(SS) Martinez v. Commissioner of Social Security, No. 1:2008cv01138 - Document 29 (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 Alisa A. Martinez 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 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 ALISA A. MARTINEZ, 11 Plaintiff, v. 12 MICHAEL J. ASTRUE, 13 COMMISSIONER OF SOCIAL SECURITY, 14 Defendant. 15 ) ) ) ) ) ) ) ) ) ) ) ) 1:08-cv-01138-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 ALISA A. MARTINEZ 16 17 Plaintiff is proceeding in forma pauperis and with counsel 18 with an action seeking judicial review of a final decision of the 19 Commissioner of Social Security (Commissioner) denying 20 Plaintiff s applications of September 24, 2004, and November 4, 21 2004, made pursuant to Titles II and XVI of the Social Security 22 Act, for Supplemental Security Income (SSI) benefits and 23 Disability Insurance benefits (DIB), in which she alleged that 24 she had been disabled since December 31, 2002, due to bipolar 25 condition and depression; Plaintiff later requested a closed 26 period of disability from December 31, 2002, through September 27 28, 2005. (A.R. 15, 94-95, 97-98, 326-28.) The parties have 28 consented to the jurisdiction of the United States Magistrate 1 1 Judge pursuant to 28 U.S.C. § 636(c)(1), and pursuant to the 2 order of Judge Lawrence J. O Neill filed on November 3, 2008, the 3 matter has been assigned to the Magistrate Judge to conduct all 4 further proceedings in this case, including the entry of final 5 judgment. 6 The decision under review is that of Social Security 7 Administration (SSA) Administrative Law Judge (ALJ) Richard A. 8 Say, dated March 22, 2008 (A.R. 15-27), rendered after a video 9 hearing held on February 22, 2008,1 at which Plaintiff appeared by 10 video and testified with the assistance of an attorney 11 representative. A vocational expert (VE) also testified. (A.R. 12 15, 348-70.) 13 The Appeals Council denied Plaintiff s request for review of 14 the ALJ s decision on June 10, 2008 (A.R. 5-7), and thereafter 15 Plaintiff filed the complaint in this Court on August 4, 2008. 16 Briefing commenced on June 12, 2009, and was completed with the 17 filing of Plaintiff s reply brief on September 18, 2009. The 18 matter has been submitted without oral argument to the Magistrate 19 Judge. 20 I. Jurisdiction 21 This Court has subject matter jurisdiction pursuant to 42 22 U.S.C. §§ 1383(c)(3) and 405(g), which provide that an applicant 23 suffering an adverse final determination of the Commissioner of 24 Social Security with respect to disability or SSI benefits after 25 a hearing may obtain judicial review by initiating a civil action 26 in the district court within sixty days of the mailing of the 27 28 1 Plaintiff s failure to appear at an earlier hearing was found to have been with good cause. (A.R. 15, 70-71, 342-47.) 2 1 notice of decision. Plaintiff timely filed her complaint on 2 August 4, 2008, less than sixty days after the mailing of the 3 notice of decision on or about June 10, 2008. 4 II. Standard and Scope of Review 5 Congress has provided a limited scope of judicial review of 6 the Commissioner's decision to deny benefits under the Act. In 7 reviewing findings of fact with respect to such determinations, 8 the Court must determine whether the decision of the Commissioner 9 is supported by substantial evidence. 42 U.S.C. § 405(g). 10 Substantial evidence means "more than a mere scintilla," 11 Richardson v. Perales, 402 U.S. 389, 402 (1971), but less than a 12 preponderance, Sorenson v. Weinberger, 514 F.2d 1112, 1119, n. 10 13 (9th Cir. 1975). It is "such relevant evidence as a reasonable 14 mind might accept as adequate to support a conclusion." 15 Richardson, 402 U.S. at 401. The Court must consider the record 16 as a whole, weighing both the evidence that supports and the 17 evidence that detracts from the Commissioner's conclusion; it may 18 not simply isolate a portion of evidence that supports the 19 decision. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 20 2006); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 21 It is immaterial that the evidence would support a finding 22 contrary to that reached by the Commissioner; the determination 23 of the Commissioner as to a factual matter will stand if 24 supported by substantial evidence because it is the 25 Commissioner s job, and not the Court s, to resolve conflicts in 26 the evidence. Sorenson v. Weinberger, 514 F.2d 1112, 1119 (9th 27 Cir. 1975). 28 In weighing the evidence and making findings, the 3 1 Commissioner must apply the proper legal standards. Burkhart v. 2 Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must 3 review the whole record and uphold the Commissioner's 4 determination that the claimant is not disabled if the 5 Commissioner applied the proper legal standards, and if the 6 Commissioner's findings are supported by substantial evidence. 7 See, Sanchez v. Secretary of Health and Human Services, 812 F.2d 8 509, 510 (9th Cir. 1987); Jones v. Heckler, 760 F.2d at 995. If 9 the Court concludes that the ALJ did not use the proper legal 10 standard, the matter will be remanded to permit application of 11 the appropriate standard. Cooper v. Bowen, 885 F.2d 557, 561 (9th 12 Cir. 1987). 13 14 15 III. Disability A. Legal Standards In order to qualify for benefits, a claimant must establish 16 that she is unable to engage in substantial gainful activity due 17 to a medically determinable physical or mental impairment which 18 has lasted or can be expected to last for a continuous period of 19 not less than twelve months. 42 U.S.C. §§ 416(i), 1382c(a)(3)(A). 20 A claimant must demonstrate a physical or mental impairment of 21 such severity that the claimant is not only unable to do the 22 claimant s previous work, but cannot, considering age, education, 23 and work experience, engage in any other kind of substantial 24 gainful work which exists in the national economy. 42 U.S.C. 25 1382c(a)(3)(B); Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th 26 Cir. 1989). The burden of establishing a disability is initially 27 on the claimant, who must prove that the claimant is unable to 28 return to his or her former type of work; the burden then shifts 4 1 to the Commissioner to identify other jobs that the claimant is 2 capable of performing considering the claimant's residual 3 functional capacity, as well as her age, education and last 4 fifteen years of work experience. Terry v. Sullivan, 903 F.2d 5 1273, 1275 (9th Cir. 1990). 6 The regulations provide that the ALJ must make specific 7 sequential determinations in the process of evaluating a 8 disability: 1) whether the applicant engaged in substantial 9 gainful activity since the alleged date of the onset of the 10 impairment, 20 C.F.R. § 404.1520;2 2) whether solely on the basis 11 of the medical evidence the claimed impairment is severe, that 12 is, of a magnitude sufficient to limit significantly the 13 individual s physical or mental ability to do basic work 14 activities, 20 C.F.R. § 404.1520(c); 3) whether solely on the 15 basis of medical evidence the impairment equals or exceeds in 16 severity certain impairments described in Appendix I of the 17 regulations, 20 C.F.R. § 404.1520(d); 4) whether the applicant 18 has sufficient residual functional capacity, defined as what an 19 individual can still do despite limitations, to perform the 20 applicant s past work, 20 C.F.R. §§ 404.1520(e), 404.1545(a); and 21 5) whether on the basis of the applicant s age, education, work 22 experience, and residual functional capacity, the applicant can 23 perform any other gainful and substantial work within the 24 economy, 20 C.F.R. § 404.1520(f). 