Artavazd Ogannesyan v. Carolyn W. Colvin, No. 2:2015cv00220 - Document 29 (C.D. Cal. 2016)

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, DENYING Plaintiff's request for remand, 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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Artavazd Ogannesyan v. Carolyn W. Colvin Doc. 29 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ARTAVAZD OGANNESYAN, Plaintiff, 12 13 v. 14 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 15 Defendant. 16 ) Case No. CV 15-0220-JPR ) ) ) MEMORANDUM OPINION AND ORDER ) AFFIRMING COMMISSIONER ) ) ) ) ) ) ) 17 18 19 I. PROCEEDINGS Plaintiff seeks review of the Commissioner’s final decision 20 terminating payment of Supplemental Security Income (“SSI”) 21 benefits. 22 undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c). 23 matter is before the Court on the parties’ Joint Stipulation, 24 filed November 13, 2015, which the Court has taken under 25 submission without oral argument. 26 the Commissioner’s decision is affirmed. The parties consented to the jurisdiction of the The For the reasons stated below, 27 28 1 Dockets.Justia.com 1 2 II. BACKGROUND Plaintiff was born in Armenia in 1966 and moved to 3 California in September 1989. 4 147, 234.) 5 never worked. 6 January 29, 1993, he was found to have been disabled since June 7 11, 1992, because of posttraumatic stress disorder and back pain. 8 (AR 23-24, 61, 63, 241.) 9 1996, his disability was found to continue. 10 (Administrative Record (“AR”) 30, He completed the eighth grade in Armenia1 and has (AR 52, 56, 164.) In a determination dated In a determination dated August 21, (AR 23-24.) On February 4, 2011, Plaintiff filed a disability report and 11 a continuing-review disability report, alleging that he was 12 unable to work because of back pain, right-leg pain, an eye 13 injury, and anxiety. 14 was notified that his disability was found to have ended as of 15 July 2011 and that his benefits would be terminated. 16 He requested reconsideration of the cessation determination and 17 appeared with an interpreter at a hearing before a Disability 18 Hearing Officer (“DHO”) on January 11, 2012. 19 In a written decision issued the following day, the DHO found 20 Plaintiff not disabled. 21 (AR 164, 187.) On July 22, 2011, Plaintiff (AR 65-67.) (AR 64, 68, 80.) (AR 80-89.) Plaintiff requested a hearing before an Administrative Law 22 Judge. (AR 93.) A hearing was held on November 27, 2012, at 23 which Plaintiff appeared with a nonattorney representative and 24 25 26 27 28 1 In 2011 and 2012, Plaintiff reported that he had completed the eighth grade (AR 56, 285), but in 1996, he reported that he had completed the 12th grade (AR 234). 2 1 testified through an Armenian-language interpreter.2 2 57.) 3 a written decision issued November 29, 2012, the ALJ found that 4 Plaintiff’s disability had ended on July 1, 2011. 5 On November 13, 2014, after considering a new opinion from one of 6 Plaintiff’s treating physicians (AR 5, 351), the Appeals Council 7 denied Plaintiff’s request for review. 8 followed. 9 III. STANDARD OF REVIEW 10 A vocational expert (“VE”) also testified. (AR 1-5.) (AR 46, 49- (AR 57-59.) In (AR 23-32.) This action Under 42 U.S.C. § 405(g), a district court may review the 11 Commissioner’s decision to deny benefits. The ALJ’s findings and 12 decision should be upheld if they are free of legal error and 13 supported by substantial evidence based on the record as a whole. 14 See id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra 15 v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 16 evidence means such evidence as a reasonable person might accept 17 as adequate to support a conclusion. 18 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 19 It is more than a scintilla but less than a preponderance. 20 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 21 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 22 substantial evidence supports a finding, the reviewing court 23 “must review the administrative record as a whole, weighing both 24 the evidence that supports and the evidence that detracts from Substantial Richardson, 402 U.S. at To determine whether 25 26 27 28 2 Although the Commissioner states that Plaintiff was represented by an attorney (see, e.g., J. Stip. at 7, 10), the ALJ stated that he was represented by a “non-attorney representative” (AR 23) and the representative’s name does not appear on the California State Bar’s website. 3 1 the Commissioner’s conclusion.” Reddick v. Chater, 157 F.3d 715, 2 720 (9th Cir. 1996). 3 either affirming or reversing,” the reviewing court “may not 4 substitute its judgment” for the Commissioner’s. 5 IV. “If the evidence can reasonably support Id. at 720-21. THE EVALUATION OF DISABILITY 6 People are “disabled” for purposes of receiving Social 7 Security benefits if they are unable to engage in any substantial 8 gainful activity owing to a physical or mental impairment that is 9 expected to result in death or has lasted, or is expected to 10 last, for a continuous period of at least 12 months. 11 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 12 1992). 13 continuing disability arises in [their] favor,” and the 14 Commissioner “then bears the burden of producing evidence 15 sufficient to rebut” it. 16 Servs., 755 F.2d 1380, 1381 (9th Cir. 1985); see also McCalmon v. 17 Astrue, 319 F. App’x 658, 659 (9th Cir. 2009). 18 42 U.S.C. Once they are found to be disabled, a “presumption of Bellamy v. Sec’y of Health & Human Recipients of benefits are generally no longer disabled when 19 substantial evidence demonstrates medical improvement in their 20 physical and mental impairments and an ability to engage in 21 substantial gainful activity. 22 Sec’y of Health & Human Servs., 44 F.3d 1453, 1460 (9th Cir. 23 1995). 42 U.S.C. § 423(f); Flaten v. 24 A. The Seven-Step Evaluation Process 25 The ALJ follows a seven-step sequential evaluation process 26 to assess whether a recipient continues to be disabled and 27 eligible for SSI benefits. 28 v. Astrue, 333 F. App’x 217, 218 (9th Cir. 2009); Ferguson v. 20 C.F.R. § 416.994; see Khampunbuan 4 1 Comm’r of Soc. Sec., No. 2:13-CV-2344-WBS-CMK, 2015 WL 5173952, 2 at *1 n.2 (E.D. Cal. Sept. 2, 2015). 3 Commissioner determines whether the recipient has an impairment 4 or combination of impairments that meets or equals an impairment 5 in the Listing of Impairments (“Listing”) set forth at 20 C.F.R. 6 part 404, subpart P, appendix 1; if so, the disability continues. 7 § 416.994(b)(5)(i). 8 9 In the first step, the If the recipient’s impairment or combination of impairments does not meet or equal an impairment in the Listing, the second 10 step requires the Commissioner to determine whether medical 11 improvement has occurred.3 12 analysis proceeds to step three; if not, it proceeds to step 13 four. 14 § 416.994(b)(5)(ii). If so, the Id. If medical improvement has occurred, the third step requires 15 the Commissioner to determine whether the improvement is related 16 to the recipient’s ability to work — that is, whether the 17 recipient’s residual functional capacity (“RFC”)4 has increased 18 since the most recent favorable medical decision. 19 § 416.994(b)(5)(iii). If medical improvement is not related to 20 21 22 23 24 25 26 27 28 3 Medical improvement is “any decrease in the medical severity of [a recipient’s] impairment(s) which was present at the time of the most recent favorable medical decision that [the recipient was] disabled or continued to be disabled.” § 416.994(b)(1)(i). “A determination that there has been a decrease in medical severity must be based on changes (improvement) in the symptoms, signs and/or laboratory findings associated with [the recipient’s] impairment(s).” Id. (citing § 416.928). 4 RFC is what a claimant can do despite existing exertional and nonexertional limitations. § 416.945; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 5 1 the recipient’s ability to work, the analysis proceeds to step 2 four; if it is, it proceeds to step five. 3 Id. If medical improvement has not occurred or if it is not 4 related to the recipient’s ability to work, the fourth step 5 requires the Commissioner to determine whether an exception 6 applies. 7 exceptions, the Commissioner can find a recipient no longer 8 disabled even though he has not medically improved if he is able 9 to engage in substantial gainful activity; if one of these § 416.994(b)(5)(iv). Under the first group of 10 exceptions applies, the analysis proceeds to step five.5 11 § 416.994(b)(3), (b)(5)(iv). 12 exceptions, the Commissioner can in certain situations find a 13 recipient no longer disabled without finding medical improvement 14 or an ability to engage in substantial gainful activity; if one 15 of these exceptions applies, the recipient is no longer 16 disabled.6 17 exceptions apply, the recipient continues to be disabled. 18 § 416.994(b)(5)(iv). 19 20 Under the second group of § 416.994(b)(4), (b)(5)(iv). If none of the The fifth step requires the Commissioner to determine whether all the recipient’s current impairments in combination 21 22 23 24 25 26 27 28 5 The first group of exceptions includes situations in which the recipient has undergone vocational therapy that improved his ability to perform jobs, new diagnostic techniques show that his impairments are not as disabling as previously thought, or the prior disability decision was erroneous. § 416.994(b)(3). 6 The second group of exceptions includes situations in which a prior determination was fraudulently obtained, the recipient doesn’t cooperate with the agency, the agency can’t find the recipient, or the recipient fails to follow prescribed treatment that would restore his ability to work. § 416.994(b)(4). 6 1 are “severe,” which means that they significantly limit his 2 ability to do basic work activities; if not, the recipient is no 3 longer disabled. 4 § 416.994(b)(5)(v). If the recipient’s current impairments in combination are 5 severe, the sixth step requires the Commissioner to determine 6 whether the recipient has sufficient RFC, “based on all [his] 7 current impairments,” to perform his past relevant work; if so, 8 he is no longer disabled. 9 § 416.994(b)(5)(vi). If the recipient is unable to do his past work or if he has 10 none, the seventh and final step requires the Commissioner to 11 determine, using the RFC assessed in step six, whether the 12 recipient can perform any other substantial gainful work; if so, 13 he is no longer disabled. § 416.994(b)(5)(vii). 14 recipient continues to be disabled. 15 B. Id. The ALJ’s Decision and Application of the Seven-Step Process 16 17 If not, the The ALJ found that as of August 21, 1996, the date of 18 Plaintiff’s most recent favorable medical decision, he had the 19 medically determinable impairments of posttraumatic stress 20 disorder and “back pain status post surgery,” which had resulted 21 in an RFC to perform light work with “moderate to severe 22 psychosocial stressors.”7 23 1, 2011, Plaintiff had the medically determinable impairments of 24 “mild degenerative disc disease of the lumbar spine/lumbar (AR 24-25.) She found that as of July 25 26 27 28 7 The most recent favorable medical decision is also known as the comparison-point decision. See Program Operations Manual System (POMS) DI 28010.105, U.S. Soc. Sec. Admin. (June 22, 2015), http://policy.ssa.gov/poms.nsf/lnx/0428010105 (last updated Jan. 13, 2016); see also § 416.994(b)(1)(vii). 