(SS) Petitt v. Commissioner of Social Security, No. 1:2008cv01934 - Document 15 (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 Linda P. Petitt signed by Magistrate Judge Gary S. Austin on 3/2/2010. 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 LINDA P. PETITT, 10 Plaintiff, 11 v. 12 MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL 13 SECURITY, 14 15 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) 1:08-cv-01934-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 LINDA P. PETTIT 16 Plaintiff is proceeding with counsel with an action seeking 17 judicial review of a final decision of the Commissioner of Social 18 Security (Commissioner) denying Plaintiff s application, which 19 was protectively filed on November 16, 2005, and made pursuant to 20 Title II of the Social Security Act, for a period of disability 21 and disability insurance benefits (DIB), and in which she alleged 22 she had been disabled since July 8, 2000, due to diabetes, foot 23 problems, enlarged heart, high blood pressure, anxiety, and upper 24 GI problems, causing pain, distraction, and inability to get 25 around and stand for long periods. (A.R. 9, 108-110, 108, 121, 26 125.) The parties have consented to the jurisdiction of the 27 United States Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1), 28 1 1 manifesting their consent in writings signed by the parties 2 authorized representatives and filed on behalf of Plaintiff on 3 December 16, 2008, and on behalf of Defendant on January 9, 2009. 4 Thus, the matter is assigned to the Magistrate Judge to conduct 5 all further proceedings in this case, including entry of final 6 judgment. 7 The decision under review is that of Social Security 8 Administration (SSA) Administrative Law Judge (ALJ) Christopher 9 Larsen, dated September 3, 2008 (A.R. 9-15), rendered after a 10 hearing held on June 30, 2008, at which Plaintiff appeared and 11 testified with the assistance of an attorney (A.R. 16-56). 12 Plaintiff s daughter, Christina Renee Petitt, and Thomas 13 Dashlette, a vocational expert (VE), also testified. (A.R. 5314 55.) 15 The Appeals Council denied Plaintiff s request for review of 16 the ALJ s decision on October 29, 2008 (A.R. 1-3), and thereafter 17 Plaintiff filed the complaint in this Court on December 16, 2008. 18 Briefing commenced on July 30, 2009, and was completed with the 19 filing of Plaintiff s reply brief on September 15, 2009. The 20 matter has been submitted without oral argument to the Magistrate 21 Judge. 22 I. Jurisdiction 23 The Court has subject matter jurisdiction pursuant to 42 24 U.S.C. § 405(g), which provides that individuals may obtain 25 judicial review of a final decision of the Commissioner of Social 26 Security by initiating a civil action in the district court 27 within sixty days of the mailing of the notice of decision. 28 Plaintiff timely filed her complaint on December 16, 2008, less 2 1 than sixty days after the mailing of the notice of decision on or 2 about October 29, 2008. 3 II. Standard and Scope of Review 4 Congress has provided a limited scope of judicial review of 5 the Commissioner's decision to deny benefits under the Act. In 6 reviewing findings of fact with respect to such determinations, 7 the Court must determine whether the decision of the Commissioner 8 is supported by substantial evidence. 42 U.S.C. § 405(g). 9 Substantial evidence means "more than a mere scintilla," 10 Richardson v. Perales, 402 U.S. 389, 402 (1971), but less than a 11 preponderance, Sorenson v. Weinberger, 514 F.2d 1112, 1119, n. 10 12 (9th Cir. 1975). It is "such relevant evidence as a reasonable 13 mind might accept as adequate to support a conclusion." 14 Richardson, 402 U.S. at 401. The Court must consider the record 15 as a whole, weighing both the evidence that supports and the 16 evidence that detracts from the Commissioner's conclusion; it may 17 not simply isolate a portion of evidence that supports the 18 decision. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 19 2006); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 20 It is immaterial that the evidence would support a finding 21 contrary to that reached by the Commissioner; the determination 22 of the Commissioner as to a factual matter will stand if 23 supported by substantial evidence because it is the 24 Commissioner s job, and not the Court s, to resolve conflicts in 25 the evidence. Sorenson v. Weinberger, 514 F.2d 1112, 1119 (9th 26 Cir. 1975). 27 In weighing the evidence and making findings, the 28 Commissioner must apply the proper legal standards. Burkhart v. 3 1 Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must 2 review the whole record and uphold the Commissioner's 3 determination that the claimant is not disabled if the 4 Commissioner applied the proper legal standards, and if the 5 Commissioner's findings are supported by substantial evidence. 6 See, Sanchez v. Secretary of Health and Human Services, 812 F.2d 7 509, 510 (9th Cir. 1987); Jones v. Heckler, 760 F.2d at 995. If 8 the Court concludes that the ALJ did not use the proper legal 9 standard, the matter will be remanded to permit application of 10 the appropriate standard. Cooper v. Bowen, 885 F.2d 557, 561 (9th 11 Cir. 1987). 12 13 14 III. Disability A. Legal Standards In order to qualify for benefits, a claimant must establish 15 that she is unable to engage in substantial gainful activity due 16 to a medically determinable physical or mental impairment which 17 has lasted or can be expected to last for a continuous period of 18 not less than twelve months. 42 U.S.C. §§ 416(i), 1382c(a)(3)(A). 19 A claimant must demonstrate a physical or mental impairment of 20 such severity that the claimant is not only unable to do the 21 claimant s previous work, but cannot, considering age, education, 22 and work experience, engage in any other kind of substantial 23 gainful work which exists in the national economy. 42 U.S.C. 24 1382c(a)(3)(B); Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th 25 Cir. 1989). The burden of establishing a disability is initially 26 on the claimant, who must prove that the claimant is unable to 27 return to his or her former type of work; the burden then shifts 28 to the Commissioner to identify other jobs that the claimant is 4 1 capable of performing considering the claimant's residual 2 functional capacity, as well as her age, education and last 3 fifteen years of work experience. Terry v. Sullivan, 903 F.2d 4 1273, 1275 (9th Cir. 1990). 5 The regulations provide that the ALJ must make specific 6 sequential determinations in the process of evaluating a 7 disability: 1) whether the applicant engaged in substantial 8 gainful activity since the alleged date of the onset of the 9 impairment, 20 C.F.R. § 404.1520;1 2) whether solely on the basis 10 of the medical evidence the claimed impairment is severe, that 11 is, of a magnitude sufficient to limit significantly the 12 individual s physical or mental ability to do basic work 13 activities, 20 C.F.R. § 404.1520(c); 3) whether solely on the 14 basis of medical evidence the impairment equals or exceeds in 15 severity certain impairments described in Appendix I of the 16 regulations, 20 C.F.R. § 404.1520(d); 4) whether the applicant 17 has sufficient residual functional capacity, defined as what an 18 individual can still do despite limitations, to perform the 19 applicant s past work, 20 C.F.R. §§ 404.1520(e), 404.1545(a); and 20 5) whether on the basis of the applicant s age, education, work 21 experience, and residual functional capacity, the applicant can 22 perform any other gainful and substantial work within the 23 economy, 20 C.F.R. § 404.1520(f). 24 25 B. The ALJ s Findings The ALJ found that Plaintiff had a severe impairment of 26 peripheral neuropathy; her adjustment disorder with mixed mood 27 28 1 All references are to the 2008 version of the Code of Federal Regulations unless otherwise noted. 5 1 was only a slight impairment which had minimal, if any, effect on 2 Plaintiff s ability to work. (A.R. 11.) On December 31, 2005, the 3 date on which Plaintiff last met the insured status requirements 4 of the Act, Plaintiff had no impairment or combination of 5 impairments that met or medically equaled a listed impairment. 