Ignacio Fletes Vera v. Michael J Astrue, No. 2:2012cv07078 - Document 24 (C.D. Cal. 2013)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner and dismissing this action with prejudice. (See document for further details). (mr)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 IGNACIO FLETES VERA, 10 Plaintiff, 11 12 13 vs. CAROLYN W. COLVIN, Acting Commissioner of Social Security,1 14 Defendant. 15 ) Case No. CV 12-7078-SS ) ) ) ) ) MEMORANDUM OPINION AND ORDER ) ) ) ) ) ) 16 17 I. PROCEEDINGS 18 19 Plaintiff Ignacio Fletes Vera ( Plaintiff ) seeks review of 20 the Commissioner s final decision denying his application for 21 Social Security disability insurance benefits ( DIB ). The parties 22 consented to the jurisdiction of the undersigned U.S. Magistrate 23 Judge pursuant to 28 U.S.C. § 636(c). This matter is before the 24 Court on the parties Joint Stipulation, filed May 28, 2013, which 25 26 1 On February 14, 2013, Colvin became the Acting 27 Commissioner of Social Security. Pursuant to Federal Rule of therefore 28 Civil Procedure 25(d), the CourtRespondent.substitutes Colvin for Michael J. Astrue as the proper 1 1 the Court has taken the motion 2 argument. For the reasons under submission without oral stated below, the Commissioner s 3 decision is affirmed and this action is dismissed. 4 5 II. BACKGROUND 6 7 Plaintiff was born on July 31, 1965 and was thirty-nine, a 8 younger individual, at the time of the hearing. 9 Record ( AR ) 18, 91, 175.) (Administrative He finished high school and an 10 associate degree. (AR 19-20.) He previously worked as a tool-crib 11 attendant in the aerospace industry, a tool-truck operator in the 12 Army, a parts-delivery person at a car dealership, a slot 13 representative and slot supervisor at casinos, and a stocker at 14 Walmart. (AR 21-36.) 15 16 On August 12, 2008, Plaintiff filed an application for DIB. 17 (AR 175-77.) Plaintiff alleged that he had been unable to work 18 since June 30, 2005, because of major depression, posttraumatic 19 stress disorder, a kidney condition, a back condition, and migraine 20 headaches. (AR 175, 211.) After his application was denied on 21 initial review and reconsideration, Plaintiff requested a hearing 22 before an Administrative Law Judge ( ALJ ). (AR 104-09, 112-16, 23 118-19.) A hearing was held on June 11, 2010, at which Plaintiff, 24 who was represented by counsel, testified, as did a vocational 25 expert ( VE ). (AR 14-69.) In a written decision issued November 26 22, 2010, the ALJ found that Plaintiff was not disabled. 27 93.) (AR 78- Plaintiff requested that the Appeals Council review the ALJ 28 decision and submitted additional argument and evidence, including 2 1 Department of Veterans Affairs ( VA ) treatment notes dating 2 through May 2011. (AR 257-91, 685-750.) On June 22, 2012, the 3 Appeals Council noted that the new information d[id] not provide 4 a basis for changing the [ALJ s] decision and denied his request 5 for review. (AR 97-102.) The Council also noted that some of the 6 submitted medical evidence postdated the ALJ s November 22, 2010 7 decision and therefore d[id] not affect the decision about whether 8 [he was] disabled beginning on or before that date.2 (AR 98.) 9 This action followed. 10 11 III. STANDARD OF REVIEW 12 13 Pursuant to 42 U.S.C. § 405(g), a district court may review 14 the Commissioner s decision to deny benefits. The ALJ s findings 15 and decision should be upheld if they are free of legal error and 16 supported by substantial evidence based on the record as a whole. 17 § 405(g); Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 18 1427, 28 L. Ed. 2d 842 (1971); Parra v. Astrue, 481 F.3d 742, 746 19 (9th Cir. 2007). Substantial evidence means such evidence as a 20 reasonable person might accept as adequate to support a conclusion. 21 Richardson, 402 U.S. at 401; Lingenfelter v. Astrue, 504 F.3d 1028, 22 1035 (9th Cir. 2007). It is more than a scintilla but less than a 23 preponderance. Lingenfelter, 504 F.3d at 1035 (citing Robbins v. 24 Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). To determine 25 26 27 28 2 The Appeals Council informed Plaintiff that [i]f you want us to consider whether you were disabled after November 22, 2010, you need to apply again and that it would use the date of Plaintiff s request for review as the date of his new claim. (AR 98.) 3 1 whether substantial evidence supports a finding, the reviewing 2 court must review the administrative record as a whole, weighing 3 both the evidence that supports and the evidence that detracts from 4 the Commissioner s conclusion. Reddick v. Chater, 157 F.3d 715, 5 720 (9th Cir. 1996). Moreover, when the Appeals Council considers 6 new evidence in deciding whether to review a decision of the ALJ, 7 that evidence becomes part of the administrative record, which the 8 district court must consider when reviewing the Commissioner s 9 final decision for substantial evidence. Brewes v. Comm r of Soc. 10 Sec. Admin., 682 F.3d 1157, 1163 (9th Cir. 2012); see also Taylor 11 v. Comm r of Soc. Sec. Admin., 659 F.3d 1228, 1232 (9th Cir. 2011). 12 If the evidence can reasonably support either affirming or 13 reversing, the reviewing court may not substitute its judgment 14 for that of the Commissioner. Id. at 720-21. 15 16 IV. THE EVALUATION OF DISABILITY 17 18 People are disabled for purposes of receiving Social 19 Security benefits if they are unable to engage in any substantial 20 gainful activity owing to a physical or mental impairment that is 21 expected to result in death or which has lasted, or is expected to 22 last, for a continuous period of at least 12 months. 42 U.S.C. § 23 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 24 1992). 25 \\ 26 \\ 27 \\ 28 \\ 4 1 A. The Five-Step Evaluation Process 2 3 The ALJ follows a five-step sequential evaluation process in 4 assessing whether a claimant is disabled. 20 C.F.R. 5 § 404.1520(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 6 1995) (as amended Apr. 9, 1996). In the first step, the 7 Commissioner must determine whether the claimant is currently 8 engaged in substantial gainful activity; if so, the claimant is not 9 disabled and the claim must be denied. § 404.1520(a)(4)(I). If 10 the claimant is not engaged in substantial gainful activity, the 11 second step requires the Commissioner to determine whether the 12 claimant has a severe impairment or combination of impairments 13 significantly limiting his ability to do basic work activities; if 14 not, a finding of not disabled is made and the claim must be 15 denied. § 404.1520(a)(4)(ii). If the claimant has a severe 16 impairment or combination of impairments, the third step requires 17 the Commissioner to determine whether the impairment or combination 18 of impairments meets or equals an impairment in the Listing of 19 Impairments ( Listing ) set forth at 20 C.F.R., Part 404, Subpart 20 P, Appendix 1; if so, disability is conclusively presumed and 21 benefits are awarded. § 404.1520(a)(4)(iii). If the claimant s 22 impairment or combination of impairments does not meet or equal an 23 impairment in the Listing, the fourth step requires the 24 Commissioner to determine whether the claimant has sufficient 25 residual functional capacity ( RFC )3 to perform his past work; if 26 27 28 3 RFC is what a claimant can still do despite existing exertional and nonexertional limitations. 20 C.F.R. § 404.1545; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 5 1 so, the claimant is not disabled and the claim must be denied. 2 § 404.1520(a)(4)(iv). The claimant has the burden of proving that 3 he is unable to perform past relevant work. 4 1257. Drouin, 966 F.2d at If the claimant meets that burden, a prima facie case of 5 disability is established. Id. If that happens or if the claimant 6 has no past relevant work, the Commissioner then bears the burden 7 of establishing that the claimant is not disabled because he can 8 perform other substantial gainful work available in the national 9 economy. § 404.1520(a)(4)(v). That determination comprises the 10 fifth and final step in the sequential analysis. § 404.1520; 11 Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257. 12 13 B. The ALJ s Application of the Five-Step Process 14 15 At step one, the ALJ found that Plaintiff had not engaged in 16 any substantial gainful activity since June 30, 2005. (AR 80.) At 17 step two, the ALJ concluded that Plaintiff had the severe 18 impairments of 19 20 [m]ild-to-moderate degenerative disc and joint disease, 21 lumbosacral spine, including bilateral L5-S1 pars defect, 22 stable, and without 23 nephropathy, presumed 24 diagnostic,4 resulting significant spondylolisthesis; IgA although biopsy in chronic kidney was non- disease, 25 26 27 28 4 Nephropathy is damage, disease, or other problems with the kidney. IgA nephropathy, MedlinePlus, http://www.nlm.nih. gov/medlineplus/ency/article/000466.htm (last updated Mar. 22, 2013). IgA nephropathy is a kidney disorder in which antibodies called IgA build up in kidney tissue. Id. Symptoms include 6 1 arrested at stage 3, and currently inactive with labs 2 improving; 3 parathyroid 4 migraine 5 medication; parathyroid adenoma,6 excised in March 2008; obstructive surgery, headaches; sleep no apnea, longer on hypertension, improved CPAP;5 after infrequent controlled on 6 \\ 7 \\ 8 \\ 9 \\ 10 \\ 11 \\ 12 \\ 13 \\ 14 \\ 15 \\ 16 \\ 17 18 dark or bloody urine, swelling of the hands and feet, and symptoms of chronic kidney disease. Id. The goal of treatment 19 is to relieve symptoms and prevent or delay chronic renal 20 failure. 21 22 23 24 25 26 27 28 Id. 5 CPAP stands for continuous positive airway pressure. Sleep Apnea Health Center, WebMD, http://www.webmd.com/ sleep-disorders/sleep-apnea/continuous-positive-airway-pressure-c pap-for-obstructive-sleep-apnea (last updated June 17, 2011). CPAP therapy uses a machine to help a person who has obstructive sleep apnea breathe more easily during sleep. Id. 6 A parathyroid adenoma is a noncancerous (benign) tumor of the parathyroid glands, which are located in the neck. Parathyroid adenoma, MedlinePlus, http://www.nlm.nih.gov/ medlineplus/ency/article/001188.htm (last updated July 19, 2012). Parathyroid adenomas are the most common cause of hyperparathyroidism (overactive parathyroid glands), which leads to increased blood calcium levels. Id. 7 1 mild osteopenia,7 in femur only, not in spine; mild 2 degenerative joint disease, left knee; remote history of 3 left elbow injury with apparent intra-articular loose 4 body on x-rays; obesity, improving (68 inches tall, 256- 5 to-229 pounds, BMI 39-to-45); major depressive disorder; 6 and dysthymia. 7 8 (AR 80.) At step three, the ALJ determined that Plaintiff s 9 impairments did not meet or equal any of the impairments in the 10 Listing. (AR 83.) At step four, the ALJ found that Plaintiff 11 retained the RFC to perform: 12 13 work activity at the sedentary exertional level,8 lifting 14 and carrying up to ten pounds, sitting for six hours per 15 eight-hour workday, and standing and walking for two 16 hours per eight-hour workday, with no pushing or pulling 17 in the operation of machinery with the non-dominant left 18 upper extremity, and with the following nonexertional 19 20 21 22 23 24 25 26 27 28 7 Osteopenia refers to bone mineral density (BMD) that is lower than normal peak BMD but not low enough to be classified as osteoporosis. Osteopenia - Overview, WebMD, http://www.webmd .com/osteoporosis/tc/osteopenia-overview (last updated Feb. 23, 2011). Having osteopenia means there is a greater risk that, as time passes, [a person] may develop BMD that is very low compared to normal, known as osteoporosis. Id. Osteopenia has no symptoms, although the risk of breaking a bone increases as the bone becomes less dense. Id. 8 Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. 20 C.F.R. § 404.1567(a). Sedentary work involves sitting most of the time but may involve occasional walking or standing for brief periods of time. Id. 8 1 limitations: never climbing ladders, ropes or scaffolds; 2 occasionally climbing ramps and stairs; occasionally 3 stooping and crouching; never balancing, kneeling, or 4 crawling; avoiding concentrated exposure to dangerous 5 moving 6 unprotected heights; avoiding concentrated exposure [to] 7 extremes of heat, cold and humidity; and mentally limited 8 to unskilled work with no close or frequent interpersonal 9 contact with supervisors, co-workers, or the public. machinery, electric shock, radiation and 10 11 (AR 84.) Based on the VE s testimony, the ALJ concluded that 12 Plaintiff was 13 significant capable numbers in of performing the national jobs that economy. existed (AR in 91-92.) 14 Accordingly, the ALJ determined that Plaintiff was not disabled. 15 (AR 92-93.) 