Christine Trinchere v. Michael J. Astrue, No. 5:2007cv01213 - Document 17 (C.D. Cal. 2008)

Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner and dismissing this action with prejudice. (esa)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 HRISTINA TRINCHERE, 12 Plaintiff, 13 v. 14 ICHAEL J. AS TRUE , ommissioner of the Social 15 ecurity Administration, 16 Defendant. ) NO. EDCV 07-01213 SS ) ) ) MEMORAUM DECISION AN ORDER ) ) ) ) ) ) ) ) 17 INTRODUCTION 18 19 20 plaintiff Christina Trinchere ("plaintiff") brings this action 21 seeking to overturn the decision of the commissioner of the Social 22 ecurity Administration (hereinafter the "commissioner" or the "Agency") 23 her application for Supplemental security Income ("SSI"). The 24 arties consented, pursuant to 28 U. S. C. § 636 (c), to the jurisdiction This matter is 25 f the undersigned United States Magistrate Judge. 26 efore the Court on the parties' Joint Stipulation ("Jt. Stip.") filed 27 n June 10, 2008. For the reasons stated below, the decision of the - -~~issioner is AFFIRMED. 1 PROCEDURAL HISTORY 2 3 Plaintiff filed an application for SSI benefits on January 5, 2005 4 (Administrative Record ("AR") 14, 27).1 She alleged a disability onset 5 ate of January 5, 2005 due to bipolar disorder. (AR 14-16,27). 6 7 The Agency denied Plaintiff's claim initially on April 12, 2005 and 8 reconsideration on May 24, 2005. (AR 14, 42-52). On October 26, 9 006 , Administrative Law Judge ("ALJ") Mason D. Harrell, Jr., conducted 10 hearing to review Plaintiff's claim. 11 enefits on December 4, 2006. (AR 14, 319). The ALJ denied (AR 11-23). Plaintiff sought review of 12 he ALJ's decision before the Appeals Council. (AR 9). On August 4, 13 007, the Appeals Council denied Plaintiff's request for review and the 14 LJ's decision became the final decision of the Commissioner. (AR 5) . 15 laintiff commenced the instant action on October 9, 2007. 16 17 FACTUAL BACKGROUN 18 19 Plaintiff was born on October 10, 1952 and was fifty-four years old 20 t the time of the hearing. (AR 27, 322). She has a Bachelor of Arts 21 egree in Psychology. (AR 322). Her relevant work includes employment 22 s a vocational specialist, teaching assistant, health information 23 services technician, student assistant, credit and collection agent, 24 25 26 disability 1 Plaintiff previously filed applications for SSI and insurance benefits on July 22, 2003 and February 11, 2004. (AR 65-68, 27 69-72) . These applications were denied initially econsideration. (AR 24-26, 54-58, 61-64). Plaintiff did 28 ursue these applications. 2 and upon not further 1 ccounts receivable/receptionist, administrative assistant, customer 2 service representative, and sales representative. (AR 154) . 3 4 Post-Hearinq Evidence 5 6 On December 11, 2006, after the ALJ issued his decision, Plaintiff 7 ubmitted a Work Capacity Evaluation (Mental) form to the Agency. (See 8 The form was completed by Dr. Dau Van Nguyen of the San 9 ernardino County Department of Behavioral Health ("SBC-DBH"). (See AR 10 The evaluation is a check-off form which indicates that Plaintiff 11 slight limitation in her ability to ask simple questions or 12 equest assistance. (AR 315). The form also noted that Plaintiff has 13 oderate limitations in her ability to remember locations and work-like 14 rocedures, understand and remember very short and simple instructions, 15 arry out very short and simple instructions, sustain an ordinary 16 outine without special supervision, make simple work-related decisions, 17 socially appropriate behavior, adhere to basic standards of 18 and cleanliness, and be aware of normal hazards and take 19 ppropriate precautions. (AR 315-16). The evaluation determined that 20 laintiff has marked limitations in her ability to maintain attention 21 nd concentration for extended periods, perform activities within a 22 schedule, maintain regular attendance, be punctual within customary 23 olerances, work in coordination with or in proximity to others without 24 eing distracted by them, interact appropriately with the general 25 ublic, accept instructions and respond appropriately to criticisms from 26 supervisors, get along with co-workers or peers without distracting them 27 r exhibiting behavioral extremes, and set realistic goals or make plans 28 independently of others. (Id.). 