Ernie Rogers v. Michael J Astrue, No. 5:2009cv00584 - Document 22 (C.D. Cal. 2010)
Court Description: MEMORANDUM OPINION by Magistrate Judge Jacqueline Chooljian. For the foregoing reasons, the decision of the Commissioner of Social Security is affirmed. LET JUDGMENT BE ENTERED ACCORDINGLY. ***See document for further details.*** (ag)
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Ernie Rogers v. Michael J Astrue Doc. 22 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ERNIE ROGERS, 12 Plaintiff, 13 14 15 16 17 v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. _________________________ ) Case No. EDCV 09-584 JC ) ) ) ) MEMORANDUM OPINION ) ) ) ) ) ) ) 18 19 I. On March 31, 2009, plaintiff Ernie Rogers (“plaintiff”) filed a Complaint 20 21 22 23 seeking review of the Commissioner of Social Security’s denial of plaintiff’s application for benefits. The parties have filed a consent to proceed before a United States Magistrate Judge. This matter is before the Court on the parties’ cross motions for summary 24 25 26 27 28 SUMMARY judgment, respectively (“Plaintiff’s Motion”) and (“Defendant’s Motion”). The Court has taken both motions under submission without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; May 1, 2009 Case Management Order ¶ 5. /// 1 Dockets.Justia.com 1 Based on the record as a whole and the applicable law, the decision of the 2 Commissioner is AFFIRMED. The findings of the Administrative Law Judge 3 (“ALJ”) are supported by substantial evidence and are free from material error.1 4 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE 5 DECISION 6 On November 14, 2006, plaintiff filed an application for Supplemental 7 Security Income benefits. (Administrative Record (“AR”) 12). Plaintiff asserted 8 that he became disabled on or about September 4, 2005, apparently due to 9 depression. (AR 72-79). The ALJ examined the medical record and heard 10 testimony from a medical expert, a vocational expert, and plaintiff (who was 11 represented by counsel) on October 23, 2008. (AR 12, 14, 191-214). 12 On January 22, 2009, the ALJ determined that plaintiff was not disabled 13 through the date of the decision. (AR 12-21). Specifically, the ALJ found: 14 (1) plaintiff suffered from the following severe impairments: depression and 15 marijuana abuse (AR 14); (2) plaintiff’s impairments, considered singly or in 16 combination, did not meet or medically equal one of the listed impairments (AR 17 14-15); (3) plaintiff retained the residual functional capacity to perform a full 18 range of work at all exertional levels with certain nonexertional limitations (AR 19 15);2 (4) plaintiff had no past relevant work (AR 19); and (5) there are jobs that 20 exist in significant numbers in the national economy that plaintiff could perform 21 (AR 19). 22 The Appeals Council denied plaintiff’s application for review. (AR 4-6). 23 1 24 25 26 27 28 The harmless error rule applies to the review of administrative decisions regarding disability. See Batson v. Commissioner of Social Security Administration, 359 F.3d 1190, 1196 (9th Cir. 2004) (applying harmless error standard); see also Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1054-56 (9th Cir. 2006) (discussing contours of application of harmless error standard in social security cases). 2 Specifically, the ALJ determined that plaintiff (i) should work in a non-public setting; (ii) could do simple repetitive tasks; (iii) was limited to occasional non-intense contact with others; (iv) should work in an environment with no hypervigilance; and (v) “should not have a job that requires no [sic] safety operations.” (AR 15). 2 1 III. APPLICABLE LEGAL STANDARDS 2 A. 3 To qualify for disability benefits, a claimant must show that he is unable to Sequential Evaluation Process 4 engage in any substantial gainful activity by reason of a medically determinable 5 physical or mental impairment which can be expected to result in death or which 6 has lasted or can be expected to last for a continuous period of at least twelve 7 months. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing 42 U.S.C. 8 § 423(d)(1)(A)). The impairment must render the claimant incapable of 9 performing the work he previously performed and incapable of performing any 10 other substantial gainful employment that exists in the national economy. Tackett 11 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). 