Patricia Harlow v. Michael J Astrue, No. 5:2008cv00151 - Document 14 (C.D. Cal. 2008)
Court Description: MEMORANDUM OF DECISION by Magistrate Judge Andrew J. Wistrich. The Commissioner's decision is affirmed. IT IS SO ORDERED. (mz)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 13 14 15 16 PATRICIA HARLOW, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of the Social ) Security Administration, ) ) Defendant. ) _____________________________________) Case No. EDCV 08-00151 AJW MEMORANDUM OF DECISION 17 18 Plaintiff filed this action seeking reversal of the decision of defendant, the Commissioner of the 19 Social Security Administration (the Commissioner ), denying her application for disability insurance 20 benefits. The parties have filed a Joint Stipulation ( JS ) setting forth their contentions with respect to each 21 disputed issue. 22 Administrative Proceedings 23 The parties are familiar with the procedural history of this case, which is summarized in the Joint 24 Stipulation. [See JS 2]. In a written hearing decision that constitutes the final decision of the Commissioner, 25 an administrative law judge ( ALJ ) found that plaintiff had severe impairments consisting of obesity, a 26 history of multi-system symptoms blamed on fibroymyalgia/chronic fatigue syndrome, depressive disorder, 27 and dependent personality disorder. [Administrative Record ( AR ) 14]. The ALJ found that through 28 December 31, 2003, the date her insured status expired, plaintiff retained the residual functional capacity 1 ( RFC ) to perform 2 light work except she was limited to standing and/or walking for 2 hours and sitting for 6 3 hours in an 8-hour workday. the claimant was able to occasionally stoop and bend. She was 4 able to climb stairs but she was precluded from climbing ladders, balancing, or working at 5 heights. due to the effects from medication, the claimant was limited to simple, repetitive 6 tasks. 7 [AR 15]. The ALJ further found that plaintiff s RFC precluded performance of her past relevant work but 8 did not prevent her from performing jobs available in significant numbers in the national economy. 9 Accordingly, the ALJ concluded that plaintiff was not disabled at through her date last insured. [JS 2; AR 10 21-22]. Standard of Review 11 12 The Commissioner s denial of benefits should be disturbed only if it is not supported by substantial 13 evidence or is based on legal error. Stout v. Comm r Social Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 14 2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). Substantial evidence means more than 15 a mere scintilla, but less than a preponderance. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 16 2005). It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. 17 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)(internal quotation marks omitted). The court is 18 required to review the record as a whole and to consider evidence detracting from the decision as well as 19 evidence supporting the decision. Robbins v. Soc. Sec. Admin, 466 F.3d 880, 882 (9th Cir. 2006); 20 Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). Where the evidence is susceptible to more than 21 one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld. 22 Thomas, 278 F.3d at 954 (citing Morgan v. Comm r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999)). 23 Discussion 24 Development of the record 25 Plaintiff contends that the ALJ inadequately developed the record by merely allud[ing] to the 26 results of psychological tests administered by plaintiff s treating psychiatrist, and by not taking steps to 27 augment the record in light of his observation that there were no interpretations of the test information 28 in the record. [See JS 3-9]. 2 1 The ALJ has a special duty to fully and fairly develop the record and to assure that the claimant's 2 interests are considered, even where, as here, the claimant is represented by counsel. Celaya v. Halter, 3 332 F.3d 1177, 1183 (9th Cir. 2003)(quoting Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983)); see 4 Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996). A claimant, however, retains the burden of proving 5 that he is disabled. Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001). The ALJ's duty to develop the 6 record further is triggered only when there is ambiguous evidence or when the record is inadequate to allow 7 for proper evaluation of the evidence. Mayes, 276 F.3d at 459-460 (rejecting the argument that the ALJ 8 breached his duty to develop the record as an impermissible attempt to shift the burden of proving disability 9 away from the claimant). 10 Dr. Kohut was plaintiff s treating psychiatrist from July 1998 through the date of the supplemental 11 hearing in September 2007. [AR 387-394, 412-420, 427-509]. His diagnoses were major depressive 12 disorder, recurrent, and dependent personality disorder. Prior to December 31, 2003, he prescribed mainly 13 the anti-depressant Wellbutrin SR; Effexor, Buspar, and Topamax were tried and discontinued. [AR 19, 14 176, 390, 465-468, 542-546]. Documents in the record indicate that Dr. Kohut or his staff administered the 15 following psychological tests to plaintiff: (1) the Minnesota Multiphasic Personality Inventory-2 ( MMPI- 16 2") in May 2000 and February 2003 [AR 447-448, 456-457]; (2) the Beck Depression Inventory ( BDI ) 17 in July 1998, May 2000, and February 2003 [AR 449, 455, 458]; (3) the Social Phobia Inventory ( SPIN ) 18 in May 2000 and February 2003 [AR 450, 459]; and (4) the Yale-Brown Obsessive Compulsive Scale 19 Symptom Checklist and Severity Ratings scale ( Y-BOCS ) in May 2000 and February 2003. [AR 451- 20 454, 460-463]. 21 Plaintiff s scores and ratings on some of those tests are noted on the test documents. She had a BDI 22 score of 29, indicating moderate depression, in July 1998. [AR 455]. Her May 2000 BDI score was 25, also 23 indicative of moderate depression. Plaintiff s May 2003 BDI score was 30, indicating severe depression. 24 [AR 440, 449, 455, 458]. Plaintiff s May 2000 and February 2003 SPIN scores of 16 and 27 were indicative 25 of mild social phobia. [AR 456, 447, 450]. Plaintiff s May 2000 and February 2003 Y-BOCS total scores 26 of 14 and 10, respectively, were within the range connoting mild obsessive-compulsive disorder. [AR 451- 27 452, 462-463]. The record does not contain any interpretation of plaintiff s MMPI-2 scores. 28 The first hearing in this case was conducted on June 27, 2007. [AR 513-527]. After hearing 3 1 testimony from a medical expert, the ALJ asked plaintiff s counsel whether all of plaintiff s psychiatric 2 treatment records had been submitted. [AR 525]. Counsel indicated that he was still trying to obtain some 3 treatment records. [AR 525-526]. The ALJ offered to issue a subpoena if counsel wished. [AR 526]. The 4 ALJ also said that he thought it would be helpful to augment the record with a clinical psychologist s expert 5 testimony. Counsel agreed. The ALJ proposed scheduling a supplemental hearing in about a month s time, 6 adding, That ll give you more time to get the records. If, if you need my assistance with the subpoena, let 7 me know. Counsel agreed. [AR 526]. 8 Dr. Kania, a psychological expert, testified during the supplemental hearing in September 2007. He 9 noted that the BDI is a self-reported test, and that there was no interpretation of the MMPI-2 results in the 10 record. Dr. Kania said that he had not interpreted the psychological test results, but that he assumed that 11 Dr. Kohut took those results into account when prescribing medication to plaintiff. [AR 541]. Dr. Kania 12 testified that he did not agree with Dr. Kohut s assessment on a May 2007 mental functional capacities form, 13 in which he indicated that plaintiff had marked to extreme mental functional limitations in all areas rated. 14 [AR 413-414]. Dr. Kania testified that based on his review of plaintiff s treatment records, she had a 15 depressive disorder and dependent personality disorder resulting in mild restrictions in activities of daily 16 living, maintaining social functioning, and maintaining concentration, persistence, and pace, and no repeated 17 episodes of decompensation. [AR 536-538]. 18 In her reply, plaintiff argues that 19 [if] the ALJ had any questions about these tests, he should have, at a minimum, submitted 20 questions or requested additional medical records, subpoenaed the plaintiff s treating and 21 examining physicians, continued the hearing, or kept the record open after the hearing to 22 allow supplementation of the record. Unfortunately for the plaintiff, he failed to do any of 23 these things. 