16 17 V. RELEVANT FACTS 18 19 On August 6, 2005, a doctor at the Inland Psychiatric Medical 20 Group, Inc., diagnosed Plaintiff with bipolar disorder, mixed type. 21 (AR 295.) The doctor found that Plaintiff had a labile affect and 22 depressed and anxious mood but was well-groomed; had calm motor 23 activity and intact thought process, memory, and judgment; and did 24 not have hallucinations or delusions. (Id.) The doctor opined 25 that Plaintiff s mental condition had no effect on his relationship 26 with his wife, a mild effect on his relationship with his family 27 and health, and a severe effect on his other primary relationships 28 and his ability to work. (Id.) 9 1 On January 14, 2005, Plaintiff underwent a renal biopsy 2 through the VA healthcare system.9 (AR 311-12.) On March 14, 3 2005, Plaintiff was diagnosed with a left renal hematoma resulting 4 from the renal biopsy. (AR 306-08.) He was prescribed morphine to 5 control his pain. (AR 308.) 6 7 On December 19, 2005, x-rays of Plaintiff s lumbar spine 8 showed mild to moderate L1/L2 spondylosis and degenerative disc 9 disease, mild L5/S1 degenerative disc disease, and L4-S1 facet 10 arthritis. (AR 384.) On January 25, 2006, parathyroid imaging 11 showed a parathyroid adenoma. (AR 554-55.) 12 13 On August 3, 2007, Dr. Donald Martindill examined Plaintiff as 14 part of Plaintiff s application for VA benefits, noting that 15 Plaintiff was seeking individual unemployment. 10 (AR 380-83.) 16 Dr. Martindill noted that Plaintiff had served in the Army from 17 February 1996 to August 1998, when he was honorably discharged. 18 (AR 380.) Dr. Martindill noted that Plaintiff became depressed 19 after injuring his elbow in the service but was never in combat. 20 Plaintiff reported that he had massive financial problems, his 21 marriage was stressful, his wife was continually on his back, 22 and he had a strong sex drive, but his wife [was] not quite up to 23 24 25 26 27 28 9 Unless otherwise noted, all of Plaintiff s medical treatment has been through the VA. 10 VA regulations state that a veteran may receive a [t]otal disability rating based on the unemployability of the individual when he or she is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities that are rated by the VA as at least 60 or 70 percent disabling. 38 C.F.R. § 4.16(a). 10 1 speed in that department. (Id.) Dr. Martindill found that 2 Plaintiff felt picked on with low-grade paranoia but was not 3 psychotic. (Id.) Dr. Martindill noted that Plaintiff complained 4 of depression without suicidal ideation and worried that he would 5 never be able to keep a job. (AR 381.) Dr. Martindill s mental- 6 status examination revealed: 7 8 [a] veteran who thought it was August 5, 2007, rather 9 than August 3, 2007. He knew the current officeholders 10 and 11 distance to New York City. 12 guess. 13 degree. 14 seemed slow. 15 He did well naming presidents backwards, adequately on 16 the serial 7 s. Concentration was poor. He had I don t 17 give a shit attitude. He was serious-minded. 18 only when spoken to. His affect was dull, his mood 19 depressed, but he was not psychotic. 20 hours of sleep per night. 21 down for sex occasionally, if not frequently. He has not 22 seen a psychiatrist for quite a long time. 23 his medication refilled. intercity distances but had no idea as to the He would not even make a His IQ was in the average range. He has an AA He was cognitively intact, but his mentation He put little effort into the examination. He spoke He only gets 5 His wife apparently turns him He just gets 24 25 (Id.) Dr. Martindill noted that Plaintiff indicated that he did 26 not care whether he lived or died but [was] willing to get his 27 kidney status checked and see a neurologist for his migraine 28 headaches. (Id.) He noted that Plaintiff did not have an 11 1 impulse problem and denied ever having alcohol or drug problems, 2 which was quite hard to believe. (AR 382.) Dr. Martindill 3 diagnosed [m]ajor depressive disorder, ongoing and a global 4 assessment of functioning ( GAF ) score of 50 and noted that 5 Plaintiff had prominent passive-aggressive traits but did not 6 have a full-blown personality disorder.11 (AR 382-83.) 7 8 Dr. Martindill opined that Plaintiff s depressive disorder had 9 a moderately severe effect on his occupational and social 10 functioning, but that with more aggressive treatment and closer 11 monitoring and possible group therapy, anger management, and other 12 changes in a therapeutic approach, including a possible 13 consideration of other anti-depressants or even psychostimulants, 14 it is more likely than not that the veteran could obtain work. 15 (AR 383.) Dr. Martindill noted that he frankly [did] not feel [he 16 could] recommend unemployability status to this individual at this 17 early age, and that it seems . . . something could be done with 18 this relatively young individual with a past history of good work 19 performance . . . to get back to a status where he could be 20 employed. (Id.) 21 \\ 22 \\ 23 24 25 26 27 28 11 A GAF score represents a rating of overall psychological functioning on a scale of 0 to 100. See Am. Psychiatric Ass n, Diagnostic and Statistical Manual of Disorders, Text Revision 34 (4th ed. 2000). A GAF score in the range of 41 to 50 indicates [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). Id. 12 1 Dr. Martindill noted that Plaintiff was unmotivated for further 2 work, had indicated he had no will to live but had never been 3 hospitalized and was not felt to be a danger to self or others. 4 (Id.) 5 6 On October 30, 2007, primary-care physician Dr. Laura M. Kim 7 noted that Plaintiff had missed medical appointments for the past 8 18 months because he felt frustrated with his [appointments] and 9 felt that no one cares. (AR 582.) Dr. Kim noted that Plaintiff 10 had IgA nephrology and chronic kidney disease, parathyroid adenoma, 11 depression, controlled hypertension, chronic pain, and osteopenia 12 because of his hyperparathyroidism.12 (AR 585-86.) She noted that 13 Plaintiff did not complain much of pain during visit and 14 recommended that he continue taking apap, or acetaminophen.13 (AR 15 586.) 16 17 On November 16, 2007, Dr. Kim noted that Plaintiff reported 18 that his depression started when he joined the Army ten years 19 earlier. (AR 579.) Dr. Kim noted that Plaintiff had injured his 20 elbow early in the training and still holds anger and resentment 21 about not having advanced onward in rank while others who came in 22 23 24 25 26 27 28 12 Hyperparathyroidism is a disorder in which the parathyroid glands in the neck produce too much parathyroid hormone, which controls calcium, phosphorus, and vitamin D levels in the blood and bone. Hyperparathyroidism, MedlinePlus, http://www.nlm.nih.gov/medlineplus/ency/article/001215.htm (last updated Mar. 22, 2013). 13 APAP is another term for acetaminophen. Acetaminophen, MedlinePlus, http://www.nlm.nih.gov/medlineplus/druginfo/meds/ a681004.html (last updated July 15, 2013). 13 1 after him did. (Id.) Plaintiff said that he had hard time 2 holding a job because any sight of injustice towards anyone 3 around him gets him angry. 4 depression and (AR 580.) posttraumatic Dr. Kim diagnosed mixed stress disorder, prescribed 5 medications, advised him to seek counseling, and referred him to 6 psychiatry. (Id.) Dr. Kim also noted that Plaintiff complained of 7 back pain related to his renal biopsy, but that testing did not 8 reveal a cause of his pain. (Id.) She advised him to continue 9 taking acetaminophen and referred him to physical therapy. (Id.) 10 11 On December 3, 2007, Dr. Ken J. Park noted that Plaintiff 12 suffered from IgA nephropathy, hypertension, depression, stage13 three chronic kidney disease, parathyroid adenoma, obstructive 14 sleep apnea on CPAP, and osteopenia. (AR 575, 577.) Dr. Park 15 noted that Plaintiff was not taking any over-over-the-counter 16 medications and that his chronic kidney disease was presumed to 17 be caused by IgA nephropathy even though Plaintiff s renal biopsy 18 had been nondiagnostic. (AR 575, 577.) Dr. Park noted that 19 Plaintiff complained of flank pain, ordered a renal ultrasound, 20 and instructed Plaintiff to return in one year. (AR 577.) On 21 December 4, 2007, Dr. Sumana Jothi noted that Plaintiff had 22 transient increased calcium levels and other findings consistent 23 with parathyroid adenoma. 24 a parathyroidectomy. (AR 573.) Plaintiff was scheduled for (AR 573-74.) 25 26 On December 13, 2007, Dr. Julie M. Wilcox, who was board- 27 certified in psychiatry and neurology (AR 315), noted that 28 Plaintiff s last psychiatric appointment had been with a different 14 1 doctor in May 2006. (AR 571.) At that time, Plaintiff s diagnosis 2 was dysthymia with superimposed major depressive episode and his 3 GAF score was 55.14 (Id.). Plaintiff reported that he had stopped 4 going to his appointments because he did not feel he was being 5 treated with respect by any of his doctors and was concerned that 6 he couldn t be around people [because] of his anger. (AR 572.) 7 Plaintiff reported anger, bad mood, middle insomnia, anhedonia, 8 decreased short-term memory and concentration, feelings of 9 worthlessness and hopelessness, poor motivation, and occasional 10 suicidal ideation. (Id.) Dr. Wilcox noted that Plaintiff had a 11 tired, mildly sad affect but was alert and oriented with good 12 hygiene and eye contact, normal speech, goal-directed thoughts, and 13 intact insight and judgment. (Id.) She prescribed medication and 14 referred Plaintiff to anger management. (Id.) 15 16 On December 13, 2007, an echogram showed signs consistent 17 with medical renal disease and a nine-millimeter cyst in the 18 midpole of the right kidney. (AR 440.) On January 10, 2008, Dr. 19 Jhanna Nariyants noted that Plaintiff had hypercalemia related to 20 primary hyperparathyroidism 21 parathyroidectomy. and was scheduled to have a (AR 567-71.) 22 \\ 23 \\ 24 25 26 27 28 14 A GAF score in the range of 51 to 60 indicates [m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). See Am. Psychiatric Ass n, supra, at 34. 15 1 On January 30, 2008, Dr. Wilcox noted that Plaintiff reported 2 that his medications were not helping, his [s]evere irritability 3 and anger is ruining his marriage and negatively affecting his 4 relat[ionships] with his children. (AR 566.) Plaintiff reported 5 that he was tired of his medication because of sexual side effects 6 and was desperate to get better. (Id.) Dr. Wilcox noted that 7 Plaintiff had a [d]istressed and irritable mood and affect, his 8 speech was raised at times with mild pressure, but he was alert 9 and oriented with good hygiene and eye contact, goal-directed 10 thoughts, and intact insight and judgment. (AR 566-67.) 11 12 On February 4, 2008, Dr. Kim changed Plaintiff s hypertension 13 medication, noted that he was using his CPAP machine for an hour a 14 night and recommended that he use it more, and recommended diet and 15 exercise to help resolve his obesity and depression. (AR 565.) 16 Dr. Kim noted that Plaintiff complained of migraine headaches with 17 unusual characteristic but had a negative neurological exam; she 18 recommended that he take acetaminophen as needed. (AR 566.) 19 20 On March 5, 2008, Plaintiff was noted to have 21 hyperparathyroidism and underwent a parathyroidectomy. (AR 370-71, 22 437-38, 470-72.) 23 parathyroid adenoma. Pathology findings (AR 441.) 24 discharged in good condition. were consistent with On March 7, 2008, Plaintiff was (AR 412, 470-71.) On March 13, 25 2008, Dr. Cyrus Torchinsky noted that Plaintiff was doing well 26 after his parathyroidectomy. (AR 408.) 27 \\ 28 \\ 16 1 On March 27, 2008, Dr. Wilcox noted that Plaintiff had not 2 seen any changes with his psychiatric medication, his nightmares 3 were worse and sleep poor, and he was more restless and irritable. 4 (AR 407.) Plaintiff was alert and oriented, with normal speech, 5 good hygiene and eye contact, goal-directed thoughts, and intact 6 insight and judgment. (Id.) She 7 depressive disorder and dysthymia. diagnosed recurrent major (Id.) 8 9 On April 3, 2008, Dr. Karl Y. Hostetler noted that Plaintiff 10 was doing well after his parathyroidecnomy and had no 11 hypocalcemia and normal levels calcium and pth, or parathyroid 12 hormone.15 (AR 406.) 13 six months. He recommended that Plaintiff follow up in (Id.) 14 15 On May 15, 2008, Dr. Wilcox noted that Plaintiff reported that 16 he does not care about anything or anyone, feels nothing. 17 402.) (AR Plaintiff was alert and oriented with normal speech, good 18 hygiene and eye contact, goal-directed thoughts, and intact insight 19 and judgment. (Id.) Dr. Wilcox diagnosed major depressive 20 disorder, recurrent and dysthymic and advised him to return in six 21 weeks. (Id.) 22 23 On May 27, 2008, Dr. Kim noted that Plaintiff complained of 24 left-sided post-biopsy back pain that was nonradiating, felt better 25 with activity, and did not interfere with Plaintiff s sleep. (AR 26 27 28 15 PTH stands for parathyroid hormone. PTH, MedlinePlus, http://www.nlm.nih.gov/medlineplus/ency/article/003690.htm (last updated Mar. 22, 2013). 