Donna Stalling v. Michael J. Astrue, No. 5:2007cv01677 - Document 21 (C.D. Cal. 2009)

Court Description: OPINION AND ORDER by Magistrate Judge Rosalyn M. Chapman: IT IS ORDERED that: (1) plaintiff's request for relief is denied; and (2) the Commissioner's decision is affirmed, and Judgment shall be entered in favor of defendant. See order for details. (hr)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 DONNA STALLING, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) No. EDCV 07-1677-RC OPINION AND ORDER 17 18 Plaintiff Donna Stalling filed a complaint on January 4, 2008, 19 seeking review of the decision denying her application for disability 20 benefits. 21 and the parties filed a joint stipulation on August 13, 2008. On June 2, 2008, the Commissioner answered the complaint, 22 23 BACKGROUND 24 I 25 On March 8, 2002, plaintiff applied for disability benefits under 26 the Supplemental Security Income program of Title XVI of the Social 27 Security Act ( the Act ), 42 U.S.C. § 1382(a), claiming an inability 28 to work since February 1, 1999, due to depression and diabetes. 1 Certified Administrative Record ( A.R. ) 13, 52-54, 63. The 2 plaintiff s application was initially denied on May 10, 2002, and was 3 denied again on December 31, 2003, following reconsideration. 4 24-27, 30-35. 5 which was held before Administrative Law Judge Joseph Schloss ( the 6 ALJ ) on December 16, 2004. 7 ALJ issued a decision finding plaintiff is not disabled. 8 The plaintiff appealed this decision to the Appeals Council, which 9 denied review on May 18, 2005. A.R. The plaintiff then requested an administrative hearing, A.R. 36, 394-419. On April 7, 2005, the A.R. 9-21. A.R. 5-8. 10 11 On July 15, 2005, plaintiff filed her first complaint seeking 12 review of the Commissioner s decision denying her application for 13 disability benefits, 14 I ),1 and on March 7, 2007, this Court granted plaintiff s request for 15 relief and remanded the matter to the Social Security Administration 16 under 42 U.S.C. § 405(g), sentence four. 17 Council, in turn, remanded the matter for further administrative 18 proceedings, A.R. 468-70, and on September 19, 2007, the ALJ held a 19 new administrative hearing. 20 ALJ again issued a decision finding plaintiff is not disabled, A.R. 21 420-35, and this decision is before the Court for review. Stalling v. Astrue, EDCV 05-0610-RC ( Stalling A.R. 501-26. A.R. 451-67. The Appeals On October 22, 2007, the 22 23 24 25 II The plaintiff, who was born on March 10, 1965, is currently 44 years old. A.R. 52, 397. She has an eleventh-grade education and has 26 27 28 1 Pursuant to Fed. R. Evid. 201, this Court takes judicial notice of relevant documents in Stalling I. 2 1 never worked. A.R. 64, 69, 397-98, 400. 2 3 4 This Court, in its Stalling I decision, summarized plaintiff s relevant medical evidence,2 as follows: 5 6 Between January 10, 2000, and October 9, 2003, plaintiff 7 received mental health treatment at the San Bernardino 8 County Department of Behavioral Health ( SBC Dept. ), where 9 she was prescribed various medications and group therapy. 10 On September 30, 2000, plaintiff was diagnosed with severe 11 recurrent major depressive disorder and her Global 12 Assessment of Functioning ( GAF ) was determined to be 45.3 13 On February 7, 2001, Michael Oliver, a licensed clinical 14 social worker, diagnosed plaintiff with recurrent moderate 15 major depression, determined her GAF to be 50, and opined 16 plaintiff had a moderate dysfunction rating due to 17 depression, a history of drug use, and because she can t 18 work and her children were taken away from her. 19 February 7, 2001, Jesse Devera, M.D., diagnosed plaintiff 20 with recurrent moderate major depression and prescribed Also on 21 2 22 23 24 25 26 27 28 Although plaintiff has both physical and mental complaints, plaintiff disputes only the ALJ s assessment of her mental complaints. Therefore, this decision, like Stalling I, addresses only plaintiff s mental complaints. 3 A GAF of 45-50 means that the plaintiff exhibits [s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or serious impairment in social, occupational, or school functioning (e.g. no friends, unable to keep a job). American Psychiatric Ass n, Diagnostic and Statistical Manual of Mental Disorders, 34 (4th ed. (Text Revision) 2000). 