Robert Rodriguez v. Carolyn W Colvin, No. 2:2013cv02630 - Document 20 (C.D. Cal. 2014)

Court Description: MEMORANDUM OPINION AND ORDER AFFIRMING COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner and dismissing this action with prejudice. IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment on counsel for both parties. (See Order for details) (bem)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 ROBERT RODRIGUEZ, 10 Plaintiff, 11 vs. 12 13 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 14 Defendant. 15 ) Case No. CV 13-2630-JPR ) ) ) MEMORANDUM OPINION AND ORDER ) AFFIRMING COMMISSIONER ) ) ) ) ) ) ) 16 17 I. 18 PROCEEDINGS Plaintiff seeks review of the Commissioner s final decision 19 denying his application for Social Security Disability Insurance 20 benefits ( DIB ). The parties consented to the jurisdiction of 21 the undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c). 22 This matter is before the Court on the parties Joint 23 Stipulation, filed February 6, 2014, which the Court has taken 24 under submission without oral argument. For the reasons stated 25 below, the Commissioner s decision is affirmed and this action is 26 dismissed. 27 28 1 1 II. BACKGROUND 2 Plaintiff was born on January 29, 1963, and has a high- 3 school education. (Administrative Record ( AR ) 125, 149-50.) 4 He previously worked as an electrician. 5 (AR 149-50.) Plaintiff filed an application for DIB on February 26, 2010. 6 (AR 125.) He alleged that he had been unable to work since 7 February 27, 2009, because of severe depression with psychotic 8 features and severe anxiety. (AR 125, 181.) After his 9 application was denied initially and upon reconsideration, he 10 requested a hearing before an ALJ. (AR 72-73.) The ALJ 11 continued the initial March 30, 2011 hearing to permit Plaintiff 12 to retain counsel. (AR 37-43.) A second hearing was held on 13 June 30, 2011, at which Plaintiff, who was then represented by 14 counsel, appeared and testified. (AR 44-65.) A vocational 15 expert ( VE ) responded to written interrogatories by the ALJ, 16 and those responses were entered into the record. 17 22.) (AR 20, 219- In a written decision issued February 14, 2012, the ALJ 18 determined that Plaintiff was not disabled. (AR 17-34.) On 19 March 14, 2012, the Appeals Council denied his request for 20 review. (AR 1-6.) This action followed. 21 III. STANDARD OF REVIEW 22 Under 42 U.S.C. § 405(g), a district court may review the 23 Commissioner s decision to deny benefits. The ALJ s findings and 24 decision should be upheld if they are free of legal error and 25 supported by substantial evidence based on the record as a whole. 26 Id.; Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 27 1427, 28 L. Ed. 2d 842 (1971); Parra v. Astrue, 481 F.3d 742, 746 28 (9th Cir. 2007). Substantial evidence means such evidence as a 2 1 reasonable person might accept as adequate to support a 2 conclusion. Richardson, 402 U.S. at 401; Lingenfelter v. Astrue, 3 504 F.3d 1028, 1035 (9th Cir. 2007). 4 but less than a preponderance. It is more than a scintilla Lingenfelter, 504 F.3d at 1035 5 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 6 2006)). To determine whether substantial evidence supports a 7 finding, the reviewing court must review the administrative 8 record as a whole, weighing both the evidence that supports and 9 the evidence that detracts from the Commissioner s conclusion. 10 Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). If the 11 evidence can reasonably support either affirming or reversing, 12 the reviewing court may not substitute its judgment for that of 13 the Commissioner. Id. at 720-21. 14 IV. THE EVALUATION OF DISABILITY 15 People are disabled for purposes of receiving Social 16 Security benefits if they are unable to engage in any substantial 17 gainful activity owing to a physical or mental impairment that is 18 expected to result in death or which has lasted, or is expected 19 to last, for a continuous period of at least 12 months. 42 20 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 21 (9th Cir. 1992). 22 A. 23 The ALJ follows a five-step sequential evaluation process in The Five-Step Evaluation Process 24 assessing whether a claimant is disabled. 20 C.F.R. 25 § 404.1520(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th 26 Cir. 1995) (as amended Apr. 9, 1996). In the first step, the 27 Commissioner must determine whether the claimant is currently 28 engaged in substantial gainful activity; if so, the claimant is 3 1 not disabled and the claim must be denied. § 404.1520(a)(4)(i). 2 If the claimant is not engaged in substantial gainful activity, 3 the second step requires the Commissioner to determine whether 4 the claimant has a severe impairment or combination of 5 impairments significantly limiting his ability to do basic work 6 activities; if not, a finding of not disabled is made and the 7 claim must be denied. § 404.1520(a)(4)(ii). If the claimant has 8 a severe impairment or combination of impairments, the third 9 step requires the Commissioner to determine whether the 10 impairment or combination of impairments meets or equals an 11 impairment in the Listing of Impairments ( Listing ) set forth at 12 20 C.F.R., Part 404, Subpart P, Appendix 1; if so, disability is 13 conclusively presumed and benefits are awarded. 