7 1 spondylosis and obesity.” 2 hypertension and alleged mental impairments but found them not 3 severe. 4 (AR 25.) She also noted Plaintiff’s (Id.) At step one of the seven-step process, the ALJ found that 5 since July 1, 2011, Plaintiff’s impairments had not met or 6 equaled an impairment in Listing. 7 found that medical improvement had occurred as of July 1, 2011. 8 (AR 25-30.) 9 improvement was related to his ability to work. (AR 25.) At step two, she At step three, she found that Plaintiff’s medical (AR 30.) She See § 416.994(b)(5)(iv). 10 therefore did not address step four. 11 At step five, she concluded that since July 1, 2011, Plaintiff’s 12 impairments had “continued to be severe.” 13 25.) 14 Plaintiff had the RFC to perform medium work “except he can: 15 frequently bend, stoop and twist.” 16 that he did not have any past relevant work. 17 seven, based on the VE’s testimony, the ALJ concluded that 18 beginning on July 1, 2011, Plaintiff could perform jobs existing 19 in significant numbers in the national economy. 20 Accordingly, she determined that his disability ended on July 1, 21 2011. 22 V. 23 (AR 30; see also AR At step six, she found that beginning on July 1, 2011, (AR 26.) She further found (AR 30.) At step (AR 30-31.) (AR 31-32.) DISCUSSION Plaintiff raises eight separate issues, arguing that the ALJ 24 erred in (1) admitting into evidence an investigation report by 25 the Cooperative Disability Investigation (“CDI”) unit,8 (2) 26 27 28 8 The Social Security Administration and the SSA’s Office of the Inspector General established the CDI program to investigate (continued...) 8 1 considering the “opinion of lay investigators” over Plaintiff’s 2 testimony and the opinions of his treating doctors, Michael 3 Karapetian and Tigran I. Gervorkian, (3) relying on Plaintiff’s 4 household activities to find him not credible, (4) rejecting Dr. 5 Karapetian’s opinion based on the opinions of nontreating 6 doctors, (5) mischaracterizing Drs. Karapetian’s and Gervorkian’s 7 reports, (6) discounting Plaintiff’s credibility, (7) 8 mischaracterizing Plaintiff’s testimony, and (8) relying on the 9 VE’s testimony to find that Plaintiff could perform other work. 10 (J. Stip. at 4, 12, 20, 27, 30-32.) In essence, therefore, 11 Plaintiff challenges the ALJ’s (1) admission of the CDI report, 12 (2) weighing of the medical-opinion evidence, (3) credibility 13 assessment, and (4) reliance on the VE’s testimony. 14 those four issues is discussed below. Each of 15 A. The ALJ Did Not Err in Admitting the CDI Report 16 Plaintiff argues that the ALJ “erroneously admitted” the CDI 17 report and that he should have “had an opportunity to cross 18 examine the investigators” who wrote the report, “especially 19 concerning allegations suggesting malingering and fraud.” 20 Stip. at 4-5.) 1. 21 22 (J. Relevant background In November 2011, Plaintiff’s case was referred to the CDI 23 unit after it began investigating Plaintiff’s wife, who was 24 apparently also receiving disability benefits (AR 148, 151) and 25 26 27 28 8 (...continued) suspected fraud in disability claims. See Cooperative Disability Investigations (CDI), Office of the Inspector General, https://oig.ssa.gov/cooperative-disability-investigations-cdi (last accessed May 12, 2016). 9 1 was suspected of malingering. 2 members of the same family receiving disability benefits is 3 indicative for possible high risk for fraud and similar fault”).) 4 In January 2011, CDI investigators Michael Lavoie and Gregory 5 Godina visited Plaintiff’s residence three times and interviewed 6 him once. 7 Roberts, a CDI-unit team leader, submitted a report with the 8 following investigation summary: 9 (AR 242-43.) On January (AR 241 (noting that “other On April 5, 2011, Special Agent Glenn 5, 2011, [investigators] visited 10 [Plaintiff’s] residence . . . . 11 one is required walking [sic] up approximately 25 steps 12 of 13 [Investigator] Godina saw [Plaintiff] downstairs, sitting 14 on a chair talking to an unknown male. . . . 15 stairs On because January it 8, does 2011, . not have an elevator. [investigators] . . . [They] visited 16 [Plaintiff’s] 17 themselves and appraised [sic] [Plaintiff] as to the 18 purpose of the visit. 19 interview [and] agreed to answer my questions. . . . 20 residence To reach the apartment, identified He understood the purpose of the [Plaintiff] stated the following about himself: He 21 performs all his own hygiene and grooming. He is able to 22 prepare meals and conduct household chores including 23 cleaning without assistance. 24 grocery shopping on a weekly basis. 25 money and make change. 26 buy food. 27 uses public transportation to get to the county welfare 28 office. He is able to perform He is able to count He uses a county debit card to He does not own a car and does not drive. He He walks approximately six city blocks with his 10 1 wife, two times a week to attend church. 2 ran out of all his medications and did not have any empty 3 containers to show the investigators. 4 He stated he During the course of the interview, [Investigator] 5 Godina observed the following regarding [Plaintiff]: He 6 was well groomed with acceptable hygiene. 7 oriented and focused. 8 answer questions. 9 Without difficulty, he excused himself two times to 10 attend to other matters and returned to resume the 11 conversation where he stopped. 12 unusual behaviors. 13 signs of pain or discomfort. 14 walk without difficulty. His gait was normal. He did 15 not use any assistive devices to stand or walk. He did 16 not exhibit difficulty lifting and handling items. 17 did not present himself in a depressed or worried manner. 18 He did not become agitated at any time during the 19 interview. 20 [Plaintiff] twice, ascend and descend two flights of 21 stairs without the aid of handrails. 22 stairway at a moderate to fast pace without exhibiting 23 any signs of pain, shortness of breath, or loss of 24 balance. He was alert, He was able to understand and He was able to recall information. He did not exhibit any He was able to remain seated with no [Investigator] He was able to stand and Godina further He observed He climbed the 25 Subsequently on January 11, 2011, [Investigator] 26 Godina observed the following: [Plaintiff] walked to the 27 apartment building, alone. He was walking unassisted and 28 at a moderate pace. He then jogged crossing the street 11 1 and entered the apartment building. 2 apartment building, he walked up the stairs to the second 3 floor towards . . . Godina at a rapid pace. 4 reached 5 normally and showed no signs of physical distress. . . . Godina’s position, Upon reaching the he was When he breathing 6 (AR 242-43.) 7 record (see AR 240-43) and the ALJ relied on it in finding 8 Plaintiff no longer disabled (see AR 28-29). 9 10 The CDI report was made part of the administrative 2. Analysis The ALJ permissibly admitted the CDI investigation report 11 into evidence and relied on it in making her nondisability 12 determination. 13 Ninth Circuit found that an ALJ may rely on evidence related to 14 CDI unit investigations because “[t]he Social Security Act 15 expressly authorizes the Commissioner to ‘conduct such 16 investigations and other proceedings as the Commissioner may deem 17 necessary or proper.’” 18 (9th Cir. 2015) (quoting 42 U.S.C. § 405(b)(1)). 19 Circuit noted, “there is nothing nefarious about ensuring that 20 only deserving claimants receive benefits.” 21 Indeed, in a recent unpublished opinion, the Elmore v. Colvin, 617 F. App’x 755, 757 As the Ninth Id. And although Plaintiff argues that the ALJ’s consideration 22 of the investigators’ “unsworn” statements was erroneous, an ALJ 23 in fact has an obligation to consider such third-party statements 24 regarding a plaintiff’s ability to work. 25 674 F.3d 1104, 1114 (9th Cir. 2012) (“Lay testimony as to a 26 claimant’s symptoms or how an impairment affects the claimant’s 27 ability to work is competent evidence that the ALJ must take into 28 account.”); Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009) 12 See Molina v. Astrue, 1 (“In determining whether a claimant is disabled, an ALJ must 2 consider lay witness testimony concerning a claimant’s ability to 3 work.” (citing Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 4 1053 (9th Cir. 2006))); see also § 416.913(d) (statements from 5 “[o]ther non-medical sources,” including spouses, parents, other 6 relatives, friends, neighbors, and clergy, can be used to show 7 severity of impairments and effect on ability to work); 8 § 416.929(c)(3) (in evaluating symptoms, ALJ will consider 9 “observations by our employees and other persons”); SSR 96-7p, 10 1996 WL 374186, at *8 (July 2, 1996) (“In evaluating the 11 credibility of the individual’s statements, the adjudicator must 12 also consider any observations recorded by SSA personnel who 13 previously interviewed the individual, whether in person or by 14 telephone.”). 15 6), an ALJ may receive evidence at an administrative hearing even 16 if it would be inadmissible under the rules of evidence 17 applicable to court proceedings. 18 (“strict rules of evidence, applicable in the courtroom, are not 19 to operate at social security hearings so as to bar the admission 20 of evidence otherwise pertinent”); 42 U.S.C. § 405(b)(1) 21 (“Evidence may be received at any hearing before the Commissioner 22 of Social Security even though inadmissible under rules of 23 evidence applicable to court procedure.”); 20 C.F.R. 24 § 416.1450(c) (“The administrative law judge may receive evidence 25 at the hearing even though the evidence would not be admissible 26 in court under the rules of evidence used by the court.”). Moreover, as Plaintiff acknowledges (J. Stip. at See Richardson, 402 U.S. at 400 27 Plaintiff nevertheless contends that the CDI report should 28 not have been admitted because he “did not have the opportunity 13 1 to cross examine the CDI investigators because the investigators 2 did not appear at the hearing,” and he was “not specifically 3 informed that he had the right to subpoena” them. 4 5-6.) 5 with the full administrative record, which presumably included 6 the CDI report (AR 94 (Apr. 2, 2012 letter stating that “[a] CD 7 is enclosed that contains all of the evidence in your electronic 8 folder to date”), 89 (hearing officer’s Jan. 12, 2012 decision 9 noting that evidence considered included “CDI”)), and advised him (J. Stip. at But the record shows that the agency provided Plaintiff 10 on at least three separate occasions of his right to ask the ALJ 11 to subpoena witnesses to testify at the hearing. 