Maya J Ripley v. Michael J Astrue, No. 5:2012cv02080 - Document 19 (C.D. Cal. 2013)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Sheri Pym: (see document image for further details). IT IS THEREFORE ORDERED that Judgment shall be entered REVERSING the decision of the Commissioner denying benefits, and REMANDING the matter to the Commissioner for further administrative action consistent with this decision. (ad) Modified on 10/22/2013 (ad).

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MAYA J. RIPLEY, Case No. ED CV 12-2080-SP 12 MEMORANDUM OPINION AND ORDER 13 14 15 16 17 18 ) ) Plaintiff, ) ) v. ) ) ) CAROLYN W. COLVIN, ) Acting Commissioner of Social Security ) Administration, ) ) Defendant. ) ) ) 19 I. 20 INTRODUCTION 21 On November 30, 2012, plaintiff Maya J. Ripley filed a complaint against 22 the Commissioner of the Social Security Administration ( Commissioner ), 23 seeking a review of a denial of Disability Insurance Benefits ( DIB ) and 24 Supplemental Security Income benefits ( SSI ). Both plaintiff and defendant have 25 consented to proceed for all purposes before the assigned Magistrate Judge 26 pursuant to 28 U.S.C. § 636(c). The court deems the matter suitable for 27 28 1 1 adjudication without oral argument. 2 Plaintiff presents three issues for decision: (1) whether the Administrative 3 Law Judge ( ALJ ) properly considered the opinion of plaintiff s treating 4 psychiatrist; (2) whether the ALJ properly considered the opinion of the 5 consultative examiner; and (3) whether the ALJ properly considered plaintiff s 6 credibility. Plaintiff s Memorandum in Support of Complaint ( P. Mem. ) at 3-14. 7 Having carefully studied, inter alia, the parties moving papers, the 8 Administrative Record ( AR ), and the decision of the ALJ, the court concludes 9 that, as detailed herein, the ALJ properly considered the limitation provided by the 10 consultative examiner and properly discounted plaintiff s credibility. However, the 11 ALJ improperly rejected the opinions of plaintiff s treating physician without 12 providing specific and legitimate reasons supported by substantial evidence for 13 doing so. Therefore, the court remands this matter to the Commissioner in 14 accordance with the principles and instructions enunciated in this Memorandum 15 Opinion and Order. 16 II. 17 FACTUAL AND PROCEDURAL BACKGROUND 18 Plaintiff, who was thirty-two years old on the alleged disability onset date, 19 has at least a high school education.1 AR at 20, 262, 293-94. She has past relevant 20 work experience in child care. Id. at 19, 64. 21 On August 6, 2008, plaintiff filed an application for DIB and on July 31, 22 2008 she filed an application for SSI benefits. Id. at 91, 262-68. Plaintiff alleged 23 24 1 In her disability reports plaintiff indicates that she attended three years of 25 college. AR 293-94, 352. But the name of the school she lists is Alta Loma High School, and she indicates that she completed both high school and college in June 26 of 1992. Id. at 293-94. 27 28 2 1 an onset date of June 29, 2007. Id. at 8, 262, 265. The Commissioner denied 2 plaintiff s application initially and upon reconsideration, after which she filed a 3 request for a hearing. 4 On April 14, 2010, plaintiff, represented by counsel, appeared and testified 5 before the ALJ. Id. at 30, 33-44, 52-53. The ALJ also heard testimony from 6 Arnold Ostrow, a medical expert, Jerry Younkin, plaintiff s mother s fiancé, and 7 Joseph H. Torres, a vocational expert. Id. at 31-33, 44-52, 54. 8 On July 30, 2010, the ALJ denied plaintiff s request for benefits. Id. at 100. 9 Plaintiff filed a Request for Review with the Appeals Council, and on September 10 10, 2011 the Appeals Council remanded the claims to the ALJ for further 11 consideration. Id. at 140. In its remand order, the Appeals Council directed the 12 ALJ to: re-evaluate plaintiff s medically determinable impairments at step two; 13 further consider plaintiff s mental impairment in accordance with the technique 14 described in 20 CFR §§ 404.1520(a) and 416.920(a); further consider plaintiff s 15 residual functional capacity ( RFC ), and provide rationale with specific references 16 to evidence of record; and if warranted, obtain supplemental evidence from a 17 vocational expert to clarify the effect of the assessed limitation on plaintiff s 18 occupational base. Id. at 142-43. 