6 (A.R. 11-12.) Plaintiff retained the residual functional capacity 7 (RFC) to lift and carry fifty pounds occasionally and twenty-five 8 pounds frequently; stand and walk, or sit, a total of six hours 9 in an eight-hour workday; occasionally climb ladders, ropes, and 10 scaffolds; and avoid concentrated exposure to unprotected heights 11 and uneven surfaces. (A.R. 12.) Plaintiff could perform her past 12 relevant work as a human resources director, and thus she was not 13 disabled at any time from July 8, 2000, the alleged onset date, 14 through December 31, 2005, the date last insured. (A.R. 15.) 15 C. Plaintiff s Contentions 16 Plaintiff argues that the ALJ erroneously failed to 1) find 17 that Plaintiff was credible, 2) adopt the testimony of 18 Plaintiff s daughter, 3) adopt consulting examiner Dr. Dozier s 19 limitation of standing and walking only two to four hours in an 20 eight-hour day, 4) adopt the assessment of Mary Anderson, F.N.P, 21 at Visalia Health Clinic, and 5) call on the services of a 22 medical advisor to determine the date of onset of Plaintiff s 23 impairments and thereby comply with Social Security Ruling 82-30. 24 (Plaintiff s Opening Brief, pp. 6-7.) 25 IV. Medical Evidence 26 Progress notes from Plaintiff s visits to Dr. Booker at 27 Visalia Family Practice in 2000 show an entry regarding 28 borderline diabetes in April 2000 without any treatment 6 1 indicated; Plaintiff was medicated for stress. (A.R. 191-92.) 2 Notes from Visalia Family Practice show that in December 3 2001, Plaintiff reported better mood and no crying spells on 4 Effexor after having been diagnosed by Dr. Booker with anxiety 5 and depression in November 2001. Plaintiff reported that she was 6 looking for work. (A.R. 188.) 7 Plaintiff was prescribed Paxil at Visalia Family Practice in 8 2002, but she never picked it up. She was unemployed and being 9 supported by her father; she was under house arrest and was 10 feeling overwhelmed. She did not want any medication unless it 11 was like Xanax. She complained that her feet hurt, but upon 12 examination the doctor found good color and pulse and no 13 deformity. Dr. Booker prescribed a vibrating foot massager and 14 Xanax. (A.R. 187.) 15 In January 2003, Jaime Aguet, M.D., a radiologist, opined 16 that there was a calcaneal spur on Plaintiff s right foot with an 17 area of demineralization involving the fifth metatarsal head with 18 indeterminate etiology. Dr. Aguet wrote that the differential 19 diagnosis would include osteomyelitis. (A.R. 692.) 20 In June 2003, Dr. Booker diagnosed stress and foot pain when 21 Plaintiff, who was unemployed and on probation, complained of 22 stress, foot numbness and pain causing difficulty walking, and 23 decreased sleep and appetite. Dr. Booker found that the feet were 24 mildly mottled but with good DP pulse, good capillary refill in 25 the toe tips, and mild tenderness at the area of the left third 26 metatarsal head. Dr. Booker prescribed Lexapro and noted that the 27 plan was to find employment. (A.R. 18.) 28 In January 2004, Plaintiff, who was medicated with Atenolol 7 1 and Alprazolam, was taking classes at adult school and reported 2 to Dr. Bishop OK sleep and appetite and decreased crying 3 spells. (A.R. 185.) In May 2004, Dr. Bishop found a thickened 4 sclerotic left second toenail; Lamisil was prescribed. (A.R. 5 185.) 6 In 2005, progress notes from Dr. Booker s office reflect 7 that Plaintiff continued to be medicated with Atenolol and Xanax. 8 In October, Plaintiff complained of pain in both feet and 9 reported that she had fallen twice secondary to foot pain. Dr. 10 Booker found dry, slightly darkened feet with 2/4 pitting pedal 11 edema; DP and PT pulses were palpable, and sensation was reduced 12 to the monofilament bilaterally. The impression was dependent 13 edema with HE (m), and Peripheral neuropathy-? Etol. (A.R. 14 184.) Plaintiff also reported that she was drinking litle Etoh, 15 (A.R. 184.) 16 In November 2005, Frank A. Mancuso opined with respect to 17 tests concerning Plaintiff s lower extremities that Plaintiff had 18 only mild atherosclerotic disease of the arteries of the left and 19 right legs. (A.R. 180, 697.) 20 On December 1, 2005, Boota S. Chahil, M.D., a specialist in 21 neurology and neurophysiology, performed motor and sensory nerve 22 conduction studies after Plaintiff related that she had a history 23 of diabetes, leg pain and numbness that was slowly progressive, 24 and difficulty walking. Dr. Chahil opined that there was evidence 25 of severe sensory motor polyneuropathy as seen in diabetes 26 mellitus and evidence of active and chronic denervation in distal 27 muscles only revealed by EMG needle examination of the tibialis 28 anterior, peroneus longus, gastrocnemius, and vastus medialis 8 1 muscles. Individual motor units were normal in configuration, 2 duration, and amplitude in all muscles except the distal muscles. 3 Motor nerve conduction studies revealed that some nerve responses 4 were absent. There was no evidence of ongoing lumbar 5 radiculopathy or compression neuropathy. (A.R. 179.) 6 On December 6, 2005, Mary Anderson, F.N.P, of the Visalia 7 Health Care Center of the County of Tulare, examined Plaintiff 8 and assessed severe sensory polyneuropathy secondary to diabetes 9 mellitus. The plan was to give Plaintiff a letter for school and 10 a GR form and to request a scholarship for Plaintiff. (A.R. 11 342.) Anderson completed a GENERAL ASSISTANCE EMPLOYABILITY 12 EXAMINATION REPORT, in which she opined that Plaintiff had 13 diabetes, neuropathy, anxiety disorder, and hypertension, with 14 fair prognosis for activities of daily living but poor prognosis 15 for work, and she was permanently physically and mentally 16 incapacitated from any type of work. The time of the incapacity 17 was also identified as 12. (A.R. 343, 389.) Later that month 18 Anderson assessed depression and insomnia and provided Seroquel 19 samples to take as directed. (A.R. 341.) 20 On December 7, 2005, Plaintiff visited the emergency room 21 for abdominal and back pain after having eaten sausages and drunk 22 wine the night before. The impression was gastritis. (A.R. 735.) 23 (A.R. 727.) 24 In January 2006, Plaintiff stopped taking Seroquel because 25 it caused her to sleep all day. (A.R. 340.) 26 On January 30, 2006, licensed psychologist Mary K. McDonald, 27 Ph.D., reviewed records from 2002 through 2005 and performed a 28 consulting, psychological evaluation of Plaintiff, who asserted 9 1 that she was unable to work primarily because of anxiety and 2 depression, although she also complained of carpel tunnel and 3 numbness in her feet. (A.R. 192-99.) She reported the termination 4 of her job at Target and allegations of embezzlement; she stated 5 she had defended herself on an embezzlement charge and had the 6 felony reduced to a misdemeanor for which she served house 7 arrest. Thereafter, she attended a community college for a real 8 estate credential but fell twice at the college because her feet 9 went numb, and therefore she was unable to complete that program. 10 Plaintiff also stated that all she wanted was a medical card 11 and a food card; she lived with her dad and just needed a way of 12 providing for food and her insurance. Her frustration regarding 13 the problems she was having in obtaining disability was so great 14 that she had written to the governor, her congressman, and a 15 state senator. She expressed anxiety about the purpose of Dr. 16 McDonald s evaluation and repeatedly indicated that she would 17 like a copy of the report. Before each test that was 18 administered, Plaintiff complained that she could not do it and 19 that it was too hard and terrible. 20 Plaintiff reported that Dr. Ow-Yong had given her samples of 21 Seroquel and Pregabatin, which she did not take because the 22 Seroquel would bonk her out. Plaintiff did not see a therapist 23 because she did not understand that it was available on her card. 24 She no longer saw Dr. Booker because she did not have insurance. 25 (A.R. 192.) 