17 1 395.) Plaintiff said that acetaminophen was not working and he 2 wanted something to bring the level down and that he was sleeping 3 better and walking with his family almost daily. (AR 395, 397.) 4 Dr. Kim found that Plaintiff weighed 259 pounds, had tenderness to 5 palpation in the mid-thoracic area on the left, full range of 6 motion but some pain, no active spasms, and 5/5 lower-extremity 7 strength. (Id.) She noted that x-rays and CT scans were negative 8 for a source of Plaintiff s back pain, advised him to continue 9 daily walking, and prescribed acetaminophen with codeine. (AR 10 398.) 11 12 On June 19, 2008, Dr. Wilcox noted that Plaintiff was being 13 evicted from his home and that since he had started receiving 100% 14 disability he [had not] been able to work and therefore [could not] 15 provide for his family. (AR 393.) Plaintiff reported a definite 16 benefit from his medications and said that he was sleeping six 17 hours straight each night. (Id.) Dr. Wilcox noted that Plaintiff 18 had a stressed mood and congruent, frustrated affect, but he 19 was alert and oriented, with normal speech, good hygiene and eye 20 contact, goal-directed thoughts, and intact insight and judgment. 21 (Id.) She diagnosed recurrent major depressive disorder and 22 dysthymia and recommended that he return in six to eight weeks. 23 (AR 393-94.) 24 25 On August 7, 2008, Dr. Wilcox noted that Plaintiff and his 26 family were living with Plaintiff s mother, which Plaintiff found 27 extremely stressful. (AR 392.) Plaintiff reported that his 28 depression had worsened, his sleep was poor, and he was isolating 18 1 himself. (Id.) He requested a letter stating his treatment for 2 his application for social security disability. (Id.) Dr. Wilcox 3 found that Plaintiff had a [d]epressed mood and affect but was 4 alert and oriented with normal speech, goal-directed thoughts, and 5 intact judgment and insight. (Id.) She diagnosed recurrent major 6 depressive disorder and dysthymia and recommended that he return in 7 six weeks. (AR 392.) 8 9 Also on August 7, 2008, Dr. Wilcox wrote a letter stating that 10 Plaintiff was compliant with his treatment but it had been 11 difficult to get his illness stabilized with a medication regimen 12 and therefore he continues to be quite depressed. (AR 315.) She 13 listed his symptoms as depressed mood, isolation, irritability, 14 insomnia, decreased daytime energy, poor short-term memory, poor 15 attention span, decreased concentration, passive thoughts of death, 16 and decreased motivation. (Id.) She found that, [b]ecause of 17 this, in no way is he able to obtain or maintain gainful 18 employment. (Id.) 19 20 On September 5, 2008, a Social Security Administration ( SSA ) 21 consulting doctor, K. Loomis, reviewed Plaintiff s medical records 22 and completed a psychiatric-review-technique form at the SSA s 23 request. (AR 316-26.) Dr. Loomis found that Plaintiff had a 24 depressive disorder that resulted in no restriction of activities 25 of daily living; 26 functioning; mild mild difficulties difficulties in in maintaining maintaining social concentration, 27 persistence, or pace; and no repeated episodes of decompensation. 28 (AR 319, 324.) Dr. Loomis concluded that Plaintiff s impairments 19 1 were not severe. (AR 316.) On September 11, 2008, another SSA 2 consulting doctor, Thu N. Do, reviewed the record and affirmed Dr. 3 Loomis s assessment. (AR 329.) 4 5 On September 2, 2008, Dr. Mounir Soliman, who was board 6 certified in psychiatry and neurology, examined Plaintiff at SSA s 7 request. (AR 339-43.) Dr. Soliman noted that Plaintiff was 8 pleasant and cooperative throughout the interview. (AR 339.) 9 Plaintiff reported that he had had nightmares and flashbacks since 10 being injured during military training. (AR 339-40.) Dr. Soliman 11 noted that Plaintiff was able to cook, clean, shop, run errands, 12 take care of his own personal hygiene, drive a car, and take care 13 of his own finances. (AR 341.) Plaintiff reported that he got 14 along well with family, friends, and neighbors and was able to 15 focus on his daily activities. (Id.) 16 17 Upon examination, Dr. Soliman found that Plaintiff was able to 18 recall three of three objects in five minutes and perform serial 19 sevens without error. (AR 341.) Plaintiff had intact memory, 20 normal abstract thinking, and good insight. (AR 341-42.) Dr. 21 Soliman diagnosed moderate major depression and assigned a GAF 22 score of about 66. 16 (AR 342-43.) He concluded that, from a 23 psychiatric standpoint, Plaintiff was able to understand, carry 24 25 26 27 28 16 A GAF score in the range of 61 to 70 indicates [s]ome mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. See Am. Psychiatric Ass n, supra, 34. 20 1 out, and remember simple and complex instructions; interact with 2 coworkers, supervisors, and the general public; and withstand the 3 stress and pressures associated with an eight-hour workday, and 4 day-to-day activities. (AR 343.) Dr. Soliman believed that 5 Plaintiff had a fair prognosis and that his condition would be 6 manageable with appropriate treatment. (Id.) 7 8 On September 8, 2008, Dr. Hau H. Tan, who was board-certified 9 in internal medicine, examined Plaintiff at the SSA s request. (AR 10 331-35.) Dr. Tan noted that Plaintiff complained of low-back pain, 11 left-elbow pain, left-knee pain, and migraine headaches. (AR 331.) 12 Plaintiff weighed 256 pounds and his grip strength was 125/130/125 13 on the right and 45/45/35 on the left. (AR 333.) Plaintiff had 14 slight tenderness to palpation of the left flank, a negative 15 straight-leg-raising test, no effusion or instability of the knees, 16 and normal ranges of motion of the back, hips, knees, and ankles. 17 (AR 333-34.) 18 bilaterally Plaintiff had a normal gait, good muscle tone with good active motion, 5/5 strength 19 extremities, intact sensation, and normal reflexes. in all (AR 334-35.) 20 Dr. Tan believed that Plaintiff could perform medium work and lift 21 and carry 50 pounds occasionally and 25 pounds frequently. 22 335.) (AR Plaintiff had unlimited ability to walk, stand, sit, push, 23 and pull. (Id.) 24 25 On September 11, 2008, a SSA consulting physician, Dr. T. Do, 26 reviewed Plaintiff s records and completed a physical-RFC 27 assessment. (AR 346-50.) Dr. Do noted Plaintiff had low-back pain 28 and opined that he was limited to lifting 50 pounds occasionally 21 1 and 25 pounds frequently, standing and walking for about six hours 2 in an eight-hour workday, and sitting for about six hours in an 3 eight-hour workday. (AR 346.) 4 5 On December 1, 2008, Dr. Ali Kashkouli in the nephrology 6 department noted that Plaintiff was doing quite well. (AR 388- 7 89.) Plaintiff was essentially non proteinuric 17 and had normal 8 sleep wake cycles, good appetite, good blood pressure control, 9 and ok calcium levels. (AR 388-89.) Planitiff was instructed to 10 return to the nephrology department in one year. (AR 389.) 11 12 On December 11, 2008, Dr. Wilcox noted that Plaintiff reported 13 middle insomnia, depression, nightmares, and decreased energy but 14 he had a normal appetite and no suicidal ideation. (AR 387.) Upon 15 examination, Plaintiff had a dysphoric mood and tired affect but 16 was alert and oriented with normal speech, good hygiene and eye 17 contact, goal-directed thoughts, intact insight and judgment. 18 (Id.) Dr. Wilcox diagnosed recurrent major depressive disorder and 19 dysthymia and told him to return in two months. (Id.) 20 21 On December 17, 2008, a SSA consulting psychiatrist, Dr. B. A. 22 Smith, reviewed Plaintiff s medical records and agreed with the 23 earlier opinions that Plaintiff s mental impairment was not severe. 24 (AR 358-59.) 25 26 27 28 17 People with proteinuria have urine with an abnormal amount of protein. Protein in Urine (Proteinuria), WebMD, http://www.webmd.com/a-to-z-guides/proteinuria-protein-in-urine (Mar. 14, 2012). The condition is often a sign of kidney disease. (Id.) 22 1 On December 19, 2008, Dr. Susan E. Trompeter noted that 2 Plaintiff weighed 255 pounds and had tenderness at L5/S1 but no 3 straight-leg-raising pain. (AR 383-84.) Plaintiff reported that 4 he was not working because his psychiatrist [would] not clear him 5 to return to work. (AR 383.) Dr. Trompeter recommended that 6 Plaintiff treat his low-back pain with strengthening and stretching 7 exercises and walking and that he return to work as soon as 8 psychiatry can clear. (AR 386.) 9 10 On January 21, 2009, a SSA consulting physician, Dr. D. Rose, 11 reviewed Plaintiff s medical records and found that Plaintiff could 12 perform medium work. (AR 359.) 13 14 On February 25, 2009, Dr. Wilcox noted that Plaintiff 15 complained of severe migraine headaches and continue[d] to be 16 depressed with anhedonia. (AR 485.) Plaintiff was seeking Social 17 Security and VA benefits and wish[ed] he could get back to work. 18 (AR 485.) Dr. Wilcox noted that Plaintiff had a depressed mood and 19 affect but was alert and oriented with normal speech, good hygiene 20 and eye contact, goal-directed thoughts, and intact judgment. (AR 21 485-86.) Dr. Wilcox diagnosed recurrent major depressive disorder 22 and dysthemia. (AR 486.) 23 24 On April 9, 2009, Dr. Wilcox noted that Plaintiff reported 25 feeling numb and always on the alert but that his irritability 26 had decreased. (AR 485.) 27 \\ 28 \\ 23 1 Dr. Wilcox noted that Plaintiff was alert and oriented with normal 2 speech, good hygiene and eye contact, neutral mood and affect, 3 goal-directed thoughts, and intact insight and judgment. (Id.) 4 5 On May 13, 2009, Dr. Wilcox noted that Plaintiff s mood and 6 sleep had improved and his irritability had decreased with 7 medication. (AR 484.) She noted that Plaintiff had a [e]uthymic 8 affect and was alert and oriented with normal speech, good hygiene 9 and eye contact, goal-directed thoughts, and intact judgment. 10 (Id.) She diagnosed recurrent major depressive disorder and 11 dysthymia and recommended that he return in two months. (Id.) 12 13 On June 11, 2009, Dr. Wilcox noted that Plaintiff had not been 14 doing well over the past week because of his daughter s child15 custody problems but that [p]rior to last week he was doing well, 16 his mood was improved, and he felt good. (AR 482.) Dr. Wilcox 17 noted that Plaintiff said that he felt at ease right now and was 18 alert and oriented with normal speech, good hygiene and eye 19 contact, goal-directed thoughts, and intact judgment. (Id.) 20 21 On July 9, 2009, Dr. Wilcox noted that Plaintiff s daughter 22 was having problems with child custody and that Plaintiff had been 23 extremely angry, ready to hurt anyone. (AR 480-81.) Dr. 24 Wilcox noted that Plaintiff was alert and oriented with normal 25 speech, good hygiene and eye contact, goal-directed thoughts, and 26 intact judgment. (AR 481.) 27 \\ 28 \\ 24 1 On August 6, 2009, Dr. Wilcox noted that Plaintiff s physical 2 pain was increasing but that he was controlling his intense anger 3 towards everything. (AR 479.) Plaintiff had a [d]ysphoric mood 4 and affect but was alert and oriented with normal speech, good 5 hygiene and eye contact, goal-directed thoughts, and intact insight 6 and judgment. (Id.) 7 8 On August 24, 2009, Dr. Trompeter noted that Plaintiff was no 9 longer using his CPAP machine because he felt that he did not need 10 it after his parathyroid was removed. (AR 473.) Plaintiff had 11 lost 20 pounds, bringing his weight down to 229 pounds, which he 12 attributed to better dietary choices. (Id.) Plaintiff also 13 reported that he had moved to a new home with a pool and had been 14 swimming since May 2009. (Id.) Dr. Trompeter noted that Plaintiff 15 has five children and had a great summer with them but for the 16 last month they have been back at school. (Id.) Dr. Trompeter 17 noted that Plaintiff s hypertension was in [g]ood control but 18 that Plaintiff reported pain in his elbow, knees, and back and 19 requested x-rays. (AR 474.) She noted that Plaintiff s medications 20 included gabapentin for pain.18 (AR 473-74.) 21 22 On August 24, 2009, an x-ray of Plaintiff s left knee showed 23 [s]table, mild joint space narrowing of the medial femorotibial 24 compartment but was otherwise unremarkable. (AR 453.) An x-ray 25 26 18 Gabapentin is an anticonvulsant that is used to relieve 27 certain types of pain. Gabapentin, MedlinePlus, 28 http://www.nlm.nih.gov/medlineplus/druginfo/meds/a694007.html (last updated July 25, 2013). 25 1 of the left elbow showed no acute injury and a [p]robable 2 interarticular body of the radial aspect of the left elbow joint. 