3 1 Relevant Medical Historv 2 3 Plaintiff received mental health services from SBC-DMH beginning in 4 ay 2000. (See AR 290-96). However, the record does not indicate that 5 laintiff' s treatment was consistent or regular until 2003. 6 7 On May 25, 2000, Dr. Donna Barrozo of SBC-DMH conducted a 8 edication Support Services Psychiatric Evaluation. (AR 294-96). In 9 his initial evaluation, Dr. Barrozo noted that Plaintiff's mood and 10 ffect was anxious, that she had slight but fair impulse control, a 11 ight thought process, hyper-verbal and sometimes pressured speech, and 12 Global Assessment of Functioning ("GAF") score of fifty. 2 (Id.). 13 14 On March 6, 2003, a treating marriage and family therapist, Amelia 15 avogo,3 completed a Care Necessity (Qualification for Services) form. 16 (AR 275). This check-off form noted that Plaintiff had a probability of 17 significant deterioration in an important area of life functioning and 18 19 2 A GAF score is the clinician's judgment of the individual's 20 verall level of functioning. It is rated with respect only to sychological, social, and occupational functioning, without regard to 21 impairments in functioning due to physical or environmental limitations. 22 ee American Psychiatric Association, Diagnostic and Statistical Manual f Mental Disorders, 32 (4th ed. 2000) (hereafter, "DSM IV") . 23 A rating of 41-50 on the GAF scale indicates "(sJ erious symptoms 24 (e.g., suicidal ideation, severe obsessional rituals, frequent 25 shoplifting) OR any serious impairment in social, occupational, or school functioning (e. g ., no friends, unable to keep a job) ." See DSM 26 IV, at 34. 27 28 3 The name of the marriage and family therapist is illegible in the ecord but Plaintiff reports that the clinician's name is Amelia Gavogo. (Jt. S tip. at 10). 4 1 hat planned interventions would address impairment conditions and 2 revent significant deterioration in an important area of life function. 3 (Id.). 4 5 Subsequent treating notes from SBC-DMH indicate that Plaintiff was 6 eing treated for bipolar disorder with medication, that she was not 7 or homicidal, that she denied auditory or visual 8 allucinations, and that there was no evidence of psychosis. (See e.g., 9 R 246, 308-09). 10 11 Vocational Expert's Testimonv 12 13 Vocational Expert ("VE") Sandra Fioretti testified at the October 14 6, 2006 hearing. (AR 349-50). The ALJ posed the following 15 ypothetical question: 16 17 All right, Ms. Fioretti, let's suppose someone that has 18 a high school or above education but they're limited to 19 simple, repetitive tasks in a habituated setting. That would 20 be just two or three steps of instructions. No safety 21 operations, no operation of hazardous machinery or being, 22 working around; and no requirements for hypervigilence. With 23 those limitations, could someone perform any of the 24 (Plaintiff'sJ past relevant work? 25 26 (AR 349). The VE responded that someone with the limitations described 27 ould not perform Plaintiff's past relevant work. (Id.). The ALJ then 28 ugmented his previous question by asking, " (TJ here would be no 5 1 ransferable skills . . (aJ nd can you identify any unskilled jobs that 2 ould be performed?" (Id. ). The VE responded that the hypothetical 3 erson could perform work as a office helper (D.O.T. 239.567-010), a 4 ashier (D.O.T. 211.462-010), and a cleaner (D.O.T. 381.687-018). (AR 5 Finally, the ALJ asked the VE, "Suppose in addition to the 6 imitations I gave the individual would miss work more than twice a 7 8 regular basis. (AR 350). Would that eliminate these and all other The VE testified that such a limitation would 9 liminate all work possibilities. (Id.). 