26 Dr. McDonald found that Plaintiff was oriented in all three 27 spheres, memory for recent and long-term events was unimpaired, 28 she appeared to be fairly bright, and she was alert, pleasant, 10 1 anxious, and cooperative. Plaintiff denied suicidal ideation, 2 exhibited no indications of delusions or hallucinations, worked 3 slowly, and was easily distracted. Her gait was unimpaired. 4 On the Bender Visual Motor Gestalt II, Plaintiff s scores 5 suggested low ability within the borderline range, but she had 6 executed the designs using her right hand, which was in a brace. 7 On the Wechsler Adult Intelligence Scale III, only the verbal 8 section was administered because of problems with Plaintiff s 9 right hand, but she obtained a verbal IQ of 72 in the third 10 percentile and within the borderline range. Dr. McDonald noted 11 that this was not at all consistent with someone who had worked 12 as a human resources director for Target, attended college, and 13 defended herself on an embezzlement charge; the doctor questioned 14 how much effort Plaintiff was putting forth, especially 15 considering Plaintiff s constant questioning why she had to do 16 something and her need for tremendous reassurance and 17 encouragement to continue. On the Miller Forensic Assessment of 18 Symptoms Test, her raw score of eighteen was well above the cut19 off level of six, and norms indicated that people with such 20 scores might be exaggerating their symptoms. Plaintiff had 21 endorsed rare combinations of symptoms, items that suggested that 22 she was easily suggestible, and rare occurrences. (A.R. 194.) 23 Dr. McDonald s assessment was rule out malingering; social 24 phobia or social anxiety disorder; noncompliance with medical 25 treatment; and adult anti-social behavior; there was no diagnosis 26 on Axis II, and the global assessment of functioning (GAF) was 27 sixty-five with ability to handle funds. The prognosis was 28 questionable. (A.R. 195.) Dr. McDonald recommended that with 11 1 respect to Plaintiff s moderate anxiety, in view of Plaintiff s 2 endorsement of many highly unusual symptoms that rarely occur 3 together, one would question if she may be exaggerating her 4 difficulties. (A.R. 195.) Dr. McDonald opined that it would 5 appear that any disability benefits would primarily be based on 6 the presence of physical difficulties. 7 On February 11, 2006, consulting examiner Dr. Emanuel 8 Dozier, M.D., reviewed medical records and test results and 9 performed a comprehensive internal medicine evaluation of 10 Plaintiff, who was fifty-one years old and complained of two 11 years of numbness, tingling, and burning pain in both feet, 12 occasional numbness and tingling in her right hand, difficulty 13 feeling the floor beneath her feet, and limitations of standing 14 for only thirty minutes and walking one-quarter block. (A.R. 20015 04.) Plaintiff reported that although her constant pain was 16 generally a 10/10, she took no medication for relief. Plaintiff 17 reported that although she had been diagnosed with polyneuropathy 18 likely secondary to diabetes, she had submitted to three tests 19 done to evaluate her blood sugars, and the highest level was 115 20 and the lowest 80; further, she was not on any special diet, and 21 she was undergoing no treatment for diabetes or neuropathic pain. 22 Dr. Dozier wrote that Plaintiff s history of diabetes was 23 questionable. (A.R. 201.) Plaintiff reported that she was an 24 occasional drinker of wine. Her medications included Atenolol, 25 Alprazolam, Triamterene, and Seroquel. (A.R. 201.) Plaintiff was 26 alert, oriented, and able to sit without discomfort, transfer on 27 and off the exam table without assistance, and ambulate with a 28 normal, steppage gait down the hall without signs of pain, 12 1 ataxia, or shortness of breath. (A.R. 201.) Plaintiff s back had 2 normal muscle bulk and tone, no kyphoscoliosis, no trigger points 3 or paravertebral spasm, negative straight leg raising, and 4 preserved, normal cervical-lordotic curves. Extremities were 5 normal. Plaintiff did not use an assistive device. Motor and grip 6 strength were 5/5 bilaterally in all extremities. There was 7 impairment of light touch with L5-S1 distribution and pinprick 8 with L5-S1 distribution in both lower extremities, with vibration 9 and position senses intact. 10 Dr. Dozier s impression was peripheral neuropathy, etiology 11 unknown, rule out diabetes. Plaintiff could lift and carry fifty 12 pounds occasionally and twenty-five pounds frequently, stand and 13 walk for two to four hours, and sit for six hours. (A.R. 204.) 14 Dr. Dozier opined that Plaintiff s impairment of sensation in her 15 lower extremities would make postural activities such as frequent 16 stooping and squatting a problem, but she had no manipulative or 17 special sense restrictions. She could not climb ladders or work 18 on inclined planes, uneven terrain, scaffolds, or overhangs due 19 to impairment of sensation in both feet. (A.R. 203.) 20 In March 2006, Plaintiff visited the emergency room with 21 complaints of abdominal pain that was sharp on the left side, and 22 swelling; she denied depression or anxiety. (A.R. 699-706.) 23 Plaintiff denied a history of hepatitis or immune disorders, and 24 she reported that she had drunk heavily for only one year. (A.R. 25 706, 709.) She also reported that she had drunk regularly for 26 more than twenty-five years. (A.R. 711.) Tests for hepatitis, 27 hepatitis C, and malignancy were negative; an abdominal echogram 28 survey reflected an echogenic and coarsened liver that appeared 13 1 somewhat small, and moderate ascites in the upper abdomen. 2 Plaintiff was hospitalized for ten days and was released with 3 medication. (A.R. 709-10, 714-15.) Dr. Afshin Nahavandi opined 4 that she would be medicated for new onset ascites, secondary to 5 cirrhosis, which was in turn secondary to alcohol dependency. 6 (A.R. 710.) Dr. Malay Myaing noted that Plaintiff would be 7 admitted and that alcohol withdrawal would be monitored. (A.R. 8 713.) 9 Charles McElroy reported that a chest x-ray taken in March 10 2006 revealed a normal heart, mild asymmetric elevation of the 11 right hemidiaphragm, and no acute or focal disease; the lungs 12 were without effusion or pneumothorax. (A.R. 717.) CT scans of 13 the pelvis and abdomen resulted in an impression of extensive 14 abdominal/pelvic intraperitoneal ascites; edematous/congestive 15 changes in the peritoneal mesentery; and abnormal, nonspecific 16 appearance of the liver, suggesting chronic cirrhosis, with two 17 dense lesions in the posterior right hepatic lobe, suggestive of 18 intrahepatic hemangiomas. (A.R. 718-19.) Approximately 3,000 19 milliliters of ascites were subsequently removed via ultrasound20 guided paracentesis. (A.R. 722.) 21 On April 28, 2006, Durell Sharbaugh, M.D., a non-examining 22 state agency consultant and neurologist, opined that Plaintiff s 23 neuropathy was not severe because Plaintiff s complaints of pain 24 were not credible, Plaintiff needed no serious pain control, her 25 gait was unaffected, and progress notes did not indicate any 26 severe impairment. Further, Dr. Dozier s limitations on lifting 27 and carrying were not well-supported, and the four-hour standing 28 and walking limitation was out of line in view of Plaintiff s 14 1 normal gait and motor exam and the absence of any atrophy. (A.R. 2 205-06.)2 3 On April 28, 2006, non-examining state agency consultants F. 4 A. Breslin, Ph.D., a psychologist, and Lee M. Coleman, Ph.D., 5 opined concerning Plaintiff s mental impairments of affective 6 disorder, namely adjustment disorder with mixed mood described by 7 Dr. Booker, which was reflected by sleep problems, poor appetite, 8 low energy, and anger; anxiety-related disorder, namely, the 9 situational adjustment disorder with mixed mood described by Dr. 10 Booker on June 17, 2003, reflected in anger over defending 11 herself over an extortion charge; and personality disorder, 12 namely, the adult anti-social behavior assessed by the consulting 13 examiner, exhibited by malingering and noncompliance with medical 14 treatment, the result on the Miller Forensic Assessment of 15 Symptoms Test of highly positive for symptom exaggeration and 16 malingering, her history of embezzlement, and her inconsistent 17 behavior with the consulting examiners.3 Plaintiff had only mild 18 difficulties in maintaining social functioning and maintaining 19 concentration, persistence, and pace. Her impairments were not 20 severe and resulted in no work restriction before the date last 21 insured. (A.R. 206, 349-62.) 