Cruz Lobato v. Michael J Astrue, No. 8:2011cv01337 - Document 23 (C.D. Cal. 2012)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle (ec)

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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 CRUZ LOBATO, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) NO. SACV 11-01337-MAN MEMORANDUM OPINION AND ORDER 17 18 19 Plaintiff filed a Complaint on September 14, 2011, seeking review 20 of the denial by the Social Security Commissioner ( Commissioner ) of 21 plaintiff s 22 disability insurance benefits ( DIB ). 23 consented to proceed before the undersigned United States Magistrate 24 Judge pursuant to 28 U.S.C. § 636(c). 25 filed a Joint Stipulation, in which: plaintiff seeks an order reversing 26 the 27 alternative, 28 proceedings; and defendant seeks an order affirming the Commissioner s application Commissioner s for decision remanding the a period and of ( POD ) and On October 4, 2011, the parties On August 7, 2012, the parties awarding matter disability for benefits further or, in the administrative 1 decision or, in the alternative, remanding the matter for further 2 administrative proceedings. 3 Stipulation under submission without oral argument. The Court has taken the parties Joint 4 5 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 6 7 On October 31, 2006, plaintiff filed an application for POD and 8 DIB. (Administrative Record ( A.R. ) 81-85.) 9 accompanying her application, plaintiff In the disability report alleged shoulder injury, 10 learning disorder, stress, and dyslexia as impairments and asserted that 11 she cannot work due to these impairments, because she cannot perform 12 assigned 13 reconsideration level, plaintiff additionally alleged that she suffers 14 from depression, which commenced in April 2006. (A.R. 94, 135.) tasks and cannot read and write. (A.R. 94.) At the 15 16 The Commissioner denied plaintiff's claim initially, and upon 17 reconsideration. (A.R. 33-36, 42-45.) On July 3, 2008, plaintiff, who 18 was represented by counsel, testified at a hearing before Administrative 19 Law Judge Barry S. Brown ( ALJ Brown ). (A.R. 15-30.) 20 2008, ALJ Brown denied plaintiff's claim. (A.R. 4-13.) Subsequently, the 21 Appeals Council denied plaintiff s request for review of ALJ Brown s 22 decision. (A.R. 1-3.) On October 8, 23 24 On January 7, 2009, plaintiff sought review in this Court, which 25 remanded the case for further proceedings in a September 8, 2010 Order 26 27 28 2 1 ( Remand Order ).1 (A.R. 450-70.) 2 3 On September 20, 2010, the Appeals Council effectuated the Court s 4 Remand Order, and remanded the matter to the ALJ for further actions 5 consistent with the Order. (A.R. 446-48.) 6 7 On April 4 and May 5, 2011, a remand hearing was held before ALJ 8 Joseph Lisiecki ( ALJ ). (A.R. 425-32, 433-45.) Plaintiff, who was 9 represented by an attorney, appeared and testified at both hearings. 10 (Id.) At the April hearing, Stephen Wells, a medical expert, testified. 11 (A.R. 425-32.) 12 Alan L. Ey, a vocational expert, also testified. 13 June 13, 2011, the ALJ issued an unfavorable decision. At the May hearing, Craig C. Rath, a medical expert, and (A.R. 433-45.) On (A.R. 376-85.) 14 15 SUMMARY OF ADMINISTRATIVE DECISION 16 17 The ALJ found that plaintiff last met the insured status 18 requirements of the Social Security Act on December 31, 2005, and that 19 she had not engaged in substantial gainful activity during the period 20 from her alleged onset date of October 30, 2000, through December 31, 21 2005, her date last insured ( DLI ). 22 that, through the DLI, plaintiff has the severe impairment of attention (A.R. 379.) The ALJ also found 23 1 24 25 26 27 28 It appears that plaintiff filed a subsequent application for DIB as well as for supplemental security income, dated March 12, 2009, alleging depression, attention deficit hyperactivity disorder, lupus, arthritis, vision impairment, inability to read at normal level, learning disability, back, neck and shoulder injury, foot and leg problems, spinal and back damage, and sleep deprivation. (A.R. 538-60.) The applications do not appear to be before this Court, as neither plaintiff or defendant discuss these applications in their Joint Stipulation and there are no other documents in the record indicating the outcome of this application. 