Richard J Rosas v. Carolyn W Colvin, No. 2:2013cv02756 - Document 29 (C.D. Cal. 2014)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Sheri Pym: (see document image for further details). IT IS THEREFORE ORDERED that Judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits, and dismissing this action with prejudice. (ad)

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O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 RICHARD J. ROSAS, Case No. CV 13-2756-SP 14 CAROLYN W. COLVIN, Acting 15 Commissioner of Social Security Administration, 16 Defendant. 17 ) ) ) ) ) ) ) ) ) ) ) ) ) 18 I. 19 INTRODUCTION 20 On May 2, 2013, plaintiff Richard J. Rosas, proceeding pro se, filed a 12 13 Plaintiff, v. MEMORANDUM OPINION AND ORDER 21 complaint against defendant, the Commissioner of the Social Security 22 Administration ( Commissioner ), seeking a review of a denial of disability 23 insurance benefits ( DIB ) and Supplemental Security Income ( SSI ). Both 24 plaintiff and defendant have consented to proceed for all purposes before the 25 assigned Magistrate Judge pursuant to 28 U.S.C. § 636(c). The court deems the 26 matter suitable for adjudication without oral argument. 27 Plaintiff presents four issues for decision: (1) whether plaintiff was 28 1 1 accorded due process at his hearing; (2) whether the ALJ properly considered the 2 opinion of plaintiff s treating and examining physicians; (3) whether the ALJ 3 properly relied on the testimony of the vocational expert ( VE ); and (4) whether 4 the ALJ properly discounted plaintiff s credibility.1 Memorandum in Opposition 5 to Defendant s Motion to Dismiss ( P. Mem. ) at 1-3; Memorandum in Support of 6 Defendant s Answer ( D. Mem. ) at 3-8; Memorandum in Reply to Defendant s 7 Answer ( Reply ) at 2-3. 8 Having carefully studied the parties papers, the Administrative Record 9 ( AR ), and the decision of the ALJ, the court concludes that, as detailed herein, 10 the ALJ accorded plaintiff a fair hearing, properly rejected the opinion of 11 plaintiff s treating physician, properly relied on the VE s testimony, and properly 12 discounted plaintiff s credibility. Consequently, the court affirms the decision of 13 the Commissioner denying benefits. 14 II. 15 FACTUAL AND PROCEDURAL BACKGROUND 16 Plaintiff, who was forty-five years old on his corrected alleged disability 17 onset date,2 completed school through the ninth grade. Id. at 47-48, 151, 163. His 18 19 20 21 22 23 24 25 26 27 1 On January 8, 2014, plaintiff submitted a Memorandum in Opposition to Defendant s Motion to Dismiss, which this court construes as a Memorandum in Support of Plaintiff s Complaint. Plaintiff raised seven issues in the memorandum and an additional issue in his Reply. Reading the vague allegations liberally, the court characterizes plaintiff s issues as set forth above. See Roy v. Lampert, 465 F.3d 964, 970 (9th Cir. 2006) (district courts must construe pro se habeas filings liberally ) (quoting Allen v. Calderon, 408 F.3d 1150, 1153 (9th Cir. 2005)). Normally the court will not consider issues raised for the first time in a reply brief, but because plaintiff s credibility is related to the issue of whether the ALJ properly considered the opinion of his treating physician, an issue raised in the initial brief, the court will address it as well. 2 In his applications, plaintiff alleged that his onset of disability date was June 28 18, 2007. AR at 151. The ALJ determined that the correct alleged onset date was 2 1 past relevant work was as a general building contractor, general engineering 2 contractor, electrician, and arc welder. Id. at 220-21. 3 On April 20 and May 13, 2009, plaintiff filed applications for DIB and SSI 4 due to, inter alia, depression, paranoia, back injury, neck injury, carpal tunnel, 5 asbestos cancer, and post traumatic stress disorder ( PTSD ). Id. at 124, 132, 155. 6 The Commissioner denied plaintiff s applications, after which he filed for a 7 request for a hearing. Id. at 91-97. 8 On August 24, 2010, plaintiff, represented by counsel, appeared and 9 testified at a hearing before the ALJ. Id. at 40-88. The ALJ also heard testimony 10 from Guadalupe Rosas, plaintiff s wife. Id. at 77-87. 11 After the hearing, the ALJ ordered an additional psychological evaluation of 12 plaintiff, which was conducted September 24, 2010. Id. at 375-82. 13 On December 14, 2010, the ALJ retained the assistance of Howard 14 Goldfarb, a VE, and asked that he complete a set of interrogatories. Id. at 216. 15 The VE returned the completed interrogatories on May 5, 2011. Id. at 218-26. 16 The ALJ gave plaintiff s counsel the VE s responses and the option of 17 commenting on the responses, submitting more evidence, or submitting cross18 interrogatories. Id. at 228. Plaintiff s counsel submitted a cross-interrogatory for 19 the VE, to which he responded on June 8, 2011.3 Id. at 229, 231, 233. 20 On July 8, 2011, the ALJ denied plaintiff s claims for benefits. Id. at 24-35. 21 Applying the well-known five-step sequential evaluation process, the ALJ 22 found, at step one, that plaintiff had not engaged in substantial gainful activity 23 since October 17, 2008, the corrected alleged onset date. Id. at 27. 24 At step two, the ALJ found that plaintiff suffered from the following severe 25 26 October 17, 2008, the date plaintiff stopped working. Id. at 27. 27 3 The VE s response is dated June 8, 2010, but that appears to be a 28 typographical error. See AR at 233. 