Andre Lindsay v. Michael J Astrue, No. 2:2007cv04265 - Document 19 (C.D. Cal. 2008)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Alicia G. Rosenberg. IT IS HEREBY ORDERED that the Commissioner's decision is affirmed. (See Order for details.) (mp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ANDRE LINDSAY, 12 Plaintiff, 13 v. 14 15 MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. 16 17 ) ) ) ) ) ) ) ) ) ) ) ) NO. CV 07-4265 AGR MEMORANDUM OPINION AND ORDER Andre Lindsay filed this action on July 3, 2007. Pursuant to 28 U.S.C. § 18 19 636(c), the parties filed Consents to proceed before Magistrate Judge Rosenberg 20 on July 16 and July 19, 2007. On March 25, 2008, the parties filed a Joint 21 Stipulation ( JS ) that addressed the disputed issues. The Court has taken the 22 matter under submission without oral argument. Having reviewed the entire file, the Court affirms the Commissioner s 23 24 decision. 25 /// 26 /// 27 /// 28 /// 1 I. 2 PROCEDURAL BACKGROUND 3 On March 22, 2004, Lindsay protectively filed an application for 4 supplemental security income benefits. A.R. 18. The Commissioner denied the 5 application initially.1 Id.; A.R. 56. The Administrative Law Judge ( ALJ ) held a 6 hearing on August 3, 2005, and a supplemental hearing on December 13, 2005. 7 A.R. 325-39, 340-73. The first hearing was continued for further development of 8 the record. A.R. 327, 331-34, 336-39. At the supplemental hearing, the ALJ 9 elicited testimony from Lindsay and a vocational expert. A.R. 340-73. On May 10 17, 2006, the ALJ issued a decision denying benefits. A.R. 15-31. On April 6, 11 2007, the Appeals Council denied Lindsay s request for review. A.R. 9-12. This 12 lawsuit followed. 13 II. 14 STANDARD OF REVIEW 15 Pursuant to 42 U.S.C. § 405(g), this Court reviews the Commissioner s 16 decision to deny benefits. The decision will be disturbed only if it is not 17 supported by substantial evidence, or if it is based upon the application of 18 improper legal standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995); 19 Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 20 Substantial evidence means more than a mere scintilla but less than a 21 preponderance it is such relevant evidence that a reasonable mind might 22 accept as adequate to support the conclusion. Moncada, 60 F.3d at 523. In 23 determining whether substantial evidence exists to support the Commissioner s 24 decision, the Court examines the administrative record as a whole, considering 25 adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. When the 26 27 28 1 Although Lindsay s request for a hearing was untimely filed, he established good cause for the late filing. A.R. 18. 2 1 evidence is susceptible to more than one rational interpretation, the Court must 2 defer to the Commissioner s decision. Moncada, 60 F.3d at 523. 3 III. 4 DISCUSSION 5 A. 6 A person qualifies as disabled, and thereby eligible for such benefits, only 7 if his physical or mental impairment or impairments are of such severity that he is 8 not only unable to do his previous work but cannot, considering his age, 9 education, and work experience, engage in any other kind of substantial gainful 10 work which exists in the national economy. Barnhart v. Thomas, 540 U.S. 20, 11 21-22, 124 S. Ct. 376, 157 L. Ed. 2d 333 (2003) (citation and internal quotation 12 marks omitted). 13 B. 14 The ALJ found that Lindsay had severe impairments of tendinitis and Disability The ALJ s Findings 15 bursitis of the left shoulder. A.R. 29. The ALJ determined that Lindsay had the 16 residual functional capacity to lift and/or carry 20 pounds occasionally and 10 17 pounds frequently, stand and/or walk for a total of about 6 hours in an 8-hour 18 workday, and sit for a total of about 6 hours in an 8-hour workday. He would be 19 able to occasionally climb ropes, scaffolds, and ladders, and frequently perform 20 all other postural activities. He would not be able to perform overhead reaching, 21 but he would be able to occasionally reach in all other directions with the left 22 upper extremity. He would be able to occasionally push and pull with the left 23 upper extremity. A.R. 30. 