3 1 medication to her. [¶] On May 9, 2002, Kenneth D. Michael, 2 M.D., a nonexamining psychiatrist, diagnosed plaintiff as 3 having major depression, with no psychosis, and opined 4 plaintiff has mild restriction in her activities of daily 5 living, mild-to-moderate difficulties maintaining social 6 functioning, moderate difficulties maintaining 7 concentration, persistence or pace, and there was 8 insufficient evidence to ascertain whether plaintiff 9 experienced any episodes of decompensation. Dr. Michael 10 further opined plaintiff is moderately limited in her 11 ability to understand, remember, and carry out detailed 12 instructions and to interact appropriately with the general 13 public, but is otherwise not significantly limited. 14 Between May 21 and May 30, 2003, plaintiff was involuntarily 15 hospitalized at Community Hospital of San Bernardino ( SB 16 Hospital ), based on her suicidal ideations. 17 diagnosed with a schizoaffective disorder, depression, and a 18 past history of polychemical dependency, and she was 19 determined to have a GAF of 254 upon admission and a GAF of 20 60 upon discharge.5 [¶] She was On January 26, 2004, plaintiff was 21 4 22 23 24 25 26 A GAF of 25 means that the plaintiff s [b]ehavior is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) or inability to function in almost all areas (e.g., stays in bed all day; no job, home, or friends). American Psychiatric Ass n, Diagnostic and Statistical Manual of Mental Disorders, 34 (4th ed. (Text Revision) 2000). 5 27 28 A GAF of [55-]60 indicates [m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school 4 1 initially examined at the Riverside County Department of 2 Mental Health ( RCDMH ), where she was diagnosed with a 3 schizoaffective disorder, bipolar type, and began treatment. 4 On March 16, 2004, plaintiff was involuntarily hospitalized 5 at San Gorgino Memorial Hospital with suicidal ideations, 6 after holding a knife to her throat. 7 Riverside County Regional Medical Center ( Medical Center ), 8 where she remained involuntarily confined until March 22, 9 2004. She was transferred to Upon admission to the Medical Center, plaintiff was 10 diagnosed with a schizoaffective disorder and her GAF was 11 determined to be 40.6 12 medication, and when she was discharged, her GAF was 13 determined to be 65.7 14 again examined at RCDMH, where she was diagnosed with 15 recurrent moderate major depression and an unspecified Plaintiff was treated with On March 23, 2004, plaintiff was 16 17 18 functioning (e.g., few friends, conflicts with peers or coworkers). Id. 6 19 20 21 22 23 24 25 26 27 28 A GAF of 40 indicates [s]ome impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). American Psychiatric Ass n, Diagnostic and Statistical Manual of Mental Disorders, 34 (4th ed. (Text Revision) 2000). 7 A GAF of 65 indicates [s]ome mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 34 (4th ed. (Text Revision) 2000). 5 1 psychotic disorder, and her GAF was determined to be 50. 2 [¶] 3 licensed clinical psychologist, examined plaintiff and 4 conducted psychological testing on her. 5 diagnosed plaintiff with a schizoaffective disorder, by 6 history, determined her GAF to be 65, and concluded 7 plaintiff was malingering. 8 Campbell found plaintiff gave a poor effort on testing, the 9 Minnesota Multiphasic Personality Inventory was invalid, On January 13, 2005, Robin Rhodes-Campbell, Ph.D., a Dr. Rhodes-Campbell Specifically, Dr. Rhodes- 10 showing a strong possibility plaintiff was exaggerating or 11 feigning psychological symptoms, the test of memory 12 malingering showed plaintiff is likely malingering memory 13 deficits, and the Miller Forensic Assessment of Symptoms 14 Test indicated plaintiff was malingering psychiatric 15 symptoms. 16 have no impairment in understanding, remembering, and 17 carrying out short and simple or detailed instructions, 18 making judgments on simple work-related decisions, or 19 relating appropriately to the public, supervisors and co- 20 workers, but her ability to withstand the stress and changes 21 associated with an 8-hour workday and day-to-day work 22 activities is moderately impaired. Dr. Rhodes-Campbell concluded plaintiff should 23 24 Stalling I at 2:22-6:9 (footnotes renumbered; citations omitted). 