3 1 combination of impairments: tension headaches; thoracolumbar strain; bipolar 2 disorder; PTSD; and polysubstance abuse. Id. 3 At step three, the ALJ found that plaintiff s impairments, whether 4 individually or in combination, did not meet or medically equal one of the listed 5 impairments set forth in 20 C.F.R. part 404, Subpart P, Appendix 1 (the 6 Listings ). Id. The ALJ then assessed plaintiff s residual functional capacity ( RFC ),4 and 7 8 determined that plaintiff had the RFC to: lift/carry up to fifty pounds occasionally 9 and twenty-five pounds frequently; stand/walk up to six hours and sit up to six 10 hours in an eight-hour workday; and climb, kneel, crawl, bend, stoop, and balance 11 on a frequent basis. Id. at 28. The ALJ also found that plaintiff had the ability to 12 perform complex technical work on a frequent basis, and may perform a full range 13 of simple, routine, and repetitive work with occasional contact with supervisors 14 and the general public at a medium stress level.5 Id. at 28-29. 15 The ALJ found, at step four, that plaintiff was unable to perform his past 16 relevant work. Id. at 33. 17 At step five, the ALJ found that considering plaintiff s age, education, work 18 experience, and RFC, there were jobs that exist in significant numbers in the 19 national economy that plaintiff could perform, including hand packager, day 20 worker, and woodworking polisher. Id. at 33-34. Consequently, the ALJ 21 4 Residual functional capacity is what a claimant can do despite existing exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 23 1155-56 n.5-7 (9th Cir. 1989). Between steps three and four of the five-step 24 evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the claimant s residual functional capacity. Massachi v. Astrue, 486 25 F.3d 1149, 1151 n.2 (9th Cir. 2007). 26 5 The ALJ specified a stress level of five based on a scale of one to ten, citing 27 a dishwasher as an example of one and an air traffic controller as an example of 28 ten. AR at 28-29. 22 4 1 concluded that plaintiff did not suffer from a disability as defined by the Social 2 Security Act. Id. at 34-35. 3 Plaintiff filed a timely request for review of the ALJ s decision, which was 4 denied by the Appeals Council. Id. at 4-6. The ALJ s decision stands as the final 5 decision of the Commissioner. 6 III. 7 STANDARD OF REVIEW 8 This court is empowered to review decisions by the Commissioner to deny 9 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 10 Administration ( SSA ) must be upheld if they are free of legal error and 11 supported by substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 12 (9th Cir. 2001) (as amended). But if the court determines that the ALJ s findings 13 are based on legal error or are not supported by substantial evidence in the record, 14 the court may reject the findings and set aside the decision to deny benefits. 15 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 16 242 F.3d 1144, 1147 (9th Cir. 2001). 17 Substantial evidence is more than a mere scintilla, but less than a 18 preponderance. Aukland, 257 F.3d at 1035. Substantial evidence is such 19 relevant evidence which a reasonable person might accept as adequate to support 20 a conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 21 F.3d at 459. To determine whether substantial evidence supports the ALJ s 22 finding, the reviewing court must review the administrative record as a whole, 23 weighing both the evidence that supports and the evidence that detracts from the 24 ALJ s conclusion. Mayes, 276 F.3d at 459. The ALJ s decision cannot be 25 affirmed simply by isolating a specific quantum of supporting evidence. 26 Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th 27 Cir. 1998)). If the evidence can reasonably support either affirming or reversing 28 5 1 the ALJ s decision, the reviewing court may not substitute its judgment for that 2 of the ALJ. Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 3 1992)). 4 IV. 5 DISCUSSION 6 A. Plaintiff Received a Fair Hearing 7 Plaintiff s general overarching argument is that the administrative hearing 8 violated his due process rights because: (1) he received ineffective assistance of 9 counsel; (2) the ALJ was biased; and (3) the ALJ did not allow plaintiff to review 10 evidence collected after the hearing and did not consider all of the evidence. P. 11 Mem. at 1-2. Plaintiff s claims are without merit. 12 The Supreme Court has held that applicants for social security disability 13 benefits are entitled to due process in the determination of their claims. Holohan 14 v. Massanari, 246 F.3d 1195, 1209 (9th Cir. 2001) (citing Richardson v. Perales, 15 402 U.S. 389, 398, 401-02, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971)). This 16 includes the right to a full and fair hearing. See McLeod v. Astrue, 640 F.3d 881, 17 885 (9th Cir. 2011) (as amended) ( The ALJ has a duty to conduct a full and fair 18 hearing. ); Oritz v. Colvin, No. 12-3348, 2013 WL 2468256, at *1 (C.D. Cal. June 19 6, 2013); see also Hepp v. Astrue, 511 F.3d 798, 804 (8th Cir. 2008). 20 1. 21 Plaintiff contends that he received ineffective assistance of counsel. P. Plaintiff Does Not Have a Right to Counsel 22 Mem. at 1-2. Specifically, plaintiff argues that his counsel failed to respond to the 23 ALJ s requests, his questions, and the submission of new evidence. Id. at 2. 