12 In assessing whether a claimant is disabled, an ALJ is to follow a five-step 13 sequential evaluation process: 14 (1) 15 16 Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. (2) Is the claimant’s alleged impairment sufficiently severe to limit 17 his ability to work? If not, the claimant is not disabled. If so, 18 proceed to step three. 19 (3) Does the claimant’s impairment, or combination of 20 impairments, meet or equal an impairment listed in 20 C.F.R. 21 Part 404, Subpart P, Appendix 1? If so, the claimant is 22 disabled. If not, proceed to step four. 23 (4) Does the claimant possess the residual functional capacity to 24 perform his past relevant work? If so, the claimant is not 25 disabled. If not, proceed to step five. 26 (5) Does the claimant’s residual functional capacity, when 27 considered with the claimant’s age, education, and work 28 experience, allow him to adjust to other work that exists in 3 1 significant numbers in the national economy? If so, the 2 claimant is not disabled. If not, the claimant is disabled. 3 Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th 4 Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920). 5 The claimant has the burden of proof at steps one through four, and the 6 Commissioner has the burden of proof at step five. Bustamante v. Massanari, 262 7 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett); see also Burch, 400 F.3d at 679 8 (claimant carries initial burden of proving disability). 9 10 B. Standard of Review Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of 11 benefits only if it is not supported by substantial evidence or if it is based on legal 12 error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 13 2006) (citing Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 14 (9th Cir. 1995)). Substantial evidence is “such relevant evidence as a reasonable 15 mind might accept as adequate to support a conclusion.” Richardson v. Perales, 16 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a 17 mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing 18 Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)). 19 To determine whether substantial evidence supports a finding, a court must 20 “‘consider the record as a whole, weighing both evidence that supports and 21 evidence that detracts from the [Commissioner’s] conclusion.’” Aukland v. 22 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 23 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming 24 or reversing the ALJ’s conclusion, a court may not substitute its judgment for that 25 of the ALJ. Robbins, 466 F.3d at 882 (citing Flaten, 44 F.3d at 1457). 26 /// 27 /// 28 /// 4 1 IV. DISCUSSION 2 A. 3 Plaintiff contends that the ALJ improperly rejected the opinions of Dr. The ALJ Properly Evaluated the Medical Opinion Evidence 4 Reynaldo Abejuela, an examining psychiatrist, expressed in the report of a 5 complete psychiatric evaluation dated December 20, 2006 (AR 19, 101-07).3 6 (Plaintiff’s Motion at 2-3). The Court disagrees. 7 8 1. Pertinent Law In Social Security cases, courts employ a hierarchy of deference to medical 9 opinions depending on the nature of the services provided. Courts distinguish 10 among the opinions of three types of physicians: those who treat the claimant 11 (“treating physicians”) and two categories of “nontreating physicians,” namely 12 those who examine but do not treat the claimant (“examining physicians”) and 13 those who neither examine nor treat the claimant (“nonexamining physicians”). 