14 § 404.1520(a)(4)(iii). 15 If the claimant s impairment or combination of impairments 16 does not meet or equal an impairment in the Listing, the fourth 17 step requires the Commissioner to determine whether the claimant 18 has sufficient residual functional capacity ( RFC )1 to perform 19 his past work; if so, the claimant is not disabled and the claim 20 must be denied. § 404.1520(a)(4)(iv). The claimant has the 21 burden of proving he is unable to perform past relevant work. 22 Drouin, 966 F.2d at 1257. If the claimant meets that burden, a 23 prima facie case of disability is established. Id. If that 24 happens or if the claimant has no past relevant work, the 25 Commissioner then bears the burden of establishing that the 26 27 28 1 RFC is what a claimant can do despite existing exertional and nonexertional limitations. § 404.1545; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 4 1 claimant is not disabled because he can perform other substantial 2 gainful work available in the national economy. 3 § 404.1520(a)(4)(v). That determination comprises the fifth and 4 final step in the sequential analysis. § 404.1520; Lester, 81 5 F.3d at 828 n.5; Drouin, 966 F.2d at 1257. 6 B. 7 At step one, the ALJ found that Plaintiff had not engaged in The ALJ s Application of the Five-Step Process 8 any substantial gainful activity since February 27, 2009. 9 22.) (AR At step two, the ALJ concluded that Plaintiff had severe 10 impairments of anxiety disorder, psychosis not otherwise 11 specified, and alcohol dependence. 12 of ill being ).) (AR 23 (listing conditions At step three, the ALJ determined that 13 Plaintiff s impairments did not meet or equal a Listing, 14 specifically including listings 12.04 and 12.06. (AR 23-24.) At 15 step four, the ALJ determined that Plaintiff retained the RFC to 16 perform a full range of work at all exertional levels but with 17 some nonexertional limitations. Specifically, the ALJ found that 18 the claimant may not perform complex technical work but 19 may 20 repetitive work, with frequent contact with supervisors 21 and the general public, at a stress level of three (3) on 22 a scale of one to ten, one (1) being, by example, the 23 work of a night dishwasher, and ten (10) being, by 24 example, the work of an air traffic controller as these 25 occupations are generally performed in the national 26 economy. 27 (AR 24.) perform a full range of simple, routine, and The ALJ found that Plaintiff was unable to perform his 28 past relevant work. (AR 28.) Based on the VE s responses to the 5 1 interrogatories, however, the ALJ concluded that Plaintiff could 2 perform jobs existing in significant numbers in the national 3 economy. (AR 28-29.) 4 disabled. (AR 29.) Thus, the ALJ found that Plaintiff was not 5 V. DISCUSSION 6 Plaintiff argues that the ALJ erred in assessing the medical 7 evidence and evaluating Plaintiff s credibility. (J. Stip. at 8 3.) 9 10 A. The ALJ Did Not Err in Assessing the Medical Evidence Plaintiff asserts that the ALJ failed to properly assess the 11 medical evidence, which allegedly showed that his severe 12 depression and anxiety met Listing 12.04 and Listing 12.06. (Id. 13 at 3, 7.) 14 15 1. Medical opinion evidence Plaintiff contends that the ALJ gave too little weight to 16 the opinions of his treating physicians and examining 17 psychologist and too much weight to that of the state-agency 18 physician. (Id. at 3.) He further contends that the ALJ erred 19 in failing to consult a medical expert. 20 21 a. (Id. at 7.) Applicable law Three types of physicians may offer opinions in Social 22 Security cases: (1) those who directly treated the plaintiff, (2) 23 those who examined but did not treat the plaintiff, and (3) those 24 who did not treat or examine the plaintiff. 25 830. Lester, 81 F.3d at A treating physician s opinion is generally entitled to 26 more weight than that of an examining physician, and an examining 27 physician s opinion is generally entitled to more weight than 28 that of a nonexamining physician. 6 Id. 1 This is true because treating physicians are employed to 2 cure and have a greater opportunity to know and observe the 3 claimant. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). 4 If a treating physician s opinion is well supported by medically 5 acceptable clinical and laboratory diagnostic techniques and is 6 not inconsistent with the other substantial evidence in the 7 record, it should be given controlling weight. § 404.1527(c)(2). 8 If a treating physician s opinion is not given controlling 9 weight, its weight is determined by length of the treatment 10 relationship, frequency of examination, nature and extent of the 11 treatment relationship, amount of evidence supporting the 12 opinion, consistency with the record as a whole, the doctor s 13 area of specialization, and other factors. 14 § 404.1527(c)(2)-(6). When a treating or examining doctor s opinion is not 15 contradicted by some evidence in the record, it may be rejected 16 only for clear and convincing reasons. See Carmickle v. 17 Comm r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) 18 (quoting Lester, 81 F.3d at 830-31). When a treating or 19 examining physician s opinion is contradicted, the ALJ must 20 provide only specific and legitimate reasons for discounting 21 it. Id. The weight given an examining physician s opinion, 22 moreover, depends on whether it is consistent with the record and 23 accompanied by adequate explanation, among other things. 