3 (AR 454.) X-rays of his lumbar spine showed bilateral L5 pars 4 defects without significant anterolisthesis of L5 on S1 and mild 5 progression of degenerative disc disease since Plaintiff s December 6 2005 x-ray. (AR 455.) 7 8 On September 17, 2009, Dr. Wilcox noted that Plaintiff was 9 sleeping better and his pain was more manageable. (AR 671.) 10 Plaintiff reported that his irritability and depression had not 11 improved. (Id.) Dr. Wilcox found that Plaintiff had a 12 [d]ysphoric mood and affect but was alert and oriented with 13 normal speech, good hygiene, goal-directed thoughts, and intact 14 judgment and insight. (Id.) She diagnosed recurrent major 15 depressive disorder, dysthymia, and mood disorder secondary to a 16 general medical condition. (Id.) 17 18 On December 7, 2009, Dr. Kashkouli noted that Plaintiff was 19 feeling well aside from depression and had lost weight over the 20 course of 21 depression. the past several (AR 661.) months which he attributes to On December 9, Dr. Kashkouli noted that 22 Plaintiff s labs were within normal limits and advised Plaintiff to 23 return for follow up in one year. (AR 660.) 24 25 On February 11, 2010, Dr. Wilcox noted that Plaintiff 26 continues to be depressed, under a lot of stress, [and] very 27 irritable, but had good sleep. (AR 658.) Plaintiff reported 28 that he had stopped taking gabapentin for a week and had not 26 1 noticed an increase in his pain. (AR 658.) Plaintiff also 2 reported that he had not had any headaches since before Christmas. 3 (AR 659.) He described himself as being intolerant to the 4 injustices around us and was very irritable. (AR 659.) 5 6 On April 29, 2010, Dr. Wilcox noted that Plaintiff reported 7 that his irritability was contained inside [him]. (AR 656.) 8 Plaintiff was distant from his wife and children and stayed home, 9 spending his time watching television, reading the paper, and 10 searching the internet for injustices. (Id.) Plaintiff said 11 that he had great difficulty interacting with people because he 12 gets extremely angry and distrusting ; his only support was his 13 wife who was talking about a divorce. (AR 656-57.) Dr. Wilcox 14 noted that Plaintiff had an irritable mood with restricted affect 15 but was alert and oriented with normal speech, good hygiene and eye 16 contact, goal-directed thoughts, and intact insight and judgment. 17 (AR 657.) Dr. Wilcox recommended that Plaintiff discontinue all of 18 his psychiatric medications because they have had no benefits and 19 informed Plaintiff that he must make some behavioral changes if he 20 would like to have a fulfilling life. 19 (Id.) She advised him to 21 return to the clinic in three months. (Id.) 22 \\ 23 24 25 26 27 28 19 Specifically, Dr. Wilcox recommended that Plaintiff read bible for not more than 2 hours ; avoid the internet unless his wife was there, so he would not get on political/news/negative websites ; walk outside with his wife every day; watch no television except for funny movies, which he should try to watch every day; and acknowledge when he gets up and before bed the gifts God has given and the blessings he has. (AR 657.) 27 1 On July 29, 2010, Dr. Wilcox noted that Plaintiff complained 2 of middle insomnia with multiple awakenings, nightly nightmares, 3 and depressed mood. (AR 744.) Plaintiff reported that his wife 4 made sure he didn t watch the news and that he read the bible less 5 than he used to. (Id.) Dr. Wilcox found that Plaintiff had a 6 depressed mood with mildly restricted affect but was alert and 7 oriented with normal speech, good hygiene and eye contact, goal8 directed thoughts, and intact insight and judgment. (AR 745.) Dr. 9 Wilcox agreed to continue one psychiatric medication at Plaintiff s 10 request, noting that Plaintiff thought that it was helping him to 11 stay in reality. (AR 744-45.) She recommended that he return 12 to the clinic in two or three months. (Id.) 13 14 On August 31, 2010, Dr. Trompeter noted that Plaintiff 15 reported a feeling of itchiness like bugs crawling on him and 16 that his depression had worsened over the previous year and 17 continue[d] to 18 relationships. dramatically (AR 741.) affect his interpersonal She noted that Plaintiff was in the 19 process of undergoing psychotherapy to try to unlock PTSD memories 20 to subsequently deal with them and move on. (Id.) 21 22 Plaintiff also complained of constant left-elbow pain 23 stemming from a dislocation while on active duty. (AR 742.) Dr. 24 Trompeter noted that Plaintiff weighed 229 pounds and had 25 difficulty with his weight because he sat at home and ate all day 26 long. (Id.) Dr. Trompeter noted that Plaintiff had an 27 exagerrated jumps off the table response when she touched his 28 lumbar spine or right elbow. (AR 742.) Plaintiff s skin exam was 28 1 normal and Dr. Trompeter opined that his abnormal skin sensations 2 were a heightened sensitivity to his surroundings due to a 3 medication effect, boredom, [or] primarily psychiatric illness. 4 (AR 743.) She was uncertain that there is much chance for 5 meaningful change in his depression/outlook and also relief of his 6 chronic aches and pains if he continues to be medicated, homebound, 7 and dependent on others. (Id.) Dr. Trompeter recommended that 8 Plaintiff get out more to improve his mood and enable weight loss, 9 do yoga to help his back pain, use night splints and undergo 10 physical therapy for elbow pain, and lose weight to help his knee 11 pain.20 (AR 743.) She recommended that he return to the clinic in 12 one year. (Id.) 13 14 On September 1, 2010, an x-ray of Plaintiff s right elbow 15 showed possible olecranon bursitis. (AR 691.) Plaintiff underwent 16 physical therapy. (AR 712-13.) 17 18 On November 3, 2010, Dr. Wilcox noted that Plaintiff reported 19 that his medication was helping him stay in reality. (AR 714.) 20 Plaintiff said he was happy with his medication, his mood was good, 21 and he was sleeping better. (Id.) Dr. Wilcox found that Plaintiff 22 did not need his medications changed and that he was alert and 23 oriented, with normal speech rate and tone, good hygiene and eye 24 contact, goal-directed thoughts, and intact insight and judgment. 25 (Id.) 26 \\ 27 20 active medications 28 gabapentinPlaintiff s list ofmedication. (See ARdid not include or any other pain 742-43.) 29 1 She noted that Plaintiff had moved and advised him to follow up in 2 three months at a clinic closer to his new home.21 (AR 714.) 3 4 VI. DISCUSSION 5 6 Plaintiff 7 Plaintiff s alleges that credibility; the (2) ALJ erred assessing in (1) evaluating Plaintiff s mental 8 impairments; (3) assessing the VA s disability rating decision; and 9 (4) relying on the VE s testimony that Plaintiff could perform jobs 10 that existed in sufficient numbers in the regional and national 11 economy.22 (J. Stip. at 5.) 12 13 A. 14 The ALJ Provided Clear And Convincing Reasons For Rejecting Plaintiff s Credibility 15 16 Plaintiff argues that the ALJ failed to articulate legally 17 sufficient reasons for rejecting Plaintiff s testimony. (J. Stip. 18 at 44.) Because the ALJ provided clear and convincing reasons 19 20 21 22 23 24 25 26 27 28 21 The record contains additional treatment records that postdate the ALJ s November 22, 2010 decision, but as the Appeals Council noted (AR 98), they do not appear to be relevant to the period before the ALJ s decision, see 20 C.F.R. § 404.970(b) (Appeals Council shall consider the additional evidence only where it relates to the period on or before the date of the [ALJ] hearing decision ); compare Taylor, 659 F.3d at 1233 (treating physician s opinion concerned his assessment of [claimant s] mental health since his alleged disability onset date and therefore related to period before claimant s disability insurance coverage expired and before ALJ s decision (citing 20 C.F.R. § 404.970(b))). 22 The Court addresses the issues raised in the Joint Stipulation in an order different from that used by the parties, to avoid repetition and for other reasons. 30 1 supporting his evaluation of Plaintiff s testimony and those 2 reasons were supported by substantial evidence in the record, 3 reversal is not warranted on this basis. 4 5 1. Applicable law 6 7 An ALJ s assessment of pain severity and claimant credibility 8 is entitled to great weight. See Weetman v. Sullivan, 877 F.2d 9 20, 22 (9th Cir. 1989); Nyman v. Heckler, 779 F.2d 528, 531 (9th 10 Cir. 1986). [T]he ALJ is not required to believe every allegation 11 of disabling pain, or else disability benefits would be available 12 for the asking, 13 § 423(d)(5)(A). 14 2012). a result plainly contrary to 42 U.S.C. Molina v. Astrue, 674 F.3d 1104, 1122 (9th Cir. In evaluating a claimant s subjective symptom testimony, 15 the ALJ engages in a two-step analysis. See Lingenfelter, 504 F.3d 16 at 1035-36. 17 has First, the ALJ must determine whether the claimant presented objective medical evidence of an underlying 18 impairment [that] could reasonably be expected to produce the pain 19 or other symptoms alleged. Id. at 1036 (internal quotation marks 20 omitted). If such objective medical evidence exists, the ALJ may 21 not reject a claimant s testimony simply because there is no 22 showing that the impairment can reasonably produce the degree of 23 symptom alleged. Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 24 1996) (emphasis in original). When the ALJ finds a claimant s 25 subjective complaints not credible, the ALJ must make specific 26 findings that support the conclusion. 27 F.3d 1228, 1234 (9th Cir. 2010). See Berry v. Astrue, 622 Absent affirmative evidence of 28 malingering, those findings must provide clear and convincing 31 1 reasons for rejecting the claimant s testimony. Lester, 81 F.3d at 2 834. If the ALJ s credibility finding is supported by substantial 3 evidence in the record, the reviewing court may not engage in 4 second-guessing. Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 5 2002). 6 7 2. Relevant facts 8 9 In an undated disability report, Plaintiff alleged that he 10 could not work because of his major depression, posttraumatic 11 stress disorder, kidney condition, back condition, and migraine 12 headaches. (AR 211.) Plaintiff said that he had stopped working 13 because his [m]igraine headaches and back pain caused him to miss 14 a lot of work and [t]ogether with [his] chronic major depression, 15 Posttraumatic stress disorder, [he] did not want to hear or 16 tolerate [his] supervisor s requests or suggestions. (Id.) 17 18 In an undated disability report appeal, Plaintiff wrote 19 that his chronic migraines had not improved since his last 20 report, he had undergone a kidney biopsy that was causing high 21 blood pressure, and only 50% of his kidney [was] functioning. 22 (AR 220.) Plaintiff said he had been feeling more depressed 23 since his last report and had PTSD [from] serving in the 24 military. (Id.) 25 26 At the hearing before the ALJ on June 11, 2010, Plaintiff 27 testified that he received VA compensation for a service-connected 28 disability at the 100% disabled rate, which was $3007 a month. (AR 32 1 40.) Plaintiff testified that he was unable to work because his 2 anger, anxiety, and inability to cope with people. (AR 43.) 3 Plaintiff said that his physical problems, including his knee, 4 left-elbow, and back conditions, also prevented him from working. 5 (AR 43-44.) 6 7 Plaintiff testified that he will not tolerate injustices, 8 and may get physical if he needed to (AR 43), but he later 9 admitted that he had not physically harmed anyone since his alleged 10 disability onset date in June 2005. (AR 47-48.) Plaintiff also 11 testified that he had stopped going to anger-management classes 12 after he threatened to physically do harm to another person there 13 and after that he refused to continue on those classes. (AR 48.) 14 15 Plaintiff testified that his current weight was 220 and that 16 he had stopped using his CPAP machine because he did not need it 17 after his parathyroid was removed. (AR 44, 46-47.) Plaintiff 18 testified that he drove three times a week, usually to take his 19 children to and from two different schools, which took about 20 20 minutes each trip. (AR 49.) He had last driven on the highway one 21 week earlier, when he took his wife to a store. (AR 50.) He 22 cooked easy food like sandwiches and hot dogs, shopped for food 23 with his wife, did the dishes twice a week, vacuumed once every two 24 weeks, and paid the family s bills. (AR 50-51, 53-54.) His wife, 25 who did not work, made the bed. (AR 42, 51.) She left the 26 children home with Plaintiff about eight times a month for about an 27 hour at a time. (AR 55.) 28 \\ 33 1 Plaintiff testified that he did not have the mental capacity to 2 help his daughter with her homework. (AR 52.) When the ALJ asked 3 what Plaintiff did all day, Plaintiff said he slept and watched 4 television. (AR 54.) 