14 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (footnote reference omitted). A 15 treating physician’s opinion is entitled to more weight than an examining 16 physician’s opinion, and an examining physician’s opinion is entitled to more 17 weight than a nonexamining physician’s opinion.4 See id. In general, the opinion 18 of a treating physician is entitled to greater weight than that of a non-treating 19 20 21 22 23 24 25 26 27 28 3 In the December 20, 2006 complete psychiatric evaluation report, Dr. Abejuela diagnosed plaintiff with Bipolar Disorder, NOS [not otherwise specified], and indicated that plaintiff (i) had moderate impairment in his daily activities, ability to maintain social functioning, and ability to understand, remember and carry out simple instructions; (ii) had moderate to severe impairment in concentration, persistence, and pace; (iii) had severe impairment in his ability to understand, carry out, and remember complex instructions; (iv) had severe impairment in his abilities to respond to co-workers, supervisors and the public; (v) had severe impairment in his abilities to respond appropriately to usual work situations, and to deal with changes in a routine work setting; and (vi) had experienced repeated episodes of emotional deterioration in work-like situations, a severe impairment. (AR 104, 106). 4 Cf. Le v. Astrue, 529 F.3d 1200, 1201-02 (9th Cir. 2008) (not necessary or practical to draw bright line distinguishing treating physicians from non-treating physicians; relationship is better viewed as series of points on a continuum reflecting the duration of the treatment relationship and frequency and nature of the contact) (citation omitted). 5 1 physician because the treating physician “is employed to cure and has a greater 2 opportunity to know and observe the patient as an individual.” Morgan v. 3 Commissioner of Social Security Administration, 169 F.3d 595, 600 (9th Cir. 4 1999) (citing Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987)). 5 The treating physician’s opinion is not, however, necessarily conclusive as 6 to either a physical condition or the ultimate issue of disability. Magallanes v. 7 Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (citing Rodriguez v. Bowen, 876 F.2d 8 759, 761-62 & n.7 (9th Cir. 1989)). Where a treating physician’s opinion is not 9 contradicted by another doctor, it may be rejected only for clear and convincing 10 reasons. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (citation and internal 11 quotations omitted). The ALJ can reject the opinion of a treating physician in 12 favor of a conflicting opinion of another examining physician if the ALJ makes 13 findings setting forth specific, legitimate reasons for doing so that are based on 14 substantial evidence in the record. Id. (citation and internal quotations omitted); 15 Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (ALJ can meet burden by 16 setting out detailed and thorough summary of facts and conflicting clinical 17 evidence, stating his interpretation thereof, and making findings) (citations and 18 quotations omitted); Magallanes, 881 F.2d at 751, 755 (same; ALJ need not recite 19 “magic words” to reject a treating physician opinion – court may draw specific 20 and legitimate inferences from ALJ’s opinion). “The ALJ must do more than offer 21 his conclusions.” Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). “He 22 must set forth his own interpretations and explain why they, rather than the 23 [physician’s], are correct.” Id. “Broad and vague” reasons for rejecting the 24 treating physician’s opinion do not suffice. McAllister v. Sullivan, 888 F.2d 599, 25 602 (9th Cir. 1989). These standards also apply to opinions of examining 26 physicians. See Carmickle v. Commissioner, Social Security Administration, 533 27 F.3d 1155, 1164 (9th Cir. 2008) (quoting Lester, 81 F.3d at 830-31); Andrews v. 28 Shalala, 53 F.3d 1035, 1042-44 (9th Cir. 1995). 6 1 2 2. Analysis The ALJ rejected the very significant mental limitations stated in Dr. 3 Abejuela’s psychiatric evaluation for clear, convincing, specific and legitimate 4 reasons supported by substantial evidence. 