22 On May 2, 2006, a person whose name was illegible opined on 23 a form for a GENERAL ASSISTANCE EMPLOYABILITY EXAMINATION 24 REPORT that Plaintiff s cirrhosis of the liver and jaundice 25 26 2 27 3 28 The physical assessment is unsigned. (A.R. 206.) At the examination by the medical consultant, Plaintiff was poised, cooperative, and pleasant; at the exam by the psychological consultant, Plaintiff promoted her inabilities. 15 1 secondary to alcoholism caused Plaintiff to be permanently 2 incapacitated from work for one year. (A.R. 741.) 3 In May 2006, Richard Anderson, M.D., reported that an x-ray 4 of Plaintiff s right foot and ankle revealed mild, degenerative, 5 arthritic changes involving the ankle joint and the 6 interphalangeal joints of the toes, a large plantar calcaneal 7 spur, but no fractures or other acute abnormalities. (A.R. 338, 8 614.) 9 In July 2006, Dr. Brandon Hawkins, M.D., examined 10 Plaintiff s feet. Nails of the second toe of the left foot showed 11 dystrophic changes and thickening consistent with mycotic 12 changes; there was also hyper-pigmentation and dystrophic and 13 atrophic changes to the skin, lack of hair growth, weak but 14 palpable pedal pulses noted to DP and PT bilaterally, loss of 15 protective sensation with 5.07 monofilament, hammertoe 16 deformities, tailor s bunion, and hallux abductovalgus deformity. 17 (A.R. 384-85.) 18 In August 2006, Plaintiff was admitted to the hospital for a 19 week with fever, jaundice, diarrhea, vomiting, and headache; 20 Plaintiff s daughter reported that for one day her mother had 21 been confused and delusional. (A.R. 305, 308, 294-329.) 22 Plaintiff s hepatic panel showed that her hepatitis C antibody 23 was negative, so she did not have hepatitis C; the diagnosis was 24 basically alcoholic cirrhosis, change of mental status secondary 25 to a high protein diet and pain medicine, and alcoholic liver 26 cirrhosis with edema. (A.R. 322-23, 563.) Plaintiff reported that 27 she had stopped drinking in March 2006. (A.R. 309.) Later in 28 August 2006, Vinod K. Gupta, M.D., reported that an 16 1 echocardiogram to test for congestive heart failure reflected 2 normal functions with trace mitral regurgitation, increased A3 wave suggesting decreased left ventricular compliance, and trace 4 mitral, trace aortic, and trace to mild tricuspid regurgitation. 5 (A.R. 303, 306.) 6 Plaintiff exhibited signs of edema in August and September 7 2006. (A.R. 334-35.) In November 2006, a pre-operative chest x8 ray was negative. (A.R. 677.) 9 In December 2006, Plaintiff had surgery for hammertoe 10 correction 2-5, bunionectomy right foot, and exostectomy right 11 foot. The postoperative diagnosis was painful bunion deformity of 12 the right foot with painful hammertoe deformity, digit 2 through 13 5, of the right foot. An x-ray showed that the anatomic alignment 14 of the right foot and the tibiotarsal joint were well-preserved; 15 degenerative changes with spur formation involving the right 16 calcaneal bone were evident. Plaintiff was stable after the 17 surgery and was medicated with Neurontin and Elavil a week later. 18 (A.R. 372-75, 209, 240, 274, 333, 377-78.) 19 In December 2006, Plaintiff was hospitalized for gastric 20 erosions, tense or moderate to severe ascites, end-stage liver 21 disease and alcoholism ( ESLD-alcoholic ), renal insufficiency, 22 hepatitis C, and cardiac risk factors (CRF). (A.R. 217, 213-90, 23 242, 482, 482-545, 742-45.) One day after her admission on 24 December 10, 2006, Plaintiff reported that her alcohol abuse had 25 stopped only for the last month. (A.R. 496, 745.) A CT scan of 26 Plaintiff s head revealed a two-centimeter right frontal 27 calcified meningioma that contacted but did not significantly 28 deform the adjacent cerebral cortex and was of doubtful clinical 17 1 significance; there was mild beam hardening, minimal senescent 2 atrophy, and no evidence of vascular territory infarct, mass, 3 mass effect, or hemorrhage. The assessment was hepatic 4 encephalopathy; gastrointestinal bleeding secondary to 5 nonsteroidal, anti-inflammatory drug-induced gastric erosion, 6 stable; anemia of chronic liver disease; alcoholic liver 7 cirrhosis; chronic hepatitis C; and coagulopathy with INR 8 increase. The treatment plan was continued medical management. 9 (A.R. 224, 238.) On discharge, additional diagnoses were acute 10 renal insufficiency, end-stage liver disease with coagulopathy, 11 thrombocytopenia, and esophageal varices. (A.R. 288.) Plaintiff 12 reported that she had stopped drinking in March 2006. (A.R. 284.) 13 Again in April 2007, Plaintiff reported having stopped drinking 14 about a year before. (A.R. 433.) 15 Plaintiff reported that in early 2007, she ruptured her 16 posterior tibial tendon. (A.R. 364-66, 649.) In April 2007, an 17 abdominal echogram survey revealed a 2.3 centimeter hypoechoic 18 lesion in the right lobe of the liver. (A.R. 453.) Plaintiff 19 experienced confusion when her ammonia levels were elevated. 20 (A.R. 416, 428, 431, 456.) In October 2007, Dr. Henry Ow-Yong 21 opined that due to neuropathy and pain, Plaintiff should have a 22 permanent handicapped placard. (A.R. 387.) Family nurse 23 practitioner Mary J. Anderson wrote to the College of the 24 Sequoias, Plaintiff s school, in 2007 to excuse her for a 25 semester due to severe motor polyneuropathy. (A.R. 388.) Notes 26 from the podiatry clinic at Kern Medical Center reflect that in 27 November 2007, Dr. Brandon Hawkins, D.P.M., diagnosed severe pos 28 valgus planus deformity, right side, secondary to posterior 18 1 tibial tendon rupture, right side; he planned surgery to repair 2 the tendon with possible triple arthrodesis. (A.R. 643.) 3 By January 2008, Plaintiff was hospitalized with a diagnosis 4 of small bowel obstruction that resolved, alcoholic liver 5 cirrhosis, chronic hepatitis C, and peripheral neuropathy. (A.R. 6 404-05.) Plaintiff reported that she had stopped drinking alcohol 7 in March 2007, and also that she had stopped for more than two 8 years. (A.R. 407.) Plaintiff also suffered pain from a foot 9 surgery. (A.R. 625.) In February 2008, Plaintiff reported no 10 problems, but she also reported to a therapist that her 11 depression, which had initially worsened in June 2007, was 12 worsening again; when making the report, Plaintiff was hyper13 verbal and had slurred speech but denied drinking alcohol. The 14 therapist noted that it was possible that her pain medications or 15 unstable mood were causing such symptoms. Plaintiff had never 16 seen a psychiatrist or been admitted to a psychiatric hospital. 17 (A.R. 619-21.) In March 2008, a chest x-ray showed a large, right 18 pleural effusion; this caused delay of anticipated foot surgery. 19 She was feeling pretty good overall. (A.R. 618, 630.) Treatment 20 of her anxiety with Xanax continued. (A.R. 592.) 21 V. Plaintiff s Testimony 22 Plaintiff, who was born in 1954 and was fifty-three at the 23 time of the hearing held in June 2008, testified that she 24 completed high school and had some college classes but had to 25 leave school because of her illness. (A.R. 24.) Plaintiff had 26 worked for Target stores for the last fifteen years as a 27 personnel manager, and before that she worked for Hospital 28 Corporation of America in a personnel director s capacity for ten 19 1 years; she last worked at Target in 2000 and took a leave of 2 absence because of personal problems at home involving her 3 daughter. (A.R. 24, 27.) 4 Plaintiff had been clean and sober since March 13, 2006, 5 when she went to the hospital for cirrhosis and related problems. 6 (A.R. 27-28.) Plaintiff drank a box or box and one-half of wine a 7 day. (A.R. 29.) 8 Plaintiff testified that she noticed that something was 9 wrong with her foot, and Dr. Booker ordered an x-ray that showed 10 a hair bone fracture, and that she was starting to get hammer 11 toes. (A.R. 29.) Plaintiff s counsel represented that the x-ray 12 was from January 2003. (A.R. 30.) 