19 In light of the remand, the ALJ held another hearing on December 21, 2011. 20 Id. at 58-83. Plaintiff, represented by counsel, testified as did Alan Boroskin, a 21 vocational expert, and Marsha Record, plaintiff s mother. Id. On June 8, 2012, the 22 ALJ again denied benefits. Id. at 21. 23 Applying the well-known five-step sequential evaluation process, the ALJ 24 found, at step one, that the plaintiff had not engaged in substantial gainful activity 25 since her alleged onset date of June 29, 2007. Id. at 10. 26 At step two, the ALJ found that plaintiff suffered from the following severe 27 28 3 1 impairments: vasovagal syncope, lumbar disc disease, anxiety, depression, and 2 auditory hallucinations. Id. at 10-12. 3 At step three, the ALJ found that plaintiff s impairments, whether 4 individually or in combination, did not meet or medically equal one of the listed 5 impairments set forth in 20 C.F.R. part 404, Subpart P, Appendix 1. Id. at 12-15. The ALJ then assessed plaintiff s RFC,2 and determined she had the capacity 6 7 to perform light work as defined in 20 C.F.R. § 404.1567(b) with the following 8 limitations: 9 lift and carry 20 pounds occasionally, 10 pounds frequently; sit for 6 10 hours; stand and walk for 6 hours; must be able to take a break every 11 hour for one to three minutes; all postural activities are limited to 12 occasional, except for never climbing ladders, ropes, and scaffolds; 13 avoid intense interpersonal interactions; limited to frequent contact 14 with the public; avoid safety operations; and no high production quota 15 work, such as rapid assembly work. 16 Id. at 15. 17 At step four the ALJ found plaintiff was unable to perform any past relevant 18 work, which was in child care. Id. at 19. 19 At step five, based upon plaintiff s age, education, work experience, and 20 RFC, the ALJ concluded that there were jobs that exist in significant numbers in 21 the national economy that the claimant can perform, including photo copy 22 23 24 25 26 27 28 2 Residual functional capacity is what a claimant can do despite existing exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155-56 n.5-7 (9th Cir. 1989). Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the claimant s residual functional capacity. Massachi v. Astrue, 486 F.3d 1149, 1151 n.2 (9th Cir. 2007). 4 1 machine operator and office helper. Id. at 20. Consequently, the ALJ concluded 2 that plaintiff did not suffer from a disability as defined by the Social Security Act. 3 Id. at 21. 4 Plaintiff filed a timely request for review of the ALJ s decision, which was 5 denied by the Appeals Council. Id. at 1-3. The ALJ s decision stands as the final 6 decision of the Commissioner. 7 III. 8 STANDARD OF REVIEW 9 This court is empowered to review decisions by the Commissioner to deny 10 benefits. 42 U.S.C. § 405(g). The findings and decision of the Commissioner must 11 be upheld if they are free of legal error and supported by substantial evidence. 12 Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) (as amended). But if 13 the court determines that the ALJ s findings are based on legal error or are not 14 supported by substantial evidence in the record, the court may reject the findings 15 and set aside the decision to deny benefits. Aukland v. Massanari, 257 F.3d 1033, 16 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 1144, 1147 (9th Cir. 2001). 17 Substantial evidence is more than a mere scintilla, but less than a 18 preponderance. Aukland, 257 F.3d at 1035. Substantial evidence is such 19 relevant evidence which a reasonable person might accept as adequate to support 20 a conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 21 F.3d at 459. To determine whether substantial evidence supports the ALJ s 22 finding, the reviewing court must review the administrative record as a whole, 23 weighing both the evidence that supports and the evidence that detracts from the 24 ALJ s conclusion. Mayes, 276 F.3d at 459. The ALJ s decision cannot be 25 affirmed simply by isolating a specific quantum of supporting evidence. 26 Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th 27 28 5 1 Cir. 1998)). If the evidence can reasonably support either affirming or reversing 2 the ALJ s decision, the reviewing court may not substitute its judgment for that 3 of the ALJ. Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 4 1992)). 5 IV. 6 DISCUSSION 7 A. The ALJ Failed to Provide Specific and Legitimate Reasons for 8 Rejecting the Opinions of Plaintiff s Treating Physician 9 Plaintiff argues that the ALJ failed to properly consider the opinions of 10 plaintiff s treating physician, Dr. Soor-Melka. P. Mem. at 3-11. Specifically, 11 plaintiff contends the ALJ failed to give specific and legitimate reasons for 12 discounting Dr. Soor-Melka s opinions. Id. at 7. The court agrees. 13 In evaluating medical opinions, Ninth Circuit case law and Social Security 14 regulations distinguish among the opinions of three types of physicians: (1) those 15 who treat the claimant (treating physicians); (2) those who examine but do not treat 16 the claimant (examining physicians); and (3) those who neither examine nor treat 17 the claimant (nonexamining physicians). Lester v. Chater, 81 F.3d 821, 830 (9th 18 Cir. 1996); see also 20 C.F.R. § 404.1527(c) (prescribing the respective weight to 19 be given the opinions of treating sources and examining sources). As a general 20 rule, more weight should be given to the opinion of a treating source than to the 21 opinion of doctors who do not treat the claimant. Lester, 81 F.3d at 830 (citation 22 omitted); accord Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 1036 (9th Cir. 23 2003). This is so because a treating physician is employed to cure and has a 24 greater opportunity to know and observe the patient as an individual. Sprague v. 25 Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987) (citation omitted). The opinion of an 26 examining physician is, in turn, entitled to greater weight than the opinion of a 27 28 6 1 nonexamining physician. Lester, 81 F.3d at 830 (citations omitted). 2 Where the treating physician s opinion is not contradicted by another 3 doctor, it may be rejected only for clear and convincing reasons. Benton, 331 4 F.3d at 1036; see also Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) 5 ( While the ALJ may disregard the opinion of a treating physician, whether or not 6 controverted, the ALJ may reject an uncontroverted opinion of a treating physician 7 only for clear and convincing reasons. (citation omitted)). If the treating 8 physician s opinion is contradicted by other opinions, the ALJ must provide 9 specific and legitimate reasons supported by substantial evidence for rejecting it. 10 Lester, 81 F.3d at 830 (internal quotation marks and citation omitted); accord 11 Reddick, 157 F.3d at 725. The ALJ can meet the requisite specific and legitimate 12 standard by setting out a detailed and thorough summary of the facts and 13 conflicting clinical evidence, stating his interpretation thereof, and making 14 findings. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (internal 15 quotation marks and citation omitted). The ALJ must do more than offer his 16 conclusions. He must set forth his own interpretation and explain why they, rather 17 than the doctors , are correct. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) 18 (citation omitted). 19 On September 15, 2011, Dr. Soor-Melka completed a medical report 20 diagnosing plaintiff with schizophrenic disorder and noting that plaintiff was 21 permanently incapacitated and could perform no work. AR at 791. On October 22 13, 2011, Dr. Soor-Melka also completed a check-the-box form regarding 23 plaintiff s ability to do work-related activities. Id. at 794-95. The form indicates 24 various mental abilities, such as remembering procedures and instructions, paying 25 attention, interacting with others, and handling work stress, with corresponding 26 boxes to indicate the claimant s ability in each given area. Id. The levels of ability 27 28 7 1 in descending order are: unlimited or very good, limited but satisfactory, 2 seriously limited but not precluded, unable to meet competitive standards, and 3 no useful ability to function. Id. In a majority of the categories, Dr. Soor-Melka 4 indicated that plaintiff would be unable to meet competitive standards. See id. 5 After summarizing Dr. Soor-Melka s opinions, the ALJ stated: 6 [T]his opinion is not consistent with the full medical evidence of 7 record. The treatment notes show that the claimant s depression is not 8 as severe as alleged (see for example Exhibits 7F; 23F). Additionally, 9 the treatment notes show her symptoms are fairly stable even when her 10 compliance is only noted as fair (Exhibits 26F; 31F). The full medical 11 evidence of record shows the claimant s impairments are not as severe 12 as indicated by Dr. Soor-Melka. Thus, no weight is given to her 13 opinions. 