5 6 3. Analysis ALJ found 7 8 The that Plaintiff s medically determinable 9 impairments could reasonably be expected to cause only some of the 10 alleged symptoms, and that his statements concerning the 11 intensity, persistence and limiting effects of these symptoms are 12 not credible to the extent they are inconsistent with Plaintiff s 13 RFC for a limited range of sedentary, unskilled work with no close 14 or frequent interpersonal contact with supervisors, co-workers, or 15 the public. (AR 84-85.) These findings are supported by the 16 record. 17 18 As an initial matter, the ALJ accommodated most of Plaintiff s 19 subjective complaints by finding he was capable of only a limited 20 range of sedentary work. (See AR 84.) For example, the ALJ 21 accommodated Plaintiff s asserted inability to cope with people 22 (AR 43) by limiting him to unskilled work with no close or 23 frequent interpersonal contact with supervisors, co-workers, or the 24 public (AR 84); see also SSR 85-15, 1985 WL 56857, at *4 25 (unskilled jobs ordinarily involve dealing primarily with objects, 26 rather than with data or people ). The ALJ also accommodated 27 Plaintiff s reports of knee, left-elbow, and back pain (AR 43-44) 28 by limiting him to standing and walking for only two hours a day, 34 1 with no pushing or pulling with the left arm, never kneeling or 2 crawling, and only occasionally climbing ramps or stairs, among 3 other things (AR 84). Indeed, Plaintiff acknowledges that the ALJ 4 credited the vast majority of [his] complaints of physical pain 5 and limitation. (J. Stip. at 38.) 6 7 To the extent the ALJ rejected Plaintiff s subjective 8 complaints, however, he provided clear and convincing reasons for 9 doing so. First, the ALJ correctly noted that Plaintiff s 10 testimony and other statements contained inconsistencies. (AR 86, 11 89-90.) At the hearing before the ALJ, Plaintiff testified that he 12 was angry and anxious and would get physical with people, but he 13 later admitted that he had never actually physically harmed anyone 14 (AR 86; AR 43, 47-48).23 Moreover, in August 2009, Dr. Wilcox noted 15 that Plaintiff presented with a [d]ysphoric mood and affect and 16 reported that his pain was increasing and he was controlling his 17 intense anger toward everything. (AR 479.) Later that same 18 month, however, Dr. Trompeter recorded a very different picture, 19 noting that Plaintiff reported that he had enjoyed a great summer 20 with his five children, moved into a new home with a pool and 21 ha[d] been swimming since May, and lost 20 pounds, bringing his 22 \\ 23 \\ 24 25 26 27 28 23 After Plaintiff testified that he would get physical with people if necessary, the ALJ asked, since June 2005, have you physically harmed anyone in any way? (AR 47.) Plaintiff answered, Yes. (Id.) The ALJ asked, Who did you harm physically? (Id.) Plaintiff responded, I m sorry, not physically, and [m]entally, I have, but not physically. (AR 47-48.) 35 1 weight down to 229.24 (AR 473.) Plaintiff also made inconsistent 2 statements about the reason for his weight fluctuations, telling 3 Dr. Trompeter in August 2009 that his weight loss had been due to 4 better dietary choices (AR 473), then telling Dr. Kashkouli in 5 December 2009 that he had a poor appetite and had lost weight 6 over the course of the past several months because of depression 7 (AR 661). In August 2010, moreover, Plaintiff still weighed 229 8 pounds but reported to Dr. Trompeter that he had had difficulty 9 with his weight because he sits at home and eats all day long. 25 10 (AR 742.) Those conflicts in Plaintiff s statements 11 permissible reasons for discounting his credibility. were See Smolen, 12 80 F.3d at 1284 (in determining credibility, ALJ may consider 13 ordinary techniques of credibility evaluation, such as claimant s 14 prior inconsistent statements concerning symptoms); Thomas, 278 15 F.3d at 958-59 (in determining credibility, ALJ may consider 16 inconsistencies in claimant s testimony); Johnson v. Shalala, 60 17 F.3d 1428, 1434 (9th Cir. 1995) (ALJ permissibly discounted 18 credibility based on contradictions within claimaint s testimony). 19 \\ 20 \\ 21 22 23 24 25 26 27 28 24 It appears that Plaintiff had actually lost about 30 pounds by August 2009. (See AR 473; AR 395 (259 pounds on May 27, 2008); AR 333 (256 pounds on Sept. 8, 2008); AR 384 (255 pounds on Dec. 19, 2008). 25 Plaintiff submitted Dr. Trompeter s August 2010 note, along with several other medical records, to the Appeals Council after the ALJ issued his written decision. (See AR 101, 727.) Because the Appeals Council considered that evidence and made it part of the administrative record (AR 97-101), the Court reviews it in determining whether the ALJ s decision is supported by substantial evidence, Brewes, 682 F.3d at 1163. 36 1 The ALJ also permissibly found that Plaintiff s daily 2 activities were inconsistent with his claim of total disability. 3 (AR 87.) See Thomas, 278 F.3d at 958-59 (in assessing credibility, 4 ALJ may consider inconsistencies either in claimant s testimony or 5 between testimony and conduct); cf. Molina, 674 F.3d at 1113 ( Even 6 where [claimant s] activities suggest some difficulty functioning, 7 they may be grounds for discrediting the claimant s testimony to 8 the extent that they contradict claims of a totally debilitating 9 impairment. ). Plaintiff testified that he drove regularly, taking 10 his children to school and his wife shopping; prepared simple 11 meals; went grocery shopping with his wife; washed dishes twice a 12 week; vacuumed every two weeks; paid bills using a checkbook; and 13 occasionally took care of his children on his own. (AR 87; AR 4914 51, 55.) Plaintiff reported having five children. (AR 341). 15 Similarly, Plaintiff reported to Dr. Soliman that he was able to 16 cook, clean, shop, run errands, take care of his personal hygiene 17 and financial responsibilities, drive a car, focus on daily 18 activities, and get along well with family, friends, and neighbors. 19 (AR 341.) As the ALJ found, those activities indicate that 20 Plaintiff was not so debilitated as he claim[ed]. (AR 87.) 21 22 The ALJ was also permitted to discount Plaintiff s claims of 23 debilitating pain because they conflicted with the medical evidence 24 showing that his pain was treated conservatively and that he was 25 clearly physically able to work. (AR 86); see Carmickle v. 26 Comm r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008) 27 ( Contradiction with the medical record is a sufficient basis for 28 rejecting the claimant s subjective testimony. ); Tommasetti v. 37 1 Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (ALJ may infer that 2 claimant s response to conservative treatment undermines 3 [claimant s] reports regarding the disabling nature of his pain ); 4 Lingenfelter, 504 F.3d at 1040 (in determining credibility, ALJ may 5 consider whether the alleged symptoms are consistent with the 6 medical evidence ); see also Burch v. Barnhart, 400 F.3d 676, 681 7 (9th Cir. 2005) ( Although lack of medical evidence cannot form the 8 sole basis for discounting pain testimony, it is a factor that the 9 ALJ can consider in his credibility analysis. ). As the ALJ found, 10 Plaintiff s analgesic medication history [was] inconsistent with 11 his claimed severity of pain. (AR 87.) Indeed, Plaintiff claimed 12 to have debilitating back, knee, and elbow pain, but his doctors 13 generally recommended only that he take acetaminophen or 14 acetaminophen with codeine, exercise, or lose weight. (See AR 384 15 (recommending acetaminophen with codeine and exercise); AR 398 16 (recommending acetaminophen with codeine); AR 566 (recommending 17 acetaminophen); AR 580 (recommending acetaminophen); AR 586 18 (recommending acetaminophen); AR 743 (recommending yoga and weight 19 loss).) Plaintiff also briefly took gabapentin (AR 743-44) but he 20 discontinued it without any increase in pain (AR 658). Moreover, 21 in August 2010, Dr. Trompeter, Plaintiff s primary-care physician, 22 indicated that Plaintiff was exaggerating his pain symptoms, noting 23 that he had an exaggerated jumps off the table response when 24 she touched his lumbar spine and right elbow.26 (AR 742); 25 26 26 This note was also part of the records that Plaintiff 27 submitted the Appeals Council after the ALJ rendered his substantial evidence in 28 decision, and it constitutes furtherBrewes, 682 F.3d at 1163. support of the ALJ s decision. See 38 1 Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001) 2 (credibility determination based on, among other things, 3 plaintiff's tendency to exaggerate proper when supported by 4 substantial evidence ). As the ALJ noted (AR 83, 86), Dr. 5 Trompeter clearly believed that Plaintiff s physical problems did 6 not prevent him from working, recommending that he return to work 7 as soon as psychiatry can clear. (AR 386.) 8 9 Finally, the ALJ found that Plaintiff s demeanor as a witness 10 at [the] hearing was very poor. As an ALJ s personal observations 11 can support an adverse credibility determination, see Thomas, 278 12 F.3d at 960 (ALJ properly relied on claimant s demeanor at the 13 hearing in rejecting her credibility), and as there were numerous 14 alternative convincing reasons to reject Plaintiff s testimony, no 15 remand is required. As the reasons were supported by substantial 16 evidence, this Court may not engage in second-guessing. Thomas, 17 278 F.3d at 959 (citation omitted). 18 \\ 19 \\ 20 \\ 21 \\ 22 \\ 23 \\ 24 \\ 25 \\ 26 \\ 27 \\ 28 \\ 39 1 B. The ALJ Properly Evaluated Plaintiff s Mental 2 Impairments 3 4 Plaintiff contends that the ALJ erred in rejecting Dr. 5 Wilcox s August 7, 2008 opinion that Plaintiff was unable to obtain 6 and maintain employment. (J. Stip. at 28-35.) 7 8 1. Applicable law 9 10 Three types of physicians may offer opinions in Social 11 Security cases: (1) those who treat[ed] the claimant (treating 12 physicians); (2) those who examine[d] but d[id] not treat the 13 claimant (examining physicians); and (3) those who neither 14 examine[d] nor treat[ed] the claimant (non-examining physicians). 15 Lester, 81 F.3d at 830. A treating physician s opinion is 16 generally entitled to more weight than the opinion of a doctor who 17 examined but did not treat the claimant, and an examining 18 physician s opinion is generally entitled to more weight than that 19 of a nonexamining physician. Id. 20 21 The opinions of treating physicians are generally afforded 22 more weight than the opinions of nontreating physicians because 23 treating physicians are employed to cure and have a greater 24 opportunity to know and observe the claimant. 25 1285. Smolen, 80 F.3d at If a treating physician s opinion is well supported by 26 medically acceptable clinical and laboratory diagnostic techniques 27 and is not inconsistent with the other substantial evidence in the 28 record, it should be given controlling weight. 40 20 C.F.R. 1 § 404.1527(c)(2). If a treating physician s opinion is not given 2 controlling weight, its weight is determined by length of the 3 treatment relationship, frequency of examination, nature and extent 4 of the treatment relationship, amount of evidence supporting the 5 opinion, consistency with the record as a whole, the doctor s area 6 of specialization, and other factors. Id. § 404.1527(c)(2)-(6). 7 8 When a treating doctor s opinion is not contradicted by 9 another doctor, it may be rejected only for clear and convincing 10 reasons. Carmickle, 533 F.3d at 1164 (quoting Lester, 81 F.3d at 11 830-31). When a treating physician s opinion conflicts with 12 another doctor s, the ALJ must provide only specific and 13 legitimate reasons for discounting it. Id. Further, the ALJ need 14 not accept any medical opinion that conflicts with the physician s 15 own treatment notes or the record as a whole. See Bayliss v. 16 Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (holding that 17 discrepancy between physician s notes and his assessment of 18 limitations was clear and convincing reason for rejecting 19 opinion); Connett v. Barnhart, 340 F.3d 871, 874-75 (9th Cir. 2003) 20 (affirming ALJ s rejection of physician s RFC questionnaire because 21 it was not supported by his own notes and had multiple 22 inconsistencies with all other evaluations (alteration omitted)). 23 24 2. Relevant facts 25 26 On August 7, 2008, Dr. Wilcox wrote a letter stating that 27 Plaintiff was compliant with his treatment but it had been 28 difficult to get his illness stabilized with a medication regimen 41 1 and therefore he continues to be quite depressed. (AR 315.) She 2 listed Plaintiff s symptoms as depressed mood, isolation, 3 irritability, insomnia, decreased daytime energy, poor short-term 4 memory, poor attention span, decreased concentration, passive 5 thoughts of death, and decreased motivation. (Id.) Dr. Wilcox 6 opined that, [b]ecause of this, in no way is he able to obtain or 7 maintain gainful employment. (Id.) 8 9 3. Analysis 10 11 The ALJ permissibly accorded little weight to Dr. Wilcox s 12 opinion that Plaintiff was unable to obtain or maintain gainful 13 employment. 