24 The ALJ concluded that Lindsay could not perform any of his past relevant 25 work as a cargo agent, parking enforcer, or warehouse worker. A.R. 28, 30. The 26 ALJ found that [a]lthough [Lindsay s] exertional limitations do not allow him to 27 perform the full range of light work, using Medical-Vocational Rule 202.17 as a 28 framework for decision-making, there are a significant number of jobs in the 3 1 national economy that he could perform. A.R. 30. Examples include laundry 2 sorter or counter clerk. A.R. 29, 30. 3 C. 4 Lindsay contends that the ALJ erred in finding that he does not suffer from Severity of Mental Impairment 5 a severe mental impairment. JS 4. At Step Two of the sequential analysis, the 6 claimant bears the burden of demonstrating a severe, medically determinable 7 impairment that meets the duration requirement. 20 C.F.R. §§ 404.1520(a)(4)(ii), 8 416.920(a)(4)(ii); Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S. Ct. 2287, 96 9 L. Ed. 2d 119 (1987). To satisfy the duration requirement, the severe impairment 10 must have lasted or be expected to last for a continuous period of not less than 11 12 months. Id. at 140. 12 Your impairment must result from anatomical, 13 physiological, or psychological abnormalities which can 14 be shown by medically acceptable clinical and 15 laboratory diagnostic techniques. A physical or mental 16 impairment must be established by medical evidence 17 consisting of signs, symptoms, and laboratory findings, 18 not only by your statement of symptoms. 19 20 C.F.R. §§ 404.1508, 416.908. [T]he impairment must be one that 20 significantly limits your physical or mental ability to do basic work activities. 2 21 Yuckert, 482 U.S. at 154 n.11 (quoting 20 C.F.R. § 404.1520(c)); Smolen v. 22 Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) ( [A]n impairment is not severe if it 23 24 25 26 27 28 2 Basic work activities include [p]hysical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling ; [c]apacities for seeing, hearing, and speaking ; [u]nderstanding, carrying out, and remembering simple instructions ; [u]se of judgment ; [r]esponding appropriately to supervision, co-workers, and usual work situations ; and [d]ealing with changes in a routine work setting. 20 C.F.R. §§ 404.1521(b), 416.921(b). 4 1 does not significantly limit [the claimant s] physical ability to do basic work 2 activities. ) (citation and internal quotation marks omitted). 3 An impairment or combination of impairments may be found not severe 4 only if the evidence establishes a slight abnormality that has no more than a 5 minimal effect on an individual s ability to work. Webb v. Barnhart, 433 F.3d 6 683, 686-87 (9th Cir. 2005) (emphasis in original, citation omitted). Step Two is 7 a de minimis screening device [used] to dispose of groundless claims and the 8 ALJ s finding must be clearly established by medical evidence. Id. at 687 9 (citations and internal quotations omitted). [T]he ALJ must consider the 10 combined effect of all of the claimant s impairments on her ability to function, 11 without regard to whether each alone was sufficiently severe. Smolen, 80 F.3d 12 at 1290 (citations omitted). The ALJ is also required to consider the claimant s 13 subjective symptoms, such as pain or fatigue, in determining severity. Id. 14 (citations omitted). The Commissioner does not consider age, education, and 15 work experience. 20 C.F.R. §§ 404.1520(c), 416.920(c). 16 1. ALJ s Finding at Step Two 17 At Step Two, the ALJ did not find that Lindsay had a severe mental 18 impairment. A.R. 27, 29. The ALJ s finding at Step Two was clearly established 19 by medical evidence. 20 The ALJ relied on a consultative examining psychologist, Dr. Reznick. 