Eleanor Valenzuela v. Michael J Astrue, No. 5:2012cv00327 - Document 16 (C.D. Cal. 2012)

Court Description: MEMORANDUM AND OPINION by Magistrate Judge Oswald Parada: (see document image for further details). Based on the foregoing, IT THEREFORE IS ORDERED that Judgment be entered affirming the decision of the Commissioner, and dismissing this action with prejudice. (ad)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 ELEANOR VALENZUELA, ) Case No. EDCV 12-327-OP ) Plaintiff, ) v. ) MEMORANDUM OPINION AND ) ORDER MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ) The Court1 now rules as follows with respect to the disputed issues listed in 17 18 19 20 the Joint Stipulation ( JS ).2 /// /// 21 22 1 24 2 Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before 23 the United States Magistrate Judge in the current action. (ECF Nos. 7, 8.) 25 26 27 28 As the Court advised the parties in its Case Management Order, the decision in this case is made on the basis of the pleadings, the Administrative Record, and the Joint Stipulation filed by the parties. In accordance with Rule 12(c) of the Federal Rules of Civil Procedure, the Court has determined which party is entitled to judgment under the standards set forth in 42 U.S.C. § 405(g). (ECF No. 6 at 3.) 1 1 I. 2 DISPUTED ISSUES 3 As reflected in the Joint Stipulation, the disputed issues raised by Plaintiff 4 as the grounds for reversal and/or remand are as follows: 5 (1) 6 7 Whether the Administrative Law Judge ( ALJ ) properly considered the opinion of Plaintiff s treating physician; and (2) Whether there is a inconsistency between the ALJ s finding that 8 Plaintiff can perform the jobs of merchandise processor and mail 9 order packer, and the Dictionary of Occupational Titles ( DOT ) 10 11 description of those occupations; (3) Whether the ALJ properly determined if Plaintiff s activities of daily 12 living establish the ability to perform full-time competitive 13 employment; and 14 (4) Whether the ALJ properly considered the lay witness testimony. 15 (JS at 4.) 16 II. 17 STANDARD OF REVIEW 18 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s decision 19 to determine whether the Commissioner s findings are supported by substantial 20 evidence and whether the proper legal standards were applied. DeLorme v. 21 Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means more 22 than a mere scintilla but less than a preponderance. Richardson v. Perales, 402 23 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971); Desrosiers v. Sec y of 24 Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial 25 evidence is such relevant evidence as a reasonable mind might accept as adequate 26 to support a conclusion. Richardson, 402 U.S. at 401 (citation omitted). The 27 Court must review the record as a whole and consider adverse as well as 28 2 1 supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986). 2 Where evidence is susceptible of more than one rational interpretation, the 3 Commissioner s decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 4 1452 (9th Cir. 1984). 5 III. 6 DISCUSSION 7 A. The ALJ s Findings. 8 The ALJ found that Plaintiff has the severe impairments of poorly 9 controlled hypertension; ankle pain; leg pain secondary to old fracture; history of 10 plantar fasciitis and calcaneal spur; obesity; alcohol dependence and abuse; major 11 depression; and post-traumatic stress disorder ( PTSD ). (Administrative Record 12 ( AR ) at 384.) The ALJ concluded that Plaintiff has the residual functional 13 capacity ( RFC ) to perform light work, including the ability to lift and/or carry 14 ten pounds frequently and twenty pounds occasionally; sit, stand, and/or walk for 15 six hours in an eight-hour workday with normal breaks; occasionally climb, stoop, 16 balance, crawl, bend, and/or crouch; with the limitation to unskilled, non-detailed, 17 and non-public work. (Id. at 386.) 18 Relying on the testimony of the vocational expert ( VE ), the ALJ 19 determined that given Plaintiff s age, education, work experience, and RFC, she is 20 capable of doing her past relevant work as a mail order packager as actually 21 performed (DOT 920.587-018), and merchandise processor as generally performed 22 (DOT No. 209.587-034). (AR at 392.) 23 B. The ALJ Properly Considered the Opinion of Plaintiff s Treating 24 Physician. 25 1. 26 On February 8, 2010, Plaintiff s treating physician, David Aryanpur, M.D., Background. 27 completed a two page check-box form titled Work Capacity Evaluation 28 3 1 (Mental). (Id. at 377-78.) In that form, Dr. Aryanpur indicated that Plaintiff had 2 extreme limitations in her ability to perform activities within a schedule, 3 maintain regular attendance, and be punctual; and to interact appropriately with 4 the general public. (Id. at 377.) Dr. Aryanpur noted marked limitations in 5 Plaintiff s ability to maintain attention and concentration for extended periods, get 6 along with co-workers or peers without distracting them or exhibiting behavioral 7 extremes; respond appropriately to changes in the work setting; be aware of 8 normal hazards and take appropriate precautions; and set realistic goals or make 9 plans independently of others. (Id. at 377-78.) Dr. Aryanpur opined that Plaintiff 10 would be absent from work two days or more per month. (Id. at 378.) 