5 Here, a reasonable inference based on the ALJ’s thorough discussion and 6 evaluation of the record medical evidence, is that the ALJ found that the severe 7 impairments as to which Dr. Abejuela opined were short lived, and thus not 8 probative of any impairment that would satisfy the durational requirements 9 applicable to social security disability cases. See Thomas, 278 F.3d at 957; 10 Magallanes, 881 F.2d at 751, 755. As both the ALJ and the testifying medical 11 expert noted, Dr. Abejuela examined plaintiff at a point in time (December 2006) 12 that did not reflect plaintiff’s true mental health condition throughout the relevant 13 period of alleged disability. When Dr. Abejuela conducted the evaluation, 14 plaintiff had been in treatment for less than a month, was in the middle of an 15 episode of decompensation, was using alcohol and drugs, and was not taking his 16 psychotropic medications. (AR 19). The ALJ found that shortly after Dr. 17 Abejuela’s psychiatric evaluation, plaintiff’s condition significantly improved: 18 After beginning treatment again on November 24, 2006 the medical 19 treatment records show continued improvement with only short 20 periods of back sets that coincided with non compliance to treatment. 21 Overall, [plaintiff] did not have side effects to his medications and 22 with continued treatment he did well (Exhibit 2F [AR 140-53], 6F 23 [AR 140-53], 8F [AR 156-66], and 9F [AR 167-90]). 24 (AR 19). The ALJ noted that plaintiff experienced positive results with “minimal 25 and conservative treatment” when he took his prescribed medication and abstained 26 from alcohol and drug use. (AR 18). The Court also notes that Dr. Abejuela’s 27 report specifically states that although plaintiff had been experiencing significant 28 limitations at the time of the evaluation, “[plaintiff’s] condition [was] expected to 7 1 get better in less than a year.” (AR 107). The ALJ was not required to explain his 2 decision to exclude from plaintiff’s residual functional capacity determination 3 such evidence that was not probative of disability that would have lasted for 12 4 months or longer. See Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) 5 (An ALJ must provide an explanation only when he rejects “significant probative 6 evidence.”) (citation omitted). 7 The ALJ properly rejected Dr. Abejuela’s opinions in favor of 8 the conflicting opinions of Dr. Glassmire, the testifying expert, which were 9 consistent with the ALJ’s residual functional capacity assessment.5 (AR 198-203). 10 As the ALJ noted, the medical expert’s testimony was consistent with the state 11 agency reviewing psychiatrist and physician – each of whom found no mental 12 limitations beyond those already accounted for in the ALJ’s residual functional 13 capacity assessment. (AR 19, 124-39; 154-55). Accordingly, testimony from Dr. 14 Glassmire constitutes substantial evidence supporting the ALJ’s decision since it 15 was consistent with all other evidence in the record. See Tonapetyan v. Halter, 16 242 F.3d 1144, 1149 (9th Cir. 2001) (holding that opinions of nontreating or 17 nonexamining doctors may serve as substantial evidence when consistent with 18 independent clinical findings or other evidence in the record); Andrews, 53 F.3d at 19 1041 (“reports of the nonexamining advisor need not be discounted and may serve 20 as substantial evidence when they are supported by other evidence in the record 21 and are consistent with it”); Morgan, 169 F.3d at 600 (testifying medical expert 22 opinions may serve as substantial evidence when “they are supported by other 23 24 25 26 27 28 5 Dr. Glassmire testified to the following: Plaintiff had major depressive disorder and marijuana and alcohol abuse. (AR 199). Plaintiff’s condition would cause mild limitations in activities of daily living, moderate limitations in social functioning, and moderate limitations in concentration, persistence and pace, and one episode of decompensation of extended duration. (AR 199-200). Plaintiff was limited to simple repetitive tasks with no public contact, could have only occasional non-intense contact with others, would be precluded from environments that require hypervigilance, and precluded from jobs that require safety operations. (AR 200). Plaintiff would not be expected to miss work so long as he worked within such noted limitations. (AR 200). 8 1 evidence in the record and are consistent with it”). Any conflict in the properly 2 supported medical opinion evidence is the sole province of the ALJ to resolve. 3 Andrews, 53 F.3d at 1041. 4 Accordingly, a remand or reversal is not warranted on this basis. 5 B. The ALJ Properly Evaluated the Severity of Plaintiff’s 6 Impairments 7 1. 