25 With respect to SSI, the five-step evaluation process is 26 essentially the same. See 20 C.F.R. § 416.920. 27 28 2 All references are to the 2008 version of the Code of Federal Regulations unless otherwise noted. 5 1 2 B. The ALJ s Findings The ALJ found that Plaintiff last met the insured status 3 requirements of the Social Security Act on December 31, 2007. 4 (A.R. 17.) 5 The ALJ found that Plaintiff had the severe impairment of 6 depression, but Plaintiff s alleged personality disorder, post7 traumatic stress disorder (PTSD), bipolar disorder, and 8 amphetamine-induced psychotic disorder were not severe medically 9 determinable impairments because they did not endure for the 10 required continuous, twelve-month period. (A.R. 19-20.) Plaintiff 11 had no impairment or combination thereof that met or medically 12 equaled a listed impairment. (A.R. 20.) Plaintiff had no 13 exertional limitations and could perform at least a full range of 14 medium exertion level activities with non-exertional limitations 15 of understanding, remembering, and carrying out only simple, 16 routine tasks; having only superficial contact with the public 17 and with only a few co-workers; and working with, independently 18 of, but not in direct cooperation with, her co-workers. (A.R. 2019 25.) Plaintiff could not perform her past relevant work as an 20 administrative assistant or clerk, but because she was a younger 21 individual with a high school education and ability to 22 communicate in English, and considering her residual functional 23 capacity (RFC) and work experience, there were jobs that existed 24 in significant numbers in the national economy, including 25 assembly worker, production inspector, and checker. (A.R. 25-26.) 26 Accordingly, Plaintiff was not disabled at any time from the 27 alleged date of onset of December 31, 2002, through March 22, 28 2008, the date of decision. (A.R. 27.) 6 1 2 C. Plaintiff s Contentions Plaintiff argues that at step two, the ALJ failed to apply 3 legally correct standards and engaged in improper analysis of the 4 severity of Plaintiff s PTSD and bipolar disorder by finding that 5 they had not been shown to have existed for the requisite 6 duration. Plaintiff argues that because the ALJ considered those 7 conditions to have been the product of drug use, the ALJ s 8 analysis ran afoul of the holding in Bustamante v. Massanari, 262 9 F.3d 949, 954-55 (9th Cir. 2001), which precludes application at 10 step two of 20 C.F.R. §§ 404.1535(a), 416.935(a), relating to 11 whether or not drug addiction or alcoholism contributed to a 12 disability. 13 With respect to step four of the sequential analysis and the 14 formulation of Plaintiff s RFC, Plaintiff argues 1) the ALJ 15 failed to state clear and convincing reasons for rejecting 16 Plaintiff s testimony concerning her subjective complaints; 2) 17 the ALJ failed to state specific, germane reasons for rejecting 18 the testimony of Plaintiff s mother and stepfather concerning 19 Plaintiff s limited attention and concentration; and 3) the ALJ 20 failed adequately to explain the weight he gave to the opinion of 21 state agency psychiatrist Gene Kester, M.D., and for rejecting 22 Dr. Kester s limitations, which Plaintiff argues would preclude 23 employment as demonstrated by the vocational expert s testimony. 24 Plaintiff contends that at step five of the sequential 25 analysis, the Commissioner s conclusion that jobs were available 26 was not supported by substantial evidence because the 27 hypothetical question propounded to the VE was incomplete due to 28 its omission of an adequate reference to Plaintiff s deficits in 7 1 attention and concentration. 2 IV. The Medical Evidence 3 From December 2, 2003, through December 5, 2003, Plaintiff 4 was hospitalized at the Stanislaus Behavioral Health Center 5 (SBHC) of the Stanislaus County Department of Mental Health, 6 where Plaintiff was transferred after police had taken her to a 7 hospital for exhibiting psychotic symptoms, including making a 8 911 call because she believed she was being pursued by people who 9 had attached a bomb to her car. (A.R. 159-90, 159, 187.) 10 Plaintiff reported that for two months she had not taken the 11 medications she took for her mental illness; she then denied 12 being mentally ill or having been medicated, which her ex-husband 13 confirmed, but she reported that she had used amphetamine that 14 previous night. (A.R. 159, 187.) Her blood tested positive for 15 amphetamine (A.R. 189), but she was unable to provide 16 information regarding the frequency and extent of her drug use 17 (A.R. 188). Upon admission, the diagnosis was psychotic disorder, 18 not otherwise specified, amphetamine abuse, with diagnosis on 19 Axis II deferred, and a global assessment of functioning (GAF) of 20 30. (A.R. 187.) Plaintiff believed that neighbors had stolen 21 significant sums from her, but there were no hallucinations; 22 memory and concentration were intact, intellect was average, and 23 insight and judgment were poor. (A.R. 188.) Upon discharge, she 24 was alert, oriented, talkative, very cooperative, and exhibited 25 no confusion, disorientation, psychosis, depression, or suicidal, 26 homicidal, or violent behavior; she did not need any more 27 evaluation of medication. (A.R. 190.) The diagnosis at discharge 28 was substance-induced mood disorder, poly-substance dependence; 8 1 personality disorder, not otherwise specified; with a GAF of 65. 2 (Id.) Medications for various infections were prescribed. (A.R. 3 189.) 4 Plaintiff was hospitalized as a result of bronchitis and an 5 allergic reaction to medication in the middle of December 2003. 6 (A.R. 191-231, 197, 202, 216, 219.) 7 On July 11, 2004, Plaintiff visited the emergency room of 8 Doctors Medical Center for family stress, crying, and multiple 9 somatic complaints. (A.R. 232-47.) The impression was acute and 10 chronic depression. (A.R. 234.) Plaintiff drove herself to the 11 SBHC, where Plaintiff was admitted and then discharged on July 12 13, 2004. Plaintiff was confused, poorly groomed, and 13 disorganized, and she asserted that her twelve-year-old son had 14 been stolen. She was described as highly driven, grandiose, 15 psychotic, labile, and pressured, as well as delusional about 16 having been harassed. (Id., 239, 244-45.) It was stated that her 17 urine drug screen was negative (A. R. 244), but it was also noted 18 that she refused urine for urine toxicology and urinalysis tests 19 (A.R. 246). Plaintiff related a history of cocaine abuse without 20 use in sixteen years, and a history of alcohol dependence and a 21 DUI, but she said she last drank in April 2004. (A.R. 245.) It 22 was noted on discharge that her behavior was highly driven and 23 very impulsive with very broad gesturing and constant fidgeting; 24 her manner was cooperative, but she refused medication; her 25 insight and judgment were grossly impaired. Her mood was 26 irritable and dysphoric with a labile affect; her thought process 27 was tangential at best, with content centered about her delusions 28 and often loose with pressured speech that was overly loud and 9 1 emphatic. (A.R. 245-46.) However, it was also noted that by the 2 date of discharge, Plaintiff s mood and affect improved, her 3 thought processes were more organized, her mood stable and less 4 anxious, no agitation or distressed behaviors were observed, and 5 insight and judgment as well as coping skills for stressors were 6 better. Her condition was stable to be discharged from the 7 inpatient unit. No medications were prescribed, but Plaintiff was 8 to follow up with services. (A.R. 246.) 