25 26 Following remand, plaintiff submitted additional medical 27 evidence, which shows that on April 2, 2007, Nellie Anosa, M.D., a 28 psychiatrist at RCDMH, examined plaintiff and diagnosed her with a 6 1 non-psychotic recurrent major depressive episode and amphetamine 2 dependence, and determined plaintiff s GAF was 55. 3 Anosa observed that plaintiff was alert, coherent and oriented (x3) 4 with a neutral mood, average intelligence, and unimpaired judgment and 5 insight. 6 and no delusions or suicidal or homicidal ideations were noted. A.R. 495. A.R. 495-96. Dr. There was no evidence of auditory hallucinations Id. 7 8 9 Medical expert David M. Glassmire, Ph.D., a psychologist, testified at the 2007 administrative hearing that plaintiff has a 10 schizoaffective disorder and methamphetamine abuse, in remission, and 11 her condition does not meet or equal a listed impairment. 12 12. 13 activities of daily living, moderate difficulties maintaining social 14 functioning and concentration, persistence or pace, and has had one or 15 two episodes of decompensation. 16 opined plaintiff should be limited to simple repetitive tasks of two 17 or three steps and only occasional, non-intense contact with the 18 public, co-workers and supervisors, no hypervigilance and no 19 responsibility for the safety of other employees. A.R. 504- Dr. Glassmire opined plaintiff has a mild impairment in her A.R. 507-08. Dr. Glassmire also A.R. 508-09. 20 21 DISCUSSION 22 III 23 The Court, pursuant to 42 U.S.C. § 405(g), has the authority to 24 review the Commissioner s decision denying plaintiff disability 25 benefits to determine if his findings are supported by substantial 26 evidence and whether the Commissioner used the proper legal standards 27 in reaching his decision. 28 Cir. 2009); Bray v. Astrue, 554 F.3d 1219, 1222 (9th Cir. 2009). Bruce v. Astrue, 557 F.3d 1113, 1115 (9th 7 1 In determining whether the Commissioner s findings are supported 2 by substantial evidence, [this Court] must review the administrative 3 record as a whole, weighing both the evidence that supports and the 4 evidence that detracts from the Commissioner s conclusion. 5 v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Holohan v. Massanari, 6 246 F.3d 1195, 1201 (9th Cir. 2001). 7 reasonably support either affirming or reversing the decision, [this 8 Court] may not substitute [its] judgment for that of the 9 Commissioner. 10 Reddick Where the evidence can Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007), cert. denied, 128 S. Ct. 1068 (2008); Bray, 554 F.3d at 1222. 11 12 The claimant is disabled for the purpose of receiving benefits 13 under the Act if she is unable to engage in any substantial gainful 14 activity due to an impairment which has lasted, or is expected to 15 last, for a continuous period of at least twelve months. 16 § 1382c(a)(3)(A); 20 C.F.R. § 416.905(a). 17 burden of establishing a prima facie case of disability. 18 Shalala, 66 F.3d 179, 182 (9th Cir. 1995), cert. denied, 517 U.S. 1122 19 (1996); Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996). 42 U.S.C. The claimant bears the Roberts v. 20 Applying the five-step sequential evaluation process set forth in 21 22 the Stalling I decision, the ALJ found plaintiff has not engaged in 23 substantial gainful activity since her application date of March 8, 24 2002. 25 impairments of: 26 a hearing disorder (Step Two);8 however, she does not have an (Step One). The ALJ then found plaintiff has the severe a schizoaffective disorder, a depressive disorder and 27 8 28 In reaching these conclusions, the ALJ found plaintiff has mild limitations in the activities of daily living, 8 1 impairment or combination of impairments that meets or equals a 2 Listing. 3 relevant work. 4 can perform a significant number of jobs in the national economy; 5 therefore, she is not disabled. (Step Three). The ALJ next determined plaintiff has no past (Step Four). Finally, the ALJ determined plaintiff (Step Five). See A.R. 423-35. 6 7 8 9 IV A claimant s residual functional capacity ( RFC ) is what she can still do despite her physical, mental, nonexertional, and other 10 limitations. Mayes v. Massanari, 276 F.3d 453, 460 (9th Cir. 2001); 11 Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 12 the ALJ found plaintiff has the RFC to perform medium work,9 with the 13 following non-exertional limitations: Here, 14 15 The [plaintiff] can do simple repetitive tasks that are two 16 to three steps; she can have occasional contact with the 17 public, co-workers, and supervisors; she is precluded from 18 intense contact; she is precluded from tasks that require 19 hypervigilance or the safety of others; she should have no 20 jobs requiring quotas; and she should not be exposed on a 21 repetitive basis to loud noise or any tasks that require 22 fine hearing. 