24 A social security claimant does not have a Sixth Amendment right to 25 counsel. See Brandyburg v. Sullivan, 959 F.2d 555, 562 (5th Cir. 1992) ( The 26 Supreme Court has never recognized a constitutional right to counsel at an SSA 27 hearing. ); Holland v. Heckler, 764 F.2d 1560, 1562 (11th Cir. 1985) (a claimant 28 6 1 has no constitutional right to counsel at a disability benefits hearing ) (emphasis 2 in original); Alvernaz v. Colvin, No. 13-158, 2014 WL 1338314, at *8 (E.D. Cal. 3 Apr. 2, 2014), Garth v. Astrue, No. 11-5592, 2013 WL 257090, at *5 (N.D. Cal. 4 Jan. 23, 2013); see also 4 Soc. Sec. Law & Prac. § 46:3 ( A claim of ineffective 5 assistance of counsel during administrative proceedings may not provide a basis 6 for reversing the SSA s denial of benefits, because, given the nonadversarial 7 nature of the administrative process, competent legal representation of a claimant 8 during the process is not a prerequisite to the issuance of a valid administrative 9 decision. ). Thus, this claim cannot provide a basis for relief. 10 2. 11 Plaintiff argues that the ALJ was biased because, according to plaintiff, the Plaintiff s Allegations of Bias Are Without Support 12 ALJ initially found plaintiff was disabled and then ultimately concluded he was 13 not. P. Mem. at 1-2. Plaintiff also suggests the ALJ withheld records from 14 persons evaluating plaintiff. Reply at 2-3. 15 ALJs are presumed to be unbiased. Rollins v. Massanari, 261 F.3d 853, 16 857 (9th Cir. 2001). This presumption may be rebutted by a showing of conflict 17 of interest or some other specific reason for disqualification. Id. at 858. Here, 18 plaintiff offers nothing more than conclusory allegations of bias. See Sprewell v. 19 Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001) (the court is not 20 required to accept as true merely conclusory allegations). 21 Plaintiff makes two allegations to support his claim of bias. First, plaintiff 22 alleges that the fact the ALJ initially concluded that he was disabled and then later 23 reached the opposite conclusion shows bias. P. Mem. at 1-2. This allegation is 24 unfounded. Throughout the hearing, the ALJ exhibited no indication of his 25 inclinations. Further, even assuming there was evidence the ALJ initially believed 26 that plaintiff was disabled, the ALJ reached his final conclusion after receiving 27 new evidence, which, as discussed infra, the ALJ properly considered. Thus, even 28 7 1 if the ALJ did change his mind, that would not show he was biased. 2 Second, plaintiff alleges that the ALJ withheld his medical records from the 3 consultative examiners. Reply at 2-3. Again, plaintiff s allegations are baseless. 4 Plaintiff did not have any psychiatric treatment records prior to January 2010 and 5 thus there were none for Dr. Edward Ritvo, a consultative psychiatrist who 6 examined plaintiff on July 2, 2009, to review. See AR at 283. Similarly, Dr. 7 Shahram Jacobs, a consultative internist, did not review any medical records. Id. 8 at 277. There is no evidence that these records were available to Dr. Jacobs at the 9 time of the examination. Compare id. at 239, 276 (records request sent on June 10 19, 2009, just ten days prior to Dr. Jacobs s examination). As for Dr. Steven I. 11 Brawer, a consultative psychologist who examined plaintiff on September 24, 12 2010, he stated that he reviewed a thick file of records and cited some of the 13 records that he reviewed. Id. at 376-77. The fact that Dr. Brawer did not 14 specifically state that he reviewed plaintiff s psychiatric treatments notes does not 15 prove either that Dr. Brawer did not review them or that the ALJ purposefully 16 excluded them. Dr. Brawer only cited examples of the records he reviewed and 17 did not state it was an inclusive list. Given that Dr. Brawer specifically noted that 18 he reviewed Dr. Park s opinion, it can be reasonably assumed that he also 19 reviewed the supporting treatment notes. 20 Plaintiff has therefore failed to rebut the presumption against bias. 21 3. 22 Plaintiff contends that the ALJ made several evidentiary errors. The ALJ Committed No Evidentiary Errors 23 Specifically, plaintiff alleges that the ALJ failed to notify plaintiff and seek input 24 as to the experts he intended to retain, did not allow plaintiff or his counsel to 25 review evidence submitted after the hearing, and failed to request and review 26 plaintiff s military record. P. Mem. at 1-2. 27 An ALJ has a duty to fully develop the record. See Tonapetyan, 242 F.3d at 28 8 1 1150. The ALJ may discharge this duty in several ways, including: subpoenaing 2 the claimant s physicians, submitting questions to the claimant s physicians, 3 continuing the hearing, or keeping the record open after the hearing to allow 4 supplementation of the record. Id. 5 Plaintiff s first contention is that the ALJ failed to notify plaintiff and allow 6 his input as to which experts he should retain. P. Mem. at 2. It is the province of 7 the ALJ to retain the experts, but a claimant may object to the selection. See 20 8 C.F.R. §§ 404.1519, 416.919, 404.1519g, 416.919g, 404.1519j, 416.919j. Here, 9 plaintiff offers nothing more than a conclusory allegation that the ALJ did not 10 notify his counsel as to the selection of the consultative examiners. Thus, the 11 court need not accept it as true. Moreover, the ALJ allowed plaintiff s counsel to 12 comment on or object to Dr. Brawer s opinion, which he did not. AR at 200. 