24 § 404.1527(c)(3)-(6). 25 26 b. Analysis Although Plaintiff contends that the ALJ dismiss[ed] the 27 opinions of his treating physicians (J. Stip. at 6), the ALJ in 28 fact relied upon their treatment notes in assessing Plaintiff s 7 1 mental-health impairments. (See AR 25-26.) The ALJ found that 2 those records reflected brief periods of acute exacerbations of 3 [Plaintiff s] psychological and substance abuse symptoms, 4 interspersed with longer periods of higher functioning. 5 25.) (AR For instance, psychiatrist Dr. Aura-Marie Pawley initially 6 diagnosed major depressive disorder, currently with psychotic 7 features, and panic disorder (AR 371), but she then treated 8 Plaintiff s depression, anxiety, and sleep issues conservatively, 9 with prescription medication and continued therapy (see AR 357, 10 366-67), even after an alcohol binge (AR 356). As the ALJ 11 noted, when not drinking Plaintiff responded well to treatment. 12 (AR 25-26; see AR 356, 362.) Plaintiff s subsequent prison 13 mental-health records similarly reflect that he found relief from 14 his insomnia and anxiety with medication. (See AR 538 (noting 15 meds help a little with anxiety, Plaintiff sleeping better with 16 Benadryl), 540 (anxiety stable on current meds ), 541 (Plaintiff 17 stable on current med regimen, no adjustments necessary at this 18 time, meds reordered ), 555 (claimant has been stable on meds 19 and was alert, cooperative, calm, and exhibiting good 20 concentration and eye contact).) Indeed, psychiatrist Dr. 21 William Power found Plaintiff to be very high functioning, with 22 good social skills and cues and good judgment even when his 23 medication was being adjusted to better address his symptoms. 24 (AR 540.) In addition to noting evidence from Plaintiff s 25 treating physicians showing his capacity for stability, the ALJ 26 also relied on their findings in limiting Plaintiff to jobs with 27 a stress level of three or less. (AR 27; see, e.g., AR 356 28 (describing Plaintiff s chronic pattern of responding poorly to 8 1 frustrating encounters with his mother ), 365 (Pawley noting 2 discussion with Plaintiff regarding environmental stressors ).) 3 The ALJ did dismiss the findings of Plaintiff s treating 4 physicians to the extent they assessed his Global Assessment 5 Functioning ( GAF ) score at given times. (AR 26.) As the ALJ 6 noted, the Commissioner has declined to endorse GAF scores, which 7 are subjective and provide only snapshots of impaired and 8 improved behavior. (Id.); Revised Medical Criteria for 9 Evaluating Mental Disorders and Traumatic Brain Injury, 65 Fed. 10 Reg. 50745, 50764-65 (Aug. 21, 2000) (GAF score does not have a 11 direct correlation to the severity requirements in our mental 12 disorders listings ); cf. McFarland v. Astrue, 288 F. App x 357, 13 359 (9th Cir. 2008) (finding ALJ s failure to address GAF scores 14 not error when RFC assessment accounted for claimant s mental 15 impairments, was not inconsistent with three limited duration 16 GAF scores, and was supported by substantial evidence). Indeed, 17 the most recent edition of the DSM dropped the GAF scale, 18 citing its lack of conceptual clarity and questionable 19 psychological measurements in practice. Am. Psychiatric Ass n, 20 Diagnostic and Statistical Manual of Mental Disorders 16 (5th ed. 21 2013). 22 Contrary to Plaintiff s contention (J. Stip. at 6), the ALJ 23 provided specific and legitimate reasons for giving less weight 24 to the findings of Gail Schuler, a psychologist who evaluated him 25 at the request of counsel. (See AR 26-27.) The ALJ noted that 26 Dr. Schuler s opinion that Plaintiff was totally psychiatrically 27 disabled concerned an issue reserved to the Commissioner (AR 28 27); the ALJ was not, therefore, bound to accept her statement, 9 1 see § 404.1527(d)(1) (determination of disability is reserved to 2 Commissioner); SSR 96-5p, 1996 WL 374183, at *2 (July 2, 1996) 3 (noting that although ALJ must carefully consider medical-source 4 opinions about issues reserved to the Commissioner, treating 5 source opinions on issues that are reserved to the Commissioner 6 are never entitled to controlling weight or special 7 significance ). 8 The ALJ further found that Dr. Schuler s opinion was not 9 supported by her clinical findings. The ALJ noted Dr. Schuler s 10 findings that Plaintiff was carelessly groomed, with a blunt and 11 dysphoric affect, but cognitively intact, with little difficulty 12 with memory and no evidence of hallucinations or delusions. 13 26; see AR 564.) She assessed a full-scale IQ score of 97, 14 placing Plaintiff in the Average range of functioning. 15 566.) (AR (AR Yet despite these relatively mild findings, Dr. Schuler 16 assessed Plaintiff with a GAF score that indicated a complete 17 inability to function. (AR 26.) Such inconsistency provided a 18 basis for the ALJ to reject Dr. Schuler s opinion. See Matney ex 19 rel. Matney v. Sullivan, 981 F.2d 1016, 1020 (9th Cir. 1992) 20 ( inconsistencies and ambiguities in doctor s opinion were 21 specific and legitimate reasons for rejecting it); see also 22 Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 2003) (doctor s 23 opinion properly rejected when treatment notes provide no basis 24 for the functional restrictions he opined should be imposed on 25 [claimant] ). 