23 24 25 moderate difficulties maintaining social functioning and concentration, persistence or pace, and she has experienced one to two episodes of decompensation. 26 9 27 28 Under Social Security regulations, [m]edium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. 20 C.F.R. § 416.967(c). 9 1 A.R. 427. However, plaintiff contends the ALJ s decision is not 2 supported by substantial evidence because the ALJ did not properly 3 consider her testimony, lay witness evidence, and the 2001 opinion of 4 licensed clinical social worker Michael Oliver. 5 6 A. Credibility: 7 The plaintiff testified at the 2004 administrative hearing that 8 she cannot work due to depression, panic attacks, and stuff like 9 that. A.R. 400, 404. She stated she often hears voices telling her 10 to hurt herself, and she gets a bad panic attack every couple of 11 months. 12 administrative hearings that she is isolated and does not associate 13 with anybody, but just watches television or sleeps, A.R. 408, 412-13, 14 516-17, but she does not like to be by herself because she gets real 15 shaky and stuff[,] is often emotional and sometimes feels as though 16 other people are out to harm her. 17 also testified she has diabetes, back pain, arthritis in her left 18 knee, and she is completely deaf in her left ear. 19 The plaintiff testified in 2004 that when it gets cold, she cannot 20 move her left knee, and if she walks to the corner store, her knee 21 hurts, and she has to stop and rest before she gets there. 22 414. 23 difficulty sleeping, takes sleeping pills, and is always tired. 24 412, 516. A.R. 408-11. The plaintiff also explained at both A.R. 408-09, 412, 516. Plaintiff A.R. 404-07, 515. A.R. 405, Finally, plaintiff stated at both hearings that she has A.R. 25 26 Once a claimant has presented objective evidence she suffers from 27 an impairment that could cause pain or other nonexertional 28 // 10 1 limitations,10 the ALJ may not discredit the claimant s testimony 2 solely because the degree of pain alleged by the claimant is not 3 supported by objective medical evidence. 4 F.2d 341, 347 (9th Cir. 1991) (en banc); Moisa v. Barnhart, 367 F.3d 5 882, 885 (9th Cir. 2004). 6 subjective complaints are not credible, he must provide specific, 7 cogent reasons for the disbelief. 8 972 (9th Cir. 2006) (citations omitted); Orn v. Astrue, 495 F.3d 625, 9 635 (9th Cir. 2007). Bunnell v. Sullivan, 947 Thus, if the ALJ finds the claimant s Greger v. Barnhart, 464 F.3d 968, Factors that an ALJ may consider in weighing a 10 claimant s credibility include reputation for truthfulness, 11 inconsistencies in testimony or between testimony and conduct, daily 12 activities, and unexplained, or inadequately explained, failure to 13 seek treatment or follow a prescribed course of treatment. 14 F.3d at 636 (citations omitted); Thomas v. Barnhart, 278 F.3d 947, 15 958-59 (9th Cir. 2002). 16 establishing an objective basis for some degree of pain and related 17 symptoms, and no evidence affirmatively suggesting the claimant is 18 malingering, the ALJ s reasons for rejecting the claimant s testimony 19 must be clear and convincing. 20 Admin., 169 F.3d 595, 599 (9th Cir. 1999); Carmickle v. Comm r, Soc. 21 Sec. Admin., 533 F.3d 1155, 1160 (9th Cir. 2008). Orn, 495 Furthermore, if there is medical evidence Morgan v. Comm r of the Soc. Sec. 22 23 24 Here, the ALJ found plaintiff s statements concerning the intensity, persistence, and limiting effects of [her] symptoms are not 25 26 27 28 10 While most cases discuss excess pain testimony rather than excess symptom testimony, rules developed to assure proper consideration of excess pain apply equally to other medically related symptoms. Swenson v. Sullivan, 876 F.2d 683, 687-88 (9th Cir. 1989). 11 1 entirely credible for several reasons, including that the information 2 plaintiff provided in a daily activities questionnaire is inconsistent 3 with what she told Dr. Rhodes-Campbell. 