13 In 2005, she had leg pain, numbness, and diabetes; she was 14 not on insulin but just had to watch her sugar intake and fat 15 grams. She began using a cane about four years before the hearing 16 and could not have walked up to testify without it. (A.R. 31-32.) 17 She had lost sixty-five pounds since December 2005, when she 18 weighed in excess of 200, because she ate less food and went 19 without the calories that she would have ingested had she been 20 consuming alcohol. (A.R. 32.) 21 Before December 2005, Plaintiff had no problem lifting or 22 carrying things but was having problems standing; she could walk 23 for maybe thirty minutes, alternate sitting and standing thirty 24 minutes each, but would have fatigue and would have to rest for 25 six hours out of every eight-hour day. Each part of the day was 26 bad in some form or fashion, and she would have twenty out of 27 thirty days when she would not be able to function most or all 28 the day. (A.R. 34-37.) 20 1 At the time of the hearing, Plaintiff could watch television 2 for thirty minutes but would have to get up and walk and then sit 3 down because she could only stand and sit for maybe ten or 4 fifteen minutes each; she could not walk, could not walk at all 5 without the cane, and did not even venture out of her house. She 6 could lift and carry ten pounds but not continuously. She had 7 taken morphine sulfate since the year before the hearing; she 8 switched to it because Vicodin was an aspirin derivative that 9 Plaintiff could not take because of her liver problem. (A.R. 3810 39.) Just the other day a therapist had changed her diagnosis to 11 severe depression, anxiety, and bipolar. (A.R. 39.) Her feet were 12 both starting to swell; her right foot swelled the most and did 13 not permit wearing a tennis shoe because the arch needed to be 14 rebuilt according to the podiatrist. (A.R. 39-40.) Sometimes her 15 equilibrium was off. She had a driver s license but did not drive 16 because she had a stick shift and was going to be selling her 17 car. (A.R. 41.) 18 Plaintiff s daughter, Christina, had lived with Plaintiff 19 until May 2007; Plaintiff still saw Christina every day when 20 Plaintiff was in Visalia in her apartment; she spoke with her 21 daily when Plaintiff was in Fresno visiting Plaintiff s 22 boyfriend. (A.R. 42.) 23 Plaintiff testified that she really took a lot of pride in 24 her job, had worked very hard to get where she was, was 25 embarrassed to be receiving help from the government for the 26 first time, and felt bad that everything had blown up in her 27 face. (A.R. 42-43.) 28 ////// 21 1 VI. The Testimony of Plaintiff s Daughter 2 Christina Renee Petitt testified that she had lived with 3 Plaintiff for twenty-two years and moved out a little over a year 4 before the hearing; she still had contact with her mother daily. 5 (A.R. 44.) Plaintiff had been a hard-working, single mother until 6 she stopped working; thereafter, Plaintiff started drinking a lot 7 more, and it got really bad. (A.R. 45.) 8 Before 2005 Christina noticed Plaintiff had foot problems, 9 and for two to three years before 2005, the walking was horrible; 10 Plaintiff s health was deteriorating, but there was no money to 11 pay for health care, and due to the intoxication, it was 12 difficult to convince Plaintiff that there was something wrong. 13 (A.R. 46.) 14 In March 2006, Plaintiff was vomiting blood, had blood in 15 her stool, and was starting to lose weight; she was delirious. 16 Before then, Plaintiff always had these episodes, but it was a 17 matter of fighting with her to have an ambulance come; finally 18 Christina could not take it any more. (A.R. 50-51.) Since then, 19 Plaintiff had lost probably about a hundred pounds. (A.R. 47-48, 20 51.) Christina testified that Plaintiff detoxed in the hospital, 21 and Plaintiff was told that if she drank again, she would die, 22 and she had not drunk since then. (A.R. 48.) 23 Plaintiff had been unable to wear a shoe on her foot for 24 five to six years, and it had been hurting Plaintiff as long as 25 Christina could remember. (A.R. 52.) 26 Christina testified that her mother was not someone who was 27 just trying to work the state for money; she had been a hard 28 worker and wanted to work but just was not physically able. (A.R. 22 1 52.) Plaintiff could stand five to ten minutes but could not walk 2 like a normal person; she had to lie or sit down to relax; she 3 could concentrate but sometimes could not keep up with the 4 conversation. Christina knew when Plaintiff was becoming toxic 5 from the liver and delirious. (A.R. 49-50.) 6 VII. Testimony of the Vocational Expert 7 Mr. Dashlette, a vocational expert (VE), testified that 8 Plaintiff s past work was listed in the Dictionary of 9 Occupational Titles as sedentary, SVP 8, and semi-skilled. (A.R. 10 53-54.) However, based on Plaintiff s testimony that in her past 11 job the heaviest weight lifted (albeit rarely) was fifty pounds, 12 that she had to do other work on occasion, and that she stood 13 most of the time, the job as performed by Plaintiff was light 14 work. (A.R. 54.) The VE noted, however, that Plaintiff s 15 testimony concerning the time she stood was inconsistent with an 16 exhibit which indicated that she stood one hour and sat seven; 17 the VE assumed that the ALJ credited the testimony presented at 18 hearing. (A.R. 53-54.) 19 VIII. Credibility Findings 20 A. The ALJ s Findings 21 The ALJ detailed Plaintiff s complaints of pain in her 22 extremities, foot problems since 2005, symptoms of 23 disorientation, twenty bad days a month, need to rest six hours a 24 day, need to use a cane for the last four years, and limitations 25 on lifting and carrying, standing, walking, and sitting. (A.R. 26 13.) He noted Christina s testimony that Plaintiff had been 27 unable to wear shoes on her right foot for the last five to six 28 years. (A.R. 13.) He stated that after considering the evidence 23 1 of record, he found Plaintiff s medically determinable 2 impairments could reasonably be expected to produce Plaintiff s 3 alleged symptoms, but her statements about the intensity, 4 persistence, and limiting effects of those symptoms were not 5 credible to the extent that they were inconsistent with his 6 assessment of her RFC, for reasons subsequently stated. (A.R. 7 13.) 8 9 B. Plaintiff s Arguments Plaintiff disagrees with the ALJ s findings concerning 10 Plaintiff s credibility. (A.R. 11.) Plaintiff notes that some of 11 the medical evidence was consistent with Plaintiff s subjective 12 complaints, and Plaintiff s impairments were progressive; thus, 13 Plaintiff s testimony was supported by objective evidence. 14 Plaintiff also contends that the ALJ failed to state clear and 15 convincing reasons for discounting Plaintiff s subjective 16 allegations of disabling symptoms. 17 18 C. Legal Standards It is established that unless there is affirmative evidence 19 that the applicant is malingering, then where the record includes 20 objective medical evidence establishing that the claimant suffers 21 from an impairment that could reasonably produce the symptoms of 22 which the applicant complains, an adverse credibility finding 23 must be based on clear and convincing reasons. Carmickle v. 24 Commissioner, Social Security Administration,, 533 F.3d 1155, 25 1160 (9th Cir. 2008). In Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 26 2007), the court summarized the pertinent standards for 27 evaluating the sufficiency of an ALJ s reasoning in rejecting a 28 claimant s subjective complaints: 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 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. 21 Additional factors to be considered in weighing credibility 22 include the location, duration, frequency, and intensity of the 23 claimant s pain or other symptoms; factors that precipitate and 24 aggravate the symptoms; the type, dosage, effectiveness, and side 25 effects of any medication the claimant takes or has taken to 26 alleviate the symptoms; treatment, other than medication, the 27 person receives or has received for relief of the symptoms; any 28 25 1 measures other than treatment the claimant uses or has used to 2 relieve the symptoms; and any other factors concerning the 3 claimant s functional limitations and restrictions due to pain or 4 other symptoms. 