13 Second, plaintiff argues that the ALJ improperly requested additional 14 evidence after the hearing and failed to provide that evidence to plaintiff for 15 review. P. Mem. at 2. As discussed supra, the ALJ may keep the record open for 16 the submission of additional evidence if the record is incomplete. Here, after the 17 hearing, the ALJ ordered an additional consultative psychological evaluation, 18 which was conducted by Dr. Brawer on September 24, 2010. AR at 375-82. As 19 just noted, the ALJ gave plaintiff s counsel an opportunity to comment on Dr. 20 Brawer s report. Id. at 200. Subsequently, the ALJ retained the assistance of a 21 VE, Howard J. Goldfarb. Id. at 217-26. The ALJ forwarded Goldfarb s 22 interrogatory responses to plaintiff s counsel and asked counsel to comment on the 23 responses, submit more evidence, or submit cross-interrogatories. Id. at 228. 24 Plaintiff s counsel submitted a cross-interrogatory, and the VE responded. Id. at 25 229, 231, 233. The ALJ s retention of a consultative psychologist and VE were in 26 compliance with his duty to develop the record. Contrary to plaintiff s arguments, 27 the ALJ provided the evidence to plaintiff s counsel and gave counsel an 28 9 1 opportunity to respond. 2 Finally, plaintiff argues that the ALJ had a duty to request and review 3 plaintiff s military record. The ALJ s duty to develop the record applies only to 4 evidence relevant to his claim. See, e.g., Humecky v. Astrue, No. 07-1010, 2009 5 WL 799178, at *24 (E. D. Cal. Mar. 24, 2009) (ALJ has a duty to explore all 6 relevant facts) (citing Higbee v. Sullivan, 975 F.2d 558, 561 (9th Cir. 1991)). 7 Plaintiff served in the military in the early 1980s. The ALJ accepted plaintiff s 8 allegation of PTSD resulting from the Beirut bombing in 1983. See AR at 27. 9 Because plaintiff does not specify, it is unclear why the ALJ should have reviewed 10 plaintiff s military record and how doing so would have helped plaintiff s claims. 11 In short, plaintiff s evidentiary claims are without merit. 12 Accordingly, substantial evidence demonstrates that plaintiff received a fair 13 and unbiased hearing before an unbiased ALJ who fulfilled his duty to develop the 14 record. 15 B. The ALJ Properly Considered the Expert Opinion Testimony 16 Although it is not entirely clear, plaintiff appears to argue that the ALJ erred 17 when he credited the opinions of the consultative examiners and gave less weight 18 to his treating physician.6 P. Mem. at 1-2. The court disagrees. 19 In determining whether a claimant has a medically determinable 20 impairment, among the evidence the ALJ considers is medical evidence. 20 21 C.F.R. §§ 404.1527(b), 416.927(b). In evaluating medical opinions, the 22 regulations distinguish among three types of physicians: (1) treating physicians; 23 24 6 Plaintiff also argues that the ALJ should not have given weight to the state 25 agency physicians. Reply at 1-2. The ALJ relied on the opinions of several of the 26 examining physicians and gave less weight to the opinions of the state agency physicians. See AR at 29-30. Because the ALJ did not rely on the opinions of the 27 state agency opinions in reaching his determination, this court will not discuss 28 those opinions. 10 1 (2) examining physicians; and (3) non-examining physicians.7 20 C.F.R. 2 §§ 404.1527(c), (e), 416.927(c), (e); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 3 1996) (as amended). Generally, a treating physician s opinion carries more 4 weight than an examining physician s, and an examining physician s opinion 5 carries more weight than a reviewing physician s. Holohan, 246 F.3d at 1202; 20 6 C.F.R. §§ 404.1527(c)(1)-(2); 416.927(c)(1)-(2). The opinion of the treating 7 physician is generally given the greatest weight because the treating physician is 8 employed to cure and has a greater opportunity to understand and observe a 9 claimant. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); Magallanes v. 10 Bowen, 881 F.2d 747, 751 (9th Cir. 1989). 11 Nevertheless, the ALJ is not bound by the opinion of the treating physician. 12 Smolen, 80 F.3d at 1285. If a treating physician s opinion is uncontradicted, the 13 ALJ must provide clear and convincing reasons for giving it less weight. Lester, 14 81 F.3d at 830. If the treating physician s opinion is contradicted by other 15 opinions, the ALJ must provide specific and legitimate reasons supported by 16 substantial evidence for rejecting it. Id. at 830. Likewise, the ALJ must provide 17 specific and legitimate reasons supported by substantial evidence in rejecting the 18 contradicted opinions of examining physicians. Id. at 830-31. The opinion of a 19 non-examining physician, standing alone, cannot constitute substantial evidence. 20 Widmark v. Barnhart, 454 F.3d 1063, 1067 n.2 (9th Cir. 2006); Morgan v. 21 Comm r, 169 F.3d 595, 602 (9th Cir. 1999); see also Erickson v. Shalala, 9 F.3d 22 813, 818 n.7 (9th Cir. 1993). 23 24 25 7 Psychologists are considered acceptable medical sources whose opinions are accorded the same weight as physicians. 20 C.F.R. §§ 404.1513(a)(2), 27 416.913(a)(2). Accordingly, for ease of reference, the court will refer to Dr. 28 Brawer as a physician. 