Shellie M. Honore v. Michael J. Astrue, No. 8:2007cv00894 - Document 24 (C.D. Cal. 2008)

Court Description: OPINION AND ORDER by Magistrate Judge Rosalyn M. Chapman. IT IS ORDERED that: (1) plaintiffs request for relief is denied; and (2) the Commissioners decision is affirmed, and Judgment shall be entered in favor of defendant. (jy)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 SHELLIE M. HONORE, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) No. SACV 07-0894-RC OPINION AND ORDER 16 17 Plaintiff Shellie M. Honore filed a complaint on August 17, 2007, 18 seeking review of the Commissioner s decision denying her applications 19 for disability benefits. 20 January 14, 2008, and the parties filed a joint stipulation on 21 February 28, 2008. The Commissioner answered the complaint on 22 23 BACKGROUND 24 I 25 On February 12, 2004 (protective filing date), plaintiff applied 26 for disability benefits under both Title II of the Social Security Act 27 ( Act ), 42 U.S.C. § 423, and the Supplemental Security Income program 28 ( SSI ) of Title XVI of the Act, 42 U.S.C. § 1382(a), claiming an 1 inability to work since December 1, 2002, due to bipolar disorder, 2 anxiety, and depression. 3 107-11, 149, 158.1 4 on September 14, 2004, and were denied again on April 7, 2005, 5 following reconsideration. 6 requested an administrative hearing, which was held before 7 Administrative Law Judge Joseph D. Schloss ( the ALJ ) on July 10 and 8 December 20, 2006. 9 issued a decision finding plaintiff is not disabled. Certified Administrative Record ( A.R. ) 3, The plaintiff s applications were initially denied A.R. 3, 75-87. A.R. 73-74, 335-65. The plaintiff then On February 8, 2007, the ALJ A.R. 8-20. The 10 plaintiff appealed this decision to the Appeals Council, which denied 11 review on June 13, 2007. A.R. 4-7. 12 13 14 II The plaintiff, who was born on April 26, 1966, is currently 42 15 years old. A.R. 107. She completed two years of college, received 16 training as a vocational counselor, and previously worked as a 17 housekeeper and counselor. 18 162, 174-81. A.R. 112-19, 122, 127, 150, 155, 159-60, 19 20 The plaintiff has a long history of polysubstance abuse, 21 including amphetamines, cocaine and other street drugs, which she used 22 between the ages of 13 and 23. 23 2003, plaintiff tested positive for marijuana. A.R. 205. As recently as March 5, A.R. 270. 24 25 On February 25, 2003, Inderpal Dhillon, M.D., examined plaintiff, 26 1 27 28 On April 11, 2003, plaintiff previously applied for both Title II and SSI benefits, and these applications were denied on July 10, 2003. A.R. 3, 88-91. 2 1 diagnosed her with a bipolar disorder I and prescribed psychiatric 2 medication to plaintiff. 3 plaintiff, A.R. 317-32, and on October 20, 2004, opined plaintiff was 4 markedly limited in her ability to ask simple questions or request 5 assistance and extremely limited in her ability to: remember locations 6 and work-like procedures; understand, remember and carry out very 7 short and simple instructions; maintain attention and concentration 8 for extended periods; perform activities within a schedule, maintain 9 regular attendance, and be punctual within customary tolerances; 10 sustain an ordinary routine without special supervision; work in 11 coordination with or in proximity to others without being distracted 12 by them; make simple work-related decisions; interact appropriately 13 with the general public; accept instructions and respond appropriately 14 to criticism from supervisors; get along with co-workers or peers 15 without distracting them or exhibiting behavioral extremes; maintain 16 socially appropriate behavior and adhere to basic standards of 17 neatness and cleanliness; respond appropriately to changes in the work 18 setting; be aware of normal hazards and take appropriate precautions; 19 and set realistic goals or make plans independently of others. 20 333-34. 21 days of work a month due to her condition, and noted plaintiff tried 22 to return to work but could not do so. A.R. 231. Dr. Dhillon continued to treat A.R. Dr. Dhillon also opined plaintiff would miss three or more A.R. 334. 