11 On January 27, 2011, Dr. Aryanpur completed another two page check-box 12 form titled Medical Opinion to Do Work-Related Activities (Mental). (Id. at 13 545-46.) In that form, Dr. Aryanpur indicated that Plaintiff was unable to meet 14 competitive standards with regard to her ability to: maintain attention for two 15 hours; maintain regular attendance and punctuality; complete a normal 16 workday/workweek without interruptions from psychologically-based symptoms; 17 perform at a consistent pace without an unreasonable number and length of rest 18 periods; accept instructions and respond appropriately to criticism from 19 supervisors; get along with co-workers or peers without unduly distracting them or 20 exhibiting behavior extremes; deal with normal work stress; understand and 21 remember detailed instructions; carry out detailed instructions; and deal with the 22 stress of semiskilled and unskilled work. (Id.) Dr. Aryanpur found Plaintiff 23 seriously limited, but not precluded with regard to her ability to: remember work24 like procedures; sustain an ordinary routine without special supervision; work in 25 coordination with or proximity to others without being unduly distracted; respond 26 appropriately to changes in a routine work setting; be aware of normal hazards and 27 take appropriate precautions; maintain socially appropriate behavior; travel in 28 4 1 unfamiliar places; and use public transportation. (Id.) Dr. Aryanpur also indicated 2 that Plaintiff was grooming and hygiene impaired, and indicated Depressive 3 and anxious symptoms impairing focus/concentration and ability to work 4 gainfully. (Id. at 546.) Dr. Aryanpur noted sleep disturbances, flashbacks, 5 anxiety, and low energy as additional reasons why Plaintiff would have difficulty 6 working at a regular job on a sustained basis, and stated that Plaintiff would be 7 absent from work as a result of her impairments more than four days per month. 8 (Id.) 9 The ALJ discussed Dr. Aryanpur s opinion, as follows: 10 The undersigned has read and considered the mental work 11 capacity evaluation completed by David Aryanopur [sic], M.D., dated 12 February 8, 2010. These statements of disability express an opinion on 13 an issue reserved to the Commissioner and the undersigned disregards 14 this conclusion regarding the claimant s disability based on 20 CFR 15 416.927(e). 16 In determining the claimant s mental residual functional 17 capacities, the undersigned has considered, but does not give significant 18 weight to, the opinion of the treating source, Dr. Aryanpour, [sic] as 19 documented in mental work capacity evaluation. . . . In this case, the 20 opinion of this treating source is not given controlling weight because 21 his opinion does not document significant positive objective clinical or 22 diagnostic findings to support the assessed functional limitations and 23 because these extreme functional limitations are inconsistent with the 24 record as a whole. 25 .... 26 Dr. Aryanpour s [sic] assessment of functional limitations is not 27 well supported with objective evidence, and his assessment is not 28 5 1 consistent with the record as a whole. Although, his assessment is 2 consistent at the initial intake when she first started mental treatments, 3 it is not consistent with her current records from 2009 to 2010. Further, 4 there is nothing in the medical treatment records to suggest, for example, 5 that any validity testing was performed by Dr. Aryanpour [sic]. In 6 addition, there is nothing in the medical treatment records to suggest that 7 any treating source considered whether the claimant s subjective 8 symptoms may have been motivated in whole or in part by secondary 9 gain. 10 The undersigned has also read and considered the more recent and 11 updated medical opinion regarding the claimant s mental ability to do 12 work-related activities completed by Dr. Aryanpour [sic] on January 27, 13 2011. Again, this checklist-style form appears to have been completed 14 as an accommodations to the claimant and includes only conclusions 15 regarding functional limitations without any rational for these 16 conclusions. The undersigned finds this evidence has no probative 17 value because any objective evidence does not support it. Further, even 18 Dr. Aryanpour s [sic] own recent findings do not support this opinion. 19 (Id. at 390 (citations omitted).) 20 Plaintiff contends that Dr. Aryanpur s opinions are fully supported by the 21 record and that the ALJ just chose to ignore these objective findings. (JS at 9.) 22 She claims that Dr. Aryanpur s treating notes show that Plaintiff would indeed 23 have problems in the areas set forth by Dr. Aryanpur, including the global 24 assessment of functioning ( GAF ) score 50, indicating she would have serious 25 problems in occupational functioning. (Id. at 10.) She also contends the ALJ 26 failed to provide an explicit explanation, supported by evidence in the record, of 27 the weight given to Plaintiff s treating physicians medical opinions, and failed to 28 6 1 provide specific and legitimate reasons for implicitly rejecting those opinions, and 2 without indicating which aspects of the opinions and findings that he rejected or 3 accepted. (Id. at 10-12.) The Court disagrees. 4 It is well-established in the Ninth Circuit that a treating physician s opinions 5 are entitled to special weight, because a treating physician is employed to cure and 6 has a greater opportunity to know and observe the patient as an individual. 7 McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989). The treating 8 physician s opinion is not, however, necessarily conclusive as to either a physical 9 condition or the ultimate issue of disability. Magallanes v. Bowen, 881 F.2d 747, 10 751 (9th Cir. 1989). The weight given a treating physician s opinion depends on 11 whether it is supported by sufficient medical data and is consistent with other 12 evidence in the record. See 20 C.F.R. § 404.1527(d)(2). If the treating 13 physician s opinion is uncontroverted by another doctor, it may be rejected only 14 for clear and convincing reasons. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 15 1995); Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). If the treating 16 physician s opinion is controverted, it may be rejected only if the ALJ makes 17 findings setting forth specific and legitimate reasons that are based on the 18 substantial evidence of record. Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 19 2002); Magallanes, 881 F.2d at 751; Winans v. Bowen, 853 F.2d 643, 647 (9th 20 Cir. 1987). 21 However, the Ninth Circuit also has held that [t]he ALJ need not accept the 22 opinion of any physician, including a treating physician, if that opinion is brief, 23 conclusory, and inadequately supported by clinical findings. Thomas, 278 F.3d 24 at 957; see also Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 25 1992). A treating or examining physician s opinion based on the plaintiff s own 26 complaints may be disregarded if the plaintiff s complaints have been properly 27 discounted. Morgan v. Comm r of Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 28 7 1 1999); see also Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997); Andrews 2 v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995). Additionally, [w]here the opinion 3 of the claimant s treating physician is contradicted, and the opinion of a 4 nontreating source is based on independent clinical findings that differ from those 5 of the treating physician, the opinion of the nontreating source may itself be 6 substantial evidence; it is then solely the province of the ALJ to resolve the 7 conflict. Andrews, 53 F.3d at 1041; Magallanes, 881 F.2d at 751; Miller v. 8 Heckler, 770 F.2d 845, 849 (9th Cir. 1985). 9 2. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Dr. Aryanpur s Opinion Was Inconsistent with the Record as a Whole and Not Supported by Substantial Evidence. The ALJ reviewed and discussed Plaintiff s mental health records from the Department of Mental Health, dating from April 21, 2009, to February 8, 2010. (AR at 388-89.) The ALJ noted that Plaintiff had cancelled or failed to show up for doctor appointments on at least eight occasions between May 4, 2009, and January 7, 2010. (Id. at 388 & n.2 (citation omitted).) The ALJ stated that this could either be an indication of an unwillingness to do what is necessary to improve her condition, or that her symptoms are not as severe as she reports. (Id. at 388.) The ALJ also summarized the treatment notes from the Department of Mental Health, stating that Plaintiff had been diagnosed at intake with major depression disorder with psychosis in partial to full remission, PTSD, and alcohol dependence,3 with a GAF score of 52.4 (Id. (citation omitted).) The ALJ also 24 25 3 26 4 At intake, Plaintiff reported drinking 12-18 beers daily. (AR at 365.) A GAF score between 51 and 60 indicates moderate symptoms (e.g., flat 27 affect and circumstantial speech, occasional panic attacks) or moderate difficulty (continued...) 28 8 1 noted that the mental status examination at that time revealed Plaintiff was 2 normal, average, and had no delusional or suicidal thoughts; she was 3 conservatively treated with medication. (Id. at 389.) 4 After a previous remand, Plaintiff submitted additional mental health 5 records dated from February 4, 2010, to August 5, 2011. (Id. at 388.) The ALJ 6 also summarized those records, noting monthly mental health visits, and 7 continuing conservative treatment with the medication, Abilify. (Id. at 389.) The 8 ALJ also pointed out that while Plaintiff had the same diagnoses, she was also 9 reported as doing a little bit better, with good to fair response to medication 10 and that her thought processes were normal. (Id. (citations omitted).) A mental 11 status exam on August 1, 2011, showed that she was normal, within normal 12 limits, appropriate, neutral, and [she] had good compliance and response to 13 medication. (Id. (citations omitted).) On March 17, 2010, a progress note 14 indicated that Plaintiff was experiencing difficulty performing daily living 15 functions because of consumption of alcohol. And, on June 30, 2011, she denied 16 alcohol or drug use to the consultative examiner. (Id. (citations omitted).) 17 18 19 20 21 22 23 24 As a threshold matter, the Commissioner has no obligation to credit or even consider GAF scores in the disability determination. See 65 Fed. Reg. 50746, 50764-65 (Aug. 21, 2000) ( The GAF scale . . . is the scale used in the multiaxial evaluation system endorsed by the American Psychiatric Association. It does not have a direct correlation to the severity requirements in our mental disorders listings. ); see also Howard v. Comm r of Soc. Sec., 276 F.3d 235, 241 (6th Cir. 2002) ( While a GAF score may be of considerable help to the ALJ in formulating 25 4 (...continued) in social, occupational, or school functioning (e.g., few friends, conflicts with 27 peers or co-workers). Diagnostic and Statistical Manual of Mental Disorders 34 28 (Am. Psychiatric Ass n ed., 4th ed. 2000). 26 9 1 the RFC, it is not essential to the RFC s accuracy. ). Here, the ALJ noted the 2 limited evidentiary value of the score and the fact that the score tends to reveal 3 only snapshots of impaired and improved behavior. (AR at 388 & n.3.) 