Ward E Brakeman v. Carolyn W Colvin, No. 2:2013cv03775 - Document 22 (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 WARD E. BRAKEMAN, 10 Plaintiff, 11 vs. 12 13 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 14 Defendant. 15 ) Case No. CV 13-3775-JPR ) ) ) MEMORANDUM OPINION AND ORDER ) AFFIRMING COMMISSIONER ) ) ) ) ) ) ) 16 17 I. 18 PROCEEDINGS Plaintiff seeks review of the Commissioner s final decision 19 denying his applications for disability insurance benefits 20 ( DIB ) and supplemental security income ( SSI ). The parties 21 consented to the jurisdiction of the undersigned U.S. Magistrate 22 Judge under 28 U.S.C. § 636(c). This matter is before the Court 23 on the parties Joint Stipulation, filed March 5, 2014, which the 24 Court has taken under submission without oral argument. For the 25 reasons stated below, the Commissioner s decision is affirmed and 26 this action is dismissed. 27 28 1 1 II. BACKGROUND 2 Plaintiff was born on November 30, 1961. (AR 48, 159, 161.) 3 He attended about two years of college but did not earn a degree. 4 (AR 49.) He previously worked as a master control operator and 5 assistant director for television networks. 6 (AR 50-54.) Plaintiff filed applications for DIB and SSI on September 2, 7 2009. (AR 86-89, 159-63.) He alleged that he had been unable to 8 work since March 20061 because of closed brain injury, arthritis, 9 and fibromyalgia. (AR 159, 161, 200.) After his applications 10 were denied, he requested a hearing before an Administrative Law 11 Judge. 12 (AR 106-07.) A hearing was held on June 22, 2011. (AR 42-85.) 13 Plaintiff, who was represented by counsel, testified, as did a 14 medical expert and a vocational expert. (Id.) In a written 15 decision issued August 1, 2011, the ALJ determined that Plaintiff 16 was not disabled. (AR 26-37.) On March 29, 2013, the Appeals 17 Council denied his request for review. (AR 1-6.) This action 18 followed. 19 III. STANDARD OF REVIEW 20 Under 42 U.S.C. § 405(g), a district court may review the 21 Commissioner s decision to deny benefits. The ALJ s findings and 22 decision should be upheld if they are free of legal error and 23 supported by substantial evidence based on the record as a whole. 24 Id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. 25 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence 26 27 28 1 Plaintiff listed an onset date of March 26, 2006, in his DIB application (AR 159) but March 20 in his SSI application (AR 161). 2 1 means such evidence as a reasonable person might accept as 2 adequate to support a conclusion. Richardson, 402 U.S. at 401; 3 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It 4 is more than a scintilla but less than a preponderance. 5 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 6 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). To determine whether 7 substantial evidence supports a finding, the reviewing court 8 must review the administrative record as a whole, weighing both 9 the evidence that supports and the evidence that detracts from 10 the Commissioner s conclusion. 11 720 (9th Cir. 1996). Reddick v. Chater, 157 F.3d 715, If the evidence can reasonably support 12 either affirming or reversing, the reviewing court may not 13 substitute its judgment for that of the Commissioner. Id. at 14 720-21. 15 IV. THE EVALUATION OF DISABILITY 16 People are disabled for purposes of receiving Social 17 Security benefits if they are unable to engage in any substantial 18 gainful activity owing to a physical or mental impairment that is 19 expected to result in death or which has lasted, or is expected 20 to last, for a continuous period of at least 12 months. 42 21 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 22 (9th Cir. 1992). 23 A. 24 The ALJ follows a five-step sequential evaluation process in The Five-Step Evaluation Process 25 assessing whether a claimant is disabled. 20 C.F.R. 26 §§ 404.1520(a)(4), 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 27 828 n.5 (9th Cir. 1995) (as amended Apr. 9, 1996). In the first 28 step, the Commissioner must determine whether the claimant is 3 1 currently engaged in substantial gainful activity; if so, the 2 claimant is not disabled and the claim must be denied. 3 §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not 4 engaged in substantial gainful activity, the second step requires 5 the Commissioner to determine whether the claimant has a severe 6 impairment or combination of impairments significantly limiting 7 his ability to do basic work activities; if not, a finding of not 8 disabled is made and the claim must be denied. 9 §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a 10 severe impairment or combination of impairments, the third step 11 requires the Commissioner to determine whether the impairment or 12 combination of impairments meets or equals an impairment in the 13 Listing of Impairments ( Listing ) set forth at 20 C.F.R., Part 14 404, Subpart P, Appendix 1; if so, disability is conclusively 15 presumed and benefits are awarded. §§ 404.1520(a)(4)(iii), 16 416.920(a)(4)(iii). 17 If the claimant s impairment or combination of impairments 18 does not meet or equal an impairment in the Listing, the fourth 19 step requires the Commissioner to determine whether the claimant 20 has sufficient residual functional capacity ( RFC )2 to perform 21 his past work; if so, the claimant is not disabled and the claim 22 must be denied. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). The 23 claimant has the burden of proving he is unable to perform past 24 relevant work. Drouin, 966 F.2d at 1257. If the claimant meets 25 that burden, a prima facie case of disability is established. 26 27 28 2 RFC is what a claimant can do despite existing exertional and nonexertional limitations. §§ 404.1545, 416.945; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 4 1 Id. If that happens or if the claimant has no past relevant 2 work, the Commissioner then bears the burden of establishing that 3 the claimant is not disabled because he can perform other 4 substantial gainful work available in the national economy. 5 §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). That determination 6 comprises the fifth and final step in the sequential analysis. 7 §§ 404.1520, 416.920; Lester, 81 F.3d at 828 n.5; Drouin, 966 8 F.2d at 1257. 9 10 B. The ALJ s Application of the Five-Step Process At step one, the ALJ found that Plaintiff had not engaged in 11 any substantial gainful activity since March 26, 2006. (AR 28.) 12 At step two, the ALJ concluded that Plaintiff had severe 13 impairments of depressive disorder and status post closed head 14 injury. (Id.) The ALJ did not find any supportive evidence 15 for a diagnosis of lumbar impairment[,] fibromyalgia, or severe 16 musculoskeletal impairment and thus did not find that those 17 conditions were severe.3 (AR 30.) At step three, the ALJ 18 determined that Plaintiff s impairments did not meet or equal a 19 Listing. (Id.) At step four, the ALJ determined that Plaintiff 20 had the RFC to perform a reduced level of light work ; 21 specifically, he could 22 sit, stand or walk up to six hours each in an 8-hour 23 workday. 24 and is limited to doing semiskilled work tasks at most, 25 consistent with SVP 3 and 4. 26 contact or interact with coworkers, supervisors or the The claimant can do simple routine work tasks He can only occasionally 27 3 28 2.) Plaintiff does not contest these findings. 5 (See J. Stip. at 1 general public. 2 in a fast-paced environment and is limited to doing low- 3 stress 4 judgments. 5 (Id.) jobs, He is further limited to doing no work defined as only occasionally making At step four, the ALJ found that Plaintiff was unable to 6 perform his past relevant work. (AR 35.) Based on the VE s 7 testimony, however, the ALJ determined that Plaintiff could 8 perform jobs existing in significant numbers in the national and 9 regional economies. 10 was not disabled. (AR 36.) Thus, the ALJ found that Plaintiff (AR 37.) 