23 24 On August 30, 2006, Dr. Dhillon noted plaintiff gets easily 25 depressed, evidenced by crying, anger, frustration, not sleeping, 26 marked anxiety and [an inability to] be around people. 27 Dr. Dhillon opined anxiety affects plaintiff s ability to concentrate 28 and [i]f stress continues, she becomes paranoid and begins to hear 3 A.R. 332. 1 voices. Id. Dr. Dhillon noted plaintiff attempted to work in the 2 past during her treatment . . . but soon decompensated . . . and was 3 unable to return to work. 4 month[,] and Dr. Dhillon has advised her not to return to work. 5 Finally, Dr. Dhillon concluded plaintiff is unable to be gainfully 6 employed since her illness is chronic and long-term with 7 exacerbations despite medication, and any stress tends to override the 8 medication effects. Her attempts to work lasted less than a Id. Id. 9 10 On June 15, 2003, Davy Qian, D.O., a psychiatrist, examined 11 plaintiff and diagnosed her with an unspecified mood disorder and 12 determined plaintiff had a GAF of 51.2 13 concluded plaintiff is able to understand, remember and carry out 14 simple one or two-step instructions, follow detailed and complex 15 instructions, and perform work activities without special or 16 additional supervision, and she is: mildly-to-moderately impaired in 17 her ability to adapt to the stresses common to a normal work 18 environment; mildly impaired in her ability to maintain 19 concentration, attention, persistence, and pace as well as in her 20 ability to associate with day-to-day work activity, including 21 attendance and safety; and not impaired in her ability to interact 22 appropriately with supervisors, co-workers, or the public or maintain 23 regular attendance in the work place and perform work activities on a A.R. 235-40. Dr. Qian 24 2 25 26 27 28 A GAF of 51-60 indicates [m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or coworkers). American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 34 (4th ed. (Text Revision) 2000). 4 1 consistent basis. A.R. 240. 2 3 On July 29, 2004, John S. Woodard, M.D., a neurologist and 4 psychiatrist, examined plaintiff and diagnosed her with a bipolar 5 disorder and polysubstance abuse, in remission. 6 Woodard opined plaintiff is predisposed to substance abuse and has 7 work impairments caused by her affective disorder and significant mood 8 swings with overall mood elevation, disorganization of thought, and 9 probable judgment impairment. A.R. 284. A.R. 282-85. Dr. More specifically, Dr. 10 Woodard found plaintiff has a moderate impairment in her ability to 11 complete a normal workweek without interruption; slight-to-moderate 12 impairment in withstanding normal workplace stresses and pressures, 13 maintaining concentration and attention, and interacting with the 14 public; slight impairment in her ability to interact with 15 supervisors and co-workers, perform detailed, complex tasks, and work 16 on a continuous basis without special supervision; and no impairment 17 in her ability to perform simple, repetitive tasks. 18 2005, Dr. Woodard reevaluated plaintiff, again diagnosed her with a 19 bipolar disorder, and again opined plaintiff has work impairments 20 caused by her affective disorder with mood swings, overall mood 21 elevation, disorganization of thought, and probable judgment 22 impairment. 23 plaintiff has: a moderate impairment in her ability to complete a 24 normal workweek without interruption; slight-to-moderate impairment 25 in her ability to maintain concentration and attention and interact 26 with the public; slight impairment in her ability to interact with 27 supervisors and co-workers, withstand normal workplace stresses and 28 pressures, and perform detailed, complex tasks; and no impairment in A.R. 284, 310-15. Id. On March 16, More specifically, Dr. Woodard found 5 1 her ability to perform simple, repetitive tasks and work on a 2 continuous basis without special supervision. Id. 3 4 Medical expert David Glassmire, M.D., testified at the 5 administrative hearing in 2006 that plaintiff has a bipolar II 6 disorder and has abused marijuana. 