, and she could pay attention for five minutes, or two to 19 five minutes. She needed prompting to groom herself and take 20 medication. 21 VIII. Testimony of the Vocational Expert 22 Mr. Jose L. Chaparro, a vocational expert, testified that 23 someone with Plaintiff s age, education, and work history, with 24 no established exertional limitations, but who was limited to 25 simple, routine, repetitive work, could perform work in the 26 regional or national economy, including 1) commercial or 27 institutional cleaner, heavy and unskilled, DOT 381.687-014, with 28 14,000 jobs in California and about 440,000 nationally; 2) 26 1 poultry offal icer, heavy and unskilled, DOT 525.687-054, with 2 4,500 jobs in California and nationally about 45,000; and 3) 3 brush clearing laborer, heavy and unskilled, DOT 459.687-010, 4 with about 6,600 jobs in California and nationally about 66,000 5 jobs. (A.R. 474-75, 14.) His testimony was in conformity with the 6 Dictionary of Occupational Titles (DOT). (A.R. 475.) 7 The VE testified that assuming the same factors as in the 8 previous hypothetical but further assuming that the person had 9 occasional problems maintaining attention, concentration, and 10 pace, there was no work in the regional or national economy that 11 the person could perform. (A.R. 475-76.) 12 IX. The ALJ s Findings regarding Plaintiff s Credibility 13 The ALJ noted Plaintiff s complaints of back pain, 14 dizziness, fatigue, weakness, and depression (A.R. 16), but he 15 expressly concluded that Plaintiff s subjective complaints were 16 not credible (A.R. 18). Plaintiff argues that the ALJ did not 17 state legally sufficient reasons for his findings. 18 19 A. Legal Standards It is established that unless there is affirmative evidence 20 that the applicant is malingering, then where the record includes 21 objective medical evidence establishing that the claimant suffers 22 from an impairment that could reasonably produce the symptoms of 23 which the applicant complains, an adverse credibility finding 24 must be based on clear and convincing reasons. Carmickle v. 25 Commissioner, Social Security Administration,, 533 F.3d 1155, 26 1160 (9th Cir. 2008). In Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 27 2007), the court summarized the pertinent standards for 28 evaluating the sufficiency of an ALJ s reasoning in rejecting a 27 1 claimant s subjective complaints: 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 An ALJ is not required to believe every allegation of disabling pain or other non-exertional impairment. See Fair v. Bowen, 885 F.2d 597, 603 (9th Cir.1989). However, to discredit a claimant's testimony when a medical impairment has been established, the ALJ must provide specific, cogent reasons for the disbelief. Morgan, 169 F.3d at 599 (quoting Lester, 81 F.3d at 834). The ALJ must cit[e] the reasons why the [claimant's] testimony is unpersuasive. Id. Where, as here, the ALJ did not find affirmative evidence that the claimant was a malingerer, those reasons for rejecting the claimant's testimony must be clear and convincing. Id. Social Security Administration rulings specify the proper bases for rejection of a claimant's testimony. See S.S.R. 02-1p (Cum. Ed.2002), available at Policy Interpretation Ruling Titles II and XVI: Evaluation of Obesity, 67 Fed.Reg. 57,859-02 (Sept. 12, 2002); S.S.R. 96-7p (Cum. Ed.1996), available at 61 Fed.Reg. 34,483-01 (July 2, 1996). An ALJ's decision to reject a claimant's testimony cannot be supported by reasons that do not comport with the agency's rules. See 67 Fed.Reg. at 57860 ( Although Social Security Rulings do not have the same force and effect as the statute or regulations, they are binding on all components of the Social Security Administration, ... and are to be relied upon as precedents in adjudicating cases. ); see Daniels v. Apfel, 154 F.3d 1129, 1131 (10th Cir.1998) (concluding that ALJ's decision at step three of the disability determination was contrary to agency regulations and rulings and therefore warranted remand). Factors that an ALJ may consider in weighing a claimant's credibility include reputation for truthfulness, inconsistencies in testimony or between testimony and conduct, daily activities, and unexplained, or inadequately explained, failure to seek treatment or follow a prescribed course of treatment. Fair, 885 F.2d at 603; see also Thomas, 278 F.3d at 958-59. 22 Additional factors to be considered in weighing credibility 23 include the location, duration, frequency, and intensity of the 24 claimant s pain or other symptoms; factors that precipitate and 25 aggravate the symptoms; the type, dosage, effectiveness, and side 26 effects of any medication the claimant takes or has taken to 27 alleviate the symptoms; treatment, other than medication, the 28 28 1 person receives or has received for relief of the symptoms; any 2 measures other than treatment the claimant uses or has used to 3 relieve the symptoms; and any other factors concerning the 4 claimant s functional limitations and restrictions due to pain or 5 other symptoms. 20 C.F.R. §§ 404.1529, 416.929; S.S.R. 96-7p. 6 7 B. Analysis Here, the ALJ expressly considered the evidence of 8 malingering and exaggeration of symptoms observed by Dr. 9 Lessenger as indicating that Plaintiff s subjective claims were 10 not reliable. (A.R. 18.) Amplification of symptoms can constitute 11 substantial evidence supporting the rejection of a subjective 12 complaint concerning the severity of symptoms. Matthews v. 13 Shalala, 10 F.3d 678, 680 (9th Cir. 1993). Here, the examining 14 specialist s opinion was based on a careful attempt to discern 15 Plaintiff s condition and capacities, and it constitutes a clear 16 and convincing reason for the ALJ s findings. 