21 A.R. 22. On September 2, 2005, Dr. Reznick conducted a consultative 22 psychological evaluation on Lindsay. A.R. 205-12. Dr. Reznick performed a 23 battery of psychological tests, including a Rey 15 Item Memory Test - II ( Rey 24 15"), Bender Visual-Motor Gestalt Test - II ( BVMGT-2 ), Wechsler Adult 25 Intelligence Scale - III ( WAIS-3 ), Wechsler Memory Scale - III ( WMS-3 ), and 26 Minnesota Multiphasic Personality Inventory - II ( MMPI-2 ). A.R. 210-11. In 27 addition, Dr. Reznick reviewed Lindsay s medical records. A.R. 207. 28 5 1 Dr. Reznick noted: The claimant presented with what appeared to be a 2 sub-optimal effort throughout this evaluation, resulting in test performances that 3 seem to underestimate his actual levels of functioning. In addition, the claimant 4 appeared to be a vague historian whose history was lacking in credibility, at least 5 in some respects. A.R. 22, 25, 205, 209. Specifically, Dr. Reznick observed 6 that the results from the Rey 15 indicated a high probability of malingering. 7 A.R. 210. Additionally, Dr. Reznick noted that although the results from the 8 WAIS-3 indicated mild mental retardation, Lindsay s average language facility, 9 intact verbal comprehension, ability to carry on a normal conversation with the 10 examiner and ability to supply a detailed and coherent history during the 11 subsequent interview suggested significantly higher intellectual functioning than 12 the I.Q. estimates obtained from the test. A.R. 210-11. Dr. Reznick also 13 commented that Lindsay s MMPI-2 profile contained an elevated Lie Scale, 14 suggesting that he did not approach the MMPI in a completely truthful manner. 15 A.R. 211. Dr. Reznick added that the MMPI-2 results also suggested that 16 Lindsay engaged in unfavorable impression management, ostensibly for self- 17 serving reasons. Id. As the ALJ noted, Dr. Reznick identified specific examples 18 of inconsistencies in Lindsay s statements. A.R. 25-26. For example, Lindsay 19 stated that he is unable to drive a car, but indicated on the written questionnaire 20 that he drove himself to the evaluation. A.R. 26, 209. 21 Dr. Reznick diagnosed Lindsay with alcohol abuse, in remission, by 22 history, and antisocial personality traits. A.R. 23, 211. The Medical Source 23 Statement of Ability to Do Work-Related Activities (Mental) completed by Dr. 24 Reznick indicate that Lindsay had no work-related limitations arising from his 25 mental impairment. A.R. 23, 213-215. 26 The ALJ did not err in relying on Dr. Reznick s opinion and concluding that 27 Lindsay s mental impairment was not severe. Dr. Reznick s opinion is well- 28 supported by objective clinical tests. See Tonapetyan v. Halter, 242 F.3d 1144, 6 1 1149 (9th Cir. 2001) (holding that the opinion of a consultative examiner alone 2 constitutes substantial evidence when it rests on an independent examination of 3 the claimant). 4 Lindsay contends that his medical records from Augustus F. Hawkins 5 ( AFH ) and medical records submitted to the Appeals Council demonstrate the 6 existence of a severe mental impairment. JS 4-5. 7 Dr. Reznick reviewed the medical records from AFH. A.R. 207. As both 8 Dr. Reznick and the ALJ noted, the AFH physician s initial diagnosis also 9 included possible malingering. A.R. 26, 207. On June 30, 2005, a physician 10 initially diagnosed Lindsay with somatization disorder vs. malingering vs. GAD 11 [generalized anxiety disorder] vs. conversion disorder vs. depressive disorder 12 and indicated a plan for psych testing. 3 A.R. 160. However, Lindsay did not 13 return for follow-up treatment or testing, and a discharge summary was prepared 14 on September 21, 2005. A.R. 262. By contrast, Dr. Reznick completed 15 psychological testing. 16 Lindsay points to an earlier intake form prepared by a social worker at AFH 17 on June 27, 2005. The ALJ found that the social worker was not an acceptable 18 medical source and accepted the evidence only as a record of Lindsay s 19 complaints. A.R. 27. A social worker is not an acceptable source of medical 20 evidence of an impairment. 