24 [JS 9]. 25 In fact, the ALJ invited plaintiff s counsel to submit additional evidence regarding plaintiff s mental 26 impairment. The ALJ left the record open and continued the hearing once for that purpose as well as to 27 obtain testimony from a medical expert. The ALJ volunteered to assist counsel by issuing a subpoena if 28 counsel let him know one was needed. Thus, plaintiff s counsel had the opportunity and the means to obtain 4 1 additional information from Dr. Kohut or other sources regarding the significance of the psychological test 2 results. 3 Nothing in the record indicates that plaintiff s counsel requested a subpoena. He did not voice any 4 concerns to the ALJ during two administrative hearings about the absence of interpretation of the MMPI-2 5 test results. When the medical expert, Dr. Kania, testified that he had not interpreted those results but 6 assumed that Dr. Kohut had taken them into account, counsel did not query him further about the 7 significance of the missing evidence. Counsel did not make any arguments to the ALJ regarding the absence 8 of interpretation of the MMPI-2 results. 9 Plaintiff has not shown that the record as a whole was inadequate or ambiguous to support a 10 disability determination, and neither Dr. Kania nor the ALJ indicated that they considered it so. See Webb 11 v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2006)( The ALJ's duty to supplement a claimant's record is 12 triggered by ambiguous evidence, the ALJ's own finding that the record is inadequate or the ALJ's reliance 13 on an expert's conclusion that the evidence is ambiguous. ). Although the ALJ's affirmative duty to assist 14 a claimant to develop the record . . . complicates the allocation of the burden of proof, Tackett v. Apfel, 15 180 F.3d 1094, 1098 (9th Cir. 1999), the ALJ s duty does not relieve plaintiff of her burden to prove 16 disability at steps one through four of the sequential evaluation procedure. See Mayes, 276 F.3d at 459-460 17 (rejecting the argument that the ALJ breached his duty to develop the record as an impermissible attempt 18 to shift the burden of proving disability away from the claimant). The ALJ did not err in failing to take 19 steps to develop the record that plaintiff and her attorney declined to pursue when given the opportunity to 20 do so. Accordingly, plaintiff s contention lacks merit. 21 Work absences 22 Plaintiff contends that the ALJ improperly rejected treating source opinions from Dr. Kohut and Dr. 23 Silverman that plaintiff would have frequent absences from work. [JS 9-11]. 24 In a May 2007 assessment form, treating psychiatrist Dr. Kohut checked boxes indicating that 25 plaintiff would miss 3 or more days of work a month as a result of marked to extreme limitations in her 26 work-related mental functional abilities. [AR 413-414]. In an October 2005 letter, Dr. Silverman, a treating 27 psychologist, stated that before plaintiff stopped working (which occurred in 1998, not in 1997, as Dr. 28 Silverman mistakenly noted), plaintiff was frequently late for work and often missed work due to her 5 1 illness. [AR 275, 534-535] 2 Plaintiff asserts that the ALJ totally failed to mention opinions from Dr. Kohut and Dr. Silverman 3 that plaintiff s depression would result in frequent absences from work. That argument misses the mark. 4 First, Dr. Silverman s comment reflected merely what she was told (or what she recalled) about plaintiff s 5 subjective work history. Dr. Silverman ventured no opinion about expected current or future work absences. 