17 The ALJ also considered inconsistencies in Plaintiff s 18 reports of symptoms, noting her testimony that nocturnal voices 19 told her to hurt others and her inconsistent reports of voices 20 telling her she was stupid and that they wanted to kill her, to 21 follow me, and even voices not capable of being understood; no 22 report of audio hallucinations but descriptions of visions of 23 ghosts to Dr. Parayno; and reports of no hallucinations to Dr. 24 Lara. (A.R. 18.) 25 Inconsistent statements are matters generally considered in 26 evaluating credibility and are properly factored in evaluating 27 the credibility of a claimant with respect to subjective 28 complaints. In rejecting testimony regarding subjective symptoms, 29 1 permissible grounds include a reputation for dishonesty; 2 conflicts or inconsistencies between the claimant s testimony and 3 her conduct or work record, or internal contradictions in the 4 testimony; and testimony from physicians and third parties 5 concerning the nature, severity, and effect of the symptoms of 6 which the claimant complains. Moisa v. Barnhart, 367 F.3d 882, 7 885 (9th Cir. 2004); Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th 8 Cir. 2002). The ALJ may consider whether the Plaintiff s 9 testimony is believable or not. Verduzco v. Apfel, 188 F.3d 1087, 10 1090 (9th Cir. 1999). 11 Here, the inconsistencies in the record and the express 12 assessment of malingering supported the ALJ s reasoning. The ALJ 13 also permissibly drew reasonable inferences from the evidence. 14 Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). The ALJ 15 reasoned that Plaintiff s testimony was incredible because she 16 testified that she could not remember if she lived in a house or 17 an apartment but remembered she did not work in the yard, and 18 that she did not remember how many children she had despite 19 living with them. (A.R. 18.) It was reasonable for the ALJ to 20 consider the evidence and conclude that these basic 21 inconsistencies reflected on the credibility of Plaintiff, who 22 had been found to have been malingering with respect to cognitive 23 deficits. 24 Plaintiff suggests that cultural or linguistic factors might 25 have caused Plaintiff s confusion. However, it is not the role of 26 this Court to redetermine Plaintiff s credibility de novo; 27 although evidence supporting an ALJ s conclusions might also 28 permit an interpretation more favorable to the claimant, if the 30 1 ALJ s interpretation of evidence was rational, this Court must 2 uphold the ALJ s decision where the evidence is susceptible to 3 more than one rational interpretation. Burch v. Barnhart, 400 4 F.3d 676, 680-81 (9th Cir. 2005). 5 Although the inconsistency of objective findings with 6 subjective claims may not be the sole reason for rejecting 7 subjective complaints, Light v. Chater, 119 F.3d 789, 792 (9th 8 Cir. 1997), it is one factor which may be considered with others, 9 Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004); Morgan v. 10 Commissioner 169 F.3d 595, 600 (9th Cir. 1999); Burch v. Barnhart, 11 400 F.3d 676, 681 (9th Cir. 2005). The ALJ noted that although 12 Plaintiff testified that she did virtually nothing due to her 13 depression, the relatively recent evaluation of Dr. Lara in 14 February 2007 indicated that although Plaintiff was depressed 15 daily, her depression was only mild. (A.R. 18.) Plaintiff asserts 16 that this takes matters out of context. However, the ALJ 17 appropriately relied on the recent report of a treating source. 18 The ALJ s reasoning was not only specific and legitimate but also 19 clear and convincing. Further, it was based on substantial 20 evidence in the record. 21 As to the probative force of the evidence, as previously 22 noted, it is only where there is no affirmative evidence of 23 malingering that the ALJ s reasons must be clear and convincing. 24 Here, there was affirmative evidence of malingering. However, the 25 multiple reasons stated by the ALJ for his credibility findings 26 were not only specific and cogent, but were also clear and 27 convincing in force, and they were supported by substantial 28 evidence in the record. 31 1 The Court concludes that the ALJ cited specific, cogent, 2 clear, and convincing reasons for rejecting Plaintiff s 3 subjective complaints, and that the ALJ s reasons were properly 4 supported by the record and sufficiently specific to allow this 5 Court to conclude that the ALJ rejected the claimant's testimony 6 on permissible grounds and did not arbitrarily discredit 7 Plaintiff s testimony. 8 X. The ALJ s Findings concerning Third Party Evidence 9 Plaintiff challenges the ALJ s treatment of Plaintiff s 10 husband s testimony and the report of Plaintiff s cousin, 11 Jennifer Lee. 12 13 A. Legal Standards It is established that lay witnesses, such as friends or 14 family members in a position to observe a claimant s symptoms and 15 daily activities, are competent to testify to a claimant s 16 condition; the Commissioner will consider observations by non17 medical sources as to how an impairment affects a claimant s 18 ability to work. Dodrill v. Shalala, 12 F.3d 915, 918-19 (9th Cir. 19 1993). An ALJ cannot discount testimony from lay witnesses 20 without articulating specific reasons for doing so. Id. at 919. 21 In Dodrill, it was held that the matter required remand in part 22 because although the ALJ had expressly rejected lay evidence, the 23 ALJ had failed to give reasons germane to each witness for 24 rejecting the evidence. 25 26 B. Mr. Saesee Here, the ALJ noted Mr. Saesee s testimony that Plaintiff 27 was physically limited due to pain and dizziness. (A.R. 18.) The 28 ALJ had concluded that although Dr. Kuo had prescribed Meclizine 32 1 for dizziness, there was no evidence of any medically 2 determinable impairment that would reasonably be expected to 3 produce that symptom. (A.R. 16.) The ALJ noted that Plaintiff 4 took only non-prescription Tylenol and Advil for pain. Further, 5 her thrombocytopenia had responded to Prednisone and then to 6 surgery, and Dr. Kuo had described it as being in remission. 