7 Glassmire opined plaintiff has a mild restriction in her activities 8 of daily living, moderate difficulty maintaining social functioning 9 and concentration, persistence or pace, and has had no episodes of A.R. 344. A.R. 341-48, 358-63. Dr. 10 decompensation. Dr. Glassmire further opined plaintiff 11 should be limited to simple and repetitive tasks involving object- 12 oriented work with only occasional contact with the public, co- 13 workers, or supervisors and no tasks that require hypervigilance. 14 A.R. 345. 15 plaintiff would not experience moderate difficulties in her ability to 16 perform within a schedule, maintain regular attendance, and complete a 17 normal workday and workweek without interruptions. 18 found little to support the limitations found by Dr. Dhillon, noting 19 that the person Dr. Dhillon described would be somebody who likely 20 would have repeated in-patient hospitalizations, almost no ability to 21 care for themselves. 22 others for their activities of daily living. Given these limitations, Dr. Glassmire was of the opinion Id. Dr. Glassmire They would be basically completely dependent on A.R. 359. 23 24 DISCUSSION 25 III 26 The Court, pursuant to 42 U.S.C. § 405(g), has the authority to 27 review the Commissioner s decision denying plaintiff disability 28 benefits to determine if his findings are supported by substantial 6 1 evidence and whether the Commissioner used the proper legal standards 2 in reaching his decision. 3 1172 (9th Cir. 2008); Carmickle v. Comm r, Soc. Sec. Admin., 533 F.3d 4 1155, 1159 (9th Cir. 2008). Stubbs-Danielson v. Astrue, 539 F.3d 1169, 5 6 In determining whether the Commissioner s findings are supported 7 by substantial evidence, [this Court] must review the administrative 8 record as a whole, weighing both the evidence that supports and the 9 evidence that detracts from the Commissioner s conclusion. Reddick 10 v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Holohan v. Massanari, 11 246 F.3d 1195, 1201 (9th Cir. 2001). 12 reasonably support either affirming or reversing the decision, [this 13 Court] may not substitute [its] judgment for that of the 14 Commissioner. 15 cert. denied, 128 S. Ct. 1068 (2008); Lingenfelter v. Astrue, 504 F.3d 16 1028, 1035 (9th Cir. 2007). Where the evidence can Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007), 17 18 The claimant is disabled for the purpose of receiving benefits 19 under the Act if she is unable to engage in any substantial gainful 20 activity due to an impairment which has lasted, or is expected to 21 last, for a continuous period of at least twelve months. 22 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a). 23 The claimant bears the burden of establishing a prima facie case of 24 disability. 25 cert. denied, 517 U.S. 1122 (1996); Smolen v. Chater, 80 F.3d 1273, 26 1289 (9th Cir. 1996). 42 U.S.C. §§ Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995), 27 28 The Commissioner has promulgated regulations establishing a five7 1 step sequential evaluation process for the ALJ to follow in a 2 disability case. 3 the ALJ must determine whether the claimant is currently engaged in 4 substantial gainful activity. 5 If not, in the Second Step, the ALJ must determine whether the 6 claimant has a severe impairment or combination of impairments 7 significantly limiting her from performing basic work activities. 8 C.F.R. §§ 404.1520(c), 416.920(c). 9 must determine whether the claimant has an impairment or combination 20 C.F.R. §§ 404.1520, 416.920. In the First Step, 20 C.F.R. §§ 404.1520(b), 416.920(b). 20 If so, in the Third Step, the ALJ 10 of impairments that meets or equals the requirements of the Listing of 11 Impairments ( Listing ), 20 C.F.R. § 404, Subpart P, App. 1. 12 C.F.R. §§ 404.1520(d), 416.920(d). 13 ALJ must determine whether the claimant has sufficient residual 14 functional capacity despite the impairment or various limitations to 15 perform her past work. 16 in Step Five, the burden shifts to the Commissioner to show the 17 claimant can perform other work that exists in significant numbers in 18 the national economy. 