4 Moreover, Plaintiff s score is not sufficiently low that it raises any serious 5 question about the ALJ s determination that Plaintiff s mental condition did not 6 significantly limit her ability to work. 7 In his decision, the ALJ also set forth a detailed summary of Plaintiff s 8 mental health evidence, including the state agency physicians reports, and the 9 consultative examination report conducted by psychiatrist Estelle Toby Goldstein, 10 M.D., who performed an examination on June 30, 2011, and to whose findings the 11 ALJ gave great weight. (Id. at 390 (citing id. at 538-43).) Dr. Goldstein noted 12 that Plaintiff s chief complaints were depression, sadness, crying, and thoughts of 13 past molestation. (Id. (citation omitted).) Other than noting a depressed mood, 14 Dr. Goldstein found Plaintiff to be overall normal. (Id. at 391.) Dr. Goldstein 15 noted Plaintiff could maintain personal care and do some household chores, 16 manage finances, interact with friends and family, make coffee, watch television, 17 prepare meals, and otherwise care for her personal needs. (Id. at 390-91 (citing id. 18 at 538-43).) Dr. Goldstein diagnosed Plaintiff with a major depressive disorder 19 and PTSD, and opined that Plaintiff had no mental limitations besides a mild 20 impairment in her ability to maintain concentration and attention, persistence and 21 pace. (Id. (citation omitted).) 22 23 24 25 26 27 28 The ALJ also reviewed the opinions of all the state agency physicians and consultative examiners, giving them some great weight. (Id. at 390.) With regard to Plaintiff s mental health, this included the October 2008 consultative examination report of Romulado R. Rodriguez, M.D. (Id. (citing id. at 283-89).) Dr. Rodriguez found Plaintiff had only slight to moderate limitations. (Id. at 28389.) The ALJ also reviewed the October 2008 Psychiatric Review Technique 10 1 forms prepared by State agency physician, D.R. Conte, M.D., who indicated 2 Plaintiff had moderate limitations in maintaining concentration, persistence, and 3 pace, but otherwise had only mild or no limitations, and concluded that Plaintiff 4 could do unskilled, nondetailed, and nonpublic work. (Id. at 390 (citing id at 3205 25).) Giving Plaintiff the benefit of the doubt, the ALJ also took into 6 consideration Plaintiff s subjective complaints and gave her a more restrictive 7 residual functional capacity than assessed by the consultative examiners. (Id.) 8 The Court finds that the ALJ fully and properly discounted the two check- 9 box forms prepared by Dr. Aryanpur, finding the very severe limitations listed on 10 that report were not supported by the medical record. This is a specific and 11 legitimate reason for discounting the opinion of a treating physician. Batson v. 12 Comm r, 359 F.3d 1190, 1191 (9th Cir. 2004) (holding that the ALJ reasonably 13 accorded a treating physician opinion minimal evidentiary weight because it 14 was in the form of a checklist [and] did not have supportive objective evidence ); 15 see also Bray v. Comm r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009) 16 (citing Thomas, 278 F.3d at 957) ( The ALJ need not accept the opinion of any 17 physician, including a treating physician, that is brief, conclusory, and 18 inadequately supported by the medical record. ). The ALJ also properly relied on 19 the consultative examiners opinions. Tonapetyan v. Halter, 242 F.3d 1144, 1149 20 (9th Cir. 2001) ( When confronted with conflicting medical opinions, an ALJ 21 need not accept a treating physician s opinion that is conclusory and brief and 22 unsupported by clinical findings ). 23 24 25 26 27 Based on the foregoing, the Court finds that the foregoing reasons given by the ALJ for discounting Dr. Aryanpur s opinions were specific and legitimate and supported by substantial evidence of record. /// 28 / / / 11 1 C. There Was No Inconsistency Between the ALJ s Findings Regarding 2 Plaintiff s Ability to Perform Past Relevant Work and the DOT. 3 Based on the testimony of a VE, the ALJ found that given Plaintiff s RFC, 4 she is capable of performing her past relevant work as a merchandise processor as 5 generally, but not actually performed; and as a mail order packer, as actually, but 6 not generally performed. (AR at 391.) Plaintiff contends that these jobs, as 7 described in the DOT, are inconsistent with her RFC because they both require the 8 performance of detailed tasks, which is inconsistent with her limitation to 9 nondetailed tasks, because they both require Level 2 reasoning skills. (JS at 1710 21.) Plaintiff also claims the mail order packer position is inconsistent with her 11 RFC because it is medium level work as generally performed. (Id. at 21.) 12 1. 13 Plaintiff contends that the two jobs are inconsistent with her RFC limiting 14 15 16 17 Level 2 Reasoning. her to nondetailed tasks because they both require the performance of detailed tasks. A job s reasoning level gauges the minimal ability a worker needs to 18 complete the job s tasks themselves. Meissl v. Barnhart, 403 F. Supp. 2d 981, 19 983 (C.D. Cal. 2005). Reasoning development is one of three divisions 5 20 comprising the General Educational Development ( GED ) Scale. DOT App. C. 21 The DOT indicates that there are six levels of reasoning development. Id. Level 2 22 provides that the claimant will be able to [a]pply commonsense understanding to 23 24 25 26 27 28 5 The GED scale embraces those aspects of education (formal and informal) which are required of the worker for satisfactory job performance. This is education of a general nature which does not have a recognized, fairly specific occupational objective. Ordinarily, such education is obtained in elementary school, high school, or college. However, it may be obtained from experience and self-study. DOT App. C. 12 1 carry out detailed but uninvolved written or oral instructions. Deal with problems 2 involving a few concrete variables in or from standardized situations. (See, e.g., 3 DOT 209.587-034.) Focusing on the fact that the word detailed is included in 4 the definition of Level 2 jobs, Plaintiff contends she is limited to a reasoning Level 5 1, which provides that the claimant will [a]pply commonsense understanding to 6 carry out simple one- or two-step instructions. Deal with standardized situations 7 with occasional or no variables in or from these situations encountered on the 8 job. (Id.) The Court disagrees. 