20 C.F.R. § 404.1513(a), (d)(1). An ALJ may 21 properly discount a social worker s opinion without satisfying the legal standards 22 applicable to a treating physician. Bunnell v. Sullivan, 912 F.2d 1149, 1152-53 23 (9th Cir. 1990) ( there is no requirement that the Secretary accept or specifically 24 refute such evidence from a non-medical source), rev d on other grounds, 947 25 F.2d 341, 348 (9th Cir. 1991). On the other hand, the ALJ may use such 26 27 28 3 The physician assessed a GAF score of 50 and prescribed Zoloft and Benadryl. A.R. 160. 7 1 evidence to show the severity of your impairment(s) and how it affects your 2 ability to work. 20 C.F.R. § 404.1513(d)-(e). 3 The social worker stated to Lindsay that he would not be Ct s therapist. 4 A.R. 162. Lindsay told the social worker that he has no previous mental health 5 history. A.R. 155. The social worker noted that Lindsay had minimum 6 impairment of insight and judgment (A.R. 158), which is consistent with a finding 7 that any mental impairment has no more than a minimal effect on an individual s 8 ability to work. 4 Webb, 433 F.3d at 686-87 (citation omitted). The social worker 9 thought that [p]ossible cognitive deficits should be ruled out. A.R. 159. As 10 noted above, however, Lindsay did not show up for follow-up appointments. 11 Lindsay reported feeling depressed over a small settlement he received for a car 12 accident. A.R. 162. The social worker diagnosed somatoform disorder, not 13 otherwise specified, and schizoaffective disorder. A.R. 159. The social worker 14 assessed a Global Assessment of Functioning ( GAF ) score of 47.5 Id. 15 The ALJ properly gave these medical records little weight because it 16 came from an unacceptable medical source, was not based on an ongoing 17 treatment relationship, and was not supported by the other medical records. A.R. 18 27; see 20 C.F.R. § 404.1513(a) ( We need evidence from acceptable medical 19 sources to establish whether you have a medically determinable impairment(s). ); 20 20 C.F.R. § 404.1508 (mental impairment must be established by medical 21 22 23 24 25 26 27 28 4 Consistent with Dr. Reznick, the social worker noted that Lindsay appeared to have a below average fund of knowledge and impaired intellectual functioning. Compare A.R. 158 with A.R. 209. 5 The GAF scale is used by clinicians to report a patient s overall level of functioning and to make treatment decisions. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 32 (4th ed. 2000) (hereinafter DSM IV ). A GAF score is not determinative of mental disability for social security claim purposes. See 65 Fed. Reg. 50746, 50765 (August 21, 2000) ( [The GAF scale] does not have a direct correlation to the severity requirements in our mental disorder listings. ). A GAF of 41-50 denotes [s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). DSM IV at 34. 8 1 evidence consisting of signs, symptoms, and laboratory findings ); Gomez v. 2 Chater, 74 F.3d 967, 970-71 (9th Cir.) (opinions from other sources can be 3 afforded less weight than opinions from acceptable medical sources. ), cert. 4 denied, 519 U.S. 881 (1996); see also Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 5 2007) (even as to treating physician, ALJ may consider length of treatment 6 relationship, frequency of examination, nature and extent of treatment 7 relationship, consistency with record as a whole); 20 C.F.R. § 404.1527(d)(1)-(6) 8 (same). 9 2. 10 Records Submitted to the Appeals Council On March 26, 2007, after the ALJ s decision, Lindsay submitted records 11 from AFH to the Appeals Council. (A.R. 295-324.) Putting aside medical records 12 duplicative of those previously submitted to the ALJ, the new medical records 13 show that Lindsay returned to AFH on October 12, 2006, after the ALJ s decision 14 dated May 17, 2006, and after his case was closed at AFH on September 21, 15 2005. A.R. 306. Lindsay received treatment through January 17, 2007. A.R. 16 298-306. Lindsay argues that the medical records buttress the opinions of the 17 social worker and demonstrate[] the existence of a severe mental impairment. 18 JS 5. 