11 V. DISCUSSION 12 Plaintiff argues that the ALJ erred in (1) according only 13 limited weight to treating physician Vernon Lackman s opinion, 14 (2) discounting Plaintiff s credibility, (3) failing to properly 15 assess various third-party statements, and (4) failing to fully 16 and fairly develop the record. (J. Stip. at 2.) For the reasons 17 discussed below, remand is not warranted on any of these bases. 18 A. 19 Plaintiff contends that the ALJ did not provide legitimate The ALJ Did Not Err in Assessing Dr. Lackman s Opinion 20 reasons to reject Dr. Lackman s assessment of [Plaintiff s] 21 mental RFC. 22 23 1. (J. Stip. at 4.) Background On September 30, 2005, while working as a contractor at an 24 amusement park, Plaintiff fell from a ladder and hit his head. 25 (AR 219.) He reported losing consciousness twice at the scene 26 but was noted to be awake, alert, and oriented when paramedics 27 arrived. (AR 219, 223.) At the emergency room, a doctor noted 28 that Plaintiff was alert and coherent but complained of head 6 1 and neck pain and had a two- to three-centimeter scalp 2 laceration. (AR 219, 221.) A CT scan of Plaintiff s head 3 revealed evidence of a soft tissue contusion of the scalp, but 4 no fracture or intracranial abnormality, and a CT scan of his 5 cervical spine showed some mild degenerative joint disease but 6 no other abnormalities. (AR 221.) Plaintiff was diagnosed with 7 acute head injury, acute cervical strain, probable concussion, 8 and a nonsuturable scalp laceration. 9 the hospital that same day. 10 (Id.) He was released from (AR 226, 228.) On May 18, 2006, Maura Mitrushina, Ph.D., who was board 11 certified in clinical neuropsychology, and Ellen Shirman, Psy.D., 12 who specialized in clinical neuropsychology, conducted a 13 comprehensive neuropsychological evaluation of Plaintiff.4 14 242-54, 260-72.) (AR After conducting a clinical interview and 15 administering 18 psychological tests, they concluded that 16 Plaintiff was 17 a 18 superior range of general intellectual ability. His fund 19 of general information and vocabulary, word generation, 20 access 21 abilities represent prominent strengths. 22 information processing efficiency is compromised somewhat 23 by weakness in concentration/working memory. 24 assessment of [Plaintiff s] memory functions indicated 25 that his basic memory mechanisms are intact. 26 his bright individual to ability lexical to who is network, remember and functioning and within abstract adequately the reasoning However, his Formal However, respond to 27 4 This evaluation apparently took place at the request of (See AR 274.) 28 Plaintiff s attorney. 7 1 environmental stimuli is compromised by concentrational 2 weakness. 3 patients as indication of poor memory. 4 (AR 270.) This problem is frequently misinterpreted by Drs. Mitrushina and Shirman further noted that 5 [s]cores on the tests measuring severity of emotional 6 disturbance placed [Plaintiff] within the moderate range of 7 depression. (Id.) They also noted, however, that Plaintiff s 8 scores on a validity scale were indicative of individuals who 9 might have exaggerated their problems and symptoms as in a plea 10 for help. (AR 268.) The doctors expect[ed] continuing 11 improvement in [Plaintiff s] cognitive functioning within the 12 next several months but could not predict the rate or extent 13 of his cognitive recovery. 14 (AR 271.) On February 14, 2007, Dr. M.G. Salib, who specialized in 15 psychiatry,5 reviewed Plaintiff s medical records and completed a 16 psychiatric-review-technique form and mental-RFC assessment at 17 the Social Security Administration s request. (AR 309-22.) In 18 the PRT form, Dr. Salib opined that Plaintiff suffered from 19 [o]ccasional episodes of confusion that resulted in mild 20 difficulties in maintaining concentration, persistence, or pace. 21 (AR 309-10, 317.) In the mental-RFC form, Dr. Salib opined that 22 Plaintiff suffered from moderate limitations in his ability to 23 understand, remember, and carry out detailed instructions but was 24 25 26 27 28 5 Dr. Salib s electronic signature includes a medical specialty code of 37, indicating psychiatry. (AR 309); see Program Operations Manual System (POMS) DI 26510.089, U.S. Soc. Sec. Admin. (Oct. 25, 2011), http://policy.ssa.gov/poms.nsf/lnx/0426510089; POMS DI 26510.090, U.S. Soc. Sec. Admin. (Aug. 29, 2012), http://policy.ssa.gov/poms.nsf/lnx/0426510090. 8 1 not significantly limited in any other area. 2 (AR 320-21.) On July 3, 2007, Dr. Shirman reevaluated Plaintiff. 3 255-59.) (AR After performing a clinical interview and administering 4 eight psychological tests, she concluded that Plaintiff 5 continues to experience attention/working memory difficulties, 6 which interfere with his ability to register/encode new 7 information into his long-term memory, and that his current 8 performance on tests of attention/concentration and verbal 9 learning remains unchanged from the original evaluation. 10 259.) (AR She noted that Plaintiff continues to experience 11 significant levels of depression and anxiety. (Id.) Dr. 12 Shirman also found that Plaintiff s results on two validity 13 scales indicated that [he] exaggerated his symptoms and 14 problems, which she believed could be a cry for help, and that 15 interpretations must be modified to correct for the over 16 reporting of symptoms and problems. 17 (AR 258.) On February 9, 2010, L. Roman, Ph.D., performed a 18 consultative psychological examination of Plaintiff at the Social 19 Security Administration s request. (AR 350-53.) Dr. Roman noted 20 that Plaintiff s mood was depressed and his affect was somewhat 21 anxious and not appropriate to content. (AR 351.) Plaintiff 22 was oriented to person, place, time, and situation and his 23 attention and concentration were good, his thought process was 24 logical and organized, his thought content and perception were 25 normal, and his insight and judgment were adequate. (Id.) After 26 administering four psychological tests, Dr. Roman diagnosed 27 depressive disorder. (AR 352.) He believed that Plaintiff had 28 mild limitation in social functioning and no limitation in 9 1 understanding and memory, sustained concentration and 2 persistence, or adaptation. 3 (AR 353.) On February 26, 2010, psychologist Preston Davis6 reviewed 4 Plaintiff s medical records and completed a PRT form. 5 65.) (AR 354- Dr. Davis found that Plaintiff had an affective disorder 6 that was not severe and resulted in no limitations. 7 357, 362, 365.) (AR 354, On March 17, 2010, he reviewed additional 8 records and reaffirmed his assessment. (AR 369.) On July 29, 9 2010, Dr. Balson7 reviewed Plaintiff s medical records and 10 affirmed Dr. Davis s assessment. 11 (AR 371-72.) At the June 22, 2011 hearing, testifying expert Glenn 12 Griffin, Ph.D., a professor of clinical psychology, noted that 13 Plaintiff had complained of cognitive limitations since suffering 14 a head injury in September 2005. (AR 56.) He opined, however, 15 that Plaintiff s two neuropsychological assessments by Drs. 16 Mitrushina and Shirman and Dr. Roman failed to identify any 17 consequential neurological or cognitive impairment : 18 In both assessments, the claimant s intellectual and 19 memory functioning are either in the high average or 20 superior range. For example, his full-scale IQ in the 21 22 23 6 a medical 24 code Dr. Davis s electronic signature includes 354); seespecialty of 38, indicating psychology. (AR Program Operations Manual System (POMS) DI 26510.089, U.S. Soc. Sec. Admin. 25 26 27 (Oct. 25, 2011), http://policy.ssa.gov/poms.nsf/lnx/0426510089; POMS DI 26510.090, U.S. Soc. Sec. Admin. (Aug. 29, 2012), http://policy.ssa.gov/poms.nsf/lnx/0426510090. 7 The record does not reflect Dr. Balson s first name or area 28 of specialization. 10 1 consultative examination is 122 and 1248 in the earlier 2 examination. 3 4 percentile. . . . 5 establish 6 neuropsychological impairment. 