12 (Mar. 1, 2012 letter), 110 (Apr. 19, 2012 letter), 128-29 (Sept. 13 12, 2012 letter), 134-35 (same)); see also § 416.1450(d) (ALJ may 14 “on his or her own initiative or at the request of a party, issue 15 subpoenas for the appearance and testimony of witnesses”). 16 Plaintiff cannot now complain that the investigators did not 17 appear at the hearing when he never asked the ALJ to subpoena 18 them. 19 2007) (finding that detective’s absence from hearing did not 20 violate due process because plaintiff “failed to avail herself” 21 of opportunity to request subpoena).9 (See AR 38 See Hubbard v. Barnhart, 225 F. App’x 721, 723 (9th Cir. And when the ALJ asked at 22 23 24 25 26 27 28 9 Plaintiff attempts to distinguish Hubbard by stating, with no further explanation, that the video at issue in that case was “properly authenticated.” (J. Stip. at 10-11.) But the video was simply an exhibit to a detective’s investigative report and nothing shows that the report was signed under penalty of perjury or that the video was otherwise verified. See Hubbard, 225 F. App’x at 723; see also (J. Stip. at 11 (arguing that CDI report in this case should have been signed under penalty of perjury or “properly authenticated” with “certification” “verifying that it (continued...) 14 1 the hearing whether Plaintiff had any objection to the documents 2 in the record, which included the CDI report, Plaintiff’s 3 representative responded, “No, Your Honor.” 4 moreover, was given a chance to respond to the report’s findings 5 when the ALJ questioned him about them. 6 (AR 47.) Plaintiff, (See AR 50-52.) As such, nothing shows that the ALJ erred in considering the See Darmaryan v. Colvin, No. 14-CV-03551 (VEB), 2016 7 CDI report. 8 WL 1698252, at *8 (C.D. Cal. Apr. 27, 2016) (noting that “courts 9 have recognized that an ALJ may consider the findings of a fraud 10 investigation performed by the CDI when assessing a claimant’s 11 credibility” and collecting cases); Manor v. Astrue, No. 12 C10-5944-JLR, 2011 WL 3563687, at *5-6 (W.D. Wash. July 28, 2011) 13 (finding ALJ’s consideration of CDI report was not fundamentally 14 unfair when plaintiff had opportunity to challenge it by 15 objecting to its admission and requesting detectives’ presence at 16 hearing), accepted by 2011 WL 3567421 (W.D. Wash. Aug. 12, 2011). 17 Remand is not warranted on this ground. 18 B. The ALJ Did Not Err in Assessing the Medical Opinions 19 Plaintiff argues that the ALJ erroneously discounted the 20 opinions of her treating physicians, internist Dr. Karapetian and 21 psychiatrist Dr. Gevorkian. 22 30-32.) 23 seven months, but the Appeals Council considered it in denying (J. Stip. at 12-13, 18-20, 27-28, Dr. Karapetian’s opinion postdated the ALJ’s decision by 24 9 25 26 27 28 (...continued) was a true and correct copy of a document in the Commissioner’s files”).) In any event, the Ninth Circuit in Hubbard found that regardless of whether the video had a “proper foundation,” it was properly admitted under 20 C.F.R. § 404.950(c), which states that an ALJ may receive evidence that would not be admissible in court. Id.; see also § 416.1450(c). 15 1 review and ordered that it be made part of the administrative 2 record. (See AR 1-5.) 1. 3 Applicable law 4 Three types of physicians may offer opinions in Social 5 Security cases: (1) those who directly treated the plaintiff, (2) 6 those who examined but did not treat the plaintiff, and (3) those 7 who did neither. 8 1995). 9 more weight than an examining physician’s, and an examining Lester v. Chater, 81 F.3d 821, 830 (9th Cir. A treating physician’s opinion is generally entitled to 10 physician’s opinion is generally entitled to more weight than a 11 nonexamining physician’s. 12 Id. This is true because treating physicians are employed to 13 cure and have a greater opportunity to know and observe the 14 claimant. 15 If a treating physician’s opinion is well supported by medically 16 acceptable clinical and laboratory diagnostic techniques and is 17 not inconsistent with the other substantial evidence in the 18 record, it should be given controlling weight. 19 If a treating physician’s opinion is not given controlling 20 weight, its weight is determined by length of the treatment 21 relationship, frequency of examination, nature and extent of the 22 treatment relationship, amount of evidence supporting the 23 opinion, consistency with the record as a whole, the doctor’s 24 area of specialization, and other factors. 25 Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). § 416.927(c)(2). § 416.927(c)(2)-(6). When a treating physician’s opinion is not contradicted by 26 other evidence in the record, it may be rejected only for “clear 27 and convincing” reasons. 28 Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) (citing Lester, 81 See Carmickle v. Comm’r, Soc. Sec. 16 1 F.3d at 830-31). 2 only “specific and legitimate reasons” for discounting it. 3 (citing Lester, 81 F.3d at 830-31). 4 not accept the opinion of any physician, including a treating 5 physician, if that opinion is brief, conclusory, and inadequately 6 supported by clinical findings.” 7 947, 957 (9th Cir. 2002); accord Batson v. Comm’r of Soc. Sec. 8 Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). 9 When it is contradicted, the ALJ must provide Id. Furthermore, “[t]he ALJ need Thomas v. Barnhart, 278 F.3d Social Security Administration regulations “permit claimants 10 to submit new and material evidence to the Appeals Council and 11 require the Council to consider that evidence in determining 12 whether to review the ALJ’s decision, so long as the evidence 13 relates to the period on or before the ALJ’s decision.” 14 v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1162 (9th Cir. 15 2012); see also § 416.1470(b). 16 considers new evidence in deciding whether to review a decision 17 of the ALJ, that evidence becomes part of the administrative 18 record, which the district court must consider when reviewing the 19 Commissioner’s final decision for substantial evidence.” 20 682 F.3d at 1163; accord Taylor v. Comm’r of Soc. Sec. Admin., 21 659 F.3d 1228, 1232 (9th Cir. 2011); see also Borrelli v. Comm’r 22 of Soc. Sec., 570 F. App’x 651, 652 (9th Cir. 2014) (remand 23 necessary when “reasonable possibility” exists that “the new 24 evidence might change the outcome of the administrative 25 hearing”). Brewes “[W]hen the Appeals Council 26 27 28 17 Brewes, 1 2. 2 3 Relevant background i. Examining Physician Concepcion A. Enriquez In May 2011, Dr. Enriquez, who was “board eligible” in 4 internal medicine, examined Plaintiff at the Social Security 5 Administration’s request. 6 Plaintiff’s lumbar spine had tenderness and decreased range of 7 motion of 70 out of 90 degrees on trunk flexion. 8 had no muscle spasms, and straight-leg-raising tests were 9 negative. (Id.) (AR 244-47.) Dr. Enriquez found that (AR 246.) He Ranges of motion of the cervical spine and all 10 other joints were normal. 11 tone, 5/5 strength, intact sensation, and a normal gait. 12 246-47.) 13 disease at L5-S1.10 14 Plaintiff could lift and carry 100 pounds occasionally and 50 15 pounds frequently, stand and walk for six hours and sit for six 16 hours in an eight-hour day, and frequently bend, stoop, and 17 twist. 18 19 (Id.) Plaintiff had normal muscle (AR An x-ray taken that day showed only mild degenerative (AR 248.) Dr. Enriquez opined that (AR 247.) ii. Examining Physician Sharmin Jahan In June 2011, Dr. Jahan, a “board eligible” psychiatrist, 20 performed a complete psychiatric examination of Plaintiff at the 21 Social Security Administration’s request. 22 Jahan noted that Plaintiff had immigrated to the United States 23 from Armenia 23 years earlier. 24 that two years before that, several of his family members had 25 been killed in an earthquake in Armenia, and he had been trapped (AR 284.) (AR 283-88.) Dr. Plaintiff reported 26 27 10 28 normal. In 1996, x-rays of Plaintiff’s lumbosacral spine were (AR 231.) 18 1 in rubble for five days before being rescued. 2 he reported, he had experienced depression, lack of 3 concentration, flashbacks, numbness, bad dreams, and symptoms of 4 disassociation. 5 (Id.) Since then, (Id.) Plaintiff received Paxil11 through his primary-care 6 physician but denied ever having seen a psychiatrist or therapist 7 or being in a psychiatric hospital. 8 that he was able to eat, dress, and bathe independently and could 9 “do some household chores, errands, shopping and cooking with his 10 wife’s help.” 11 bus for transportation. 12 (AR 285.) (AR 284-85.) He reported He managed his own money and took the (Id.) Upon examination, Dr. Jahan found that Plaintiff was clean, 13 appropriately dressed, and slightly disheveled. 14 mood was anxious and depressed, his affect was blunted, and he 15 had poor eye contact. 16 were normal: he found that Plaintiff was calm and not restless; 17 directable, focused, and not distractable; and alert and 18 oriented. 19 perceptual disturbances and had logical thoughts, intact 20 attention and immediate recall, fairly intact past memories, 21 average general fund of knowledge, and fair insight and judgment. 22 (AR 286-87.) 23 was interested in the interview. 24 (Id.) (Id.) (AR 286.) His All of Dr. Jahan’s other findings Plaintiff denied hallucinations and other He was able to express his own personal history and (AR 286.) Dr. Jahan diagnosed moderate posttraumatic stress disorder 25 26 27 28 11 Paxil is a selective serotonin reuptake inhibitor used to treat depression and other conditions. Paroxetine, MedlinePlus, https://www.nlm.nih.gov/medlineplus/druginfo/meds/a698032.html (last updated Nov. 15, 2014). 19 1 and a global assessment of functioning (“GAF”) score of 60.12 2 (AR 287.) 3 remember, and perform simple tasks but was moderately limited in 4 his ability to understand and follow complex and detailed 5 instructions; interact with coworkers, colleagues, and 6 supervisors; and maintain concentration, attention, persistence, 7 and pace. 8 workplace stress was “limited.” 9 with continuation of treatment [Plaintiff] would be able to cope She believed that Plaintiff was able to understand, (Id.) She believed Plaintiff’s ability to cope with (Id.) Dr. Jahan “expected that 10 well and would be able to maintain his stability.” 11 believed his prognosis was “fair” and that he was capable of 12 managing his own funds. 13 She (AR 288.) iii. Consulting Physicians R.E. Brooks and R. 14 15 (Id.) Tashjian In July 2011, Dr. Brooks, who specialized in psychiatry, 16 reviewed Dr. Jahan’s evaluation and the CDI report and completed 17 a psychiatric-review-technique form.13 (AR 289-300.) Dr. Brooks 18 19 20 21 22 23 24 25 26 27 28 12 A GAF score of 51 to 60 indicates moderate symptoms or difficulty in social, occupational, or school functioning. See Diagnostic and Statistical Manual of Mental Disorders (“DSM-IV”) 34 (revised 4th ed. 2000). The Commissioner has declined to endorse GAF scores, Revised Medical Criteria for Evaluating Mental Disorders and Traumatic Brain Injury, Fed. Reg. 50764-65 (Aug. 21, 2000) (codified at 20 C.F.R. pt. 404) (GAF score “does not have a direct correlation to the severity requirements in our mental disorders listings”), and the most recent edition of the DSM “dropped” the GAF scale, citing its lack of conceptual clarity and questionable psychological measurements in practice. Diagnostic and Statistical Manual of Mental Disorders 16 (5th ed. 2012). 