3 1 deficit hyperactivity disorder, inattentive type ( ADHD ).2 (Id.) The 2 ALJ further found that, through the DLI, plaintiff did not have an 3 impairment or combination of impairments that met or medically equaled 4 the criteria of an impairment listed in 20 C.F.R. Part 404, Subpart P, 5 Appendix 1, the Listing of Impairments. (A.R. 380.) 6 7 After reviewing the record, the ALJ determined that plaintiff has 8 the residual functional capacity ( RFC ) to perform a full range of 9 work at all exertional levels but with the following nonexertional 10 limitations: [plaintiff] is precluded from working at unprotected 11 heights or around dangerous or fast-moving machinery; [plaintiff] must 12 not be responsible for the safety operations of others; and [plaintiff] 13 requires the ability to learn tasks by example, not by reading. 14 381.) (A.R. 15 16 The ALJ found that plaintiff s past relevant work ( PRW ) as a 17 Cleaner, Commercial or Institutional ( Cleaner ) does not require the 18 performance of work-related activities precluded by her RFC. 19 384.) 20 a disability, as defined in the Social Security Act, since October 30, 21 2000, the alleged onset date, through December 31, 2005, the DLI. (A.R. 22 385.) (A.R. Accordingly, the ALJ concluded that plaintiff has not been under 23 24 25 2 26 27 28 With respect to plaintiff s other claimed impairments, the ALJ stated that the prior ALJ found, in a decision dated October 8, 2008, that [plaintiff] had the non-severe medically determinable impairments of status post cervical sprain and status post left shoulder strain, and he incorporated that finding -- which has not been challenged by plaintiff -- by reference. (A.R. 379.) 4 1 STANDARD OF REVIEW 2 3 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s 4 decision to determine whether it is free from legal error and supported 5 by substantial evidence in the record as a whole. 6 F.3d 625, 630 (9th Cir. 2007). 7 evidence as a reasonable mind might accept as adequate to support a 8 conclusion. 9 a mere scintilla but not necessarily a preponderance. Orn v. Astrue, 495 Substantial evidence is such relevant Id. (citation omitted). The evidence must be more than Connett v. 10 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). While inferences from the 11 record can constitute substantial evidence, only those reasonably 12 drawn from the record will suffice. 13 1063, 1066 (9th Cir. 2006)(citation omitted). Widmark v. Barnhart, 454 F.3d 14 15 Although this Court cannot substitute its discretion for that of 16 the Commissioner, the Court nonetheless must review the record as a 17 whole, weighing both the evidence that supports and the evidence that 18 detracts from the [Commissioner s] conclusion. 19 Health and Human Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 20 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 21 responsible for determining credibility, resolving conflicts in medical 22 testimony, and for resolving ambiguities. 23 1035, 1039-40 (9th Cir. 1995). Desrosiers v. Sec y of The ALJ is Andrews v. Shalala, 53 F.3d 24 25 The Court will uphold the Commissioner s decision when the evidence 26 is susceptible to more than one rational interpretation. 27 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 28 review only the reasons stated by the ALJ in his decision and may not 5 Burch v. However, the Court may 1 affirm the ALJ on a ground upon which he did not rely. Orn, 495 F.3d 2 at 630; see also Connett, 340 F.3d at 874. 3 the Commissioner s decision if it is based on harmless error, which 4 exists only when it is clear from the record that an ALJ's error was 5 inconsequential to the ultimate nondisability determination. Robbins 6 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 7 Comm r, 454 F.3d 1050, 1055-56 (9th Cir. 2006)); see also Burch, 400 8 F.3d at 679. The Court will not reverse 9 DISCUSSION 10 11 12 Plaintiff alleges the following issues: (1) whether the ALJ 13 properly determined that plaintiff is capable of performing her PRW as 14 a Cleaner; (2) whether the ALJ properly developed the record regarding 15 plaintiff s learning disability and dyslexia; and (3) whether the ALJ 16 properly considered plaintiff s testimony. 