7 (AR 57.) would These are quite consistent and quite high place the him at approximately the 90th [T]hese records by my review did not presence of any significant Dr. Griffin also noted that Plaintiff s scores on 8 psychological testing of working memory were lower scores that 9 were still in the average range, which was consistent with no 10 limitation. (AR 69-70.) He noted that since 2005, Plaintiff 11 had been suffering from a major depressive disorder, which is 12 chronic, mild to moderate in severity. (AR 58.) Dr. Griffin 13 testified that Plaintiff had no restriction in performing 14 activities of daily living or maintaining concentration, 15 persistence, or pace, but he would have mild difficulty in 16 social functioning. 17 (AR 59.) On July 6, 2011, Dr. Lackman completed a mental-RFC 18 questionnaire form, noting that he had treated Plaintiff every 19 three months since October 2005. (AR 384-88.) Dr. Lackman 20 listed his clinical findings as poor memory, impaired 21 concentration and judgment, and depression. (AR 384.) 22 believed that Plaintiff s deficits were permanent. He (Id.) Dr. 23 24 25 26 8 Drs. Mitrushina and Shirman s report actually reflects a 27 full-scale IQ of 121, which they categorized as within the Superior range of general intellectual ability. (AR 247, 265.) 28 11 1 Lackman noted that Plaintiff s symptoms included adhedonia,9 2 decreased energy, thoughts of suicide, feelings of guilt or 3 worthlessness, impaired impulse control, anxiety, mood 4 disturbance, difficulty thinking or concentrating, persistent 5 disturbances of mood or affect, emotional withdrawal or 6 isolation, psychological or behavioral abnormalities and loss of 7 previously acquired functional abilities, emotional lability, 8 memory impairment, and sleep disturbance. 9 (AR 385.) Dr. Lackman believed Plaintiff was unable to meet 10 competitive standards in remembering worklike procedures; 11 maintaining concentration for two hours; working in coordination 12 with or proximity to others; completing a normal workday or 13 workweek; performing at a consistent pace; responding 14 appropriately to changes in a routine work setting; dealing with 15 normal work stress; understanding, remembering, and carrying out 16 detailed instructions; setting realistic goals independently; and 17 dealing with the stress of semiskilled and skilled work. 18 386-87.) (AR He was seriously limited [in], but not precluded 19 [from], understanding, remembering, and carrying out very short 20 and simple instructions; maintaining regular attendance; 21 sustaining an ordinary routine; making simple work-related 22 decisions; asking a simple question or requesting assistance; 23 accepting instructions and responding appropriately to criticism 24 from supervisors; getting along with coworkers; being aware of 25 26 9 Anhedonia is a psychological condition characterized by 27 inability to experience pleasure in normally pleasurable acts. Anhedonia, Merriam-Webster, www.merriam-webster.com (last accessed 28 July 22, 2014). 12 1 normal hazards; interacting with the public; and using public 2 transportation. (Id.) Dr. Lackman believed that Plaintiff would 3 miss more than four days a month because of his impairments or 4 treatment. (AR 388.) The earliest date to which his description 5 of Plaintiff s limitations applied was October 2005. 6 7 2. (Id.) Applicable law Three types of physicians may offer opinions in Social 8 Security cases: (1) those who directly treated the plaintiff, (2) 9 those who examined but did not treat the plaintiff, and (3) those 10 who did not treat or examine the plaintiff. 11 830. Lester, 81 F.3d at A treating physician s opinion is generally entitled to 12 more weight than that of an examining physician, and an examining 13 physician s opinion is generally entitled to more weight than 14 that of a nonexamining physician. 15 Id. This is true because treating physicians are employed to 16 cure and have a greater opportunity to know and observe the 17 claimant. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). 18 If a treating physician s opinion is well supported by medically 19 acceptable clinical and laboratory diagnostic techniques and is 20 not inconsistent with the other substantial evidence in the 21 record, it should be given controlling weight. 22 §§ 404.1527(c)(2), 416.927(c)(2). If a treating physician s 23 opinion is not given controlling weight, its weight is determined 24 by length of the treatment relationship, frequency of 25 examination, nature and extent of the treatment relationship, 26 amount of evidence supporting the opinion, consistency with the 27 record as a whole, the doctor s area of specialization, and other 28 factors. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6). 13 1 When a treating or examining doctor s opinion is not 2 contradicted by some evidence in the record, it may be rejected 3 only for clear and convincing reasons. See Carmickle v. 4 Comm r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) 5 (quoting Lester, 81 F.3d at 830-31). When a treating or 6 examining physician s opinion is contradicted, the ALJ must 7 provide only specific and legitimate reasons for discounting 8 it. Id. The weight given an examining physician s opinion, 9 moreover, depends on whether it is consistent with the record and 10 accompanied by adequate explanation, among other things. 11 §§ 404.1527(c)(3)-(6), 416.927(c)(3)-(6). 12 13 3. Analysis The ALJ found that Plaintiff established that he has memory 14 and concentration problems and tends to avoid socializing outside 15 the family but had not established an inability to work in an 16 environment where he could work with things and perform simple 17 routine tasks. (AR 33.) As a result, the ALJ formulated an RFC 18 for a range of light work limited to simple routine work tasks, 19 semiskilled work tasks at most, only occasional[] contact or 20 interact[ion] with coworkers, supervisors or the general public, 21 no work in a fast-paced environment, and only low stress jobs, 22 defined as only occasionally making judgments. (AR 30.) The 23 ALJ noted that the RFC assessment was supported by Dr. Shirman s 24 psychological tests and by the objective portion of Dr. 25 Roman s assessment. (AR 33.) The ALJ rejected Dr. Lackman s10 26 opinions regarding Plaintiff s remaining mental residual 27 10 28 33.) The ALJ misspelled Dr. Lackman s name as Lachman. 14 (See AR 1 functional capacity. 11 (Id.) Contrary to Plaintiff s 2 assertion, the ALJ provided specific and legitimate reasons for 3 rejecting Dr. Lackman s opinion. 4 The ALJ permissibly discounted Dr. Lackman s mental-RFC 5 assessment because it was inconsistent with the psychological 6 examinations and his own clinical records. (AR 33); see 7 §§ 404.1527(c)(4) (explaining that more weight should be afforded 8 to medical opinions that are consistent with the record as a 9 whole), 416.927(c)(4) (same); Valentine v. Comm r Soc. Sec. 10 Admin., 574 F.3d 685, 692-93 (9th Cir. 2009) (contradiction 11 between treating physician s opinion and his treatment notes 12 constitutes specific and legitimate reason for rejecting 13 opinion); Houghton v. Comm r Soc. Sec. Admin., 493 F. App x 843, 14 845 (9th Cir. 2012) (holding that ALJ s finding that doctors 15 opinions were internally inconsistent, unsupported by their own 16 treatment records or clinical findings, [and] inconsistent with 17 the record as a whole constituted specific and legitimate bases 18 19 20 21 22 23 24 25 26 27 28 11 Dr. Lackman also completed a Fibromyalgia Residual Functional Capacity Questionnaire, opining that Plaintiff, for example, could sit or stand only 15 minutes at a time and a total of less than two hours in an eight-hour workday, needed to take 15to 30-minute breaks hourly or more, suffered from persistent pain rated an 8 on a scale of 10, and would miss more than four days of work a month as a result of his impairments or treatment. (AR 390-92.) The ALJ rejected Dr. Lackman s assessment as unsupported by his treatment notes and inconsistent with the examining physician s opinion; the ALJ also concluded that Plaintiff s alleged fibromyalgia, lumbar impairment, and muscoskeletal impairment were not severe. (AR 30, 34.) Plaintiff has not challenged those findings, instead arguing only that the ALJ s rejection of Dr. Lackman s assessment of Plaintiff s mental RFC was in error. (See J. Stip. at 4 (arguing that ALJ did not provide legitimate reasons to reject Dr. Lackman s assessment of [Plaintiff s] mental RFC ).) 