20 If not, in the Fourth Step, the 20 C.F.R. §§ 404.1520(f), 416.920(f). If not, 20 C.F.R. §§ 404.1520(g), 416.920(g). 19 20 Moreover, where there is evidence of a mental impairment that may 21 prevent a claimant from working, the Commissioner has supplemented the 22 five-step sequential evaluation process with additional regulations 23 addressing mental impairments. 24 Admin., 154 F.3d 913, 914 (9th Cir. 1998) (per curiam). 25 ALJ must determine the presence or absence of certain medical findings 26 relevant to the ability to work. 27 416.920a(b)(1). 28 findings, the ALJ must rate the degree of functional loss resulting Maier v. Comm r of the Soc. Sec. First, the 20 C.F.R. §§ 404.1520a(b)(1), Second, when the claimant establishes these medical 8 1 from the impairment by considering four areas of function: (a) 2 activities of daily living; (b) social functioning; (c) concentration, 3 persistence, or pace; and (d) episodes of decompensation. 4 §§ 404.1520a(c)(2-4), 416.920a(c)(2-4). 5 degree of loss, the ALJ must determine whether the claimant has a 6 severe mental impairment. 7 Fourth, when a mental impairment is found to be severe, the ALJ must 8 determine if it meets or equals a Listing. 9 404.1520a(d)(2), 416.920a(d)(2). 20 C.F.R. Third, after rating the 20 C.F.R. §§ 404.1520a(d), 416.920a(d). 20 C.F.R. §§ Finally, if a Listing is not met, 10 the ALJ must then perform a residual functional capacity assessment, 11 and the ALJ s decision must incorporate the pertinent findings and 12 conclusions regarding plaintiff s mental impairment, including a 13 specific finding as to the degree of limitation in each of the 14 functional areas described in [§§ 404.1520a(c)(3), 416.920a(c)(3)]. 15 20 C.F.R. §§ 404.1520a(d)(3), (e)(2), 416.920a(d)(3), (e)(2). 16 17 Applying the five-step sequential evaluation process, the ALJ 18 found plaintiff has not engaged in substantial gainful activity since 19 her alleged onset date, December 1, 2002. 20 found plaintiff has the severe impairments of a bipolar disorder 21 without mania and marijuana abuse (Step Two); however, she does not 22 have an impairment or combination of impairments that meets or equals 23 a Listing.3 24 perform her past relevant work as a housekeeper; therefore, she is not (Step Three). (Step One). The ALJ then The ALJ next determined plaintiff can 25 26 27 28 3 In reaching this conclusion, the ALJ adopted Dr. Glassmire s opinion that plaintiff has mild restriction of the activities of daily living, moderate difficulties maintaining social functioning and concentration, persistence, or pace, and has had no episodes of decompensation. A.R. 15. 9 1 disabled. (Step Four). 2 IV 3 4 A claimant s residual functional capacity ( RFC ) is what she can 5 still do despite her physical, mental, nonexertional, and other 6 limitations. 7 Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 8 the ALJ found plaintiff has no physical limitations and has the RFC 9 to perform short, simple instructions. Mayes v. Massanari, 276 F.3d 453, 460 (9th Cir. 2001); Here, She is also limited to 10 object-oriented work and should not do tasks that require hyper- 11 vigilance. 12 general public, coworkers and supervisors. 13 plaintiff contends the RFC determination is not supported by 14 substantial evidence because the ALJ improperly rejected the opinions 15 of her treating physician, Dr. Dhillon, erroneously determined she was 16 not a credible witness, failed to properly consider the side effects 17 of her medications and lay witness evidence, and posed an incomplete 18 hypothetical question to the vocational expert. 19 plaintiff s contentions. Further, she may have only occasional contact with the A.R. 15. However, There is no merit to 20 21 A. Treating Physician s Opinion: 22 The medical opinions of treating physicians are entitled to 23 special weight because the treating physician is employed to cure and 24 has a greater opportunity to know and observe the patient as an 25 individual. 