26 11 1 2 3 1. Medical Opinions Dr. Park Dr. Park, a psychiatrist at the Los Angeles County Department of Mental 4 Health, treated plaintiff from January 2010 through at least June 2010. See AR at 5 319-20, 324, 326-31, 368-70. Plaintiff s sessions with Dr. Park were primarily 6 telephonic and their purpose was to follow up on plaintiff s medication. See id. 7 Jennifer Kim, an associate social worker, and Debbie Eshtiaghpour, a post8 doctoral intern, provided plaintiff with therapy sessions from January 2010 9 through April 2010 and coordinated with Dr. Park. See id. at 316-43, 371-73. 10 During the sessions, Kim observed that plaintiff was oriented and alert, shook his 11 legs nervously, and was verbose. See, e.g., id. at 317, 322, 325. Dr. Park and Kim 12 diagnosed plaintiff with bipolar disorder and PTSD secondarily. Id. at 332, 334. 13 On May 21, 2010, Dr. Park completed a Medical Source Statement 14 (Mental), in which he opined that plaintiff had moderate limitations with regard to 15 understanding and memory, sustained concentration and persistence, social 16 interaction, and adaptation. Id. at 310-12. Dr. Park also checked boxes indicating 17 that plaintiff would have a substantial loss of ability to: understand, remember, 18 and carry out directions; make simple-work related decisions; respond 19 appropriately to supervisors and co-workers; and deal with changes in a routine 20 work setting. Id. at 312. Dr. Park listed excessive mood changes, anger, hearing 21 imagined voices, and confusion as findings that supported his opinion. Id. 22 23 Dr. Jacobs Dr. Shahram Jacobs, a consultative internist, examined plaintiff on June 29, 24 2009. Id. at 276-80. Dr. Jacobs did not review any medical records. Id. at 277. 25 With respect to plaintiff s back, Dr. Jacobs observed that plaintiff had evidence of 26 muscle spasm in the right paraspinal muscles along the upper mid thoracic spine 27 with tenderness to palpation and tenderness on the left and right lateral rotation, as 28 well as left and right flexion of the lumbar spine. Id. at 279. Plaintiff s range of 12 1 motion, however, was normal. Id. Dr. Jacobs also took a thoracic spine x-ray and 2 did not note any abnormalities. See id. at 280. With regard to plaintiff s wrists 3 and hands, Dr. Jacobs observed that plaintiff had no evidence of tenderness to 4 palpation of the wrists, Herbeden s nodes, or Bouchard s nodes. Id. at 279. 5 Plaintiff had normal range of motion in the wrists. Id. 6 Based on his examination, Dr. Jacobs concluded that plaintiff did not have 7 any abnormality of the hands and wrists, but found that there was evidence of 8 muscle spasm in the thoracic spine with tenderness to palpation, as well as pain 9 elicited on movement likely with thoracolumbar strain. Id. at 280. Dr. Jacobs 10 opined that plaintiff may suffer from tension type headaches but he appeared 11 comfortable during the examination. Id. Dr. Jacobs further opined that plaintiff: 12 could lift/carry fifty pounds occasionally and twenty-five pounds frequently; could 13 stand/walk/sit six hours in an eight-hour workday; had unlimited ability to push 14 and pull in both the upper and lower extremities other than lift/carry; and was 15 limited to frequent postural activities. Id. 16 17 Dr. Ritvo Dr. Edward Ritvo, a consultative psychiatrist, examined plaintiff on July 2, 18 2009. Id. at 283-288. Dr. Ritvo reviewed no medical records and did not conduct 19 any tests. See id. Dr. Ritvo observed that plaintiff was, inter alia, pleasant, 20 talkative, and able to volunteer information spontaneously. Id. at 285. Dr. Ritvo 21 also observed that plaintiff had relevant and organized thought processes. Id. at 22 286. Dr. Ritvo noted that plaintiff had some ideas which were quite unusual, 23 but that they did not fit into a specific diagnosis. Id. at 287. As such, Dr. Ritvo 24 diagnosed plaintiff with polysubstance abuse, in long-term remission, and 25 moderate psychosocial stressors, and opined no impairments. Id. at 287-88. 26 27 Dr. Brawer Dr. Brawer examined plaintiff on September 24, 2010. Id. at 375-82. Dr. 28 Brawer reviewed plaintiff s medical records and administered multiple tests. See 13 1 id. Dr. Brawer observed that plaintiff was euthymic, had clear speech, and had 2 adequate concentration. Id. at 378-79. Dr. Brawer diagnosed plaintiff with: 3 bipolar disorder; PTSD; polysubstance abuse, which was reported to be remission; 4 and low average range intellectual functioning. Id. at 381. Based on the test 5 results and observations, Dr. Brawer opined that plaintiff: would be able to 6 perform simple, repetitive tasks; could perform some detailed, varied, or complex 7 tasks; had a mildly diminished ability to sustain attention and concentration for 8 extended periods of time but demonstrated adequate attention during testing; and 9 displayed signs of mood instability and proneness to substance abuse/dependence 10 that may result in mild to moderate limitations in his ability to effectively manage 11 customary work stresses. Id. at 381-85. Dr. Brawer further opined that given 12 plaintiff s dysphoria, paranoia, and proneness to interpersonal conflict, plaintiff 13 may have mild to moderate limitations in sustaining cooperative relationships with 14 coworkers and supervisors and would function best in a semi-isolated 15 environment. Id. at 382, 384. 16 2. 