14 assessment (AR 88.) of what First, the ALJ noted Dr. Wilcox made no [Plaintiff] can still do despite his 15 impairments and instead concluded only that Plaintiff was unable 16 to obtain or maintain employment, which was an issue reserved to 17 the Commissioner. (AR 89.) It is true that a treating 18 physician s statement on an issue reserved to the Commissioner, 19 such as the determination of a claimant s ultimate disability, is 20 not binding on the ALJ or entitled to special weight. 20 C.F.R. § 21 404.1527(d)(1) ( A statement by a medical source that you are 22 disabled or unable to work does not mean that we will determine 23 that you are disabled. ); SSR 96-5p, 1996 WL 374183, at *5 24 (treating-source opinions that a person is disabled or unable to 25 work can never be entitled to controlling weight or given special 26 significance ); see also McLeod v. Astrue, 640 F.3d 881, 885 (9th 27 Cir. 2011) ( A disability is an administrative determination of how 28 an impairment, in relation to education, age, technological, 42 1 economic, and social factors, affects ability to engage in gainful 2 activity. ). Thus, the ALJ was not obligated to accept it. 3 4 The ALJ also properly discounted Dr. Wilcox s opinion because 5 her finding of multiple aspects of cognitive impairment by way of 6 poor short-term memory, poor attention span, and decreased 7 concentration was not supported by the medical record including 8 [her] own treating notes. 27 (AR 89); see Valentine v. Comm r, Soc. 9 Sec. Admin., 574 F.3d 685, 692-93 (9th Cir. 2009) (contradiction 10 between treating physician s opinion and his treatment notes 11 constitutes specific and legitimate reason for rejecting treating 12 physician s opinion); Batson v. Comm r of Soc. Sec. Admin., 359 13 F.3d 1190, 1195 (9th Cir. 2004) ( an ALJ may discredit treating 14 physicians opinions that are conclusory, brief, and unsupported by 15 the record as a whole . . . or by objective medical findings ); 16 Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (ALJ 17 permissibly rejected treating physician s opinion when opinion was 18 contradicted by or inconsistent with treatment reports). Although 19 Plaintiff reported decreased short-term memory and concentration 20 when Dr. Wilcox first evaluated him (AR 572), Dr. Wilcox did not 21 thereafter note any cognitive problems and instead consistently 22 found that Plaintiff was alert and oriented with normal speech, 23 goal-directed thoughts, and intact insight and judgment (see, e.g., 24 25 26 27 28 27 In Dr. Wilcox s notes, she reported Plaintiff as stating: He said that once he got 100% disability he hasn t been able to work and therefore cannot provide for his family. His wife has never worked. Both he and his wife say that he has noticed a definite benefit from the mediccation. He is still tired during the day, often takes a nap. (AR 393.) 43 1 AR 387, 392-93, 402, 407, 479, 481-82, 484-86, 567, 572, 657, 659, 2 671, 714, 745). Dr. Soliman, moreover, examined Plaintiff on 3 September 2, 2008, less than one month after Dr. Wilcox rendered 4 her opinion, and found that Plaintiff was able to recall three out 5 of three objects after five minutes and perform serial sevens 6 without error; had intact memory, normal abstract thinking, and 7 good insight; and reported that he was able to focus on his daily 8 activities. (AR 341-42.) Those findings conflict with Dr. 9 Wilcox s finding that Plaintiff had poor memory, attention, and 10 concentration. The ALJ was entitled to reject Dr. Wilcox s opinion 11 on this basis.28 12 13 The ALJ therefore did not err in rejecting Dr. Wilcox s 14 opinion that Plaintiff was unable to work. Remand is not warranted 15 on this ground. 16 17 18 19 20 21 22 23 24 25 26 27 28 28 Plaintiff contends that the findings of psychiatrist Kristin S. Beizai confirm the reasonableness of Dr. Wilcox s assessments and observations. (J. Stip. at 34.) Dr. Beizai s findings do not appear to be relevant to the time period on or before the ALJ s decision, however, because her first evaluation of Plaintiff was not until December 14, 2010, nearly a month after the ALJ issued his decision in November 2010, and nothing indicates that it related to the period before that. (See AR 705-08); 20 C.F.R. § 404.970(b). In any event, Dr. Beizai s findings fail to corroborate Dr. Wilcox s opinion that Plaintiff was totally disabled. At the December 2010 evaluation, Plaintiff reported that he was depressed and isolating himself, among other symptoms; had been seeing a psychologist for three or four months, which had been very helpful ; and was doing better on his current medication, with improved sleep and fewer nightmares. (AR 705-06.) Dr. Beizai found that Plaintiff had a down mood and was irritable at points but was cooperative with a linear thought process; had no psychosis, suicidal ideations, delusions, or impulsivity; and had good judgment and insight. (AR 707.) Those findings fail to corroborate Dr. Wilcox s finding that Plaintiff was totally disabled. 44 1 C. 2 The ALJ Permissibly Discounted Plaintiff s VA Rating Decision 3 4 Plaintiff argues that the ALJ should have accorded more weight 5 to the VA s conclusion that Plaintiff was disabled. (J. Stip. at 6 6-11.) 7 8 1. Applicable law 9 10 An ALJ must ordinarily 11 determination of disability. 12 1072, 1076 (9th Cir. 2002). give great weight to a VA McCartey v. Massanari, 298 F.3d While a VA disability decision does 13 not necessarily compel the SSA to reach an identical result, the 14 ALJ must consider the VA s finding in reaching his decision, 15 because of the similarities between the VA disability program and 16 the Social Security disability program. Hiler v. Astrue, 687 F.3d 17 1208, 1211 (9th Cir. 2012) (internal quotation marks, alteration, 18 and citation omitted). But because the two federal programs are 19 not identical, the ALJ may give less weight to a VA disability 20 rating if he gives persuasive, specific, valid reasons for doing so 21 that are supported by the record. McCartey, 298 F.3d at 1076; 22 accord Valentine, 574 F.3d at 695. 23 24 2. Relevant facts 25 26 On August 20, 2007, the VA found that Plaintiff was entitled 27 to individual unemployability effective November 15, 2005. 28 599.) (AR After summarizing the medical evidence, including Dr. 45 1 Martindill s August 2007 examination report, the VA noted that 2 Plaintiff s combination of [] service connected disabilities 3 (predominately [] depression) has been shown to significantly 4 impact [his] ability to retain gainful employment. (AR 602.) The 5 VA noted that its determination was not final and was subject to 6 future reduction based on further evaluation and substantial 7 improvement of [his] service connected conditions with necessary 8 treatment. (AR 602-03.) At that time, Plaintiff was rated 80 9 percent disabled, which apparently included a 50-percent disability 10 rating for major depression with dysthymia, a 30-percent disability 11 rating for cluster migraine headaches, and 30-percent disability 12 rating for hypertension associated with glomerulonephritis. 29 (AR 13 247 (Nov. 5, 2008 VA rating decision continu[ing] Plaintiff s 14 disability ratings), 596 (VA letter stating that Plaintiff s 15 overall or combined rating is 80% although we are paying you at 16 the 100% rate for Individual Unemployability ).) 17 18 On November 22, 2010, the ALJ denied Plaintiff s claim for 19 Social Security DIB. (AR 78-93.) In doing so, the ALJ gave 20 considerable weight to Dr. Martindill s implied opinion that 21 [Plaintiff was] not mentally debilitated, which the ALJ found was 22 implicit in his refusal to endorse qualification for VA rating of 23 individual unemployability. (AR 90.) The ALJ also considered 24 Plaintiff s VA rating decision but concluded that it did not 25 26 27 28 29 Glomerulonephritis is a type of kidney disease in which the part of your kidneys that helps filter waste and fluids from the blood is damaged. Glomerulonephritis, MedlinePlus, http://www.nlm.nih.gov/medlineplus/ency/article/000484.htm (last updated Mar. 22, 2013). 46 1 change [his] independent assessment of the entire record in this 2 case. (AR 90-91.) First, the ALJ noted that the VA awarded 3 Plaintiff individual unemployability on the unelaborated ground 4 of resolving reasonable doubt in [Plaintiff s] favor. (AR 90.) 5 Second, the ALJ found that a 100% VA disability rating certainly 6 does not preclude full-time work at the level of substantial 7 gainful activity. (AR 90.) Third, the ALJ noted that 8 9 the VA s definition of unemployability is importantly 10 different than the definition of disability under the 11 Social Security Act. 12 may be considered as unemployable . . . when it is 13 satisfactorily shown that he or she is unable to secure 14 further employment. (38 C.F.R. § 4.18). 15 veterans may be unable to secure further employment 16 simply because no one will hire them. 17 Social Security Act specifically forbids consideration of 18 that fact in determining disability under the act (Social 19 Security Act §§ 223(d)(2)(A), 1614(a)(3)(B); 42 U.S.C. §§ 20 423(d)(2)(A), 1382(a)(3)(B)). Under VA regulations, A veteran Obviously, However, the 21 22 (AR 90-91.) Finally, the ALJ noted that he had independently 23 addressed and assessed the evidentiary basis for the VA s 24 decision and found that it did not show that Plaintiff was 25 disabled. (AR 90-91.) 26 \\ 27 \\ 28 \\ 47 1 3. Discussion 2 3 The ALJ provided reasons for according little weight to the VA 4 decision that are persuasive, specific, valid. 5 F.3d at 1076. See McCartey, 298 Plaintiff therefore is not entitled to reversal on 6 this ground. 7 8 First, the ALJ indicated that he had independently addressed 9 and assessed the evidentiary basis for the VA s decision and 10 found that it did not support a finding of disability. (AR 91.) 11 Indeed, the VA decision appears to rest, in part, on Dr. 12 Martindill s opinion (see AR 602), but the ALJ correctly noted that 13 Dr. Martindill refus[ed] to endorse qualification for VA rating of 14 individual unemployability and opined that with treatment 15 [Plaintiff] could likely work. (AR 90); 20 C.F.R. § 404.1530(a)16 (b) (stating that benefits will be denied to a claimant who fails 17 to follow treatment that can restore his ability to work). Indeed, 18 Dr. Martindill s findings during the mental examination were 19 relatively benign: Plaintiff had slow mentation but was 20 cognitively intact, had an average IQ, did well on naming 21 presidents backwards and adequately on serial 7 s, had a 22 depressed mood but was not psychotic, and did not have an 23 impulse problem. (AR 381.) Dr. Martindill also noted that 24 Plaintiff put little effort into the exam, thereby indicating 25 that Plaintiff s symptoms may have been exaggerated. 26 Dr. Martindill concluded that he could not (AR 381.) recommend 27 unemployability status, noting that Plaintiff was not psychotic, 28 had never been hospitalized, and had a history of good work 48 1 performance. (AR 383.) Dr. Martindill also noted that Plaintiff 2 had not seen a psychiatrist for quite a long time and opined that 3 Plaintiff would likely be able to work if he received more 4 aggressive treatment and closer monitoring and possibly group 5 therapy, anger management, and different medication. (AR 381, 6 383.) Moreover, the VA s decision also apparently rested, in part, 7 on the fact that Plaintiff was rated 30 percent disabled for 8 migraine headaches and 30 percent disabled for hypertension30, but 9 the ALJ correctly found that Plaintiff suffered only infrequent 10 migraines and his hypertension was controlled on medication. (AR 11 80, 82; see, e.g., AR 398 (hypertension well controlled); AR 474 12 (hypertension in good control ); AR 565 (noting blood pressure was 13 high that day but well controlled at home ); AR 585 (noting 14 controlled hypertension); AR 659 (Feb. 2010, Plaintiff reported 15 he had not had headache since before Christmas).) Indeed, 16 Plaintiff does not challenge the ALJ s findings regarding his 17 migraine headaches and hypertension. Thus, the ALJ s reliance on 18 his own independent assessment of the evidentiary basis of the 19 VA s opinion was a proper reason for rejecting it. See Valentine, 20 21 22 23 24 25 26 27 28 30 VA regulations provide that a veteran usually must meet certain rating criteria in order to be awarded individual unemployability. 