9 In the discharge summary, Tomonori Fukui, M.D., stated that 10 the diagnosis upon admission was bipolar I disorder, most recent 11 episode mixed, severe, with psychotic features, and history of 12 poly-substance dependence; diagnosis on Axis II was deferred; and 13 the GAF was 30. (A.R. 244, 247.) The diagnosis on discharge was 14 adjustment disorder, not otherwise specified, possible brief 15 psychotic disorder, and past history of poly-substance 16 dependence, with diagnosis on Axis II deferred, and a GAF of 56. 17 (Id. at 244.) 18 On September 23, 2004, Sandy Birdlebough, Ph.D., A.R.N.P., 19 evaluated Plaintiff on a crisis psych eval slot after Plaintiff 20 had contact with Acute Care. (A.R. 249-52, 274.) Plaintiff 21 reported three prior admissions to SBHC for evaluation and some 22 outpatient counseling for depression, but she had never been on 23 any medications. She cared for her five-year-old daughter, who 24 had undergone five open-heart surgeries. Plaintiff s speech was 25 rapid, her ideation was somewhat paranoid and grandiose, and her 26 thoughts were scattered and yet logical. Plaintiff reported poor 27 sleep and appetite. She exhibited intact long-term and short-term 28 memory (although scattered thoughts made it difficult to tell at 10 1 times), above-average intellect, and poor judgment; she could do 2 simple calculations but had some difficulty concentrating. (A.R. 3 250-51.) Dr. Birdlebough s impression was that Plaintiff had been 4 fairly high functioning up until losing her job in December 2003 5 and losing her son. She appeared to be quite manic and probably 6 had been prodromally manic for the last several years, 7 channeling all her energy into caring for a child born with 8 cardiac anomalies. (A.R. 251.) The diagnosis was bipolar 9 disorder, not otherwise specified -provisional diagnosis; 10 diagnosis deferred on Axis II; and the GAF was 42. Plaintiff 11 agreed to take medication and was given Abilify, with 12 instructions to return in one week for follow-up. (A.R. 251.) 13 On September 29, 2004, Dr. Birdlebough noted some lessening 14 of symptoms with less grandiosity and pressured speech; Abilify 15 was continued, and Lamictal was started. (A.R. 275.) Zoloft was 16 the subject of a consent form for depression medication in late 17 October 2004. (A.R. 278.) 18 In November 2004, Plaintiff reported to Yvana Iovino, M.D., 19 and Nicolae Oprescu, M.D., at the Yakima Valley Farmworkers 20 Clinic, that she was doing well, felt better after having started 21 treatment, had no significant complaints, and would like to go 22 back to school to go into nursing. Her medications included 23 Zoloft, Lamictal, and Abilify; Dr. Oprescu noted that her bipolar 24 disorder was apparently under control on multiple medicines. 25 (A.R. 254-56.) 26 In December 2004, Plaintiff attended group therapy twice. 27 (A.R. 281-82.) Dr. Birdlebough s progress note for December 29, 28 2004, stated that Plaintiff was doing well on current medications 11 1 with the only side-effect being some daytime drowsiness; moods 2 were stable; and she slept well, had no thoughts of self-harm, 3 and had no abnormal movements or complaints of stiffness. She was 4 stable on current meds with good mood and sleep. (A.R. 283.) 5 On January 5, 2005, Dr. Birdlebough reported that Plaintiff 6 had shown marked improvement in all areas, including affect, 7 concentration, memory, and overall functioning, since beginning 8 medication. She had also gained insight into the importance of 9 being on medication; she was sharing childcare and household 10 duties with her mother. The prognosis was good as long as 11 Plaintiff continued her medication and counseling. (A.R. 252.) 12 On January 5, 2005, state agency consultant Gene Kester, 13 M.D., completed a mental functional capacity assessment covering 14 July 2004 to the date of reporting, as well as a psychiatric 15 review technique. (A.R. 305-307, 308-21.) In the technique, Dr. 16 Kester concluded that an RFC assessment was necessary with 17 respect to Plaintiff s affective disorder, specifically, bipolar 18 I disorder. (A.R. 308, 311.) In part III of the technique, 19 entitled RATING OF FUNCTIONAL LIMITATIONS, and with respect to 20 the B criteria, Dr. Kester assessed mild restriction of 21 activities of daily living, and moderate difficulties in 22 maintaining social functioning and maintaining concentration, 23 persistence, or pace. (A.R. 318.) Dr. Kester concluded that 24 Plaintiff was moderately limited in the ability to carry out 25 detailed instructions, maintain attention and concentration for 26 extended periods, work in coordination with or proximity to 27 others without being distracted by them, and interact 28 appropriately with the general public. (A.R. 305-07.) With 12 1 respect to understanding and memory, Plaintiff exhibited no 2 significant impairment of memory even when in a hypomanic state. 3 With respect to sustained concentration and persistence, she had 4 somewhat limited concentration but could carry out routine tasks 5 on a routine, daily basis. She might be distracted by excess 6 stimulation until further stabilized on medications, and she 7 would work best with a limited number of coworkers, performing 8 relatively independent tasks; however, she could persist 9 throughout a daily/weekly schedule. With respect to social 10 interaction, she might have superficial contact with the public. 11 As to adaptation, she could travel, plan, avoid hazards, and 12 adapt to routine changes; she was intelligent and had a good work 13 history before her illness. (A.R. 307.) 14 Plaintiff experienced symptoms of near-syncope in January 15 2005 that were treated with Propranolol. (A.R. 258.) Plaintiff 16 attended another group therapy session and completed her goal17 setting group on January 24, 2005. (A.R. 284, 288.) 18 For Plaintiff s experiences of near-syncope, Clonazepam was 19 prescribed in March 2005 on the assumption that the symptoms 20 might be consistent with panic attacks, although there was a very 21 low possibility of arrhythmias. (A.R. 258, 261.) Plaintiff began 22 individual therapy on March 17, 2005, with Joyce Ruff-Delgado, 23 M.S., L.M.H.C., therapist. Plaintiff was given information on 24 bipolar disorder. (A.R. 289.) 25 On March 30, 2005, Rodolfo Trivisonno, M.D., reported a 26 change in the diagnosis to post-traumatic stress disorder, 27 neurotic depression, bipolar by history, amphetamine abuse in 28 current early remission, amphetamine-induced psychotic disorder 13 1 in remission, with diagnosis deferred on Axis II; the GAF was 60. 2 (A.R. 291.) The plan was to prevent substance abuse relapse, 3 control panic and psychotic symptoms, and continue with 4 medications. (A.R. 291.) On April 18, 2005, at a case staffing 5 meeting, the diagnosis of PTSD was reiterated. (A.R. 293.) 6 However, therapist Ruff-Delgado recorded a bipolar diagnosis on 7 April 19, 2005, noted Plaintiff s scores on self-tests, 8 including 7/12 and 18/27 on depression, 16/19 on PTSD, and 11/16 9 on anxiety, and further characterized the results on the OCD 10 self-test as endorsing contamination, hoarding, symmetry, 11 aggressive, and religious cleaning/washing compulsions. It was 12 noted that Plaintiff reported many symptoms associated with 13 possible diabetes, and she admitted that her diet was filled with 14 sugar, caffeine, and carbohydrates. Plaintiff also reported that 15 she had applied and interviewed for several positions recently 16 and was hoping to be called soon. (A.R. 294.) 