17 Stip. ) at 3.) (Joint Stipulation ( Joint 18 19 I. The ALJ Committed No Reversible Error In Determining That 20 Plaintiff Could Perform Her PRW As A Cleaner, Commercial 21 Or Institutional. 22 23 Plaintiff asserts that the ALJ improperly determined that she could 24 perform her PRW as a Cleaner. (Joint Stip. at 3-6.) Specifically, 25 plaintiff alleges that the job of Cleaner is inconsistent with her RFC 26 precluding work around dangerous or fast-moving machinery. 27 Stip. at 4.) 28 6 (Joint 1 At step four of the sequential evaluation process, a claimant bears 2 the burden of proving that he or she can no longer perform his or her 3 PRW. 4 Notwithstanding the claimant s burden at this step, the ALJ still has a 5 duty to make the requisite factual findings to support his or her 6 conclusion regarding the claimant s ability to perform his or her PRW. 7 Id. (citation omitted). 8 actual functional demands and job duties of a particular past relevant 9 job ; or (2) [t]he functional demands and job duties of the occupation 10 as generally required by employers throughout the national economy. 11 Id. at 845 (citation omitted). Accordingly, the ALJ must make specific 12 findings as to the claimant s [RFC], the physical and mental demands of 13 the [PRW], and the relation of the [RFC] to the past work. 14 (citation omitted) The ALJ need only make findings as to either general 15 or actual performance of past relevant work, but not both. 16 have 17 claimant s past relevant work both as generally performed 18 actually performed. ). Pinto v. never Massanari, required 249 F.3d 840, 844 (9th Cir. 2001). A claimant must be able to perform: (1) [t]he explicit findings at step four Id. Id. ( We regarding and a as 19 20 In general, an ALJ should consider first whether claimant can 21 perform his or her PRW as actually performed and then as generally 22 performed. 23 a job is generally performed is the Dictionary of Occupational Titles 24 (the DOT ). 25 WL 1898704, at *2 (noting that we rely primarily on the DOT . . . for Pinto, 249 F.3d at 845. Typically, the best source for how Id. at 845-46; Social Security Ruling ( SSR ) 00 4p, 2000 26 27 28 7 1 information about the requirements of work in the national economy ).3 2 Although occupational evidence provided by a vocational expert is 3 generally expected to be consistent with the DOT, [n]either the DOT nor 4 the [vocational expert s] evidence automatically trumps when there is 5 a conflict. 6 claimant s 7 completed 8 testimony, SSR 82 41. 9 merely has to find that a claimant can or cannot continue his or her Id., at *2. past relevant vocational An ALJ may rely on two sources to define a work report, as SSR actually 82 61, performed: and Pinto, 249 F.3d at 845. the a properly claimant s own The vocational expert 10 past relevant work as defined by the regulations. See Villa v. Heckler, 11 797 F.2d 794, 798 (1986)( [t]he claimant has the burden of proving an 12 inability to return to his former type of work and not just to his 13 former job ). 14 15 Here, the ALJ determined that plaintiff could perform her PRW as a 16 Cleaner as actually and generally performed. (A.R. 385.) Plaintiff 17 asserts that this finding is error, because she was precluded from 18 working around dangerous or fast-moving machinery, but as defined in the 19 DOT, the job of Cleaner may require a worker to: 20 grass, and shovel snow, using power equipment or handtools; (2) use a 21 lawnmower, to cut the grass, which has very fast moving blades; (3) use 22 a weedwacker, in trimming grass [which] may also be considered fast 23 moving equipment ; and (4) use snowblowers[, which] are fast-moving 24 equipment and may also be dangerous. (1) cut and trim (Joint Stip. at 4-5.) These 25 3 26 27 28 Social Security Rulings do not have the force of law. Nevertheless, they constitute Social Security Administration interpretations of the statute it administers and of its own regulations. Han v. Bowen, 882 F.2d 1453, 1457 (9th Cir. 1989). Accordingly, they are given deference, unless they are plainly erroneous or inconsistent with the Act or regulations. Id. 8 1 asserted inconsistencies do not render the ALJ s step four finding 2 erroneous. 