26 Morgan v. Comm r of the Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 27 1999). 28 for rejecting the uncontroverted opinion of a treating physician, Ryan Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987); Therefore, the ALJ must provide clear and convincing reasons 10 1 v. Comm r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008); Reddick, 2 157 F.3d at 725, and [e]ven if [a] treating doctor s opinion is 3 contradicted by another doctor, the ALJ may not reject this opinion 4 without providing specific and legitimate reasons supported by 5 substantial evidence in the record. 6 Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). Reddick, 157 F.3d at 725; 7 8 9 Dr. Dhillon opined plaintiff is gravely disabled and is not able to function psychologically, A.R. 333-34; thus, she is unable to be 10 gainfully employed. 11 is even unable to understand, remember, and carry out very short and 12 simple instructions or make simple work-related decisions. 13 However, the ALJ rejected Dr. Dhillon s opinions as not fully 14 supported by the objective evidence or his own treatment notes. . . . 15 There is an absence of any psychological testing. 16 Dhillion s [sic] evaluations appear to be based largely on recitations 17 of the [plaintiff s] statements and complaints; they are tainted by 18 the [plaintiff s] objective to obtain a report which states that she 19 is disabled in order to receive disability benefits. 20 Further, the ALJ found plaintiff s subjective allegations are not 21 fully reliable. 22 testified that there is no evidence of extreme limitations in all 23 mental categories as specified by Dr. Dhillion [sic]. 24 expert stated that a person with extreme limitations in all of those 25 areas would likely have repeated inpatient hospitalizations with 26 almost no ability to care for herself, and she would be completely 27 dependent on others for her activities of daily living. 28 Finally, the ALJ also commented that Dr. Dhillon does not indicate Id. A.R. 332. In Dr. Dhillon s opinion, plaintiff A.R. 333. Instead, Dr. A.R. 17. Rather, the ALJ relied on Dr. Glassmire, who 11 The medical Id. 1 how long the claimant has been unable to undertake gainful employ- 2 ment. 4 Id. 3 4 An ALJ may properly reject a treating or examining physician s 5 report that is inconsistent with the physician s medical records, 6 Tommasetti, 533 F.3d at 1041; Bayliss v. Barnhart, 427 F.3d 1211, 1216 7 (9th Cir. 2005), or with the medical record as a whole. 8 Comm r of the Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004); 9 Morgan, 169 F.3d at 602. Batson v. An ALJ may [also] reject a treating 10 physician s opinion if it is based to a large extent on a claimant s 11 self-reports that have been properly discounted as incredible. 12 Tommasetti, 533 F.3d at 1041 (citations omitted); Bayliss, 427 F.3d at 13 1217. 14 opinions are neither supported by his own medical records, which 15 largely document plaintiff s subjective complaints, see, e.g., A.R. 16 317-32, nor are they supported by any other medical evidence in the 17 record. 18 discussed below, the ALJ properly rejected plaintiff s subjective 19 complaints. 20 reasons supported by substantial evidence in the record for rejecting 21 Dr. Dhillon s opinions. 22 at 1195. 23 // 24 // 25 26 27 28 Here, as Dr. Glassmire fully explained, A.R. 359, Dr. Dhillon s See, e.g., A.R. 235-40, 282-85, 310-15. Moreover, as Therefore, the ALJ provided specific and legitimate Bayliss, 427 F.3d at 1217; Batson, 359 F.3d 4 The plaintiff claims the ALJ should have recontacted Dr. Dhillon to clarify this statement. However, that is not so since [t]he record before the ALJ was neither ambiguous nor inadequate to allow for proper evaluation of the evidence. Mayes, 276 F.3d at 460. Therefore, the ALJ did not fail to properly develop the medical record. 12 1 B. Credibility: 2 The plaintiff testified at the administrative hearing that she 3 experiences mood swings and is sometimes really depressed, sometimes 4 really angry, and sometimes violent. 