9 In Meissl, the court rejected a similar argument. As explained by the court 10 in Meissl, the Social Security Regulations contain only two categories of abilities 11 in regard to understanding and remembering things: short and simple 12 instructions and detailed or complex instructions. Meissl, 403 F. Supp. 2d at 13 984. The DOT has many more gradations for measuring this ability, six 14 altogether. Id. The court explained: 15 To equate the Social Security regulations use of the term simple with 16 its use in the DOT would necessarily mean that all jobs with a reasoning 17 level of two or higher are encapsulated within the regulations use of the 18 word detail. Such a blunderbuss approach is not in keeping with the 19 finely calibrated nature in which the DOT measures a job s simplicity. 20 Id. 21 22 23 24 25 26 27 28 Furthermore, the term uninvolved in the DOT Level 2 explanation qualifies the term detailed and refutes any attempt to equate the Social Security Regulations use of the term detailed with the DOT s use of that term. Id. The Meissl court also found that a plaintiff s RFC must be compared with the DOT s reasoning scale. A reasoning level of one suggests the ability to perform slightly less than simple tasks that are in some sense repetitive. For example, they include the job of counting cows as they come off a truck or tapping the lid of a can with a 13 1 stick. Id. The ability to perform simple, repetitive instructions, therefore, 2 indicates a level of reasoning sophistication somewhere above Level 1. See, e.g., 3 Hackett v. Barnhart, 395 F.3d 1168, 1176 (10th Cir. 2005) (holding that level4 two reasoning appears more consistent with Plaintiff s RFC to simple and 5 routine work tasks ). The DOT s Level 2 definition provides that the job requires 6 the understanding to carry out detailed instructions, with the specific caveat that 7 the instructions be uninvolved that is, not a high level of reasoning. Meissl, 8 403 F. Supp. 2d at 985. 9 Here, the Court finds that the DOT s reasoning development Level 2 10 requirement does not conflict with the ALJ s prescribed limitation that Plaintiff 11 could perform only nondetailed work. See Meissl, 403 F. Supp. 2d at 984-85 12 (finding that reasoning development Level 2 does not conflict with the ALJ s 13 prescribed limitation that plaintiff perform simple, routine tasks); see generally 14 Hackett, 395 F.3d at 1176. Plaintiff s attempt to distinguish the DOT s reasoning 15 Level 2 classification from her RFC limitation to nondetailed work is without 16 merit. See Meissl, 403 F. Supp. 2d at 984-85; see also Eckard v. Astrue, 2010 WL 17 669895, at *8 (E.D. Cal. Feb. 29, 2012). 18 Accordingly, the Court finds that the ALJ sustained his burden of proving 19 there is work in the economy that Plaintiff can perform. Thus, there was no error. 20 2. 21 Plaintiff claims that because the job of mail order packer is classified by the Medium Level Work. 22 DOT as medium level work, her limitation to light work would exclude her from 23 performing this position. (JS at 21.) 24 25 26 27 28 The Administration may deny disability benefits when the claimant can perform the claimant s past relevant work as actually performed, or as usually or generally performed. Pinto v. Massanari, 249 F.3d 840, 845 (9th Cir. 2001). Although the claimant has the burden of proving an inability to perform his or her 14 1 past relevant work, the ALJ still has a duty to make the requisite factual findings 2 to support his [or her] conclusion. Id. at 844. To determine whether a claimant 3 has the residual capacity to perform his [or her] past relevant work, the 4 [Administration] must ascertain the demands of the claimant s former work and 5 then compare the demands with his [or her] present capacity . Villa v. Heckler, 6 797 F.2d 794, 797-98 (9th Cir. 1986); see 20 C.F.R. § 404.1520(e). The 7 Commissioner properly may deny benefits when the claimant can perform past 8 relevant work either as actually performed or as generally performed. Pinto, 249 9 F.3d at 845. Social Security Regulations name two sources of information that 10 may be used to define a claimant s past relevant work as actually performed: a 11 properly completed vocational report, SSR 82-61, and the claimant s own 12 testimony, SSR 82-41. Id. The best source for how a job is generally performed 13 is usually the Dictionary of Occupational Titles . Id. at 846. 14 Based on the testimony of the VE, the ALJ found that Plaintiff could 15 perform the job of mail order packer as actually performed, and that Plaintiff had 16 actually performed it at the light level. (AR at 391-92.) The ALJ was entitled to 17 rely on the VE s testimony regarding Plaintiff s past work as actually performed. 18 Moore v. Apfel, 216 F.3d 864, 869-70 (9th Cir. 2000). Thus, the ALJ s step 4 19 determination was proper. See 20 C.F.R. §§ 404.1560(b)(2), 416.960(b)(2) (VE 20 may offer testimony in response to hypothetical question about whether person 21 with claimant s impairments can meet demands of claimant s previous work 22 either as the claimant actually performed it or as generally performed in the 23 national economy ). 