4 supported by substantial evidence in the record. 5 For instance, although plaintiff stated in her questionnaire that she 6 just lies on the couch and watches television, A.R. 78, Dr. Rhodes- 7 Campbell reported plaintiff state[d] that she is able to do household 8 chores, run errands, shop, drive, cook, and dress and bathe herself. 9 A.R. 387. A.R. 428. This finding is A.R. 78-83, 387. An ALJ may properly rely on inconsistencies in a claimant s 10 statements to determine she is not a credible witness. See, e.g., 11 Bray, 554 F.3d at 1227 (ALJ properly found claimant not credible in 12 part when her testimony at administrative hearing contradicted her 13 statements to evaluating physician); Batson v. Comm r of the Soc. Sec. 14 Admin., 359 F.3d 1190, 1196 (9th Cir. 2004) (ALJ properly rejected 15 claimant s testimony based, in part, on contradictory statements 16 regarding his daily activities). 17 18 The ALJ also found plaintiff not to be credible because [t]here 19 is evidence of malingering and that the [plaintiff] exaggerates. 20 A.R. 433. 21 the record, particularly Dr. Rhodes-Campbell s conclusion that 22 plaintiff was malingering. 23 the claimant s tendency to exaggerate in rejecting her excess pain 24 testimony. 25 Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (per curiam). 26 Similarly, the ALJ properly cited plaintiff s very poor work 27 history, which stretched back over 15 years, A.R. 433, as a reason 28 supporting his adverse credibility determination. This finding also is supported by substantial evidence in A.R. 388-89. An ALJ may properly consider Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001); 12 See, e.g., Thomas, 1 278 F.3d at 959 (ALJ s finding that claimant had an extremely poor 2 work history and showed little propensity to work in her lifetime 3 supports adverse credibility determination); 20 C.F.R. § 416.929(c)(3) 4 (in assessing symptoms such as pain, fact-finder will consider all of 5 the evidence presented, including information about [the claimant s] 6 prior work record. . . . ). 7 8 9 Further, the ALJ found plaintiff was not a credible witness because she has received conservative treatment for all of her 10 physical complaints[,] consisting [solely] of medications. A.R. 432- 11 33. 12 contradicting this finding, it also supports the ALJ s adverse 13 credibility determination. 14 172 F.3d 1111, 1114 (9th Cir. 1999); Johnson v. Shalala, 60 F.3d 1428, 15 1434 (9th Cir. 1995). 16 determination were clear and convincing, sufficiently specific, and 17 supported by substantial evidence. 18 1181 (9th Cir. 2003); Thomas, 278 F.3d at 959. Since plaintiff has not identified any evidence in the record Parra, 481 F.3d at 751; Meanel v. Apfel, Thus, [t]he ALJ s reasons for his credibility Celaya v. Halter, 332 F.3d 1177, 19 20 B. Lay Witness Testimony: 21 Lay testimony as to a claimant s symptoms is competent evidence 22 that an ALJ must take into account, unless he or she expressly 23 determines to disregard such testimony and gives reasons germane to 24 each witness for doing so. 25 Cir. 2001); Bruce, 557 F.3d at 1115. 26 such competent lay evidence, and are an important source of 27 information about a claimant s impairments. 28 the Soc. Sec. Admin., 166 F.3d 1294, 1297 (9th Cir. 1999); Schneider Lewis v. Apfel, 236 F.3d 503, 511 (9th 13 Third party function reports are Regennitter v. Comm r of 1 v. Comm r of the Soc. Sec. Admin., 223 F.3d 968, 975 (9th Cir. 2000). 2 3 Plaintiff s daughter, Kimberly Orozco ( Kimberly ), testified at 4 the 2007 administrative hearing that plaintiff is always lying down 5 and sleeping. 6 people, has no friends, and sometimes cries for no reason. 7 22. 8 difficulties, such as misplacing pill bottles or the remote control. 9 A.R. 522-23. A.R. 517-21. Kimberly also testified plaintiff avoids A.R. 521- Additionally, Kimberly stated plaintiff also has some memory Another daughter, Victoria Orozco ( Victoria ), 10 completed a daily activity questionnaire in which she indicated 11 plaintiff typically spends her time lying on the couch and watching 12 television. 13 sociable and does not leave the house unless she has an appointment, 14 and she is forgetful and has problems concentrating. 15 Finally, Victoria indicated plaintiff often talks to herself, makes 16 weird noises with her mouth, and paces for no reason. A.R. 72-77. Victoria also indicated plaintiff is not A.R. 72-73, 76. A.R. 77. 