6 Second, and more importantly, the ALJ discussed, and gave reasons for rejecting, the opinions of 7 Dr. Kohut and Dr. Silverman that plaintiff was disabled. Under the well-established treating physician rule, 8 the ALJ may reject a controverted treating or examining source opinion for specific and legitimate reasons 9 that are based on substantial evidence in the record. Batson v. Commissioner of Social Sec. Admin., 359 10 F.3d 1190, 1195 (9th Cir. 2004); Tonapetyan v. Halter, 242 F.3d 1144, 1148-1149 (9th Cir. 2001). Rather 11 than explaining why the ALJ s enumerated reasons are legally erroneous or lack substantial support in the 12 record, plaintiff assails the ALJ for not expressly mentioning an isolated, discrete functional element of 13 those opinions. Because the ALJ is not required to reject a treating source disability opinion on a function- 14 by-function basis, this tactic obliges the defendant to fully brief the question whether the ALJ correctly 15 evaluated the treating source opinion as a whole (a question plaintiff improperly sidestepped) in order 16 adequately to defend the ALJ s decision.1 17 As defendant asserts, the ALJ provided specific, legitimate reasons based on substantial evidence 18 for rejecting the controverted disability opinions of Dr. Kohut and Dr. Silverman. [JS 5-8, 10]. Dr. 19 Silverman submitted letters in October 2005 and September 2007 stating that plaintiff had a diagnosis of 20 major depression, severe. Dr. Silverman said that she treated plaintiff with psychotherapy from December 21 1996 to September 2002, when plaintiff moved, and then again briefly in 2006. [AR 18-19, 275-277, 510- 22 512]. The ALJ noted that Dr. Silverman said that she had been unable to locate any of plaintiff s treatment 23 records and consequently provided no contemporaneous clinical findings to support her disability opinion. 24 Instead, Dr. Silverman provided a clinical summary and disability assessment based solely on her 25 recollections of plaintiff s condition three to five years earlier. [AR 275, 511-512]. The absence of 26 documented clinical findings to support Dr. Silvernman s assessment was a legitimate reason for rejecting 27 1 28 The court notes that this approach to briefing issues has been used before in cases before this court filed by attorneys from plaintiff s counsel s law firm. 6 1 her opinion. See Tonapetyan, 242 F.3d at 1148 ( When confronted with conflicting medical opinions, an 2 ALJ need not accept a treating physician's opinion that is conclusory and . . . unsupported by clinical 3 findings. )(citing Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992)); Meanel v. Apfel, 172 F.3d 4 1111, 1114 (9th Cir. 1999) (holding that the ALJ properly rejected a treating physician's opinion that was 5 conclusory and unsubstantiated by relevant medical documentation ).2 6 Additionally, the ALJ permissibly rejected Dr. Silverman s opinion that plaintiff suffered from 7 disabling medication resistant depression because it was inconsistent with progress notes through 8 December 2003 from Dr. Kohut and from plaintiff s primary physician, Dr. Fox, which indicated that 9 plaintiff s depression had improved and was reasonably well-controlled with medication and therapy during 10 the relevant period. [AR 19]. See Morgan, 169 F.3d at 603 (stating that internal inconsistencies within [the 11 treating and examining physicians ] reports, and the inconsistencies between their reports, also constitute 12 relevant evidence supporting rejection of those physicians opinions). 13 The ALJ also rejected Dr. Kohut s disability assessments. In August 2005, more than a year and a 14 half after plaintiff s insured status expired, Dr. Kohut completed a Short Form Evaluation for Mental 15 Disorders. He noted that plaintiff exhibited signs and symptoms of depression on her current mental status 16 examination. He rated her ability to understand, remember, and carry out simple instructions fair and her 17 other work-related mental functional abilities poor. [AR 392-394]. In February 2006, more than two years 18 after plaintiff s insured status expired, Dr. Kohut wrote that plaintiff had diagnoses of major depressive 19 disorder, recurrent, and dependent personality disorder. He did not assess any functional limitations in that 20 letter. [AR 390]. In May 2007, more than three years after plaintiff s insured status expired, Dr. Kohut 21 22 23 24 25 26 27 28 2 The record also contains a letter from Dr. Silverman dated March 26, 1997. [AR 276-277]. That letter is inaccurate on its face because it states that Dr. Silverman started seeing plaintiff on May 21, 1997, after the date of the letter. In that letter, Dr. Silverman recounted plaintiff s subjective history and symptoms, but she did not describe any clinical findings. Dr. Silverman concluded that plaintiff has recently begun to experience some relief from her depression as a result of medication and therapy, but that she continued to have problems with concentration and focus along with complaints of fatigue and joint pain. Dr. Silverman acknowledged that plaintiff had shown improvement over the last few months, but she added that plaintiff continues to suffer from sufficient physical and emotional problems that prevent her form being able to return to work full-time. [AR 277]. 