24 Moreover, even if the ALJ erred in finding that Plaintiff was capable of 25 performing the mail order packer job as actually performed, i.e., at the light level, 26 the error was harmless because the ALJ made the alternative finding that Plaintiff 27 could perform her past relevant work as merchandise processor as generally 28 15 1 performed, which, as generally performed, is classified by the DOT as light work. 2 (AR at 391-92); Carmickle v. Comm r, Soc. Sec. Admin., 533 F.3d 1155, 1162 3 (9th Cir. 2008) (harmless-error rule applies to review of administrative decisions 4 regarding disability); see also Gallo v. Comm r of Soc. Sec. Admin.., 449 F. 5 App x 648, 650 (9th Cir.2011) ( Because the ALJ satisfied his burden at Step 5 by 6 relying on the VE s testimony about the Addresser job, any error that the ALJ may 7 have committed by relying on the testimony about the credit checker job was 8 harmless (citing Carmickle, 533 F.3d at 1162)). 9 10 11 12 13 14 15 Based on the foregoing, the Court finds that there was no error. D. The ALJ Properly Determined Plaintiff s Activities of Daily Living Established Her Ability to Perform Full-Time Competitive Employment. In his decision, the ALJ stated the following regarding Plaintiff s activities of daily living: 16 In addition to the claimant s testimony, the undersigned has read 17 and considered the claimant s adult function report, dated August 5, 18 2008, and the statements of record and finds the claimant only credible 19 to the extent that she can do the work described herein. The claimant 20 stated she could do the following activities of daily living includ[ing]: 21 watching television, preparing her own meals, taking care of her son, 22 maintaining her personal care, doing household chores (i.e., laundry, 23 washing dishes, sweeping, cleaning refrigerator and/or bathroom), 24 shopping for groceries, driving or riding in a car, managing her own 25 finances, and attending support groups. 26 physical and mental limitations of lifting less than 10 pounds at a time 27 and walking for only 30 minutes. 28 16 However, she described 1 The undersigned notes some of the physical and mental abilities 2 and social interactions required in order to perform the above-described 3 activities of daily living are the same as those necessary for obtaining 4 and maintaining employment. The claimant s ability to participate in the 5 activities of daily living, stated above, undermined the credibility of the 6 claimant s allegations of functional limitations. 7 (AR at 386-87.) 8 Plaintiff contends that the ALJ erred in finding that because Plaintiff can 9 engage in these activities of daily living, she is also capable of performing and 10 sustaining full-time competitive employment. (JS at 27-30.) 11 An ALJ s assessment of pain severity and claimant credibility is entitled to 12 great weight. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. 13 Heckler, 779 F.2d 528, 531 (9th Cir. 1986). When, as here, an ALJ s disbelief of a 14 claimant s testimony is a critical factor in a decision to deny benefits, the ALJ 15 must make explicit credibility findings. Rashad v. Sullivan, 903 F.2d 1229, 1231 16 (9th Cir. 1990); Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981); see also 17 Albalos v. Sullivan, 907 F.2d 871, 874 (9th Cir. 1990) (an implicit finding that 18 claimant was not credible is insufficient). 19 Once a claimant has presented medical evidence of an underlying 20 21 impairment which could reasonably be expected to cause the symptoms alleged, 22 the ALJ may only discredit the claimant s testimony regarding subjective pain by 23 providing specific, clear, and convincing reasons for doing so. Lingenfelter v. 24 Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). An ALJ s credibility finding 25 must be properly supported by the record and sufficiently specific to ensure a 26 reviewing court that the ALJ did not arbitrarily reject a claimant s subjective 27 testimony. Bunnell v. Sullivan, 947 F.2d 341, 345-47 (9th Cir. 1991). An ALJ 28 may properly consider testimony from physicians . . . concerning the nature, 17 1 severity, and effect of the symptoms of which [claimant] complains, and may 2 properly rely on inconsistencies between claimant s testimony and claimant s 3 conduct and daily activities. See, e.g., Thomas, 278 F.3d at 958-59 (citation 4 omitted). An ALJ also may consider [t]he nature, location, onset, duration, 5 frequency, radiation, and intensity of any pain or other symptoms; 6 [p]recipitating and aggravating factors ; [t]ype, dosage, effectiveness, and 7 adverse side-effects of any medication ; [t]reatment, other than medication ; 8 [f]unctional restrictions ; [t]he claimant s daily activities ; unexplained, or 9 inadequately explained, failure to seek treatment or follow a prescribed course of 10 treatment ; and ordinary techniques of credibility evaluation, in assessing the 11 credibility of the allegedly disabling subjective symptoms. Bunnell, 947 F.2d at 12 346-47; see also Soc. Sec. Ruling 96-7p; 20 C.F.R. 404.1529 (2005); Morgan, 169 13 F.3d at 600 (ALJ may properly rely on plaintiff s daily activities, and on conflict 14 between claimant s testimony of subjective complaints and objective medical 15 evidence in the record); Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir. 1998) (ALJ 16 may properly rely on weak objective support, lack of treatment, daily activities 17 inconsistent with total disability, and helpful medication); Johnson v. Shalala, 60 18 F.3d 1428, 1432 (9th Cir. 1995) (ALJ may properly rely on the fact that only 19 conservative treatment had been prescribed); Orteza v. Shalala, 50 F.3d 748, 750 20 (9th Cir. 1995) (ALJ may properly rely on claimant s daily activities and the lack 21 of side effects from prescribed medication). 