17 The ALJ concluded that plaintiff had a severe combination of the The ALJ s Findings 18 impairments of tension headaches, thoracolumbar strain, bipolar disorder, PTSD, 19 and polysubstance abuse. Id. at 27. In his RFC determination, the ALJ found that 20 plaintiff had the ability to perform medium work with the following non21 exertional limitations, plaintiff: could frequently perform complex technical work; 22 could perform a full range of simple, routine, and repetitive work; was limited to 23 occasional contact with supervisors and the general public; and was limited to a 24 job with a medium stress level. Id. at 28-29. In reaching those determinations, the 25 ALJ gave great weight to the opinions of Dr. Jacobs and Dr. Brawer and less 26 weight to the opinions of Dr. Ritvo and Dr. Park. Id. at 29-31. The ALJ gave less 27 weight to Dr. Ritvo because he did not have medical records to review and he did 28 not cite as much relevant objective evidence as Dr. Brawer. Id. at 30. The ALJ 14 1 gave less weight to Dr. Park because his opinion reflect[ed] advocacy. Id. at 31. 2 The ALJ found that Dr. Park s opinion was not supported by objective evidence or 3 the treatment records, which focused largely on plaintiff s discounted subjective 4 complaints. Id. Plaintiff appears to only find fault with the ALJ s acceptance of 5 Dr. Brawer s opinion and the rejection of Dr. Park s opinion.8 6 The ALJ properly relied on Dr. Brawer s opinion. Dr. Brawer s opinion 7 was based on an examination and review of medical records. Plaintiff offers no 8 reason to give Dr. Brawer s opinion less weight. 9 The ALJ also properly gave less weight to Dr. Park s opinion. One of the 10 reasons the ALJ gave for rejecting Dr. Park s opinion that it reflected advocacy 11 rather than treatment by Dr. Park was without merit. The ALJ took issue with 12 the fact that plaintiff s counsel solicited the opinion from Dr. Park. See id. 13 Plaintiff s counsel is entitled to solicit Dr. Park s opinion. Indeed, had he not, the 14 ALJ may have noted that the treating physician did not provide an opinion. 15 Nothing in the record suggests that Dr. Park was trying to advocate for plaintiff 16 rather than provide a neutral opinion. 17 Nevertheless, the ALJ cited other specific and legitimate reasons for 18 rejecting the opinion of Dr. Park. First, the ALJ found that Dr. Park s opinion is 19 not supported by objective evidence. AR at 31. The ALJ correctly noted that 20 plaintiff s records reflect that Dr. Park and his associates conducted no tests and 21 recorded few objective observations. See, e.g., id. at 322-23. The only objective 22 findings Dr. Park and his associates noted were that plaintiff was oriented and 23 24 25 26 27 28 8 The only physician who offered an opinion concerning plaintiff s physical RFC was Dr. Jacobs. To the extent that plaintiff finds fault with Dr. Jacobs opinion, his only argument is that Dr. Jacobs did not review any medical records. Reply at 1. Plaintiff submitted few medical records, most of were irrelevant to plaintiff s complaints. See, e.g., AR at 257, 274-75 (discussing well visits and unrelated issues). The ALJ discussed the relevant records (spine and hand x-rays), which supported Dr. Jacobs s opinion. See id. at 29, 260-61, 264. 15 1 alert, shook his legs nervously, and was verbose during sessions. See, e.g., id. at 2 317, 322, 325. 3 Second, the ALJ s finding that the treatment notes do not support Dr. Park s 4 opinion is also specific and legitimate. See id. at 31. Dr. Park based his opinion 5 on plaintiff s excessive mood changes, anger, auditory hallucinations, and 6 confusion. The treatment notes, however, do not reflect any objective 7 observations of those symptoms. Instead, it was plaintiff who relayed information 8 concerning mood changes, anger, and hallucinations to Dr. Park and his 9 associates. See, e.g., id. at 322-35. Thus, to the extent that Dr. Park based his 10 opinion on plaintiff s subjective complaints, the ALJ may reject it if plaintiff s 11 credibility is discounted. See Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 12 1995) ( [A]n opinion of disability premised to a large extent upon the claimant s 13 own accounts of his symptoms and limitations may be disregarded, once those 14 complaints have themselves been properly discounted. ). As discussed infra, the 15 ALJ properly discounted plaintiff s credibility. 16 In short, the ALJ properly considered the opinions of the treating and 17 examining physicians and provided specific and legitimate reasons supported by 18 substantial evidence for rejecting the opinion of Dr. Park. 19 C. The ALJ Properly Relied on the VE s Testimony 20 Plaintiff contends that the vocational expert failed to consider all the 21 limitations, including his lack of a high school diploma and the California 22 Employment Development Department s ( EDD ) finding that he was 23 unemployable. P. Mem. at 1, 3. The court disagrees. 24 At step five, Commissioner bears the burden to show that the claimant 25 retains the ability to perform other gainful activity. Lounsburry v. Barnhart, 468 26 F.3d 1111, 1114 (9th Cir. 2006). To support a finding that a claimant is not 27 disabled at step five, the Commissioner must provide evidence demonstrating that 28 other work exists in significant numbers in the national economy that the claimant 16 1 can perform, given his or her age, education, work experience, and RFC. 20 2 C.F.R. §§ 404.1512(f), 416.912(f). 