7 (A.R. 16.) The ALJ thus relied on absence of medical evidence to 8 support Plaintiff s claims, which is a valid, germane reason. 9 Lewis v. Apfel, 236 F.3d 503, 511-12 (9th Cir. 2001); Thomas v. 10 Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). 11 In addition, the ALJ noted Plaintiff s husband s testimony 12 that Plaintiff was depressed, stayed home, did no household 13 chores, had problems sleeping, and had nightmares. (A.R. 18.) The 14 ALJ stated that Plaintiff s husband did not seem to be aware of 15 Plaintiff s hearing any voices; Mr. Saesee acknowledged that 16 despite severe limitations allegedly spanning four to five years, 17 Plaintiff had only recently resumed mental health treatment; and 18 the ALJ noted that the husband s direct financial interest in 19 Plaintiff s continuing to receive SSI income payments further 20 detracted from his credibility. (A.R. 18-19.) 21 The ALJ reasoned that Plaintiff s husband s lack of 22 awareness of Plaintiff s alleged hearing of voices supported an 23 inference that her claims were insubstantial. Failure to mention 24 a symptom that Plaintiff complained of so consistently was 25 reasonably considered to reflect an absence of seriousness of the 26 symptom. This reasoning was based on logical inferences drawn 27 from the evidence. Likewise, the absence of treatment for 28 allegedly severe, long-standing limitations further supports such 33 1 an inference. The ALJ thus stated additional, germane reasons for 2 rejecting Plaintiff s husband s testimony. 3 Finally, Mr. Saesee had testified that he was not working; 4 he received public welfare and took care of the children. (A.R. 5 468.) Considering the finances of the family, it was not 6 unreasonable for the ALJ to note the extent of financial interest 7 of Plaintiff s spouse, a characteristic not necessarily shared by 8 all lay witnesses or sources. This reasoning was unlike that 9 found inappropriate in Smolen v. Chater, 80 F.3d 1273, 1288 (9th 10 Cir. 1996), cited by Plaintiff, in which the status of a witness 11 as a family member was found to be a basis for bias. In the 12 instant case, the ALJ s reasoning was based on specific facts and 13 not membership in the broad class of people whose insights were 14 otherwise appropriately considered. 15 In summary, the Court concludes that with respect to his 16 conclusions concerning Plaintiff s husband s credibility, the ALJ 17 stated specific reasons that were supported by the record and 18 that were germane to the witness and his testimony. 19 20 C. Plaintiff s Cousin With respect to Ms. Lee, the ALJ noted her third-party 21 function report of January 2005 in which she stated that 22 Plaintiff simply stayed at home and did nothing. (A.R. 19.) The 23 ALJ expressly gave little weight to Lee s statements because at 24 the time the statements were made, Plaintiff had still been 25 suffering weakness and tiredness from thrombocytopenia. (Id.) 26 This reasoning concerned the factual basis for Ms. Lee s 27 statement and thus was specifically related to Ms. Lee s opinion. 28 In view of the complete resolution of Plaintiff s platelet 34 1 problem by the subsequent surgery, the reasoning was germane and 2 persuasive. The ALJ also stated that in addition, Ms. See was not 3 subject to examination at the hearing. (A.R. 19.) Although 4 Plaintiff protests that Ms. See could have been subpoenaed, the 5 Court understands the ALJ s reasoning to relate to the specific 6 fact that Ms. See s observations had not been tested by formal 7 questioning at a hearing. This reasoning was likewise germane and 8 specific to the witness. 9 The Court concludes that the ALJ stated specific, germane 10 reasons, supported by substantial evidence in the record, for 11 rejecting the testimony and reports of the third party witnesses. 12 XI. The ALJ s Analysis of the Medical Evidence 13 Plaintiff challenges the ALJ s treatment of the opinions of 14 multiple medical experts. 15 16 A. Legal Standards The standards for evaluating treating source s opinions are 17 as follows: 18 19 20 21 22 23 24 25 26 27 28 By rule, the Social Security Administration favors the opinion of a treating physician over non-treating physicians. See 20 C.F.R. § 404.1527. If a treating physician's opinion is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record, [it will be given] controlling weight. Id. § 404.1527(d)(2). If a treating physician's opinion is not given controlling weight because it is not well-supported or because it is inconsistent with other substantial evidence in the record, the Administration considers specified factors in determining the weight it will be given. Those factors include the [l]ength of the treatment relationship and the frequency of examination by the treating physician; and the nature and extent of the treatment relationship between the patient and the treating physician. Id. § 404.1527(d)(2)(i)-(ii). Generally, the opinions of 35 1 2 3 4 5 6 7 8 9 examining physicians are afforded more weight than those of non-examining physicians, and the opinions of examining non-treating physicians are afforded less weight than those of treating physicians. Id. § 404.1527(d)(1)-(2). Additional factors relevant to evaluating any medical opinion, not limited to the opinion of the treating physician, include the amount of relevant evidence that supports the opinion and the quality of the explanation provided; the consistency of the medical opinion with the record as a whole; the specialty of the physician providing the opinion; and [o]ther factors such as the degree of understanding a physician has of the Administration's disability programs and their evidentiary requirements and the degree of his or her familiarity with other information in the case record. Id. § 404.1527(d)(3)-(6). 