26 The ALJ also noted that Dr. Schuler s findings relied quite 27 heavily on Plaintiff s subjective report of symptoms and 28 limitations and seemed to accept uncritically as true, most if 10 1 not all, of what the claimant reported. (AR 27; see AR 559-64.) 2 That alone is a basis to reject her opinion, particularly, as 3 here, when the ALJ found that there exist good reasons for 4 questioning the reliability of claimant s subjective complaints 5 (AR 27; see infra Section V.B); Fair v. Bowen, 885 F.2d 597, 605 6 (9th Cir. 1989) (finding ALJ properly disregarded physician s 7 opinion when premised on claimant s subjective complaints, which 8 ALJ had already discounted); Evans v. Comm r of Soc. Sec. Admin., 9 320 F. App x 593, 597 (9th Cir. 2009) ( An ALJ may appropriately 10 reject a physician s opinion that is based on a claimant s 11 non-credible subjective complaints. ). 12 Plaintiff contends that the ALJ erred in crediting the 13 opinion of state-agency physician Dr. R.E. Brooks over that of 14 examining physician Dr. Schuler. (J. Stip. at 3.) An ALJ, 15 however, may reject the testimony of an examining, but 16 non-treating physician, in favor of a nonexamining, nontreating 17 physician when he gives specific, legitimate reasons for doing 18 so, and those reasons are supported by substantial record 19 evidence. Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 1995); 20 SSR 96-6P, 1996 WL 374180, at *2 (July 2, 1996) (state-agency 21 physicians are highly qualified and expert in evaluation of 22 medical issues under the Act). Here the ALJ properly rejected 23 Dr. Schuler s findings in favor of those of Dr. Brooks, whose 24 assessment the ALJ found largely consistent with the record. (AR 25 27); cf. Bray v. Comm r of Soc. Sec. Admin., 554 F.3d 1219, 122726 28 (9th Cir. 2009) (upholding RFC determination when ALJ relied 27 on state-agency physician s opinion over that of treating 28 physician). Further, to the extent the ALJ found Dr. Brooks s 11 1 opinion to diverge from those of Plaintiff s treating doctors, 2 the ALJ imposed additional restrictions commensurate with the 3 limitations assessed by the treating physicians. (AR 27 (noting 4 that evidence support[s] additionally limiting the claimant to 5 work at a stress level of three or less, based on the 6 documentation from the psychiatrists who treated the claimant ).) 7 Plaintiff s contention that Dr. Brooks provided nothing to 8 corroborate his one-sentence opinion (J. Stip. at 4 (citing AR 9 437-39)) ignores the doctor s Psychiatric Review Technique, in 10 which he assessed Plaintiff s alleged impairments and limitations 11 (AR 484-93) and summarized the medical evidence upon which that 12 assessment was based (AR 494). See § 404.1527(c)(3)-(4) (greater 13 weight given physician s opinion that is consistent with record 14 and accompanied by adequate explanation). Although Plaintiff 15 contends that Dr. Brooks left the Mental Residual Functional 16 Capacity Assessment form nearly entirely blank (J. Stip. at 4), 17 more careful examination of the poor reproduction of that 18 document in the record reveals marks indicating that Plaintiff 19 was either not significantly limited or moderately limited in 20 each of the activities on the form (AR 437-38). The only 21 portions of the Psychiatric Review Technique form Dr. Brooks left 22 blank were those that related to conditions Plaintiff did not 23 have, such as psychosis and mental retardation. 24 485-87.) (See, e.g., AR Because the ALJ found that Dr. Brooks s opinion (see AR 25 439) was generally consistent with the record, the ALJ was 26 entitled to rely upon it. See Thomas v. Barnhart, 278 F.3d 947, 27 957 (9th Cir. 2002) ( The opinions of non-treating or 28 non-examining physicians may also serve as substantial evidence 12 1 when the opinions are consistent with independent clinical 2 findings or other evidence in the record. ).2 3 Remand is not warranted on this basis. 4 5 2. Treatment records Plaintiff further contends that the ALJ erred in his 6 evaluation of the medical evidence because he selectively cited 7 treatment notes from dates when [Plaintiff] had brief periods of 8 improvement. (J. Stip. at 4 (citing AR 356, 362).) The ALJ was 9 not obligated to address every piece of evidence, Howard ex rel. 10 Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003), and in 11 any event Plaintiff does not point to any significant medical 12 evidence that the ALJ overlooked or ignored. 