5 or twice a week she wants to grab someone by the throat and get them 6 out of her way. 7 hurting herself, and she usually cuts herself. 8 plaintiff testified she also has panic attacks, during which her heart 9 starts beating fast, she feels tingly and wants to pass out, and she A.R. 337-38. A.R. 337. She stated that once She also stated she has thoughts of A.R. 340. A.R. 338. Further, 10 often has to leave public places. Finally, plaintiff 11 stated she has problems concentrating, A.R. 341, and she sleeps 12 erratically, sometimes staying up for two days in a row before 13 sleeping for a week. A.R. 340. 14 15 Once a claimant has presented objective evidence she suffers from 16 an impairment that could cause pain or other nonexertional 17 limitations,5 the ALJ may not discredit the claimant s testimony 18 solely because the symptoms alleged by the claimant are not supported 19 by objective medical evidence. 20 (9th Cir. 1991) (en banc); Moisa v. Barnhart, 367 F.3d 882, 885 (9th 21 Cir. 2004). 22 for the disbelief. 23 2006) (citations omitted); Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 24 2007). Bunnell v. Sullivan, 947 F.2d 341, 347 Rather, the ALJ must provide specific, cogent reasons Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. Such reasons may include reputation for truthfulness, 25 26 27 28 5 While most cases discuss excess pain testimony rather than excess symptom testimony, rules developed to assure proper consideration of excess pain apply equally to other medically related symptoms. Swenson v. Sullivan, 876 F.2d 683, 687-88 (9th Cir. 1989). 13 1 inconsistencies in testimony or between testimony and conduct, daily 2 activities, and unexplained, or inadequately explained, failure to 3 seek treatment or follow a prescribed course of treatment. 4 F.3d at 636 (citations omitted); Thomas v. Barnhart, 278 F.3d 947, 5 958-59 (9th Cir. 2002). 6 affirmatively suggesting the claimant is malingering, the ALJ s 7 reasons for rejecting the claimant s subjective testimony must be 8 clear and convincing. 9 at 599. Orn, 495 Furthermore, if there is no evidence Carmickle, 533 F.3d at 1160; Morgan, 169 F.3d 10 11 Here, the ALJ found plaintiff s activities of daily living are 12 not consistent with the alleged degree of pain and impairment. 13 18. A.R. Specifically, the ALJ found: 14 15 [Plaintiff s] activities tend to show that she does have the 16 ability to perform work, if motivated to do so, in that she 17 does household chores such as cooking, washing dishes, doing 18 laundry, and cleaning the bathroom, plays guitar, drives a 19 car, attends church services regularly once per week, 20 dresses, grooms, watches television, reads, listens to the 21 radio, manages money, goes out alone, and socializes with 22 others. 23 takes her son to school, picks him up from school, helps him 24 get a snack and helps him to do his homework. 25 claimed that she is able to sort out food and clothes for 26 poor people in her church. In addition, she stated that on a daily basis, she She also 27 28 Id. The ALJ s findings are supported by substantial evidence in the 14 1 record, A.R. 141-43, 182-85, 237, 239,6 and plaintiff s ability to 2 perform such activities may be seen as inconsistent with the presence 3 of a condition which would preclude all work activity. 4 Sullivan, 925 F.2d 1127, 1130 (9th Cir. 1990); Stubbs-Danielson, 539 5 F.3d at 1175. Curry v. 6 7 The ALJ also found plaintiff s credibility is reduced by the 8 lack of objective medical evidence to substantiate her claims since 9 several doctors find her to be much more capable than she claims[,] 10 A.R. 18, and substantial evidence in the record supports this finding. 11 See, e.g., A.R. 239-40, 252, 256-57, 284-85, 312, 345; Burch v. 12 Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). 13 with the medical record is a sufficient basis for rejecting the 14 claimant s subjective testimony. 15 Stubbs-Danielson, 539 F.3d at 1175; cf. Rollins v. Massanari, 261 F.3d 16 853, 857 (9th Cir. 2001) ( While subjective pain testimony cannot be 17 rejected on the sole ground that it is not fully corroborated by 18 objective medical evidence, the medical evidence is still a relevant 19 factor in determining the severity of the claimant s pain and its 20 disability effects. ). 