10 Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). 11 With respect to proceedings under Title XVI, the Court notes 12 that an identical regulation has been promulgated. See, 20 C.F.R. 13 § 416.927. 14 As to the legal sufficiency of the ALJ s reasoning, the 15 governing principles have been recently restated: 16 17 18 19 20 21 22 23 24 25 26 27 28 The opinions of treating doctors should be given more weight than the opinions of doctors who do not treat the claimant. Lester [v. Chater, 81 F.3d 821, 830 (9th Cir.1995) (as amended).] Where the treating doctor's opinion is not contradicted by another doctor, it may be rejected only for clear and convincing reasons supported by substantial evidence in the record. Id. (internal quotation marks omitted). Even if the treating doctor's opinion is contradicted by another doctor, the ALJ may not reject this opinion without providing specific and legitimate reasons supported by substantial evidence in the record. Id. at 830, quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir.1983). This can be done by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings. Magallanes [v. Bowen, 881 F.2d 747, 751 (9th Cir.1989).] The ALJ must do more than offer his conclusions. He must set forth his own interpretations and explain why they, rather than the doctors', are correct. Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir.1988). Reddick v. Chater, 157 F.3d 715, 725 (9th Cir.1998); accord Thomas, 278 F.3d at 957; Lester, 81 F.3d at 36 1 830-31. 2 Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). 3 With respect to the opinions of medical sources other than 4 treating physicians, the medical opinion of a non-treating doctor 5 may be relied upon instead of that of a treating physician only 6 if the ALJ provides specific and legitimate reasons supported by 7 substantial evidence in the record. Holohan v. Massanari, 246 8 F.3d 1195, 1202 (9th Cir. 2001) (citing Lester v. Chater, 81 F.3d 9 821, 830 (9th Cir. 1995)). The opinion of an examining physician 10 is entitled to greater weight than the opinion of a non-examining 11 physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). The 12 uncontradicted opinion of an examining physician may be rejected 13 only if the Commissioner provides clear and convincing reasons 14 for rejecting it. Id.; Edlund v. Massanari, 253 F.3d 1152, 115815 59 (9th Cir. 2001). An ALJ can reject the opinion of an examining 16 physician and adopt the contradictory opinion of a nonexamining 17 physician only for specific and legitimate reasons that are 18 supported by substantial evidence in the record. Moore v. 19 Commissioner of Social Security Administration, 278 F.3d 920, 925 20 (9th Cir. 2002) (quoting Lester v. Chater, 81 F.3d at 830-31). 21 22 B. Dr. Kuo s Opinion As previously noted, the ALJ stated that there was no 23 evidence of any medically determinable impairment that would 24 reasonably be expected to produce Plaintiff s dizziness or her 25 back pain, which were treated by Meclizine and non-prescription 26 Tylenol and Advil. (A.R. 16.) He further noted that Plaintiff s 27 thrombocytopenia was in remission or cured. (A.R. 16.) The ALJ 28 credited the opinion of Plaintiff s surgeon that Plaintiff would 37 1 be disabled from heavy work for four to six weeks after surgery. 2 He then stated: 3 4 5 6 7 8 9 10 11 Little weight has been given to the opinions of Dr. Kuo, who reported in November 2005 that the claimant is only physically capable of sitting less than 30 minutes and standing and/or walking less than 10 minutes in an 8-hour period (citation omitted) and in January 2007 that the claimant is only capable of sitting less than two hours and standing and/or walking less than 30 minutes in an 8-hour period (citation omitted). The November 2005 report attributes the claimant s physical limitations solely to depression. There are no objective findings cited in support of either of these opinions. Dr. Kuo s treatment records also fail to supply the missing objective basis for his opinions in the absence of the claimant s thrombocytopenia, which he states is now in remission and cured (Exhibit B-9F, pp. 29, 21). Consequently, I find that the claimant no longer has any physical impairment which significantly affects her ability to perform basic work-related activities. 12 (A.R. 16.) 13 The ALJ also stated that the evidence supported a finding 14 that as of April 1, 2005, medical improvement had occurred with 15 respect to Plaintiff s mental impairments. He noted Plaintiff s 16 reports of improved symptoms and Dr. Lessenger s finding that 17 Plaintiff was malingering. (A.R. 17.) The ALJ noted the state 18 agency consultants opinions that Plaintiff had no medically 19 determinable mental impairment or non-severe mental impairments. 20 (A.R. 17.) He then stated: 21 22 23 24 25 26 27 On the other hand, Dr. Kuo, (sic) reported in August 2005 and November 2005 that the claimant s ability was poor in each of the 15 categories of mental functioning he was asked to assess (citations omitted). However, Dr. Kuo fails to cite specific clinical findings on mental status examination of the claimant and his treatment records do not reflect any objective findings to support such extreme mental limitations. In addition, Dr. Kuo is a specialist in internal medicine (citation omitted) rather than psychiatry, and he acknowledges that the claimant had last seen a mental health provider two or three years earlier (citation omitted). 28 38 1 (A.R. 18.) 