13 Plaintiff contends that the ALJ ignored evidence that 14 Plaintiff s emotional condition is tumultuous (J. Stip. at 15 4), but in fact the ALJ noted the brief periods of acute 16 exacerbations of his . . . symptoms (AR 25). He nonetheless 17 found that Plaintiff s medical records reflected his improvement 18 with medication when not drinking. (AR 25-26; see AR 356 19 2 Although Plaintiff contends without citing any 20 authority that the ALJ had a duty to consult a medical expert to 21 clarify any discrepancies in the record (J. Stip. at 7), an ALJ s duty to further develop the record is triggered only when the 22 record contains ambiguous evidence or is inadequate to allow for proper evaluation of the evidence, Mayes v. Massanari, 276 F.3d 23 453, 459-60 (9th Cir. 2001). Here, the evidence was not ambiguous and the record was not inadequate. As noted, the ALJ reasonably 24 assessed Plaintiff s treatment records and the opinions of his 25 medical practitioners in determining that he did not suffer from a 26 27 28 disabling mental impairment. Moreover, insofar as Plaintiff contends that a medical expert would have found listing-level mental-health impairments, it is worth noting that only Dr. Schuler not any of Plaintiff s treating doctors opined that Plaintiff suffered marked impairments, and as noted her opinion was reasonably afforded little weight. 13 1 (Plaintiff reporting to Dr. Pawley that, other than during his 2 binge, his mood has overall been stable and he has been 3 doing very well ), 362 (reporting doing very well, good and 4 stable mood, and no depression, mood fluctuation, anger, 5 irritability, or anxiety ), 538 (after one month on medication, 6 reporting still anxious but better with medication, some panic 7 attacks with auditory hallucinations at night, depressed but not 8 hopeless or suicidal, and sleeping better with Benadryl), 539 9 (after two months, reporting anxiety but only occasional auditory 10 hallucinations and no other psychotic symptoms, feeling a little 11 down but not hopeless or worthless, with fair appetite and 12 sleep), 540 (noting Plaintiff s anxiety disorder stable on 13 current meds but adjusting medications to better control 14 symptoms), 541 (reporting Plaintiff stable on current med 15 regimen, no adjustments necessary at this time ).)3 16 In particular, the ALJ found that Plaintiff s 17 hospitalizations were precipitated by interpersonal conflicts 18 and alcohol intoxication. (AR 25.) The ALJ accounted for the 19 brief hospitalizations documented in the record in assessing 20 whether Plaintiff met paragraph B and C criteria for any of three 21 mental-health listings. (AR 24; see infra Section V.A.3.)4 22 23 24 25 26 27 28 3 Plaintiff points to a prison treatment note showing that he had auditory hallucinations even when sober. (J. Stip. at 6 (citing AR 552).) But as noted, most of the prison treatment notes showed Plaintiff doing well. (See, e.g., AR 538, 540, 541, 555.) This one note, then, only serves to confirm the ALJ s finding that Plaintiff had brief periods of exacerbation[]. (AR 25.) 4 Although Plaintiff emphasizes that he was once hospitalized for a week and reports that he was then treated for severe depression (J. Stip. at 5 (citing AR 369)), the 14 1 Plaintiff does not challenge the ALJ s findings that he has 2 been sober since January 2010, his alcohol abuse was not severe 3 enough to meet a Listing, and it was not a factor material to 4 the determination of his disability. (AR 23; see AR 59-60 5 (Plaintiff testifying that he had completed 12-step program and 6 no longer desired alcohol).)5 Rather, he contends that his 7 mental-health impairments continued when he became sober. 8 Stip. at 5.) (J. Plaintiff stresses evidence that his mental-health 9 impairments required medication that did not eliminate his 10 symptoms and caused some side effects. (J. Stip. at 5-6.) 11 However, as noted above, treatment records show that Plaintiff s 12 mental-health impairments improved with medication. Plaintiff 13 himself acknowledged that he had gotten better with treatment and 14 since becoming sober. (See, e.g., AR 58 (Plaintiff discussing 15 new clients who remind him of where [he] was ), 164 (Plaintiff 16 acknowledging in March 2010 that when he first was ill he wasn t 17 18 hospitalization to which he refers was for three days, not a week (AR 373). Similarly, the record does not support Plaintiff s 19 contention that his psychiatrist recommended hospitalization due alcohol use. AR 20 to depression and Plaintiff reported (J. Stip. at 5 (citing and 356-61).) Rather, that he was doing badly 21 was advised by the on-call psychiatrist to report to a hospital to be evaluated because of his earlier reports of attempted suicide. Once at the hospital, Plaintiff refused treatment. (AR 360.) 22 (AR 360-61.) 23 5 A claimant whose alcohol abuse is a contributing factor 24 material to a determination of disability is not entitled to 25 benefits. See 42 U.S.C. § 423(d)(2)(C); Ball v. Massanari, 254 26 27 28 F.3d 817, 821, 824 (9th Cir. 2001). The Social Security regulations provide that [t]he key factor we will examine in determining whether drug addiction or alcoholism is a contributing factor material to the determination of disability is whether we would still find you disabled if you stopped using drugs or alcohol. 20 C.F.R. § 404.1535(b)(1). 15 1 cooking or eating much at all but now cook[s] as much as he 2 can, making three meals daily).) Impairments that can be 3 effectively treated with medication, even if they are not cured, 4 are not disabling for purposes of Social Security benefits. 5 Warre v. Comm r Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 6 2006); see also § 404.1529(c)(3)(iv)-(v) (ALJ may consider 7 effectiveness of medication and treatment in evaluating severity 8 and limiting effects of impairment). 