17 On April 20, 2005, Dr. Trivisonno reiterated his changed 18 diagnosis of PTSD, etc., and noted that Plaintiff was oriented, 19 calmer, less depressed, and reported no psychotic symptoms and 20 good sleep with mild daytime sedation but no other side-effects. 21 She was cognitively improved. The GAF was 65. (A.R. 295.) Dr. 22 Trivisonno discontinued the Abilify because of an absence of 23 psychotic symptoms, and continued Lamictal for mood 24 stabilization, Zoloft for depression, and Clonazepam for anxiety 25 and insomnia. (Id.) Plaintiff was encouraged to develop realistic 26 expectations and to continue with therapy and relapse prevention. 27 (A.R. 295.) 28 In May 2005, Dr. Trivisonno reiterated his diagnosis without 14 1 change, assessed Plaintiff s GAF as 70, and noted that Plaintiff 2 was oriented, calmer, cooperative, well-groomed, with an affect 3 reflecting that she was feeling better; she was cognitively 4 improved and suffered no psychotic symptoms or mania. Medications 5 and education were continued. (A.R. 298.) On May 26, 2005, in a 6 visit for medication management, Dr. Trivisonno diagnosed PTSD, 7 chronic; neurotic depression; amphetamine abuse; and amphetamine8 induced psychotic disorder in remission, with no diagnosis on 9 Axis II; the GAF was 70. (A.R. 299.) Plaintiff was alert, fully 10 oriented, calm and cooperative, well groomed, and with a stable 11 mood reflecting that she felt better. She reported sleep 12 disturbed by worries concerning a custody battle with her ex13 husband and by her depression over marital abuse that triggered 14 her substance abuse. She was cognitively improved, with no 15 psychotic symptoms and no mania. Medications and education were 16 continued. (A.R. 299.) 17 In July 2005, Plaintiff was transferred to a new case 18 manager, who noted continuing problems with depression stemming 19 from her problems with children and prior relationships. The 20 diagnosis remained PTSD. (A.R. 302.) Plaintiff failed to appear 21 for case and medication management appointments in the late 22 spring and summer of 2005. (A.R. 296-97, 303-04.) 23 On August 24, 2005, state agency medical consultant James E. 24 Bailey, Ph.D., reviewed all the evidence in the file and Dr. 25 Kester s assessment of January 5, 2005, and affirmed Dr. Kester s 26 assessment. (A.R. 307, 318.) 27 V. Plaintiff s Testimony 28 At the hearing held on February 22, 2008, Plaintiff 15 1 testified that she was forty-one years old, a high school 2 graduate, and unmarried; she did in-home health support services 3 for 32.2 hours for her own daughter, and that activity had been 4 ongoing since 1999. (A.R. 352-53, 362-63.) Further, she worked 5 the Christmas season briefly for Toys R Us in 2005. (A.R. 352.) 6 Plaintiff lived with her two children, aged six and eight. She 7 could read and understand newspaper articles, write notes and 8 letters to people, and figure out what change she should receive 9 at the store when buying something. (A.R. 354.) She lost her job 10 in 2002, was first hospitalized in December 2003, was 11 hospitalized the second time in 2004, and last used drugs in 12 2005. (A.R. 357-58.) She testified that she was not using 13 amphetamines at the time of alleged onset (December 31, 2002), 14 but she also admitted that reports about amphetamine abuse were 15 not incorrect. (A.R. 355.) Before she lost her job she was in 16 counseling. (A.R. 358.) She could not have held down a forty-hour 17 a week job from 2002 through 2005 because she was very emotional; 18 she needed to take care of her daughter, lost her income, her 19 child s father lost his income, and Plaintiff had to sell her 20 home. (A.R. 361.) 21 VI. Lay Evidence 22 Plaintiff s mother completed an adult function report on 23 November 19, 2004 (A.R. 123-31), in which she reported spending 24 ten hours a day with Plaintiff, with whom she cooked and 25 completed normal activities. Plaintiff needed to be reminded 26 about doctor s appointments for herself and the children and to 27 take her medicine every day. Plaintiff prepared simple meals and 28 did cleaning and laundry, but Plaintiff had no energy; she hardly 16 1 ever went out except to feed the dogs. She walked and drove a car 2 but did not go out alone. She shopped monthly at the grocery 3 store; she had a problem concentrating and used cash. She walked 4 the kids and dogs with others weekly, went to the park, and had 5 no problems getting along with family, friends, neighbors, or 6 others. Plaintiff was irritable; she had a problem remembering 7 things she was supposed to do and could not concentrate on 8 paperwork. She could not pay attention for too long and did not 9 finish what she started. She could follow written and spoken 10 instructions very well, and got along well with bosses and 11 teachers, but not others. She had never been fired, did not 12 handle stress or changes in routine very well at all, and was 13 unusually afraid of being alone. (A.R. 123-31.) 14 Plaintiff s stepfather, Raymond R. Ortiz, completed an adult 15 function report on November 19, 2004, based on his having known 16 Plaintiff for thirteen years and talking with her. (A.R. 132-40.) 17 Plaintiff prepared breakfast for the children, clothed them, 18 bathed then at night, and took care of animals. She could no 19 longer work, do her finances, and take care of the home; her 20 sleep was interrupted at night, and she slept off and on during 21 the day. Plaintiff needed to be reminded to take her medicine. 22 She made simple meals a couple of times a week, lacked energy, 23 could do laundry and clean her room and the living room, but she 24 sometimes forgot to finish. She did not go out much and never 25 went out without someone with her; she shopped at the grocery 26 store monthly, and using a checkbook confused her, but her 27 ability to handle money had not changed. She walked the dogs and 28 walked with the children, went to the park, and had no problems 17 1 getting along with others. Her memory and concentration were 2 affected; she forgot and could not concentrate; she could pay 3 attention very little and did not get along with police or 4 landlords. She could not handle stress and did not handle changes 5 in routine well. She did not want to be alone going places. (Id.) 6 VII. Vocational Expert s Testimony 7 Daniel McKinney, a vocational expert, testified that he had 8 studied the vocational materials in the record; Plaintiff s past 9 relevant work as an administrative clerk was light, semi-skilled 10 work pursuant to the Dictionary of Occupational Titles (DOT). 11 (A.R. 364-65.) 12 McKinney testified that an individual who was forty-one 13 years old, with a high school education, the ability to read, 14 write, and use numbers, and Plaintiff s work history, and who 15 could perform at least medium exertional work, with some mental 16 impairments such that she was capable of understanding, 17 remembering, and carrying out simple, routine tasks, should have 18 only superficial interaction with the public and coworkers, and 19 probably be limited to working with only a few coworkers and 20 working relatively independently but not cooperatively with 21 others, could not perform Plaintiff s past, semi-skilled work. 22 (A.R. 365.) However, such a person could probably perform 23 unskilled occupations, typically in a production environment, 24 such as assembly, with 16,000 jobs consistent with the 25 hypothetical in the tri-state region of Washington, Oregon, and 26 Idaho at sedentary and light, and some expansion of that for 27 medium, and 600,000 in the national economy at sedentary and 28 light. (A.R. 365-66.) The DOT job titles in that category were 18 1 electronics workers, DOT number 726.687-010, and small products 2 assemblers, DOT number 739.687-030. (A.R. 366.) 