8 Pertinent Law At step two of the sequential evaluation process, plaintiff has the burden to 9 present evidence of medical signs, symptoms and laboratory findings6 that 10 establish a medically determinable physical or mental impairment that is severe, 11 and that can be expected to result in death or which has lasted or can be expected 12 to last for a continuous period of at least twelve months. Ukolov v. Barnhart, 420 13 F.3d 1002, 1004-1005 (9th Cir. 2005) (citing 42 U.S.C. §§ 423(d)(3), 14 1382c(a)(3)(D)); see 20 C.F.R. § 416.920. Substantial evidence supports an ALJ’s 15 determination that a claimant is not disabled at step two where “there are no 16 medical signs or laboratory findings to substantiate the existence of a medically 17 determinable physical or mental impairment.” Id. (quoting SSR 96-4p, 1996 WL 18 374187, at *1-*2). 19 Step two is “a de minimis screening device [used] to dispose of groundless 20 claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). Applying the 21 22 6 A medical “sign” is “an anatomical, physiological, or psychological abnormality that can 23 be shown by medically acceptable clinical and laboratory diagnostic techniques[.]” Ukolov, 420 24 F.3d at 1005 (quoting Social Security Ruling (“SSR”) 96-4p, 1996 WL 374187, at *1 n.2). A “symptom” is “an individual’s own perception or description of the impact of his or her physical 25 or mental impairment(s)[.]” Id. (quoting SSR 96-4p, 1996 WL 374187, at *1 n.2); see also 20 26 C.F.R. §§ 416.928(a)-(b). “[U]nder no circumstances may the existence of an impairment be established on the basis of symptoms alone.” Ukolov, 420 F.3d at 1005 (citation omitted); SSR 27 96-4p, 1996 WL 374187, at *1-2 (“[R]egardless of how many symptoms an individual alleges, or how genuine the individual’s complaints may appear to be, the existence of a medically 28 determinable physical or mental impairment cannot be established in the absence of objective medical abnormalities; i.e., medical signs and laboratory findings.”). 9 1 normal standard of review to the requirements of step two, a court must determine 2 whether an ALJ had substantial evidence to find that the medical evidence clearly 3 established that the claimant did not have a medically severe impairment or 4 combination of impairments. Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) 5 (citation omitted); see also Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988) 6 (“Despite the deference usually accorded to the Secretary’s application of 7 regulations, numerous appellate courts have imposed a narrow construction upon 8 the severity regulation applied here.”). An impairment or combination of 9 impairments can be found “not severe” only if the evidence establishes a slight 10 abnormality that has “no more than a minimal effect on an individual’s ability to 11 work.” Webb, 433 F.3d at 686 (citation omitted). 12 13 2. Analysis Plaintiff contends that reversal or remand is warranted because the ALJ 14 failed to find plaintiff’s mental impairments severe at step two. (Plaintiff’s Motion 15 at 5). The Court disagrees. 16 Contrary to plaintiff’s contention, at step two of the sequential evaluation 17 process the ALJ expressly found that plaintiff suffered from two severe mental 18 impairments – i.e. depression and marijuana abuse. (AR 14). To the extent 19 plaintiff suggests that the ALJ erred by not finding other severe mental 20 impairments based on the opinions expressed in Dr. Abejuela’s psychiatric 21 evaluation of plaintiff (i.e. bipolar disorder), such claim is without merit. As noted 22 above, the ALJ properly rejected Dr. Abejuela’s opinions for clear, convincing, 23 specific and legitimate reasons supported by substantial evidence. Therefore, the 24 ALJ did not err by declining to find additional severe mental impairments at step 25 two. 26 Accordingly, a remand or reversal is not warranted on this basis. 27 /// 28 /// 10 1 C. 2 3 The ALJ Did Not Fail Properly to Consider Side Effects of Plaintiff’s Medication Plaintiff contends that the ALJ failed properly to consider limitations on 4 plaintiff’s residual functional capacity related to his use of prescription medication 5 (e.g., Seroquel, Celexa and Zyprexa). (Plaintiff’s Motion at 5-7). The Court 6 disagrees. 