20 C.F.R. § 404.1529; Soc. Sec. Ruling 96-7p. 5 6 D. Analysis Here, the ALJ reasoned that there were few treating records 7 for Plaintiff s alleged impairments between 2000 and 2005. He 8 also noted that from April 2000 to December 2005, Dr. Booker, who 9 was then Plaintiff s primary care doctor, routinely treated 10 Plaintiff for her hand and foot pain, hypertension, and anxiety 11 with medication management. (A.R. 13.) 12 This reasoning was clear and convincing. An ALJ may rely on 13 the conservative nature of treatment or a lack of treatment in 14 rejecting a claimant s subjective complaint of pain. Johnson v. 15 Shalala 60 F.3d 1428, 1433-34 (9th Cir. 1995). Here, the record 16 supports the ALJ s conclusions. 17 The ALJ also relied on numerous inconsistencies. (A.R. 14, 18 11-14.) Inconsistent statements are matters generally considered 19 in evaluating credibility and are properly factored in evaluating 20 the credibility of a claimant with respect to subjective 21 complaints. In rejecting testimony regarding subjective symptoms, 22 permissible grounds include a reputation for dishonesty; 23 conflicts or inconsistencies between the claimant s testimony and 24 her conduct or work record, or internal contradictions in the 25 testimony; and testimony from physicians and third parties 26 concerning the nature, severity, and effect of the symptoms of 27 which the claimant complains. Moisa v. Barnhart, 367 F.3d 882, 28 885 (9th Cir. 2004); Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th 26 1 Cir. 2002). The ALJ may consider whether the Plaintiff s 2 testimony is believable or not. Verduzco v. Apfel, 188 F.3d 1087, 3 1090 (9th Cir. 1999). Finally, a claimant s not having been a 4 reliable historian and having presented conflicting information 5 about drug and alcohol usage has been considered to be clear and 6 convincing reasoning where the claimant had given conflicting 7 reports, and it was inferred that the claimant s lack of candor 8 extended to her description of physical pain. Thomas v. Barnhart, 9 278 F.3d 947, 959 (9th Cir. 2002). 10 Further, amplification of symptoms can constitute 11 substantial evidence supporting the rejection of a subjective 12 complaint of severe symptoms. Matthews v. Shalala, 10 F.3d 678, 13 680 (9th Cir. 1993). 14 Here, the ALJ noted evidence pertinent to Plaintiff s 15 overall credibility and general inconsistencies between 16 Plaintiff s complaints and other evidence. With respect to her 17 mental condition, he noted Plaintiff s improvement after being 18 given medication for anxiety and depression; however, he also 19 noted her subsequent failure to take medication or see a 20 therapist. (A.R. 11.) The ALJ noted the mild findings of Dr. 21 McDonald s exam, Dr. McDonald s assessment that Plaintiff might 22 be exaggerating her symptoms and that malingering needed to be 23 ruled out, and Dr. McDonald s GAF of 65. (A.R. 12, 14.) Although 24 Plaintiff testified she left her job at Target because of 25 personal problems at home, the ALJ noted that she stopped working 26 not because she was disabled, but because she was fired for 27 embezzlement. (A.R. 13, 14.) Plaintiff admitted that she was an 28 alcoholic who last drank on March 13, 2006; however, she did not 27 1 disclose this to either of the consultative examiners. (A.R. 14.) 2 Furthermore, the record showed that she was still drinking 3 alcohol subsequently in November 2006. (A.R. 14.) 4 The ALJ noted inconsistencies between the medical evidence 5 and Plaintiff s subjective complaints. He pointed out the x-ray 6 from 2003 that reflected no fractures or dislocations of the 7 right foot, but rather a calcaneal spur and an area of 8 demineralization. (A.R. 13.) Although Plaintiff testified that 9 she had used a cane for the past four years, the ALJ noted Dr. 10 Dozier s report from early 2006 that Plaintiff did not use any 11 assistive device. (A.R. 13, 14.) In reviewing Dr. Dozier s 12 consulting, internal medicine evaluation, the ALJ noted a two13 year history of Plaintiff s complaints of occasional symptoms in 14 her hands, and numbness, tingling, and constant, burning pain in 15 both feet that was generally a 10/10. However, the ALJ noted 16 that Plaintiff took no medication for relief. (A.R. 14.) Although 17 Plaintiff had been diagnosed with polyneuropathy likely secondary 18 to diabetes, she had completed only three tests to evaluate her 19 blood sugars, and the highest blood sugar was 115 and the lowest 20 was 80. Further, she was not on any special diet. (A.R. 14.) Dr. 21 Dozier s physical examination was essentially normal except for 22 some impairment of sensation in her lower extremities. (A.R. 14.) 23 The ALJ noted that Dr. Dozier diagnosed peripheral neuropathy, 24 but the etiology was unknown, and diabetes was to be ruled out. 25 (A.R. 14.) The ALJ also noted the nerve condition studies and EMG 26 of September 2005 that showed or suggested evidence of severe 27 sensory motor polyneuropathy and the ultrasound of the lower 28 extremities that showed mild, atherosclerotic arterial disease. 28 1 (A.R. 13, 14.) He then noted the inconsistent evidence from Dr. 2 Dozier s exam two months later, when her gait was normal. (A.R. 3 14.) 4 Although the inconsistency of objective findings with 5 subjective claims may not be the sole reason for rejecting 6 subjective complaints of pain, Light v. Chater, 119 F.3d 789, 792 7 (9th Cir. 1997), it is one factor which may be considered with 8 others, Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004); 9 Morgan v. Commissioner 169 F.3d 595, 600 (9th Cir. 1999); Burch v. 10 Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). Here, the ALJ s 11 reasoning was clear and convincing and was supported by 12 substantial evidence in the record. 13 Accordingly, the Court concludes that the ALJ cited multiple 14 clear and convincing reasons for rejecting Plaintiff s subjective 15 complaints regarding the intensity, duration, and limiting 16 effects of her symptoms, and that the ALJ s reasons were properly 17 supported by the record and sufficiently specific to allow this 18 Court to conclude that the ALJ rejected the claimant's testimony 19 on permissible grounds and did not arbitrarily discredit 20 Plaintiff s testimony. 21 Neither Plaintiff s disagreement with the ALJ s conclusions 22 nor the presence of some evidence supportive of Plaintiff s 23 complaints dictates a contrary result. It is not the role of this 24 Court to redetermine Plaintiff s credibility de novo. If, as 25 here, the ALJ s interpretation of evidence is rational, this 26 Court must uphold the ALJ s decision where the evidence is 27 susceptible to more than one rational interpretation. Burch v. 28 Barnhart, 400 F.3d 676, 680-81 (9th Cir. 2005). 29 1 IX. Lay Testimony 2 Plaintiff argues that the ALJ failed to state any reasons 3 why he obviously rejected the testimony of Plaintiff s 4 daughter. (Brief p. 9.) 5 In considering this argument, the Court is mindful that a 6 fundamental principle of review is that this Court is limited to 7 reviewing the findings of the ALJ and to reviewing the specific 8 facts and reasons that the ALJ asserts. Connett v. Barnhart, 340 9 F.3d 871, 874 (9th Cir. 2003). The district court cannot make 10 findings for the ALJ. Id. A district court cannot affirm the 11 judgment of an agency on a ground the agency did not invoke in 12 making its decision. Pinto v. Massanari, 249 F.3d 840, 847-48 (9th 13 Cir. 2001). 14 However, it is not necessary for an ALJ to say expressly 15 that each and every statement or opinion in a case is rejected or 16 accepted; a reviewing court may draw specific and legitimate 17 inferences from discussions of the evidence, particularly where 18 conflicting evidence is detailed and interpreted, and findings 19 are made. See, Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 20 1989). 