3 McKinney continued his response to the initial question, 4 stating that a second category of jobs would be production 5 inspectors and checkers, with approximately 4,000 jobs consistent 6 with the hypothetical in the tri-state region, and approximately 7 140,000 in the national economy, with job title examples from 8 that prior category including inspector of small parts and 9 products, DOT number 733.687-042, and weld inspector, DOT number 10 724.685-014. (A.R. 366.) 11 When asked if those jobs were consistent with the DOT, the 12 VE replied affirmatively. (A.R. 366.) 13 The ALJ posed another hypothetical based on the testimony 14 today. (A.R. 366-67.) He directed the VE to assume that the 15 testimony was consistent with medical evidence in the record, and 16 asked if such an individual would be able to perform any of 17 Plaintiff s past work. The VE responded in the negative because 18 of the distractibility, inability to focus, and level of 19 dysfunction that she described. (A.R. 367.) 20 Plaintiff s counsel posed another hypothetical, positing an 21 individual with Plaintiff s age, education, past relevant work 22 experience, with significant interference in their ability to 23 maintain attention and concentration for extended periods and a 24 significant interference with their ability to carry out 25 detailed instructions, a significant interference with their 26 ability to work in coordination with or proximity to others 27 without being distracted by them, and a significant 28 interference in their ability to interact appropriately with the 19 1 general public. (A.R. 367.) The ALJ stated that we should define 2 what a significant interference is. (A.R. 368.) The following 3 colloquy occurred: 4 5 6 ATTY: Yeah. I just say just use the dictionary definition or the vocational definition of how significant interference with basic daily ac basic work activities in those areas. ALJ: Are those limits off of any of these forms in the file or? 7 8 9 10 11 BY ATTORNEY: Q. Yes. They re off of 12F, Your Honor. And significant interference is off of the Social Security Regulations and Rulings that say a moderate limitation is a severe impairment, and severe is defined as, you know, significant interference. A In my opinion, a person with that profile would not be able to maintain competitive employment. 12 (A.R. 368.) 13 14 15 16 VII. The ALJ s Analysis of the Severity of Plaintiff s Impairments A. Legal Standards At step two, the Commissioner considers if claimant has "an 17 impairment or combination of impairments which significantly 18 limits his physical or mental ability to do basic work 19 activities." 20 C.F.R. §§ 404.1520(c), 416.920(c). This is 20 referred to as the "severity" requirement and does not involve 21 consideration of the claimant's age, education, or work 22 experience. Id. The step-two inquiry is a de minimis screening 23 device to dispose of groundless claims. Bowen v. Yuckert, 482 24 U.S. 153-54 (1987). The Secretary is required to "consider the 25 combined effect of all of the individual's impairments without 26 regard to whether any such impairment, if considered separately, 27 would be of [sufficient medical] severity." 42 U.S.C. § 28 1382c(a)(3)(F). 20 1 Basic work activities include the abilities and aptitudes 2 necessary to do most jobs, such as physical functions of walking, 3 standing, sitting, lifting, pushing, pulling, reaching, carrying, 4 or handling; capacities for seeing, hearing, and speaking; 5 understanding, carrying out, and remembering simple instructions; 6 use of judgment; responding appropriately to supervision, co7 workers and usual work situations; and dealing with changes in a 8 routine work setting. 20 C.F.R. §§ 404.1521(b), 416.921(b). 9 An impairment or combination thereof is not severe when 10 medical evidence establishes only a slight abnormality or a 11 combination of slight abnormalities which would have no more than 12 a minimal effect on an individual's ability to work. An 13 impairment is not severe if it does not significantly limit a 14 claimant s physical or mental ability to do basic work 15 activities. 20 C.F.R. §§ 404.1521(a), 416.921(a); Soc. Sec. 16 Ruling 85-28; Smolen v. Chater, 80 F.3d 1273, 1289-90 (9th Cir. 17 1996). 18 An impairment must last or be expected to last at least 19 twelve continuous months. 20 C.F.R. §§ 404.1509, 416.909. 20 Further, the inability to work caused by the impairment must last 21 at least twelve continuous months. Barnhart v. Walton, 535 U.S. 22 212, 214-22 (2002). 23 24 B. The ALJ s Findings at Step Two The ALJ concluded that Plaintiff s depressive disorder was 25 Plaintiff s only severe, medically determinable impairment. (A.R. 26 20.) He reasoned: 27 28 The claimant s alleged personality disorder, post traumatic stress disorder (PTSD), bipolar disorder and amphetamine-induced psychotic disorder are not 21 1 2 3 4 5 6 7 8 9 10 11 12 13 severe medically determinable impairments as defined in the Social Security Act. Those conditions were of a relatively short duration, lasting less than the required 12 months continuous period, and they were no longer present after the claimant stopped the use of amphetamines. The claimant s alleged manic symptoms were later denied by the claimant once she was started taking medications and she stopped taking crank and amphetamines, leaving only some depressive symptoms. The claimant s allegations of former spousal abuse and likely post traumatic stress disorder symptoms were not indicated in the record to be continuing and they are not well substantiated in the record. There are no quantitative psychological test results in the record, other than clinical interview reports and a hospitalization for substance-induced mood disorder, indicating any treatment for any mental impairments prior to September 2004 and none after May 2005. However, looking at the evidence in the light most favorable tot he claimant, the undersigned finds the claimant to have a severe medically determinable impairment of a depressive disorder but no other finding of any other severe medically determinable physical or mental impairment. 14 (A.R. 20.) 15 16 C. Analysis The ALJ s conclusion that any personality disorder and 17 amphetamine-induced psychotic disorder and their effects did not 18 endure for the necessary twelve-month period is supported by 19 substantial evidence. Plaintiff experienced a single episode of 20 extreme symptoms that endured at most for several days, and this 21 prompted the diagnosis; however, the symptoms quickly ceased when 22 the drug use ceased. The diagnosis was not repeated except to be 23 noted as being in a state of remission. 24 With respect to the bipolar disorder, a diagnosis of bipolar 25 disorder appeared on Plaintiff s hospital visit in July 2004, but 26 upon discharge it had been revised to adjustment disorder, not 27 otherwise specified. It was Dr. Birdlebough who provisionally 28 diagnosed bipolar disorder in September 2004, and began giving 22 1 Plaintiff medication for it. However, she treated Plaintiff for 2 multiple conditions, including depression. By March 2005, Dr. 3 Trivisonno had changed the diagnosis to PTSD, depression, and 4 amphetamine-induced psychotic disorder; Plaintiff s treatment was 5 modified to eliminate medicines for psychotic symptoms, but to 6 continue treatment for depression and for mood stabilization. 