7 A claimant bears the burden of demonstrating that his use of medications 8 caused a disabling impairment. See Miller v. Heckler, 770 F.2d 845, 849 (9th Cir. 9 1985) (claimant failed to meet burden of proving medication impaired his ability 10 to work because he produced no clinical evidence). Here, the only evidence 11 plaintiff points to in support of his contention are statements from his own 12 disability report, and treatment records of increases in the dosage of plaintiff’s 13 medications, which plaintiff contends constitute episodes of decompensation. 14 (Plaintiff’s Motion at 5) (citing AR 94, 144, 181, 190). Apart from plaintiff’s own 15 passing statement that he experienced muscle spasms and sleepiness from 16 Seroquel, and his unsupported speculation that increases in dosage of plaintiff’s 17 medication could be considered episodes of decompensation, plaintiff offers no 18 objective evidence that his medication affected him in the way he claims, let alone 19 that it interfered with his ability to work.7 See Bayliss v. Barnhart, 427 F.3d 1211, 20 1217 (9th Cir. 2005) (ALJ did not err in failing to “explicitly address the 21 drowsiness side-effect of [plaintiff’s] medication” where the ALJ’s residual 22 functional capacity assessment accounted for “those limitations for which there 23 was record support that did not depend on [plaintiff’s] subjective complaints.”); 24 25 26 27 28 7 Most of plaintiff’s treatment records either make no note of medication side effects, or indicate that plaintiff denied experiencing any side effects. (AR 110-23, 140-53, 145-90). The only mention of medication side effects in plaintiff’s medical records appears to be plaintiff’s own complaints of “muscle spasms” and “bright flashes of light” when taking Seroquel, but there is no evidence that he was unable to work due to such side effects. (AR 184). Moreover, the ALJ specifically found plaintiff’s testimony lacking in credibility (AR 17), a finding that is not challenged by plaintiff in this proceeding. 11 1 Thomas, 278 F.3d at 960 (alleged side effects need not be considered where no 2 objective evidence supported allegations); Osenbrock v. Apfel, 240 F.3d 1157, 3 1164 (9th Cir. 2001) (ALJ need not consider side effects that were not “severe 4 enough to interfere with [plaintiff’s] ability to work.”). 5 Accordingly, plaintiff is not entitled to a reversal or remand on this basis. 6 D. 7 Plaintiff contends that the ALJ failed properly to consider statements The ALJ Properly Considered Lay Witness Evidence 8 provided by plaintiff’s mother, Becky June Rogers, and failed to provide sufficient 9 reasons for disregarding her statements. (Plaintiff’s Motion at 7-9). This Court 10 disagrees. 11 12 1. Pertinent Facts In a “Function Report – Adult – Third Party” form dated December 4, 2006, 13 plaintiff’s mother provided information about plaintiff’s daily activities, personal 14 care, meals, house and yard work, getting around, shopping, money handling, 15 hobbies and interests, social activities, and information about his abilities. (AR 16 80-87). Plaintiff’s mother stated that plaintiff: (i) watches T.V., spends “a lot of 17 time on the computer” and plays his guitar; (ii) makes his own meal once a day, 18 and helps with housework once in a while, but becomes angry when asked to do 19 so; (iii) has no problem with personal care, and can manage his own money; 20 (iv) does not like to go out much at all but can shop, walk, ride in a car, use public 21 transportation, and go to church every week on his own; (v) gets very nervous and 22 paranoid, has gotten angry over “nothing,” knocked a hole in the wall, and “many 23 times” has broken things (i.e. tables, guitars); (vi) has difficulty with memory, 24 completing tasks, concentration, understanding, and getting along with others; 25 (vii) does not finish what he starts, follows spoken instructions very well, but only 26 when he wants to do what is asked of him; and (viii) “has problems getting along 27 with anybody for long.” (AR 80-87). 