3 suggest that plaintiff would have difficulty performing that job as it 4 is sometimes performed in the national economy, this possibility does 5 not preclude a finding that plaintiff could return to her job as she 6 actually performed it. 7 the two sources of information which may be used to define a claimant s 8 past relevant work as actually performed are a properly completed 9 vocational report and the claimant s own testimony. Although the description of the Cleaner job in the DOT may As to the latter determination, as noted above, Pinto, 249 F.3d at 10 845. Here, in her work history report completed in November 2006, 11 plaintiff reported that her job as a custodian, required that she 12 dust, clean [chalkboards] and rails, clean [and] disinfect furniture, 13 wash walls [and] graffiti, move furniture, vacuum, remove spots on rugs, 14 pick-up trash, and use extractor on carpets, mop, sweep, windows, 15 miniblinds. 16 to handle dangerous or fast-moving machinery. (A.R. 117-18.) These demands would not require plaintiff 17 18 Accordingly, it was not unreasonable for the ALJ to conclude that 19 plaintiff s preclusion from handling dangerous or fast-moving machinery 20 would not prevent her from performing the actual functional demands and 21 job duties of her PRW as a Cleaner. 22 be found based on plaintiff s first issue. No reversible error, therefore, can 23 24 25 II. The ALJ Properly Developed The Record Regarding Plaintiff s Alleged Learning Disorder And Dyslexia. 26 27 An ALJ has an independent duty to fully and fairly develop the 28 record and to assure that the claimant's interests are considered, even 9 1 when the claimant is represented, as in this case. Tonapetyan v. 2 Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). 3 develop the record further is triggered only when there is ambiguous 4 evidence or when the record is inadequate to allow for proper evaluation 5 of the evidence. 6 2001). However, an ALJ s duty to Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 7 8 The ALJ found that the date on which plaintiff was last insured was 9 December 31, 2005 -- a finding that are uncontested in this action. 10 (A.R. 379.) Thus, plaintiff had to establish she had a disability on or 11 before that date in order to be entitled to DIB. 12 evaluation and commencement of psychiatric treatment by plaintiff s 13 treating psychiatrist, Clayton Chau, M.D. did not occur until June 6, 14 2006, well after plaintiff s DLI. 15 diagnosed plaintiff with major depressive disorder; post-traumatic 16 stress disorder; ADHD, predominantly inattentive type; dissociative 17 disorder, NOS; and bipolar II disorder. (A.R. 372.) The initial mental (A.R. 367-72, 379.) Dr. Chau 18 19 In its Remand Order, the Court noted that there was no evidence 20 in the record of any psycho-educational or IQ testing of plaintiff or 21 that 22 disorder. 23 testimony that she cannot read or write (despite completing high school) 24 and was always included in special education classes, when coupled 25 with Dr. Yun s finding regarding plaintiff s limited comprehension span, 26 suggested that plaintiff suffered from a learning disorder before her plaintiff, prior (A.R. 462.) to her DLI, was treated for any learning As the Court further noted, plaintiff s 27 28 10 1 DLI.4 2 indicating that plaintiff does suffer from some sort of learning 3 disorder or other condition that impairs her ability to read and write 4 and, relatedly, her comprehension abilities, which the ALJ had failed 5 to consider at step two. 6 the ALJ to: (1) develop the record regarding plaintiff s alleged 7 learning disorder and dyslexia; (2) properly address plaintiff s claimed 8 mental impairments, to wit, her asserted learning disorder, dyslexia, 9 inability to read and write, special education, and/or low comprehension 10 ability ( Claimed Mental Impairment ); and (3) consider the impact of 11 all of plaintiff s impairments on her ability to engage in and sustain 12 full-time work. 13 to comply with the Remand Order, because he