14 Id. at 15. 15 It is unclear from the record whether Dr. Soor-Melka s opinions are directly 16 contradicted. The ALJ does not cite a contradictory opinion regarding plaintiff s 17 ability to work, but instead refers to the full medical evidence of record. Id. Dr. 18 Skopec, the state agency psychiatric consultant, opined that plaintiff had only 19 moderate restriction of activities in her daily life (id. at 558), thus arguably 20 contradicting Dr. Soor-Melka s opinion that plaintiff could perform no work. But 21 the ALJ gave little weight to Dr. Skopec s findings. Id. at 14. Nevertheless, even 22 assuming Dr. Soor-Melka s opinions are contradicted, the ALJ must still provide 23 specific and legitimate reasons for rejecting the opinions of the treating physician. 24 See Lester, 81 F.3d at 830. 25 In giving no weight to Dr. Soor-Melka s opinion that plaintiff was unable to 26 engage in any work, the ALJ first points to exhibits 7F and 23F as examples of 27 28 8 1 evidence that plaintiff s depression is not as severe as alleged. AR at 15. Exhibit 2 7F includes an evaluation completed by Dr. Schmid, one of plaintiff s treating 3 psychologists, which notes plaintiff s reason for seeking services, her medical 4 history, and her medications and allergies. Id. at 527-28. Dr. Schmid s evaluation 5 is followed by a form titled Current Psychiatric Complaints by Syndrome, in 6 which symptoms are checked or circled if present. Id. at 529-33. Finally, exhibit 7 7F contains Dr. Schmid s treatment notes from October 30, 2008, November 11, 8 2008, November 20, 2008, December 9, 2008, and December 23, 2009. Id. at 5349 36. 10 The ALJ s parenthetical cite to exhibit 7F leaves it unclear as to what 11 specifically the ALJ found in exhibit 7F undermines Dr. Soor-Melka s opinion and 12 shows plaintiff s depression is not as severe as alleged. Dr. Schmid noted that 13 plaintiff had recurrent depressed mood, anhedonia, insomnia, and anergia. Id. at 14 531. Additionally, Dr. Schmid noted plaintiff s inappropriate appearance ( heavy 15 makeup and malodorous ) and impaired concentration. Id. at 531-32. Dr. 16 Schmid s treating notes indicate plaintiff experienced dizziness, to the point of 17 needing to lie on the floor on one occasion (id. at 534), and she felt fatigued with 18 no energy all the time. Id. at 535; see also id. at 534, 536. It is thus not readily 19 apparent what in exhibit 7F demonstrates plaintiff s depression is not as severe as 20 alleged. 21 The ALJ also cites exhibit 23F as an example of plaintiff s depression being 22 less severe than alleged. Id. at 15. Exhibit 23F includes a psychiatric evaluation 23 from Dr. Mejia on April 2, 2010 (id. at 649-50), and an adult clinical assessment 24 and medication visit note by Andrea Savala, licensed marriage and family therapist, 25 on February 24, 2010. Id. at 651-56. Dr. Mejia s April 20, 2010 report indicates 26 plaintiff has major depressive disorder, is learning disabled, and has fainting spells. 27 28 9 1 Id. at 650. Dr. Savala s February 24, 2010 report indicates plaintiff has paranoid 2 thoughts, difficulty focusing, impaired insight, and depressed mood. Id. at 655. 3 Similar to exhibit 7F, it is likewise unclear what specifically about exhibit 23F 4 demonstrates plaintiff s depression is not as severe as alleged. 5 The ALJ does not detail conflicting evidence and lay out his interpretations 6 thereof (see Magallanes, 881 F.2d at 751) but instead simply states see for 7 example Exhibits 7F and 23F. AR at 15. The only evidence in exhibits 7F and 8 23F that appears to support the ALJ s assertion that plaintiff s depression is not as 9 severe as alleged is the fact that Dr. Schmid gave plaintiff a GAF score of 65, 10 indicating that plaintiff is generally functioning well, (id. at 533) and the fact that 11 Dr. Salva gave plaintiff a GAF score of 60, indicating that plaintiff has moderate 12 symptoms. Id. at 650. But the ALJ s lack of specificity does not satisfy the 13 detailed and thorough summary of the facts and conflicting clinical evidence 14 required of the ALJ. Magallanes, 881 F.2d at 751. 