28 /// 12 1 2 2. Pertinent Law Lay testimony as to a claimant’s symptoms is competent evidence that an 3 ALJ must take into account, unless he expressly determines to disregard such 4 testimony and gives reasons germane to each witness for doing so. Stout, 454 5 F.3d at 1056 (citations omitted); Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 6 2001); see also Robbins, 466 F.3d at 885 (ALJ required to account for all lay 7 witness testimony in discussion of findings) (citation omitted); Regennitter v. 8 Commissioner of Social Security Administration, 166 F.3d 1294, 1298 (9th Cir. 9 1999) (testimony by lay witness who has observed claimant is important source of 10 information about claimant’s impairments); Nguyen v. Chater, 100 F.3d 1462, 11 1467 (9th Cir. 1996) (lay witness testimony as to claimant’s symptoms or how 12 impairment affects ability to work is competent evidence and therefore cannot be 13 disregarded without comment) (citations omitted); Sprague v. Bowen, 812 F.2d 14 1226, 1232 (9th Cir. 1987) (ALJ must consider observations of non-medical 15 sources, e.g., lay witnesses, as to how impairment affects claimant’s ability to 16 work). The standards discussed in these authorities appear equally applicable to 17 written statements. Cf. Schneider v. Commissioner of Social Security 18 Administration, 223 F.3d 968, 974-75 (9th Cir. 2000) (ALJ erred in failing to 19 consider letters submitted by claimant’s friends and ex-employers in evaluating 20 severity of claimant’s functional limitations). 21 In cases in which “the ALJ’s error lies in a failure to properly discuss 22 competent lay testimony favorable to the claimant, a reviewing court cannot 23 consider the error harmless unless it can confidently conclude that no reasonable 24 ALJ, when fully crediting the testimony, could have reached a different disability 25 determination.” Robbins, 466 F.3d at 885 (quoting Stout, 454 F.3d at 1055-56). 26 27 3. Analysis First, although plaintiff contends that the ALJ failed to consider statements 28 from plaintiff’s mother that were favorable to plaintiff (Plaintiff’s Motion at 7), 13 1 the record clearly shows otherwise. More specifically, the ALJ’s decision notes 2 that plaintiff “got angry easily,” “did not like going out alone,” “had problems 3 being around people” and “liked to isolate himself and was hard to be around” 4 (AR 16-17) – particular statements plaintiff erroneously contends that the ALJ 5 “totally ignored.” 6 Second, to the extent the ALJ failed expressly to mention other statements 7 from plaintiff’s mother that simply corroborated limitations the ALJ already 8 accounted for in his decision, any error was harmless. See Zerba v. Commissioner 9 of Social Security Administration, 279 Fed. Appx. 438, 440 (9th Cir. 2008) 10 (failure to address husband’s cumulative lay testimony harmless error); Rohrer v. 11 Astrue, 279 Fed. Appx. 437, 437 (9th Cir. 2008) (rejecting claimant’s contention 12 that ALJ improperly rejected lay witness statement of claimant’s girlfriend where 13 such statement was cumulative of statements by claimant which ALJ accepted).8 14 Simply because the ALJ did not expressly reference cumulative symptom evidence 15 does not mean he failed to consider such evidence. See Black v. Apfel, 143 F.3d 16 383, 386 (8th Cir. 1998) (“An ALJ’s failure to cite specific evidence does not 17 indicate that such evidence was not considered[.]”). The ALJ was not required to 18 discuss every piece of evidence in the record. See Howard ex rel. Wolff v. 19 Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (citations omitted). Here, the ALJ 20 discussed plaintiff’s mother’s statements at length and in great detail. (AR 16-17). 21 While the ALJ did not expressly mention the mother’s statements that plaintiff’s 22 condition affects his ability to complete tasks, concentrate, remember things, and 23 understand (AR 85), plaintiff fails to demonstrate that such alleged limitations 24 impaired his ability to work beyond the ALJ’s residual functional capacity 25 assessment which limits plaintiff to doing “simple repetitive tasks” and “work in 26 an environment with no hypervigilance.” (AR 15). In light of the substance of the 27 28 8 The Court may cite unpublished Ninth Circuit opinions issued on or after January 1, 2007. See U.S. Ct. App. 9th Cir. Rule 36-3(b); Fed. R. App. P. 32.1(a). 14 1 mother’s statements, plaintiff’s own statements, and the medical evidence in the 2 record, the Court can confidently conclude that no reasonable ALJ, even fully 3 crediting those statements from plaintiff’s mother which were not expressly 4 addressed by the ALJ, could have reached a different disability determination. 