17 18 Here, the ALJ considered the evidence presented by plaintiff s 19 daughters, but rejected Kimberly s testimony for the same reasons he 20 rejected plaintiff s testimony and rejected Victoria s questionnarie 21 because it was inconsistent with plaintiff s responses to Dr. Rhodes- 22 Campbell. 23 rejecting the third-party opinions. 24 Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir. 1998). A.R. 428. Thus, the ALJ provided germane reasons for Carmickle, 533 F.3d at 1164; 25 26 C. 27 Finally, plaintiff contends the ALJ s decision is not supported 28 Social Worker s Opinion: by substantial evidence because the ALJ failed to properly consider 14 1 the opinion of Michael Oliver, a licensed clinical social worker, who 2 completed an assessment of plaintiff on February 7, 2001, diagnosed 3 plaintiff as having recurrent moderate major depression, determined 4 plaintiff s GAF was 50, and opined plaintiff has a moderate 5 dysfunction rating due to depression and a history of drug use. 6 152-56. A.R. 7 8 9 Plaintiff contends that [a]lthough Mr. Oliver is not a physician or other acceptable medical source, his opinion may qualify as a 10 treating source since he was working in conjunction with a 11 psychiatrist. . . . 12 Mr. Oliver s statements and opinions as being encompassed by Dr. 13 Devera s opinions of the same date, see Stalling I at 12 n.9, it does 14 not benefit petitioner. 15 Dr. Devera s opinions and the SBC Dept. medical records in assessing 16 plaintiff s RFC, and, in so doing, specifically noted that those 17 records show plaintiff was doing well with medication compliance. 18 some dates she was more depressed and failed to follow up with her 19 appointments. 20 nightmares, but it was noted she was not in any acute distress during 21 this time period. 22 evidence refuting the ALJ s assessment of the SBC Dept. medical 23 records, which included Mr. Oliver s opinions and Dr. Devera s 24 opinions. 25 2001, she noted plaintiff was alert and oriented (x3), had no auditory 26 or visual hallucinations, no suicidal or homicidal ideations, was 27 pleasant and cooperative and in no distress, but had decreased 28 insight, a sad affect, and a depressed mood. Jt. Stip. at 21:12-16. Even if the Court treats To the contrary, the ALJ properly considered On She reported that she was doing well except for some A.R. 429. The plaintiff has not identified any In fact, when Dr. Devera examined plaintiff on February 7, 15 A.R. 150. On April 30, 1 2001, plaintiff was feeling better with an intact memory, was alert 2 and oriented (x3), had no auditory or visual hallucinations, no 3 suicidal or homicidal ideations, but had a sad affect and a depressed 4 mood. 5 Dept. are similar. 6 these notes and the SBC Dept. medical evidence, as well as Dr. 7 Glassmire s expert testimony and the opinions of examining physician 8 Dr. Rhodes-Campbell, the ALJ s RFC determination, and Step Five 9 determination, are supported by substantial evidence in the record.11 10 A.R. 148. The rest of plaintiff s treating notes from SBC A.R. 108-47. Since the ALJ properly addressed See Tonapetyan, 242 F.3d at 1149; Morgan, 169 F.3d at 600. 11 12 ORDER 13 IT IS ORDERED that: (1) plaintiff s request for relief is denied; 14 and (2) the Commissioner s decision is affirmed, and Judgment shall be 15 entered in favor of defendant. 16 17 DATE: July 22, 2009 18 /s/ Rosalyn M. Chapman ROSALYN M. CHAPMAN UNITED STATES MAGISTRATE JUDGE 19 20 11 27 Indeed, despite an administrative record of more than 500 pages, plaintiff cites only a single comment from Mr. Oliver as arguably inconsistent with the ALJ s RFC assessment. Yet, the ALJ was not required to specifically address Mr. Oliver s vague statement that plaintiff can t work, which, taken in context, appears to refer to plaintiff s complaints, rather than providing an objective assessment of disability. Mr. Oliver s statement, to the extent it can be read as opining plaintiff could not work in 2001, is neither significant nor probative since it is not supported by any subsequent records from SBC Dept. Cf. Carmickle, 533 F.3d at 1165 ( Medical opinions that predate the alleged onset of disability are of limited relevance. ). 28 R&R-MDO\07-1677.mdo 7/22/09 21 22 23 24 25 26 16

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