10 11 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 12 13 To qualify for disability benefits, a claimant must demonstrate a 14 edically determinable physical or mental impairment that prevents her 15 from engaging in substantial gainful activity4 and that is expected to 16 esul t in death or to last for a continuous period of at least twelve 17 Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing 42 18 .S.C. § 423(d)(1)(A)). The impairment must render the claimant 19 of performing the work she previously performed and incapable 20 f performing any other substantial gainful employment that exists in 21 he national economy. Tackett v. Apfel, 180 F. 3d 1094, 1098 (9th Cir. 22 1999) (citing 42 U.S.C. § 423 (d) (2) (A)) . 23 24 25 26 27 4 Substantial gainful activity means work that involves doing 28 ignificant and productive physical or mental duties and is done for pay r profit. 20 C.F.R. §§ 404.1510, 416.910. 6 1 To decide if a claimant is entitled to benefits, an ALJ conducts a 2 five-step inquiry. 20 C.F.R. §§ 404.1520,416.920. The steps are as 3 follows: 4 5 ( i) Is the claimant presently engaged in substantial gainful 6 activity? If so, the claimant is found not disabled. If 7 not, proceed to step two. 8 (2) If not, the claimant is found not disabled. If so, proceed to step 9 three. 10 11 Is the claimant's impairment severe? (3 ) Does the claimant's impairment meet or equal one of list 12 of specific impairments described in 20 C.F.R. Part 404, 13 Subpart P, Appendix 1? If so, the claimant is found 14 disabled. If not, proceed to step four. 15 (4 ) Is the claimant capable of performing her past work? If 16 so, the claimant is found not disabled. If not, proceed 17 to step five. 18 (5 ) Is the claimant able to do any other work? If not, the 19 claimant is found disabled. If so, the claimant is found 20 not disabled. 21 22 ackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 23 953-54 (9th Cir. 2001) (citations omitted); 20 C.F.R. §§ 24 04.1520 (b) - (g) (1), 416.920 (b) - (g) (1) . 25 26 The claimant has the burden of proof at steps one through four, and 27 he Commissioner has the burden of proof at step five. Bustamante, 262 28 .3d at 953-54. If, at step four, the claimant meets her burden of 7 1 stablishing an inability to perform past work, the Commissioner must 2 how that the claimant can perform some other work that exists in 3 "significant numbers" in the national economy, taking into account the 4 laimant' s residual functional capacity ("RFC") 5, age, education, and 5 experience. Tackett, 180 F. 3d at 1098, 1100; Reddick, 1S7 F. 3d at 6 20 C.F.R. §§ 404.1520(g) (1), 416.920(g) (1). The Commissioner may 7 0 so by the testimony of a vocational expert or by reference to the 8 edical-Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart 9 , Appendix 2 (commonly known as "the Grids"). Osenbrock v. Apfel, 240 10 .3d 1157, 1162 (9th Cir. 2001). When a claimant has both exertional 11 (strength-related) and nonexertional limitations, the Grids are 12 inapplicable and the ALJ must take the testimony of a vocational expert. 13 oore v. A fel, 216 F.3d 864, 869 (9th Cir. 2000). 14 15 THE ALJ'S DECISION 16 17 The ALJ employed the five-step sequential evaluation process and 18 oncluded that Plaintiff was not disabled within the meaning of the 19 ocial Security Act. (AR 14-23). At the first step, the ALJ observed 20 hat Plaintiff had not engaged in substantial gainful activity since 21 anuary 5, 2005, the alleged onset date. (AR 16). Next, he found that 22 laintiff has the severe impairment of bipolar disorder. (Id.). At the 23 hird step, the ALJ found that the severe impairment at step two did not 24 eet or medically equal a listed impairment. (AR 20) . 25 26 27 5 Residual functional capacity is "the most (one) can still do espite (her) limitations" and represents an assessment "based on all 28 he relevant evidence in (one's) case record." 20 C.F.R. §§ 04.1545 (a), 416.945 (a) . 8 1 At step four, the ALJ found that Plaintiff retained the RFC to 2 erform work "involving simple repetitive tasks with two to three steps 3 f instructions, performed in a habituated setting." (AR 20). He 4 found Plaintiff unable to perform safety operations, could not 5 or work around hazardous machinery, and could not perform work 6 equiring hypervigilence. (Id.) . He concluded that Plaintiff was 7 nable to return to any of her past relevant work. (AR 21) . 