2 With respect to Plaintiff s physical impairments, the ALJ s 3 reasoning concerning the absence of physical findings cited to 4 support the opinion was specific and legitimate. It is 5 established that a conclusional opinion that is unsubstantiated 6 by relevant medical documentation may be rejected. See Johnson v. 7 Shalala, 60 F.3d 1428, 1432-33 (9th Cir. 1995). It is appropriate 8 for an ALJ to consider the absence of supporting findings, and 9 the inconsistency of conclusions with the physician s own 10 findings, in rejecting a physician s opinion. Johnson v. Shalala, 11 60 F.3d 1428, 1432-33 (9th Cir. 1995); Matney v. Sullivan, 981 12 F.2d 1016, 1019 (9th Cir. 1992); Magallanes v. Bowen, 881 F.2d 13 747, 751 (9th Cir. 1989). It is permissible for an ALJ to prefer 14 an opinion supported by specific clinical findings and an 15 explanation thereof over a check-off type of form lacking an 16 explanation of the basis for the conclusions. Crane v. Shalala, 17 76 F.3d 251, 253 (9th Cir. 1996) (citing Murray v. Heckler, 722 18 F.2d 499, 501 (9th Cir. 1983)); see Batson v. Commissioner of the 19 Social Security Administration, 359 F.3d 1190, 1195 (9th Cir. 20 2004). 21 Here, Dr. Kuo s opinions were brief and were stated on the 22 blanks on forms. His references to clinical findings or 23 presentations were illusory. His own progress notes reflect the 24 absence of objective, clinical findings on examination that would 25 support his limitations. As the ALJ noted, Dr. Kuo had 26 characterized Plaintiff s physical impairment of thrombocytopenia 27 as being in remission and cured. (A.R. 16, 421, 429.) Further, 28 Dr. Kuo had inconsistently attributed physical limitations to 39 1 different impairments. The ALJ s reasoning concerning Dr. Kuo s 2 opinion of Plaintiff s physical impairments was specific and 3 legitimate and was supported by substantial evidence in the 4 record. 5 Plaintiff argues that the ALJ s findings are unsupportable 6 as a matter of law because at the very time the ALJ found that 7 Plaintiff s thrombocytopenia was no longer severe (April 1, 8 2005), Plaintiff s impairment was so severe that she was awaiting 9 a splenectomy; at that time, no improvement had occurred because 10 Plaintiff s surgery did not occur until June 2005. 11 Although the improvement after Plaintiff s surgery was 12 marked and dramatic, the record supports the ALJ s interpretation 13 that Plaintiff s ITC had responded even earlier to Prednisone, 14 but Plaintiff was noncompliant. (A.R. 16, 188, 214.) Plaintiff s 15 compliance with her medications was questioned in December 2004. 16 Plaintiff was already complaining of negative side effects in 17 January 2005. She was apparently non-compliant with the increased 18 dose prescribed in the first week of March 2005 because by March 19 17, she had announced that she had unilaterally terminated the 20 Prednisone. (A.R. 220.) Plaintiff had later stopped the forty21 milligram daily dose of Prednisone that had been started on May 22 5, 2005, which had normalized her blood level. (A.R. 188.) 23 To the extent that evidence is inconsistent, conflicting, or 24 ambiguous, it is the responsibility of the ALJ to resolve any 25 conflicts and ambiguity. Morgan v. Commissioner, 169 F.3d 595, 26 603 (9th Cir. 1999). In light of these principles, and considering 27 the medical record, the Court concludes that the ALJ s 28 determination that Plaintiff s ITC was no longer severe as of 40 1 April 1, 2005, was not erroneous as a matter of law. The ALJ 2 legitimately reasoned that at least the severity of Plaintiff s 3 impairment could be controlled. It is established that an 4 impairment that can reasonably and effectively be controlled by 5 medication is not disabling for the purpose of determining 6 eligibility for SSI benefits. See, Warre v. Commissioner of 7 Social Security Admin., 439 F.3d 1001, 1006 (9th Cir. 2006); Odle 8 v. Heckler, 707 F.2d 439, 440 (9th Cir. 1983). 9 The ALJ repeatedly articulated a concern that Dr. Kuo s 10 opinions were not based on objective, clinical findings. In 11 reviewing the ALJ s decision, the Court itself may draw specific 12 and legitimate inferences from the ALJ's opinion. Magallanes v. 13 Bowen, 881 F.2d 747, 755 (9th Cir.1989). In light of the ALJ s 14 additional rejection of Plaintiff s subjective complaints, the 15 Court infers that the ALJ necessarily concluded that Dr. Kuo s 16 opinion was based on discredited subjective evidence. Where a 17 treating source s opinion is based largely on the Plaintiff s own 18 subjective description of his or her symptoms, and the ALJ has 19 discredited the Plaintiff s claim as to those subjective 20 symptoms, the ALJ may reject the treating source s opinion. Fair 21 v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989). 22 Finally, in putting weight on the consulting examiner s 23 assessment of Plaintiff s condition as malingering, and noting 24 that Dr. Kuo was an internist, the ALJ stated specific, 25 legitimate reasons for putting less weight on Dr. Kuo s opinion 26 concerning Plaintiff s mental capacity. More weight is generally 27 given to the opinion of a specialist about medical issues related 28 to his or her area of specialty than to the opinion of a source 41 1 who is not a specialist. See Holohan v. Massanari, 246 F.3d 1195, 2 1203 n. 2 (9th Cir. 2001); 20 C.F.R. §§ 416.927(d)(5), 3 404.1527(d)(5). This reasoning was specific and legitimate in the 4 circumstances of this case. 5 Plaintiff argues that the ALJ erred by failing to develop 6 the record by re-contacting Dr. Kuo to clarify the differences on 7 the questionnaires and to develop hand and arm limitations. 8 (Brief p. 9.) The duty to develop the record arises where the 9 record before the ALJ is ambiguous or inadequate to allow for 10 proper evaluation of the evidence. 20 C.F.R. §§ 404.1512(e) and 11 416.912(e); Mayes v. Massanari, 262 F.3d 963, 968 (9th Cir. 2001). 