9 When, as here, the evidence reasonably supports the ALJ s 10 findings, reversal is not warranted. Reddick, 157 F.3d at 720- 11 21. 12 13 3. Listing 12.04 and Listing 12.06 Plaintiff argues that the ALJ erred in finding that his 14 severe depression and anxiety did not meet or equal Listing 12.04 15 (affective disorders) or Listing 12.06 (anxiety-related 16 disorders). (J. Stip. at 3); see 20 C.F.R., subpt. P, app. 1 17 §§ 12.04, 12.06. 18 19 a. Reversal is not warranted on this basis. Applicable law At step three of the sequential evaluation process, the ALJ 20 must evaluate the claimant s impairments to see if they meet or 21 medically equal any of those in the Listings. See § 404.1520(d); 22 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). Listed 23 impairments are those that are so severe that they are 24 irrebuttably presumed disabling, without any specific finding as 25 to the claimant s ability to perform his past relevant work or 26 any other jobs. 27 Lester, 81 F.3d at 828. The claimant has the initial burden of proving that an 28 impairment meets or equals a Listing. 16 See Sullivan v. Zebley, 1 493 U.S. 521, 530 33, 110 S. Ct. 885, 891 92, 107 L. Ed. 2d 967 2 (1990). To meet a listed impairment, a claimant must establish 3 that he or she meets each characteristic of a listed impairment 4 relevant to his or her claim. Tackett, 180 F.3d at 1099. To 5 equal a listed impairment, a claimant must establish symptoms, 6 signs and laboratory findings at least equal in severity and 7 duration to the characteristics of a relevant listed impairment, 8 or, if a claimant s impairment is not listed, then to the listed 9 impairment most like the claimant's impairment. 10 § 404.1526). Id. (citing Medical equivalence, moreover, must be based on 11 medical findings ; [a] generalized assertion of functional 12 problems is not enough to establish disability at step three. 13 Id. at 1100 (citing § 404.1526). 14 An ALJ must evaluate the relevant evidence before 15 concluding that a claimant s impairments do not meet or equal a 16 listed impairment. 17 2001). Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. The ALJ need not, however, state why a claimant failed 18 to satisfy every different section of the listing of 19 impairments. Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th 20 Cir. 1990) (finding that ALJ did not err in failing to state what 21 evidence supported conclusion that, or discuss why, claimant s 22 impairments did not satisfy Listing). Moreover, the ALJ is not 23 required to discuss the combined effects of a claimant s 24 impairments or compare them to any listing in an equivalency 25 determination, unless the claimant presents evidence in an effort 26 to establish equivalence. Burch v. Barnhart, 400 F.3d 676, 683 27 (9th Cir. 2005) (citing Lewis, 236 F.3d at 514). 28 An ALJ s decision that a plaintiff did not meet a Listing 17 1 must be upheld if it was supported by substantial evidence. 2 See Warre, 439 F.3d at 1006. Substantial evidence is more than 3 a mere scintilla but less than a preponderance; it is such 4 relevant evidence as a reasonable mind might accept as adequate 5 to support a conclusion. Sandgathe v. Chater, 108 F.3d 978, 980 6 (9th Cir. 1997) (internal quotation marks omitted). When 7 evidence is susceptible to more than one rational interpretation, 8 the Court must uphold the ALJ s conclusion as long as substantial 9 evidence supported it. 10 11 b. Id. Analysis In order to meet either Listing 12.04 or Listing 12.06, a 12 claimant must not only provide medically documented findings of 13 specified signs and symptoms but must also satisfy the criteria 14 in either Paragraph B or Paragraph C of the applicable Listing. 15 See 20 C.F.R., subpt. P, app. 1 §§ 12.04, 12.06. Plaintiff 16 challenges only the finding that he failed to satisfy Paragraph B 17 of either Listing, which requires that Plaintiff s symptoms 18 result in at least two of the following: (1) marked restriction 19 of activities of daily living; (2) marked difficulties in 20 maintaining social functioning; (3) marked difficulties in 21 maintaining concentration, persistence, or pace; or (4) repeated 22 episodes of decompensation, each of extended duration.6 Id. 23 24 25 26 27 28 6 The term repeated episodes of decompensation, each of extended duration, means three episodes within 1 year, or an average of once every 4 months, each lasting for at least 2 weeks. 20 C.F.R. 404, subpt. P, app. 1 § 12.00(C)(4). If a claimant has experienced more frequent episodes of shorter duration or less frequent episodes of longer duration, the ALJ must use judgment to determine if the duration and functional effects of the episodes are of equal severity and may be used to substitute for the listed 18 1 §§ 12.04(B), 12.06(B). 