38 C.F.R. § 4.16(a) (stating, in relevant part, that if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more ). Plaintiff appears to have met those criteria because he was rated 50 percent disabled because of his depression, 30 percent disabled because of hypertension, and 30 percent disabled because of migraine headaches. (See AR 596 (noting that Plaintiff s overall or combined rating is 80% ); AR 245 (noting that Plaintiff s depression was rated 50 percent disabling, his hypertension 30 percent disabling, and his migraine headaches 30 percent disabling).) 49 1 574 F.3d at 695 (finding that the acquisition of new evidence or 2 a properly justified reevaluation of old evidence constitutes a 3 persuasive, specific, and valid reason supported by the record . . 4 . for according little weight to a VA disability rating (internal 5 quotation marks and alterations omitted)). 6 7 Second, the ALJ noted that the VA awarded Plaintiff 8 individual unemployability status on the unelaborated ground of 9 resolving reasonable doubt in his favor. (AR 90.) Indeed, in its 10 decision, the VA simply summarized the medical evidence, including 11 Dr. Martindill s report, and acknowledged that reasonable doubt 12 existed regarding Plaintiff s employability. (AR 602.) As 13 required by VA regulations, the VA resolved that doubt in 14 Plaintiff s favor 15 unemployability. and granted entitlement to individual (AR 602); 38 C.F.R. § 4.3 ( When after careful 16 consideration of all procurable and assembled data, a reasonable 17 doubt arises regarding the degree of disability such doubt will be 18 resolved in favor of the claimant. ). 19 under no such obligation. 20 \\ 21 \\ 22 \\ 23 \\ 24 \\ 25 \\ 26 \\ 27 \\ 28 \\ 50 Here, however, the ALJ was 1 Indeed, even if the medical evidence could reasonably be 2 interpreted differently which the VA decision appears to 3 acknowledge this Court must uphold the ALJ s decision where the 4 evidence is susceptible to more than one rational interpretation. 31 5 Magallanes v. Bowen, 881 F2d 747, 750 (9th Cir. 1989); accord Orn 6 v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). 7 8 This Court does acknowledge disagreement with some of the 9 ALJ s reasons for discounting the VA rating decision. The ALJ did 10 erroneously conclude that the VA s definition of unemployable 11 conflicted with the Social Security Act s definition. (AR 90-91.) 12 The VA regulation governing [t]otal disability ratings for 13 compensation based on unemployability of the individual, which was 14 the relevant regulation in Plaintiff s claim for VA individual 15 unemployability benefits, provides that [t]otal disability ratings 16 for compensation may be assigned, where the schedular rating is 17 less than total, when the disabled person is, in the judgment of 18 the rating agency, unable to secure or follow a substantially 19 gainful occupation as a result of service-connected disabilities. 20 38 C.F.R. 4.16(a) (emphasis added). Contrary to the ALJ s 21 findings, that standard appears largely consistent with the Social 22 23 24 25 26 27 28 31 Plaintiff contends that the ALJ parsed out of the opinions of Dr. Martindill the sociological concern of placing a relatively young man on the disability rolls and ignor[ed] the finding of a depressed level of function that permitted if not required the VA rating on depression. (J. Stip. at 11.) The ALJ, however, credited Dr. Martindill s opinion (AR 90) and concluded that Plaintiff s depression was a severe impairment and limited him to unskilled work with no close or frequent interpersonal contact with supervisors, coworkers, or the public (AR 80, 84). 51 1 Security Act s definition of disability as the inability to 2 engage in any substantial gainful activity by reason of any 3 medically determinable physical or mental impairment which can be 4 expected to result in death or which has lasted or can be expected 5 to last for a continuous period of not less than 12 months. 6 U.S.C. § 423(d)(1)(A). 42 Second, the ALJ erroneously found that a 7 100% VA disability rating certainly does not preclude full-time 8 work at the level of substantial gainful activity, implying that 9 Plaintiff received a 100% VA disability rating, which is incorrect. 10 (AR 90.) It is also true that the VA s percentage ratings are 11 based on an average impairment in earning capacity resulting from 12 various impairments, as opposed to an individualized determination 13 that the particular veteran is unable to work. See 38 C.F.R. § 4.1 14 ( The percentage ratings represent as far as can practicably be 15 determined the average impairment in earning capacity resulting 16 from such diseases and injuries and their residual conditions in 17 civil occupations. ). Here, Plaintiff was found to be less than 18 100% disabled under the percentage ratings but was nonetheless 19 awarded individual unemployability based on the VA s finding that 20 he was likely unable to secure or follow a substantially gainful 21 occupation as a result of service-connected disabilities. 38 22 C.F.R. § 4.16(a). As discussed, that individualized determination 23 is substantially similar to the Social Security Administration s 24 own disability standard. Those errors, however, are harmless 25 because the ALJ s rejection of the VA rating decision was supported 26 by other persuasive, specific, and valid reasons. See Valentine, 27 574 F.3d at 695 (finding ALJ justified in rejecting VA disability 28 rating even though only one of two offered reasons was proper); see 52 1 also Stout v. Comm r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th 2 Cir. 2006) (ALJ s error harmless when inconsequential to the 3 ultimate nondisability determination ). As the ALJ s decision 4 remains legally valid despite these errors, no remand is required. 5 6 D. The ALJ Properly Relied on the VE s Testimony 7 8 Plaintiff contends that the ALJ erred by relying on the VE s 9 testimony regarding the number of jobs available to Plaintiff in 10 the local and national economy because two sources, Job Browser Pro 11 and Specific Occupation Employment Unskilled Quarterly, alter[s] 12 the landscape of the evidence about the number of jobs available 13 to Plaintiff. (J. Stip. at 60.) 14 15 1. Applicable law 16 17 At step five of the five-step process, the Commissioner has 18 the burden to demonstrate that the claimant can perform some work 19 that exists in significant numbers in the national or regional 20 economy, taking into account the claimant s RFC, age, education, 21 and work experience. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 22 (9th Cir. 2006); 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1560(c). 23 The Commissioner may satisfy that burden either through the 24 testimony of a VE or by reference to the Medical-Vocational 25 Guidelines appearing in 20 C.F.R. Part 404, Subpart P, Appendix 2. 26 Lounsburry, 468 F.3d at 1114. 27 \\ 28 53 1 When the services of a VE are used at step five, an ALJ may 2 call upon the VE to testify as to (1) what jobs the claimant, 3 given his or her [RFC], would be able to do; and (2) the 4 availability of such jobs in the national economy. 5 Apfel, 180 F.3d 1094, 1101 (9th Cir. 1999). Tackett v. In doing so, an ALJ 6 poses hypothetical questions to the [VE] that set out all of the 7 claimant s impairments 8 (citation and internal for the [VE s] quotation marks consideration. omitted). When Id. a 9 hypothetical includes all of the limitations that the ALJ found 10 credible and supported by substantial evidence in the record, then 11 the ALJ may properly rely on the VE s response. Bayliss, 427 F.3d 12 at 1217 18. A VE s recognized expertise provides the necessary 13 foundation for his or her testimony. Id. at 1218. The Federal 14 Rules of Evidence do not apply to the admission of evidence in 15 Social Security administrative proceedings. Id. at 1218 n. 4. No 16 additional foundation is required. Id. 17 18 2. Relevant facts 19 20 At the administrative hearing, the ALJ solicited the testimony 21 of VE John Kilcher, who Plaintiff stipulated was qualified to 22 provide expert testimony. (AR 60.) After the VE testified that he 23 had studied the exhibits and heard [Plaintiff s] testimony about 24 his work history, the ALJ asked him whether full-time work existed 25 for a person with Plaintiff s physical and mental limitations (AR 26 62-63). The VE testified that such person could perform assembler 27 jobs, an example of which would be final assembler, DOT 28 713.687-018, 1991 WL 679271; production-inspector jobs, an example 54 1 of which would be table worker, DOT 739.687-182, 1991 WL 680217;32 2 and administrative-support jobs, and example of which would be 3 document preparer, DOT 249.587-018, 1991 WL 672349. (AR 63-64.) 4 The VE testified that about 600 final-assembler jobs existed 5 regionally and 230,000 existed nationally, 300 table-worker jobs 6 existed regionally and 150,000 existed nationally, and 400 7 document-preparer jobs existed regionally and 175,000 existed 8 nationally. (AR 64.) Plaintiff s counsel cross-examined the VE 9 but did not question him regarding the number of available jobs or 10 his basis for making that determination. (AR 64-68.) Arguably, 11 Plaintiff s counsel s failure to question the VE about the number 12 of available jobs waived this issue for further review. See Meanel 13 v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999). Had it been raised 14 before the ALJ, the ALJ would have had the opportunity to explore 15 and address the issue and its supporting evidence in the manner 16 contemplated by the regulatory scheme. 17 18 After the ALJ issued his written decision finding Plaintiff 19 not disabled, Plaintiff retained new counsel and asked the Appeals 20 Council to review the ALJ s decision. (AR 257-91.) In his brief 21 in support of his request for review, Plaintiff argued that the ALJ 22 erroneously relied on the VE s testimony regarding the number of 23 jobs existing in the regional and national economies because 24 [a]ccording to two published resources, these numbers are 25 26 32 The hearing transcript and the ALJ refer to this job as 27 cable worker (AR 64, 92), but this appears to be a 28 transcription error because the relevant DOT job description is for table worker, DOT 739.687-182, 1991 WL 680217. 55 1 unreliable and should suffer summary rejection. (AR 258.) First, 2 Plaintiff asserted that the Specific Occupation Employment 3 Unskilled Quarterly stated that one final-assembler job existed 4 regionally and 64 existed nationally, 33 table-worker jobs existed 5 regionally and 3,703 existed nationally, and 35 document-preparer 6 jobs existed regionally and 3,335 existed nationally. (AR 258-58.) 7 Second, Plaintiff asserted that Job Browser Pro stated that one 8 final-assembler job existed statewide and 15 existed nationally, 26 9 table-worker jobs existed regionally and 2,571 existed nationally, 10 and 689 document-preparer jobs existed regionally and 63,832 11 existed nationally. (AR 259.) Plaintiff further asserted that, 12 according to Job Browser Pro, only 90 percent of the table-worker 13 jobs and 70.3 percent of the document-preparer jobs were full-time 14 positions. (Id.) Plaintiff attached to his brief three pages of 15 a spread sheet entitled Specific Occupation Employment Unskilled 16 Quarterly and three unidentified computer print-outs, presumably 17 from Job Browser Pro. (See AR 260-91.) 18 19 The Appeals Council received Plaintiff s brief and attached 20 documents and included them in the record. (AR 97-102.) The 21 Council, however, found that the information submitted did not 22 provide a basis for changing the ALJ s decision and denied 23 Plaintiff s request for review. (AR 97-102.) 24 25 3. Analysis 26 27 Plaintiff contends that the Specific Occupation Employment 28 Unskilled Quarterly is a data source that [VEs] rely upon as a 56 1 matter of custom and that Job Browser Pro is a tool used by [VEs] 2 in the divination of the number of jobs in the economy. (J. Stip. 3 at 55-56.) Those sources, Plaintiff argues, estimate that the 4 size of the occupational bases is substantially smaller than the 5 VE testified. (J. Stip. at 60.) Thus, Plaintiff argues, no 6 reasonable person would accept the testimony of the [VE] given in 7 this case about the number of jobs. (Id.) 8 9 Plaintiff s argument fails because his lay assessment of the 10 data derived from the Specific Occupation Employment Unskilled 11 Quarterly and Job Browser Pro does not undermine the reliability of 12 the VE s testimony. Plaintiff failed to introduce any VE opinion 13 interpreting the data from those sources and the significance of 14 the information reflected on the various reports is not entirely 15 clear.33 Indeed, neither of the cited reports are included in the 16 Social Security regulations list of authoritative sources. See 20 17 C.F.R. § 404.1566(d) (ALJ will take administrative notice of 18 reliable job information in certain publications).34 Although 19 20 21 22 23 24 25 26 27 28 33 For example, the Job Browser Pro report for the document-preparer job lists group numbers that show 30,100 jobs regionally and 2,789,590 nationally; unweighted cumulative estimated adjusted employment numbers that show 2,206 jobs regionally and 204,449 jobs nationally; and a weighted DOT estimate, upon which Plaintiff relies, that shows 609 jobs regionally and 63,832 jobs nationally. (AR 287.) 