8 9 Finally, at step five, the ALJ concluded that based on Plaintiff's 10 FC, age, education, work experience, and testimony by the VE, there are 11 that exist in significant numbers in the national economy that the 12 laintiff can perform. (AR 22). He found that, among these jobs, 13 laintiff could perform work as an office assistant, cashier, and 14 leaner. (Id.) . 15 16 STANAR OF REVIEW 17 18 Under 42 U. S. C. § 405 (g), a district court may review the 19 ommissioner's decision to deny benefits. The court may set aside the 20 ommissioner's decision when the ALJ's findings are based on legal error 21 r are not supported by substantial evidence in the record as a whole. 22 v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Smolen v. 23 80 F.3d 1273, 1279 (9th Cir. 1996). 24 25 "Substantial evidence is more than a scintilla, but less than a 26 reponderance." Reddick, 157 F. 3d at 720. It is "relevant evidence 27 hich a reasonable person might accept as adequate to support a 28 onclusion." Id. To determine whether substantial evidence supports a 9 1 finding, the court must ,,\ consider the record as a whole, weighing both 2 vidence that supports and evidence that detracts from the 3 (Commissioner's) conclusion.'" Aukland, 257 F. 3d at 1035 (quoting Penny 4 . Sullivan, 2 F. 3d 953, 956 (9th Cir. 1993)). If the evidence can 5 easonably support either affirming or reversing that conclusion, the 6 ourt may not substitute its judgment for that of the Commissioner. 7 eddick, 157 F. 3d at 720-21. 8 9 DISCUSSION 10 11 Plaintiff argues that the ALJ's decision should be overturned for 12 four reasons. First, she argues that the Appeals Council failed to 13 roperly consider the Work Capacity Evaluation (Mental) form prepared by 14 treating physician. (Jt. Stip. at 3-5). Second, Plaintiff alleges 15 failed to properly consider the psychiatric evaluation 16 ompleted by a treating physician. (Jt. Stip. at 7-8). Third, 17 laintiff contends that the ALJ did not properly consider the Care 18 Evaluation that was performed by a treating clinician. (Jt. 19 tip. at 10). Finally, Plaintiff claims that the ALJ posed an 20 incomplete hypothetical question to the VE. (Jt. Stip. at 11-12). The 21 ourt disagrees with Plaintiff's contentions. 22 23 Plaintiff's Claim That The Appeals Council Did Not Properly 24 Consider A Treatinq Physician's Opinion Does Not Warrant Remand 25 26 Plaintiff contends that the Work Capacity Evaluation (Mental) form 27 repared by Dr. Dau Van Nguyen, a treating physician, was not properly 28 onsidered by the Appeals CounciL. (Jt. Stip. at 3 - 5) . Plaintiff 10 1 ontends that the Appeals Council should have either remanded the matter 2 0 the ALJ for further consideration in light of Dr. Nguyen's opinion or 3 iven clear and convincing reasons for rejecting Dr. Nguyen's opinion. 4 (Id.). Plaintiff's claim does not warrant remand. 5 6 Although a treating physician's opinion is entitled to great 7 eference, it is "not necessarily conclusive as to either the physical 8 ondition or the ultimate issue of disability." Morqan v. Comm'r of 9 Admin., 169 F. 3d 595, 600 (9th Cir. 1999). If the treating 10 opinion is not contradicted by another doctor, it may be 11 only for "clear and convincing" reasons supported by 12 substantial evidence in the record. Lester v. Chater, 81 F.3d 821, 830 13 (9th Cir. 1995) (citing Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th 14 ir. 1991)). "Even when the treating doctor's opinion is contradicted 15 y the opinion of another doctor, the ALJ may not rej ect this opinion 16 ithout providing \ specific and legitimate reasons' supported by 17 substantial evidence in the record." Orn v. Astrue, 495 F.3d 625, 633 18 (9th Cir. 2007) (quoting Reddick, 157 F. 3d at 725). The ALJ can meet 19 his burden by setting forth a detailed and thorough summary of the 20 facts and conflicting clinical evidence. See Maqallanes v. Bowen, 881 21 .2d 747, 751, 753-55 (9th Cir. 1989) (noting that the court may draw 22 inferences from the ALJ's discussion of the evidence in the record that 23 eveal his rationale). 