7 The record also supports the ALJ s finding that Plaintiff 8 had denied having continuing manic-type symptoms, and that 9 depressive symptoms remained. 10 Thus, substantial evidence supported the ALJ s conclusion 11 that any bipolar disorder and its effects did not endure for the 12 requisite twelve-month period. 13 As to Plaintiff s PTSD, Dr. Trevisonno s diagnosis came in 14 March 2005. The record thus supports the ALJ s finding concerning 15 the duration of Plaintiff s PTSD. As the ALJ specifically noted, 16 there were no quantitative psychological tests results in the 17 record indicating treatment for mental impairments before 18 September 2004 or after May 2005. Likewise, as the ALJ noted, 19 there were only limited references to Plaintiff s alleged former 20 spousal abuse. 21 The Court therefore concludes that the ALJ s analysis of the 22 severity of Plaintiff s mental impairments proceeded according to 23 correct legal standards and was supported by substantial 24 evidence. 25 26 D. Consideration of Drug Abuse It is within this context that the Court addresses 27 Plaintiff s contention that the ALJ erred in considering 28 Plaintiff s non-severe impairments to have been the product of 23 1 drug use. Plaintiff relies on Bustamante v. Massanari, 262 F.3d 2 949, 954-55 (9th Cir. 2001), which precludes application at step 3 two of 20 C.F.R. §§ 404.1535(a), 416.935(a), relating to whether 4 or not drug addiction or alcoholism contributed to a disability. 5 These regulations relate to statutory provisions which render a 6 claimant ineligible for SSI or DIB if drug and/or alcohol abuse 7 are a material factor in a finding of disability. The court in 8 Bustamante v. Massanari addressed the appropriate way to apply 9 these regulations and concluded that it was improper to apply 10 them at step two, and that Congress had intended that the 11 consideration occur only after an impairment had already been 12 found, at later stages of the sequential analysis, to result in a 13 disability. 14 Here, as the foregoing analysis demonstrates, the ALJ was 15 engaging in a different analysis. The ALJ was assessing the 16 duration of various conditions and their effects in order to set 17 forth his reasoning and to articulate required findings 18 concerning the severity and duration of Plaintiff s various 19 impairments. The ALJ was not engaging in a prohibited truncation 20 of analysis with respect to conditions that were otherwise 21 disabling. 22 Accordingly, the Court rejects Plaintiff s arguments 23 concerning the ALJ s analysis at step two. 24 VIII. Credibility Findings 25 The ALJ found that although Plaintiff s medically 26 determinable impairment could reasonably have been expected to 27 produce the alleged symptoms, Plaintiff s statements concerning 28 the intensity, persistence, and limiting effects of the symptoms 24 1 were not credible to the extent that they were inconsistent with 2 the RFC adopted by the ALJ. (A.R. 23.) 3 Plaintiff argues that the ALJ failed to state clear and 4 convincing reasons for rejecting the extent of Plaintiff s 5 subjective complaints of severe highs and lows, panic, anxiety, 6 depression, and poor concentration. 7 8 A. Legal Standards It is established that unless there is affirmative evidence 9 that the applicant is malingering, then where the record includes 10 objective medical evidence establishing that the claimant suffers 11 from an impairment that could reasonably produce the symptoms of 12 which the applicant complains, an adverse credibility finding 13 must be based on clear and convincing reasons. Carmickle v. 14 Commissioner, Social Security Administration,, 533 F.3d 1155, 15 1160 (9th Cir. 2008). In Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 16 2007), the court summarized the pertinent standards for 17 evaluating the sufficiency of an ALJ s reasoning in rejecting a 18 claimant s subjective complaints: 19 20 21 22 23 24 25 26 27 28 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. 25 1 11 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. 12 Additional factors to be considered in weighing credibility 2 3 4 5 6 7 8 9 10 13 include the location, duration, frequency, and intensity of the 14 claimant s pain or other symptoms; factors that precipitate and 15 aggravate the symptoms; the type, dosage, effectiveness, and side 16 effects of any medication the claimant takes or has taken to 17 alleviate the symptoms; treatment, other than medication, the 18 person receives or has received for relief of the symptoms; any 19 measures other than treatment the claimant uses or has used to 20 relieve the symptoms; and any other factors concerning the 21 claimant s functional limitations and restrictions due to pain or 22 other symptoms. 20 C.F.R. §§ 404.1529, 416.929; S.S.R. 96-7p. 23 24 B. The ALJ s Reasoning The ALJ noted Plaintiff s inconsistent testimony concerning 25 whether or not she had been using amphetamines or other illicit 26 drugs at the time of the alleged onset date of disability, and 27 her admission that she had worked for income from the state and 28 during the 2005 Christmas season. (A.R. 22.) The ALJ also noted 26 1 Plaintiff s failure to provide any records or information that 2 would enable procurement of records of treatment she allegedly 3 received before her alleged onset date. (A.R. 24.) 4 Included in the factors that an ALJ may consider in weighing 5 a claimant s credibility are the claimant s reputation for 6 truthfulness; inconsistencies either in the claimant s testimony 7 or between the claimant s testimony and the claimant s conduct, 8 daily activities, or work record; and testimony from physicians 9 and third parties concerning the nature, severity, and effect of 10 the symptoms of which the claimant complains. Thomas v. Barnhart, 11 278 F.3d 947, 958-59 (9th Cir. 2002). The ALJ may consider whether 12 the Plaintiff s testimony is believable or not. Verduzco v. 13 Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999). 14 Here, the ALJ s reliance on the basic inconsistences in the 15 evidence was supported by the record and was clear and convincing 16 in force. 17 The ALJ detailed Plaintiff s testimony concerning inability 18 to work because of being too emotional, financial problems, 19 relationship problems, illness of a daughter, and identity theft. 20 (A.R. 23.) The ALJ noted the allegations made in Plaintiff s 21 application for benefits that work-like activities were precluded 22 because of worsening depression, bipolar disorder, medications, 23 stress, and having two disabled daughters. (A.R. 23, 97-98.) The 24 ALJ noted Plaintiff s reported activities of daily living, 25 including caring for her two young daughters and for her own 26 personal needs, and performing household chores such as cooking 27 meals with several courses. (A.R. 23, 116-17.) The ALJ mentioned 28 Plaintiff s alleged difficulty sleeping, need for reminders for 27 1 medication and appointments, inability to go out alone due to 2 side-effects of medications, report of becoming frustrated while 3 driving, need for motivation to complete tasks, and memory and 4 concentration difficulties. (A.R. 23, 117-20.) The ALJ also noted 5 that on her appeal questionnaires, Plaintiff reported that her 6 bipolar disorder was causing her to have severe highs and lows 7 and to experience anxiety, panic, depression, fainting spells, 8 and poor concentration, but she was still capable of caring for 9 her own needs. (A.R. 23, 144-58, 144, 148, 151, 155.) The ALJ 10 then stated his finding that Plaintiff s subjective complaints 11 were incredible to the extent inconsistent with the RFC assessed 12 by the ALJ. (A.R. 23.) 