22 Here, the ALJ provided clear and convincing reasons for finding Plaintiff s 23 subjective complaints of impairment less than credible. 24 The ALJ cited Plaintiff s ability to engage in activities of daily living that 25 require the same physical and mental abilities as those necessary to obtain and 26 maintain employment. (AR at 386-87.) The ALJ noted that Plaintiff s ability to 27 perform these activities is inconsistent with an incapacitating or debilitating 28 18 1 condition. (Id.) Daily activities may be grounds for an adverse credibility finding 2 if a claimant is able to spend a substantial part of his day engaged in pursuits 3 involving the performance of physical functions that are transferable to a work 4 setting. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989); see also Stubbs5 Danielson v. Astrue, 539 F.3d 1169, 1175 (9th Cir. 2008) (ALJ sufficiently 6 explained his reasons for discrediting claimant s testimony when he said that the 7 record reflects that the claimant has normal activities of daily living, including 8 cooking, house cleaning, [and] doing laundry ); Burch v. Barnhart, 400 F.3d 676, 9 at 681 (9th Cir. 2005) (finding adverse credibility based on daily activities may be 10 proper if a claimant engaged in numerous daily activities involving skills that 11 could be transferred to the workplace ). Thus, it was not error for the ALJ to 12 conclude that Plaintiff s ability to engage in daily activities such as those she 13 described in her adult function report and in her testimony at the hearing, 14 undermines her credibility as to functional limitations. 15 Furthermore, the ALJ did not rely on this factor alone. He also noted that 16 Plaintiff s testimony and statements of record had been inconsistent. (AR at 387.) 17 For instance, she testified she was dismissed from her last job, but she reported to 18 the consultative examiner that she had quit because of depression and pain. (Id.) 19 She also denied any history of cigarette smoking, and illicit drug or alcohol use to 20 Dr. Panse, but the medical records as a whole clearly evidenced her extensive 21 history of alcohol abuse. (Id.) An ALJ may properly rely on inconsistencies in 22 the claimant s testimony to discredit her testimony. Johnson, 60 F.3d at 1434; 23 Thomas, 278 F.3d at 958-59 (ALJ may properly rely on inconsistencies between 24 claimant s testimony and claimant s conduct and daily activities). 25 The ALJ also relied on the observations of the agency claims representative 26 who interviewed Plaintiff face-to-face and stated that Plaintiff was well groomed, 27 polite, and cooperative, and whose only apparent difficulties seemed to be with 28 19 1 standing and walking, as she was walking very slowly.6 (AR at 387 (citing id. at 2 150).) 3 Finally, to the extent the ALJ relied on the fact that the objective medical 4 evidence does not support Plaintiff s alleged severity of symptoms, although a 5 lack of objective medical evidence may not be the sole reason for discounting a 6 plaintiff s credibility, it is nonetheless a legitimate and relevant factor to be 7 considered. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). Here, the 8 medical records indicated that Plaintiff s pain was fair and under control, and 9 the ALJ surmised that her failure to show up for her mental health appointments 10 might be an indication that her symptoms are not as severe as she purports. (AR at 11 388, 389 (citations omitted).) The ALJ also noted that Plaintiff was treated 12 conservatively for her mental health problems and that her mental status 13 examinations showed she was doing well and responding to medication. (Id. at 14 389 (citations omitted).) These are valid reasons for discounting credibility. Parra 15 v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007) (ALJ may discount claimant s 16 testimony based on conservative treatment); Tidwell, 161 F.3d at 602 (ALJ may 17 properly rely on lack of treatment and helpful medication); Johnson, 60 F.3d at 18 1432 (ALJ may properly rely on the fact that only conservative treatment has been 19 prescribed). 20 Based on the foregoing, the Court finds that the ALJ stated clear and 21 convincing reasons, supported by substantial evidence in the record, for rejecting 22 Plaintiff s credibility and, therefore, did not arbitrarily discredit her subjective 23 testimony. Thus, relief is not warranted on this claim. 24 /// 25 26 27 6 That report also indicated, without explanation, that Plaintiff had 28 difficulty seeing. (AR at 150.) 20 1 E. The ALJ Properly Considered the Lay Witness Testimony. 2 Plaintiff contends that the ALJ failed to properly consider the lay witness 3 testimony of Plaintiff s uncle, Ernest Valenzuela, who testified in an Adult Third 4 Party Function Report that Plaintiff watches television; does light housework; 5 takes care of her son; handles her personal care but does so very slowly and 6 carefully; makes simple meals; does laundry and cleaning with assistance; shops 7 for food an clothing; has no problem managing her money; has difficulties lifting, 8 squatting, bending, standing, reaching, sitting, walking, kneeling, climbing stairs, 9 completing tasks, and concentrating; cannot walk for more than a few minutes at a 10 time, needing a ten to twenty minute break after doing so; struggles with following 11 oral instructions; can follow written instructions; has difficulty handling stress and 12 change; and her pain keeps her from being able to complete a task. (AR at 16913 76.) 