19 If new and material evidence is submitted, the Appeals Council shall 20 evaluate the entire record including the new and material evidence submitted if it 21 relates to the period on or before the date of the administrative law judge hearing 22 decision. It will then review the case if it finds that the administrative law judge s 23 action, findings, or conclusion is contrary to the weight of the evidence currently 24 of record. 20 C.F.R. §§ 404.970(b), 416.1470(b). 25 Nothing in the new medical records indicate that they relate to the period 26 on or before the date of the ALJ s decision. Lindsay makes no such showing. 27 See Mayes v. Massanari, 276 F.3d 453, 462 (9th Cir. 2001) (claimant bears 28 burden of showing that post-decision diagnosis is material to relevant time 9 1 period); Bates v. Sullivan, 894 F.2d 1059, 1064 (9th Cir. 1990) (affirming denial 2 of benefits based on report dated months after ALJ s adverse decision which did 3 not pertain to medical evidence during the relevant time period). To the extent 4 Lindsay s mental health condition changed, nothing prevents him from filing a 5 new application based on this new evidence. See Sanchez v. Secretary of 6 Health & Human Services, 812 F.2d 509, 512 (9th Cir. 1987) (new evidence 7 indicating mental deterioration after date of ALJ s decision may be material to 8 new application); 20 C.F.R. § 416.330(b) ( If you first meet all the requirements 9 for eligibility after the period for which your application was in effect, you must file 10 a new application for benefits. ). Lindsay s existing application, however, covers 11 only the time period on or before the date on which the ALJ s decision issued. 12 See 20 C.F.R. § 416.330. 13 D. Plaintiff s Credibility 14 Lindsay argues that a primary reason that the ALJ did not find a severe 15 mental impairment is that the ALJ improperly rejected Lindsay s credibility. JS 8. 16 However, subjective symptoms alone cannot establish a mental impairment at 17 Step Two. Ukolov v. Barnhart, 420 F.3d 1002, 1005 (9th Cir. 2005); Social 18 Security Ruling (SSR) 96-4p. 19 To determine whether a claimant s testimony regarding subjective pain or 20 symptoms is credible, an ALJ must engage in a two-step analysis. Lingenfelter 21 v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). 22 Under the first prong, the ALJ must determine whether the claimant has 23 presented objective medical evidence of an underlying impairment which could 24 reasonably be expected to produce the pain or other symptoms alleged. The 25 claimant, however, need not show that her impairment could reasonably be 26 expected to cause the severity of the symptom she has alleged; she need only 27 show that it could reasonably have caused some degree of the symptom. Thus, 28 the ALJ may not reject subjective symptom testimony . . . simply because there is 10 1 no showing that the impairment can reasonably produce the degree of symptom 2 alleged. Id. (citations omitted); Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir. 3 1991) (en banc). 4 Here, the ALJ found that Lindsay suffered from tendinitis and bursitis of the 5 left shoulder. A.R. 29. However, the ALJ found that there was no objective 6 medical evidence of a severe mental impairment. A.R. 27. The ALJ s finding is 7 supported by substantial evidence as discussed above in Part III.C. 8 9 Under the second prong, if the claimant meets this first test, and there is no evidence of malingering, the ALJ can reject the claimant s testimony about 10 the severity of her symptoms only by offering specific, clear and convincing 11 reasons for doing so. Lingenfelter, 504 F.3d at 1036 (citations omitted). In 12 making a credibility determination, the ALJ must specifically identify what 13 testimony is credible and what testimony undermines the claimant s complaints. 14 Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006) (citation omitted). 