7 1 completed a Work Capacity Evaluation (Mental) checklist form indicating that plaintiff had marked 2 or extreme mental functional limitations and would miss 3 or more days a month of work. [AR 413-414]. 3 Based on the documentary evidence and Dr. Kania s testimony, the ALJ reasoned that Dr. Kohut s 4 disability opinions were not consistent with the medical evidence as a whole through plaintiff s date last 5 insured, December 31, 2003. [AR 18-20]. The ALJ observed that Dr. Kohut initially saw plaintiff in 1998, 6 but Dr. Kohut s progress notes, as well as those of Dr. Fox, plaintiff s primary care doctor, indicate that her 7 symptoms responded well to medication. [AR 19, 317-318, 508-509]. Dr. Kohut saw plaintiff for medication 8 monitoring only four times in 1999, and her condition was noted to be stable. [AR 19, 475, 507]. Progress 9 notes from Dr. Kohut and Dr. Fox prior to December 31, 2003 indicate that with medication and therapy, 10 plaintiff s depression was reasonably well controlled [e.g,, AR 301], and that occasional episodes of 11 symptom exacerbation, medication side effects, or adverse medication interactions were managed by 12 adjusting her medication regimen and continuing therapy. [See AR 19, 260-273, 295-317, 472-475, 504- 13 509; see also AR 544-545]. The ALJ remarked that plaintiff voluntarily discontinued her psychiatric 14 medication in July 2000 because she wished to get pregnant. [AR 19, 474, 506]. She testified that she 15 resumed her medication in January 2001 while pregnant because she was suicidal. [AR 544]. Dr. Kohut s 16 notes indicate that she restarted Wellbutrin due to depression in February 2001, but his notes say nothing 17 about suicidal ideation. [AR 19, 474, 506]. During her next visit in June 2001, plaintiff s condition was 18 improved. [AR 19, 474, 544]. Plaintiff had an exacerbation in symptoms in November 2001, and Dr. Kohut 19 saw her on an emergency basis for adjustment of her medications. [AR 473, 505]. Dr. Kohut saw plaintiff 20 only twice in 2002. [AR 505]. During her August 2002 visit, he noted that plaintiff was experiencing 21 considerable turmoil in her marriage, and she was admonished to continue with medications and therapy. 22 Progress notes from 2002 and 2003 indicate that plaintiff s condition was somewhat improved, and 23 relatively stable. [AR 19, 472-474, 504-505]. Nowhere in his contemporaneous treatment records does 24 Dr. Kohut indicate that plaintiff was disabled before December 31, 2003. 25 26 In addition to Dr. Kohut s treating notes, the ALJ relied on the medical expert s testimony, which he described as follows: 27 Dr. Kania testified that the claimant s depression has responded to Wellbutrin and she was 28 seen only intermittently by Dr. Kohut. While Dr. Silverman asserted that the claimant has 8 1 a GAF score of 45 [indicating serious symptoms or a serious impairment], her assessment 2 was recently written, based on no records and on recollection only. In fact, under doctor 3 supervision, the claimant stopped all medication to become pregnant in 2001. Moreover, 4 records from Dr. Kohut show no severe condition and that psychotropic medications were 5 effective when taken. Dr. Kania also commented on Dr. Kohut s assertions regarding the 6 severity of the claimant s condition and testified that there was nothing in his notes to 7 support his assertions. 8 [AR 20; see AR 536-543]]. 9 The ALJ articulated specific, legitimate reasons, based on substantial evidence in the record, to 10 support his evaluation of the opinions of Drs. Kohut and Silverman with respect to the period ending on 11 December 31, 2003. Therefore, plaintiff s contention that the ALJ erred in evaluating their opinions 12 regarding plaintiff s work absences is unmeritorious. 