3 The Commissioner may meet her step five burden either by reference to the 4 Medical-Vocational Guidelines at 20 C.F.R. part 404, Subpart P, Appendix 2 or by 5 relying on the testimony of a vocational expert and the Dictionary of Occupational 6 Titles ( DOT ) in evaluating whether the claimant is able to perform other work 7 in the national economy. Terry v. Sullivan, 903 F.2d 1273, 1276 (9th Cir. 1990) 8 (citations omitted); see Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001); 9 Social Security Ruling ( SSR ) 83-12;9 see also 20 C.F.R. §§ 404.1566(d)(1), 10 416.966(d)(1) (DOT is a source of reliable job information). The DOT is the 11 rebuttable presumptive authority on job classifications. Johnson v. Shalala, 60 12 F.3d 1428, 1435 (9th Cir. 1995). An ALJ may not rely on a VE s testimony 13 regarding the requirements of a particular job without first inquiring whether the 14 testimony conflicts with the DOT, and if so, the reasons therefor. Massachi, 486 15 F.3d at 1152-53 (discussing SSR 00-4p). In order for an ALJ to accept a VE s 16 testimony that contradicts the DOT, the record must contain persuasive evidence 17 to support the deviation. Id. at 1153 (quoting Johnson, 60 F.3d at 1435). 18 Evidence sufficient to permit such a deviation may be either specific findings of 19 fact regarding the claimant s residual functionality, or inferences drawn from the 20 context of the expert s testimony. Light v. Soc. Sec. Admin., 119 F.3d 789, 793 21 (9th Cir. 1997) (as amended). 22 Here, the ALJ propounded interrogatories to the VE. AR at 218-26. In 23 24 25 26 27 28 9 The Commissioner issues Social Security Rulings to clarify the Act's implementing regulations and the agency s policies. SSRs are binding on all components of the SSA. SSRs do not have the force of law. However, because they represent the Commissioner s interpretation of the agency s regulations, we give them some deference. We will not defer to SSRs if they are inconsistent with the statute or regulations. Holohan, 246 F.3d at 1203 n.1 (internal citations omitted). 17 1 response to a hypothetical person with plaintiff s RFC, the VE responded that such 2 person would be able to perform the jobs of hand packager, day worker, and 3 woodworking polisher. Id. at 223-24. Plaintiff s counsel also presented an 4 interrogatory, presenting a hypothetical person with plaintiff s alleged RFC but 5 also limited to: light work; simple, routine, and repetitive work; less than 6 occasional contact with supervisors; rare contact with co-workers; no contact with 7 the general public due to aggressive behavior and manic moods; and a maximum 8 stress level of three based on the ALJ s scale. Id. at 229. In response, the VE 9 stated that such hypothetical person would be able to perform the jobs of 10 housekeeper, jewelry preparer, and handwasher. Id. at 233. 11 The VE properly considered the hypotheticals and did not err. First, the VE 12 stated his responses did not conflict with the DOT (id. at 225), and plaintiff has 13 not identified a genuine conflict. Contrary to plaintiff s contention, none of the 14 identified jobs require a high school diploma. See DOT 920.587-018 (hand 15 packager), 301.687-014 (day worker), 761.684-026 (woodworking polisher). And 16 second, assuming the EDD determined that plaintiff was unemployable, such 17 determination is irrelevant to the VE s response. The VE only had a duty to 18 respond to the hypotheticals presented to him. It is the purview of the ALJ to 19 make the ultimate disability determination. 20 C.F.R. §§ 404.1527(d), 416.927(d). 20 The ALJ thus properly relied on the VE testimony in reaching his decision. 21 The VE considered all factors presented in the hypotheticals and his responses 22 were consistent with the DOT. 23 D. The ALJ Properly Discounted Plaintiff s Credibility 24 Plaintiff argues that the ALJ improperly discounted his credibility. Reply at 25 2-3. Specifically, plaintiff suggests that the ALJ failed to provide clear and 26 convincing reasons for finding plaintiff less credible. Id. The court disagrees. 27 The ALJ must make specific credibility findings, supported by the record. 28 SSR 96-7p. To determine whether testimony concerning symptoms is credible, the 18 1 ALJ engages in a two-step analysis. Lingenfelter v. Astrue, 504 F.3d 1028, 10352 36 (9th Cir. 2007). First, the ALJ must determine whether a claimant produced 3 objective medical evidence of an underlying impairment which could reasonably 4 be expected to produce the pain or other symptoms alleged. Id. at 1036 (quoting 5 Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). Second, if there 6 is no evidence of malingering, an ALJ can reject the claimant s testimony about 7 the severity of her symptoms only by offering specific, clear and convincing 8 reasons for doing so. Smolen, 80 F.3d at 1281; Benton v. Barnhart, 331 F.3d 9 1030, 1040 (9th Cir. 2003). The ALJ may consider several factors in weighing a 10 claimant s credibility, including: (1) ordinary techniques of credibility evaluation 11 such as a claimant s reputation for lying; (2) the failure to seek treatment or follow 12 a prescribed course of treatment; and (3) a claimant s daily activities. Tommasetti 13 v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008); Bunnell, 947 F.2d at 346-47. 14 At the first step, the ALJ found that plaintiff s medically determinable 15 impairments could reasonably be expected to cause the symptoms alleged. AR at 16 32. At the second step, because the ALJ did not find any evidence of malingering, 17 the ALJ was required to provide clear and convincing reasons for discounting 18 plaintiff s credibility. The ALJ discounted plaintiff s credibility here because: (1) 19 the objective medical evidence failed to support his claims; (2) he sought little 20 treatment; and (3) his daily activities were inconsistent with plaintiff s stated 21 limitations. Id. Some of the ALJ s reasons were clear and convincing reasons 22 supported by substantial evidence. 