15 1 for discounting them). 2 Indeed, as the ALJ found (AR 29, 33-34), Drs. Mitrushina s 3 and Shirman s assessments reflected that Plaintiff had a 4 superior IQ of 121, sustained attention throughout the lengthy 5 evaluation sessions,12 and had good executive function, problem6 solving ability, and reasoning (AR 247-49, 256, 265-67). They 7 found that Plaintiff s basic memory mechanisms were intact, but 8 he had difficulty with attention and working memory, which 9 interfered with his ability to register/encode new information 10 into his long-term memory. (AR 259; see also AR 252, 270.) The 11 ALJ credited those findings and found that they were consistent 12 with an RFC for a limited range of simple, routine work. 13 34.) (AR 29, Testing by Dr. Roman, moreover, showed that Plaintiff had 14 an IQ of 122 (AR 352) which Dr. Griffin noted was in the 90th 15 percentile (AR 57) and the ALJ classified as superior (AR 34) 16 and that his weakest scores were in visual working memory, 17 immediate memory, and delayed memory (AR 352). Although Dr. 18 Roman found that Plaintiff had only mild limitation in social 19 interaction (AR 353), the ALJ concluded that the objective test 20 results do indicate some cognitive problems and support a 21 limitation from highly detailed/complex job tasks, and limited 22 social interactions. 13 (AR 34.) The ALJ also noted that the 23 assessment of Dr. Ursula Taylor, who performed an internal24 medicine evaluation of Plaintiff, provided an additional reason 25 26 27 12 Drs. Mitrushina and Shirman s initial evaluation apparently involved six hours of psychological testing. (See AR 274.) 13 The ALJ mistakenly noted that Dr. Roman found no functional (AR 34.) 28 limitations. 16 1 for rejecting Dr. Lackman s assessment (AR 30, 33); indeed, she 2 noted that Plaintiff was oriented, had an adequate memory, 3 could describe the details of his medical history, was in no 4 distress, and established a good rapport with the examiner (AR 5 346).14 Indeed, none of the examining physicians objective 6 findings support Dr. Lackman s opinion that Plaintiff suffered 7 from, for example, serious limitations in understanding or 8 carrying out even short and simple instructions, making simple 9 work-related decisions, asking simple questions or requesting 10 assistance, or being aware of normal hazards. 11 (AR 386.) As the ALJ noted, Dr. Lackman s opinion was also unsupported 12 by his own treatment notes, which reflect very few objective 13 findings regarding Plaintiff s mental functioning. (AR 33.) In 14 October 2005, when, Dr. Lackman stated, his findings of 15 limitations first applied (AR 388), he noted that Plaintiff may 16 17 18 19 14 Plaintiff takes issue with the ALJ s reliance on Dr. Taylor s 20 observations because she was not a mental health physician, but 21 nothing mandates that a physician have a certain specialization in order for the ALJ to consider her observations. Indeed, 22 Plaintiff s treating physician, Dr. Lackman, apparently did not specialize in psychiatry, either. (See AR 62 (claimant s 23 attorney s statement at hearing that Dr. Lackman was not a psychiatrist ).) Plaintiff also objects to Dr. Taylor s indication 24 that she is board eligible (J. Stip. at 3), but the American 25 Board of Medical Specialties explicitly recognizes physicians 26 27 28 legitimate need for a way to signal their preparations for Board Certification through the term Board Eligible. ABMS Maintenance of Certification (MOC) and Continuous Maintenance of Certification (C-MOC) Overview 8 (last updated Sept. 2013), available at http://www.namss.org/Portals/0/StateAssociations/New%20Hampshire/ ABMS%20MOC_CMOC_BoardEligibility%20Overview_9_2013.pdf. 17 1 have intermittent very mild dysarthria15 and at times his 2 cognition seems somewhat slow, but he look[ed] overall well 3 (AR 279). In November 2005, Plaintiff reported that he was 4 better but had not returned to his previous level of 5 functioning, stating that he was having problems with 6 forgetfulness, balance, and headaches. (AR 278.) Upon 7 examination, however, Dr. Lackman noted that Plaintiff overall 8 looks well, [t]here is no apparent dysarthria and cognition 9 seems grossly intact, [c]erebellar function is normal on 10 palpation, [b]alance is normal, and [t]andem walking is 11 normal. (Id.) Dr. Lackman referred Plaintiff to neurology for 12 an evaluation and noted that [i]n the absence of demonstrable 13 neurologic deficits, he was not recommending another scan of 14 [Plaintiff s] brain and would defer the recommendation to 15 Neurology. 16 (Id.) In December 2005, Dr. Mark C. Schultz, a board-certified 17 neurologist, examined Plaintiff, diagnosed a concussion, and 18 recommended an MRI.16 (AR 285-86.) In January 2006, Dr. Lackman 19 noted that the MRI showed no structural lesion and that Dr. 20 Schultz had advised Plaintiff that he would continue to improve 21 and should return to the baseline. (AR 277.) Indeed, although 22 Plaintiff reported that he tired easily and his memory and 23 15 Dysarthria is 24 of problems with thewhen you have difficulty saying words because muscles that help you talk. Dysarthria, MedlinePlus, http://www.nlm.nih.gov/medlineplus/ency/article/007470 25 26 27 28 .htm (last updated July 9, 2014). In a person with dysarthria, a nerve, brain, or muscle disorder makes it difficult to use or control the muscles of the mouth, tongue, larynx, or vocal cords, which make speech. Id. 16 Dr. Schultz s note is largely illegible. 18 1 thinking were not clear toward the end of the day, his cognition 2 had significantly improved. (Id.) Dr. Lackman noted that 3 Plaintiff s [a]ffect, behavior and cognition seem grossly 4 intact and diagnosed [t]raumatic brain injury, slowly 5 improving. 6 (Id.) Indeed, although subsequent treatment notes reflect 7 Plaintiff s continued reports of significant cognitive deficits 8 (see generally AR 273-76, 323-28, 373-83), Dr. Lackman often 9 failed to record any objective psychological abnormalities at all 10 (see, e.g., AR 276 ( overall looks well, [c]erebellar function 11 is normal, speech seems fluent ), 275 ( overall looks well, 12 in no distress ), 274 (looks well, [c]erebellar function is 13 normal ), 273 ( [h]e looks quite comfortable ), 381 ( [w]ell 14 developed well nourished male in no distress, [a]lert and 15 oriented x 3, [a]ffect appropriate ), 377-78 ( [w]ell developed 16 well nourished male in no distress, [a]lert and oriented x 3, 17 [a]ffect appropriate, [n]o dizziness, no motor weakness, no 18 sensory changes ), 374 (same)). And when Dr. Lackman did note 19 abnormalities, they were minimal and failed to support his later 20 assessment of extreme cognitive limitations. (See, e.g., AR 328 21 ( affect and behavior are normal, speech is halting and he 22 seems to frequently search for words ), 324 ( [l]ooks well with 23 normal affect and behavior, completely oriented, able to do 24 serial subtraction albeit slowly, remembers one of 3 words at 5 25 minutes, able to rep[ro]duce a clock face and spell world 26 backwards ), 323 ( [l]ooks physically well, flat affect, some 27 psychom[o]tor retardation ), AR 379-80 ( [w]ell developed well 28 nourished male in no distress, [a]lert and oriented x 3, 19 1 [a]ffect appropriate, [s]peech halting, processing speed very 2 slow ), 375 ( [n]o dizziness, no motor weakness, no sensory 3 changes, [l]aughs somewhat inappropriately ).)17 Such findings 4 fail to support Dr. Lackman s determination that significant 5 limitations existed.18 6 In rejecting Dr. Lackman s opinion, the ALJ also correctly 7 noted that he never performed a thorough mental status 8 examination. (AR 33); §§ 404.1527(c)(3) ( The more a medical 9 source presents relevant evidence to support an opinion, 10 particularly medical signs and laboratory findings, the more 11 weight we will give that opinion. ), 416.957(c)(3) (same). 