13 Drs. Brooks’s and Tashjian’s electronic signatures include a medical specialty code of 37, indicating psychiatry. (continued...) 20 1 determined that Plaintiff’s posttraumatic stress disorder was not 2 severe and resulted in no restriction of activities of daily 3 living and no difficulties in maintaining social functioning, 4 concentration, persistence, or pace. 5 opined that Dr. Jahan’s “[o]ne-time” evaluation did “not give a 6 total picture of [Plaintiff’s] mental status” and that the CDI 7 report was “given the controlling weight as it showed extensive 8 report on [Plaintiff’s] capability to function.” 9 (AR 289, 292, 297.) He (AR 299.) In September 2011, Dr. Tashjian, who also specialized in 10 psychiatry, reviewed the record and agreed that Plaintiff’s 11 posttraumatic stress disorder was not severe. 12 311.) 13 14 iv. (AR 301, 305, Treating Physician Gevorkian In a March 2012 note, Dr. Gevorkian, who specialized in 15 psychiatry, stated that Plaintiff had been under his care since 16 February 2012 and suffered from “major depression and PTSD for 17 which [he] is taking psychotropic medications.” 18 (AR 312.) In May 2012, Dr. Gevorkian completed a Mental Disorder 19 Questionnaire, noting that he had seen Plaintiff monthly since 20 February 1, 2012. 21 reported having low energy, decreased concentration, decreased 22 appetite, insomnia, and feelings of hopelessness and 23 worthlessness. 24 (AR 344-49.) He stated that Plaintiff (AR 344.) Dr. Gevorkian noted that Plaintiff “always appears 25 26 27 28 13 (...continued) (AR 289); see Program Operations Manual System (“POMS”) DI 24501.004, U.S. Soc. Sec. Admin. (May 5, 2015), http:// policy.ssa.gov/poms.nsf/lnx/0424501004. 21 1 depressed, sad with psychomotor retardation.” 2 speech was delayed and slow, concentration “severely impaired,” 3 short- and long-term memories impaired, affect restricted, 4 thought process linear but slowed, and insight and judgment 5 impaired. 6 passive suicidal ideations, and borderline intellectual 7 functioning. 8 Plaintiff isolated himself, stayed home most of the time, and 9 needed assistance with daily chores. (AR 346, 348.) (AR 348.) His He had “paranoid type delusions,” (AR 346, 348.) As a result of his symptoms, (AR 345.) He had 10 difficulty communicating with family members and did not interact 11 with neighbors or friends. 12 oral and written directions but was unable to carry them out 13 because he was depressed. 14 Plaintiff could not adapt to workplace stressors such as making 15 decisions and interacting with others. 16 diagnosed major depressive disorder with paranoia, posttraumatic 17 stress disorder, anxiety disorder, and a GAF score of 45 to 50.14 18 (AR 347.) 19 that he was not competent to manage his funds. 20 21 (Id.) (Id.) Plaintiff understood simple Dr. Gevorkian believed that (Id.) Dr. Gevorkian He believed Plaintiff’s prognosis was “guarded” and v. (Id.) Treating Physician Karapetian In March 2012, Dr. Karapetian wrote a note stating that 22 Plaintiff had been under his care since 2003 and that his 23 “current diagnoses” were hypertension, lumbar spondylosis, 24 depression, anxiety, hyperlipidemia, and gastroesophageal reflux 25 disease. (AR 313.) 26 27 14 28 A GAF score of 41 to 50 indicates “serious symptoms.” DSM-IV 34. 22 1 In June 2013, seven months after the ALJ issued her opinion, 2 Dr. Karapetian wrote a letter stating that Plaintiff had been 3 under his care since 2003 and was disabled due to hypertension, 4 lumbar spondylosis with neuropathy, lumbago, history of back 5 trauma, depression, anxiety, hyperlipidemia, history of hernia, 6 lower extremity venous insufficiency, history of 7 nephrolithiasis,15 peripheral vascular disease, aortic 8 regurgitation, tricuspidal and mitrial valve mild stenosis, and 9 gastroesophageal reflux disease. 3. 10 11 (AR 351.) Analysis The ALJ summarized the medical evidence and concluded that 12 Plaintiff retained the RFC for medium work with frequent bending, 13 stooping, and twisting. 14 “great weight” to Drs. Enriquez’s, Brooks’s, and Tashjian’s 15 opinions, finding that they comported with “the objective 16 findings in the record” and Plaintiff’s “statements regarding his 17 capacity to perform daily activities.” 18 accorded “great weight” to Dr. Jahan’s “clinical notes and 19 finding” but “less weight” to her conclusion that Plaintiff had 20 some moderate work restrictions. (AR 27-28.) 21 Gevorkian’s opinion “no weight.” (AR 28.) 22 discussed below, the ALJ did not err in assessing the medical 23 evidence. (AR 26, 30.) In doing so, she accorded (AR 30.) The ALJ The ALJ gave Dr. For the reasons 24 25 26 27 28 15 Nephrolithiasis is the medical term for kidney stones. Kidney Stones, Mayo Clinic, http://www.mayoclinic.org/ diseases-conditions/kidney-stones/basics/definition/con-20024829 (last updated Feb. 26, 2015). 23 1 2 i. Dr. Karapetian After the ALJ rendered her unfavorable decision, Plaintiff 3 submitted to the Appeals Council Dr. Karapetian’s June 2013 4 letter stating that Plaintiff was “disabled” because of 14 5 different medical conditions. 6 Council considered the June 2013 letter and made it part of the 7 administrative record (see AR 1-5), the Court considers it in 8 determining whether substantial evidence supports the ALJ’s 9 decision. (AR 351.) See Brewes, 682 F.3d at 1163. Because the Appeals As discussed below, 10 remand is not necessary because Dr. Karapetian’s brief, 11 unsupported statement does not undermine the ALJ’s determination 12 that Plaintiff was not disabled. 13 Colvin, 524 F. App’x 334, 336 (9th Cir. 2013) (remand not 14 warranted when new evidence did not “sufficiently undermine[]” 15 ALJ’s ruling). 16 (See AR 351); see Boyd v. As an initial matter, Dr. Karapetian’s opinion simply stated 17 that Plaintiff was “disabled” without listing any specific 18 functional limitations or explaining how Plaintiff’s impairments 19 limited his ability to work. 20 that a person is “disabled” is not binding on the ALJ or entitled 21 to any special significance. 22 by a medical source that you are ‘disabled’ or ‘unable to work’ 23 does not mean that we will determine that you are disabled.”); 24 SSR 96-5p, 1996 WL 374183, at *5 (treating-source opinions that 25 person is disabled or unable to work “can never be entitled to 26 controlling weight or given special significance”). 27 28 A physician’s conclusory statement See § 416.927(d)(1) (“A statement Moreover, as the ALJ found, Dr. Karapetian’s notes largely contained “nothing more than subjective complaints with no 24 1 clinical notations other than reiterations that [Plaintiff’s] 2 blood pressure was under control.”16 3 F.3d at 957 (ALJ “need not accept the opinion of . . . a treating 4 physician” if it is “brief, conclusory, and inadequately 5 supported by clinical findings”); Tonapetyan v. Halter, 242 F.3d 6 1144, 1149 (9th Cir. 2001) (when ALJ properly discounted 7 claimant’s credibility, he was “free to disregard” doctor’s 8 opinion that was premised on claimant’s subjective complaints). 9 Indeed, Dr. Karapetian’s notes are very brief, mainly noting on (AR 28); see Thomas, 278 10 check-off forms Plaintiff’s complaints of depressed mood, back 11 pain, heartburn, and, occasionally, cold symptoms or heart 12 palpitations.17 13 2012 decision, Dr. Karapetian also recorded Plaintiff’s 14 complaints of anxiety, and in May 2012, he recorded Plaintiff’s In a few notes issued after the DRO’s January 15 16 17 18 16 The ALJ stated that the record contained only four of Dr. Karapetian’s treatment notes from 2011 and four from 2012 (AR 28), but in fact, the record contains five notes from 2011 (see AR 271-81, 340) and four from 2012 (AR 336-39) as well as seven from 2010 (AR 258-70). 19 17 20 21 22 23 24 25 26 27 28 (See AR 259 (Jan. 2010, feels better but complains of depressed mood), 258 (Feb. 2010, feels better but complains of depressed mood), 260 (Mar. 2010, complains of low-back pain and depressed mood), 264 (May 2010, complains of depressed mood and low-back pain “off and on”), 262 (July 2010, complains of depressed mood, low-back pain, and “brittle fingernail”), 268 (Oct. 2010, complains of depressed mood that was improving with treatment, back pain, heartburn, and nausea), 269 (Dec. 2010, feels “well” but complains of depressed mood, heartburn, back pain), 271 (Jan. 2011, complains of depressed mood, back pain, heartburn, bloating, cough, and heart palpitation), 274 (Mar. 2011, complains of depressed mood, back pain, bloating, and heartburn), 277 (Apr. 2011, complains of back pain, heart palpitations, depression, and heartburn), 280 (June 2011, complains of back pain, depression, and heartburn), 340 (Sept. 2011, complains of back pain, depression, and heartburn).) 25 1 complaints of muscle pain, muscle spasm, and decreased range of 2 motion of the back.18 3 supporting clinical findings; he generally indicated in the 4 “objective” section of his notes only that Plaintiff had varicose 5 veins and spine tenderness. 6 278, 281; see also AR 272 (noting spine tenderness and cold 7 symptoms); cf. AR 275 (Mar. 2011, noting spine tenderness and 8 decreased range of motion).) 9 Dr. Karapetian recorded very few (See AR 258-60, 262, 264, 267, 270, Dr. Karapetian’s June 2013 letter also conflicts with his 10 March 2012 letter and his own treatment notes. See Valentine v. 11 Comm’r, Soc. Sec. Admin., 574 F.3d 685, 692-93 (9th Cir. 2009) 12 (contradiction between treating physician’s opinion and his 13 treatment notes constitutes specific and legitimate reason for 14 rejecting treating physician’s opinion). 15 2013 letter listed 14 medical conditions and stated that 16 Plaintiff was disabled (AR 351), but his March 2012 letter listed 17 only six medical conditions — hypertension, lumbar spondylosis, 18 depression, anxiety, hyperlipidemia, and gastroesophageal reflux 19 disease — and didn’t set out any limitations or conclude that he 20 was disabled (AR 313). 21 fail to reflect some of the additional conditions listed in the Dr. Karapetian’s June Dr. Karapetian’s treatment notes also 22 23 24 25 26 27 28 18 (See AR 336 (Jan. 2012, complains of back pain, anxiety, heart palpitation, heartburn, and depression), 338 (Feb. 2012, complains of back pain, anxiety, depression, and heartburn), 339 (Feb. 2012, complains of anxiety, depression, and heartburn), 337 (May 2012, complains of back pain, decreased range of motion of back, muscle spasm, muscle pain, anxiety, and depression).) 26 1 June 2013 letter.19 2 postdates the ALJ’s November 2012 decision by seven months and 3 includes diagnoses that were not reflected anywhere in the 4 earlier notes, it likely does not show Plaintiff’s condition 5 during the relevant time period. 6 relevant. 