23 First, the ALJ correctly noted that the objective evidence does not support 24 plaintiff s allegations. See id.; see also Rollins, 261 F.3d at 856-57 (lack of 25 objective medicine supporting symptoms is one factor in evaluating credibility). 26 Plaintiff performed adequately on the mental status examinations and tests. See 27 AR at 285-87, 378-81. Plaintiff, among other things, was coherent, organized, and 28 talkative, and displayed adequate attention. See id. at 285-87, 378-79. These 19 1 findings were consistent with observations during his therapy session. See, e.g., 2 id. at 317, 322, 325. 3 Second, the ALJ discounted plaintiff s credibility on the basis that he sought 4 little treatment for his mental impairment. AR at 32. The records reflect that 5 plaintiff first sought mental health treatment in January 2010. See id. at 337-43. 6 He appears to have stopped attending therapy in the beginning of April 2010, but 7 continued his medication review sessions through at least June 2010. See id. at 8 368, 371-73. Persons with mental health impairments often do not seek treatment, 9 and thus the failure to seek treatment is not necessarily a clear and convincing 10 reason to discount their testimony. See Allen v. Comm r, No. 11-16628, 2012 WL 11 5857269, at *2 (9th Cir. Nov. 19, 2012) (The [f]ailure to seek treatment is not a 12 substantial basis on which to conclude that a claimant s mental impairment is not 13 severe. ); Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996) ( [I]t is common 14 knowledge that depression is one of the most underreported illnesses in the 15 country because those afflicted often do not recognize that their condition reflects 16 a potentially serious mental illness. ). Thus, although the ALJ was accurate in his 17 observation, plaintiff s limited treatment is not by itself a clear and convincing 18 reason. 19 Finally, the ALJ found that plaintiff s daily activities were inconsistent with 20 his testimony and written statements. AR at 32. The ALJ clarified that it was not 21 plaintiff s ability to perform some normal daily activities that caused him to find 22 plaintiff less credible, but rather the fact that the activities reflected that plaintiff 23 had greater capabilities than he testified to. Id. Inconsistency between a 24 claimant s alleged symptoms and her daily activities may be a clear and 25 convincing reason to find a claimant less credible. See Tommasetti, 533 F.3d at 26 1039; Bunnell, 947 F.2d at 346-47. Plaintiff testified that he had trouble handling 27 tools due to pain, could not focus on the routine of work, could not finish jobs, 28 was paranoid of all his workers, and was angry. AR at 65-69. But from plaintiff s 20 1 and his wife s function reports, it appears that plaintiff was able to spend 2 significant time on the computer reading, chatting, blogging, or e-mailing 3 which would be inconsistent with plaintiff s claim that he had trouble focusing. 4 See id. at 182, 190. Similarly inconsistent was plaintiff s wife s statement that 5 plaintiff was able to follow written instructions well enough to complete whatever 6 project he was working on. Id. at 191. Plaintiff and his wife also stated that 7 plaintiff gets along well with neighbors, friends, and authority figures, and 8 participates in community organizations and meetings, which occur once or twice 9 a month. Id. at 183, 191-92. These interactions are inconsistent with plaintiff s 10 testimony of paranoia of his workers. These inconsistencies suggest that plaintiff 11 had a better ability to concentrate and interact with others than he testified to and 12 were adequate to support the ALJ s finding. 13 Thus, the ALJ cited two clear and convincing reasons to discount plaintiff s 14 credibility. Further, even if these reasons were insufficient by themselves, such 15 error would be harmless. First, plaintiff made other inconsistent statements. See 16 Tommasetti, 533 F.3d at 1939 (the ALJ may consider prior inconsistent 17 statements). Plaintiff testified that he had auditory and visual hallucinations and 18 reported the same to Dr. Park and his associates. See, e.g., AR at 75, 321. But 19 plaintiff denied having recent auditory and visual hallucinations to Dr. Ritvo and 20 any auditory hallucinations to Dr. Brawer. See id. at 286, 378. Second, assuming 21 plaintiff s alleged limitations are as described by his counsel in the cross22 interrogatory to the VE, the VE responded that even given those limitations, 23 plaintiff would still be able to perform other work , including housekeeper, jewelry 24 preparer, and handwasher. Id. at 233. 25 Accordingly, the ALJ provided clear and convincing reasons supported by 26 substantial evidence for finding plaintiff less credible. And in any event, even if 27 plaintiff s limitations were as he alleged, pursuant to the VE s response, he would 28 still be able to perform work. 21 1 V. 2 CONCLUSION 3 IT IS THEREFORE ORDERED that Judgment shall be entered 4 AFFIRMING the decision of the Commissioner denying benefits, and dismissing 5 this action with prejudice. 6 7 DATED: July 28, 2014 8 9 SHERI PYM United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22

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