did not develop the record 14 regarding plaintiff s claimed learning disorder and dyslexia, and he 15 failed to order that plaintiff undergo psycho-educational or IQ testing 16 or continu[e] the hearing to supplement the record to accurately and 17 appropriately determine plaintiff s current status of her Claimed Mental 18 Impairment. (Joint Stip. at 9.) (A.R. 462.) Thus, the ALJ had before him at least some evidence (A.R. 463.) (A.R. 469.) As a result, the Court ordered Plaintiff now argues that the ALJ failed 19 20 In response to the Remand Order, the ALJ sought the assistance of 21 medical expert Craig Rath, M.D. to assess and render an opinion 22 regarding plaintiff s asserted mental impairments. 23 Dr. Rath stated that he had examined plaintiff s medical records for 24 evidence of learning disability and dyslexia, and those particular (A.R. 379, 436-37.) 25 4 26 27 28 On October 16, 2007. Kyu Ho Yun, M.D., a doctor of internal medicine and radiology and plaintiff s treating physician, completed a Medical Opinion Re: Ability To Do Work-Related Activities (Physical), in which he noted that plaintiff has low comprehension span, cannot read to understand clear and concise directive. Needs to be shown, however, still has problem. (A.R. 353.) 11 1 issues. (A.R. 437.) He observed that plaintiff had been diagnosed 2 with Attention Deficit Hyperactivity Disorder, inattentive type, and 3 she had been treated with Strattera, which is consistent with ADHD. 4 (Id.) 5 Special Education for problems, but the real problem, according to 6 plaintiff s self-reporting, seemed to be that her mind would wonder and 7 she would daydream a lot. 8 circumstance was more consistent with ADHD, inattentive type, than a 9 specific learning disability. Dr. Rath recounted plaintiff s statement that she was put in (A.R. 438.) (Id.) Dr. Rath opined that this He explained that, although 10 learning disabilities are correlated with ADHD, so the fact that ADHD 11 is present makes it more likely there s a learning disability, there 12 was 13 disability prior to the DLI.5 14 plaintiff would have some problems focusing, but that problem was not 15 very severe, and therefore, the only limitation he found appropriate 16 was to give the safety precautions of heights, dangerous moving 17 equipment, not in charge of safety operations of others. no indication in plaintiff s medical (A.R. 441.) records of a learning Dr. Rath opined that (A.R. 438.) 18 19 The ALJ relied on Dr. Rath s opinion in determining that plaintiff 20 had a severe impairment of ADHD prior to her DLI, and that there was no 21 evidence to support the existence of her claim of having the impairments 22 of learning disability and dyslexia prior to her DLI. 23 Dr. Rath s opinion constituted substantial evidence upon which the ALJ 24 could rely. 25 nontreating or nonexamining doctors may serve as substantial evidence (A.R. 379, 382.) See Tonapetyan, 242 F.3d at 1149 (holding that opinions of 26 27 28 5 In response to plaintiff s assertion that she was in a special school all [her] life, Dr. Rath specifically noted that somebody can go to a special school for ADHD. (A.R. 441.) 12 1 when consistent with independent clinical findings or other evidence in 2 the record); see also Andrews, 53 F.3d at 1041 ( reports of the 3 nonexamining advisor need not be discounted and may serve as substantial 4 evidence when they are supported by other evidence in the record and are 5 consistent with it ). 6 7 Moreover, as noted by the ALJ, despite knowing that the significant 8 issue on remand was that insufficient evidence supported plaintiff s 9 allegations regarding the Claimed Mental Impairment, plaintiff still 10 failed to submit school records or medical evidence documenting any 11 learning disorder or dyslexia, or other mental impairment, which existed 12 prior to her DLI. 13 treatment records from Cypress Family Counseling and Dr. Kris Hans 14 Khurana dated well after her POD and DLI, which failed to reveal the 15 existence of such impairments prior to plaintiff s DLI. 16 604-16, 617-19.) 17 records likewise did not support a finding of any other Claimed Mental 18 Impairment during the relevant time period. (A.R. 379 n.2.) 