15 In rejecting Dr. Soor-Melka s opinions the ALJ also points to exhibits 26F 16 and 31F as evidence that plaintiff s symptoms are stable when she is on her 17 medication. Id. at 15. Exhibit 26F and 31F include a list of medications plaintiff 18 was taking by date, prepared by Dr. Soor-Melka (AR at 674-75), and 19 corresponding notes from each of plaintiff s medication visits with Dr. Soor20 Melka. Id. at 676-682, 763-785. On four of the eleven occasions that plaintiff 21 visited Dr. Soor-Melka for a medication visit, Dr. Soor-Melka noted plaintiff s 22 recovery update as fairly stable on medication. Id. at 676-78, 764, 766-68. The 23 ALJ does not explain how plaintiff s stability when on medication conflicts with 24 Dr. Soor-Melka s conclusion that she can perform no work. The two are not 25 necessarily mutually exclusive and the ALJ neither elaborates as to how this 26 evidence contradicts Dr. Soor-Melka s opinion, nor favorably cites any other 27 28 10 1 professional opinion suggesting plaintiff is less incapacitated than Dr. Soor-Melka 2 found. 3 By stating that Dr. Soor-Melka s opinions are not consistent with the full 4 medical evidence of record, and providing parenthetical cites with no further 5 explanation for his conclusions, the ALJ fails to provide the specific evidence in 6 the record required to reject the opinion of the treating physician. See Embrey v. 7 Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988) ( To say that medical opinions are 8 not supported by sufficient objective findings . . . does not achieve the level of 9 specificity our prior cases have required. ). While the ALJ is not bound by a 10 treating physician s opinion and, indeed, may opt to give greater weight to a 11 consulting physician s opinion (see Smolen v. Chater, 830 F.3d 1273, 1285 (9th 12 Cir. 1996)), the ALJ here failed to give specific and legitimate reasons for rejecting 13 the treating physician s opinion in preference of another opinion. In fact, it is 14 unclear what evidence the ALJ did rely on for his findings regarding plaintiff s 15 mental limitations. In determining the severity of plaintiff s impairments at step 16 three, the ALJ gave little weight to the state agency psychiatric consultant, Dr. 17 Skopec, no weight to plaintiff s treating physician, Dr. Soor-Melka, and no 18 weight to the social worker, Larry Sanchez. Id. at 14-15. Additionally, in 19 determining the RFC, the ALJ again gave little weight to Dr. Skopec. Id. at 18. 20 The court recognizes, as defendant points out, that a treating physician s 21 opinions are not accorded more weight if they are conclusory or not supported by 22 medical evidence. See Batson v. Comm r of Soc. Sec., 359 F.3d 1190, 1195 (9th 23 Cir. 2004) (finding an ALJ may discredit a treating physicians s opinions that are 24 conclusory, brief, and unsupported by the record as a whole or by objective medical 25 evidence); Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996) (ALJ properly 26 rejected doctor s opinion because he used check-off reports that did not contain any 27 28 11 1 explanation of the basis for the conclusions). Dr. Soor-Melka s report did not give 2 a detailed basis for her conclusion that plaintiff could engage in no work (AR at 3 791), and her accompanying medical evaluation of plaintiff s ability to perform 4 work-related activities was a check the box form. AR at 794-95. But the ALJ did 5 not address theses issues as reasons for discrediting her report. Instead, the ALJ 6 reasoned that Dr. Soor-Melka s report was simply not consistent with the full 7 medical evidence of record. Id. at 15. The court is limited to review the reasons 8 the ALJ asserts, not the reasons that the ALJ could have given. Connett v. 9 Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). 10 In sum, the ALJ erred in failing to provide specific and legitimate reasons for 11 discounting the opinion of Dr. Soor-Melka. 