13 The ALJ then articulated various reasons for his findings. 14 He stated that the record did not support a conclusion that 15 Plaintiff had more than mild to moderate mental impairment 16 symptoms since her alleged onset date, and most of those symptoms 17 lasted no longer than a few days. (A.R. 24.) He noted that the 18 medical records did not support her claim of having been too 19 emotional to work and having difficulty leaving the house alone. 20 (A.R. 24.) The ALJ noted the paucity of documentation of any 21 episodes of severe limitation except during two very brief 22 hospitalizations. (A.R. 23.) He referred to the substantial 23 improvement noted by Dr. Birdlebough within a single week after 24 Plaintiff s initial report, the course of marked improvement in 25 all areas noted three months later, Plaintiff s own reports to 26 her primary care physician in November 2004 that she had no 27 significant complaints and felt better after starting treatment, 28 and her appropriate appearance upon examination. (A.R. 23.) The 28 1 ALJ focused on the opinions of acceptable medical sources, such 2 as Dr. Trivisonno, a psychiatrist (as contrasted with Joyce Ruff3 Delgado, LMHC, who was not an acceptable medical source), and 4 reviewed the longitudinal GAF scores, interpreting the evidence 5 as reflecting severe symptoms that were only short-lived or 6 subjectively based and thus overrated. (A.R. 23-24.) The ALJ 7 noted that within months, Plaintiff improved to mild 8 symptomatology, reaching a GAF of 70, indicating some mild 9 symptoms and if one point higher, would indicate that symptoms, 10 if present at all, would be transient and expected reactions to 11 psychosocial stressors with no more than sight impairment in 12 social, occupational and school functioning. (A.R. 24.) The ALJ 13 stated that most of the medical opinions regarding Plaintiff s 14 functioning level indicated only mild symptoms, which would 15 equate to generally functioning well. (A.R. 24.) 16 As the previous summary of the medical evidence reveals, 17 this reasoning was supported by the record. Further, it was clear 18 and convincing. Although the inconsistency of objective findings 19 with subjective claims may not be the sole reason for rejecting 20 subjective complaints of pain, Light v. Chater, 119 F.3d 789, 792 21 (9th Cir. 1997), it is one factor which may be considered with 22 others, Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004); 23 Morgan v. Commissioner 169 F.3d 595, 600 (9th Cir. 1999). Here, 24 the ALJ s evaluation of Plaintiff s subjective claims found 25 strong support in the medical record. 26 In rejecting Plaintiff s claim that she was too emotional to 27 work and was having trouble leaving the house alone, the ALJ 28 noted that Plaintiff had managed to maintain a home for her two 29 1 young children and care for them, including receiving payments 2 from the state for care. (A.R. 24.) The ALJ also noted 3 Plaintiff s report in April 2005 that she had applied and 4 interviewed for positions. (A.R. 24.) A claimant s ability to 5 engage in activities of daily living to the extent that he or she 6 spends a substantial part of his day engaged in pursuits 7 involving the performance of physical functions that are 8 transferable to the work setting is relevant; a specific finding 9 as to this fact may be sufficient to discredit a claimant s 10 allegations. Morgan v. Commissioner of Social Sec. Admin., 169 11 F.3d 595, 600 (9th Cir. 1999); Thomas v. Barnhart, 278 F.3d 947, 12 959 (9th Cir. 2002). In Curry v. Sullivan, 925 F.2d 1127, 1130 (9th 13 Cir. 1990), the court specifically concluded that an ability to 14 take care of one s personal needs, prepare easy meals, do light 15 housework, and shop for some groceries may be seen as 16 inconsistent with the presence of a condition that would preclude 17 all work activity (citing Fair v. Bowen, 885 F.2d 597, 604 (9th 18 Cir. 1989). 19 Here, in light of Plaintiff s long history of functioning 20 sufficiently well to care for her disabled children and to 21 collect income for her care-taking activities, the ALJ s 22 reasoning was clear and convincing. 23 Accordingly, the Court concludes that the ALJ cited 24 multiple, clear and convincing reasons for rejecting Plaintiff s 25 subjective complaints regarding the intensity, duration, and 26 limiting effects of her symptoms, and that the ALJ s reasons were 27 properly supported by the record and sufficiently specific to 28 allow this Court to conclude that the ALJ rejected the claimant's 30 1 testimony on permissible grounds and did not arbitrarily 2 discredit Plaintiff s testimony. 3 IX. Lay Evidence 4 Plaintiff argues that the ALJ failed to state specific 5 reasons germane to each witness in rejecting the statements of 6 Plaintiff s mother and stepfather. 7 The ALJ stated the following: 8 In addition to the claimant s testimony and application and appeal statements, the record also contains the written questionnaires completed in November 2004 by the claimant s mother and stepfather. The claimant s mother, Lupe Martinez, stated that when the claimant first came to live with her, the claimant did not sleep but she was doing better. Mrs. Martinez stated the claimant had no problems caring for her personal needs or in taking care of her daughters needs but she daily reminded the claimant to take her medications. She noted the claimant rarely left the home and never left alone. Specifically, she noted the claimant to be irritable, to have memory attention and concentration difficulties and to not handle stress or change well. The claimant s step-father, Raymond Ortiz, noted essentially the same observations as the claimant s mother. (Citation omitted.) 9 10 11 12 13 14 15 16 17 18 19 20 The undersigned has carefully considered the statements from the claimant s mother and stepfather and give (sic) some weight relative to their account of their observations of the claimant but not to any conclusions reached from those observations because they were not provided by medically trained personnel; they are based on the claimant s subjective complaints; and they are inconsistent with the record as a whole. 21 (A.R. 24-25.) 22 Lay witnesses, such as friends or family members in a 23 position to observe a claimant s symptoms and daily activities, 24 are competent to testify to a claimant s condition; the 25 Commissioner will consider observations by non-medical sources as 26 to how an impairment affects a claimant s ability to work. 27 Dodrill v. Shalala, 12 F.3d 915, 918-19 (9th Cir. 1993). An ALJ 28 cannot discount testimony from lay witnesses without articulating 31 1 specific reasons for doing so that are germane to each witness. 2 Id. at 919. It is appropriate for an ALJ to rely on medical 3 evidence in rejecting inconsistent testimony. Lewis v. Apfel, 236 4 F.3d 503, 511-12 (9th Cir. 2001); Thomas v. Barnhart, 278 F.3d 5 947, 958-59 (9th Cir. 2002). It is permissible for an ALJ who has 6 rejected a claimant s subjective complaints to reject similar 7 evidence from third-party lay witnesses that is subject to the 8 same reasoning. Valentine v. Commissioner of the Soc. Sec. 9 Admin., 574 F.3d 685, 693-94 (9th Cir. 2009). 10 Here, the ALJ stated germane reasons concerning 11 inconsistency with the record as a whole and the evidence s being 12 based on the claimant s subjective complaints. The Court thus 13 rejects Plaintiff s challenges based on the ALJ s reasoning 14 concerning the lay evidence. 