19 had ample opportunity between the date of the September 2010 Remand 20 Order 21 regarding the existence, nature, and extent of her alleged learning 22 disorder and dyslexia prior to her DLI, and she failed to do so. and the (A.R. 379 n.2.) Rather, plaintiff submitted (A.R. 570-603, Thus, the ALJ did not err in finding that these ALJ s June 2011 decision to supplement Plaintiff the record 23 24 Although the ALJ has an obligation to assist in developing the 25 record, the claimant has the burden of proving that he or she became 26 disabled before the expiration of her insurance. 27 161 F.3d 599, 601 (9th Cir. 1998). 28 his duty to develop the record by not seeking evidence or ordering See Tidwell v. Apfel, Therefore, an ALJ does not fail in 13 1 further examination or consultation regarding a claimed mental 2 impairment, if no medical evidence indicates that such an impairment 3 exists. 4 C.F.R. 5 established by medical evidence consisting of signs, symptoms, and 6 laboratory findings, not only by [a claimant s] statement of symptoms ); 7 SSR 96 4p, 1996 WL 374187, at *1 ( regardless of how many symptoms an 8 individual alleges, or how genuine the individual's complaints may 9 appear to be, the existence of a medically determinable physical or 10 mental impairment cannot be established in the absence of objective 11 medical abnormalities; i.e., medical signs and laboratory findings ). See Ukolov v. Barnhart, 420 F.3d 1002, 1005 (9th Cir. 2005); 20 § 404.1508 ( [a] physical or mental impairment must be 12 13 Plaintiff s testimony alone did not trigger the ALJ s duty to 14 develop the record on this issue, because there was no objective 15 evidence 16 dyslexia. 17 testimony, which the ALJ found, as discussed infra, had credibility 18 problems. 19 that plaintiff suffered from a learning disorder and dyslexia, and the 20 ALJ was not obligated to further develop the record on this issue, 21 including ordering that plaintiff undergo psycho-educational or IQ 22 testing. 23 plaintiff s second issue does not warrant reversal. 24 /// 25 /// 26 /// 27 /// 28 /// that plaintiff suffered from a learning disorder and/or The only arguable evidence in the record was plaintiff s As a result, there was no credible evidence in the record Accordingly, the ALJ did not commit reversible error and 14 1 III. The ALJ Provided The Requisite Clear And Convincing 2 Reasons For 3 Rejecting Plaintiff s Subjective Pain Testimony. 4 5 In her third issue, plaintiff argues that the ALJ erred in his 6 consideration of her subjective symptom testimony. 7 For the reasons set forth below, the Court disagrees. 8 9 Once a disability claimant produces objective medical evidence of 10 an underlying impairment that is reasonably likely to be the source of 11 claimant s subjective symptom(s), all subjective testimony as to the 12 severity of the symptoms must be considered. 13 F.3d 882, 885 (9th Cir. 2004); Bunnell v. Sullivan, 947 F.2d 341, 345 14 (9th Cir. 1991); see also 20 C.F.R. § 404.1529(a) (explaining how pain 15 and other symptoms are evaluated). 16 malingering based on affirmative evidence thereof, he or she may only 17 find an applicant not credible by making specific findings as to 18 credibility 19 Robbins, 466 F.3d at 883. 20 claimant s 21 truthfulness; (2) inconsistencies either in the claimant s testimony or 22 between the claimant s testimony and her conduct; (3) the claimant s 23 daily activities; (4) the claimant s work record; and (5) testimony from 24 physicians and third parties concerning the nature, severity, and effect 25 of the symptoms of which the claimant complains. 26 Barnhart, 278 F.3d 947, 958 59 (9th Cir. 2002); see also 20 C.F.R. § 27 404.1529(c). and stating credibility clear Moisa v. Barnhart, 367 [U]nless an ALJ makes a finding of and convincing reasons for each. The factors to be considered in weighing a include: (1) 28 15 the claimant s reputation for See Thomas v. 1 The ALJ found that [a]fter careful consideration of the evidence 2 . . . [plaintiff] s medically determinable impairment could reasonably 3 be expected to cause the alleged symptoms 4 ALJ cited no evidence of malingering by plaintiff. 