12 Plaintiff contends that Dr. Lackman did perform a mental status 13 evaluation, contrary to the ALJ s assertion, citing a November 14 2008 treatment note. (J. Stip. at 3 (citing AR 324).) But in 15 that note, Dr. Lackman merely observed that Plaintiff was 16 completely oriented, able to do serial subtraction albeit 17 slowly, remembers one of 3 words at 5 minutes, and could 18 rep[ro]duce a clock face and spell world backwards. 19 324.) (AR Such brief findings are not a thorough mental status 20 examination particularly compared with the clinical interviews 21 and battery of tests administered by the examining doctors nor 22 23 24 25 17 Although some of these notes predate Plaintiff s March 2006 onset date, they postdate October 2005, when, Dr. Lackman said, Plaintiff s allegedly debilitating limitations first applied. As such, they are relevant to determining whether his opinion was consistent with his own clinical records. 26 18 Plaintiff s own reports of his symptoms, as reflected in Dr. 27 Lackman s treatment notes, are suspect given Drs. Mitrushina and Shirman s finding that he tended to exaggerate his symptoms as a 28 plea for help. (See AR 258, 268.) 20 1 do they support the extreme limitations reflected in Dr. 2 Lackman s RFC assessment. 3 The ALJ also permissibly discounted Dr. Lackman s opinion 4 because he never recommended any specific specialized treatment 5 for the continued complaints of decreased memory and 6 concentration. (AR 33); see Rollins v. Massanari, 261 F.3d 853, 7 856 (9th Cir. 2001) (holding that ALJ properly rejected opinion 8 of treating physician who prescribed conservative treatment yet 9 opined that claimant was disabled). Indeed, other than 10 prescribing medication and referring Plaintiff to a neurologist 11 who merely diagnosed a concussion, ordered an MRI that revealed 12 no abnormalities, and informed Plaintiff that he would continue 13 to improve Dr. Lackman provided very little treatment for 14 Plaintiff s allegedly debilitating head injury. And although 15 Plaintiff takes issue with the ALJ s finding, stating that the 16 ALJ does not state what treatment he expected [Plaintiff s] 17 doctor to offer and that there is no cure for brain damage (J. 18 Stip. at 2), clearly some specialized treatment was available, as 19 Drs. Mitrushina and Shirman recommended that if Plaintiff failed 20 to return to his previous level of functioning, he would benefit 21 from enrollment in a cognitive remediation program, several of 22 which were available in the Los Angeles area and offer[ed an] 23 interdisciplinary team approach to treatment (AR 253-54). 24 Finally, the ALJ was entitled to rely on the opinions of 25 examining psychologists Mitrushina, Shirman, and Roman instead of 26 Dr. Lackman s because they were supported by independent clinical 27 findings and thus constituted substantial evidence. See 28 Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001); 21 1 Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). In May 2 2006, Mitrushina and Shirman performed a comprehensive 3 neuropsychoevaluation of Plaintiff, including a clinical 4 interview and 18 neuropsychological tests. 5 72.) (See AR 242-54, 260- In July 2007, Dr. Shirman reevaluated Plaintiff, this time 6 performing a clinical interview and administering eight 7 neuropsychological tests; her findings were consistent with those 8 reflected in the previous report. (AR 255-59.) Moreover, in 9 February 2010, Dr. Roman reviewed Dr. Shirman s July 2007 10 assessment, performed a mental-status examination, and 11 administered four psychological tests.19 (AR 350-53); 12 §§ 404.1527(c)(3) (in weighing medical opinions, ALJ will 13 evaluate the degree to which these opinions consider all of the 14 pertinent evidence in [claimant s] claim, including opinions of 15 treating and other examining sources ), 416.927(c)(3) (same). 16 Further, all three examiners specialized in psychology, whereas 17 Dr. Lackman, although a medical doctor, apparently did not 18 specialize in mental-health treatment. (See AR 62 (claimant s 19 attorney s statement at hearing that Dr. Lackman was not a 20 psychiatrist ); 20 C.F.R. §§ 404.1527(c)(5) ( We generally give 21 more weight to the opinion of a specialist about medical issues 22 23 24 25 26 27 28 19 At the hearing, Plaintiff s counsel said that Plaintiff had spent only 15 minutes with Dr. Roman; counsel indicated that his impression was that the four psychological tests could not be completed in 15 minutes, but he did not specifically assert that the tests were not conducted. (See AR 67.) In the Joint Stipulation, moreover, Plaintiff does not dispute that he took the tests. (See J. Stip. at 24 (noting that plaintiff reaffirmed that he was issued the Trails A and B tests, the Bender Gestalt, the WAIS, and the Wechsler Memory Scale within that [15-minute] time frame ).) 22 1 related to his or her area of specialty than to the opinion of a 2 source who is not a specialist. ), 416.927(c)(5) (same); accord 3 Smolen, 80 F.3d at 1285. Thus, any conflict in the properly 4 supported medical-opinion evidence was solely the province of 5 the ALJ to resolve. Andrews, 53 F.3d at 1041. 6 Remand is not warranted on this basis. 7 B. 8 9 The ALJ Did Not Err in Assessing Plaintiff s Credibility Plaintiff contends that the ALJ failed to properly evaluate 10 his credibility. (J. Stip. at 12-16, 20-21.) As discussed 11 below, however, the ALJ was likely entitled to reject Plaintiff s 12 testimony because the record contained evidence of malingering; 13 in any event, he provided clear and convincing reasons for 14 discounting Plaintiff s testimony to the extent it was 15 inconsistent with his RFC for a limited range of light work. 16 17 1. Background Plaintiff reported to examining psychologist Roman that he 18 was unable to work because he [c]an t concentrate for long 19 periods, short term memory, difficulty making decisions, 20 sometimes unable to recognize when decisions need to be made. 21 (AR 350.) Plaintiff also reported experiencing feelings of 22 hopelessness, worthlessness, fatigue, and tiring easily as well 23 as suicidal ideation. (Id.) At the hearing before the ALJ, 24 Plaintiff testified that he had a driver s license and drove 25 every day, though he would generally stick to a very local area 26 because otherwise he had trouble finding where [he was] going 27 and getting back. (AR 48-49.) Plaintiff testified that he did 28 not regularly visit friends and relatives or participate in 23 1 clubs, activities, or hobbies. (AR 49.) He said he suffered 2 from pain throughout [his] body most of the time (AR 74); he 3 could stand in one place without moving around for maybe 10 4 minutes, sit for 10 or 15 minutes before needing to move around, 5 walk for 10 or 15 minutes before having to rest, and sit for a 6 total of two hours and stand and walk for a total of two hours in 7 an eight-hour day (AR 75-76). Plaintiff could lift 20 pounds but 8 could repetitively lift only a couple pounds. (AR 76-77.) He 9 testified that he didn t have a lot of strength in his hands and 10 had trouble typing. 11 12 2. (AR 77.) Applicable law An ALJ s assessment of pain severity and claimant 13 credibility is entitled to great weight. See Weetman v. 14 Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. Heckler, 779 15 F.2d 528, 531 (9th Cir. 1986). [T]he ALJ is not required to 16 believe every allegation of disabling pain, or else disability 17 benefits would be available for the asking, a result plainly 18 contrary to 42 U.S.C. § 423(d)(5)(A). Molina v. Astrue, 674 19 F.3d 1104, 1112 (9th Cir. 2012) (internal quotation marks 20 omitted). 21 In evaluating a claimant s subjective symptom testimony, the 22 ALJ engages in a two-step analysis. 23 at 1035-36. See Lingenfelter, 504 F.3d First, the ALJ must determine whether the claimant 24 has presented objective medical evidence of an underlying 25 impairment [that] could reasonably be expected to produce the 26 pain or other symptoms alleged. 27 marks omitted). Id. at 1036 (internal quotation If such objective medical evidence exists, the 28 ALJ may not reject a claimant s testimony simply because there 24 1 is no showing that the impairment can reasonably produce the 2 degree of symptom alleged. 