21 credibility determination were clear and convincing, sufficiently 22 specific, and supported by substantial evidence. 23 332 F.3d 1177, 1181 (9th Cir. 2003); Burch, 400 F.3d at 681. 24 // Here, [c]ontradiction Carmickle, 533 F.3d at 1161; Thus, [t]he ALJ s reasons for his [adverse] Celaya v. Halter, 25 26 27 28 6 Indeed, examining psychiatrist Dr. Qian in 2003 commented that [b]ased on [plaintiff s] function of daily activity, her psychiatric condition is quite nicely controlled since [s]he is able to take care of herself and her son . . . [and] go to church and help sort out food and clothes for poor people. A.R. 239. 15 1 C. Side Effects: 2 The ALJ must consider all factors that might have a significant 3 impact on a claimant s ability to work, including the side effects of 4 medication. 5 Varney v. Sec y of Health & Human Servs., 846 F.2d 581, 585 (9th Cir. 6 1988). 7 effect known to be associated with a particular medication, the ALJ 8 may disregard the testimony only if he support[s] that decision with 9 specific findings similar to those required for excess pain testimony, 10 as long as the side effects are in fact associated with the claimant s 11 medication(s). Erickson v. Shalala, 9 F.3d 813, 817-18 (9th Cir. 1993); Thus, when a claimant testifies she is experiencing a side Varney, 846 F.2d at 585. 12 13 The plaintiff contends the ALJ erred in failing to consider the 14 side effects she experiences from Seroquel,7 which she takes every 15 night and which she asserts makes her sleepy. 16 Additionally, plaintiff also complains that Buspar,8 Clonazepam,9 A.R. 340-41. 17 18 7 19 20 21 22 23 24 25 26 27 28 Seroquel combats the symptoms of schizophrenia, a mental disorder marked by delusions, hallucinations, disrupted thinking, and loss of contact with reality. The PDR Family Guide to Prescription Drugs, 610 (8th ed. 2000). Drowsiness and dizziness are common side effects of Seroquel. Id. 8 Buspar is used in the treatment of anxiety disorders and for short-term relief of the symptoms of anxiety. The PDR Family Guide to Prescription Drugs at 95. Fatigue is a common side effect of Buspar, while diarrhea is a less common, but recognized, side effect. Id. 9 Clonazepam, also called Klonopin[,] is used alone or along with other medications to treat convulsive disorders such as epilepsy. It is also prescribed for panic disorder unexpected attacks of overwhelming panic accompanied by fear of recurrence. Id. at 338. Dizziness and sleepiness are recognized side effects of Clonazepam. Id. at 339. 16 1 Lexapro10 and Lithium11 make her sleepy, Clonazepam and Seroquel also 2 make her dizzy, and Buspar and Wellbutrin12 give her diarrhea. 3 191. A.R. 4 5 Although all of these medications have well known side-effects, 6 there is no evidence in the record that plaintiff ever complained to 7 any physician about the side effects she now complains of from the 8 various medications she takes. 9 records show she was not experiencing any side effects from her To the contrary, plaintiff s treatment 10 medications. See A.R. 215, 217, 219, 228, 230, 272, 317-19, 321-22, 11 325-27, 330-31. 12 alleged side effects of plaintiff s medications. 13 at 973 (ALJ did not err in assessing claimant s RFC when claimant did 14 not report alleged side effect of fatigue to any doctors); McFarland Therefore, the ALJ did not err in not considering the See Greger, 464 F.3d 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 Lexapro is indicated for the treatment of major depressive disorder and generalized anxiety disorder. Physician s Desk Reference, 1176 (62nd ed. 2008). Fatigue is a recognized side effect of Lexapro. Id. at 1179. 11 Lithium, also called Lithonate, is used to treat the manic episodes of manic-depressive illness, a condition in which a person s mood swings from depression to excessive excitement. The PDR Family Guide to Prescription Drugs at 363. Sleepiness is a recognized side effect of Lithium. Id. at 364. 