12 Here, the ALJ did not indicate that the record was inadequate; to 13 the contrary, the ALJ evaluated the evidence in the record and 14 implicitly determined that the record was sufficient to permit 15 the ALJ to evaluate Plaintiff s impairments and capacities. Thus, 16 the Court concludes that Plaintiff has not demonstrated that the 17 ALJ erred in failing to re-contact Dr. Kuo. 18 19 C. Opinion of Plaintiff s Surgeon Plaintiff argues that the ALJ erroneously relied on the 20 opinion of Plaintiff s surgeon as an opinion of a treating doctor 21 as to the absence of overall disability. 22 In concluding that Plaintiff s thrombocytopenia was no 23 longer a severe impairment, the ALJ stated in pertinent part: 24 25 26 27 Although the state agency medical consultants and a consultative examiner concluded that the claimant is is now capable of medium work (citations omitted), greater weight has been given to the treating physician who only restricted the claimant from heavy physical exertion for four to six weeks post-operatively following her splenectomy (citation omitted). 28 (A.R. 16.) 42 1 A treating source is defined by the regulations as follows: 2 3 4 5 6 7 8 9 10 11 12 13 Treating source means your own physician, psychologist, or other acceptable medical source who provides you, or has provided you, with medical treatment or evaluation and who has, or has had, an ongoing treatment relationship with you. Generally, we will consider that you have an ongoing treatment relationship with an acceptable medical source when the medical evidence establishes that you see, or have seen, the source with a frequency consistent with accepted medical practice for the type of treatment and/or evaluation required for your medical condition(s). We may consider an acceptable medical source who has treated or evaluated you only a few times or only after long intervals (e.g., twice a year) to be your treating source if the nature and frequency of the treatment or evaluation is typical for your condition(s). We will not consider an acceptable medical source to be your treating source if your relationship with the source is not based on your medical need for treatment or evaluation, but solely on your need to obtain a report in support of your claim for disability. In such a case, we will consider the acceptable medical source to be a nontreating source. 14 20 C.F.R. §§ 404.1502, 416.902. 15 Here, Dr. Ramos undertook a detailed evaluation of Plaintiff 16 before surgery, performed the surgery, and followed Plaintiff 17 thereafter until discharge. He provided medical evaluation and 18 treatment consistent with the frequency and extent of exposure 19 reasonably anticipated in connection with Plaintiff s surgery and 20 recovery. The Court concludes that the ALJ correctly relied on 21 Dr. Ramos as a treating source. 22 Further, it does not appear that the ALJ placed unwarranted 23 weight on the opinion or took it out of medical context. The ALJ 24 mentioned it in connection with his evaluation of the severity of 25 Plaintiff s thrombocytopenia, and thus considered it in 26 connection with Plaintiff s physical RFC. (A.R. 16.) In view of 27 the physical nature of the impairment which Dr. Ramos treated, 28 43 1 and considering his reference to heavy physical exertion 2 following surgery, the opinion of Dr. Ramos is reasonably 3 understood to refer to the Plaintiff s physical capacity after 4 the surgery. 5 6 D. Finding of Medical Improvement Plaintiff argues that because Plaintiff s complaints of 7 symptoms remained the same over time, and because Dr. Kuo s 8 diagnoses and assessments did not change over time, the ALJ s 9 finding that there had been a decrease in the medical severity of 10 Plaintiff s mental impairments as of April 1, 2005, was 11 unsupported. 12 Medical improvement is defined as any decrease in the 13 medical severity of [the claimant's] impairment(s) which was 14 present at the time of the most recent favorable medical decision 15 that [the claimant was] disabled or continued to be disabled.... 16 A determination that there has been a decrease in medical 17 severity must be based on changes (improvement) in the symptoms, 18 signs, or laboratory findings associated with [claimant's] 19 impairment(s). 20 C.F.R. § 416.994a(c); Warre v. Commissioner of 20 Social Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006). 21 As previously noted, the ALJ stated specific, legitimate 22 reasons, supported by substantial evidence, for placing little 23 weight on the opinions of treating physician Dr. Kuo. 24 In support of his finding, the ALJ contrasted the findings 25 at consulting examiner Dr. Barnes s psychiatric examination in 26 2003 (Plaintiff was sloppily dressed, in need of daily assistance 27 with dressing and bathing, was tearful, and described seeing her 28 deceased parents attempting to stab her and hearing voices that 44 1 said they wanted to kill her and that she was stupid) with the 2 report of consulting examiner Dr. Lessenger in March 2005 3 (Plaintiff was dressed casually, needed help bathing only 4 occasionally due to dizziness and fear of falling, did not cry, 5 and reported only vaguely hearing but not understanding voices 6 that were not there). (A.R. 17.) The record supports the ALJ s 7 commonsense comparison of the reports and findings on 8 examination. Plaintiff painstakingly parses the two mental status 9 examinations and interviews, but the overall evidence supports 10 the ALJ s conclusion concerning more mild findings. Plaintiff 11 characterizes the opinions of the consulting psychological 12 examiners and body of the medical evidence as supporting 13 disability, but the Court notes that the ALJ reviewed the medical 14 evidence of record and interpreted and evaluated it, concluding 15 to the contrary with legally sufficient reasoning and the support 16 of substantial evidence. 