3 original). Smolen, 80 F.3d at 1282 (emphasis in When the ALJ finds a claimant s subjective complaints 4 not credible, the ALJ must make specific findings that support 5 the conclusion. See Berry v. Astrue, 622 F.3d 1228, 1234 (9th 6 Cir. 2010). 7 Absent affirmative evidence of malingering, those findings 8 must provide clear and convincing reasons for rejecting the 9 claimant s testimony. Lester, 81 F.3d at 834. If the ALJ s 10 credibility finding is supported by substantial evidence in the 11 record, the reviewing court may not engage in second-guessing. 12 Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). 13 14 3. Analysis The ALJ found that Plaintiff s statements concerning the 15 intensity, persistence and limiting effects of [his] symptoms are 16 not credible to the extent they are inconsistent with his RFC. 17 (AR 31.) More specifically, the ALJ found Plaintiff to be 18 partially credible with regards to his mental impairments, 19 which the ALJ noted were the major area of impairment. (Id.) 20 Indeed, the ALJ largely accommodated Plaintiff s alleged 21 cognitive and psychological deficits by limiting him to light 22 work that involved only simple routine work tasks, semiskilled 23 work at most, only occasional[] contact or interact[ion] with 24 coworkers, supervisors or the general public, no work in a 25 fast-paced environment, and low stress jobs, defined as only 26 occasionally making judgments. 27 (AR 30.) Given Drs. Mitrushina and Shirman s finding that Plaintiff 28 exaggerated his symptoms (AR 258, 268), the ALJ was likely 25 1 relieved of his obligation to provide clear and convincing 2 reasons for rejecting Plaintiff s testimony. See Bagoyan 3 Sulakhyan v. Astrue, 456 F. App x 679, 682 (9th Cir. 2011) ( When 4 there is affirmative evidence of malingering . . . the ALJ is 5 relieved of the burden of providing specific, clear, and 6 convincing reasons to discount claimant s testimony. ); Schow v. 7 Astrue, 272 F. App x 647, 651 (9th Cir. 2008) ( the weight of our 8 cases hold that the mere existence of affirmative evidence 9 suggesting malingering vitiates the clear and convincing 10 standard of review ); Flores v. Comm r of Soc. Sec., 237 F. App x 11 251, 252-53 (9th Cir. 2007) ( an ALJ may reject a claimant s 12 subjective pain testimony if the record contains affirmative 13 evidence of malingering ). In any event, as discussed below, the 14 ALJ s findings amply met the clear-and-convincing standard for 15 rejecting Plaintiff s testimony to the extent it conflicted with 16 the limited RFC. 17 First, the ALJ reasonably found that Plaintiff s daily 18 activities were inconsistent with [his] allegations of chronic 19 pain and decreased cognitive functioning. (AR 32.) Indeed, 20 Plaintiff reported to examining psychologist Roman that he lived 21 in an apartment with his parents, was able to perform most 22 activities of daily living but did not cook,20 took walks 23 outside, got along good with relatives and fair with others, 24 and spen[t] a typical day by reading and using a computer. 25 351.) (AR Plaintiff also testified that he drove every day in the 26 local area (AR 48-49) and had driven himself from his home in the 27 20 In his SSI application, he stated, I do not need help in (AR 162.) 28 personal care, hygiene or upkeep of a home. 26 1 Santa Clarita Valley to the hearing in west Los Angeles (AR 44, 2 48-49). The ALJ was entitled to rely on those daily activities 3 to discount Plaintiff s credibility because they were 4 inconsistent with his claims of completely debilitating cognitive 5 and physical limitations. See Bray v. Comm r of Soc. Sec. 6 Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) (ALJ properly 7 discounted claimant s testimony because she leads an active 8 lifestyle, including cleaning, cooking, walking her dogs, and 9 driving to appointments ); Molina, 674 F.3d at 1113 ( Even where 10 [claimant s] activities suggest some difficulty functioning, they 11 may be grounds for discrediting the claimant s testimony to the 12 extent that they contradict claims of a totally debilitating 13 impairment. ). Plaintiff also reported to Dr. Lackman that he 14 was training for computer certification and doing some limited 15 computer-repair work (AR 273, 324, 326, 328), though he later 16 said he gave that up because it was too difficult (AR 323, 377). 17 As the ALJ noted, however, that Plaintiff might not be able to 18 do complex tasks such as computer repair, . . . would not 19 preclude an ability to learn simpler tasks requiring little 20 memorization or prolonged intense concentration. 21 (AR 33.) The ALJ also noted that Plaintiff s testimony that he did 22 not regularly visit friends and relatives (AR 49) was somewhat 23 inconsistent with his ex-wife s statement showing that he 24 frequently interacted with her and their children (AR 195) and 25 therefore reduced his credibility. (AR 31.) In a statement 26 submitted to the Appeals Council in response to the ALJ s 27 decision, Plaintiff stated that he testified that I did not 28 regularly see my family and that would include my brother and my 27 1 parents, however, I have seen my children and ex-wife 2 regularly. 21 (AR 10; see also AR 275 (Plaintiff s report to Dr. 3 Lackman that he had very limited social contacts but see[s] 4 his ex-wife and children on a daily basis ).) Such inconsistent 5 statements further support the ALJ s credibility determination. 6 See Smolen, 80 F.3d at 1284 (in assessing credibility, ALJ may 7 use ordinary techniques of credibility evaluation, such as 8 prior inconsistent statements concerning the symptoms, and other 9 testimony by the claimant that appears less than candid ); accord 10 Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). 11 The ALJ also permissibly discounted Plaintiff s complaints 12 based on fibromyalgia and other physical problems because the 13 record d[id] not reveal significant problems and d[id] not 14 support [Plaintiff s] testimony. (AR 31); see Carmickle, 533 15 F.3d at 1161 ( Contradiction with the medical record is a 16 sufficient basis for rejecting the claimant s subjective 17 testimony. ); Lingenfelter, 504 F.3d at 1040 (in determining 18 credibility, ALJ may consider whether the alleged symptoms are 19 consistent with the medical evidence ). Indeed, although 20 Plaintiff consistently complained of physical ailments prior to 21 his head injury even seeking, unsuccessfully, to go on 22 disability for them22 Dr. Lackman s notes postdating 23 21 Plaintiff s statement he did not his 24 parents is also suspect given that he testified regularly see with that that he lived 25 them in an apartment and they paid all of his bills. (AR 48-50.) 26 22 In March 2004, Plaintiff apparently informed his provider 27 that he want[ed] to go on disability for his arthritis, but his provider responded that she [u]nfortunately cannot put him on 28 disability. (AR 289.) Plaintiff continued to work until March 28 1 Plaintiff s alleged onset date in March 2006 show that Plaintiff 2 primarily complained about cognitive impairment (see, e.g., AR 3 273-76, 324-25, 375-80) and only occasionally complained of 4 physical problems (see AR 328 (noting that Plaintiff was treating 5 fibromyalgia-like syndrome with ibuprofen and an occasional 6 one half tablet of Vicodin ), 323 (noting that Plaintiff [u]ses 7 Vicoden [sic] for joint pain ), 326 ( [i]ncreased knee pain when 8 off medication), 381 ( back pain awak[en]s him at night ), 373 9 (complains of ongoing bilateral knee and back pain since his 10 injury )). Dr. Lackman, moreover, repeatedly noted that 11 Plaintiff looked well (AR 274-76, 323-24) or was quite 12 comfortable (AR 273; see also AR 374, 379, 381 (noting that 13 Plaintiff was in no distress )) and had normal motor strength 14 (AR 274, 276, 373, 375, 377).23 Indeed, in the fibromyalgia 15 16 2006. 17 18 19 20 21 22 23 24 25 26 27 28 (See AR 50-54, 170-86.) 