15 Lindsay does not assert that the ALJ must satisfy the clear and convincing 16 standard to discount his credibility. JS 13. The clear and convincing standard 17 applies only where there is no evidence of malingering. Carmickle v. 18 Commissioner of the Social Security Administration, 533 F.3d 1155, 1160 & n.1 19 (9th Cir. 2008); Lingenfelter, 504 F.3d at 1036. As discussed above in Part III.C. 20 and as noted by Lindsay (JS 13), there is evidence of malingering in this case. 21 Therefore, the ALJ need only set forth specific and legitimate reasons for 22 discounting Lindsay s credibility. See Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 23 2007). The ALJ must cite the reasons why the claimant s testimony is 24 unpersuasive. Id. (citation and internal quotation marks omitted). The 25 distinction in the governing legal standard does not affect the outcome of this 26 case because the ALJ s credibility finding is supported by substantial evidence 27 under both the clear and convincing standard and the specific and legitimate 28 reasons standard. 11 1 The ALJ found that Lindsay s allegations regarding his limitations are not 2 totally credible. A.R. 30. The ALJ listed three reasons: (1) medical providers 3 noted Lindsay s lack of credibility; (2) the validity of Lindsay s somatic complaints 4 was questioned by medical providers; and (3) failure to obtain treatment. A.R. 5 25-26 & n.3. 6 Lindsay appears to concede that the ALJ may have provided some 7 legitimate reasons for discounting Lindsay s subjective symptoms. JS 14. 8 However, Lindsay argues that because the ALJ also provided non-legitimate 9 reasons, the case must be remanded. Id. 10 Lindsay s argument was rejected by the Ninth Circuit in Carmickle v. 11 Commissioner of the Social Security Administration, 533 F.3d 1155 (9th Cir. 12 2008). In Carmickle, the Ninth Circuit concluded that two of the ALJ s reasons 13 for making an adverse credibility finding were invalid. The court held that when 14 an ALJ provides specific reasons for discounting the claimant s credibility, the 15 question is whether the ALJ s decision remains legally valid, despite such error, 16 based on the ALJ s remaining reasoning and ultimate credibility determination. 17 Id. at 1162 (italics in original). Therefore, when, as here, an ALJ articulates 18 specific reasons for discounting a claimant s credibility, reliance on an illegitimate 19 reason(s) among others does not automatically result in a remand. 20 The ALJ properly relied on physician notations regarding Lindsay s lack of 21 credibility. See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002) 22 (statements by physicians concerning nature, severity, and effect of a claimant s 23 symptoms may be considered in weighing claimant s credibility); see also 24 Smolen, 80 F.3d at 1284 (ALJ may use ordinary techniques of credibility 25 evaluation, such as the claimant s reputation for lying, prior inconsistent 26 statements concerning the symptoms, and other testimony by the claimant that 27 appears less than candid ). 28 12 1 As the ALJ found, Dr. Reznick noted Lindsay s sub-optimal effort during 2 the psychological evaluations and noted that the test performances seemed to 3 underestimate his actual levels of functioning. A.R. 25, 205. See Thomas, 278 4 F.3d at 959 (ALJ may rely on claimant s failure to give maximum or consistent 5 effort during examinations). The ALJ also relied on Dr. Reznick s notations 6 regarding inconsistencies in Lindsay s answers. A.R. 25. For example, Lindsay 7 stated to Dr. Reznick that he was unable to drive a car. However, in the written 8 questionnaire, Lindsay reported that he drove himself to the appointment. A.R. 9 25, 208-09. Inconsistencies or discrepancies in a claimant s statements may be 10 11 considered in weighing credibility. Thomas, 278 F.3d at 958-59. The ALJ also properly relied on the absence of medical records supporting 12 Lindsay s allegations, although it would not be sufficient alone to discount his 13 credibility. See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) ( Although 14 lack of medical evidence cannot form the sole basis for discounting pain 15 testimony, it is a factor that the ALJ can consider in his credibility analysis. ). 