5 Finally, the ALJ found the mother not credible because she was biased (i.e. 6 she was supporting plaintiff and therefore “[had] a financial interest in seeing 7 [plaintiff] receive benefits)”; her statements were “not supported by the clinical or 8 diagnostic medical evidence;” and her statements regarding plaintiff’s limitations 9 were contrary to his daily activities. (AR 17). The ALJ may not discount her 10 statements merely because, as plaintiff’s mother, she is an interested party. See 11 Regennitter, 166 F.3d at 1298. However, the ALJ properly rejected aspects of the 12 mother’s statements that were inconsistent with substantial other evidence – i.e., 13 “the clinical or diagnostic medical evidence.” (AR 17); see Bayliss, 427 F.3d at 14 1218 (inconsistency with medical evidence is germane reason for discrediting the 15 testimony of lay witness) (citing Lewis, 236 F.3d at 511); Vincent, 739 F.2d at 16 1394-95 (ALJ did not err by omitting from hearing decision discussion of “lay 17 testimony that conflicted with the available medical evidence.”) (citation omitted). 18 The ALJ also properly discounted the mother’s statements as to plaintiff’s 19 disabling limitations to the extent such statements were inconsistent with the lay 20 witness’ own description of plaintiff’s daily activities. See, e.g., Brummer v. 21 Astrue, 2010 WL 883864, at *2-3 (C.D. Cal. Mar. 9, 2010) (ALJ did not err in 22 discounting lay witness testimony where witness’s description of claimant’s daily 23 activities was inconsistent with disability). The ALJ noted: 24 [Plaintiff] and [his] mother have described every day activities that 25 include being able to drive a car, go out alone, use public 26 transportation, shop, do light housekeeping, manage his own 27 finances, play the guitar, work on the computer, and go to church. It 28 appears that despite his impairment, [plaintiff] has engaged in a 15 1 somewhat normal level of daily activity and interaction. It should be 2 noted that the physical and mental capabilities requisite to performing 3 many of the tasks described above as well as the social interactions 4 replicate those necessary for obtaining and maintaining employment. 5 (AR 17). 6 7 8 9 Accordingly, a remand or reversal on this basis is not warranted. E. The ALJ Posed a Complete Hypothetical Question to the Vocational Expert Plaintiff contends that a reversal or remand is appropriate because the ALJ 10 erroneously omitted from his hypothetical question posed to the vocational expert 11 evidence of the “multiple moderate and severe mental impairments and 12 limitations” contained in Dr. Abejuela’s opinions. (Plaintiff’s Motion at 9-10). 13 The Court disagrees. 14 A hypothetical question posed by an ALJ to a vocational expert must set out 15 all the limitations and restrictions of the particular claimant. Light v. Social 16 Security Administration, 119 F.3d 789, 793 (9th Cir. 1997) (citing Andrews, 53 17 F.3d at 1044); Embrey, 849 F.2d at 422 (“Hypothetical questions posed to the 18 vocational expert must set out all the limitations and restrictions of the particular 19 claimant . . . .”) (emphasis in original; citation omitted). However, an ALJ’s 20 hypothetical question need not include limitations not supported by substantial 21 evidence in the record. Osenbrock, 240 F.3d at 1163-64 (citation omitted). 22 As discussed above, the ALJ properly rejected Dr. Abejuela’s opinions as 23 immaterial because they failed to satisfy the durational requirement and were 24 otherwise inconsistent with the overall medical record. Accordingly, the ALJ 25 properly omitted such evidence from the hypothetical questions posed to the 26 vocational expert. 27 A remand or reversal on this basis is not warranted. 28 /// 16 1 V. CONCLUSION 2 For the foregoing reasons, the decision of the Commissioner of Social 3 Security is affirmed. 4 LET JUDGMENT BE ENTERED ACCORDINGLY. 5 DATED: September 21, 2010 6 7 8 _____________ /s/____________________ Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17
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