5 ALJ s reason(s) for rejecting plaintiff s credibility must be clear and 6 convincing. (A.R. 381.) Further, the Accordingly, the 7 8 Plaintiff testified that she cannot drive by herself, gets lost 9 when driving unless someone else is with her to help her navigate, 10 obtained a driver s license even though she cannot read and write at 11 all, cannot write a simple note to advise a family member of her 12 whereabouts, cannot pay bills and her husband and mother take care of 13 that for her, and could only perform her job in the past by relying on 14 co-workers to read things for her. 15 plaintiff s 16 limiting effects of [her] symptoms are not credible to the extent they 17 are inconsistent with [the ALJ s RFC] assessment. (A.R. 382.) The ALJ 18 specifically 19 declining to credit plaintiff s statements regarding the extent of the 20 limitations and their impact on her ability to work. statements concerning articulated multiple, (A.R. 438-42.) The ALJ found that the intensity, legally persistence sufficient reasons and for 21 22 First, the ALJ noted that there were some significant 23 inconsistencies between [plaintiff s] testimony and other evidence, 24 thus detracting from her credibility. 25 plaintiff testified that she is not able to pay bills; however, the 26 record shows that plaintiff told Dr. Chau, I do the bills at home. 27 28 16 (A.R. 384.) For example, I I know how to survive. (A.R. 372, 382.)6 1 make sure the bill is paid. 2 In addition, plaintiff testified at the July 2008 hearing that her 3 husband mops, because she is unable to do so; however, she reported to 4 her treating psychiatrist Dr. Chau, on two different occasions, that her 5 husband does not do any housework. 6 plaintiff testified that she could perform only limited daily activities 7 (A.R. 419-20), but as reported by her sister, Yolanda Jordan, plaintiff 8 is able to get her children ready for school, prepare their breakfast, 9 take them to school, clean the house, make snacks for the children, do 10 laundry, and prepare dinner. (A.R. 100, 102, 383.) Plaintiff s sister 11 also reported -- contrary to plaintiff s testimony -- that plaintiff can 12 drive alone and, further, can shop for groceries on her own. 13 103.) 14 activities affected by [plaintiff s] alleged impairments, she only 15 checked the boxes for lifting, and did not check the boxes for memory, 16 completing tasks, concentration, or following instructions. (A.R. 105, 17 383). 18 plaintiff s testimony, as found by the ALJ, were a valid reason for 19 finding that plaintiff lacked credibility. 20 622 F.3d 1228, 1234-35 (9th Cir. 2010)(credibility was undermined by 21 self-reported activities that suggested a greater functional capacity 22 than claimed in testimony); Morgan v. Comm r, 169 F.3d 595, 600 (9th 23 Cir. 1999)(holding that contradictions between reported activities and 24 asserted limitations calls credibility into question). (A.R. 356, 366.) Additionally, (A.R. The ALJ also noted where Ms. Jordan checked the boxes for These inconsistencies between the evidence of record and See, e.g., Berry v. Astrue, 25 26 6 27 28 The ALJ acknowledged plaintiff s testimony that she did not tell anyone she pays the bills but found it not credible, given the detailed notes Dr. Chau had made regarding his discussions with plaintiff. (A.R. 382.) 17 1 The ALJ also found that plaintiff s credibility was undermined by 2 inconsistencies with respect to her claimed inability to read and write. 3 (A.R. 384.) 4 cannot read and write at all. 5 ever learned to read and write, plaintiff responded that she learned, 6 and they taught me, but I forget. 7 testified that she took and passed her driver s license examinations in 8 English. (A.R. 439.) 9 education teacher At the May 2011 hearing, plaintiff testified that she help (A.R. 438.) However, when asked if she (A.R. 438-39.) Plaintiff also Plaintiff testified that she had a special her everyday to study for the license 10 examination, but that if she went to get a license now, she would not be 11 able to. 12 high school in special ed. 13 plaintiff s test-taking ability and high school graduation, as well as 14 her admission that she learned to read and write, cast doubt her 15 testimony that she cannot read and write at all. 16 plaintiff may disagree with the ALJ s conclusion, the Court may not 17 overturn it, because it is rational and supported by the record. 