24 25 When applicable, the Appeals Council shall evaluate the entire 26 ecord, including new relevant evidence. Ramirez v. Shalala, 8 F.3d 27 1451-52 (9th Cir. 1993) (where the plaintiff submits evidence 28 fter the ALJ's decision and the Appeals Council specifically considers 11 1 hat evidence, "we consider the ruling of both the ALJ and the Appeals 2 ouncil," and the record for review includes the new evidence); see also 3 o C.F.R. §§ 404.970(b) & 416.1470(b). 4 5 Here, the Appeals Council's denied review of the ALJ's decision. 6 (AR 5). The Appeals Council indicated that it considered Dr. Nguyen's 7 valuation form and made it part of the record. (AR 5, 8). The Appeals 8 ouncil found that "this information does not provide a basis for 9 hanging the (ALJ's) decision." (AR 6). 10 11 Although the Appeals Council did not discuss Dr. Nguyen's 12 valuation form in detail, there was no error. The Appeals Council need 13 ot provide particular evidentiary findings when it rejects evidence 14 submitted subsequent to the ALJ's decision without accepting review. 15 omez v. Chater, 74 F. 3d 967, 972 (9th Cir. 1996). 16 17 Even if the Appeals Council had failed to properly consider Dr. 18 guyen' s evaluation form, the error would have been harmless as the 19 utcome would have been the same. See Curry v. Sullivan, 925 F. 2d 1127, 20 (9th Cir. 1990) (harmless error rule applies to review of 21 dministrative decisions regarding disability); Booz v. Sec'y of Health 22 nd Human Servs., 734 F.2d 1378, 1380-81 (9th Cir. 1984) (same). Dr. 23 guyen's evaluation form was a check-off report with no explanation for 24 is medical findings. (See AR 315-16). The Appeals Council was under 25 0 obligation to accept or credit a conclusory opinion such as that 26 ontained in the instant evaluation form. See Magallanes, 881 F. 2d at 27 751 (finding that the ALJ need not consider conclusory opinions); see 28 lso Crane v. Shalala, 76 F. 3d 251, 253 (9th Cir. 1996) (holding that 12 1 he ALJ properly rejected doctor's opinion because they were check-off 2 eports that did not contain any explanation of the bases of their 3 onclusions) . 4 5 Moreover, Dr. Nguyen's evaluation form was inconsistent with his 6 treating notes. Dr. Nguyen's treating notes indicate that Plaintiff 7 adequately complying with her medication treatment and that no 8 significant changes in medication were required. (See AR 302-13). The 9 otes also demonstrate that Plaintiff was receiving treatment every four 10 0 six weeks. (See id.). As such, Dr. Nguyen's notes regarding 11 laintiff's relatively conservative treatment appear to be inconsistent 12 of limitations Dr. Nguyen reports in the evaluation form. 13 Shalala, 60 F.3d 1428, 1433 (9th Cir. 1995) (holding ALJ 14 roperly rej ected uncontradicted opinion of treating physician that 15 laimant was totally disabled where physician also opined that claimant 16 "program of conservative care") . Accordingly, the Appeals 1 7 was not required to accept or credit Dr. Nguyen's evaluation 18 form. 19 20 Further, Dr. Nguyen's evaluation form is contradicted by the 21 state agency reviewing physician, Dr. Gregg and the medical 22 xpert, Dr. J. Malancharuvil. Both Dr. Gregg and Dr. Malancharuvil 23 found that Plaintiff did not have any marked mental limitations and that 24 er condition was well-managed with medication. (See AR 221-35, 328-29, 25 332-34). 26 27 Finally, Plaintiff's activities belie Dr. Nguyen's evaluation form. 28 ong other things, Plaintiff completed a Bachelor's degree in 13 1 sychology during the time period she alleged she was disabled due to 2 ipolar disorder. (See AR 65-68, 69-72, 322). 3 4 In sum, the Appeals Council did not err by rejecting Dr. Nguyen's 5 valuation form. Even if the Appeals Council had erred, the error, if 6 ny, was harmless. Accordingly, Plaintiff's claim does not warrant 7 emand . 8 9 Plaintiff's Claim That The ALJ Did Not Properly Consider The 10 Treatinq Doctor's Psychiatric Evaluation Does Not Warrant Remand 11 12 Plaintiff alleges that Dr. Barrozo's May 25, 2000 Medication 13 upport Services Psychiatric Evaluation was not properly considered by 14 he ALJ. (See Jt. Stip. at 7-8). Specifically, Plaintiff complains 15 hat Dr. Barrozo's assessment of her GAF score was not considered by the 16 J. (Jt. Stip. at 9-10). Plaintiff's claim fails. 