7 2013) (finding that “district court properly concluded that the 8 additional evidence [plaintiff] submitted to the Appeals Council 9 would not have changed the outcome in the case because it Indeed, given that the June 2013 letter As such, it is minimally See Quesada v. Colvin, 525 F. App’x 627, 630 (9th Cir. 10 post-dated the ALJ’s decision and therefore was not relevant”). 11 Finally, Dr. Enriquez’s opinion provides ample support for 12 the ALJ’s finding that Plaintiff could perform a limited range of 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19 Dr. Karapetian’s June 2013 letter stated that Plaintiff suffered from, among other things, neuropathy, history of hernia, lower extremity venous insufficiency, history of nephrolithiasis, peripheral vascular disease, aortic regurgitation, and tricuspidal and mitrial valve mild stenosis. (AR 351.) These diagnoses don’t appear in any of Dr. Karapetian’s treatment notes. (See AR 259 (Jan. 2010, hypertension, hyperlipidemia, lumbar spondylosis, gastroesophageal-reflux disease, and depression), 258 (Feb. 2010, same), 260 (Mar. 2010, same but adding “[f]ingemail [sic] deformity”), 264 (May 2010, hypertension, hyperlipidemia, lumbar spondylosis, and depression), 262 (July 2010, depression, fingernail deformity, hypertension, hyperlipidemia, lumbar spondylosis, gastroesophageal-reflux disease), 268 (Oct. 2010, no diagnosis listed), 270 (Dec. 2010, hypertension, “GERD,” depression, lumbar spondylosis, and other illegible conditions), 272 (Jan. 2011, palpitation, depression, common cold, “GERD,” lumbar spondylosis, and other illegible conditions), 275 (Mar. 2011, hypertension, depression, “GERD,” lumbar spondylosis, and another illegible condition), 278 (Apr. 2011, palpitation, hypertension, depression, “GERD,” lumbar spondylosis, and another illegible condition), 281 (June 2011, hypertension, depression, “GERD,” lumbar spondylosis, and another illegible condition), 340 (Sept. 2011, no diagnosis listed), 336 (Jan. 2012, same), 338 (Feb. 2012, same), 339 (Feb. 2012, same), 337 (May 2012, same).) 27 1 medium work. Dr. Enriquez examined Plaintiff and found that he 2 had tenderness in the lumbosacral spine area and decreased range 3 of motion on trunk flexion. 4 normal — for example, Plaintiff had a normal gait, intact 5 sensation, 5/5 strength, and normal ranges of motion of all other 6 joints. 7 mild degenerative disease at L5-S1. 8 those findings, Dr. Enriquez opined that Plaintiff could lift 100 9 pounds occasionally and 50 pounds frequently and stand and walk (AR 246-47.) (AR 246.) All other findings were And an x-ray taken that day showed only (AR 248.) Consistent with 10 for six hours and sit for six hours in an eight-hour day. 11 247.) 12 “some benefit of the doubt” and limited him to medium work. 13 30.) 14 Plaintiff and her findings were consistent with the objective 15 evidence, her opinion constitutes substantial evidence supporting 16 the ALJ’s decision. 17 that examining physician’s “opinion alone constitutes substantial 18 evidence, because it rests on his own independent examination of 19 [claimant]”); Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 20 1995) (opinion of nontreating source based on independent 21 clinical findings may itself be substantial evidence). 22 (AR The ALJ credited Dr. Enriquez’s opinion but gave Plaintiff (AR Because Dr. Enriquez personally observed and examined See Tonapetyan, 242 F.3d at 1149 (finding Plaintiff challenges the ALJ’s asserted failure to credit 23 Dr. Karapetian’s June 2013 opinion (see, e.g., J. Stip. at 12-13, 24 19 (arguing that ALJ should not have credited CDI report over Dr. 25 Karapetian’s June 2013 opinion that Plaintiff was totally 26 disabled), 28 (stating that ALJ erroneously “did not give any 27 weight to the findings of Dr. Karapetian who treated the 28 Plaintiff for over 12 years”); see also id. at 30-31), but as 28 1 discussed above, that opinion was never before the ALJ. 2 it postdated the ALJ’s decision by seven months and was submitted 3 directly to the Appeals Council. 4 has considered whether the ALJ’s decision was supported by 5 substantial evidence notwithstanding that report. 6 substantial evidence still supports the ALJ’s assessment of the 7 medical evidence, remand is not warranted. 8 Colvin, 588 F. App’x 725, 726-27 (9th Cir. 2014) (declining to 9 remand based on new evidence submitted to Appeals Council because (AR 1-5.) Rather, As such, the Court Because See Sullivan v. 10 even though “the new evidence supported [plaintiff’s] disability 11 allegations, substantial evidence still supported the ALJ’s 12 nondisability determination”). 13 14 ii. Dr. Gevorkian Dr. Gevorkian’s opinion conflicted with Dr. Jahan’s clinical 15 findings and Drs. Brooks’s and Tashjian’s opinions that 16 Plaintiff’s alleged psychiatric impairment was not severe. 17 such, the ALJ was required to provide only specific and 18 legitimate reasons for rejecting the opinion, which she did. 19 As As the ALJ noted (AR 28), Dr. Gevorkian first saw Plaintiff 20 in February 2012 — less than a month after the DHO denied 21 Plaintiff’s request for continued benefits — and he saw Plaintiff 22 only a couple more times before rendering his opinion, in May 23 2012.20 (AR 347.) The ALJ was entitled to consider Dr. 24 25 26 27 28 20 The ALJ stated that Dr. Gevorkian had been treating Plaintiff for only two months before rendering his opinion (AR 28), but it was actually just over three. (AR 347 (stating that first examination was on Feb. 1, 2012, last examination was on May 16, 2012, and frequency of visits was “monthly”).) Because (continued...) 29 1 Gevorkian’s brief, three-month treatment relationship with 2 Plaintiff when weighing his opinion. 3 (stating that ALJ will consider “[l]ength of the treatment 4 relationship and the frequency of examination”). 5 noted that Dr. Gevorkian’s opinion was not supported by any 6 treatment notes (AR 28), which was another permissible reason for 7 discounting it. 8 accept the opinion of . . . a treating physician” if it is 9 “brief, conclusory, and inadequately supported by clinical See § 416.927(c)(2)(i) The ALJ also See Thomas, 278 F.3d at 957 (ALJ “need not 10 findings”); § 416.927(c)(3) (“The more a medical source presents 11 relevant evidence to support an opinion, particularly medical 12 signs and laboratory findings, the more weight we will give that 13 opinion.”). 14 The ALJ also properly discounted Dr. Gevorkian’s opinion 15 because he “essentially took [Plaintiff’s] words as reasons to 16 support his claim [that Plaintiff] was disabled.” 17 Tonapetyan, 242 F.3d at 1149 (when ALJ properly discounted 18 claimant’s credibility, he was “free to disregard” doctor’s 19 opinion that was premised on claimant’s subjective complaints). 20 Given that minimal objective medical evidence in the record 21 supported Dr. Gevorkian’s assessed limitations, the ALJ 22 reasonably found that his opinion was based primarily on 23 Plaintiff’s subjective complaints. 24 below, moreover, the ALJ provided clear and convincing reasons (AR 28); see As discussed in Section C 25 26 27 28 20 (...continued) this was still a very brief treatment history that encompassed only a handful of visits, any error in the ALJ’s statement was harmless. See Stout, 454 F.3d at 1055 (nonprejudicial or irrelevant mistakes harmless). 30 1 2 for finding Plaintiff not credible. Finally, the ALJ was entitled to rely on Dr. Jahan’s 3 clinical findings and Drs. Brooks’s and Tashjian’s opinions 4 instead of Dr. Gevorkian’s. 5 consulting doctors’ opinions “agree[d] with the objective 6 findings in the record, as well as [Plaintiff’s] statements 7 regarding his capacity to perform daily activities.” 8 Indeed, Dr. Jahan’s only abnormal examination findings were that 9 Plaintiff had an “anxious and depressed” mood, blunted affect, The ALJ found that the examining and (AR 286-87.) (AR 30.) 10 and poor eye contact. 11 Plaintiff was otherwise normal: he was calm, directable, focused, 12 cooperative, and oriented, and he had spontaneous and fluent 13 speech; intact attention, recall, and memories; logical and 14 sequential thoughts; an average general fund of knowledge; and 15 fair insight and judgment. 16 ideation” or delusions. 17 findings that Plaintiff’s alleged psychological condition was not 18 severe were consistent with Dr. Jahan’s clinical findings and the 19 CDI report, which showed that Plaintiff was alert, oriented, 20 focused, and well-groomed and able to answer questions and recall 21 information, perform chores and prepare meals without assistance, 22 shop for groceries, use public transportation, use a county debit 23 card to buy food, and attend church twice a week. 24 As such, the ALJ was entitled to rely on Dr. Jahan’s clinical 25 findings and Drs. Brooks’s and Tashjian’s opinions. 26 Tonapetyan, 242 F.3d at 1149 (although “contrary opinion of a 27 non-examining medical expert does not alone constitute a 28 specific, legitimate reason for rejecting a treating or examining (Id.) (AR 286.) 31 Dr. Jahan found that He did not have “paranoid Drs. Brooks’s and Tashjian’s (AR 242-43.) See 1 physician’s opinion, it may constitute substantial evidence when 2 it is consistent with other independent evidence in the record”). 3 Plaintiff argues that the ALJ should have credited Dr. 4 Gevorkian’s opinion because it was supported by “clinical 5 observations.” 6 Gevorkian’s findings — such as that Plaintiff had “delayed” and 7 slow speech, “severely impaired” concentration, paranoid 8 delusions, slow thought process, impaired short- and long-term 9 memories, impaired insight and judgment, borderline intellectual (J. Stip. at 31-32.) But as discussed above, Dr. 10 functioning, and psychomotor retardation and needed help with 11 daily chores (AR 345-46, 348) — conflicted with Dr. Jahan’s 12 clinical findings, the CDI investigators’ observations, and 13 Plaintiff’s own reports of his daily activities. 14 light of the ALJ’s other stated reasons, the ALJ did not err in 15 crediting the other doctors’ medical opinions over Dr. 16 Gevorkian’s. 17 Remand is not warranted on this ground. 18 C. As such, and in 19 20 The ALJ Did Not Err in Discounting Plaintiff’s Credibility Plaintiff contends that the ALJ erred in discounting his 21 credibility. 22 1. 23 (J. Stip. at 12-13, 20-21, 25-26, 32-36.) Applicable law An ALJ’s assessment of symptom severity and claimant 24 credibility is entitled to “great weight.” See Weetman v. 25 Sullivan, 877 F.2d 20, 22 (9th Cir. 1989) (as amended); Nyman v. 26 Heckler, 779 F.2d 528, 531 (9th Cir. 1985) (as amended Feb. 24, 27 1986). 28 of disabling pain, or else disability benefits would be available “[T]he ALJ is not ‘required to believe every allegation 32 1 for the asking, a result plainly contrary to 42 U.S.C. 2 § 423(d)(5)(A).’” 3 Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). 4 Molina, 674 F.3d at 1112 (quoting Fair v. In evaluating a claimant’s subjective symptom testimony, the 5 ALJ engages in a two-step analysis. See Lingenfelter, 504 F.3d 6 at 1035-36. 7 has presented objective medical evidence of an underlying 8 impairment ‘[that] could reasonably be expected to produce the 9 pain or other symptoms alleged.’” “First, the ALJ must determine whether the claimant Id. at 1036 (quoting Bunnell 10 v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). 