14 15 16 17 18 The ALJ found Mr. Valenzuela to be credible only to the extent that the claimant can do the work described herein. (Id. at 387.) The ALJ noted that the report has very little probative value in that it mirrors the claimant s function report and allegations. (Id.) He also noted: 19 20 21 22 23 24 25 26 The claimant s uncle is not a medical professional, and as a lay witness, he is not competent to make a diagnosis or argue the severity of the claimant s symptoms in relationship to her ability to work. As the claimant s uncle, he has the motivation to be helpful to the claimant so she can receive benefits. Further, the claimant s uncle s statements were not made under oath. Therefore, the undersigned finds their assertions are not credible as they are not supported by any medically determined impairment. 27 (Id.) 28 21 1 Title 20 C.F.R. §§ 404.1513(d) and 416.913(d) provide that, in addition to 2 medical evidence, the Commissioner may also use evidence from other sources to 3 show the severity of [an individual s] impairment(s) and how it affects [his] 4 ability to work, and the Ninth Circuit has repeatedly held that [d]escriptions by 5 friends and family members in a position to observe a claimant s symptoms and 6 daily activities have routinely been treated as competent evidence. Sprague v. 7 Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987). This applies equally to the sworn 8 hearing testimony of witnesses (see Nguyen v. Chater, 100 F.3d 1462, 1467 (9th 9 Cir. 1996)), as well as to unsworn7 statements and letters of friends and relatives. 10 See Schneider v. Comm r of Soc. Sec. Admin., 223 F.3d 968, 975 (9th Cir. 2000). 11 If the ALJ chooses to reject such evidence from other sources, he may not do so 12 without comment. Nguyen, 100 F.3d at 1467. The ALJ must provide reasons 13 that are germane to each witness. Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 14 1993). 15 Here, the ALJ provided sufficient reasons germane to Plaintiff s uncle for 16 rejecting his testimony. 17 The ALJ found that the testimony of Plaintiff s uncle mirrored her function 18 report and allegations. (AR at 387.) Where, as here, the lay witness testimony 19 mirrors the claimant s testimony, and the claimant is found to be not credible, the 20 ALJ may reject the lay witness testimony for that reason alone. See Valentine v. 21 Comm r of Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009) (holding that ALJ 22 gave a germane reason for rejecting claimant s wife s testimony where it was 23 similar to claimant s own complaints that were properly rejected). 24 The ALJ also referred to Plaintiff s uncle s motivation as a family member 25 26 27 7 Thus, the Court does not consider this a reason germane to this witness for 28 discounting his testimony. 22 1 to be helpful so Plaintiff could receive benefits. (AR at 387.) An ALJ may reject 2 a lay witness testimony if the ALJ finds the witness to be biased. See, e.g., 3 Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006) (finding the ALJ s 4 consideration of the claimant s prior girlfriend s close relationship with the 5 plaintiff and desire to help him as a possible reason for bias was a reason germane 6 to that witness). However, [t]he fact that a lay witness is a family member cannot 7 be a ground for rejecting his or her testimony. Smolen, 80 F.3d at 1289; see also 8 Valentine, 574 F.3d at 694 (finding that being an interested party in the abstract 9 was insufficient to reject a spouse s testimony). Thus, the fact that Plaintiff s 10 uncle has a motivation as her uncle to help her is not a sufficient reason germane 11 to him for discrediting his testimony. 12 Furthermore, the ALJ rejected Plaintiff s uncle s testimony because he is 13 not competent to make a diagnosis or argue the severity of Plaintiff s symptoms in 14 relationship to her ability to work. (AR at 387.) An ALJ need not discuss 15 medical diagnoses made by lay witnesses because they are beyond the 16 competence of lay witnesses and therefore do not constitute competent evidence. 17 Nguyen, 100 F.3d at 1467 (citing 20 C.F.R. § 404.1513(a)). However, lay 18 witness testimony as to a claimant s symptoms or how an impairment affects 19 ability to work is competent evidence, and therefore cannot be disregarded without 20 comment. Id. (citations omitted). Thus, the ALJ erred in finding Plaintiff s uncle 21 incompetent to testify regarding the effect of Plaintiff s symptoms on her ability to 22 work. 23 24 25 26 27 28 Nonetheless, because the ALJ provided at least one significant reason for rejecting Plaintiff s uncle s testimony that was germane to him, any error was harmless. See Carmickle, 533 F.3d at 1162-63 (finding an error by the ALJ with respect to one or more factors in a credibility determination may be harmless if there remains substantial evidence supporting the ALJ s conclusions in that 23 1 regard). 2 Based on the foregoing, the Court finds that relief is not warranted on 3 Plaintiff s claim. 4 5 6 7 8 9 IV. ORDER Based on the foregoing, IT THEREFORE IS ORDERED that Judgment be entered affirming the decision of the Commissioner, and dismissing this action with prejudice. 10 11 12 Dated: November 6, 2012 ______________________________ HONORABLE OSWALD PARADA United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 24

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