12 Wellbutrin . . is given to help relieve certain kinds of major depression. [¶] Major depression involves a severely depressed mood (for 2 weeks or more) and loss of interest or pleasure in usual activities accompanied by sleep and appetite disturbances, agitation or lack of energy, feelings of guilt or worthlessness, decreased sex drive, inability to concentrate, and perhaps thoughts of suicide. [¶] Unlike the more familiar tricyclic antidepressants, such as Elavil, Tofranil, and others, Wellbutrin tends to have a somewhat stimulating effect. Id. at 737. Diarrhea is not a recognized side effect of Wellbutrin. Id. at 737-38. 17 1 v. Astrue, 2008 WL 2875315, *2 (9th Cir. (Or.)) ( ALJ did not err in 2 failing to address side effects of medication in his decision where 3 claimant points to no specific evidence in the record where he 4 complained of medication side effects and the record is replete with 5 statements by [the claimant] to medical care providers that he was not 6 experiencing side effects from his various medications. ).13 7 8 D. Lay Witness Testimony: 9 Lay testimony as to a claimant s symptoms is competent evidence 10 that an ALJ must take into account, unless he or she expressly 11 determines to disregard such testimony and gives reasons germane to 12 each witness for doing so. 13 Cir. 2001); Parra, 481 F.3d at 750. 14 party daily activity questionnaires, which are an important source of 15 information about a claimant s impairments. 16 the Soc. Sec. Admin., 166 F.3d 1294, 1297 (9th Cir. 1999); Schneider 17 v. Comm r of the Soc. Sec. Admin., 223 F.3d 968, 975 (9th Cir. 2000). Lewis v. Apfel, 236 F.3d 503, 511 (9th Such lay testimony includes third Regennitter v. Comm r of 18 19 Here, the ALJ considered the lay evidence, including the third 20 party daily activity questionnaires completed by plaintiff s husband, 21 Darrell Honore, and her father, Richard J. Montgomery, see A.R. 135- 22 40, 164-73, but rejected these lay opinions because, among other 23 reasons, they conflicted with the probative medical evidence, relied 24 upon plaintiff s subjective complaints, were somewhat inconsistent 25 with plaintiff s subjective complaints, and because the declarants had 26 a financial interest in the outcome of the case. 27 the ALJ provided reasons germane to each witness for rejecting these 28 13 A.R. 18-19. Thus, See Fed. R. App. P. 32.1(a); Ninth Circuit Rule 36-3(b). 18 1 opinions. Greger, 464 F.3d at 972; Lewis, 236 F.3d at 511. 2 3 E. Vocational Expert s Testimony: 4 Vocational expert David Rhinehart testified that a hypothetical 5 individual of plaintiff s age, education, work experience and RFC can 6 perform plaintiff s past relevant work as a housekeeper, A.R. 364-65, 7 and, based on this testimony, the ALJ determined in Step Four that 8 plaintiff can perform her past relevant work as a housekeeper. 9 19. A.R. However, plaintiff contends this Step Four determination is not 10 supported by substantial evidence because the hypothetical question to 11 the vocational expert did not contain Dr. Dhillon s opinions or the 12 side effects of plaintiff s medications. 13 claim for the reasons discussed above. 14 Dhillon s opinions and the alleged side-effects from medications were 15 properly discredited by the ALJ; thus, they were not vital to the 16 hypothetical question to the vocational expert. 17 F.3d at 1175-76; Bayliss, 427 F.3d at 1217. 18 expert s testimony constitutes substantial evidence to support the 19 ALJ s Step Four determination that plaintiff can perform her past 20 relevant work. There is no merit to this Specifically, both Dr. Stubbs-Danielson, 539 As such, the vocational 21 22 ORDER 23 IT IS ORDERED that: (1) plaintiff s request for relief is denied; 24 and (2) the Commissioner s decision is affirmed, and Judgment shall be 25 entered in favor of defendant. 26 27 28 DATE: November 25, 2008 /s/ ROSALYN M. CHAPMAN ROSALYN M. CHAPMAN UNITED STATES MAGISTRATE JUDGE 19 1 R&R-MDO\08-0894.mdo 11/25/08 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20

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