11 such objective medical evidence exists, the ALJ may not reject a 12 claimant’s testimony “simply because there is no showing that the 13 impairment can reasonably produce the degree of symptom alleged.” 14 Smolen, 80 F.3d at 1282 (emphasis in original). 15 If If the claimant meets the first test, the ALJ may discredit 16 the claimant’s subjective symptom testimony only if he makes 17 specific findings that support the conclusion. 18 Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). 19 affirmative evidence of malingering, the ALJ must provide “clear 20 and convincing” reasons for rejecting the claimant’s testimony. 21 Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (as 22 amended); Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 23 1102 (9th Cir. 2014). 24 (1) ordinary techniques of credibility evaluation, such as the 25 claimant’s reputation for lying, prior inconsistent statements, 26 and other testimony by the claimant that appears less than 27 candid; (2) unexplained or inadequately explained failure to seek 28 treatment or to follow a prescribed course of treatment; (3) the See Berry v. Absent a finding or The ALJ may consider, among other factors, 33 1 claimant’s daily activities; (4) the claimant’s work record; and 2 (5) testimony from physicians and third parties. 3 Comm’r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015) (as 4 amended); Thomas, 278 F.3d at 958-59. 5 finding is supported by substantial evidence in the record, the 6 reviewing court “may not engage in second-guessing.” 7 F.3d at 959. 8 2. Rounds v. If the ALJ’s credibility Thomas, 278 Relevant background In a February 4, 2011 disability report, Plaintiff wrote 9 10 that he was unable to work because of back pain, right-leg pain, 11 an eye injury, and anxiety. 12 completed that same day, he wrote, “I have back pain and I cannot 13 stay on my feet and I cannot work.” 14 activities included taking medicine, “do[ing] household chores,” 15 napping for one or two hours, watching T.V. for one or two hours, 16 showering, and eating meals. 17 only household chore was to take out the trash every other day, 18 which took about 10 minutes. 19 own meals because he “d[id] not know how to cook.” 20 no problems with personal care, handling money, or paying bills. 21 (AR 176, 178.) 22 or using public transportation, and shopped in stores for 23 groceries two or three times a week for 30 minutes at a time. 24 (AR 178.) 25 (Id.) 26 to list the places he went on a regular basis, such as “church,” 27 he wrote that he did not leave the house unless he needed to go 28 to the store. (AR 164.) In a function report (AR 175.) (AR 176.) (AR 177.) His daily He later wrote that his He did not prepare his (Id.) He had He went outside twice a day, traveled by walking Plaintiff did not drive because he did not have a car. He did not spend time with others. (Id.) 34 (AR 179.) When asked 1 Plaintiff wrote that because of his back pain, he could not 2 lift “heavy objects” and could walk for only five to seven 3 minutes before needing to rest for five minutes. 4 could not follow written instructions but could pay attention for 5 one or two hours and had “no trouble” following spoken 6 instructions. 7 or handling changes in his routine. 8 reported that he did not “get stressed out,” was “a very calm 9 person,” and did not have any unusual behavior or fears. (Id.) (AR 180.) He He had no problems with authority figures (AR 181.) Plaintiff (Id.) 10 In June 2011, Plaintiff reported to Dr. Jahan that he could 11 eat, dress, and bathe independently and could “do some household 12 chores, errands, shopping and cooking with his wife’s help.” 13 285.) 14 transportation. 15 (AR He managed his own money and took the bus for (Id.) At the November 27, 2012 hearing, Plaintiff testified that 16 he could not work because his back was “very weak” and he 17 couldn’t lift more than five pounds. 18 he was “very nervous,” cried, and got “angry” and “mad.” 19 51.) 20 wife would “write[] down stuff” for him to buy at the store. 21 54-55.) 22 55.) 23 for three or four hours. 24 (AR 50.) He testified that (AR Plaintiff “forg[o]t stuff” and had a “memory problem”; his He said that his “body gets weak” and “spasms.” (AR (AR Every day, he took medication and would “lay down to relax” (Id.) When the ALJ asked Plaintiff about the CDI investigators’ 25 observations of him walking and “jogging across the street,” 26 Plaintiff testified that he went to the store for food because he 27 “ha[d] to eat,” the store was “very close to the house,” and he 28 “ha[d] pains when [he] walk[ed]” and had to stop and rest. 35 (AR 1 2 3 52.) 3. Analysis The ALJ found that Plaintiff “established a foundation for 4 his basic symptoms” but that “the cumulative medical and lay 5 evidence shows that he can engage in sustained work activity at 6 the level assessed” in his RFC. 7 Plaintiff “not credible”).) 8 convincing reasons for finding Plaintiff not credible. 9 (AR 26; see also AR 29 (finding The ALJ provided several clear and The ALJ permissibly found that Plaintiff’s “conflicting, 10 contradicting statements” “adversely affect[ed] his credibility.” 11 (AR 26; see also AR 29 (discussing inconsistencies).) 12 example, in the February 2011 function report, Plaintiff wrote 13 that he did not make his own meals, his only household chore was 14 to take out the trash every other day (AR 177), he did “not leave 15 the house unless [he] need[ed] to go to the store” (AR 179), and 16 he couldn’t take “long walks” (AR 180). 17 earlier, in January 2011, Plaintiff had told CDI investigators 18 that he was able to prepare meals and perform household chores, 19 “including cleaning,” without assistance and that he “walk[ed] 20 approximately six city blocks with his wife, two times a week to 21 attend church.” 22 Plaintiff wrote that he was “a very calm person” and did “not get 23 stressed out” (AR 181), but in November 2012, he testified that 24 he was “very nervous,” got “angry” and “mad,” cried, and couldn’t 25 “control it” (AR 51, 54). 26 problems in the February 2011 function report (see AR 180 27 (leaving blank boxes for indicating problems with “memory,” 28 “completing tasks,” “concentration,” “understanding,” and (AR 242-43.) For But just one month Similarly, in February 2011, Plaintiff did not list any memory 36 1 “following instructions”), 177 (stating he didn’t need reminders 2 to complete chores, take medicine, or take care of personal 3 needs)), but at the hearing he testified that he couldn’t work in 4 part because of a “memory problem” (AR 54-55). 5 the record indicates that Plaintiff’s symptoms or impairments 6 worsened between February 2011 and November 2012. 7 contradictory accounts of his symptoms were a clear and 8 convincing reason for discounting his credibility. 9 278 F.3d at 958-59. 10 Nothing else in Plaintiff’s See Thomas, The ALJ found that Plaintiff’s “credibility was gravely 11 damaged by his own behavior and statements during an inquiry by 12 the [CDI unit].” 13 Plaintiff claimed to be totally disabled because of back pain (AR 14 175), stating that he couldn’t walk for more than five to seven 15 minutes before he had to rest for five minutes (AR 180). 16 investigators observed that he had a normal gait and could stand 17 and walk without difficulty. 18 visit, they observed him twice climb and descend two flights of 19 stairs without using handrails or showing any signs of pain, and 20 during another visit, they observed him walking at a moderate 21 pace, jogging across the street, and rapidly walking up two 22 flights of stairs, all with no sign of physical distress. 23 Although Plaintiff claimed to suffer from debilitating 24 psychological problems, the investigators observed that he was 25 alert, oriented, focused, and able to understand and answer 26 questions and recall information. 27 relying on the CDI report to discount Plaintiff’s credibility. 28 See Elmore, 617 F. App’x at 757 (ALJ may rely on evidence related (AR 28.) Indeed, in his function report, (AR 243.) 37 (Id.) But CDI Moreover, during one (Id.) The ALJ did not err in 1 to CDI investigations); Darmaryan, 2016 WL 1698252, at *8 (“The 2 courts have recognized that an ALJ may consider the findings of a 3 fraud investigation performed by the CDI when assessing a 4 claimant’s credibility.”). 5 The ALJ also found that the “record is replete with a myriad 6 of complaints supported by little objective evidence.” 7 Plaintiff claimed to be disabled by his back condition, but as 8 the ALJ noted (AR 26-27), Dr. Enriquez examined Plaintiff and 9 found only that he had tenderness in the spine area and some 10 decreased range of motion. 11 findings were normal — for example, Plaintiff had a normal gait, 12 intact sensation, 5/5 strength, and normal ranges of motion of 13 all other joints. 14 mild degenerative disease at one level. 15 also claimed to suffer from debilitating psychological 16 impairments, but as the ALJ found (AR 27-28), Dr. Jahan’s 17 clinical findings were mostly normal: Plaintiff was calm, 18 directable, focused, cooperative, and oriented, and he had 19 spontaneous and fluent speech; intact attention, recall, and 20 memories; logical and sequential thoughts; an average general 21 fund of knowledge; and fair insight and judgment (AR 283, 286- 22 87). 23 medical evidence in assessing Plaintiff’s subjective complaints 24 and his credibility. 25 (9th Cir. 2005) (“Although lack of medical evidence cannot form 26 the sole basis for discounting pain testimony, it is a factor 27 that the ALJ can consider in his credibility analysis.”); 28 Carmickle, 533 F.3d at 1161 (“Contradiction with the medical (Id.) (AR 246-47.) (AR 26.) All of her other And lumbar-spine x-rays showed only (AR 248.) Plaintiff The ALJ was entitled to consider the lack of objective See Burch v. Barnhart, 400 F.3d 676, 681 38 1 record is a sufficient basis for rejecting the claimant’s 2 subjective testimony.”); Lingenfelter, 504 F.3d at 1040 (in 3 determining credibility, ALJ may consider “whether the alleged 4 symptoms are consistent with the medical evidence”). 5 The ALJ also noted that although Plaintiff received Paxil 6 from his primary-care physician (AR 27), he “never sought mental 7 health treatment in all the 23 years he had allegedly been 8 suffering from major mental issues” but then “conveniently sought 9 mental health treatment for the first time a month after the 10 January 2012 reconsideration denying his request for continuing 11 disability benefits.” 12 June 2011 that Plaintiff denied having ever seen psychiatrist or 13 receiving psychotherapy and did not see therapist).) 14 record shows that before February 2012, Plaintiff’s only 15 treatment for his allegedly debilitating psychiatric problems was 16 an antidepressant prescribed by his primary-care physician. 