16 Here, Lindsay complained of diabetes and hypertension, but the examining 17 physician saw no sign of diabetes in his medical records6 and his blood pressure 18 was unremarkable today, with the diastolic slightly elevated (122/88). A.R. 25, 19 216-219. Lindsay complained of multiple skull fractures and paralysis on the left 20 side from an automobile accident in 2002, but the medical record indicates 21 sprains and strains of the back and left shoulder with no discussion of any skull 22 fractures or paralysis. A.R. 26, 128-133, 206. The ALJ also noted that when 23 Lindsay presented with multiple somatic complaints involving multiple systems at 24 the Hubert H. Humphrey Comprehensive Health Center, the records contain a 25 notation to rule out somatoform disorder versus GAD (generalized anxiety 26 disorder). A.R. 26, 170. As noted above, the AFH physician s initial diagnosis 27 28 6 The complete blood count and urinalysis reports were part of the medical record that Dr. Borigini reviewed in preparing his report. A.R. 217. 13 1 also included possible malingering. A.R. 26, 160 ( somatization disorder vs. 2 malingering vs. GAD [generalized anxiety disorder] vs. conversion disorder vs. 3 depressive disorder ). Lindsay did not return to AFH for psychological testing 4 during the relevant time period. A.R. 26, 262. 5 Although an ALJ may consider an unexplained failure to seek treatment, 6 Thomas, 278 F.3d at 958-59, there is some question as to whether an ALJ may 7 discount the credibility of a claimant who claims a mental impairment on the 8 basis of an unexplained failure to seek treatment. In Regennitter v. 9 Commissioner of Social Security Administration, 166 F.3d 1294 (9th Cir. 1999), 10 the examining physician diagnosed major depression, post-traumatic stress 11 disorder, nightmare disorder and panic disorder, and found that the claimant 12 exceeded a listed impairment. Id. at 1298. The Ninth Circuit held that the ALJ 13 erred in rejecting the examining physician s opinion. Id. at 1299. Specifically as 14 relevant here, the Ninth Circuit stated that the claimant s failure to seek treatment 15 was not a valid reason for the ALJ to reject the examining physician s opinion. 16 Id. at 1299-1300; see Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996) 17 (claimant s failure to seek treatment is not a legitimate reason to reject 18 psychologist s opinion). By contrast, the ALJ in this case did not rely on an 19 unexplained failure to seek treatment in order to reject a physician s opinion. 20 Even assuming that an unexplained failure to seek treatment cannot be 21 considered a valid reason to discount credibility under the facts in this case,7 the 22 ALJ s other reasons for discounting Lindsay s credibility are supported by 23 24 25 26 27 28 7 There is also a question as to whether the ALJ s citation of Lindsay s refusal to undergo surgery on his left shoulder was a legally valid reason for discounting his credibility. A.R. 26. The ALJ noted a medical record in April 2005 which indicated that Lindsay s pain in his left shoulder was well controlled with medication. A.R. 26 n.3, 172. On the other hand, at the December 13, 2005 hearing, Lindsay testified that he was unable to pay for the surgery. A.R. 351. A failure to obtain treatment is not a sufficient reason to deny benefits where the claimant suffers from financial hardships. See Gamble v. Chater, 68 F.3d 319, 320-22 (9th Cir. 1995). 14 1 substantial evidence and are not minor. See Carmickle, 533 F.3d at 1162. If 2 the ALJ s credibility finding is supported by substantial evidence in the record, we 3 may not engage in second-guessing. Thomas, 278 F.3d at 959; Morgan v. 4 Commissioner of the Social Security Administration, 169 F.3d 595, 600 (9th Cir. 5 1999). 6 IV. 7 ORDER 8 IT IS HEREBY ORDERED that the Commissioner s decision is affirmed. 9 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this 10 Order and the Judgment herein on all parties or their counsel. 11 12 13 DATED: September 10, 2008 ALICIA G. ROSENBERG United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15

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