17 The ALJ also found that as of April 1, 2005, Plaintiff could 18 perform simple, routine, repetitive work at all exertional 19 levels. (A.R. 17.) The ALJ specifically relied on the opinion of 20 Dr. Lessenger that Plaintiff was malingering, having deliberately 21 chosen answers she knew were incorrect during the testing 22 process. (A.R. 17.) The ALJ concluded that Plaintiff s cognitive 23 and psychological functioning could not be assessed with any 24 confidence. (A.R. 17.) The ALJ noted that consequently, the state 25 agency medical consultants found that Plaintiff either had no 26 medically determinable mental impairment or that her mental 27 impairments were not severe. (Id.) This reasoning was specific 28 and legitimate. As previously noted, the ALJ stated specific, 45 1 legitimate reasons for rejecting Dr. Kuo s more limited 2 functional limitations. (A.R. 18.) 3 The Court likewise rejects Plaintiff s characterization of 4 the opinion evidence concerning Plaintiff s mental condition. 5 Although there were multiple opinions that might support a 6 conclusion that Plaintiff suffered more extreme functional 7 limitations than those assessed by the ALJ, that is not 8 determinative. It was for the ALJ to weigh the various opinions 9 in the first instance and to articulate the reasoning employed in 10 reaching the stated conclusions. Where, as here, the ALJ 11 proceeded according to legally correct standards and with the 12 support of substantial evidence in the record, the determination 13 of the ALJ will be upheld. It is not the province of the district 14 court to reweigh the factual and credibility determinations of 15 the ALJ de novo. Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 16 1999); Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995). 17 18 1. Opinion of Sharon Meckenstock, M.F.T. The ALJ also evaluated the other, more recent evidence 19 concerning Plaintiff s mental impairments. 20 The ALJ noted that in July 2006, Plaintiff sought services 21 upon suffering cultural shame over her daughter s removal from 22 the home. The ALJ expressly assigned little weight to the opinion 23 of Sharon Meckenstock that Plaintiff had major depressive 24 episode, recurrent, severe with psychotic and melancholic 25 features, and a GAF of 45. (A.R. 18.) The ALJ reasoned that 26 Meckenstock was not an acceptable medical source and had only 27 observed Plaintiff on one occasion when she made the assessment. 28 (A.R. 18.) 46 1 The fact that a medical opinion is from an acceptable 2 medical source is a factor that may justify giving that opinion 3 greater weight than an opinion from a medical source who is not 4 an acceptable medical source because acceptable medical sources 5 are the most qualified health care professionals. 20 C.F.R. §§ 6 404.1513(a), 416.913(a); Soc. Sec. Ruling 06-03p. For the 7 purposes of this case, acceptable medical sources include 8 licensed physicians and licensed or certified psychologists. 20 9 C.F.R. §§ 404.1513(a), 416.913(a). 10 The ALJ thus correctly observed that Meckenstock, whose only 11 certification appeared to be as a marriage and family therapist, 12 was not an acceptable source. Further, the record reflects that 13 she saw Plaintiff only once or twice at the time she completed 14 the initial assessment. The record thus substantially supports 15 the ALJ s implicit conclusion that Meckenstock had limited 16 knowledge of Plaintiff. The ALJ s reasoning in this regard was 17 specific and legitimate. 18 2. Opinions of Drs. Parayno and Lara 19 The ALJ noted the evaluations of Dr. Parayno in November 20 2006 and Dr. Lara in February 2007, but the ALJ stated that 21 neither psychiatrist expressed any opinion about Plaintiff s 22 mental limitations or gave her a GAF rating. (A.R. 18.) The 23 record bears out this observation. The ALJ engaged in specific, 24 legitimate reasoning in concluding that the notes of these 25 doctors did not provide good evidence of Plaintiff s mental 26 limitations or otherwise reflect an assessment of her 27 functioning. 28 ///// 47 1 2 E. Residual Functional Capacity Plaintiff argues that the ALJ erred in formulating 3 Plaintiff s RFC without considering all Plaintiff s impairments, 4 which in combination preclude her from working. She also 5 challenges the limitation to simple, repetitive tasks, and argues 6 that the ALJ was required to recontact Dr. Lessenger. 7 8 1. Combined Impairments Social Security regulations define residual functional 9 capacity as the "maximum degree to which the individual retains 10 the capacity for sustained performance of the physical-mental 11 requirements of jobs." Reddick v. Chater, 157 F.3d 715, 724 (9th 12 Cir. 1998) (citing 20 C.F.R. 404, Subpt. P, App. 2 § 200.00(c) 13 and Lester v. Chater, 81 F.3d 821, 833 (9th Cir. 1995)). The 14 Commissioner must evaluate the claimant's "ability to work on a 15 sustained basis." Id. (citing 20 C.F.R. § 404.1512(a)); Lester, 16 81 F.3d at 833); see 20 C.F.R. § 416.945. A regular and 17 continuing basis means eight hours a day, five days a week, or 18 an equivalent work schedule. S.S.R. 96-8p at 1, 2. The process 19 involves an assessment of physical abilities and then of the 20 nature and extent of physical limitations with respect to the 21 ability to engage in work activity on a regular and continuing 22 basis. 20 C.F.R. § 404.1545(b). 23 In assessing a claimant s RFC, it is necessary to consider 24 the limiting effects of all the claimants impairments, even those 25 that are not severe. 