23 Plaintiff contends that the treatment notes stating that he looked well and was comfortable predated his onset date of March 2006 (J. Stip. at 15), but as discussed, the notes postdating his onset date reflect similar findings. Plaintiff also contends that the ALJ incorrectly observed that although [Plaintiff] had occasional headaches, he was not taking analgesics (AR 32) because in the mental-RFC questionnaire, Dr. Lackman refers to [Plaintiff] taking heavy pain medication, including Soma and Vicodin (J. Stip at 16). But the ALJ s observation appears in a summary of a January 2006 clinic note (AR 32), in which Dr. Lackman specifically noted, Occasional mild headaches, for which he takes no analgesics (AR 277). As such, the ALJ did not err. Moreover, Dr. Lackman did not indicate in his questionnaire that Soma and Vicodin were prescribed to treat Plaintiff s occasional headaches (see AR 384), and in fact, treatment notes indicate they were prescribed for other ailments (see, e.g., AR 323 ( [u]ses Vicoden [sic] for joint pain ), 328 ( using ibuprofen about two tablets daily and an occasional one half tablet of Vicodin to treat fibromyalgia-like syndrome ), 373 ( he has ongoing bilateral knee and back pain since his injury for which he uses vicoden [sic] and carisoprodol )). 29 1 questionnaire, Dr. Lackman noted that Plaintiff s symptoms did 2 not meet the American College of Rheumatology criteria for 3 fibromyalgia. 4 (AR 389.) Dr. Taylor, moreover, examined Plaintiff and found that his 5 muscle tone, mass, and strength were normal; he had no deformity, 6 swelling, or tenderness in any joint; his neck had full range of 7 motion without pain or spasm; straight-leg raising was negative; 8 he had no spasm along the back muscles; his sensation and 9 reflexes were intact; and his gait was normal. (AR 347-48.) 10 Plaintiff s range of motion of the lumbar spine was fairly good 11 and only very minimally decreased ; overall Plaintiff moved his 12 lumbar spine with ease. (AR 348.) Dr. Taylor found that 13 Plaintiff had no physical limitations. (AR 349.) Such findings 14 fail to support Plaintiff s allegations that he was unable to 15 sit, stand, or walk for more than 10 or 15 minutes at a time, sit 16 or stand and walk for more than two hours total in a workday, or 17 repetitively lift more than a couple pounds. (AR 75-77.) 18 Indeed, the ALJ concluded that Plaintiff s allegedly disabling 19 fibromyalgia and back condition were nonsevere, findings 20 Plaintiff does not challenge. 21 The ALJ was also entitled to partially discount Plaintiff s 22 testimony regarding his cognitive impairments because 23 psychological examinations confirm problem areas but not to the 24 extent that [Plaintiff] would be unable to perform any work. 25 (AR 32.) Indeed, as discussed in Section V.A, the examining 26 psychologists interviewed Plaintiff and performed a battery of 27 tests, which showed generally above-average function except in 28 the areas of attention and working memory. 30 Such findings fail to 1 support Plaintiff s testimony that his cognitive impairment 2 prevented him from performing even a limited range of low-stress, 3 simple, and routine work with little social contact. 4 Because the ALJ s findings were supported by substantial 5 evidence, this Court may not engage in second-guessing. See 6 Thomas, 278 F.3d at 959; Fair v. Bowen, 885 F.2d 597, 604 (9th 7 Cir. 1989). 8 C. 9 10 Remand is not warranted. The ALJ Did Not Err in Assessing the Third-Party Statements Plaintiff contends that the ALJ erred because he refer[red] 11 to statements from [Plaintiff s] ex-wife, brother, friend, and 12 co-worker, but does not explain the weight he assigned to those 13 statements. (J. Stip. at 22.) For the reasons discussed below, 14 remand is not warranted on this ground. 15 In determining whether a claimant is disabled, an ALJ must 16 consider lay witness testimony concerning a claimant s ability to 17 work. Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009) 18 (quoting Stout v. Comm r, Soc. Sec. Admin., 454 F.3d 1050, 1053 19 (9th Cir. 2006) (internal quotation marks omitted)); see also 20 §§ 404.1513(d) (statements from therapists, family, and friends 21 can be used to show severity of impairments and effect on ability 22 to work), 416.913(d) (same). Such testimony is competent 23 evidence and cannot be disregarded without comment. Bruce, 557 24 F.3d at 1115 (quoting Nguyen v. Chater, 100 F.3d 1462, 1467 (9th 25 Cir. 1996) (internal quotation marks omitted)); Robbins, 466 F.3d 26 at 885 ( [T]he ALJ is required to account for all lay witness 27 testimony in the discussion of his or her findings. ). When 28 rejecting the testimony of a lay witness, an ALJ must give 31 1 specific reasons that are germane to that witness. Bruce, 557 2 F.3d at 1115; see also Stout, 454 F.3d at 1053; Nguyen, 100 F.3d 3 at 1467. 4 If an ALJ fails to discuss competent lay testimony favorable 5 to the claimant, a reviewing court cannot consider the error 6 harmless unless it can confidently conclude that no reasonable 7 ALJ, when fully crediting the testimony, could have reached a 8 different disability determination. 9 see also Robbins, 466 F.3d at 885. Stout, 454 F.3d at 1056; But an ALJ s failure to 10 comment upon lay witness testimony is harmless where the same 11 evidence that the ALJ referred to in discrediting [the 12 claimant s] claims also discredits [the lay witness s] claims. 13 Molina, 674 F.3d at 1122 (alteration in original) (quoting 14 Buckner v. Astrue, 646 F.3d 549, 560 (8th Cir. 2011)). 15 Here, Plaintiff submitted four lay-witness statements 16 regarding his alleged cognitive impairments. His ex-wife, Anne 17 Marie Brakeman, stated that she needed to constantly remind 18 Plaintiff of what he needed to do, such as make dinner for their 19 two children when she worked a night shift, and that Plaintiff 20 had become completely unreliable and childlike and unable to 21 provide for his two children. (AR 195.) She stated that 22 Plaintiff called her on at least two occasions because he could 23 not find his car in a small grocery-store parking lot. (Id.) 24 Plaintiff s friend, Matt Creeks, stated that Plaintiff often did 25 not return phone calls and had described his head injury and 26 difficulties finding his car in a parking lot. (AR 196.) Creeks 27 wrote that Plaintiff had asked him about potential employment 28 at the store where Creeks was a manager, but Creeks had to 32 1 discourage him because he didn t feel [Plaintiff] would be 2 someone to count on. (Id.) Plaintiff s brother, Forrest 3 Brakeman, stated that since his accident, Plaintiff had shown an 4 inability to consistently remember appointments and addresses 5 and a marked decrease in certain memory functions, like the 6 ability to memorize. (AR 198.) Forrest24 stated that he was 7 unable to hire Plaintiff as a boom operator, as he had in the 8 past, because Plaintiff was no longer punctual and had to be able 9 to memorize a script, which he could no longer do reliably. 10 (Id.) Finally, Betsy Blake, Plaintiff s former supervisor, wrote 11 that after the accident, Plaintiff had been unable to perform at 12 the level needed for the assistant director job and was not 13 remembering details required for a job he performed with ease 14 before the accident. (AR 212.) Blake stated that after two 15 months of training, Plaintiff was unable to regain and retain 16 the skills necessary to function in our fast paced, detail driven 17 work environment and she therefore stopped scheduling him for 18 work. 19 (Id.) The ALJ fully discussed the four lay-witness statements (AR 20 31-32), and Plaintiff s RFC is in fact largely consistent with 21 them. As the ALJ noted, Blake stated that Plaintiff was unable 22 to return to his former fast-paced and detail-driven job, but 23 that does not automatically preclude an individual from doing 24 unskilled and less stressful work. (AR 32.) Similarly, Forrest 25 stated that Plaintiff was unable to perform his previous work as 26 a boom operator because he could not remember appointments and 27 24 Because Anne Brakeman and Forrest Brakeman share the same 28 last name, the Court refers to them by their first names. 