13 Dr. Kohut s August 2005 evaluation 14 Plaintiff contends that the ALJ did not provide legally sufficient reasons for rejecting Dr. Kohut s 15 16 17 August 30, 2005 Short Form Evaluation for Mental Disorders. [JS 11-12]. For the reasons explained above, the ALJ did not err in rejecting Dr. Kohut s disability opinions with respect to the period before plaintiff s insured status expired, including his August 2005 assessment. 18 Lay witness testimony 19 Plaintiff contends that the ALJ committed legal error by misrepresenting, and failing properly to 20 consider, the lay witness testimony presented by plaintiff s husband, Kevin T. Harlow. [JS 12-17]. 21 While an ALJ must take into account lay witness testimony about a claimant's symptoms, the ALJ 22 may discount that testimony by providing reasons that are germane to each witness. Greger v. Barnhart, 23 464 F.3d 968, 972 (9th Cir. 2006)(quoting Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir.1993)); see 24 Carmickle v. Comm r, Soc. Sec. Admin., 533 F.3d 1155, 1163-1164 (9th Cir. 2008)(holding that the ALJ 25 did not err in rejecting a lay witness s testimony that the claimant often appeared uncomfortable in class and 26 sometimes appeared confused because that testimony was inconsistent with the claimant s successful 27 completion full-time course work). Germane reasons for rejecting a lay witness s testimony included 28 inconsistencies between that testimony and the medical evidence, inconsistencies between that testimony 9 1 and the claimant s presentation to treating physicians during the period at issue, and the claimant s failure 2 to participate in prescribed treatment. See Greger, 464 F.3d at 971; Bayliss, 427 F.3d at 1218. 3 The ALJ discussed plaintiff s husband s testimony. [AR 21, 165-172]. The ALJ remarked that 4 although plaintiff testified to having significant functional limitations, her statements documented 5 elsewhere in the record and her husband s statements suggest that prior to her date last insured, she was 6 actually quite active. Indeed, these statements show that the claimant did all household chores including 7 laundry, cooking, vacuuming, dusting, shopping, taking care of her two children, the younger of whom was 8 a baby and the older of whom was a young child during most of the relevant period. [AR 21]. The ALJ 9 noted that during the relevant period, plaintiff attended church weekly and regularly participated in a Bible 10 study group. Plaintiff testified that she began home-schooling her children in 2004 (after her insured status 11 expired, but during her alleged period of disability) for reasons unrelated to her impairments and continued 12 to do so through the date of the hearing in 2007. She said that she had some good times and some really 13 bad times, and for the most part I just get by. [AR 550]. 14 Mr. Harlow indicated (in August 2005) that plaintiff could no longer ride and race bicycles, take 15 long, vigorous walks, or go white-water rafting. [AR 166]. He said that she sometimes stayed in her pajamas 16 all day or went days without bathing. He observed that she had become slightly reclusive and is 17 embarrassed to have old friends see her, and therefore avoided them. [AR 170]. He also said that plaintiff 18 needed a lot of sleep and had difficulty waking and getting up. [AR 166]. As the ALJ noted, however, Dr. 19 Fox attributed some of plaintiff s complaints of inadequate sleep in 2002 to a lifestyle choice, noting that 20 she goes to bed late, wakes up early with her daughter[,] and the quality of sleep she is getting is not so 21 great either since she does have an infant at home. [AR 17-18, 301]. 22 Mr. Harlow indicated that despite plaintiff s subjective pain throughout her body [AR 172], 23 fatigue, and the limitations he described, plaintiff managed to perform a variety of daily activities, including 24 caring for their young children (and, as plaintiff testified, home-schooling them by that time), doing laundry 25 and dishes several times a week, vacuuming and dusting twice a month, preparing simple meals one to four 26 times daily, driving, shopping for groceries, school supplies, and clothing about twice a week for two to 27 three hours at a time, paying bills, handling money, scrapbooking once or twice a month, e-mailing friends, 28 attending church regularly, and visiting friends or taking their children to the bowling alley one to three 10 1 times a week. [AR 165-170]. He said that he had observed unusual behavior by plaintiff in the form of 2 uncontrollable crying, isolation, and inability to communicate at all, but that [t]his stopped as her doctor 3 prescribed anti-depressant medications. [AR 171]. 