2 The ALJ found that Plaintiff had only mild restrictions in 3 activities of daily living, noting that although he alleged 4 little interest in those activities (see AR 163, 164), no 5 evidence showed that he required assistance to complete them (AR 6 23). The ALJ found that Plaintiff suffered moderate limitations 7 in social functioning, noting that he alleged he does not spend 8 time with others but testified that he attends church and group 9 meetings regularly for alcohol recovery. (Id.) The ALJ found 10 Plaintiff had moderate difficulties with concentration, 11 persistence, or pace. (AR 24.) The ALJ noted Plaintiff s 12 alleged problems with memory and concentration but also his 13 ability to prepare meals, clean, do laundry, watch television, 14 organize his CD collection, and care for a pet. (AR 24; see AR 15 162-66 (noting activities), 362 (Plaintiff reporting his plan to 16 take online coursework).) The ALJ found that Plaintiff had 17 experienced no episodes of decompensation of extended duration, 18 noting that his emergency-room visits were generally resolved 19 within a few hours and that he was discharged after each of two 20 hospitalizations in a couple of days. (AR 24; see AR 259-61, 21 285-87, 301-03, 310-34.) 22 Although Plaintiff points to the assessment of Dr. Schuler 23 that he was markedly limited in social functioning and 24 maintaining concentration and persistence (J. Stip. at 21-22; see 25 AR 572), as explained above, the ALJ reasonably accorded her 26 opinion little weight because it was inconsistent with her 27 28 finding in a determination of equivalence. 19 Id. 1 clinical findings, depended largely on Plaintiff s subjective 2 report of his symptoms and limitations, and was inconsistent with 3 other evidence of record (AR 27). To the extent Plaintiff argues 4 that Dr. Schuler s finding of listing-level impairments is 5 supported by medical evidence of his continued symptoms (see J. 6 Stip. at 21), as explained above, the ALJ reasonably found that 7 Plaintiff s impairments improved with treatment and avoidance of 8 alcohol. That he requires continued treatment does not establish 9 a disabling let alone presumptively disabling impairment. 10 Notably, none of the other physicians, including those who 11 treated Plaintiff, opined that he suffered listing-level mental12 health impairments. Rather, Dr. Power found Plaintiff to be 13 very high functioning, with good social skills and cues and 14 good judgment, even when his medication was being adjusted to 15 better address his symptoms. (AR 540; see also AR 555 (finding 16 claimant to be alert, cooperative, calm, and possessed of 17 good concentration and eye contact).) 18 Plaintiff challenges the ALJ s reliance on his ability to 19 manage his finances, organize his belongings, watch TV, and care 20 for his personal needs, arguing that many such activities are not 21 transferrable to the workplace. (J. Stip. at 19.) Plaintiff 22 himself stated that he regularly does these activities and also 23 prepares daily meals, cleans house, goes out alone, takes public 24 transit, shops, cares for a dog, and attends church and group 25 meetings. (AR 162-66.) 26 worked as a trustee. Moreover, while incarcerated Plaintiff (AR 541.) The ALJ reasonably found that 27 such activities demanded functions similar to those required by 28 fulltime employment. Cf. Molina v. Astrue, 674 F.3d 1104, 1113 20 1 (9th Cir. 2012) (holding that activities such as walking 2 grandchildren to and from school, attending church, shopping, and 3 taking walks undermined claimant s claims of inability to be 4 around people without suffering debilitating panic attacks); 5 Morgan v. Comm r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 6 1999) (finding ability to fix meals, do laundry, do yardwork, and 7 occasionally care for friend s child evidence of ability to 8 work). Although Plaintiff alleges some difficulty performing 9 these activities, his allegations do not suggest a listing-level 10 impairment. See Molina, 674 F.3d at 1113 ( Even where those 11 activities suggest some difficulty functioning, they may be 12 grounds for discrediting the claimant s testimony to the extent 13 that they contradict claims of a totally debilitating 14 impairment. ).7 15 Plaintiff has not met his burden of demonstrating that he 16 meets or equals the criteria of the listings. Reversal is not 17 warranted on this basis. 18 B. The ALJ Did Not Err in Assessing Plaintiff s 19 Credibility 20 1. 21 Applicable law An ALJ s assessment of pain severity and claimant 22 credibility is entitled to great weight. See Weetman v. 23 Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. Heckler, 779 24 F.2d 528, 531 (9th Cir. 1986). [T]he ALJ is not required to 25 26 7 The Court does not address Plaintiff s arguments 27 regarding Defendant s alleged mischaracterization of the evidence, which have no bearing on the reasonableness of the ALJ s findings. 28 (See J. Stip. at 18-19.) 21 1 believe every allegation of disabling pain, or else disability 2 benefits would be available for the asking, a result plainly 3 contrary to 42 U.S.C. § 423(d)(5)(A). Molina, 674 F.3d at 1112 4 (internal quotation marks omitted). 5 In evaluating a claimant s subjective symptom testimony, the 6 ALJ engages in a two-step analysis. 7 at 1035-36. See Lingenfelter, 504 F.3d First, the ALJ must determine whether the claimant 8 has presented objective medical evidence of an underlying 9 impairment [that] could reasonably be expected to produce the 10 pain or other symptoms alleged. 11 marks omitted). Id. at 1036 (internal quotation If such objective medical evidence exists, the 12 ALJ may not reject a claimant s testimony simply because there 13 is no showing that the impairment can reasonably produce the 14 degree of symptom alleged. 