33 1 addresses or memorize a script, Anne stated that Plaintiff was 2 forgetful and unreliable, and Creeks stated that Plaintiff was 3 unreliable and socially withdrawn. But those statements, too, do 4 not necessarily conflict with the ALJ s finding that Plaintiff 5 could perform low-stress, simple, routine work tasks with only 6 occasional social contact. 7 (AR 30.) In any event, to the extent the ALJ erred by failing to give 8 germane reasons for rejecting the third-party statements, it was 9 harmless because the statements described the same limitations as 10 Plaintiff s own testimony, and the ALJ s reasons for rejecting 11 Plaintiff s testimony apply with equal force to the lay 12 testimony. Molina, 674 F.3d at 1122. Plaintiff claimed that he 13 was unable to work because he couldn t concentrate for long 14 periods, had poor short-term memory and difficulty making 15 decisions, and was sometimes unable to recognize when decisions 16 need to be made. (AR 350.) As discussed in Section V.B, the 17 ALJ provided clear and convincing reasons for discounting 18 Plaintiff s statements, including that they were inconsistent 19 with his daily activities and unsupported by the medical 20 evidence. Thus, because the ALJ provided well-supported grounds 21 for rejecting testimony regarding specified limitations, the 22 Court cannot ignore the ALJ s reasoning and reverse the agency 23 merely because the ALJ did not expressly discredit each witness 24 who described the same limitations. Molina, 674 F.3d at 1121. 25 Because any error was harmless, Plaintiff is not entitled to 26 reversal on this ground. 27 28 34 1 D. 2 Plaintiff contends that the ALJ failed to fully and fairly The ALJ Did Not Fail to Fully Develop the Record 3 develop the record by ordering additional psychological testing 4 because the medical expert, Dr. Griffin, testified that 5 additional testing would be useful and the ALJ appeared to agree 6 that further development was needed. (J. Stip. at 24.) For the 7 reasons discussed below, remand is not warranted on this ground. 8 In determining disability, the ALJ must develop the record 9 and interpret the medical evidence. Howard ex rel. Wolff v. 10 Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003). Nonetheless, it 11 remains the plaintiff s burden to produce evidence in support of 12 his disability claims. 13 (9th Cir. 2001). See Mayes v. Massanari, 276 F.3d 453, 459 Ambiguous evidence, or the ALJ s own finding 14 that the record is inadequate to allow for proper evaluation of 15 the evidence, triggers the ALJ s duty to conduct an appropriate 16 inquiry. 17 Tonapetyan, 242 F.3d at 1150. At the hearing, Plaintiff s counsel asked Dr. Griffin 18 whether any additional testing would be helpful in determining 19 if other psychological factors exist. (AR 64.) Dr. Griffin 20 responded that my position is always that the more information 21 is better, which was the position I m obligated to take as a 22 professional. (AR 65.) Dr. Griffin stated that he would want 23 any such further examination to review whether or not there is 24 the possibility of secondary gain, whether or not there is a 25 substance abuse history . . . , or whether there s a possible 26 personality disorder. (Id.) When asked whether any specific 27 test would be important, Dr. Griffin testified that Plaintiff 28 would simply need a thorough psychological examination, clinical 35 1 history, and so forth. (AR 65.) Plaintiff s counsel then 2 requested the ALJ s assistance in ordering such an examination. 3 (Id.) The ALJ responded, 4 Okay. What would you what would you look for? Because 5 we did our psychological CE and . . . it looks like they 6 did . . . the psychological testing that they normally do 7 as part of a CE. 8 request. 9 (Id.) I am very limited in what I can After more discussion, the ALJ told counsel that he would 10 take your request under consideration. (AR 67.) At the end of 11 the hearing, the ALJ left the record open for 30 days so 12 Plaintiff could submit additional evidence (AR 84); he thereafter 13 submitted Dr. Lackman s mental-RFC and fibromyalgia 14 questionnaires (see AR 384-93). 15 The ALJ did not fail to fulfil his duty to further develop 16 the evidence. Contrary to Plaintiff s assertion, the ALJ did not 17 appear[] to agree that further development was needed (J. Stip. 18 at 24); rather, he noted that Dr. Roman already conducted some 19 psychological testing and informed counsel that he would take the 20 request for additional testing under consideration (AR 67). 21 The ALJ made no finding that the record was inadequate, and in 22 fact it appears to be quite well developed, as the ALJ obtained 23 separate consultative examinations of Plaintiff s mental and 24 physical conditions, the testimony of a psychological expert, and 25 opinions from several reviewing psychologists and physicians, all 26 in addition to Plaintiff s treatment records and Drs. 27 Mitrushina s and Shirman s evaluations. Plaintiff, moreover, 28 does not point to any specific ambiguous evidence that would have 36 1 triggered the ALJ s duty to further develop the record. (See J. 2 Untitled eventStip. at 24-26.) 3 Plaintiff nevertheless claims that the ALJ should have 4 further developed the record because he did not allow 5 [Plaintiff] to testify as to his cognitive problems at the 6 hearing. (J. Stip. at 24 (citing AR 77).) 7 however, fails to support that contention. The evidence, Rather, at the 8 hearing the ALJ noted that he was familiar with the record and 9 Plaintiff s brief regarding his head trauma. (AR 54.) After Dr. 10 Griffin testified at length regarding Plaintiff s mental 11 limitations (AR 55-72), the ALJ noted that the evidence regarding 12 Plaintiff s physical problems was weak and asked counsel to point 13 out something objective showing fibromyalgia or arthritis or 14 lumbar something because the ALJ didn t see it in the record 15 (AR 72). Plaintiff s counsel responded that the best sense 16 [sic] to discover [Plaintiff s] physical problems are . . . to 17 ask him what . . . physically would interfere with [his] ability 18 to function. (AR 73.) After counsel and the ALJ questioned 19 Plaintiff regarding his physical problems (AR 73-77), counsel 20 said he had no other questions unless the ALJ want[ed] [him] 21 to establish the symptomology that [Plaintiff s] going through 22 with mental health ; the ALJ responded, No. (AR 77.) Thus, 23 the ALJ merely indicated, on the page cited by Plaintiff, that he 24 needed no additional development regarding the alleged cognitive 25 limitations; he did not in any way prohibit Plaintiff from 26 testifying about them. Indeed, counsel never even requested that 27 Plaintiff be allowed to do so. 28 In any event, even if the ALJ s duty to further develop the 37 1 record regarding Plaintiff s mental condition had been triggered, 2 he met that duty by leaving the record open for an additional 30 3 days so Plaintiff could submit additional evidence. (AR 83-84); 4 see Tonapetyan, 242 F.3d at 1150 (ALJ may meet duty to develop 5 record in several ways, including by keeping the record open 6 after the hearing to allow supplementation of the record ); 7 Hanbey v. Astrue, 506 F. App x 615, 616 (9th Cir. 2013) (finding 8 that even if ambiguous records triggered the ALJ s duty to 9 develop the record, the ALJ fulfilled that duty by according 10 [claimant] the opportunity to supplement the record after the 11 hearing had concluded ). Indeed, Plaintiff availed himself of 12 that opportunity by submitting two medical opinions from Dr. 13 Lackman, which the ALJ fully considered in rendering his 14 decision. 15 Remand is not warranted on this ground. 16 17 18 19 20 21 22 23 24 25 26 27 28 38 1 VI. CONCLUSION 2 Consistent with the foregoing, and pursuant to sentence four 3 of 42 U.S.C. § 405(g),25 IT IS ORDERED that judgment be entered 4 AFFIRMING the decision of the Commissioner and dismissing this 5 action with prejudice. IT IS FURTHER ORDERED that the Clerk 6 serve copies of this Order and the Judgment on counsel for both 7 parties. 8 9 10 DATED: July 25, 2014 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25 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. 39

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