4 The ALJ did not misrepresent Mr. Harlow s testimony by citing portions of it that he permissibly 5 deemed inconsistent with plaintiff s subjective allegations of a total disability prior to her date last insured. 6 Regarding Mr. Harlow s testimony as a whole, the ALJ stated that it was not sufficiently credible to 7 warrant the assessment of limitations more restrictive than the ALJ imposed in light of all the medical 8 evidence, written statements, and the testimony presented at the hearing. . . . [AR 21]. The ALJ satisfied 9 his burden to articulate germane reasons for his assessment of the credibility of Mr. Harlow s statements.3 10 Side effects of medications 11 Plaintiff argues that the ALJ failed properly to consider plaintiff s written disability report stating 12 that she suffered side effects of headaches, sleepiness, anxiety, abdominal cramps, and diarrhea from taking 13 the medications Wellbutrin, Lexapro, Provigil, Eozortrin, and Ibuprofen. [JS 16-17]. 14 Contrary to plaintiff s argument, the ALJ acknowledged that plaintiff had side effects that 15 contributed somewhat to her symptoms, but this has been generously considered within the delineated 16 RFC limiting plaintiff to simple, repetitive tasks. [AR 16, 19, 21]. The record indicates that prior to her date 17 last insured, plaintiff told Dr. Fox about some side effects or interactions from her use of atenolol, Sudafed, 18 and Elavil. Those medications were promptly discontinued. [See, e.g., AR 19, 301, 309]. The two anti- 19 depressants she was prescribed consistently for a protracted period before her date last insured were 20 Wellbutrin SR and Buspar (which she stopped taking in 2004 due to weight gain). Effexor and Topamax 21 were briefly attempted and discontinued during the relevant period. [AR 465-476, 498-509]. 22 Plaintiff has not pointed to any evidence in the record documenting complaints to her doctors of the 23 side effects she attributed in her disability report to Wellbutrin SR (headaches and high blood pressure). 24 [AR 176]. See Miller v. Heckler, 770 F.2d 845, 849 (9th Cir. 1985) (holding that the ALJ properly rejected 25 26 27 28 3 Aside from arguing that the ALJ failed adequately to consider medication side effects, plaintiff has not challenged the ALJ s assessment of the credibility of her own testimony. Insofar as Mr. Harlow s testimony merely repeats plaintiff s subjective complaints of pain and fatigue (rather than stating his personal observations) or is cumulative, the reasons given by the ALJ for rejecting plaintiff s subjective complaints also would be germane to Mr. Harlow s testimony. 11 1 allegations of impairment from side effects of narcotic medication because the plaintiff produced no clinical 2 evidence showing that narcotics use impaired his ability to work). During the hearing, plaintiff mentioned 3 the problem she had experienced with atenolol before its discontinuance. [AR 545]. She also said that Dr. 4 Kohut had added a serotonin medication (Cymbalta) to her regimen along with Wellbutrin, but that she 5 took only a low dose because it makes me tired. . . . [AR 545-546]. 6 Plaintiff s long-term use of Wellbutrin SR and Buspar without medical documentation of significant 7 side effects before December 31, 2003 indicates that any side-effects she did experience were not disabling. 8 The ALJ rationally inferred that plaintiff s use of psychiatric medications limited her to simple, repetitive 9 tasks but did not prevent her from working altogether before expiration of her insured status. Conclusion 10 11 For the reasons described above, the Commissioner's decision is supported by substantial evidence 12 in the record and is free of legal error. Therefore, the Commissioner s decision is affirmed. 13 IT IS SO ORDERED. 14 15 16 17 DATED: October 20,2008 _____________________________ ANDREW J. WISTRICH United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28 12
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