15 X. The ALJ s Reasoning concerning Dr. Kester s Opinion 16 The ALJ referred to Dr. Kester s opinion somewhat obliquely 17 in the course of addressing the medical opinion evidence. The ALJ 18 qualified and expressly gave significant weight to the opinions 19 of the treating psychiatrist and psychologist, Drs. Trivisonno 20 and Birdlebough, as qualified. (A.R. 25.) The ALJ concluded that 21 the import of the qualified opinions was that Plaintiff either 22 never had a serious functional limitation, or had such a 23 limitation for only a very limited time period. (A.R. 25.) The 24 ALJ then stated: 25 26 The state agency medical consultant opinion was reasonable based on the available evidence at the time of the opinion and is thus given limited weight based on the medical evidence produced and received thereafter. 27 (A.R. 25.) 28 32 1 The Court notes that the ALJ had previously set forth the 2 medical evidence in substantial detail and had recounted 3 significant medical history, including that which arguably 4 postdated Dr. Kester s opinion, including Plaintiff s marked 5 improvement in all areas since starting on medication, 6 Plaintiff s improving GAF assessments, Dr. Trivisonno s modified 7 diagnosis, and Plaintiff s reports in April 2005 of being less 8 depressed and having no manic, delusional, hallucinatory, or 9 psychotic symptoms. (A.R. 18-20.) Thus, the ALJ in effect had 10 noted that Plaintiff s symptoms had only improved after Dr. 11 Kester rendered his opinion. 12 The Court further notes that in formulating Plaintiff s RFC, 13 the ALJ s RFC closely tracked Dr. Kester s opinion of mild 14 restriction in activities of daily living (A.R. 21, 318), 15 moderate difficulties in social functioning that might cause 16 difficulties with her ability to work closely with others (A.R. 17 21, 306), and moderate difficulties in concentration, 18 persistence, or pace but an ability to perform uncomplicated 19 tasks (A.R. 21, 318, 305-06). He also concluded that Plaintiff s 20 depressive disorder would cause some problems in working closely 21 with others and in performing more than simple, uncomplicated 22 tasks on a regular basis. (A.R. 25, 305.) 23 Plaintiff argues that the ALJ rejected the limitations 24 identified by Dr. Kester but failed to explain the weight given 25 to Dr. Kester s opinion. However, as noted above, the ALJ largely 26 adopted Dr. Kester s opinion and expressly gave it weight, but 27 considered it qualified by the later medical evidence, which 28 reflected improved symptoms. The ALJ articulated a specific, 33 1 legitimate reason for giving the opinion limited weight, namely, 2 its reasonableness based on the other, contemporaneous medical 3 evidence. Further, contrary to Plaintiff s assertion, the ALJ did 4 point out inconsistencies between Dr. Kester s assessment and the 5 later evidence, which reflected milder symptoms and signs. 6 The Court concludes that the ALJ s reasoning concerning Dr. 7 Kester s opinion was adequately set forth. 8 XI. Vocational Evidence at Step Five 9 Plaintiff argues that the hypothetical to the VE omitted 10 limitations that Dr. Kester had assessed with respect to 11 concentration, persistence, and pace. The VE testified that there 12 were jobs for one who could perform at least medium exertional 13 work; understand, remember, and carry out simple, routine tasks; 14 and should have only superficial interaction with the public and 15 coworkers and probably be limited to working with only a few 16 coworkers while working relatively independently, not 17 cooperatively, with others. (A.R. 365-66.) However, when 18 Plaintiff s counsel restated the limitations to include a 19 significant interference with the ability to maintain attention 20 and concentration for extended periods, carry out detailed 21 instructions, work in coordination with or proximity to others 22 without being distracted, and interact appropriately with the 23 general public, the expert testified that such a person could not 24 maintain competitive employment. (A.R. 367-68.) These 25 significant limitations posited by Plaintiff s counsel were 26 apparently based on Dr. Kester s assessments that Plaintiff was 27 Moderately Limited in this regard. (A.R. 305-07.) Dr. Kester 28 had marked Moderately Limited, and the other choices of ratable 34 1 limitations were Not Significantly Limited, and Markedly 2 Limited. (A.R. 305-06, 368.) It thus appears that there were 3 multiple categories of limitations that were beyond 4 insignificant, but no category expressly labeled Significant. 5 The VE testified that for one with the overall limitations 6 endorsed by Dr. Kester, there were jobs. Contrary to the 7 characterization of the opinion evidence set forth by Plaintiff s 8 counsel, Dr. Kester expressly qualified the checks in the boxes 9 by specifying further information in the section designed for 10 elaborations on the capacities after the summary conclusions had 11 been completed. (A.R. 307.) Dr. Kester stated that Plaintiff had 12 only somewhat limited concentration but had the ability to 13 perform simple, routine tasks routinely, and the ability to 14 persist daily and weekly. (A.R. 307.) He concluded that she might 15 be distracted until further stabilized on medication; she was not 16 precluded from working with others but rather would work best 17 with a limited number of coworkers performing relatively 18 independent tasks. (A.R. 307.) Any limitations were only 19 moderate at most. (A.R. 305-07.) 20 The Court notes that it has been held that a hypothetical 21 question concerning an expert s limitation to simple, routine or 22 repetitive tasks sufficiently captures even a moderate limitation 23 of concentration, persistence, or pace noted by the expert who 24 has opined that the claimant retains the ability to perform 25 simple, routine or repetitive tasks. Stubbs-Danielson v. Astrue, 26 539 F.3d 1169, 1173-75 (9th Cir. 2008). 27 Further, to the extent that medical evidence is 28 inconsistent, conflicting, or ambiguous, it is the responsibility 35 1 of the ALJ to resolve any conflicts and ambiguity. Morgan v. 2 Commissioner, 169 F.3d 595, 603 (9th Cir. 1999). Because the ALJ 3 has authority to interpret ambiguous medical opinions, Matthews 4 v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993), the Court must 5 defer to the ALJ s decision. 6 Here, the ALJ appropriately interpreted the totality of Dr. 7 Kester s opinion. The ALJ s hypothetical question included 8 accurate statements of the limitations found by Dr. Kester and 9 accepted by the ALJ. The Court concludes that the ALJ 10 appropriately interpreted and weighed the medical evidence and 11 concluded on the basis of substantial evidence that for one with 12 Plaintiff s RFC and other attributes, sufficient jobs existed. 13 XII. Disposition 14 Based on the foregoing, the Court concludes that the ALJ s 15 decision was supported by substantial evidence in the record as a 16 whole and was based on the application of correct legal 17 standards. 18 Accordingly, the Court AFFIRMS the administrative decision 19 of the Defendant Commissioner of Social Security and DENIES 20 Plaintiff s Social Security complaint. 21 The Clerk of the Court IS DIRECTED to enter judgment for 22 Defendant Michael J. Astrue, Commissioner of Social Security, 23 and against Plaintiff Alisa A. Martinez. 24 25 IT IS SO ORDERED. Dated: 6i0kij February 19, 2010 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 26 27 28 36
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