12 B. The ALJ Properly Included the Non-Exertional Limitation Provided by 13 Dr. Karamlou in the RFC 14 Plaintiff next contends that the ALJ failed to properly consider the opinions 15 of the consultative examiner, Dr. Azis Karamlou. P. Mem. at 11. Dr. Karamlou 16 opined that plaintiff could do medium exertional work, with additional limitations 17 including taking frequent breaks. AR at 18, 811-15. Plaintiff agrees with the 18 ALJ s rejection of Dr. Karamlou s opinion that plaintiff could perform medium 19 work, but contends that this rejection does not extend to Dr. Karamlou s opinion 20 regarding the non-exertional limitation that plaintiff take breaks frequently. P. 21 Mem. at 11. As such, plaintiff contends the ALJ s RFC erroneously fails to include 22 Dr. Karamlou s suggested limitation. Id. 23 As with the treating physician, the Commissioner must present clear and 24 convincing reasons for rejecting the uncontroverted opinion of an examining 25 physician, and may reject the controverted opinion of an examining physician only 26 for specific and legitimate reasons that are supported by substantial evidence. 27 28 12 1 Carmickle v. Comm'r Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) 2 (citations omitted); see also Hill v. Astrue, 698 F.3d 1153 (9th Cir. 2012). 3 (reversing ALJ for not giving proper weight to examining psychologist s opinion). 4 On March 2, 2012, Dr. Karamlou performed an internal medicine 5 consultation at the request of the Department of Social Services. AR at 811-15. 6 He concluded that plaintiff could perform medium work, with some additional 7 limitations. See id. at 815. At issue here, Dr. Karamlou opined that in an eight8 hour workday plaintiff should take normal breaks and should change positions 9 frequently. Id. The ALJ gave little weight to Dr. Karamlou s opinions, stating: 10 Dr. Karamlou opined that the claimant would be capable of medium work with 11 additional postural and environmental limitations (Exhibit 36F). As discussed 12 above, the full medical evidence of record shows the claimant cannot perform 13 medium work. Id. at 18. The RFC provided by the ALJ includes the limitation 14 that plaintiff must be able to take a break every hour for one to three minutes. Id. 15 at 15. Plaintiff agrees with the ALJ s rejection of Dr. Karamlou s opinion 16 regarding medium work, but contends that the portion of the RFC requiring hourly 17 breaks is inconsistent with Dr. Karamlou s opinion that plaintiff should change 18 positions frequently. For this limitation, plaintiff argues, the ALJ was required to 19 provide separate, specific and legitimate reasons for rejection. P. Mem. at 12. 20 The ALJ is required to consider all of the limitations imposed by the 21 claimant's impairments (Carmickle, 533 F.3d at 1164), but plaintiff has failed to 22 persuade the court that the hourly breaks requirement included in the RFC 23 constitutes a failure of the ALJ to include Dr. Karamlou s suggested limitation of 24 frequent breaks. Plaintiff does not directly contend, and has failed to 25 demonstrate, that frequent and every hour for one to three minutes are 26 inconsistent. It appears that the ALJ not only considered but also included the need 27 28 13 1 for frequent breaks, explaining that the hourly breaks were necessary to help 2 prevent the onset of back pain symptoms that could preclude the performance of all 3 work activity. AR at 17. 4 Thus, the RFC adequately captured the limitation provided by Dr. Karamlou. 5 See Stubbs-Danielson v. Astrue, 539 F.3d 1169 (9th Cir. 2008) (finding that the 6 inclusion of a simple tasks limitation in the RFC adequately encompassed and 7 was consistent with pace and mental limitations suggested by a treating physician). 8 C. The ALJ Properly Discounted Plaintiff s Credibilty 9 Lastly, plaintiff alleges the ALJ failed to give clear and convincing reasons 10 for rejecting plaintiff s credibility. P. Mem. at 13. Specifically, plaintiff alleges 11 that the ALJ only discredited plaintiff s credibility regarding her mental 12 impairments but failed to evaluate plaintiff s credibility with regard to her physical 13 impairments. Id. at 13, 19-23. Having carefully reviewed the record, the court 14 disagrees. 15 The Commissioner must make specific credibility findings, supported by the 16 record. Social Security Regulation 96-7p. To determine whether testimony 17 concerning symptoms is credible, the Commissioner engages in a two-step 18 analysis. Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). First, the 19 Commissioner must determine whether a claimant produced objective medical 20 evidence of an underlying impairment which could reasonably be expected to 21 produce the pain or other symptoms alleged. Id. at 1036 (quoting Bunnell v. 22 Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). Second, an ALJ may reject 23 the claimant s testimony upon (1) finding evidence of malingering, or (2) offering 24 specific, clear and convincing reasons for doing so. Smolen, 80 F.3d at 1281; 25 Benton, 331 F.3d at 1040. 26 General assertions that the claimant s testimony is not credible are 27 28 14 1 insufficient. See Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007). The ALJ 2 must identify what testimony is not credible and what evidence undermines the 3 claimant s complaints. Id. (quoting Lester, 81 F.3d at 834). The Commissioner 4 may consider several factors in weighing a claimant s credibility, including: (1) 5 ordinary techniques of credibility evaluation such as a claimant s reputation for 6 lying; (2) the failure to seek treatment or follow a prescribed course of treatment; 7 and (3) a claimant s daily activities. Tommasetti v. Astrue, 533 F.3d 1035, 1039 8 (9th Cir. 2008); Bunnell, 947 F.2d at 346-47. Additionally, contradictions in the 9 record may support rejection of credibility. Berry v. Astrue, 622 F.3d 1228, 1236 10 (9th Cir. 2010). 11 Here, the ALJ here found that plaintiff s medically determinable 12 impairments could reasonably be expected to cause the alleged symptoms, but that 13 her statements concerning the intensity, persistence and limiting effects of these 14 symptoms are not credible to the extent they are inconsistent with the [RFC] 15 assessment. AR at 16. The ALJ provided several reasons for discounting 16 plaintiff s credibility. Id. at 18-19. 17 Foremost, there is affirmative evidence of malingering in the record. AR at 18 18-19, 660. On May 27, 2010, plaintiff underwent a complete psychological 19 evaluation at the request of the Department of Social Services (id. at 657) due to 20 reports of a psychological condition but lack of a treatment record to support her 21 diagnosis. Id. at 18. The consultative examiner, Dr. Goldman, noted that the trail 22 making test she administered, a test designed to test an individual s attention and 23 concentration, was invalid due to plaintiff s lack of effort and alleged inability to 24 complete the test. Id. at 660. Additionally, the Minnesota Multiphasic 25 Personality Inventory Dr. Goldman administered provided an invalid profile and 26 indicated plaintiff over reported psychopathology in an attempt to appear more 27 28 15 1 disturbed than she is in reality. Id. Dr. Goldman concluded that plaintiff s 2 functional limitations were unable to be accurately assessed due to malingering. 3 Id. at 661. This evidence of malingering was a sufficient basis for the ALJ to 4 conclude plaintiff was not credible. 5 Furthermore, although he was not required to, the ALJ provided clear and 6 convincing reasons for rejecting plaintiff s credibility. The ALJ discounted 7 plaintiff s credibility because: (1) her allegations were inconsistent with the 8 objective medical evidence of record; and (2) she attempted to rely on the non9 credible statements of her mother. Id. at 18-19. 10 The ALJ s first ground for discounting plaintiff s credibility was the 11 inconsistency of her allegations with the objective medical evidence in the record. 12 AR at 18. Specifically, the ALJ noted that plaintiff initially alleged that she only 13 suffered from physical impairments (id. at 287), and only after her initial case was 14 denied did she allege the addition of mental impairments. Id. at 18, 351, 386. This 15 in spite of the fact that her mother maintains she was in special education classes 16 during all of her year of education. Id. at 18. Moreover, plaintiff noted that she 17 stopped working because of her back pain, not because of any mental deficiency. 18 Id. These inconsistencies are a proper basis for the ALJ to discount plaintiff s 19 credibility. See Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). 20 Second, the ALJ found that plaintiff s observed capabilities and performance 21 at her consultative exams demonstrated that she is more capable than her mother 22 alleged, and that plaintiff s credibility was adversely affected by her attempt to rely 23 on the statements of her mother in support of her disability application. AR at 19. 