15 original). Smolen, 80 F.3d at 1282 (emphasis in When the ALJ finds a claimant s subjective complaints 16 not credible, the ALJ must make specific findings that support 17 the conclusion. See Berry v. Astrue, 622 F.3d 1228, 1234 (9th 18 Cir. 2010). 19 Absent affirmative evidence of malingering, those findings 20 must provide clear and convincing reasons for rejecting the 21 claimant s testimony. Lester, 81 F.3d at 834. If the ALJ s 22 credibility finding is supported by substantial evidence in the 23 record, the reviewing court may not engage in second-guessing. 24 Thomas, 278 F.3d at 959. 25 26 2. Analysis Plaintiff contends that the ALJ failed to provide specific, 27 clear and convincing reasons for finding his statements not fully 28 credible. (J. Stip. at 22; see AR 25.) 22 In fact, the ALJ cited 1 several specific reasons for finding Plaintiff s statements 2 regarding the intensity, persistence, and limiting effects of his 3 symptoms not credible, including his treatment record, the 4 effectiveness of that treatment, medical opinions, his regular 5 activities, and inconsistencies between all of these and 6 Plaintiff s claims of disabling impairments. (See AR 23-27.) As 7 noted above, the ALJ found that although Plaintiff s treatment 8 records reflected periods of acute exacerbation of his 9 psychological and substance-abuse symptoms, he was generally 10 stable and higher functioning. (AR 25); see Parra, 481 F.3d at 11 750 (holding that inconsistencies between medical evidence and 12 claimant s subjective complaints constitute significant and 13 substantial reasons to discount his credibility). Both his 14 treatment records and his own statements confirm that he improved 15 with conservative treatment. (AR 25-26; see AR 58, 164, 356, 16 362, 540, 541); see Tommasetti v. Astrue, 533 F.3d 1035, 1040 17 (9th Cir. 2008) (holding that claimant s response to conservative 18 treatment undermined his reports of disabling symptoms). The ALJ 19 also found that the opinions of Plaintiff s treating physicians 20 and Dr. Brooks supported a finding that Plaintiff was capable of 21 simple, repetitive work with a limited stress level. (AR 27; see 22 AR 24); cf. Carmickle 533 F.3d at 1161 (contradiction with 23 medical record is sufficient basis for rejecting claimant s 24 subjective testimony). The ALJ found that Plaintiff s own 25 statements reflected his capacity for varied activities. (AR 26 26); see § 404.1529(c)(3)(i); Light v. Soc. Sec. Admin., 119 F.3d 27 789, 792 (9th Cir. 1997) (in weighing claimant s credibility, ALJ 28 may consider inconsistencies between testimony and conduct). 23 The 1 ALJ thus found that the medical evidence and Plaintiff s reports 2 of his regular activities contradicted his allegations of 3 disabling symptoms. (AR 26); cf. Rollins v. Massanari, 261 F.3d 4 853, 857 (9th Cir. 2001) (ALJ properly discounted symptom 5 testimony that was inconsistent with both medical evidence and 6 claimant s daily activities). 7 To the extent Plaintiff suggests that his statements must be 8 viewed differently because he was living in a sober-living home 9 at the time of the hearing, most of the statements about his 10 activities predate his residence there. (See AR 52 (testifying 11 he had lived in the facility since August 2010), AR 162-66 (on 12 March 2, 2010, noting activities).) Moreover, although Plaintiff 13 consistently argues that the record evidence paints a picture of 14 a person debilitated by depression and anxiety, as noted above, 15 the ALJ reasonably found that Plaintiff s treatment records show 16 medical improvement and increased functionality with treatment. 17 (See, e.g., AR 362 (planning to enroll in online courses), 540 18 (exhibiting good judgment), 541 (working as trustee), 555 19 (exhibiting good concentration).) As Plaintiff himself notes (J. 20 Stip. at 23), the ALJ may not speculate about possible changed 21 circumstances in the future but must base his assessment of 22 Plaintiff s limitations on the evidence of record. 23 On appellate review, this Court is limited to determining 24 whether the ALJ properly identified clear and convincing reasons 25 for discrediting Plaintiff s credibility. 26 1284. Smolen, 80 F.3d at Plaintiff s general stability and high functioning, the 27 improvement of his symptoms with treatment, the assessments of 28 his treating physicians and the state-agency physician, and his 24 1 varied activities are proper and sufficiently specific bases for 2 discounting his claims of disabling symptoms, and the ALJ s 3 reasoning was clear and convincing. See Tommasetti, 533 F.3d at 4 1039-40; Houghton v. Comm r Soc. Sec. Admin., 493 F. App x 843, 5 845 (9th Cir. 2012). Because the ALJ s findings were supported 6 by substantial evidence, this Court may not engage in 7 second-guessing. 8 604. 9 VI. 10 See Thomas, 278 F.3d at 959; Fair, 885 F.2d at Remand is not warranted. CONCLUSION Consistent with the foregoing, and pursuant to sentence four 11 of 42 U.S.C. § 405(g),8 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 14 serve copies of this Order and the Judgment on counsel for both 15 parties. 16 17 18 DATED: May 29, 2014 19 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 20 21 22 23 24 25 26 27 28 8 This sentence provides: The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. 25

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