21 Here, the ALJ expressly detailed the testimony of 22 Plaintiff s daughter concerning her contacts with Plaintiff, 23 Plaintiff s foot problems, Plaintiff s history of hard work and 24 alcoholism after stopping work, and her hospitalization in March 25 2006 and related cessation of alcohol consumption. (A.R. 13.) As 26 the preceding analysis concerning Plaintiff s credibility 27 reflects, the ALJ s reasoning concerning Plaintiff s own 28 credibility included reliance on evidence of Plaintiff s probable 30 1 malingering and exaggeration of symptoms, her involvement in 2 embezzlement, and the absence of candor in her statements 3 regarding the reasons for her leaving Target, her drinking, and 4 her need for an assistive device. It is clear that the ALJ 5 concluded that Plaintiff s representations concerning her 6 symptoms and limitations were incredible. (A.R. 13.) 7 Further, the ALJ specifically detailed evidence directly 8 pertinent to Christina s testimony. Although Plaintiff s daughter 9 testified that Plaintiff had stopped drinking in March 2006, the 10 ALJ noted and clearly credited evidence that Plaintiff in fact 11 had admitted having consumed alcohol as late as November 2006. 12 (A.R. 13, 14.) 13 Lay witnesses, such as friends or family members in a 14 position to observe a claimant s symptoms and daily activities, 15 are competent to testify to a claimant s condition; the 16 Commissioner will consider observations by non-medical sources as 17 to how an impairment affects a claimant s ability to work. 18 Dodrill v. Shalala, 12 F.3d 915, 918-19 (9th Cir. 1993). An ALJ 19 cannot discount testimony from lay witnesses without articulating 20 specific reasons for doing so that are germane to each witness. 21 Id. at 919. 22 With respect to evaluating evidence from other non-medical 23 sources such as spouses, parents, friends, and neighbors who have 24 not seen the claimant in a professional capacity in connection 25 with the impairments, the weight to which evidence of is entitled 26 will vary according to the particular facts of the case; it is 27 appropriate to consider factors such as the nature and extent of 28 the relationship with the claimant, whether the evidence is 31 1 consistent with other evidence, and any other factors that tend 2 to support or refute the evidence. Soc. Sec. Ruling 06-03p, p. 6. 3 The adjudicator should generally explain the weight given the 4 opinions from such other sources or otherwise ensure that the 5 discussion of the evidence in the determination or decision 6 allows a claimant or subsequent reviewer to follow the 7 adjudicator s reasoning when such opinions may have an effect on 8 the outcome of the case. Id. 9 Further, it is permissible for an ALJ who has rejected a 10 claimant s subjective complaints to reject similar evidence from 11 third-party lay witnesses that is subject to the same reasoning. 12 Valentine v. Commissioner of the Soc. Sec. Admin., 574 F.3d 685, 13 693-94 (9th Cir. 2009). 14 Here, although the ALJ did not make a separate, express 15 finding concerning the testimony of Plaintiff s daughter, the 16 ALJ s reasoning was sufficient to permit this Court to review it. 17 The ALJ concluded that Plaintiff exaggerated and misrepresented 18 her symptoms, reasoning that was germane to the reliability of 19 Plaintiff s daughter s testimony. 20 X. Dr. Dozier s Limitations on Standing and Walking 21 Plaintiff argues that the ALJ erred in crediting only part 22 of the opinion of consulting, examining internist Dr. Emanuel 23 Dozier and rejecting Dr. Dozier s limitation of standing and 24 walking to only two to four hours in an eight-hour day. 25 The ALJ reviewed Dr. Dozier s examination and evaluation 26 from February 2006, noting the subjective complaints made by 27 Plaintiff to the doctor, the inconsistency of Plaintiff s 28 complaint of constant pain that was generally a 10/10 with the 32 1 lack of treatment therefor, the limited test results and absence 2 of dietary treatment for diabetes, the essentially normal 3 physical exam except for some impaired sensation in the lower 4 extremities, and the absence of any assistive device. (A.R. 14.) 5 He also noted that Dr. Dozier s impression was peripheral 6 neuropathy with etiology unknown, and that diabetes was to be 7 ruled out. (Id.) 8 The ALJ later addressed the opinion evidence, noting the 9 conflicting opinions of the state agency medical consultants to 10 the effect that Plaintiff did not have a severe impairment and 11 that the overall evidence was insufficient to make a residual 12 functional capacity assessment. (A.R. 14.) The ALJ then stated: 13 14 15 16 17 18 Consultative examiner Dr. Dozier concluded Ms. Petitt could lift and carry 50 pounds occasionally and 25 pounds frequently; stand and walk 2 to 4 hours, and sit 6 hours in an 8-hour workday; and occasionally stoop and squat; occasionally climb ladders, scaffolds, or overhangs; and occasionally work on inclined planes (citation omitted). I give Dr. Dozier s medical opinion greater weight because he is an examining source. However, because of Ms. Petitt s essentially normal examination, I give little weight to the opinion that Ms. Petitt can only stand and walk 2 to 4 hours. 19 (A.R. 14.) 20 The Court notes that an ALJ may properly rely upon only 21 selected portions of a medical opinion while rejecting other 22 parts, Magallanes v. Bowen, 881 F.2d 747, 753 (9th Cir. 1989), but 23 such reliance must be consistent with the medical record as a 24 whole, Edlund v. Massanari, 253 F.3d 1152, 1159 (9th Cir. 2001). 25 Further, it is not necessary to agree with everything an expert 26 witness says in order to hold that his testimony contains 27 substantial evidence. Russell v. Bowen, 856 F.2d 81, 83 (9th Cir. 28 1988). 33 1 With respect to the ALJ s reasoning concerning the expert 2 opinions, the opinion of an examining physician is entitled to 3 greater weight than the opinion of a non-examining physician. 4 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). The 5 uncontradicted opinion of an examining physician may be rejected 6 only if the Commissioner provides clear and convincing reasons 7 for rejecting it. Id.; Edlund v. Massanari, 253 F.3d 1152, 11588 59 (9th Cir. 2001). An ALJ may reject the opinion of an examining 9 physician and adopt the contradictory opinion of a non-examining 10 physician only for specific and legitimate reasons that are 11 supported by substantial evidence in the record. Moore v. 12 Commissioner of Social Security Administration, 278 F.3d 920, 925 13 (9th Cir. 2002) (quoting Lester v. Chater, 81 F.3d at 830-31). 14 It is appropriate for an ALJ to consider the absence of 15 supporting findings, and the inconsistency of conclusions with 16 the physician s own findings, in rejecting a physician s opinion. 17 Johnson v. Shalala, 60 F.3d 1428, 1432-33 (9th Cir. 1995); Matney 18 v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992); Magallanes v. 19 Bowen, 881 F.2d 747, 751 (9th Cir. 1989). A conclusional opinion 20 that is unsubstantiated by relevant medical documentation may be 21 rejected. See Johnson v. Shalala, 60 F.3d 1428, 1432-33 (9th Cir. 22 1995). 23 Further, the fact that an opinion is based primarily on the 24 patient s subjective complaints may be properly considered. 25 Matney on Behalf of Matney v. Sullivan, 981 F.2d 1016, 1020 (9th 26 Cir. 1992). For example, where a treating source s opinion is 27 based largely on the Plaintiff s own subjective description of 28 his or her symptoms, and the ALJ has discredited the Plaintiff s 34 1 claim as to those subjective symptoms, the ALJ may reject even a 2 treating source s opinion. Fair v. Bowen, 885 F.2d 597, 605 (9th 3 Cir. 1989). 4 Here, the ALJ stated specific and legitimate reasons for 5 rejecting the particular limitations. In the circumstances of the 6 present case, the ALJ s reasoning was of clear and convincing 7 force. The record supports the ALJ s conclusions; Dr. Dozier s 8 exam was essentially normal except for the sensory abnormalities. 