17 (See, e.g., AR 258, 260, 262-66 (Dr. Karapetian’s notations that 18 Plaintiff’s medications included Zoloft or Paxil).)21 19 immediately after the DRO issued his January 12, 2012 decision 20 finding him no longer disabled (AR 80-89), Plaintiff sought 21 treatment from a psychiatrist, who prescribed three additional 22 psychiatric medications (AR 345 (Dr. Gevorkian noting that 23 Plaintiff’s current medications included Seroquel XR, Cymbalta, (AR 28; see AR 285 (Dr. Jahan noting in Indeed, the But almost 24 25 26 27 28 21 Zoloft is a selective serotonin reuptake inhibitor used to treat depression and other conditions. Sertraline, MedlinePlus, https://www.nlm.nih.gov/medlineplus/druginfo/ meds/a697048.html (last updated Nov. 15, 2014). 39 1 and Atarax).)22 2 credibility based on his unexplained failure to seek specialized 3 mental-health treatment for 23 years. 4 533 F.3d 1035, 1039 (9th Cir. 2008) (ALJ may discount claimant’s 5 testimony in light of “unexplained or inadequately explained 6 failure to seek treatment or to follow a prescribed course of 7 treatment”); SSR 96-7p, 1996 WL 374186, at *7 (claimant’s 8 statements “may be less credible if the level or frequency of 9 treatment is inconsistent with the level of complaints”); Molina, The ALJ did not err in discounting Plaintiff’s See Tommasetti v. Astrue, 10 674 F.3d at 1114 (ALJ permissibly discounted plaintiff’s 11 credibility in part because she was advised to seek counseling 12 but “failed to do so until after she applied for disability 13 benefits”).23 14 Plaintiff claims that the ALJ “erroneously concluded” that 15 he “was not disabled because he could do minor household chores 16 22 17 18 19 20 21 22 Seroquel XR is an antipsychotic used to treat schizophrenia. Quetiapine, MedlinePlus, https://www.nlm.nih.gov/ medlineplus/druginfo/meds/a698019.html (last updated Apr. 15, 2014). Cymbalta is a selective serotonin and norepinephrine reuptake inhibitor used to treat depression and generalized anxiety disorder. Duloxetine, MedlinePlus, https:// www.nlm.nih.gov/medlineplus/druginfo/meds/a604030.html (last updated Nov. 15, 2014). Atarax is an antihistamine used to treat conditions including anxiety. Hydroxyzine, MedlinePlus, https:// wwwqa.nlm.nih.gov/medlineplus/qa1/druginfo/meds/a682866.html (last updated Sept. 1, 2010). 23 23 24 25 26 27 28 The Ninth Circuit has held that “it is a questionable practice to chastise one with a mental impairment for the exercise of poor judgment in seeking rehabilitation,” Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996) (citation omitted); Regennitter v. Comm’r of Soc. Sec. Admin., 166 F.3d 1294, 1299300 (9th Cir. 1999), but here nothing indicates that Plaintiff’s failure to seek treatment from a psychiatrist or therapist “was attributable to [his] mental impairment rather than [his] own personal preference,” Molina, 674 F.3d at 1114. 40 1 such as cooking, cleaning, and grocery shopping.” (J. Stip. at 2 21.) 3 Plaintiff’s credibility because his descriptions of his daily 4 activities were inconsistent with each other, among other clear 5 and convincing reasons. 6 “difficulties” in “understanding the questions presented to him 7 at the hearing” support his account of his psychiatric symptoms. 8 (J. Stip. at 33, 35.) 9 the hearing, found that Plaintiff simply “feigned confusion” and But as discussed above, the ALJ validly discounted Plaintiff also argues that his But the ALJ, who observed Plaintiff during 10 gave “vague and unresponsive answers.” 11 also supported her credibility determination. 12 242 F.3d at 1148 (noting that ALJ may rely on his observations of 13 plaintiff at hearing as part of overall credibility 14 determination). 15 shows that Plaintiff gave rational answers to almost all the 16 questions and tended to hesitate primarily when the ALJ posed 17 difficult questions about the CDI investigators’ observations of 18 him walking, jogging, and climbing stairs without difficulty. 19 (See AR 50-56.) 20 (AR 29.) Those findings See Tonapetyan, In any event, a review of the hearing transcript Because substantial evidence in the record supports the 21 ALJ’s credibility determination, the reviewing court “may not 22 engage in second-guessing.” 23 not warranted on this ground. 24 25 26 D. Thomas, 278 F.3d at 959. Remand is Any Error in the ALJ’s Reliance on the VE’s Testimony Was Harmless Plaintiff contends that the VE’s testimony did “not provide 27 substantial evidence that [he] has the [RFC] to perform other 28 jobs in the national economy” because the VE “was not 41 1 specifically asked” how many of the identified jobs “would be 2 available for a person such as Plaintiff with a limited fluency 3 in English, a limited educational background, and physical and 4 mental impairments which make it difficult for [him] to follow 5 instructions and cope with workplace stress.” 6 Plaintiff further argues that this case is analogous to Pinto v. 7 Massanari, 249 F.3d 840 (9th Cir. 2001), because neither the ALJ 8 nor the VE addressed the impact of Plaintiff’s alleged illiteracy 9 on his ability to perform the identified jobs. (J. Stip. at 37.) (J. Stip. at 41.) 10 For the reasons discussed below, remand is not warranted on this 11 ground. 1. 12 13 Relevant background Plaintiff testified with the assistance of an interpreter at 14 the November 2012 hearing. (AR 44.) 15 During the hearing, the ALJ questioned Plaintiff as follows: 16 Q . . . [H]ow far did you get in school? 17 A 8th grade.24 18 Q Was that in the states, or in Armenia? 19 A Armenia. 20 Q And do you understand some English? 21 A Yes. 22 Q Okay, but a little bit. 23 A Yeah. 24 25 (AR 56.) The ALJ later presented the VE with a hypothetical “younger 26 27 24 28 As previously noted, some evidence in the record shows that Plaintiff completed the 12th grade. (See AR 234.) 42 1 individual, with an 8th grade education, but no past relevant 2 work” who was capable of medium work with only frequent bending, 3 twisting, and stooping and who was “illiterate in English.” 4 57.) 5 hand packager, DOT 920.587-018, 1991 WL 687916; cleaner II, DOT 6 919.687–014,25 1991 WL 687897; or industrial cleaner, DOT 7 381.687-018, 1991 WL 673258. 8 the hand-packager and cleaner II positions require Level 1 9 language skills and the industrial-cleaner position requires (AR The VE testified that such an individual could work as a (AR 57-58.) The DOT provides that 10 Level 2 language skills. 11 DOT 919.687–014, 1991 WL 687897; DOT 381.687-018, 1991 WL 673258. 12 After responding to three additional hypotheticals, the VE stated 13 that his testimony was consistent with the DOT. 14 See DOT 920.587-018, 1991 WL 687916; (AR 59.) In her November 2012 decision, the ALJ formulated an RFC for 15 a limited range of medium work without including any limitations 16 based on illiteracy. 17 determined that Plaintiff had a “limited education” and was “able 18 to communicate in English,” citing 20 C.F.R. § 416.964. 19 She summarized the VE’s testimony, found that it was “consistent 20 with the information contained in the [DOT],” and relied on it to 21 find that Plaintiff could perform work in the national economy. 22 (AR 31.) 23 disabled. (AR 26.) Later in the opinion, she (AR 30.) She therefore determined that Plaintiff was no longer (AR 31-32.) 24 25 26 27 28 25 Both the VE and the ALJ cited DOT 919.687–010 in reference to the cleaner II job (AR 31, 57), but the correct code is DOT 919.687–014. 43 1 2 2. Applicable law The DOT is the best source of information about how a job is 3 generally performed. See Carmickle, 533 F.3d at 1166; see also 4 Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995); 5 § 416.966(d)(1). 6 the requirements of a particular job, an ALJ must inquire whether 7 the testimony conflicts with the DOT. 8 F.3d 1149, 1152–53 (9th Cir. 2007) (citing SSR 00–4p, 2000 WL 9 1898704, at *4 (Dec. 4, 2000)). In order to rely on a VE’s testimony regarding Massachi v. Astrue, 486 When such a conflict exists, the 10 ALJ may accept VE testimony that contradicts the DOT only if the 11 record contains “persuasive evidence to support the deviation.” 12 Pinto, 249 F.3d at 846 (citing Johnson, 60 F.3d at 1435); see 13 also Tommasetti, 533 F.3d at 1042 (finding error when “ALJ did 14 not identify what aspect of the VE’s experience warranted 15 deviation from the DOT”). 16 According to the DOT, a person with Level 1 language 17 proficiency can “[r]ecognize [the] meaning of 2,500 (two- or 18 three-syllable) words”; read “95–120 words per minute”; 19 “[c]ompare similarities and differences between words and between 20 series of numbers”; “[p]rint simple sentences containing subject, 21 verb, and object, and series of numbers, names, and addresses”; 22 and “[s]peak simple sentences, using normal word order, and 23 present and past tenses.” 24 person with Level 2 language proficiency has a “[p]assive 25 vocabulary of 5,000–6,000 words” and can read “190–215 words per 26 minute”; “[r]ead adventure stories and comic books, looking up 27 unfamiliar words in dictionary for meaning, spelling, and 28 pronunciation”; “[r]ead instructions for assembling model cars See DOT, App. C, 1991 WL 688702. 44 A 1 and airplanes”; “[w]rite compound and complex sentences, using 2 cursive style, proper end punctuation, and employing adjectives 3 and adverbs”; and “[s]peak clearly and distinctly with 4 appropriate pauses and emphasis, correct punctuation, variations 5 in word order, using present, perfect, and future tenses.” 6 7 3. Id. Analysis As an initial matter, to the extent Plaintiff contends that 8 the ALJ erred by failing to include in her hypothetical to the VE 9 limitations on following instructions and dealing with workplace 10 stress (see J. Stip. at 37), that argument fails. 11 above, the ALJ properly weighed the medical evidence and 12 Plaintiff’s credibility in determining that he retained the RFC 13 for medium work with only frequent bending, stooping, and 14 twisting. 15 VE hypothetical limitations that were permissibly discounted. 16 See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005) 17 (“Preparing a function-by-function analysis for medical 18 conditions or impairments that the ALJ found neither credible nor 19 supported by the record is unnecessary.”); Batson, 359 F.3d at 20 1197 (ALJ not required to incorporate into RFC those findings 21 from treating-physician opinions that were “permissibly 22 discounted”); see also Yelovich v. Colvin, 532 F. App’x 700, 702 23 (9th Cir. 2013) (“Because the RFC was not defective, the 24 hypothetical question posed to the VE was proper.”). 25 As discussed The ALJ was not required to include in the RFC or the To the extent Plaintiff challenges the ALJ’s reliance on the 26 VE’s testimony that an illiterate person could perform jobs 27 requiring levels 1 and 2 language skills, remand is not 28 warranted. As an initial matter, a claimant is not per se 45 1 disabled simply because he is illiterate. 2 847. 3 DOT; thus, “[a] decision holding that illiterate individuals 4 could not perform Level 1 jobs would mean that illiteracy was a 5 per se disability under the DOT.” 6 C-09-1402-EDL, 2011 WL 11499, at *21 (N.D. Cal. Jan. 4, 2011) 7 (citing Lawson v. Apfel, 46 F. Supp. 2d 941, 945, 947 (W.D. Mo. 8 1998) (noting that “such a holding is illogical and would 9 directly contradict the Social Security regulations”)); see also 10 SSR 00-4p, 2000 WL 1898704, at *3 (Dec. 4, 2000) (“The DOT lists 11 maximum requirements of occupations as generally performed, not 12 the range of requirements of a particular job as it is performed 13 in specific settings.”). 