18 Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). (Id.) Further, plaintiff testified that she graduated from (A.R. 441.) The ALJ concluded that (A.R. 384.) Although 19 20 The ALJ likewise properly inferred from the fact of plaintiff s 21 gainful employment as a janitor for 15 years that, because her alleged 22 mental impairments had not prevented her from working during that time, 23 this suggests that such impairments would not currently render her 24 unable to work. 25 contention that she suffered from mental impairments for many years 26 prior to when she stopped working, plaintiff continued to work at her 27 job as a janitor until October 2000, and no medical evidence suggested 28 that she stopped working because of any mental impairment. (A.R. 384.) As noted by the ALJ, despite plaintiff s 18 (Id.) See 1 Bean v. Chater, 77 F.3d 1210, 1213 (10th Cir. 1995)(claimant s prior 2 work record can be considered in evaluating credibility; ALJ did not err 3 in considering that claimant quit working several years before the 4 alleged onset of disability). 5 reasonable judgment and concluding from the evidence of plaintiff s 6 lengthy work history that she was not as limited as she alleges. 7 while this may not be the only interpretation of the evidence, it is a 8 reasonable interpretation of the evidence, and the Court must uphold the 9 ALJ s decision where the evidence is susceptible to more than one 10 rational interpretation. The ALJ did not err in exercising Again, Magallanes, 881 F.2d at 750. 11 12 Finally, as discussed above, the ALJ found that the medical 13 evidence failed to fully support plaintiff s claimed limitations. 14 Lewis v. Apfel, 263 F.3d 503, 511 (9th Cir. 2001)(one reason for which 15 an 16 evidence). 17 plaintiff s alleged learning disorder and dyslexia. 18 was no record of any psycho-educational or IQ testing of plaintiff, or 19 any medical records, prior to plaintiff s DLI and during the POD, that 20 established she was diagnosed with and/or treated for any of her alleged 21 mental impairments, with the exception of her ADHD.7 ALJ may discount testimony is that it conflicts with See medical The ALJ stated that there was no evidence in the record of (A.R. 382.) There (Id.) 22 23 24 25 26 27 28 7 The ALJ rejected Dr. Chau s opinion regarding plaintiff s mental limitations, because Dr. Chau first examined and treated [plaintiff] well after the DLI. (A.R. 383.) The ALJ also rejected Dr. Yun s opinion -- that plaintiff had a low comprehension span and cannot read to understand clear and concise directive. Needs to be shown, however still has problem -- because this opinion was well outside the period of adjudication, outside the area of Dr. Yun s expertise, and was not expressly or implicitly supported by any relevant objective medical evidence. (A.R. 383.) The ALJ did not err in this respect. See Carmickle v. Comm r, 533 F.3d 1155, 1165 (9th Cir.2008) (noting that [m]edical opinions that predate the alleged onset of disability are of 19 1 In sum, when, as here, the ALJ s credibility determination is 2 reasonable and supported, it is not the Court s role to second-guess it. 3 See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). 4 is not warranted on this basis. Reversal 5 6 CONCLUSION 7 8 For the foregoing reasons, the Court finds that the Commissioner s 9 decision is supported by substantial evidence and is free from material 10 legal error. Neither reversal of the Commissioner s decision nor remand 11 is warranted. 12 13 Accordingly, IT IS ORDERED that Judgment shall be entered affirming 14 the decision of the Commissioner of the Social Security Administration. 15 IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of 16 this Memorandum Opinion and Order and the Judgment on counsel for 17 plaintiff and for the Commissioner. 18 19 LET JUDGMENT BE ENTERED ACCORDINGLY. 20 21 DATED: November 30, 2012 22 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 limited relevance ). 28 20

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