9 The ALJ expressly found that Plaintiff s peripheral neuropathy 10 was not as limiting as she alleged based on reasoning concerning 11 Plaintiff s lack of credibility. The ALJ detailed the extensive 12 subjective complaints related to Dr. Dozier by Plaintiff 13 concerning symptoms in her extremities and her capacity to stand 14 and walk. (A.R. 14.) In concluding that the findings upon 15 examination did not support the doctor s limitations of standing 16 and walking, the ALJ necessarily opted to rely on the more 17 objective findings instead of the subjective complaints, which 18 were discounted. 19 Plaintiff argues that there is evidence that was consistent 20 with the doctor s limitations, namely, evidence that Plaintiff 21 suffered mild atherosclerotic disease in the legs, deformities of 22 the foot, and severe sensory motor polyneuropathy as seen in 23 diabetes mellitus. However, to the extent that medical evidence 24 is inconsistent or conflicting, it is the responsibility of the 25 ALJ to resolve any conflicts. Morgan v. Commissioner, 169 F.3d 26 595, 603 (9th Cir. 1999); Saelee v. Chater, 94 F.3d 520, 522 (9th 27 Cir. 1996); Matney on Behalf of Matney v. Sullivan, 981 F.2d 28 1016, 1020 (9th Cir. 1992). Here, the ALJ set forth the evidence 35 1 and his reasoning concerning his weighing of that evidence. 2 Substantial evidence supported his reasoning. The evidence was 3 susceptible to more than one rational interpretation, and the 4 ALJ s conclusion will be upheld. Burch v. Barnhart, 400 F.3d 676, 5 679 (9th Cir. 2005). 6 XI. The Opinion of Mary Anderson, F.N.P. 7 Plaintiff argues that the ALJ failed to evaluate the opinion 8 of Mary Anderson, F.N.P., at Visalia Health Clinic. 9 Contrary to Plaintiff s assertion, the ALJ did set forth his 10 evaluation of Anderson s opinion. Immediately after weighing Dr. 11 Dozier s opinion, the ALJ stated: 12 13 14 15 16 On December 6, 2005, nurse [practitioner] Mary Anderson completed a form indicating Ms. Petitt was permanently disabled due to diabetes, neuropathy, hypertension, and anxiety (citation omitted). Ms. Anderson s opinion is not consistent with the sparse treatment record before the date last insured. It appears she was accommodating Ms. Petitt in order for her to receive General Relief. Furthermore, a family nurse [practitioner] is not an acceptable medical source under the regulations. 17 (A.R. 15.) 18 As Defendant notes (Brief p. 11), Anderson s opinion was not 19 a medical opinion, which is a statement from an acceptable 20 medical source that reflects a judgment about the nature and 21 severity of a claimant s impairments, including the severity of 22 the impairment, its symptoms, a diagnosis and prognosis, a 23 statement of what the claimant can still do despite his or her 24 impairments, and any physical or mental restrictions. 20 C.F.R. § 25 404.1527(a)(2). Instead, it was only a determination of whether 26 or not Plaintiff could work. The opinion of even a medical source 27 on the ultimate issue of disability is not conclusive. 20 C.F.R. 28 36 1 § 404.1527(e)(1); Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th 2 Cir. 2001); Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 3 1989). Even a treating physician s controverted opinion on the 4 ultimate issue of disability may be rejected by an ALJ if the ALJ 5 provides specific and legitimate reasons. Holohan v. Massanari, 6 246 F.3d 1195, 1202 (9th Cir. 2001). 7 As Defendant further notes, the record does not demonstrate 8 that Anderson was even a medical source. Symptoms of the 9 claimant alone cannot establish a physical or mental impairment; 10 rather, there must be evidence from an acceptable medical source. 11 20 C.F.R. §§ 404.1502, 404.1513(a). Acceptable medical sources 12 include licensed physicians, licensed or certified psychologists, 13 licensed optometrists, licensed podiatrists, and qualified 14 speech-language pathologists. 20 C.F.R. § 404.1513(a). Evidence 15 from other sources may be used to show the severity of 16 impairments and the effect on a claimant s ability to work. 17 A nurse practitioner or physician s assistant is generally 18 included as an other source. 20 C.F.R. § 404.1513(d). However, 19 a physician s assistant may be considered to be an acceptable 20 medical source where the assistant consults frequently and works 21 closely with a physician and thus acts as an agent of the doctor 22 in the relationship with the patient. In Gomez v. Chater, 74 F.3d 23 967, 970-71 (9th Cir. 1996), the court relied on 20 C.F.R. § 24 416.913 regarding reports of interdisciplinary teams and 25 determined that a nurse practitioner who worked in conjunction 26 with, and under the close supervision of, a physician could be 27 considered an acceptable medical source, but one working on his 28 or her own was not an acceptable medical source. 37 1 Here, the absence of evidence of close supervision of 2 Anderson by any doctor, and indeed, the absence of probative 3 evidence regarding the interrelationship of Anderson with any 4 other medical professionals precludes reliance on her opinions as 5 those of an acceptable medical source. However, Anderson, as a 6 nurse practitioner, was an other medical source who was 7 appropriately considered with respect to the severity of 8 Plaintiff s impairment and how it affected her ability to work. 9 The fact that a medical opinion is from an acceptable 10 medical source is a factor that may justify giving that opinion 11 greater weight than an opinion from a medical source who is not 12 an acceptable medical source because acceptable medical sources 13 are the most qualified health care professionals. 20 C.F.R. § 14 404.1513(a); Soc. Sec. Ruling 06-03p; see, Gomez v. Chater, 74 15 F.3d at 970-71. 16 Here, the ALJ considered Anderson s opinion and gave little 17 weight to it because Anderson was not an acceptable medical 18 source. (A.R. 15.) This is a reason germane to her opinion and 19 thus suffices to support rejection. Cf. Dodrill v. Shalala, 12 20 F.3d 915, 918-19 (9th Cir. 1993). Further, the record supports the 21 ALJ s reasoning that Anderson s opinion that Plaintiff was 22 physically and mentally incapacitated from any type of work was 23 inconsistent with the treatment record. (A.R. 15.) 24 Accordingly, the Court concludes that the ALJ stated 25 specific, legitimate, and germane reasons for not accepting 26 Anderson s opinion. 27 XII. Failure to Obtain an Expert regarding Date of Onset 28 Plaintiff contends that the ALJ failed to comply with Social 38 1 Security Ruling 83-20, which may require consultation with a 2 medical expert concerning the date of onset of a disabling 3 impairment. 4 When a claimant proceeding pursuant to Title II has a period 5 of eligibility for disability benefits that expires on a specific 6 date, it is the burden of the claimant to establish that the 7 claimant was either permanently disabled or subject to a 8 condition which became so severe as to disable the claimant prior 9 to the date on which his or her disability insured status 10 expired. Sam v. Astrue, 550 F.3d 808, 810-11 (9th Cir. 2008). 11 Social Security Ruling 83-20 states the policy and describes 12 the relevant evidence to be considered when establishing the 13 onset date of disability under Titles II and XVI of the Social 14 Security Act. Soc. Sec. Ruling 83-20, p. 1. The onset date of 15 disability is the first day a claimant is disabled as defined in 16 the Act and the regulations. Id. The determination of the onset 17 date of disability is undertaken [i]n addition to determining 18 that a claimant is disabled. Id. 19 Here, the ALJ determined that Plaintiff was not disabled 20 from the alleged onset date of July 8, 2000, through December 31, 21 2005, the date last insured. (A.R. 15.) In such circumstances, 22 Soc. Sec. Ruling 83-20 does not require a medical expert. Sam v. 23 Astrue, 550 F.3d 808, 809-11. This is because where an ALJ finds 24 that a claimant was not disabled at any time through the date of 25 the decision, the question of when the claimant became disabled 26 does not arise, and the procedures prescribed in Soc. Sec. Ruling 27 83-20 do not apply. Id. at 810. 28 ///// 39 1 XIII. 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 Linda P. Petitt. 12 IT IS SO ORDERED. 13 Dated: 6i0kij March 2, 2010 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 40
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