14 See Pinto, 249 F.3d at Indeed, Level 1 is the lowest language level used in the Meza v. Astrue, No. Nevertheless, the VE’s testimony that an illiterate 15 individual could perform the jobs of hand packager, cleaner II, 16 and industrial cleaner arguably conflicted with the DOT because 17 those jobs involve Level 1 and Level 2 language skills, which 18 require at least the ability to recognize the meaning of 2500 19 words, read 95 words a minute, and write very simple sentences. 20 (AR 57-58); see DOT 920.587-018, 1991 WL 687916; DOT 919.687–014, 21 1991 WL 687865; DOT 381.687-018, 1991 WL 673258; Pinto, 249 F.3d 22 at 846-47 (finding conflict between DOT and VE testimony that 23 illiterate claimant could perform jobs with Level 1 language 24 skills); but see Meza, 2011 WL 11499, at *21 (finding no conflict 25 between DOT and VE testimony that illiterate non-English-speaking 26 person could perform jobs requiring Level 1 language skills). 27 The ALJ, moreover, failed to explain or elicit VE testimony 28 explaining how an illiterate person could perform jobs with such 46 1 requirements. 2 But any error in failing to resolve that apparent conflict 3 was harmless because the ALJ in fact never found that Plaintiff 4 was illiterate. 5 “limited education” and was “able to communicate in English,” 6 citing § 416.964. 7 as “the inability to read or write” and states that “[g]enerally, 8 an illiterate person has had little or no formal schooling.” 9 § 416.964(b)(1). To the contrary, she concluded that he had a (AR 30.) That regulation defines “illiteracy” It defines “marginal education” as “ability in 10 reasoning, arithmetic, and language skills which are needed to do 11 simple, unskilled types of jobs,” § 416.964(b)(3), and “limited 12 education” as “ability in reasoning, arithmetic, and language 13 skills, but not enough to allow a person with these educational 14 qualifications to do most of the more complex job duties needed 15 in semi-skilled or skilled jobs,” § 416.964(b)(3).26 16 explicit finding that Plaintiff had a “limited education” shows 17 that she did not believe him to be illiterate. 18 416.964 also states that the “[i]nability to communicate in 19 English” may be considered an “educational factor” because “it 20 may be difficult for someone who doesn’t speak and understand 21 English to do a job, regardless of the amount of education the The ALJ’s (AR 30.) Section 22 23 26 Section 416.964 defines one other category of educational background, “high school education and above,” which 24 25 26 27 28 means abilities in reasoning, arithmetic, and language skills acquired through formal schooling at a 12th grade level or above. We generally consider that someone with these educational abilities can do semi-skilled through skilled work. § 416.964(b)(4). 47 1 person may have in another language.” 2 however, specifically found that Plaintiff was able to 3 communicate in English. 4 § 416.964(b)(5). The ALJ, (AR 30.) The ALJ also pointed to evidence that supported her finding 5 regarding Plaintiff’s language skills. She noted that “[a]n 6 Armenian interpreter was present at the hearing” but that 7 Plaintiff “frequently answered questions before the interpreter 8 completed the translation of the undersigned’s questions, and 9 would say ‘yes’ to confirm the interpreter’s statements.” (AR 10 29.) 11 times during the hearing.” 12 the hearing that he was able to understand “some English.” 13 56.) 14 investigative interview was conducted with the aid of an Armenian 15 interpreter.” 16 psychiatric interview might have been conducted without the 17 assistance of an interpreter. 18 psychiatric report not indicating that Plaintiff was assisted by 19 interpreter and stating that Plaintiff was “[t]he source of 20 information for the evaluation”).) 21 She also noted that Plaintiff “spoke in English several (Id.) Indeed, Plaintiff admitted at (AR The ALJ also noted that nothing showed that “the CDI (AR 29.) And it appears that at least one (See AR 283 (Dr. Jahan’s Although Plaintiff claims to be unable to read English or 22 write anything other than his name in English (AR 163), the ALJ 23 found that he generally was not credible; moreover, Plaintiff 24 apparently was able to complete lengthy written disability and 25 function reports on his own and in English (see AR 163-74 26 (disability report completed in English and stating that person 27 completing report was “[t]he person who is applying for 28 disability”); 175-82 (function report completed in English and in 48 1 first person and listing Plaintiff as “person completing this 2 form”)). 3 difficulty communicating in English (see, e.g., AR 68 (DRO’s 4 checking of “no” under “ability to read/write/speak/understand 5 English” and noting “Interpreter”), 205 (field office worker’s 6 notation that Plaintiff spoke “limited English”), 244 (Dr. 7 Enriquez’s notation that Plaintiff was assisted by interpreter)), 8 the evidence reasonably supports the ALJ’s finding regarding 9 Plaintiff’s language skills, and the Court therefore must uphold Thus, although some evidence shows that Plaintiff had See Reddick, 157 F.3d at 720-21 (“If the evidence can 10 it. 11 reasonably support either affirming or reversing,” reviewing 12 court “may not substitute its judgment” for Commissioner’s). 13 The descriptions of the three identified jobs further 14 support the ALJ’s conclusion that Plaintiff could perform them. 15 A person performing the hand-packager job 16 [p]ackages materials and products manually, performing 17 any combination of following duties: 18 containers. Lines and pads crates and assembles cartons. 19 Obtains and sorts product. 20 around product. 21 conveyor. 22 fills containers from spout or chute. 23 and adjusts quantity. Nails, glues, or closes and seals 24 containers. containers, 25 products. 26 special arrangements or selections of product. 27 materials, products, and containers at each step of 28 packaging process. Cleans packaging Wraps protective material Starts, stops, and regulates speed of Inserts or pours product into containers or Labels Weighs containers container tags, Sorts bundles or filled containers. or Packs Inspects Records information, such as weight, 49 1 time, and date packaged. 2 920.587-018, 1991 WL 687916. 3 job interiors A person performing the cleaner II 4 [c]leans and exteriors of transportation 5 vehicles, such as airplanes, automobiles, buses, railroad 6 cars, and streetcars: 7 broom, cloth, mop, vacuum cleaner, and whisk broom. 8 Cleans windows with water, cleansing compounds, and cloth 9 or chamois. Cleans interior of vehicle, using Replenishes sanitary supplies in vehicle 10 compartments. Removes 11 exterior 12 equipment, or by spraying or washing vehicles, using 13 spraying equipment, brush or sponge. surfaces of 14 919.687-014, 1991 WL 687897. 15 dust, grease, vehicles, using and oil from steam-cleaning industrial-cleaner job working 16 [k]eeps 17 industrial establishment in clean and orderly condition, 18 performing 19 Transports raw materials and semifinished products or 20 supplies between departments or buildings to supply 21 machine 22 processing, using handtruck. 23 and handtrucks or other industrial equipment in neat and 24 orderly manner. 25 machines, overhead pipes, and conveyors, using brushes, 26 airhoses, or steam cleaner. 27 Scrubs processing tanks and vats. 28 water hose, and applies floor drier. any tenders areas And someone performing the in production combination or of operators departments following with of duties: materials for Arranges boxes, material, Cleans lint, dust, oil, and grease from Cleans screens and filters. 50 Cleans floors, using Picks up reusable 1 scrap for salvage and stores in containers. 2 381.687-018, 1991 WL 673258. 3 jobs require little to no reading and writing. 4 Thus, it appears that the three Plaintiff’s reliance on Pinto is misplaced. There, the ALJ 5 specifically found that the plaintiff was “illiterate in 6 English,” Pinto, 249 F.3d at 843 n.1, and the ALJ’s hypothetical 7 to the VE was accordingly based on an individual who was “neither 8 litera[te] in [E]nglish nor able to communicate in [E]nglish.” 9 Id. at 843 (alterations in original). The Ninth Circuit, 10 moreover, found that there was “no indication that [Plaintiff 11 knew] 2,500 words in English, the requirement to reach language 12 level ‘1’ in the [DOT] classifications.” 13 n.1. 14 illiterate; rather, she found that he had a “limited education” 15 and was able to communicate in English (AR 30), and those 16 findings were supported by substantial evidence. 17 does not apply. 18 Pinto, 249 F.3d at 843 Here, by contrast, the ALJ did not find that Plaintiff was As such, Pinto Because the ALJ never found that Plaintiff was illiterate, 19 her failure to resolve the conflict in the VE’s testimony that an 20 illiterate person could perform the identified jobs was 21 harmless.27 See Stout, 454 F.3d at 1055 (nonprejudicial or 22 23 24 25 26 27 28 27 Even if the ALJ erred in concluding that Plaintiff could perform the industrial-cleaner job, which requires Level 2 language skills, it was harmless because the other two jobs required only Level 1 skills and existed in sufficient numbers in the economy. (See AR 57-58 (VE testifying that 338,000 national and 6000 regional hand-packager jobs existed and 144,000 national and 2600 regional cleaner II jobs existed)); Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 529 (9th Cir. 2014) (finding 25,000 national jobs significant); Yelovich, 532 F. App’x at 702 (continued...) 51 1 irrelevant mistakes harmless); see also Rivera v. Colvin, No. CV 2 14-09217-KS, 2016 WL 94231, at *6-8 (C.D. Cal. Jan. 7, 2016) 3 (finding no conflict between DOT and VE’s testimony that person 4 with “somewhat limited ability to communicate in English” could 5 perform jobs requiring Level 1 language proficiency). 6 not warranted on this ground. 7 VI. 8 9 Remand is CONCLUSION Consistent with the foregoing, and under sentence four of 42 U.S.C. § 405(g),28 IT IS ORDERED that judgment be entered 10 AFFIRMING the decision of the Commissioner, DENYING Plaintiff’s 11 request for remand, and DISMISSING this action with prejudice. 12 IT IS FURTHER ORDERED that the Clerk serve copies of this Order 13 and the Judgment on counsel for both parties. 14 15 DATED: May 23, 2016 16 _______________ JEAN ROSENBLUTH U.S. Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28 27 (...continued) (finding 900 regional jobs significant); Thomas, 278 F.3d at 960 (finding 1300 jobs in state significant); Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999) (finding between 1000 and 1500 jobs in local area significant). 28 That 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.” 52

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