20 C.F.R. § 404.1545(a), (e); 20 C.F.R. § 26 416.945(a), (e); Soc. Sec. Ruling 96-8p at 4; Reddick v. Chater, 27 157 F. 3d 715, 724 (9th Cir. 1998). However, a condition need not 28 be considered in determining RFC if there is no medical opinion 48 1 suggesting that the condition contributes to the Plaintiff s 2 inability to perform work, or if such opinion has been properly 3 discredited. See, Goodenow-Boatsman v. Apfel, 2001 WL 253200, 4 *11 (N.D. Cal. 2001). 5 The ALJ noted the diagnosis of anemia and the pre-surgery 6 opinions of Dr. Buttan and state agency consultants that 7 Plaintiff could perform medium work. Contrary to Plaintiff s 8 assertion, Dr. Buttan concluded that perhaps Plaintiff could not 9 perform heavy work due to anemia. Thus, it was implicit that 10 Plaintiff could perform medium work. 11 Although Plaintiff argues that there is no showing that her 12 anemia improved, the record does not reflect a continuing 13 diagnosis of anemia after Plaintiff s recovery from surgery, any 14 treatment for any anemia, or any limitations arising from anemia 15 during that period. 16 Plaintiff also argues that the record reflects that 17 Plaintiff s breast disease, peptic ulcer disease, and continuing 18 immunological findings support Plaintiff s ongoing complaints of 19 fatigue, dizziness, and weakness. Plaintiff contends that the ALJ 20 ignored these objective findings. 21 Plaintiff reported breast pain which was followed by a 22 mammogram with benign results in November 2000. (A.R. 315, 317.) 23 Again, in OCtober 2001, a mammogram and ultrasound produced 24 benign results. (A.R. 306, 301, 299.) In April 2006, she was 25 diagnosed with fibrocystic breast disease upon her complaints of 26 bilateral breast pain for four to five days. Clinical signs were 27 symmetrical, fibrocystic disease on the breast, no dominant 28 masses, and minimal tenderness. (A.R. 415.) Mammography and an 49 1 ultrasound produced benign findings. (A.R. 413.) There are no 2 indications that any functional limitations resulted from any 3 condition of Plaintiff s breasts. 4 Peptic ulcer disease was diagnosed by Dr. Kuo first in 5 January 2006, and the diagnosis continued through September 14, 6 2006, at which time Dr. Kuo assessed History of peptic ulcer 7 disease. (A.R. 419, 403.) Again, Plaintiff has not pointed to 8 any evidence in the record that attributes any symptoms or 9 functional limitations to this condition. 10 With respect to the immunological findings, Plaintiff 11 asserts that laboratory tests reflecting positive ANA, hepatitis, 12 ESR, and ITP findings objectively support Plaintiff s ongoing 13 complaints of fatigue, dizziness, weakness, etc. (Brief p. 11, 14 ll. 10-14.) However, many of the test results relate to 2001 15 (A.R. 283-86) or 2002 (A.R. 258-59). Further, with respect to the 16 many pages of laboratory test results in the record, there is no 17 medical evidence explaining the medical significance of these 18 tests or relating them, causally or otherwise, to Plaintiff s 19 dizziness, fatigue, or other symptoms. 20 The Court therefore concludes that the ALJ did not 21 erroneously omit impairments from his RFC assessment. 22 2. Limitation to Simple, Repetitive Tasks 23 Plaintiff argues that no examining source s opinion supports 24 the ALJ s conclusion that Plaintiff was limited to simple, 25 repetitive tasks. However, the ALJ noted the opinions of the 26 state agency psychiatrists who found either that Plaintiff had no 27 medically determinable mental impairment or that her mental 28 impairments were not severe. (A.R. 17.) He cited Plaintiff s lack 50 1 of credibility with respect to her claim of marked difficulties 2 in activities of daily living, social functioning, and 3 maintaining concentration, persistence or pace; he then declined 4 to find marked or extreme limitation of such functioning, and 5 further noted Dr. Lessenger s opinion that Plaintiff s cognitive 6 or psychological functioning could not be assessed with any 7 confidence. (A.R. 17.) Considering Plaintiff s limitations with 8 respect to reading and writing, and in view of the range of 9 opinions and Plaintiff s history, it was within the ALJ s 10 province to reconcile the varied and inconsistent strands of 11 medical evidence and to conclude that Plaintiff was limited to 12 simple, routine, and repetitive work. 13 14 3. Duty to Recontact Dr. Lessenger Plaintiff argues that the ALJ had a duty to recontact Dr. 15 Lessenger because Dr. Lessenger s report was incomplete: it 16 omitted a functional assessment. 17 Although a functional assessment may be considered a key 18 element of a report, the present case departs from the general 19 rule. The ALJ considered Dr. Lessenger s report and obviously 20 placed considerable weight on it because of his acceptance of the 21 doctor s assessment of malingering and exaggeration. The ALJ 22 accepted Dr. Lessenger s opinion that because of Plaintiff s 23 dishonesty, it was not possible to assess Plaintiff s cognitive 24 or psychological functioning with any reliability. It would 25 therefore be pointless to recontact Dr. Lessenger, whose ultimate 26 opinion was dependent not simply upon consideration or 27 administration of any particular interview process or test, but 28 rather was based on Plaintiff s own dishonesty and misconduct. 51 1 XII. Disposition 2 Based on the foregoing, the Court concludes that the ALJ s 3 decision was supported by substantial evidence in the record as a 4 whole and was based on the application of correct legal 5 standards. 6 Accordingly, the Court AFFIRMS the administrative decision 7 of the Defendant Commissioner of Social Security and DENIES 8 Plaintiff s Social Security complaint. 9 The Clerk of the Court IS DIRECTED to enter judgment for 10 Defendant Michael J. Astrue, Commissioner of Social Security, 11 and against Plaintiff Namor Saesee. 12 13 14 15 16 17 IT IS SO ORDERED. Dated: 6i0kij February 19, 2010 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 52

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