17 18 Here, the ALJ did not discuss the completed form nor did he offer 19 for rejecting it. Nonetheless, even if the ALJ had accorded 20 weight to this opinion, the result would be the same. Dr. 21 arrozo's evaluation was conducted approximately four and a half years 22 Plaintiff's SSI application at issue here. (See AR 73). 23 laintiff had previously applied for SSI and disability insurance 24 enefits on July 22, 2003 and February 11, 2004. (AR 65-68, 69-72). 25 he Agency determined that Plaintiff was not disabled through March 26 004. (AR 24-26, 54-58, 61-64). Plaintiff did not pursue these 27 pplications any further. The instant application alleged a disability 28 nset date of January 5, 2005. (AR 73). Accordingly, Dr. Barrozo' s 14 1 eport is not relevant to the ultimate issue, i.e., whether Plaintiff 2 as disabled as of January 2005. Any error, if it occurred at all, was 3 error as the outcome would have been the same. See 4 1129; Booz, 734 F. 2d at 1380- 81. 5 6 Moreover, Plaintiff's chief complaint, that the ALJ did not 7 onsider Dr. Barrozo's assessment of Plaintiff's GAF score, does not 8 arrant remand. GAF scores are not dispositive in social security 9 ases. See 65 Fed. Reg. 50746, 50765 (August 21, 2000) (GAF scores are 10 ot directly correlative to Social Security severity assessments). A 11 score is only intended to be used to plan treatment and measure its 12 impact. See DSMV iV, at 32. The ALJ's failure to reference the GAF 13 score does not, by itself, make the ALJ's assessment inaccurate. See 14 oward v. Comm'r of Social Securit , 276 F.3d 235, 241 (6th Cir. 2002) 15 ("While a GAF score may be of considerable help to the ALJ in 16 formulating the RFC, it is not essential to the RFC's accuracy. Thus, 17 he ALJ's failure to directly reference the GAF score in the RFC, 18 standing alone, does not make the RFC inaccurate."); see also Smith v. 19 strue, 2008 WL 495735, *7 n. 6 (E.D. Cal. Feb. 21, 2008) (citing 20 oward); Brewster v. Barnhart, 366 F. Supp. 2d 858, 876 (E.D. Mo. 2005) 21 (citing Howard) . 22 23 In sum, Plaintiff's contention that the ALJ's failure to discuss 24 he assessed GAF score warrants remand is not persuasive. Accordingly, 25 laintiff's claim fails. 26 \ \ 27 \ \ 28 \ \ 15 1 Plaintiff's Claim That The ALJ Did Not Properly Consider The 2 Treatinq Clinician's Care Necessity Evaluation Does Not Warrant 3 Remand 4 5 Plaintiff contends that the ALJ did not properly consider the Care 6 ecessity Evaluation that was performed by marriage and family 7 herapist, Amelia Gavogo. (Jt. Stip. at 10). Plaintiff's claim does 8 ot warrant remand. 9 10 Because therapists are "other sources" pursuant to 20 C. F. R. 11 section 404.1513 (d), an ALJ is entitled to accord them "less weight than 12 from acceptable medical sources." Gomez, 74 F.3d at 970-71.6 13 lthough the ALJ did not explicitly discuss or reject the therapist' s 14 ssessment, the ALJ's failure to address every single item in the 15 dministrative record does not constitute legal error. An ALJ need not 16 xpressly discuss all of the evidence presented. Howard ex rel. Wolff 17 . Barnhart, 341 F. 3d 1006, 1012 (9th Cir. 2003) (" (I) n interpreting the 18 vidence and developing the record, the ALJ does not need to discuss 19 very piece of evidence." (internal quotation marks and citations 20 mitted) ) . 21 22 Further, an ALJ is not required to discuss evidence that is neither 23 significant nor probative. Id. Here, Amelia Gavogo's Care Necessity 24 form is neither significant nor probative. The form was completed on 25 26 27 6 The Court notes that a therapist whose work is supervised by a hysician may constitute an acceptable medical source. See Gomez, 74 28 .3d at 971. However, it is unclear if Amelia Gavogo was being supervised by a physician. (See AR 275) . 