24 This transference of the mother s lack of credibility to the plaintiff is not persuasive 25 and is unsupported by case law. But because there was affirmative evidence of 26 malingering and the ALJ provided clear and convincing evidence in ground one to 27 28 16 1 support a finding that plaintiff s testimony was not credible, any error here would 2 be harmless. Batson, 359 F.3d at 1197 (holding harmless ALJ's partial reliance on 3 assumption unsupported by record where ALJ gave numerous other 4 record-supported reasons for adverse credibility finding). 5 Plaintiff essentially argues that the ALJ was required to provide specific 6 evidence for why each of plaintiff s individual allegations of disability, physical 7 and mental, are not credible. This is an unduly narrow reading of the ALJ s duty 8 and is not supported by case law. An ALJ must, in the absence of evidence of 9 malingering, specifically identify evidence that undermines the plaintiff s 10 credibility. Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007). This does not 11 require that the ALJ parse each of the plaintiff s allegations and explain why each 12 is credible or not credible. Instead, the Ninth Circuit has found it appropriate for 13 an ALJ to infer that a plaintiff s lack of credibility with regard to certain statements 14 carries over to the plaintiff s other allegations. Thomas, 278 F.3d at 959 (plaintiff s 15 lack of candor [regarding her drug use] carries over to her description of physical 16 pain ); Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999) (plaintiff s 17 inconsistent statements regarding his drinking habits warranted a finding that 18 plaintiff s testimony of pain and fatigue were also unbelievable in general ). 19 Because there was affirmative evidence of malingering and the ALJ cited 20 specific evidence undermining plaintiff s credibility, substantial evidence supports 21 the ALJ s adverse credibility determination and this court will not engage in 22 second-guessing. See Morgan v. Comm r Soc. Sec. Admin., 169 F.3d 595, 600 (9th 23 Cir. 1995) (where the ALJ makes specific findings, supported by substantial 24 evidence, justifying an adverse credibility determination, it is not the court s role to 25 second guess). 26 27 28 17 1 D. Remand Is Appropriate 2 The decision whether to remand for further proceedings or reverse and award 3 benefits is within the discretion of the district court. McAllister v. Sullivan, 888 4 F.2d 599, 603 (9th Cir. 1989). Where no useful purpose would be served by 5 further proceedings, or where the record has been fully developed, it is appropriate 6 to exercise this discretion to direct an immediate award of benefits. See Benecke v. 7 Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 211 F.3d 1172, 8 1179-80 (9th Cir. 2000) (decision whether to remand for further proceedings turns 9 upon their likely utility). But where there are outstanding issues that must be 10 resolved before a determination can be made, and it is not clear from the record that 11 the ALJ would be required to find a plaintiff disabled if all the evidence were 12 properly evaluated, remand is appropriate. See Benecke, 379 F.3d at 595-96; 13 Harman, 211 F.3d at 1179-80. As discussed above, remand is required because the ALJ erred in failing to 14 15 provide specific and legitimate reasons for rejecting the opinions of plaintiff s 16 treating physician. On remand, the ALJ shall reconsider the opinions provided by 17 Dr. Soor-Melka, and either credit her opinions or provide adequate reasons under 18 the appropriate legal standard for rejecting any portion of her opinions. The ALJ 19 shall then assess plaintiff s RFC and proceed through steps four and five to 20 determine what work, if any, plaintiff is capable of performing. 21 22 23 24 /// /// /// /// /// 25 / / / 26 / / / 27 28 18 1 V. 2 CONCLUSION 3 4 5 6 7 8 IT IS THEREFORE ORDERED that Judgment shall be entered REVERSING the decision of the Commissioner denying benefits, and REMANDING the matter to the Commissioner for further administrative action consistent with this decision. DATED: October 22, 2013 9 SHERI PYM United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19

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