34 The regulation specifically lists the following publications as sources of reliable job information: (1) Dictionary of Occupational Titles, published by the Department of Labor; (2) County Business Patterns, published by the Bureau of the Census; (3) Census Reports, also published by the Bureau of the Census; (4) Occupational Analyses, prepared for the Social Security Administration by various State employment agencies; and (5) Occupational Outlook Handbook, published by the Bureau of 57 1 Plaintiff cites several decisions that generally acknowledge the 2 reliability of the data generated by programs such as Job Browser 3 Pro (J. Stip. at 56-57), none of these decisions find that such 4 information, submitted for the first time to the Appeals Council, 5 is sufficient grounds for finding that the ALJ s reliance on VE 6 testimony lacked substantial evidence. To the contrary, those 7 decisions actually suggest that the VE should rely on his or her 8 professional expertise rather than adopting wholesale the data from 9 any one source such as Job Browser Pro.35 Indeed, Plaintiff s 10 argument has been rejected by several Courts in this district. 11 See, e.g., Solano v. Colvin, No. SA CV 12 01047 RZ, 2013 WL 12 13 14 Labor Statistics. 35 See, e.g., Poisson v. Astrue, No. 2:11 cv 245 NT, 2012 15 WL 1067661, at *9 (D. Me. Mar. 28, 2012) (finding that VE s 16 reliance on Job Browser Pro was not error because she relied on 17 18 19 20 21 22 23 24 25 26 27 28 her professional experience and expertise, and not strictly on a software program, in endorsing the numbers provided to the [ALJ]. ), accepted by 2012 WL 1416669 (D. Me. Apr. 24, 2012); Cole v. Astrue, Civ. No. 10 510 CL, 2011 WL 5358557, at *26 (D. Or. June 7, 2011) (VE permissibly relied in part on job numbers generated by Skill Trend by Job Browser ), accepted by 2011 WL 5358550 (D. Or. Nov. 4, 2011); Pitts v. Astrue, No. 1:10 CV 870, 2011 WL 2553340, *6 (N.D. Ohio May 19, 2011) (ALJ permissibly relied on VE testimony regarding number of jobs despite possible inconsistency with information from Job Browser Pro because VE s job incidence figures were based on several sources of information, among other things), accepted by 2011 WL 2553311 (N.D. Ohio June 28, 2011); Drossman v. Astrue, 2011 WL 4496568, *7 8 (N.D. Ohio July 15, 2011) (ALJ properly relied on VE s opinion, even though it could conflict with information from Job Browser Pro, because [a]lthough the VE confirmed that the Job Browser Pro program was a valid source of information on which he relied, the VE also indicated that he relied upon other sources of information and explained that Plaintiff s counsel was misinterpreting the statistical information listed in the Job Browser Pro program ), accepted by 2011 WL 4496561 (N.D. Ohio Sept. 27, 2011). 58 1 3776333, at *1 (C.D. Cal. July 16, 2013) ( The Appeals Council 2 certainly was entitled to rely on the vocational expert s 3 testimony, even in the face of the page from Job Browser Pro, in 4 making its determination. ); Villareal v. Colvin, No. EDCV 5 12 01640 JEM, 2013 WL 3071259, at *6 (C.D. Cal. June 18, 2013) 6 ( There is no reason to believe that the Job Browser Pro data is 7 the only source of job data or superior to others, and thus such 8 data is not conclusive. ); see also Valenzuela v. Colvin, No. CV 9 12 0754 MAN, 2013 WL 2285232, at *4 n.4 (C.D. Cal. May 23, 2013) 10 (collecting cases). 11 12 Moreover, the VE was not obligated to explain his methodology 13 for determining the number of available jobs because his 14 professional expertise, which Plaintiff specifically acknowledged 15 and did not challenge at the hearing (AR 60), was a sufficient 16 foundation for his testimony. See Bayliss, 427 F.3d at 1218; see 17 also 20 C.F.R. § 404.1566(e) (ALJs may use VE to determine 18 occupational issues). At the hearing, moreover, neither Plaintiff 19 nor his counsel challenged the VE s job numbers, inquired about his 20 methodology for generating those numbers, solicited his opinion 21 regarding the validity of the information in the Job Browser Pro or 22 Specific Occupation Employment Unskilled Quarterly, or presented 23 any reports or other evidence regarding the availability of jobs. 24 (See AR 60-68.) Instead, Plaintiff waited until after the ALJ s 25 adverse decision to submit the alternative jobs data to the Appeals 26 Council. As such, at the hearing, the VE had no reason to explain 27 the basis of his opinion or address the validity of the two job28 data sources. 59 1 Finally, Plaintiff argues that the VE engaged in aggregation 2 error because in calculating the number of jobs existing in the 3 regional and national economies, he improperly counted jobs that 4 exceeded Plaintiff s limitations. (J. Stip. at 59). Plaintiff 5 asserts that the job numbers that the VE provided at the hearing 6 were improperly based on broad job categories rather than the 7 individual occupations that Plaintiff could perform. To support 8 his argument, Plaintiff relies on the Second Circuit s decision in 9 Brault v. Soc. Sec. Admin., 683 F.3d 443, 446 (2d Cir. 2012), 10 which, while affirming the ALJ s reliance on the VE s testimony, 11 also explained that because the DOT only defines jobs, vocational 12 experts rely on other tools to determine whether jobs exist for 13 particular DOT occupations. (J. Stip. at 57-58). However, these 14 tools do not compile data for each DOT job code individually; 15 rather, they calculate the number of jobs in particular job 16 groupings, which encompass many individual DOT occupations. 17 Brault, 683 F.3d at 446. The Second Circuit noted that because DOT 18 codes are much more granular than job groupings, it is possible 19 that VE calculations based on the groupings will include jobs that 20 a claimant is not fit to perform. Id. 21 22 If, for example, ten DOT codes map to a single [job 23 grouping] code, saying there are 100,000 total positions 24 available in that [grouping] code gives no information at 25 all about how many positions each of the ten DOT codes 26 contributed to that total. This becomes a problem if DOT 27 titles with different exertion or skill levels map to the 28 same [grouping] code. In such a situation . . . a rough 60 1 weighted 2 correspond to one [grouping] code, and four of those 3 codes 4 [grouping] code will list 40% of the positions available 5 . . . as light-duty, unskilled positions. 6 may deviate significantly from the actual number of 7 existing positions. algorithm are [is light-duty, used] unskilled if ten DOT positions, codes then the That estimate 8 9 Id. at 447 n.4. Unlike the current case, the plaintiff in Brault 10 raised these concerns to the ALJ. Even so, the ALJ relied upon the 11 VE s testimony and the Second Circuit ultimately upheld that 12 decision. Id. at 451. 13 14 Plaintiff argues that data from Job Browser Pro indicate that 15 the VE committed this type of aggregation error and overestimated 16 the number of existing jobs that Plaintiff could perform. The VE 17 testified that about 600 final-assembler jobs existed regionally 18 and 230,000 existed nationally, 300 table-worker jobs existed 19 regionally and 150,000 existed nationally, and 400 document20 preparer jobs existed regionally and 175,000 existed nationally. 21 (AR 63-64).) According to the Job Browser Pro data that Plaintiff 22 introduced, the job final-assembler corresponds to grouping code 23 51-9399, which encompasses over 1,500 distinct occupations and 24 represented a total of 1,310 jobs regionally and 229,240 25 nationwide. (J. Stip. 58) The job table-worker corresponds to 26 grouping code 51-9061, which encompasses 782 distinct occupations 27 and represented a total of 4,230 jobs regionally and 410,750 28 nationwide. (Id. at 59) The job document-preparer corresponds 61 1 to grouping code 43-9061, which encompasses 72 distinct occupations 2 and represented 30,100 jobs in the region and 2,789,590 jobs 3 nationwide. (Id. at 59) Plaintiff argues that these numbers 4 rob[] the testimony of the [VE] of classification as substantial 5 evidence[] because they indicate aggregation error. (Id. 59) 6 7 The local and 8 230,000 national jobs as a final assembler [exist]. The 9 [VE] therefore stated that half of the local jobs and all 10 of the national jobs of [job] group[ing] 51-9399 were as 11 a final assembler to the exclusion of the 1,586 other 12 occupations in this group . . . . The [VE] estimated that 13 8% of the local but 30% of the national jobs in [job] 14 group[ing] 51-9061 were [t]able [w]orker jobs to the 15 exclusion of 781 other DOT classifications [in that 16 grouping] . . . . The [VE] . . . estimated that 1.3% of 17 the 18 group[ing] 43-9061 were [d]ocument [p]reparer jobs to the 19 exclusion 20 grouping]. 21 . . . coupled with the additional evidence robs the 22 testimony 23 substantial evidence. vocational regional of expert and 6% other testified of 71 the that national unique DOT 600 jobs codes in [job] [in that The disconnect and complete lack of symmetry of the [VE] of the classification of 24 25 (Id. at 59-60). 26 27 Plaintiff s argument that these statistics render the VE s 28 testimony unreliable and an inadequate basis for the ALJ s decision 62 1 is without merit. As discussed supra, a VE s recognized expertise 2 provides the necessary foundation for his or her testimony. Thus, 3 no additional foundation is needed. Bayliss, 427 F.3d at 1217. 4 Here, the VE whom the parties stipulated was a qualified expert 5 (AR 60) did not specify the methodology he used to determine the 6 number of existing jobs that Plaintiff could perform, (AR 60-68), 7 nor was he required to do so. See id.; Brault, 683 F.3d at 448-49 8 (an ALJ need not expressly state his reasons for accepting a VE s 9 testimony and an ALJ need not inquire into a VE s methodologies). 10 During the hearing before the ALJ, Plaintiff s counsel had the 11 opportunity to question the VE regarding how he calculated the 12 number of existing jobs and whether there was any risk of 13 aggregation error. Plaintiff s counsel, however, chose not to do 14 so. (AR 60-68). Accordingly, Plaintiff cannot undermine the 15 reliability of the VE s testimony by after-the-fact speculation or 16 the introduction of statistics that have not been analyzed by an 17 expert and are derived from non-authoritative sources. See 20 18 C.F.R. § 404.1566(d). 19 20 Moreover, when evidence is susceptible to more than one 21 rational interpretation, the Court must uphold the ALJ s decision. 22 Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). Therefore, 23 even if Plaintiff s evidence provided a rational basis for 24 disagreeing with the ALJ s decision, the Court must still uphold 25 the ALJ s finding so long as it was based on substantial evidence. 26 For the reasons discussed above, the ALJ s decision was supportedby 27 28 63 1 substantial evidence and Plaintiff s claim fails.36 Because the 2 ALJ properly relied on the VE s opinion, the Court finds no 3 reversible error. See Osenbrock v. Apfel, 240 F.3d 1157, 1163 (9th 4 Cir. 2001) (VE testimony constitutes substantial evidence 5 supporting ALJ s finding). Plaintiff is not entitled to remand on 6 this claim. 7 8 VI. CONCLUSION 9 10 Consistent with the foregoing, and pursuant to sentence four 11 of 42 U.S.C. § 405(g),37 IT IS ORDERED that judgment be entered 12 AFFIRMING the decision of the Commissioner and dismissing this 13 action with prejudice. IT IS FURTHER ORDERED that the Clerk serve 14 copies of this Order and the Judgment on counsel for both parties. 15 16 DATED: November 21, 2013 17 ___/S/_______________________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 18 19 36 Plaintiff s reliance on Farias v. Colvin, No. 11 57088, 20 2013 WL 2151422 (9th Cir. May 20, 2013) (J. Stip. at 66), is also 21 misplaced because there the Ninth Circuit specifically observed 22 23 24 25 26 that the VE properly testified that a person with [plaintiff s] characteristics and RFC could perform the job requirements of head dance hall hostess but erroneously provided employment data for restaurant hostess an occupation that exists in far larger numbers, and that the employment numbers reported by the Bureau of Labor Statistics for the occupation of restaurant host/hostess are very similar to the numbers the VE proffered for the job of head dance hall hostess. 2013 WL 2151422, at *1. 37 This sentence provides: The [district] court shall 27 have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the 28 decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. 64

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