16 1 arch 6, 2003, before Plaintiff's alleged disability onset date of 2 anuary 5, 2005. (See AR 73, 275) . Accordingly, Amelia Gavogo's Care 3 ecessity form is not relevant to the ultimate issue, i. e., whether 4 laintiff was disabled as of January 2005. Moreover, Amelia Gavogo's 5 are Necessity form is a check-off report used to determine whether a 6 atient is qualified for Medi-Cal benefits. (See AR 275). It does not 7 indicate that substantial clinical findings were made or relied upon. 8 (See id.); see also Batson, 359 F.3d at 1195 (rejecting a treating 9 hysician's opinion, in part, because it was "conclusory in the form of 10 check list" and "lack (ed) substantive medical findings to support 11 (the) conclusion."); Tonapetyan v. Comm'r of Soc. Sec., 242 F.3d 1144, 12 1149 (9th Cir. 2001) (an ALJ may discredit treating physicians' opinions 13 hat are conclusory, brief, and unsupported by the record as a whole) . 14 s such, the ALJ was not required to address the Care Necessity form. 15 16 Regardless, the ALJ specifically discussed Amelia's Gavogo's 17 reatment notes from March 6, 2003, the same date the Care Necessity 18 from was completed. (See AR 18; see also AR 275, 278). As such, it is 19 lear that the ALJ throughly reviewed the record and considered Amelia 20 avogo's opinion that Plaintiff had bipolar disorder in partial 21 emission. (See id.) . 22 23 In sum, the ALJ did not err in failing to discuss Amelia Gavogo's 24 are Necessity form. Accordingly, Plaintiff's claim does not warrant 25 emand. 26 \ \ 27 \ \ 28 \ \ 17 1 The ALJ Posed A Complete Hvpothetical To The VE 2 3 Plaintiff claims that the ALJ posed an incomplete hypothetical 4 uestion to the VE. (Jt. Stip. at 11-12). Specifically, Plaintiff 5 lleges that the ALJ's erroneously failed to incorporate the fact that 6 laintiff was found to have a GAF score of fifty and has a probability 7 f significant deterioration in an important area of life. (Jt. Stip. 8 12) . Essentially, Plaintiff is arguing that the ALJ failed to 9 incorporate the findings from Dr. Barrozo's May 25, 2000 Medication 10 upport Services Psychiatric Evaluation and therapist Amelia Gavogo's 11 arch 6, 2003 Care Necessity Form into his hypotheticaL. (See id.). 12 laintiff' s claim does not warrant remand. 13 14 In order for the VE' s testimony to constitute substantial evidence, 15 hypothetical question posed must "consider all of the claimant' s 16 imitations." Andrews, 53 F. 3d at 1044. However, the ALJ is not 17 equired to include limitations that are not supported by substantial 18 vidence. See Osenbrock, 240 F.3d at 1164-65¡ see also Rollins v. 19 261 F3d 853, 857 (9th Cir. 2001) ("Because the ALJ included 20 II of the limitations that he found to exist, and because his findings 21 ere supported by substantial evidence, the ALJ did not err in omitting 22 he other limitations that (the plaintiff) had claimed, but had failed 23 0 prove."). The limitations that Plaintiff suggests should have been 24 incorporated into the hypothetical question to the VE are not relevant 25 0 Plaintiff's RFC as of the January 5, 2005 disability onset date. 26 (See Discussion supra Parts B & C). Moreover, the other evidence in the 27 ecord did not support a finding of such limitations. As the asserted 28 18 1 imitations are not supported by substantial evidence, the ALJ was not 2 bligated to include them in his hypothetical question to the VE. 3 4 In sum, the ALJ included all of the limitations that he found to 5 xist in the hypothetical question. (See AR 349-50). As such, the ALJ 6 id not err by omitting the limitations found in Dr. Barrozo's May 25, 7 000 Medication Support Services Psychiatric Evaluation and therapist 8 elia Gavogo'S March 6, 2003 Care Necessity Form. Accordingly, 9 laintiff' s claim does not warrant remand. 10 11 CONCLUSION 12 13 Consistent with the foregoing, and pursuant to sentence four of 42 14 . S. C. § 405 (g) ,7 IT is ORDERED that judgment be entered AFFIRMING the 15 ecision of the Commissioner and dismissing this action with prejudice. 16 FURTHER ORDERED that the Clerk of the Court serve copies of this 17 rder and the Judgment on counsel for both parties. 18 20 /S/ 19 ATED: September 3, 2008. 21 22 SUZANE H. SEGAL UNITED STATES MAGISTRATE JUGE 23 24 25 26 27 28 7 This sentence provides: "The (district) court shall have power o enter, upon the pleadings and transcript of the record, a judgment ffirming, modifying, or reversing the decision of the Commissioner of ocial Security, with or without remanding the cause for a rehearing." 19

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